DYS v Hunter New England Local Health District

Background

1. The respondent is a local health district constituted under the Health Services Act 1997 (NSW).
2. The applicant worked at a rural hospital (the Rural Hospital) until sometime in 2011. The Rural Hospital forms part of the health services provided by the respondent. The applicant also worked at a local health clinic (Local Clinic) for a period between 2011 and 2015. While the Local Clinic does not form part of the health services provided by the respondent, the respondent has contractual arrangements in place with the Local Clinic for the provision of health services.
3. On 27 July 2015, the Practice Manager of the Local Clinic received a complaint (Complaint) from a third party (Complainant) alleging the applicant had accessed the Complainant's medical records and disclosed information regarding the Complainant's health. The Complainant requested an investigation into the allegation.
4. At the time the Complaint was made, the applicant was not employed by the Local Clinic and the applicant had commenced legal proceedings against the Local Clinic. In response to the Complaint, the Practice Manager of the Local Clinic contacted the General Manager with responsibility for the Rural Hospital (General Manager). The General Manager is an employee of the respondent.
5. The General Manager requested an audit of access to the Complainant's medical records.

Applicant's letters to the respondent

1. The scope of alleged conduct for the purposes of the PPIP Act is to be determined by using the applicant's description of the conduct in what is said to be the application for review, including attachments, and subsequent clarifying correspondence (Department of Education and Training v GA (No.3) [2004] NSWADTAP 50 at [7]). In view of the broad purpose and beneficial nature of the PPIP Act, s 53(1) should be "interpreted widely to ensure that applicants are not unnecessarily denied the right to have the conduct about which they are aggrieved … reviewed" (GA v Commissioner of Police, NSW Police Force [2004 NSWADT 254 at [6]). However, the Tribunal went on to say that an absurd situation could arise if agencies had to identify and investigate every transaction or communication that could possibly constitute a breach for the purpose of s 52 of the PPIP Act (GA v Commissioner of Police, NSW Police Force [2004 NSWADT 254 at [6]).
2. The applicant's application for review does not specify the document or documents the applicant claims comprise the application for internal review. The hearing proceeded on the basis that the application for internal review, if any, would be comprised in one or more of the letters outlined below (together, the Applicant's Letters).
3. The Applicant's Letters are each reasonably lengthy. I do not propose to identify all matters raised in the letters. However, it is necessary to outline the parts of the letters that are relevant to the applicant's application for review by the Tribunal.

August Letter

1. This letter is dated 16 August 2016 and is from the applicant to the General Manager. The August Letter is headed "Handling of Complaint". The August Letter asks "[w]hy did [the Complainant] send this complaint to [the Local Clinic] when it had nothing to do with the [Local Clinic]" and considers the reason the Complainant made the complaint to the Local Clinic was to adversely impact legal proceedings involving the applicant and the Local Clinic.
2. The August Letter states: "It was only when my father … contacted the … General Manager … in December 2015 … that I became aware that [Practice Manger of the Local Clinic] had contacted the [Rural Hospital] about [the Complaint]."
3. The August Letter also indicates the applicant's father was also advised at the same time (and the applicant was then advised by her father) that the General Manager discussed the Complaint with the Local Clinic in August 2015 and October 2015. Following comments regarding these discussions, the August Letter states: "I believe the discussions which secretly took place, without my knowledge, have breached my privacy and these actions are also bullying and harassment".

September Letter

1. This letter is dated 24 September 2016 and is from the applicant to the General Manager. The September Letter is headed "Requesting more clarification regarding complaint" and again asks why the Complaint was made to the Local Clinic, why the applicant was not informed of the Complaint and why "confidential information" was discussed between the Local Clinic and the respondent without the consent of the applicant.
2. The September Letter states, should the applicant not receive a suitable response to her questions, the applicant may take the matter "to court for [the General Manager] to make clear, how you, handled the complaint, conducted the investigation, why my privacy was breached and why Policy and Procedures were not followed when handling a complaint/grievance".

