AIN v Medical Council of New South Wales

Background

1. Well before the contested hearing on 8 September 2016 it was clear that the number of documents held by the Respondent containing AIN's personal information and which did or might fall within the ambit of AIN's complaint of inaccuracy under the PPIP Act was very large.
2. A central issue addressed in the September interlocutory decision was whether existing directions made on 31 May 2016 for the provision by the Respondent of TRIM screenshots and a particular list in respect of documents held by the Respondent were relevant to the determination of the application.
3. In addition to an argument that compliance with the existing directions was burdensome, the Respondent contended that the lists the subject of the previous directions were irrelevant. It applied for two of the directions made on 31 May 2016 to be vacated (the time for compliance with the 31 May 2016 directions had been extended by directions made on 5 August 2016). Those two directions were identified as directions (a) and (c).
4. One of AIN's main arguments at the hearing on 8 September 2016, in response to this application, was that the Respondent had failed to comply with its obligation under s 58(1)(b) of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) to lodge with the Tribunal all the documents it considered to be relevant to the determination of the proceedings within 28 days of the application for administrative review - the application had been lodged in April 2014 and time had elapsed in the parties' pursuit of a settlement. AIN contended that the Respondent accepted that it had failed to comply with this obligation. AIN's position was that the directions made on 31 May 2016 had been made with a view to ensuring that the Respondent complied with this obligation.
5. Relevant parts of Section 58 provide: 58 Duty of administrator to lodge material documents with Tribunal where decision reviewed (1) An administrator whose administratively reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal: (a) a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 (3)), and (a1) a copy of any statement of reasons for a decision in an internal review conducted in respect of the administratively reviewable decision, and (b) a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal. (4) If the Tribunal or President considers that other particular documents (or that other documents included in a particular class of documents) may be relevant to the determination of the application, it may cause a notice in writing to be served on the administrator: (a) stating that the Tribunal or President is of that opinion, and (b) directing the administrator concerned to lodge with the Tribunal, before a date specified in the notice, a copy of each of those other documents that is in the possession, or under the control, of the administrator. (5) The principal registrar of the Tribunal is to grant reasonable access to the applicant in the proceedings to any copy of a document lodged under this section by an administrator. Reasonable access includes, but is not limited to, enabling the applicant to make a photocopy of a document during ordinary business hours.
6. At the hearing on 8 September 2016, AIN pointed out that the Respondent had not objected to the lodgement of the s 58(1)(b) documents, as it could have done under s 59 of the ADR Act, but it had, originally, only lodged 4 documents with the Tribunal when it was clear that it regarded many more as relevant.
7. The September interlocutory decision implicitly rejected AIN's contention. Amongst other orders, it vacated directions (a) and (c). The Tribunal's reasons included: 1. The directions made on 31 May 2016 were not made pursuant to s 58, although both parties informed the Tribunal that the directions had as their context and aim the addressing of the s 58 obligation. The directions were made in the exercise of the ordinary procedural powers of the Tribunal to manage cases [13]. 2. The Tribunal could revisit prior directions and vacate or vary them [25] -[28]. It was not the case that the directions could only be altered through an appeal. 3. The documents needed for determination of the proceedings was a matter for which the Tribunal was ultimately responsible - it may have a view as to what is relevant despite the immediate obligation on the administrator to furnish documents under s 58 of the ADR Act [29] - [33]. 4. The provision of the screenshots and lists of all affected documents going across the entire data system was not essential at the contravention stage. What was needed at that stage was a representative sample of texts that are said not to satisfy s 15 of the PPIP Act and a representative set of the kind of records in which they appear [33], [42]. 5. It disagreed that lists may never be relevant. If findings of contravention are made it would then be necessary for the agency to provide comprehensive information as to the data requiring amendment - there would need at that stage to be clarity as to the documents and recipients affected [35]-[37]. 6. The conduct of the case should be split into two stages - contravention and relief. 7. The directions made on 31 May 2016 were premature and proceeded on the basis that the material relevant to both contravention and relief needed to be filed [53].
8. The Tribunal vacated directions (a) and (c) and directed that: C. The matter is to be relisted for further directions in relation to the following matters: 1. directions for the lodgement by the agency of (a) representative records of the statements relating to the review Applicant's personal information put in issue by the review Applicant's application, and (b) a representative set of the kind of records held by the agency in which they appear. 2. then, once, that material is lodged, directions for the exchange of submissions and any other material addressed to the issue of contravention. 3. fixing the matter for hearing in relation to contravention (stage 1). D. After stage 1, if there is a finding of contravention, the matter is to be listed for further directions, taking account of these Reasons.

