DVG v Western Sydney Local Health District

Legal principles

1. The Tribunal accurately summarised the relevant legal principles at [5] - [14] of the decision. The core principles are that an agency, such as the Western Sydney Local Health District, is required to comply with the Health Privacy Principles relating to things like the collection, use and disclosure of a person's health information: HRIP Act, s 11 and Sch 1. A person's health information, as defined in s 6 of the HRIP Act, includes: (a) personal information that is information or an opinion about: (i) the physical or mental health of a disability (at any time) of an individual, or (ii) an individual's express wishes about the future provision of health services to him or her, or (iii) a health service provided, or to be provided, to an individual,
2. A person can complain to an agency about conduct which contravenes a Health Privacy Principle: HRIP Act, s 21(1). Those complaints are governed by Part 5 of the Privacy and Personal Information Protection Act 1998 (NSW). When applying to the Local Health District for an internal review of conduct, an applicant is asked the following question, "What is the specific conduct you are complaining about?" A footnote explains what conduct means and gives some examples: Conduct can include an action, a decision, or even inaction by the agency. For example, the 'conduct' in your case might be a decision to refuse you access to your personal information, or the action of disclosing your personal information to another person, or the inaction of a failure to protect your personal information from being inappropriately accessed by someone else.
3. If an applicant is not satisfied with the findings of the agency's review, he or she may apply to the Tribunal for "an administrative review . . . of the conduct that was the subject of the application…" (Emphasis added): Privacy and Personal Information Protection Act 1998 (NSW), s 55. As the Appeal Panel said in CYL v YZA [2017] NSWCATAP 105 at [58], ". . . the scope of the application for internal review sets the scope of the proceedings before the Tribunal. . ." In the application for internal review to the agency, an applicant is not required to identify the Health Privacy Principle that the agency is said to have breached, but: There needs to be material that can be understood by the agency, fairly read, as connecting the action or circumstances of concern to a principle, whether or not the principle itself is actually specified by the application: CYL v YZA [2017] NSWCATAP 105 at [58].
4. If an applicant proves that an employee of an agency has breached a Health Privacy Principle, the agency may not be liable if that breach (including a breach of the principles relating to collection, use or disclosure) "was for a purpose extraneous to any purpose" of the agency: Director General, Department of Education and Training v MT (2006) 67 NSWLR 237 at 247 [43]. For example, if an employee's conduct when breaching a Health Privacy Principle was not authorised by the agency, it is not the agency's conduct: BLW v Nepean Blue Mountains Local Health District [2015] NSWCATAD 184 at [81].
5. The Tribunal may dismiss proceedings at any stage "if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance": NCAT Act, s 55(1)(b) and HRIP Act, s 52

Blacktown Acute Mental Health Team - proceedings 2019/00122424

Application for internal review

1. When DVG completed the application for internal review about the Blacktown Acute Mental Health Team, he alleged breaches of the Health Privacy Principles relating to collection, security or storage, accuracy, use disclosure and refusal of access to health information. At [15] and [16], the Tribunal gave the following summary of his answer to the question about the specific conduct that he was complaining about: [15] The specific conduct complained of was potential harassment and intentional infliction of emotional distress and constantly creating fear around him, relating to certain incidents involving "Leron and only slightly Rebecca not so much Elhan". The application described six incidents during the period June 2017 to September 2018, including being shouted at by two women who looked like Rebecca in November 2017; an encounter with Leron in June-July 2017 when she was not with a client; harassment organised by Leron involving two young men in a car with the number plate "Ronle" in October 2017; increased harassment and crime in his neighbourhood including involving car numberplates in September-November 2017 organised by Rebecca and Elhan; and incidents involving car numberplates in August-September 2018. [16] The applicant stated that while the incidents were occurring he had suspicions they could have been staged and biased incidents/hate crimes, and he became a lot more suspicious from April 2018. The conduct had the effect on him of constant fear, harassment and intentional distress. The applicant sought an apology, damages and retraining and counselling for individuals.

Further allegations made during the hearing

1. The Tribunal summarised further information that DVG gave during the hearing at [18]: [18] At the hearing the applicant stated that he had experienced an extreme level of abuse from Leron. The consequence was a false confession. His health information must have been disclosed because of the way people looked at him some time later. He felt like he was being targeted. While he cannot point to any particular disclosure or use, he has his suspicions. He wants practices about informed consent improved and to have an ill-advised confession withdrawn, an apology, and damages for the impact on his family.

