S Westgarth, Deputy PresidentK Robinson, Principal Member
Catchwords
APPEALS – Civil and Administrative Tribunal - privacy – health
records - s500(2) Corporations Act - stay as a result of
party in liquidation
– no merit to grounds
Source
Original judgment source is linked above.
Catchwords
APPEALS – Civil and Administrative Tribunal - privacy – healthrecords - s500(2) Corporations Act - stay as a result ofparty in liquidation– no merit to grounds
Judgment (3 paragraphs)
[1]
For the reasons we have given in the above paragraphs, it follows that the appeal in respect of the Second Respondent must be dismissed. The Appellant's submissions concerning the Second Respondent have not demonstrated that the Tribunal erred in its findings of fact that the Second Respondent was not a private sector health provider or that the Tribunal erred in its interpretation of the relevant provision of the HRIP Act. Rather, the Appellant has chosen to make submissions outside the ambit of this appeal or in respect of the First Respondent (in respect of which this appeal is stayed).
Two other submissions made by the Appellant have not yet been addressed. The first concerns the submission that the Tribunal gave inadequate reasons for its decisions. Again, we refer to the Second Decision. In our view the decision adequately disclosed the reasons for the order that there be no further enquiry into the Second Respondent. The reasons given have been set out earlier in this decision. This ground is rejected.
The second submission not yet addressed concerns the contention that the Tribunal inappropriately applied the Briginshaw standard. The context in which that standard was addressed was explained in the Second Decision at [6] where the Tribunal stated that it is a serious matter to find a contravention of ss 27 and 59 of the HRIP Act and that the Tribunal could not be satisfied to the standard that the First Respondent was on notice as to the Appellant's second complaint to the IPC. The decisive issue concerning the Second Respondent was whether it was a health service provider. The Tribunal found that it was not because it was an organisation that "merely arranges for a health service to be provided to an individual by another organisation". The Tribunal did not state in that context, whether it applied to standard. If it had done so that would have worked to the advantage of the Appellant, because it would have made the onus of establishing an entitlement to rely upon that exception more difficult. The Appellant has not raised any factual matter which might put into issue whether the Tribunal's findings of fact were unjustified or at least contestable based upon the evidence. In the circumstances this ground does not appear to have merit, and it is rejected.
Briginshaw
Briginshaw
By reason of the above conclusions the Appeal Panel makes the following orders:
[2]
(1) To the extent leave is required in respect of the appeal concerning the order affecting the Second Respondent leave is refused and the appeal in respect of the Second Respondent is dismissed.
(2) In respect of the appeal from the order affecting the First Respondent, the appeal is stayed subject to the following directions:
(a) The Appellant has a period not exceeding three months from the date of this decision to obtain the consent of the Supreme Court to the further progress of the appeal in respect of the First Respondent
(b) If the Appellant seeks an extension of the time limit of three months he must lodge an application for such extension before the expiration of three months from the from the date of this decision.
(c) The First Respondent has leave to apply to the Appeal Panel for an order dismissing the appeal in the event that the Appellant does not obtain the consent of the Supreme Court.
(d) Both the Appellant and the First Respondent have leave to apply to the Appeal Panel for further directions upon giving to the other party seven days' notice of such application.
(e) The Registry is directed to list the appeal against the First Respondent for further directions or dismissal on a date approximately four months from the date of this decision.
(3) The Appellant's Applications for Miscellaneous Matters are dismissed.
[3]
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.
Section 1382 of the Corporations Act defines the word 'proceeding' to mean "a proceeding, whether criminal or civil, before a court".
The effect of s 500(2) is that proceedings in a court cannot be proceeded with except with the leave of the court.
Appeal proceedings from decisions of the Tribunal have been held to be civil proceedings for the purposes of s 500(2): see In the matter ofAzurra Pty Ltd trading as Lifestyle Homes Pty Ltd (in liq)[2009] NSWSC 657 where Austin J stated (at [8]):
We consider this appeal is "an action or other civil proceeding" for the purposes of s 500(2) of the Corporations Act because the nature of an appeal before the Tribunal is clearly civil. A question then arises as to whether the Tribunal is a court for the purposes of s 500(2) and the relevant statutory definition of 'proceeding'.
In Auburn Council v Austin Australia Pty Ltd (Administrators Appointed)[2004] NSWSC 141, her Honour Bergin J considered the question of whether proceedings before an arbitrator were required to be stayed by reason of the operation of s 440D of the Corporations Act, that is a similar provision relating to companies under administration. Her Honour found that proceedings before an arbitrator were not proceedings in a court.
In The Owners Strata Plan No 26011 v JML Group Pty Ltd[2015] NSWCATCD 30 the Tribunal considered a numbered of authorities including a decision of the Victorian Civil and Administrative Tribunal and formed the view that NCAT is a court for the purposes of s 440D of the Corporations Act.