Hearing on 28 October 2016

1. As required, the matter was relisted for directions on 28 October 2016.
2. In a document lodged on 26 October 2016, in response to a request from the Tribunal for the proposed orders sought by each party, AIN made some short contentions and sought one order. The order sought was that "…the Respondent comply with the requirements of s 58(1)(b) of the [ADR Act] as at the date on which the documents were required to have been lodged". A second matter was addressed in the Appellant's document, namely a contention that the Respondent was yet to comply with the orders made on 31 May 2016 and repeated by Perrignon SM on 5 August 2016 and by the Tribunal on 8 September 2016.
3. At the directions hearing on 28 October 2016, the Tribunal made the following directions: 1 On 28 October 2016, the Respondent is to serve on the Applicant the documents it proposes to lodge as a representative sample of the statements and records put in issue by the Applicant's review application (the Proposed Bundle). 2. The Applicant is to provide the Respondent with copies of any further documents that she wishes to be included in the Proposed Bundle on or before 4 November 2016. 3. The Respondent is to lodge the Proposed Bundle, including any further documents provided by the Applicant under Order 2, on or before 11 November 2016. 4. The Respondent is to lodge any evidence and written submissions, not exceeding 10 pages, concerning contravention by 18 November 2016. 5. The Applicant is to lodge any evidence and written submissions, not exceeding 10 pages, concerning contravention by 9 December 2016. 6. The Respondent is to lodge any evidence and submissions in reply concerning contravention by 16 December 2016. 7. The matter is fixed for hearing in relation to the issue of contravention only on 6 February 2016. 8. Privacy Commissioner to file and serve any submissions by 23 December 2016.
4. In deciding to make the directions of 28 October 2016, it was implicit that the Tribunal was rejecting AIN's application for the order concerning the provision of s 58 documents.
5. At the call-over for this appeal on 24 November 2016, the directions made on 28 October 2016 were vacated and the appeal was listed for hearing.

Variation or discharge of interlocutory orders

1. Before considering the grounds of appeal we will set out the principles that constrain the Tribunal when confronted with an application to re- agitate an existing interlocutory decision. The principles relating to the variation or discharge of interlocutory orders otherwise than by appeal were set out by McLelland J in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46-7. In that case, his Honour, in a passage often cited, said: The overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle, and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the court to set aside, vary or discharge interlocutory orders will ordinarily be exercised. Not all kinds of interlocutory orders attract the same considerations. For present purposes one may put to one side orders of a merely procedural nature (as to which see for example Wilkshire & Coffey v Commonwealth (1976) 9 ALR 325) and injunctions (or undertakings) made or given by agreement and without contest "until further order" (as to which see for example Warringah Shire Council v Industrial Acceptance Corp (unreported, SC(NSW), McLelland J, 22 November 1979). In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application: see Woods v Sheriff of Queensland (1895) 6 QLJ 163 at 164-5; Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 at 447-8; Chanel Ltd v F W Woolworth & Co [1981] 1 All ER 745; [1981] 1 WLR 485; Adam P Brown Male Fashions v Philip Morris (1981) 148 CLR 170 at 177-8; 35 ALR 625 at 629-30; Butt v Butt [1987] 1 WLR 1351 at 1353; Gordano Building Contractors Ltd v Burgess [1988] 1 WLR 890 at 894.

