Efremov v Health Administration Corporation

GIPA

1. The GIPA Act gives members of the public an enforceable right to access government information (s 9(1) of the GIPA Act).
2. That right is given for the stated object of maintaining and advancing "a system of responsible and representative democratic Government that is open, accountable, fair and effective" (s 3(1)(b) of the GIPA Act).
3. There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5 of the GIPA Act). However, the right to access will not be available where "there is an overriding public interest against disclosure of the information" (s 9 of the GIPA Act).
4. Relevantly to this application, it is to be conclusively presumed that there is an overriding public interest against disclosure of any of government information described in Sch 1 of the GIPA Act (s 14(1) of the GIPA Act).
5. Clause 6 in Sch 1 relevantly provides: 6 Excluded information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of. (2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information. (3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5.
6. Schedule 4 of the GIPA Act defines "excluded information": "excluded information of an agency specified in Schedule 2 means information that relates to any function specified in that Schedule in relation to the agency."
7. Clause 2 of Sch 2 sets out what is "excluded information" in relation to particular agencies. It provides: The Health Care Complaints Commission - complaint handling, investigative, complaints resolution and reporting functions (including any functions exercised by the Health Conciliation Registry and any function concerning the provision of information to a registration authority or a professional council (within the meaning of the Health Care Complaints Act 1993) relating to a particular complaint).

The Tribunal's decision at first instance

1. Mr Efremov's Application came before the Tribunal on 8 August 2024. The Tribunal member reviewed the decisions made by Mr Ryan on 5 April 2024 and 13 November 2023.
2. The Tribunal member referred to a number of legal authorities relating to the relevant provisions in the GIPA Act and noted that the HAC had the onus of establishing that the decision it had made was justified (s 105(1) of the GIPA Act).
3. The Tribunal member decided that the information in dispute largely fell into two categories: 1. information provided directly to the HCCC or originating from the HCCC held by the HAC. 2. internal correspondence instigated by the HAC for the purpose of providing a response to the HCCC where that correspondence revealed the substance of information contained in the first category.
4. The Tribunal decided that information received by or provided by the HCCC, where the subject matter of that information was Mr Efremov's complaints, fell within clause 2 of Schedule 2. Clause 2 also captured information contained in correspondence between HAC personnel and other internal documents created by it about complaints being handled by the HCCC, where that information substantially reproduced or revealed the content of excluded information. An issue arose as to whether an excluded document included any attachments to that document.
5. The Tribunal made the following Orders: 1. The administratively reviewable decisions of the HAC were set aside. 2. The administratively reviewable decisions were remitted for reconsideration in accordance with the reasons of the Tribunal at paragraph [49]. 3. The administratively reviewable decisions were otherwise affirmed.
6. At paragraph 49 of the decision, the Tribunal said: The documents in dispute contain various attachments. These attachments for the most part were in existence long before the time of the Applicant's complaints. Where documents have a prior existence independent of any complaint later made, I do not think that such a document or the information contained in it can fall within clause 2 of Schedule 2 of the GIPA Act. Such documents, having had a prior independent existence, do not lose their character as independent documents simply because they later become attached to an email or other document that falls within clause 2. Documents of this kind need to be separately tested under the provisions of the GIPA Act to determine whether or not access should be granted, other than where already disclosed to the Applicant. The Tribunal notes that some of the information sought by the Applicant has been released to him with redactions.
7. At paragraph 52 of its decision, the Tribunal identified the documents referred to in paragraph 49 by reference to the numbering used in the bundle of confidential documents.