October Letter

1. This letter is dated 10 October 2016 and is from the applicant to the General Manager. The October Letter generally focusses on what the applicant states as the failure by the respondent to adequately respond to previous letters. The October Letter reiterates the applicant's view that the respondent has managed the Complaint in an inadequate manner and contrary to relevant policies for the handing of complaints.

April Letter

1. This letter is dated 14 April 2018 and is from the applicant to the General Manager. The April Letter notes, in bold, that the applicant considers the respondent "breached confidentiality by not informing [the applicant] of [the] complaint and liaising with [the Local Clinic] without my knowledge".
2. The April Letter states the applicant received a letter dated 26 October 2016 from Stacks Law Firm in which Stacks Law Firm remarks it has information provided by the applicant's "previous employer". The applicant alleges the respondent disclosed parts of her employment records to Stacks Law Firm and requests an investigation regarding this alleged disclosure.
3. The hearing initially proceeded on the basis that the alleged disclosure to Stacks Law Firm formed part of what the applicant considers as conduct relevant to her application for internal review. However, the applicant clarified at the hearing that this was not the case and that this alleged disclosure was "not even part of this complaint". The applicant's position in this regard reflects the July Letter in which the applicant states, in relation to the alleged disclosure to Stacks Law Firm, that the respondent "has satisfied my enquiry regarding this part of the matter".
4. Given this, I have not considered matters relating the alleged disclosure to Stacks Law Firm further.

July Letter

1. This letter is dated 15 July 2018 and is from the applicant to the Human Resources Manager of the respondent. The July letter states the applicant's "complaint is that: a fair, reasonable, equitable and transparent process regarding the conduct of my complaint … has been handled negligently, discriminatory, unfairly and breached confidentiality". The July letter, in bold, asks that the respondent investigate why the Complaint was made to the Local Hospital. The July Letter reiterates concerns that the applicant was not provided with a copy of the Complaint and that there were discussions between the Local Clinic and the Rural Hospital regarding the Complaint without the applicant's consent.

Applicant's submissions

1. The applicant did not call any witnesses at the hearing and relied on written and oral submissions. The applicant relied on her application to the Tribunal (Exhibit A1) and a cover sheet to that application (Exhibit A2) and its Appendices "A" to "R".
2. The applicant's written submissions were directed to the respondent seeking to have the proceeding dismissed at an earlier directions hearing, as well as the timeliness and limited nature of information submitted to the applicant by the respondent.
3. The applicant's oral submission addressed the following (and I paraphrase and summarise): 1. The Complaint raises a serious allegation and the applicant should have been provided with a copy of the Complaint at the time it was made. 2. The manner in which the Complaint was managed by the Rural Hospital was not appropriate and was managed in a "mates" way. 3. The respondent failed to comply with various requirements of the respondent's policy document for the management of workplace grievances, including the failure to provide a copy of the Complaint and supplying information to a third party, the Local Clinic, with no legitimate interest in the matter. 4. The respondent failed to provide information requested by the applicant regarding the Complaint and yet the respondent is seeking to dismiss the proceedings for an alleged six month delay by the applicant. 5. A number of issues contributed to delays by the applicant in sending the Applicant's Letters. These issues included matters arising from the end of her employment with the Local Clinic, legal proceedings involving the Local Clinic, issues involving WorkCover and other matters. 6. The applicant only became sufficiently aware of the Complaint in March 2016 when a copy was served on her in certain legal proceedings. I understand the applicant's submission in this regard to be directed at the applicant not knowing of the alleged conduct until March 2016.
4. Following the applicant's submissions, I asked the applicant to comment on the respondent's position that the only information discussed by the Local Clinic and the respondent regarding the Complaint was that there had been no access of the Complainant's medical records and that the respondent could not assist the Local Clinic any further with the Complaint. The applicant did not suggest that other information was disclosed. Rather, the applicant's submission was that the discussions should not have occurred without her consent.