Ground 1 of the appeal

1. AIN contends that the rejection of her application for an order concerning the provision of s 58 documents denies, or will deny her, procedural fairness.
2. However, this contention disregards the fact that the merits of AIN's contention about the provision of s 58 documents had been heard and ruled upon in the September interlocutory decision (transcript of hearing on 8 September 2016 at pages 38.5, 39.45 - 40.10, 76.5 - 76.20, 80 - 81, 86 - 87, 90.20 and orders made on 12 September 2016). In the absence of a material change of circumstances since the hearing or new material of the kind referred to in the passage from the judgment just referred to, the Tribunal on the second occasion was entitled to reject another attempt to achieve what AIN had been unsuccessful in achieving on the first occasion. Otherwise, there is a risk that interlocutory contests will be prolonged and the resolution of cases unduly delayed.
3. We do not think it arguable that AIN overcame these hurdles. We have considered her document headed "Applicant's Proposed Orders From Planning Meeting on 28 October 2016" and the transcripts of the hearings on 8 September 2016 and 28 October 2016. AIN provided no evidentiary material to the Tribunal on 28 October 2016. The points raised by AIN in the above document and orally at the hearing on 28 October 2016 are fairly characterised as either a repeat of her argument about s 58 as put to the Tribunal on 8 September 2016, criticisms of the manner in which the hearing was conducted on 8 September 2016 or criticisms of some of the findings and conclusions reached in the September interlocutory decision but without reference to any change of circumstances or fresh evidence.
4. Under this ground of appeal, AIN also contends that she was not afforded procedural fairness in the hearing on 28 October 2016 in respect of her s 58 argument and, as she contends, in respect of a determination that production of representative samples of documents were a suitable substitute for s 58 documents.
5. We do not agree. It is important to appreciate the context for the hearing on 28 October 2016 and the matters that AIN sought to have agitated. First, the matter was listed so that directions of a kind that had already been decided upon after a contested hearing, could be made. Secondly, AIN had been given the opportunity to specify the orders that she sought and to do so prior to the hearing. Thirdly, from the orders that she identified before the hearing it was apparent that AIN was seeking to re- agitate an application that she had previously made and which had been rejected at the contested hearing. Fourthly, her opportunity to take such a course was constrained by the factors to which we have already referred. Fifthly, her document concerning the orders sought did not include any order to reverse the directions made on 12 September 2016 for the provision of a representative sample of documents.
6. In such a context, it is understandable and appropriate that the Tribunal on the second occasion should seek to deal with this issue about the directions for the production of documents with brevity. At the same time, in our opinion, sufficient opportunity was given to AIN to identify the nature of her argument. In the first place, AIN took the opportunity to outline her argument in the document dated 26 October 2016. Secondly, she was given a further opportunity to identify the nature of her argument at the hearing on 28 October 2016: see transcript at AB pages 137.4 (the reference to "I'll hear the Applicant in a minute"), page 138.4 (the reference to the previous hearing, that he was minded to follow what had already been determined " subject to any further matters you want to put to me this morning" having previously said he had read AIN's document of 26 October 2016), page 138.9 - 139.2 (where AIN makes a submission about the September interlocutory decision), page 139.4 - 139.6 (where AIN is asked if there is anything else she wants to say and AIN repeats the nature of her s 58 submission), page 140.8 - 141.5 (where there is discussion about what the Tribunal had in mind about deciding contravention on the basis of representative sample of documents) and at page 142.2 (where AIN is asked whether there is anything else she wants to say, the Tribunal having earlier indicated at page 141.5 that it was not going to re-open the questions already decided by the September interlocutory decision, and AIN submitted that moving forward on the basis of samples was procedurally unfair).
7. In relation to her contention of procedural unfairness about the Tribunal's decision on 28 October 2016 for a representative sample of documents, AIN contends that the Tribunal had prejudged the issue and could not be swayed from that path. However, it is important to recognise that it was the September interlocutory decision that decided on representative samples of documents after a contested hearing. AIN did not identify that she applied to reverse that order in her proposed orders and when she did complain about it, near the end of the hearing on 28 October 2016, AIN made no reference to any change of circumstances or fresh evidence about the issue.
8. In the circumstances, we do not think there is a sufficient basis for a finding that there was procedural unfairness about the disposition of these issues on 28 October 2016.
9. For the above reasons, we refuse leave to appeal on Ground 1.

Ground 2 of the appeal

1. AIN contends that the Tribunal erred in setting a timetable for the hearing and submission of a representative selection of documents, including a sample from AIN, without requiring the Respondent to file a statement of reasons as required under s 58(1)(a) of the ADR Act.
2. AIN did not seek such a direction in her document dated 26 October 2016, nor at the hearing on 28 October 2016. There has been no decision made by the Tribunal on the question.
3. Nevertheless, assuming there is an appealable decision by the direction made for AIN to provide documents (see definition of "decision" in s 5(1)(a) and (b) of the NCAT Act, including, as it does, the making of an order and the giving of a direction), in our opinion, leave to appeal on this point should be refused. First, we should be particularly cautious about permitting an Appellant to raise new points on appeal about such a procedural matter. Secondly, it is difficult to see the utility of a direction for the supply of such a statement now that the Respondent has served its submissions on contravention, which it did on 17 November 2016. In this respect, we also note that the Respondent accepts that AIN should be given a fresh opportunity to supply the documents the subject of the direction in the light of these submissions.
4. In saying all this, we should not be taken as expressing the view that the requirement under s 58(1)(a) for a statement of reasons does apply to applications for administrative review of conduct in contrast to applications for administrative review of decisions. We express no opinion on the point.
5. For these reasons, we refuse leave to appeal on Ground 2.
6. We should also note that the direction made on 28 October 2016 was not for a representative sample of documents from AIN but for the provision of any further documents that she wished to include in the bundle.

