FGU v Northern Sydney Local Health District

NCAT Administrative and Equal Opportunity|2022-12-06

Introduction

The background, substantive application, before the Tribunal is an application by FGU (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (ADR Act) for an administrative review under section 55(1) of the Privacy and Personal Information Protection Act 1998 (PPIP Act) of conduct by Northern Sydney Local Health District (the agency) that has been the subject of an internal review pursuant to s 53 of that Act which he alleges was in contravention of a Health Privacy Principal (HPP) within the meaning of Schedule 1 of the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act). This application was made to the Tribunal on 14 June 2022 (the substantive application).
However, the application that is before me for decision is an application by the agency for summary dismissal of the substantive application pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) on the ground that the Tribunal does not have jurisdiction to deal with it. This application was made by an Application for Miscellaneous Matters dated 22 July 2022 (the interlocutory application).
For the reasons set out following, I have determined to dismiss the substantive application because the Tribunal does not have jurisdiction to deal with it. It has been made outside the time permitted by clause 24(3)(b) and (4)(1a) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) and there are no grounds that would justify an extension of time being granted pursuant to section 41 of the NCAT Act for the application to be pursued.

Dispensing with a hearing

Section 50 of the NCAT Act sets out the circumstances in which hearings are required in proceedings before the Tribunal. It relevantly provides: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except - … (c) if the Tribunal makes an order under this section dispensing with a hearing, … … (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal must not make an order dispensing with a hearing unless the Tribunal has first - (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal; in accordance with the requirements of this Act, enabling legislation and the procedural rules. (5) This section does not prevent the Tribunal from holding a hearing even if it is not required.
At the case conference conducted on 18 July 2022, the Tribunal also dispensed with a hearing of the application after hearing from the parties, being satisfied that the application for dismissal could be adequately dealt with in the absence of the parties by considering the written submissions and other documents and materials provided to the Tribunal (the papers) (Order 4). I am also satisfied that the application for dismissal, which is of narrow compass, can be adequately dealt with on the papers in the absence of the parties.

Evidence and submissions

The following material has been considered in reaching this determination:

Applicant 1. Administrative Review Application Form filed on 14 June 2022 which attaches an internal review decision by the agency dated 10 December 2021, 2. Submissions filed on 27 July 2022 (filed again on 3 August 2022).

Agency 1. Application of Miscellaneous Matters filed on 22 July 2022, 2. Section 58 documents filed on 22 July 2022, 3. Submissions filed on 22 July 2022.

Background

By his application for administrative review dated 14 June 2022 the applicant states in the section of the application form headed "decision for review" that he has attached the decision and that he was notified of it on 10 December 2021 (10 December 2021 internal review decision). The decision attached is an internal review outcome of two applications for privacy internal reviews made by the applicant on 9 September 2021 and 11 October 2021. The decision is dated 10 December 2021 and is made (signed) by the agency's Director, Legal and Professional Standards. In the section of the application form headed "grounds for the application" the applicant states as follows:

Internal review conducted by [name of internal reviewer]
Amendment of Provisional Delusional Disorder to Confirmed Delusional Disorder p 6 of 6
No discharge summary sent for the 22 June 2020
NSLHD breach of NCAT order 23 May 2020 for settlement
Compensation for administrative manipulation, withholding correct information preventing me from applying to the NDIS: therefore obtaining free counselling fees.