Tribunal's conclusion

1. The Tribunal found that there was no link or connection between any of the incidents DVG listed in his application for internal review and the breach of a Health Privacy Principle by any of the named individuals. The Tribunal also decided at [29], that even if DVG was able to prove that an employee had stalked or harassed him, the Local Health District would not be liable because it would not have authorised that conduct: Taking the applicant's case at its highest and assuming the incidents occurred as stated, the asserted conduct involving stalking or harassment of the applicant could not on any view be considered to be authorised as part of the employment of the named individuals. To the extent that the information in question was held by WSLHD, its access, use or disclosure by any of the named individuals in the manner recorded in the internal review application would be for a purpose extraneous to any purpose of that agency, and could not be conduct attributable to the respondent: Director General, Department of Education and Training v MT [2006] NSWCA 270; (2006) 67 NSWLR 237 at 247[43]; BLW v Nepean Blue Mountains Local Health District [2015] NSWCATAD 184 at [81].

Grounds of appeal and conclusion

1. DVG referred in his Notice of Appeal to various provisions of the Health Records and Information Privacy Act that the Tribunal had mentioned in the reasons for decision. He went on: If you take into consideration how the acute team handled my health information along with the health care it truly was very disgraceful. To begin with in regards to the mental health acute team when I first saw them and how I met two very sleazy social workers who lured me into divulging very much excessive and highly inaccurate information about myself especially under such malicious and illegal tactics and circumstances which clearly violates the (Health Privacy Principles and Information Privacy Principles).
2. Referring to the Information Privacy Principles, DVG submitted that the Blacktown Acute Mental Health Team may only collect information for a lawful purpose which is directly related to a function or activity of the agency. DVG was quoting the following Information Protection Principle in s 8(1)(a) and (b) of the Privacy and Personal Information Protection Act: (1) A public sector agency must not collect personal information unless-- (a) the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and (b) the collection of the information is reasonably necessary for that purpose. (2) A public sector agency must not collect personal information by any unlawful means.
3. Doing our best to decipher his handwriting, DVG then submitted that: Unlike all the extremely illegal, hypocritical, . . . and malicious torture tactics used by these very sleazy social workers (Leron, Rebecca and Elhan) in order to elicit sensitive information from me even as far as forced and false confessions out of me which not only greatly violates my human rights but …. with … it also violates the ? (3) Information Protection Principle as well."
4. DVG did not say what "highly inaccurate" or "sensitive" information he disclosed about himself. In addition, he did not say in his internal review application, or in any of his submissions to the Tribunal, why the collection of that information or how the alleged collection of that information breached the Information Privacy Principle in s 8(1) of the Privacy and Personal Information Protection Act. For those reasons, DVG is highly unlikely to succeed on this ground of appeal.
5. Finally, DVG submitted that: . . . it is very evident that both the Tribunal and the opposition have made a very fundamental error in failing to acknowledge in how there is an extremely big difference in the official name for an Act in comparison to its actual contents hence just because it's called a privacy act doesn't mean at all it doesn't cover contents over consent along with other very fundamental aspects relating to my case.
6. The HRIP Act and the Privacy and Personal Information Protection Act do not give a remedy for every situation where a person thinks their privacy has been breached. Rather, they contain general provisions with numerous qualifications and exceptions. The procedural provisions of the legislation regulate how applications can be made to the Tribunal, the Tribunal's role and the scope of the review the Tribunal may undertake. For those reasons, DVG has no prospects of success on this ground of appeal.