In Scharer v Giro Construction Group Ltd (in liq)[2017] NSWCATAP 140 the Appeal Panel considered the question with respect to proceedings in the Tribunal. By reason of developments not relevant, the Appeal Panel did not have to decide the question as to whether the Tribunal is a court for the purposes of s 440D.Nevertheless the Appeal Panel described it as an "interesting question". However, more recently in The Owners - Strata Plan no 87003 v Raysons Constructions Pty Ltd[2025] NSWSC 66 (a judgment published 25 February 2025), his Honour, Leeming JA stated at [2] that prior to the hearing external management had been appointed to a company not a party to the proceedings in the Supreme Court but a party to proceedings in the Tribunal, and that that company "accordingly had the benefit of a stay pursuant to s 440D of the Corporations Act2001 (Cth). The entirety of the subsequent proceedings in NCAT and in this court have involved only the Owners Corporation and Raysons." We take it that it was accepted without controversy that by reason of the operation of the Corporations Act the proceedings in NCAT against the company under external management had been stayed.
The use of the term "court" in the relevant provisions of the is not the subject of statutory definition. We take it to have its meaning according to ordinary English usage. The Tribunal determines the rights and obligations of parties who come before it in circumstances where the Tribunal has been given, by statute, powers to decide the respective rights and obligations of the parties in the proceedings before it and to make orders according to law. The proceedings in respect of which this appeal is concerned are such proceedings having the potential to affect the rights and obligations of the parties. We are of the opinion that requires us not to continue with this appeal unless the Supreme Court grants leave.
The grounds of appeal are in the form of submissions running to 15 pages and are summarised in the following paragraphs. In doing so we summarise only those assertions relevant to the appeal against the Second Respondent and omit assertions concerning the First Respondent. The Appellant's submissions with respect to the Second Respondent commence at paragraph 21 (page 11 of 15).
The Appellant submitted that the Tribunal erred in law in applying the Briginshaw standard of proof (referring to the High Court judgment in Briginshaw v Briginshaw[1938] HCA 1939; (1938) 60 CLR 336). At [6] of the second decision, the Tribunal said that it is a serious matter to find a contravention of ss 27 and 59 of the HRIP Act and that the Tribunal could not be satisfied to the requisite standard (the Briginshaw standard) that the First Respondent was on notice of the Appellant's complaint and the requirements of the IPC. Although [6] is referring to the First Respondent, it appears that the Appellant asserts that the Briginshaw standard applied more generally, including to the Second Respondent.
The Appellant submitted that the Tribunal erred in allowing Ms Zain-Mirzan to appear for and represent the Second Respondent. The Appellant's submissions assert that Ms Zane-Mirzan was a representative of the Second Respondent as well as a witness for Dr Baig. In our view, that assertion is based upon a misunderstanding of the Second Decision. It is clear from the Second Decision that Ms Zane-Mirzan represented the Second Respondent and gave evidence as a witness. Dr Baig did not give evidence. The misunderstanding might have been occasioned by the Tribunal's use of the word "Baig" to mean the Second Respondent (as is evident from [2] of the Second Decision). This ground of appeal is without merit.
The Appellant submitted that the Tribunal erred by allowing Ms Scott to represent the Second Respondent as well as Ms Zane-Mirzan. Our reading of the Second Decision is that it is not apparent that Ms Scott was present or involved at the hearing on 26 April 2020. In any event, there is no submission from the Appellant identifying prejudice to the Appellant by reason of the way the Tribunal conducted the hearing. This ground lacks merit.
Accordingly, we propose to make an order to the effect that the appeal against the First Respondent is stayed pending further order. We will add an order that the registry will list the appeal for further orders in four months at which time it should be clear that the appropriate consent or leave has been given or is actively being sought and if not whether the appeal should be dismissed.
As a consequence this decision will only concern the appeal, insofar as it concerns the Second Respondent.
At [25] of the Appellant's submissions, the Appellant submitted that the Tribunal failed to give adequate reasons. We will revert to that submission subsequently.
At [26] of the Appellant's submissions, the Appellant referred to an application for an adjournment which had been denied by the Tribunal. The Second Decision does not refer to any such application and, without the typed transcript of the hearing which occurred on 26 April 2024, the Appellant has not demonstrated to our satisfaction that any error or procedural unfairness arose by reason of any unsuccessful application for an adjournment.
At [27] the Appellant makes assertions that persons involved in the Appellant's affairs ought to be punished for their past behaviour. Such submissions are not within the jurisdiction of the Appeal Panel to determine and therefore are to be ignored. Similarly, there is an assertion that the Tribunal failed to comply with the rules of evidence. The rules of evidence do not apply and that submission has not been given any further consideration by us.