Ground 3 of the appeal

1. By Ground 3 of the appeal AIN contends that the Tribunal erred in vacating the orders dated 31 May 2016, the orders of 6 August 2016 and the directions of 12 September 2016 when it had no jurisdiction to do so. It is also contended that the Tribunal erred in deciding not to pursue the Respondent to properly comply with the orders dated 31 May 2016 without a fair hearing on the matter, contrary to the rules of procedural fairness.
2. The answer to this contention is that no such orders were made in the orders of 28 October 2016, which are the orders the subject of the appeal. Also, there was no decision by the Tribunal on 28 October 2016 not to require the Respondent to comply with the orders made on 31 May 2016 - in saying this, we leave aside for the moment the question of compliance with orders (b) and (d) of the orders made on 31 May 2016.
3. At the hearing on 28 October 2016 the Tribunal was not asked to reinstate the orders made on 31 May 2016 that had been vacated by the orders of 12 September 2016. At the hearing the Tribunal clarified with AIN that it was (b) and (d) of the orders made on 31 May 2016 that she was saying had still to be complied with and which was the subject of paragraph 6 of her document dated 26 October 2016 (transcript at AB pages 137.9 - 138.3).
4. Accordingly, this ground of appeal is misconceived, so far as it concerns the orders of 31 May 20167 vacated by the orders made on 12 September 2016. There has been no decision by the Tribunal on the question now raised in respect of which the Appeal Panel has internal appeal jurisdiction.
5. Under this ground of appeal AIN also contends that the Tribunal erred in failing to provide her with a hearing on the matter whether orders (b) and (d) of the orders made on 31 May 2016 had been complied with. We note that in AIN's written submissions she expresses this more broadly, saying that it was a failure to provide a hearing on the question whether "the Orders" had been complied with (at [134]). However, as we have already pointed out, it was made clear to the Tribunal on 28 October 2016 by AIN that it was (b) and (d) that she was saying had not been complied with.
6. It was common ground that these two directions had not been vacated by the orders made on 12 September 2016. The reference to (b) and (d) was a reference to the directions set out in paragraph 14 of the reasons for decision dated 12 September 2016. Those directions provided for the supply of a list of documents sent to offsite storage [(b)] and a list of soft copy documents to go into a sealed folder [(c)].
7. For completeness, we note that at the hearing of the appeal we were able to see from the Tribunal file a handwritten note of the directions made on 31 May 2016 and that these are not enumerated by the letters (a) to (d). Also, they cover additional matters to those set out in paragraph 14 of the reasons. The handwritten note on the Tribunal file accords with the note of the 31 May 2016 directions taken by AIN's husband from his inspection of the Tribunal file, a copy of which was supplied to the Appeal Panel in the Appeal Book.
8. As we interpret it, on 28 October 2016, the Tribunal decided that it was unnecessary to determine the question whether directions (b) and (d) had been complied with. The Tribunal raised the issue of non-compliance with both parties, was able to identify that there was a dispute about whether there had been compliance and then proceeded on the basis that it was unnecessary to decide the question because, as the Tribunal interpreted the outcome of the September interlocutory decision, the task would be to decide the issue of contravention on the basis of representative samples of documents (transcript at AB page 140.9 - 141.6). It is apparent from this passage that AIN was given an opportunity to be heard on this interpretation of the task. In our opinion, it was, at least, open to the Tribunal to come to that conclusion.
9. We do not see a sufficient basis for a conclusion of error by the Tribunal in not determining whether there had been a failure to comply with directions (b) and (c) made on 31 May 2016.
10. For the above reasons, we refuse leave to appeal on Ground 3.