The application for administrative review filed on 14 June 2022 is the third application for administrative review the applicant has made in relation to the agency's 10 December 2021 internal review decision.
The first application was made on 11 January 2022 (application no. 2022/xxxx2) (the first application). That application stated as grounds for the application, in summary, "inconsistences" in the applicant's medical records maintained by the agency, specifically in relation to psychiatric diagnoses.
The second application for administrative review was made on 7 April 2022 (application no. 2022/xxxx8) (the second application). This application appears to relate to answers to questions the applicant asked a representative of the agency following receipt of the 10 December 2021 internal review decision which he considered unsatisfactory. He states on the application form that the date he was notified of that decision (that is, the answers) was 18 March 2022. The dispute concerned the agency's alleged failure to issue a discharge summary to his General Practitioner following his discharge from Hornsby Hospital on 26 June 2020.
The first and second applications were heard together by Senior Member Higgins on 23 May 2022. The parties reached a settlement of that dispute at that hearing which was recorded by the Tribunal as follows: In case number 2022/xxxx2: On 23 May 2022 the following orders (and/or directions) were made: 1. Application dismissed. Note: Application withdrawn as parties have settled. To settle the application the parties have agreed to the following amendments being made to the health record of the applicant. (a) the word "provisional" on page 6 of the applicants 16/03/2020 Discharge Documents, under the heading 'Health Status' is deleted and the word "Confirmed" is inserted thereof; and (b) the word "provisional on the applicant's 16/03/2020 MH Discharge Summary, under the hearing 'Problems/Diagnosis This Visit' and the subheading 'Confirmation', is deleted and the word 'Confirmed' is inserted thereof. In case number 2022/xxxx8: On 23 May 2022 the following orders (and or directions) were made: 1 The Application is dismissed. Note: Application withdrawn as parties have settled. To settle the application the respondent has agree (sic) that it will prepare Discharge Documents(s) (including a Discharge Summary) in regard to the applicant's discharge on 22/06/2020.
On 24 June 2022 (after lodgement of the present application) a delegate of the agency wrote to the applicant to advise of its receipt of the application and to outline the action taken by the agency in relation to the settlement agreements noted by the Tribunal on 23 May 2022. That letter states, relevantly: … I would like to reiterate the offer I've made previously, that the Disability Manager, NSLHD is happy to assist you with your application to NDIS. NCAT Orders 23 May 2022: 2022/xxxx2 a) The word "provisional" on page 6 of the applicants 16/3/20 Discharge Documents under the heading 'Health Status' is deleted and the word 'Confirmed' is inserted thereof. Please see attached Amended Discharge Summary with the word 'provisional' removed. Unfortunately the word confirmed cannot be inserted as the diagnosis is set (see page 7 of 7). b) The word 'provisional on the Applicant's 16/3/2020 MH Discharge Summary, under the hearing 'Problems/Diagnosis This Visit'. Please see attached discharge summary with 'confirmed' under the heading 'confirmation'. 2022/xxxx8 To settle the application the respondent has agreed that it will prepare Discharge Documents (including discharge summary) in regard to the applicant's discharge on 22 June 2020 Please see attached completed discharge summary for your attendance on 22 June 2020 which notes 'Dr [name redacted] has concluded [FGU] suffer(s) from confirmed Delusional Disorder.' This document was completed retrospectively by Dr [name redacted]. Could you please advise if you need anything further? … I would like to reiterate the offer I've made previously, that the Disability Manager, NSLHD is happy to assist you with your application to NDIS.
The applicant did not respond to this email. Nor did he respond to an email from the Crown Solicitor dated 14 July 2022 which referred to the agency's email of 24 June 2022 and asked again in relation to the outcomes of the first and second applications if "there is anything else you need?"

The applicant

In his submissions dated 27 July 2022, the applicant appears to seek to amend his application as follows: In response to [Crown Solicitor's] letter for dismissal, I am now only pursuing compensation and not any form of administrative review. As the NCAT website clearly states: Orders NCAT can make (1) awarding compensation (damages) of up to $40,000 for any financial loss, or psychological or physical harm, because of the conduct of the agency or body. I would ask the Tribunal not to dismiss [the application] for it is clearly evident that the Tribunal has jurisdiction over this matter. I would also be providing evidence of wrongful conduct post settlement that would clearly outline my case of compensation. I have suffered immense psychological harm and delayed treatment because of the conduct of NSLHD.
Other than what is set out above, the applicant made no other submission.

