Bupa Aged Care Australia Pty Ltd (ABN 74 082 931 575)

Gill v Bupa Aged Care Australia Pty Ltd (Human Rights) [2025] VCAT 994

Under section 78(1)(a) of the Health Records Act 2001 (Vic) ('Act'), having heard the evidence and representations that the parties have made, the complaint is proven.

Under section 78(1)(a)(i) of the Act, VCAT orders that by 11 December 2025 the respondent will provide the complainant with access to health information it holds that relates to the late Clarice Elvira Gill.

1. This complaint relates to the respondent's refusal to provide the late Clarice Elvira Gill's health records to her son, Francis Gill, because in its view he is not her 'legal representative' as defined in section 3 of the Health Records Act 2001 (Vic) ('Act') and he is therefore not eligible to receive the records under section 95 of the Act.
2. The complaint is brought on Francis Gill's behalf by his brother, the complainant, under section 47(4) of the Act, as an alleged breach of Health Privacy Principle 6.1.

1. The late Mrs Gill had two sons and three daughters. She died on 15 September 2020. Immediately prior to her death, she was a resident in an aged care facility operated by the respondent. The respondent was therefore a provider of health services to her and collected and held her health information and records as defined in the Act.
2. A will purportedly made by Mrs Gill on 13 December 2016 ('will') named Francis Gill and one of her daughters as her executors. Francis Gill received a copy of the will from a solicitor retained by his sister/co-executor on 23 November 2020 and was surprised to learn that neither son benefited under the will. On 30 November 2020 he commenced a course of correspondence with the respondent requesting access to Mrs Gill's health records, as her executor to try to understand why.
3. Probate was granted only to the nominated daughter on 11 January 2021. The grant of probate notes:

"Non-proving executor: Francis Gill (does not wish to apply at this time (leave reserved))."

1. Francis Gill states that his co-executor and her solicitor obtained a grant of probate without his active participation and he did not renounce executorship or express any views about the grant of probate directly to the Court. He provides his own explanation as to how and why a grant was obtained without him, but this is not relevant to this proceeding.
2. The respondent has refused Francis Gill's requests for the health records that it holds on the basis of legal advice, because it does not consider that he is the legal personal representative for the late Mrs Gill as he is not named in the grant of probate. The respondent has provided copies of the requested records to the complainant's sister/co-executor named in the grant who, according to the complainant, has refused to share them with her brothers.
3. The Health Complaints Commissioner ('HCC') accepted a complaint by Francis Gill (represented by Raymond Gill) but declined to further entertain the complaint on 22 November 2023. The HCC referred the matter to VCAT for hearing under s 57(2) of the Act on 4 December 2023.

1. This dispute is one of statutory construction. The respondent says that the complainant does not meet the statutory definition of a 'legal representative'. The following provisions relate to the interpretative issue.
2. The purpose of the Act is set out in section 1.

The purpose of this Act is to promote fair and responsible handling of health information by -

(a) protecting the privacy of an individual's health information that is held in the public and private sectors; and

(b) providing individuals with a right of access to their health information; and

(c) providing an accessible framework for the resolution of complaints regarding the handling of health information.

1. Section 3 defines a legal representative:

legal representative, in relation to a deceased individual, means a person -

(a) holding office as executor of the will of the deceased individual where probate of the will has been granted or resealed in Victoria or any other State or Territory; or

(b) holding office in Victoria or any other State or Territory as administrator of the estate of the deceased individual; (emphasis added)

1. Section 6 establishes that the objects of the Act are:

(a) to require responsible handling of health information in the public and private sectors;

(b) to balance the public interest in protecting the privacy of health information with the public interest in the legitimate use of that information;

(c) to enhance the ability of individuals to be informed about their health care or disability services;

(d) to promote the provision of quality health services, disability services and aged care services.