The Appeal

1. The Tribunal has "internal appeal jurisdiction" over "any decision made by the Tribunal in proceedings for a[n] ... administrative review decision": (Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act"), s 32(1)(a)).
2. An internal appeal can be made as of right on any question of law from a decision (other than an interlocutory decision) of the Tribunal at first instance. However, to the extent Mr Efremov seeks to appeal on grounds other than a question of law, he requires leave of the Tribunal to do so: NCAT Act, s 80.
3. In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the orders set out in paragraphs (a) to (e) of s 81(1) of the NCAT Act.
4. The Appeal Panel may exercise all the functions conferred on the Tribunal at first instance: NCAT Act, s 81(2).
5. As Mr Efremov is unrepresented, a broad interpretation of the grounds of appeal should be allowed unless it unreasonably prejudices the HAC: Prendergast v Western Murray Irrigation Ltd [2004] NSWCATAP 69. However, there is a proper limit to this process, in that it is not the role of the Appeal Panel to draft grounds of appeal not raised, and then resolve them (ZNX v ZNY [2020] NSWCATAP 41, citing SZTOG v Minister for Immigration and Border Protection [2018] FCA 112), unless the issues go to the jurisdiction of the Tribunal or are otherwise necessarily considered to resolve the appeal.
6. The requirement to assist an unrepresented litigant is not unfettered. In Bauskis v Liew [2013] NSWCA 297 at [67]- [70] the Court of Appeal said in setting out principles apposite to the Tribunal and matters where neither party is legally represented, as follows (citations omitted): First, the Court's obligation in the case of a self-represented litigant is to give sufficient information as to the practice and procedure of the Court to ensure that there is a fair trial to both parties.... Secondly, the Court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. This is why the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just... Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant... Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. In this regard, an unrepresented party is as much subject to the rules as any other litigant...
7. In Mendonca v Legal Services Commissioner [2020] NSWCA 84 the Court held at [43] that: [T]here may be cases in which it is appropriate for the Court to give the correct legal construction to an arguable point poorly articulated by a self-represented litigant. However, the Court is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point.
8. Nothing in the construction of the NCAT Act leads us to the conclusion that this view should not apply equally to our obligations in this appeal.

Grounds of Appeal

1. We summarise the lengthy grounds of appeal as follows: 1. Mr Ryan lied regarding the GIPA regulations and oath. His statement that "of course I contacted … during the process" is a breach of fair justice. The substantial difference between Mr Ryan's two decisions substantiate that an agency (his direct employer) had engaged in misconduct or negligent, improper or unlawful conduct. Mr Efremov insists that the evidence of Mr Ryan is removed from the case as fraudulent testimony. 2. Procedural fairness was severely breached by the Tribunal relying on the evidence of Mr Ryan who asserted that the HCCC agency had not consented to the release of materials without providing proof. Consent by the HCCC is likely possible if the request is properly formulated. Mr Ryan is at fault. His motive is to prevent harm to the HAC. 3. Part of Mr Ryan's witness statement was insubstantially redacted which is against fair of justice principle. 4. Mr Efremov has lodged a legal inquiry into the HCCC as he has no faith in the professional standards of Mr Ryan. The whole process under the GIPA Act has been severely compromised by interventions from senior members of HAC. 5. The HAC provided a false negative serology result for him and 1411 patients Australia nationwide. This is supported by scientific evidence. They used an inaccurate device and then quietly removed the device from use without appropriate corrective actions. 6. The documents which have not been released represent a true case of medical negligence and harm to the Australian Public. They must be fully released as of a matter of public significance and fairness. 7. Mr Efremov has suffered damages due to the actions of NSW Health. 8. Materials embedded in the case are likely to reveal the criminal nature of wrongdoing of the HAC, intentional harm and obstruction of justice. 9. The Tribunal misread and misinterpreted the law and wrongly concluded that the correspondence within NSW Health belonged to the excluded information category. 10. The cases relied on by the Tribunal were not related to medical negligence and intentional cause of harm to the wide range of members of public and therefore are not applicable. 11. The Tribunal made an error of law when assessing the documents such as severely redacted email correspondence from QML Pathology. It can be reasonably concluded that the redactions were made to protect the interests of NSW Health pathology as neither the HCCC nor NSW Health had obtained his consent to contact third parties in relation to sensitive health matters even though QML Pathology initially referred a sample for testing.