The agency

The agency contends that the application ought to be dismissed pursuant to s 55(1)(b) of the NCAT Act on the basis that it is misconceived and/or lacking in substance. It submits that the conduct that was the subject of the agency's 10 December 2021 internal review decision has already been the subject of administrative review by the Tribunal, and that Tribunal has no jurisdiction to conduct an administrative review of conduct by an agency that has already been the subject of an administrative review.
Alternatively, or additionally, it is contended that the dispute arising from the conduct of the agency that was the subject of the 10 December 2021 internal review decision was settled by the agreements reached before the Tribunal on 23 May 2022 and cannot be reagitated in separate proceedings as this would offend the principle of finality in legal proceedings.
Alternatively, or additionally, the agency contends that the Tribunal does not have jurisdiction to deal with the application because the conduct complained of, which the agency contends would constitute a contravention of HPP 8, was not the subject of the internal review. Presumably, this is a reference to the agency's decision that it could not correct the applicant's discharge summary to insert the word "confirmed" despite agreeing to do so at the 23 May 2022 hearing.

Applicable law

Part 6 of the NCAT Rules deals with the commencement of proceedings in the Tribunal. Clause 24 of that Part relevantly provides: 24 Administrative Review Applications … (3) Unless the Tribunal grants an extension under s 41 of the Act, an application must be made - (a) in the case where the enabling legislation specifies the period within which the application is to be made - within the period specified, or (b) in any other case - by the end of the default application period. (4) The "default application period" for the purposes of subrule (3)(b) is - … (1a) in the case of an administrative review application under s 55 of the Privacy and Personal Information Protection Act 1998 - the period of 28 days after - (i) if an internal review under s 53 of that Act is completed within 60 days from the day on which the application for the internal review was received by the public sector agency concerned - the day on which the applicant was notified of the result of the internal review, …
Clause 24 of the NCAT Rules is to be read in conjunction with s 41 of the NCAT Act, which provides: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
The discretion conferred by s 41 is unfettered but it must be exercised judicially having regard to established principle. In short summary, time limits are to be strictly enforced unless to do so would work an injustice to an applicant. Relevant considerations include: the length of the delay, the applicant's explanation for the delay, the extent of any prejudice that the respondent would suffer if time were extended, the merits of the applicant's case, and any public interest considerations. If the delay is relatively short, it is necessary for the applicant to show that their application is fairly arguable. If the delay is more extensive, it is necessary for the applicant to show that their application has substantial merit: CFZ v Department of Education [2015] NSWCATAD 231 at [8] to [11] applying Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22.
Part 3 of the NCAT Act establishes the jurisdiction of the Tribunal. It provides, relevantly, in s 28(1), that the Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under the NCAT Act or any other legislation. This includes, pursuant to s 28(2)(b) the administrative review jurisdiction of the Tribunal.
Section 30 of the NCAT Act establishes the administrative review jurisdiction of the Tribunal. It provides: 30 Administrative review jurisdiction (1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has "administrative review jurisdiction" over a decision of an administrator. Note: See section 9 of the Administrative Decisions Review Act 1997 (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative jurisdiction - (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings. (3) An "administratively reviewable decision" is a decision of an administrator over which the Tribunal has administrative review jurisdiction. Note: See section 7 of the Administrative Decisions Review Act 1997. (4) An "administrator", in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation. Note: See section 8 of the Administrative Decisions Review Act 1997. (5) An "administrative review decision" of the Tribunal is a decision of the Tribunal determining a matter over which it has administrative review jurisdiction. (6) An "administrative review application" is an application made to the Tribunal for an administrative review decision.
Part 4 of the NCAT Act sets out the practice and procedure of the Tribunal. Section 55 in that Part deals with the dismissal of proceedings. It relevantly provides: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - (a) if the applicant or appellant (or if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, …
In Alchin v Rail Corporation NSW [2012] NSWADT 142 at [26] Judicial Member Wright SC (as he then was) said with respect to a similar provision to s 55(1)(b) that the term "misconceived" is to be understood as including a misunderstanding of legal principle and the term "lacking in substance" is to be understood as encompassing an untenable proposition of fact or law.
Section 59 of the NCAT Act sets out the powers of the Tribunal when proceedings are settled. It relevantly provides: 59 Powers when proceedings settled (1) The Tribunal may, in any proceedings, make such orders (including an order dismissing the application or appeal that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if - (a) the terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal, and (b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement. (2) The Tribunal may dismiss the application or appeal that is the subject of the proceedings if it is not satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement.
Section 9 of the ADR Act explains the circumstances in which administrative review jurisdiction is conferred. It provides, relevantly: 9 When administrative review jurisdiction is conferred (1) The Tribunal has "administrative review jurisdiction" over a decision (or a class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. … (5) Nothing in this section permits administrative review jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.
The Tribunal's jurisdiction to conduct an administrative review of the conduct of an agency that has been the subject of a privacy internal review is found in Part 5, s 55, of the PPIP Act. Section 55 relevantly provides: 55 Administrative review of conduct by Tribunal (1) If a person who has made an application for internal review under section 53 is not satisfied with - (a) the findings of the review, or (b) the action taken by the public sector agency in relation to the application, the person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1999 of the conduct that was the subject of the application under s 53 … (2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders - (a) subject to (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct, …
In this respect, s 25(1)(a) of the HRIP Act provides that the contravention of a HPP that applies to an agency is conduct by a public sector agency to which Part 5 (Review of certain conduct) of the PPIP Act applies.