1. Section 25(1) establishes an individual's right of access to health information:

(1) Subject to subsections (2) and (3), an individual has a right of access, in accordance with this Part and HPP 6, to health information relating to the individual held [1] by a health service provider or any other organisation.

1. Section 95 extends an individual's right of access to legal representatives of deceased persons:

(1) This Act applies in relation to a deceased individual who has been dead for 30 years or less, so far as it is reasonably capable of doing so, in the same way as it applies in relation to an individual who is not deceased.

(2) Subject to subsection (3), if an individual has died, a right or power conferred on individuals by a provision of this Act is exercisable in relation to the deceased individual, so far as the circumstances reasonably permit, by a legal representative of the deceased individual.

(3) A purported consent by a legal representative of a deceased individual is void if, when giving it, the legal representative knows or believes that the consent does not accord with the wishes expressed, and not changed or withdrawn, by the individual in his or her lifetime.

6.1 If an organisation holds health information about an individual, it must provide the individual with access to the information on request by the individual in accordance with Part 5, ...

1. The respondent argues that probate is the process of authenticating an executor's title under a will. It notes that probate is a prerequisite to the executor taking title to the property that forms the testator's estate, which lies at the core of the subsequent executorial function. It says a grant of probate means that the Court has determined that the particular executor applying for probate should be permitted to administer the estate.
2. The respondent noted that the court may 'pass over' (decline to grant probate to) an executor for several reasons, including the executor's capacity, health, or character, or because the relationship between multiple named executors has deteriorated. It states:

In that context, the proper construction of the phrase "holding office as executor ... where probate of the will has been granted" in s 3 of the HRA is that probate must have been granted to that executor and not only to another person.

1. It argued that the word "where" is mutable and therefore "must be contextually and purposively construed".

If Parliament had intended for an executor to be a "legal representative" for the purposes of the HRA even where probate had not been granted to that executor, it could have simply omitted the phrase "where probate of the will has been granted or resealed in Victoria or any other State or Territory" from s 3. Bupa's proposed construction gives meaning to that phrase, rather than making it superfluous.

1. Counsel for the respondent and the complainant agreed that the terms of the definition in section 3 are ambiguous (not readily understood from a plain reading of the words) and there needs to be consideration of the purposes of the legislation. Namely: balancing privacy and an individual's access to health information, promoting responsible handling of information and public interest.

1. The complainant was not legally represented but essentially argued that common sense would suggest that his late mother's intention was that the complainant be able to access information on his mother's behalf. She trusted him to be her executor, and she also trusted him to utilise any powers an executor would have, such as accessing records on her behalf.

1. Under the Act, the words 'relating to an individual' are always pivotal to the interpretation of a right to access records. After death, the individual can only act through his or her legal representative. The Act has defined that as a person 'holding office as executor of the will of the deceased individual where probate of the will has been granted.' A purposive approach to interpretation will focus on the manner in which a deceased individual can access information, mainly by focussing on the persons that he or she trusted as executors in their will.

1. An expressly nominated executor carries no onus of proving that he is the executor 'but can instead rely, subject to evidence adduced by another to the contrary, on the terms of the nomination.'[1] No-one has asserted that the late Mrs Gill did not nominate Francis Gill as her executor. He can rely on the nomination under the will as executor.

An executor is a person to whom the execution of a will is confided by the testator. He or she acts in a representative capacity, the nomination as executor being a request, by the testator, to represent the testator for certain purposes at a time after the testator has died.[2]

Does an executor 'hold office' as executor if he or she is not named in the grant of probate?