Application for internal review

1. When DVG completed the internal review application about Blacktown Early Access Team, he alleged that all the Health Privacy Principles had been breached. The Tribunal summarised his response to the question about the "specific conduct" he was complaining about at [19] -[20]: [19] . . .The conduct complained of is specified in detail, and in summary includes constant cyberstalking/cyber-monitoring; destructive criticism; gas lighting and social engineering tactics; constantly advertising his problems and previous distress in life; mock execution; constant social undermining; psychological and emotional abuse; harassment threats and stalking; non consensual communication and contact; intellectual property theft and eavesdropping; false accusations; attempts to infantilise him; psychological forms of trauma; re-victimisation; vigilante misconduct; abuse of due process; constant fake news; stranger-oriented insurance policies; human trafficking; acts of treason (illicit and malicious whistleblowing) by social workers and psychologist; medical negligence/torture; major ad hoc offences; and corruptive and illegal suppression orders. [20] The applicant stated the conduct had occurred as he felt targeted since he finished high school and was monitored by a psychologist. He became aware of the conduct around December 2013. The conduct had several effects on him including panic attacks and lack of trust in the public mental health system. The applicant named five individuals including his ex case manager and ex year advisor, a social worker, psychologist and former case manager, and a "constant stranger/bully" who had refused to identify himself. The applicant sought an apology, a change in policies and practices, his expenses paid, and damages.
2. In relation to the first sentence of paragraph [20] above, DVG denied that he had ever told the Tribunal that he had been monitored by a psychologist. We did not have a copy of the transcript but even if the Tribunal was mistaken about that point, it would have made no difference to the decision. That is because DVG made several other similar allegations about employees and former employees of the Local Health District.
3. The Tribunal then summarised what DVG had written in his application to the Tribunal: [21] In his application to the Tribunal the applicant stated he was happy talking to the patient liaison officer and two doctors from the BEAT Team, however he was still moderately unhappy with certain biased incidents which had taken place around his neighbourhood.

Further allegations made during the hearing

1. The Tribunal summarised one of DVG's main grievances at [22]: At the hearing the applicant stated that the incidents happened in December 2014 to March 2015. Amanda, his ex case manager, had disregarded his stated wish to go to a specified hospital, and intentionally arranged for him to go to a different hospital. He had said something in a private conversation which he thought had been passed on, and Amanda was influence peddling; he now no longer believes that, but still wants an apology.

Tribunal's conclusion

1. The Tribunal concluded at [31] that the alleged conduct "does not disclose a connection between the actions or circumstances of concern to the applicant (and) any privacy principle." At [33], the Tribunal added that even if the allegations were proven, they would not have been authorised by the Local Health District: Further, to the extent that the internal review application alleges specific actions or conduct by any of the named individual employees of WSLHD, for the same reasons as in 2019/00122424, that conduct could not on any view be considered to be authorised as part of the employment of those named individuals, and thus attributable to WSLHD.
2. At [38], the Tribunal held that: In both applications, individuals are identified as responsible for the alleged conduct, some employees or former employees of WSLHD. There is no general rule to determine when the actions of an employee are to be attributed to an agency, and no specific provision in the PPIP Act to clarify that issue: Director General, Department of Education and Training v MT [2006] NSWCA 270; (2006) 67 NSWLR 237. The question of when an agency may be liable for unauthorised collection, use or disclosure of personal or health information by its employees may depend on whether the agency has taken reasonable security safeguards to protect personal information, and whether the use or disclosure by an employee is in their personal capacity, or as authorised as part of their employment.

Grounds of appeal and conclusion

1. The main point DVG made in the Notice of Appeal was that the Tribunal ". . . has ? set out all the alleged corrupt pattern of behaviour all of those of course would amount to severe abuse of both privacy and human rights. Member Pearson claimed that it has been difficult to link one of the alleged health care principles (or workers?) to this alleged misconduct which is also further highlighted in Section 23 under "Application for summary dismissal" it states in (or is) such inconceivable manner how the WSLHD contends that in neither of the complaints is there substantiated a breach of the HRIP Act which I find to [be] completely absurd especially when I have clearly substantiated in the previous proceeding EXACTLY which aspects of the HRIP Act were breached.
2. We agree that DVG did set out the Health Privacy Principles that he said had been breached. However, the Tribunal found that there was no link or connection between the alleged conduct and a breach of any of those principles. It is not enough for DVG to claim that certain conduct has breached his privacy or his human rights. Nor is it sufficient to identify Health Privacy Principles and claim that those principles have been breached. DVG must first identify the conduct that relates to his personal information. It must be apparent from that alleged conduct, that there has been a breach of a Health Privacy Principle. DVG did not make any allegations about his personal information that enabled the Tribunal to conclude that there had been a breach of an Information Privacy Principle. Contrary to DVG's submissions that connection is not clear or obvious. Consequently, DVG has no prospects of success on this ground of appeal.
3. The Notice of Appeal goes on to set out the definition of a person's health information in s 6 of the HRIP Act. DVG submitted that s 6(a)(ii) and (iii) were "extremely violated in his case, especially in relation to how Amanda promised him and his family that he would be admitted to a certain hospital" and then insisted that he be admitted to a different hospital.
4. DVG acknowledged that he did not mention this allegation in his application for internal review. In KO and KP v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 56, the Appeal Panel held that: In our view, it is clear from the scheme of the Act, in particular ss 53 and 55, (of the Privacy and Personal Information Protection Act 1988) that the scope of the application for internal review, reasonably construed, provides the scope for the agency's examination of the application. (Words in brackets added.)
5. The Appeal Panel went on: The key question is what facts and circumstances has the applicant referred to which might give rise to questions of compliance with the Information Protection Principles, and to identify the relevant Principles.
6. DVG has no prospects of success on appeal in relation to any alleged conduct which he did not put in the application for internal review. That includes any allegation that DVG made for the first time to the Appeal Panel such as that employees of the Local Health District may have passed on his personal information to police.
7. DVG also challenged the Tribunal's conclusion that the Local Health District would not have authorised conduct such as stalking and harassing. Again, DVG is highly unlikely to succeed on this ground of appeal because stalking and harassing a client is extraneous to any legitimate purpose of the Local Health District: Director General, Department of Education and Training v MT (2006) 67 NSWLR 237 at 247.
8. Having concluded that DVG has no prospects of success on appeal, we now consider the two preliminary issues of out of time and permission to appeal.