Respondent's submissions

1. The respondent did not call any witnesses at the hearing and relied on written and oral submissions.
2. The respondent's written and oral submission addressed the following (and I paraphrase and summarise): 1. There is no application for an internal review by the applicant. An application for internal review is a necessary precondition of the Tribunal's jurisdiction under s 55 of the PPIP Act. 2. The respondent accepts the test for whether the applicant sought internal review is an objective one and does not require the applicant to expressly refer to the information protection principles set out in the PPIP Act, but there needs to be material that can be understood, fairly read, as connecting the action or circumstance of concern to such a principle. 3. Fairly read, the Applicant's Letters express a grievance in relation to the handling of the Complaint. 4. To the extent the Applicant's Letters might be considered an application for internal review under the PPIP Act, the respondent submits the application was made out of time on the basis that s 53(3)(d) of the PPIP Act requires any application for internal review to be lodged within 6 months and a decision not to accept a request out of time is not reviewable by the Tribunal (Y v Department of Education and Training [2001] NSWADT 148 at [69] and BO v NSW Police [2002] NSWADT 64 at [36] - [37]). 5. The applicant's concern she was not informed of the Complaint is misconceived with respect to her application for review because there is no obligation under the PPIP Act to inform a person about such allegations. 6. There is no evidence the applicant's personal information was disclosed in a manner that could be said to contravene an information protection principle during the discussions between the Local Clinic and the respondent regarding the Complaint because the only information conveyed by the respondent to the Local Clinic was the Complainant's medical records had not been accessed for two years and that "the respondent could not assist any further". The respondent submits this is reflected in a letter dated 8 September 2016 (Appendix G to Exhibit A2). 7. The applicant was aware of the Complaint and the discussions held between the Local Clinic and the respondent in December 2015 as documented in the August Letter.