1. The answer, at least for the purposes of section 95 and 3 of the Act, is 'yes'.

An executor derives his title and authority from the will of his testator and not from any grant of probate. The property of the deceased, including any right of action, vests in him on his testator's death, and he can institute any right of action, as executor, before he proves the will. He cannot obtain a judgment before probate, not because his title depends on probate, but because production of the probate is the only way that he is allowed to prove his title.[3]

1. The testator named Francis Gill as executor in her will and conferred (confided) his office as such. The grant of probate does not supersede the will. The grant confirms the validity of the will and assigns authority for distribution of the assets (especially real property) to the executor named in the grant.[4] It does not limit the authority of a non-proving executor to access information. A non-proving executor generally retains all the rights of an executor, including the right to receive information about the estate's assets and liabilities, even if another executor has obtained a grant of probate.
2. Francis Gill was not 'passed over' in the grant of probate. Authorities referring to passing over do not apply, because to be passed over requires some active determination that he is not able or not suitable to hold such office, noting that the threshold for judicial intervention is high.[5] It is clear from the face of the probate document that there was no judicial intervention in this case. The executor's rights as executor are preserved by the Prothonotary having reserved leave for him to apply for a grant of probate:

If several executors are appointed, one or more of them may prove the will without the consent or renunciation of the others, power being reserved to grant probate to the latter whenever they or any of them shall duly apply for the same.

An executor to whom power is reserved may, either during the lifetime or after death of the proving executor or executors, renounce probate, or prove the testator's will by extracting a grant of double probate ...[6]

1. Section 18 of the Administration and Probate Act 1958 (Vic) states:

Where probate is granted to one or some of two or more persons named as executors, whether or not power is reserved to the others or other to prove, all the powers which are by law conferred on the personal representative may be exercised by the proving executor or executors for the time being and shall be as effectual as if all the persons named as executors had concurred therein.

1. This provision does not preclude the powers and duties of a non-proving executor but simply allows the proving executor to assume they act with the authority of all (proving and non-proving) executors.
2. The testator selected two individuals whom she trusted to administer her estate and whom she trusted with her information. The words 'where probate of the will has been granted' in the Act are not superfluous. Those words give comfort to an organisation that holds health information about a deceased person (i) that the will has been proved (for example that there is no other, later valid will) and, therefore, (ii) that the executors named in that will validly hold office, whether or not all executors have participated in proving the will. Accordingly, Francis Gill holds office as executor under a proven will and is a 'legal representative' within the meaning of section 3 and for the purposes of section 95. This interpretation is consistent with the purpose of the Act.
3. The respondent has not argued that any exceptions apply under HPP 6.1, only that the complainant was not the correct person to receive the information. Indeed, it has supplied the information to Mr Gill's sister, who has not shared it with Mr Gill. I accept that the respondent was solely motivated to comply with the legislation and was genuinely of the belief that it could not release to a person not named in a grant of probate.
4. The executor, Francis Gill, must satisfy himself that his request for records accords with Mrs Gill's wishes expressed in her lifetime in accordance with section 95(3) of the Act. Because he made the requests for records, I will assume that he has done so.
5. Having heard the evidence and representations that the parties have made, I find the complaint proven and order that the respondent provide the complainant with access to health information that relates to the late Clarice Elvira Gill within 30 days.

[1] Dal Pont, Law of Executors and Administrators (Lexis Nexis, 1st ed 2022) 34

[2] Dal Pont, Law of Succession (Lexis Nexis, 3rd ed, 2020) 301

[3] R F Yeldham et al, Tristram and Coote's Probate Practice (Butterworths, 27th ed, 1983) 104

[4] Dal Pont, Law of Executors and Administrators (Lexis Nexis, 2022) 206: 'A grant of probate or administration, which rests in the court, serves to legitimate the disposition of a person's estate on his or her death. It is, to this end, probative of the personal representative's title and authority to deal with the deceased's assets, whether as per the will or under intestacy rules.'

[5] Dal Pont, Law of Succession (Lexis Nexis, 3rd ed, 2020) 336-337 and 461; Dal Pont, Law of Executors and Administrators (Lexis Nexis, 2022) 22 and 302.

[6] R F Yeldham et al, Tristram and Coote's Probate Practice (Butterworths, 27th ed, 1983) 111.