Out of time

1. An appeal must be lodged within 28 days from the day on which the appellant was notified of the decision or given reasons for the decision: Civil and Administrative Tribunal Rules 2014, cl 25(4). The decision was published on 15 November 2019 and DVG lodged the appeal on 24 January 2020, about six weeks' late. The Appeal Panel has power to grant an extension of time, even if the time has expired: NCAT Act, s 41.
2. The principles relevant to granting an extension of time were summarised in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]: The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
3. DVG said that November/December 2019 could not have been a worse time for him because he had exams during the week 18-22 November 2019 and had to complete four assignments before 4 December 2019. He said he attempted to file an appeal in late December but used the wrong form.
4. The Local Health District submitted that DVG's explanation does not account for the delay in January. Furthermore, DVG has not identified an arguable ground of appeal, so his prospects of success on appeal are very low.
5. The length of the delay in this case is moderate and the reason does not account for the full period of the delay. The explanation for the delay is less than satisfactory and DVG has no prospects of success. For those reasons, we have decided not to extend the time for DVG to lodge the appeal. However, even if we had decided to extend time, we would not have given DVG permission to appeal for the reasons we give below.

Permission to appeal

1. Because the Tribunal's decisions to summarily dismiss the applications are interlocutory decisions, the Appeal Panel's permission (or leave) is required before the appeals can go ahead: NCAT Act, s 80(2)(a) and s 4 of the NCAT Act. The relevant principles for giving permission were set out by the Appeal Panel in Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCATAP 24 at [18]- [19]: [18] The Appeal Panel has recently considered the principles which generally guide the consideration of whether leave to appeal should be granted under s 80(2) of the Act: see Collins v Urban [2014] NSWCATAP 17. At [84] the Panel summarised the principles as follows: 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there. [19] It is settled law that leave to appeal against an interlocutory decision is reserved for cases with special features warranting appellate review. The fact that the statute imposes a leave requirement makes it clear that such appeals are not to be brought as a matter of routine: Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431 at 436. The High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177 acknowledged, referring to the often cited passage of Sir Frederick Jordan in In re the Will of Gilbert, that "a tight rein" had to be kept on interlocutory appeals if all exercises of discretion in interlocutory applications were not to be transferred to a court of appeal. Nonetheless, the High Court also held that it was unnecessary and indeed unwise to lay down rigid and exhaustive criteria, and specifically stated that the requirement for an error of principle and a risk of substantial injustice were not cumulative. Of the same mind in this latter regard was the Victorian Full Court in Niemann, where their Honours pointed out that if the appellate court were expected to say in all cases that the decision below was clearly wrong and that substantial injustice would follow if it went undisturbed, "leave would never be granted by the primary judge" ([1978] VR at 441). The Full Court considered that the use of the word "wrong" in this context was itself misguided and that the requirement would be better expressed as "attended with sufficient doubt".
2. In accordance with these principles, the Local Health District submitted that permission should be refused because the decisions raise no issues of principle, questions of public importance or matters of administration or policy which might have general application and no arguable error in the Tribunal's decision is alleged. For the reasons we have already given, we agree with that submission. As we have not extended time for DVG to appeal, there is no reason for us to consider any fresh evidence DVG provided.

Orders 1. The application to extend time to lodge the appeal is refused. 2. The appeal is dismissed.

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: 08 May 2020