Consideration

It is well established law that an application ought not to be decided in a summary way other than in the clearest of cases. In considering an application for summary dismissal, the substantive applicant's case must be taken at its highest. It falls to the summary dismissal applicant to establish that the substantive applicant's case is so obviously untenable that it cannot succeed, is manifestly groundless, or discloses a case which the court is satisfied cannot proceed: General Steel Industry v Commissioner for Railways (1964) 112 CLR 125; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256.
Leaving aside other issues for the moment, the threshold problem for the applicant in this case is that the application filed on 14 June 2022 was filed outside the 28-day period within such an application must be made: r 24(3)(b) and 4(1a) of the NCAT Rules. The applicant states in the application form that he received notice of the internal review decision on 10 December 2021. He therefore had until 8 January 2022 to make an application for administrative review of that decision. However, his 14 June 2022 application was not filed until 147 days after that date.
For this application to proceed, it would thus be necessary for the time in which the application may be made to be extended to 14 June 2022. This requires consideration of the principles established in CFZ applying Jackson.
In this case, the delay in making the application is very substantial and this weighs against time being extended.
No satisfactory explanation for the delay is apparent from the application or the submissions made by the applicant. He has made two previous applications for administrative review of the same internal review. Subject to what I state following there is nothing in the application or submissions he has filed to date which gives any indication as to why a third application is necessary or appropriate.
In his submissions of 27 July 2022, the applicant refers to an intention to "provid[e] evidence of wrongful conduct post settlement that would clearly outline my case of compensation". The Tribunal's role in conducting an administrative review under s 55(1) is to examine the conduct of the agency that was the subject of the internal review. The Tribunal therefore could not, on this application, review conduct that occurred after 23 May 2022 because that conduct could not have been the subject the internal review published on 10 December 2021. The application is misconceived in this respect and this stated reason could not provide a satisfactory explanation for the delay.
In the "grounds for application" section of his application the applicant appears to contend that the agency failed to carry out the agreements reached on 23 May 2022 and noted on the Tribunal's orders dismissing his previous applications on that day. However, he has been advised by the agency in writing of the action it has taken to give effect to those agreements and has been twice asked by the agency if he requires anything further to be done. He has not responded to those invitations.
In his submissions filed on 27 July 2022, other than referring obliquely to "wrongful conduct post settlement" the applicant does not particularise or allude to any failure by the agency to carry out the terms of the agreements reached on 23 May 2022. In these circumstances any non-compliance by the agency with the agreements noted by the Tribunal in settlement of the dispute on 23 May 2022 could not provide a satisfactory explanation for the delay.
For completeness, I note that if it is the applicant's intention to suggest that he was induced to enter into the settlement agreements with the agency by some form of misleading and deceptive or unconscionable conduct of the agency which resulted in him surrendering his right to administrative review for a remedy that was not provided then the appropriate course is an Appeal from the decisions dismissing those applications, not the institution of fresh proceedings.
The absence of a satisfactory explanation for the delay weighs heavily against time being extended.
If time were to be extended the agency would be obliged to participate for a third time in an administrative review of the same decision. On a normative basis it must be accepted that this is prejudicial to the agency in terms of its efficient use of public resources. This is another factor that weighs against an extension of time being granted.
In terms of public interest considerations, I am satisfied that there is a public interest in the finality of disputes and in the efficient use of public resources in the resolution of disputes. This weighs against time being extended in the circumstances I have set out above. There is also a public interest in settlement agreements made in resolution of disputes being adhered to by parties. However, for the reasons set out above, this consideration does not carry weight in this case.