Leave to rely on new evidence

1. Mr Efremov sought to rely on the following new evidence, which was not before the Tribunal member: 1. Oral evidence by requiring the following witnesses to "testify" at the appeal - Mr Ryan, Ms Chen (Director Centre for Infectious Diseases and Microbiology Laboratory Services at ICPMR Westmead), Ms Boone (Director, Legal and Corporate Governance); and Mr Chan (Health Care Complaints Commission). 2. Documents - two Lyme Disease Tests, a QML Pathology document, a Pathology Report, correspondence between Mr Efremov and the Therapeutic Goods Administration, the NSW Health Complaints Management Policy, a HCCC Agency Information Guide, a Protocol for disclosing information under the Health Care Complaints Act 1993, a document titled Anti-Discrimination NSW - Infectious diseases discrimination, and a Database of adverse event notifications - medical devices.
2. Mr Efremov says the evidence is required as "the whole GIPA process has been erratic and corrupted by the misconduct of Matthew Ryan" and that their testimony is required "to fully clarify consent and categorisation of a wide range of documents". Mr Efremov does not believe Mr Ryan's evidence about the circumstances in which he says he obtained instructions from the HCCC in relation to whether it consented to the disclosure of all of its documents.
3. New evidence is not usually allowed in an appeal: Hans v Building Professionals Board [2008] NSWADT 285.
4. A party seeking to adduce fresh evidence in an appeal may only do so with the leave of the Appeal Panel and in accordance with well-established principles: see, for example, Gallagher v R [1986] HCA 26; (1986) 160 CLR 392, 402 (Mason and Deane JJ), 399 (Gibbs CJ); QP v RP [2014] NSWCATAP 59 at [34]-[37].
5. The principles relevant to a grant of leave to rely on fresh evidence on internal appeal were set out in Ros v Commissioner of Police [2020] NSWCATAP 70 at [33]: 33 There are a number of other authorities which set out the principles on which the Appeal Panel might consider an application for admission of further evidence. Generally speaking, the further evidence sought to be admitted would have to relate to the Tribunal's decision at first instance and have been evidence which was relevant at the time to that decision (BCL v NSW Trustee and Guardian (2014] NSWCATAP 18 at [26]-(28]). Whether it is likely the further evidence would have produced a different result at the Tribunal is relevant: BCL v NSW Trustee and Guardian [2014) NSWCATAP 18 at [26)­ (28]; Mielczarek v Commissioner of Fair Trading [2016) NSWCATAP 217; Building Professionals Board v Hans [2008) NSWADTAP 13. Any potential prejudice to the other party upon the receipt of further evidence is also relevant: Lettau v Artwork Transport Pty Ltd at (25]. Whether the further evidence would allow the Appeal Panel to consider whether, with the benefit of hindsight, it has been demonstrated that serious injustice has resulted or will, in fact, result from the exercise of the Tribunal's discretion, may also be relevant: ZNX v ZNY[2020] NSWCATAP 41 at (25).
6. The HAC opposed the granting of leave to adduce new evidence at the appeal hearing.
7. On 20 December 2024, we refused Mr Efremov's application to rely on fresh evidence and said we would publish our reasons. These are those reasons.
8. Mr Efremov had the opportunity to cross-examine Mr Ryan at the hearing and we are satisfied that there is no basis upon which Mr Ryan should be required to "retestify". An appeal to the Appeal Panel is not generally a vehicle to provide a party unsuccessful at first instance with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
9. Mr Efremov has always contended that there was some impropriety in the decision making process which led to Mr Ryan excluding some documents from production. We are not persuaded that it is likely that the fresh evidence he proposes to rely on would have produced a different result at the Tribunal hearing. Moreover, aside from providing an example of a single document that had come into his possession after the hearing (though it was extent beforehand), there is no evidence before us explaining his failure to seek to obtain material under summons that he might adduce at the hearing at first instance, or ask Mr Ryan additional questions during the Tribunal hearing, or call those other witnesses to give evidence at the Tribunal hearing, or tender any further the documents at the Tribunal hearing.