Decision

1. The respondent seeks to have the application for review dismissed under s 55(1)(b) of the CAT Act as being "misconceived". In Alchin v Rail Corporation NSW [2012] NSWADT 142 Judicial Member Wright SC (as he then was) examined s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1977 which was the predecessor provision to s 55(1)(b) CAT Act . As to the meaning of 'misconceived' and 'lacking in substance', he said, at [25]: … With respect to a similar provision found in the Equal Opportunity Act 1984 (Vic), Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] said: "misconceived" and "lacking in substance" have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" ..., whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment ...
2. Section 55(1) of the PPIP Act provides that, "if a person who has made an application for internal review" is not satisfied with the findings of the review or the actions taken in relation to the application, the person may apply to the Tribunal for administrative review. An application for internal review is a necessary precondition of the Tribunal's jurisdiction (PC v University of New South Wales (GD) [2005] NSWADTAP 72 at [29].
3. In that decision, the Appeal Panel also said at [28]: "In order to constitute an application for internal review, the document or documents relied upon by the applicant, must upon their face, reasonably convey to the respondent agency, that an application for internal review is sought."
4. I do not consider the Applicant's Letters, on their face, reasonably convey to the respondent that the applicant was seeking an internal review under the PPIP Act.
5. The August Letter, reasonably construed, expresses a grievance regarding the manner in which the Complaint was managed and seeks information from the respondent about the management of the Complaint. The August Letter dedicates most of its four pages to the failure to provide a copy of the Complaint, why the Complaint was made to the Local Clinic, what was done in respect to the Complaint and to make requests for information.
6. The August Letter does allege a breach of the applicant's privacy in one sentence of its four pages. That allegation relates to discussions between the Local Clinic and the respondent in 2015 regarding the Complaint.
7. The Appeal Panel said in CYL v YZA [2017] NSWCATAP 105 at [58]: "Whether an application for internal review has been made is to be determined objectively: see, e.g., PC v University of New South Wales (GD) [2005] NSWADTAP 72 at [28]. Similarly, the scope of the application is a matter of fact to be determined objectively by construing the application reasonably: KO v Commissioner of Police, NSW Police Force (GD) [2005] NSWADTAP 56 at [13]-[17]. The focus is the conduct of which the applicant complains. 'Conduct' is the expression used in this area of the law to describe action by the agency or circumstances involving the agency that might amount to a possible contravention of an information protection principle: see PPIPA s 52. 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."
8. I find that that information disclosed by the respondent to the Local Clinic in response to the Complaint was limited to statements that there had been no access of the Complainant's medical records for two years and that the respondent could not help the Local Clinic any further with the Complaint. The limited nature of the information disclosed is reflected in the respondent's letter dated 8 September 2016 (Appendix G to Exhibit A2) to the applicant. When questioned on this issue, the applicant did not suggest other information was disclosed.
9. I do not consider that these discussions constitute "material that can be understood by the agency, fairly read, as connecting the action or circumstances of concern" to an information protection principle because no personal information was disclosed.
10. I reach the same conclusion in respect of the allegation the respondent did not provide a copy of the Complaint to the applicant at the time it was received. There is no obligation in the PPIP Act that the respondent must inform the applicant of the Complaint.
11. I consider the remainder of the Applicant's Letters, (namely, the September Letter, the October Letter, the April Letter and the July Letter) follow from the August Letter and the matters raised therein. The remainder of the Applicant's Letters do not, on their face, reasonably convey to the respondent that the applicant was seeking an internal review under the PPIP Act. These letters each follow from the August Letter and cross refer to the preceding letter or letters. These letters often reiterate questions put and matters raised in the preceding letter or letters, particularly were the applicant considers previous responses have been inadequate. To the extent these letters seek new information or make new claims, reasonably construed, these letters are a continuation or clarification of the matters raised in the August Letter (except, in so far as they raise matters in respect of Stacks Law Firm, which I have not considered for the reason set out above).
12. It is apparent from the hearing that the applicant has had a number of recent difficulties arising from the Complaint, the end of her employment with the Local Clinic, certain legal proceedings and other matters. However, the application for review is a review under the PPIP Act and if the Tribunal does not have jurisdiction, it is not able to hear the matter.
13. In this matter, based on the material before the Tribunal, there has been no application by the applicant for an internal review under s 53 of the PPIP Act. As an internal review is a necessary precondition to the Tribunal's jurisdiction under s 55 of the PPIP Act, the applicant's application must be dismissed as the application is misconceived for the purposes of s 55(1)(b) of the CAT Act.
14. It is not necessary to consider the respondent's submission that, should the applicant be found to have made an application for internal review, it was made out of time for the purposes of s 53(3)(d). However and given the parties put different positions to the Tribunal at the hearing, it is appropriate to address the issue of the time the applicant first became aware of the conduct (s 53(3)(d)).
15. I find that by December 2015, the applicant was aware the Complaint had been made and of the general content of the allegation in the Complaint. The August Letter states it was December 2015, following a telephone discussion the applicant's father had with the General Manager, that the applicant was advised the Local Clinic "had contacted the [Rural Hospital] about … the complaint". The August Letter goes on to state that, following the same telephone conversation, the applicant also became aware of two discussions between the Local Clinic and the respondent in respect of the Complaint. These discussions are described in the August Letter as "discussions which secretly took place without my knowledge [and] breached my privacy".
16. I consider that the August Letter documents that, in December 2015, the applicant was sufficiently aware of the discussions, that the discussions related to the Complaint and that the applicant considered (albeit erroneously for the reason identified above) the discussions may have comprised a breach of her privacy. In view of this, the applicant was aware of the alleged conduct and was able to attach to the alleged conduct "a legal complexion" relevant to the PPIP Act (Department of Education and Training v EM [2011] NSWADTAP 4 at [14]).

Conclusion The respondent's interlocutory application for the dismissal of the application will be granted. The order of the Tribunal is as follows: 1. The applicant's application to the Tribunal dated 1 August 2019 is dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013.

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: 26 February 2020