Another decisive consideration against time being extended is the merit of the applicant's claim. In his submissions filed on 27 July 2022 the applicant now contends that he does not want "any form of administrative review", but only an order for compensation up to $40,000 for psychological harm. As I explain following, an administrative review application framed in this way has no prospect of success.
I thus conclude that this is not an appropriate case for the exercise of the discretion conferred by s 41 of the NCAT Act to extend the time in which the application can be made. The application has therefore been made out of time, and it must be dismissed pursuant to s 55(1)(b) of the NCAT Act on the basis that it is misconceived in this respect.
As has been set out above, NCAT is an inferior court of the State which exercises statutory jurisdiction only. When he filed his "administrative review application" on 14 June 2022 the applicant invoked the administrative review jurisdiction conferred on the Tribunal by s 28(2)(b) and 30 of the NCAT Act, s 9 of the ADR Act, s 55 of the PPIP Act and s 25 of the HRIP Act. There is no other basis upon which NCAT has a power or function to deal with that application.
In his submissions in response to the agency's summary dismissal application dated 27 July 2022 the applicant contends that he does not want any form of administrative review. Despite this, he has not withdrawn his administrative review application, or consented to its dismissal. He appears to apprehend that the Tribunal has the power to order the remedy contained in s 55(2)(a) of the PPIP Act otherwise than as the consequence of findings made in an administrative review conducted pursuant to s 55(1)(b). He is mistaken in this respect. The remedy he seeks is consequential upon the outcome of an administrative review. It does not stand alone. The application is misconceived in this respect. It is so obviously untenable that it cannot succeed. This is an additional basis upon which it ought to be dismissed pursuant to s 55(1)(b) of the NCAT Act.
The agency contends, in effect, that the Tribunal's dismissal of the applicant's two previous administrative review applications in relation to the 10 December 2021 internal review decision gives rise to a res judicata or issue estoppel that operates to prevent the applicant from instituting these proceedings. I am not convinced that they do so in the circumstances of this case.
The two earlier applications were "dismissed" on the basis that they were "withdrawn" prior to any determination of them on their merits by the Tribunal. They were thus dismissed pursuant to s 55(1)(a) of the NCAT Act. I cannot see that there is any barrier to an applicant instituting a fresh application in relation to the subject matter of a previous withdrawn application that has not been heard and determined.
The Tribunal did not make orders incorporating the points of settlement agreed between the parties pursuant to the power conferred on it by s 59(1) of the NCAT Act. The terms of the agreement were "noted" only. If consent orders had been made pursuant to s 59(1) determining the dispute by consent in the exercise of the Tribunal's judicial power, the agency's argument would have force. But that was not what occurred.
Nor am I convinced by the agency's argument that the application is misconceived because the internal review did not consider HPP 8 which it apprehends is now agitated by the applicant. The Tribunal role in conducting an administrative review pursuant to s 55(1) of the PPIP Act is to examine the conduct of the agency that was the subject of the internal review. It is not bound by the conclusions of the internal review as to which, if any, HPPs were engaged by that conduct, and if so how.

Conclusion

The application has been made after the time for the making of such an application has lapsed and there is no satisfactory basis for the exercise of discretion to extend the time in which it may be made. The claim now pursued by the applicant is based upon an untenable proposition of law. The Tribunal has no power to order damages pursuant to s 55(2) of the PPIP Act without conducting an administrative review under s 55(1) of that Act which the applicant no longer wants. For these reasons this is a clear case for summary dismissal. It cannot proceed due to the time bar, and it is untenable at law in any event.

Order

For the foregoing reasons: 1. The application is dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) on the basis that it is misconceived.

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 December 2022

At a glance

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Judgment (14 paragraphs)

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Legislation Cited (5)

Cases Cited (4)