Reliability of evidence

1. We have already referred to Mr Efremov's contention that we should find that Mr Ryan's evidence was unreliable. This is the basis of many of the Grounds of the Appeal in which he has said that Mr Ryan "lied", his evidence was "fraudulent testimony", Mr Ryan had asserted that the HCCC had not consented to the release of materials without providing proof, the request to the HCCC had not been properly formulated by Mr Ryan whose motive was to prevent harm to the HAC, and the criminal nature of the wrongdoing of the HAC, intentional harm and obstruction of justice. In submissions, the HAC rejects the characterisation of Mr Ryan's evidence as untruthful.
2. There is no evidence to support any of Mr Efremov's submissions.
3. We decline to find that the Tribunal erred insofar as any finding was dependent on evidence given by Mr Ryan.
4. Mr Efremov has also asserted other matters including issues with medical devices and his suspicion that documents had been redacted to protect the interests of other parties. There is no evidence to support these submissions.

Public Interest

1. Many of Mr Efremov's submissions relate to s 12 of GIPA which provides that there is a general public interest in favour of the disclosure of government information. These submissions include the following: 1. The documents which have not been released in represent a true case of medical negligence and harm to the Australian Public. 2. The GIPA Act clearly outlines the criteria for the public interest test, which favours the release of documents, particularly when it involves evidence of wrongdoing. Thus, the HAC's actions have violated the GIPA Act, and this failure extends to other internal correspondence within NSW Health Pathology. 3. His assertions in relation to the reliability of the medical devices used for blood testing are matters of public importance and public safety. 4. A device used by the Department of Health was removed from use in Australia in 2022. Mr Efremov believes that the excluded documents would reveal the criminal nature of HAC's intention to harm patients which is a matter of public importance.
2. Apart from the absence of evidence in relation to these matters, these submissions are irrelevant to the Tribunal member's decision.
3. As we have said, s 14 of the GIPA Act means there is a conclusive presumption that there is an overriding public interest against disclosure of any government information described in Schedule 1.
4. Accordingly the only matter which fell to be determined was whether any of the documents were excluded from disclosure because Sch 1 to the GIPA Act applied.

Misinterpretation of the law

1. Lastly, Mr Efremov says that the Tribunal misread and misinterpreted the law when it wrongly concluded that the correspondence within NSW Health was excluded information. He says the Tribunal was in error when it decided that the information produced by the HAC dealing with complaints made by Mr Efremov to the HAC could not meaningfully be separated from information created to deal with his complaints to the HCCC as the subject matter was the same.
2. This arises from the following passages in the Tribunal member's decision: 45 … Where information is received by or provided by the HCCC and the subject matter of that information is the Applicant's complaints, I accept that this is information that falls within clause 2 of Schedule 2. I also accept the Respondent's submission that clause 2 will also capture information contained in correspondence between the Respondent's own personnel and other internal documents created by it about complaints being handled by the HCCC, where that information substantially reproduces or reveals the content of excluded information. 46 Whether the connection between the information and the functions in question must be a "direct" connection or a "clearly apparent connection", in my opinion, clause 2 will, on the facts at hand, capture both the information contained in documents received or sent by the HCCC as well material contained in documents created by the Respondent that reveals or reproduces that information.
3. The Tribunal member had referred to a submission by the HAC relying on the decision in Roberts v Commissioner of Police [2018] NSWCATAD 127 where the Tribunal had found at [62] that: … I am satisfied that the redacted information, while contained in a record of the respondent and not one originating from the external agency, contains information which reproduces or references or reveals the substance of the excluded information concerning the prosecution functions of the ODPP. I agree with the respondent that the conclusive presumption against disclosure in cl 6 of Schedule 1 would be rendered largely redundant if it did not extend to secondary reproductions of the source information, as disclosure of the reproduction will reveal the contents of the information. In those circumstances, it is also excluded information.
4. Mr Efremov has not provided us with any other legal authority or explained why he thinks the reasoning is incorrect.
5. We decline to find that Mr Efremov has shown that the Tribunal member made any error.
6. We decline to find that the Tribunal did make any error.

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: 06 January 2025