Ground 4 of the appeal

1. Under Ground 4 of the appeal AIN seeks to challenge the decision to hear the question of contravention separately from and before the question of relief. First, AIN contends that at the hearing on 8 September 2016 the Tribunal did not provide her with an opportunity to make submissions as to whether contravention had been previously admitted, which she contends it had been. Secondly, AIN contends that at the hearing on 28 October 2016 the decision to bifurcate the proceedings was made without allowing AIN to be heard on the matter of contravention, contrary to the requirements of procedural fairness. In her written submissions AIN sets out 19 matters that she says evidences that the Respondent had acknowledged contravention (paragraph 140).
2. However, this ground of appeal is misconceived because the decision to bifurcate these questions was made by the Tribunal on 12 September 2016, and we are not dealing with an appeal from that decision. There was no decision by the Tribunal on 28 October 2016 to bifurcate in respect of which we have internal appeal jurisdiction. The Tribunal on 28 October 2016 was not asked to overturn the orders concerning a hearing of the issue of contravention made on 12 September 2016. All that the Tribunal decided on 28 October 2016 was the date for the hearing of the issue of contravention (Order 6), in accordance with the direction made by the Tribunal on 12 September 2016 that it do so.
3. In the circumstances, it is not appropriate that we determine the issue as to whether the Respondent had admitted a contravention. We note that the claimed admission is disputed by the Respondent. At the hearing on the issue of contravention AIN will have an opportunity to adduce evidence and make submissions as to whether there was such an admission and, if there was, the legal effect, if any, of such an admission.
4. For these reasons, we refuse leave to appeal on Ground 4.

Ground 5 of the appeal

1. Under Ground 5 of the appeal AIN contends that the Tribunal on 28 October 2016 acted with bias. The contention of bias is that the Tribunal "pre-determined to follow the reasons of O'Connor DCJ of 12 [September] 2016, which were consistent with the proposed orders of the Respondent". AIN also contends that the Tribunal member displayed a reasonable apprehension of bias because the only time he waivered from the reasons of the Tribunal of 12 September 2016 was when those reasons did not suit the Respondent (such as failing to ensure that the Respondent had complied with the orders of 31 May 2016 or failing to hold a hearing into this question) and because the Tribunal failed to afford AIN a hearing on the matters relied upon in Grounds 1 to 4 of the appeal.
2. Whilst an allegation of bias (whether actual bias or a reasonable apprehension of bias) raises an important matter, we have, nevertheless, decided that in this case leave to appeal on this point should be refused. This is because we do not think a conclusion of bias is open in the circumstances.
3. Our reasons are as follows: 1. The allegation of bias relates to the making of merely procedural directions in accordance with a prior decision about the substantive procedural course to be followed, and where the latter decision was made after a contested hearing. 2. In such circumstances, it was correct, and reasonably to be expected, that the Tribunal member would be pre-disposed to make directions of the nature that he did. 3. It was also appropriate that the Tribunal member would be pre-disposed against attempts to re-agitate matters already determined by the September interlocutory decision. 4. Despite the pre-disposition to which we have referred, the Tribunal member did indicate that he would hear from AIN before he finally decided on the orders to be made and the Tribunal proceeded to do so. 5. As we have seen above in relation to Grounds 2, 3 and 4 of the appeal, the Tribunal member was not asked to make a number of the orders that AIN now contends the Tribunal should have made. 6. The course that the Tribunal took in relation to directions (b) and (d) was itself supportable because it was consistent with the reasons of 12 September 2016 that the issue of contravention would be decided on the basis of representative samples of documents. As Basten JA said in Spencer v Bamber [2012] NSWCA 274 at [18], it is most unlikely that a finding that is itself supportable provides a basis for a reasonable apprehension of bias.
4. Even if we are wrong in refusing leave to appeal on Ground 5, we would reject that ground of appeal for the reasons we have just given.

Orders on the appeal

1. For the above reasons, we order that: 1. Leave to appeal is refused. 2. The appeal is dismissed.

Developments since the hearing on 28 October 2016

1. We note that since the directions were made on 28 October 2016 the Respondent has served its submissions on contravention and produced what it considers to be representative samples of relevant documents. As a result of this appeal, a new set of directions will have to be made in order to have the case ready for hearing. It will, of course, be open to AIN to raise with the Tribunal at first instance the adequacy of the representative samples produced by the Respondent and to do so in the light of the Respondent's submissions. Those are not matters that have formed any part of this appeal.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 February 2017