Howard v NSW Ministry of Health

Review of Summons Decision

1. The summons lodged by the applicant sought the following documents: 1. DOCUMENTS to be produced in normal size font - copies of emails (2): 14 August 2021 - 09.T1 PM - produced in micro font - GIPA production page 1189 (notated Document 382 by Respondent) - multiple copies produced in micro font - including page 916 - email from ELYCE FARRELL (Duty Officer - SHEOC Operations) to: PHEOC Operations - includes Joanne Sharpe SHEOC Operations- includes Jodie Burke POCLO - includes Mike Salam PHEOC Deputy Controller- NSW Ministry of Health - was Greg on duty?. DAVID AGUILAR DELGADO - Bed Manager - author of illegal psych "Medical Referral", with cc to HCACLOG-Trina Ripoll - Clinical Lead on the Ground - Health Care Australia Pty Ltd. Subject: RE: Medical Referral - CSH to SHA- Mo Howard. 14 August 2021 - 9:14 PM - produced in micro font - GIPA production page 1189 (notated document 382 by Respondent) also page 916 - email from DAVID AGUILAR DELGADO (Bed Manager / Clinical Lead - Meriton Mascot - Health Care Australia) to: SHEOC Operations- includes Elyce Farrell, Jodie Burke, Joanna Sharpe. MOH - PHE0C Operations MOH - PHE0C Deputy Controller MOH - POCLO With cc to: HCA CLOG - Tina Ripoll Subject: Re Medical Referral - CSH to SHA - Mo Howard. Amazing! Thank you very much Elyce and all the team. Trina will not follow up. Good luck Kind Regards David Aguilar Bed Manager - Clinical Lead - Community Support Hotel (CSH) COVID-19 Response Team - Hotel Pty Ltd, 2. Copy of all documents (e.g. emails, cyber chats, records of conversations, database notations) generated/composed/sent/received by "MOH-PHEO Deputy Controller" and other employees of NSW Ministry of Health / NSW Health between 7:44 PM (time that Joanne SHARPE stated S62 will be issued) and 9.08 PM (time that Joanne SHARPE sent a copy of S62 Public Health Order to Elyce FARRELL & others) on 14 August 2021 in relation to the issuing of S62 Public Health Order dated 14 August 2021 (attributed to Gregory Joseph Stewart) to which Morgan HOWARD (the Applicant) was subjected. 3. Answer to question: Did Gregory Joseph Stewart complete and issue the S62 Public Health Order dated 14 August 2021 to which Morgan HOWARD was subjected; or is that S62 Public Health Order a template completed by another employee of NSW Ministry of Health/NSW Health? 4. NAME and job title of the person who issued the S62 Public Health Order dated 14 August 2021 (between 7:44 PM and 9:08 PM) to which Morgan HOWARD was subjected. 5. Answer to question: to what type of "medications" did/does the person who completed/issued S62 Public Health Order dated 14 August 2021 (served upon Morgan HOWARD on 15 August 2021) refer when he/she stated on that S62 Public Health Order "not compliant with her usual medications"?
2. On 7 April 2022 the Registrar refused to issue a summons and stated the following: 1. The issue of the Summons to the Secretary, NSW Health is refused. - Documents to be produced must exist, and be specifically referred to in the Summons. - Applicant should discuss Summons at the listing on 10 May 2022.
3. The applicant made an application seeking review of the summons decision on 7 April 2022. By email dated 11 April 2022, the respondent opposed the summonses being issued on the basis that they were being sought before the first directions hearing on 10 May 2022 and it would be premature for the Tribunal to issue any summonses. The respondent submitted that the applicant was yet to establish whether the Tribunal had jurisdiction to determine each of the matters raised by the substantive application, and it remained unclear in what form the matter would proceed.
4. The applicant submits that the issuing of the summons is necessary to determine the extension of time request. She submits that Dr Stewart and Dr Chee should be summonsed to be asked questions about the issuing of the public health orders and answer other questions. It is not in dispute that Dr Stewart signed the 14 August order.
5. This is an application for administrative review. The Tribunal is required to review the merits of the original decision and consider the evidence available at that time, together with any other or later material, so as to affirm, vary or set aside the original decision. It is not in dispute between the parties that the 14 August order and 26 August direction were issued. The state of Dr Stewart or Dr Chee's minds is not relevant to determine the preliminary issues of jurisdiction or whether an extension of time should be allowed for the making of the application.
6. Further, while the applicant is unrepresented, the summons is imprecise and is framed by way of a series of questions. The issuing of the summons in that form would be oppressive.
7. However, regardless of the form of the summons, I find that it would be premature to issue any summonses before the determination of the preliminary issues.
8. On that basis, the decision of the Registrar to refuse to issue the summons is affirmed.

Internal Review

1. Section 62 of the Public Health Act allows for the making of public health orders and s62 (1) relevantly sets out the following: (1) An authorised medical practitioner may make a public health order in respect of a person if satisfied, on reasonable grounds, that-- (a) the person has a Category 4 or 5 condition and because of the way the person behaves may, as a consequence of that condition, be a risk to public health, or (b) the person-- (i) has been exposed to a contact order condition, and (ii) is at risk of developing the contact order condition, and (iii) because of the way the person behaves, may be a risk to public health.
2. Section 51 of the Public Health Act defines a category 4 condition as a medical condition listed under category 4 in Schedule 1 of the Public Health Act. COVID-19 is included in the list of conditions under category 4 in Sch 1.
3. Section 7 of the Administrative Decisions Review Act 1997 (ADR Act) sets out the mearing of a "administratively reviewable decision". Section 9 of the ADR Act confers administrative review jurisdiction on the Tribunal if the enabling legislation provides that applications may be made to the Tribunal for an administrative review under the ADR ACT.
4. Section 66 of the Public Health Act allows for the Tribunal to review a public health order, based on a category 4 condition, under the Administrative Decisions Review Act 1997 (ADR Act).
5. On that basis, I am satisfied that the decision to issue the public health orders is an administratively reviewable decision under the ADR Act.
6. Section 53 of the ADR Act requires that if an administrator makes an administratively reviewable decision, an interested person may apply for an internal review of that decision (s 53 (1)). The application for an internal review must be in writing, addressed to the administrator concerned, specify an address in Australia to which a notice of the result of the review may be sent, and be lodged with the administrator within 28 days (or such later date as the administrator may allow) (s 53(2)).
7. The internal reviewer may affirm, vary or set aside a decision and make a decision in substitution for the decision (s 53 (5)). An internal reviewer must notify the administrator of the result of, and the reason for the decision as soon as is practicable after making the decision. (s 53 (5) (b))
8. Within 21 days after the application for the internal review is lodged the administrator must:

• notify the applicant in writing of the outcome of the internal review,
• the reasons for the decision for the internal review; and
• the right of the person to have the decision reviewed by the Tribunal. (s 53 (6)).

1. An internal review is taken to be finalised when the applicant is notified of the outcome of the review or if the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (s 53 (9))
2. Section 55(3) relevantly states the following: (3) If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9).
3. That sub-section prevents an application for review by the Tribunal in circumstances where an interested person, who was entitled to seek internal review, has not applied for an internal review.
4. The applicant in this matter was entitled to seek an internal review. For the Tribunal to have jurisdiction in this matter, the applicant must have made an application for internal review under s 53 of the ADR Act and the application must have been finalised in accordance with s 53(9). Otherwise, the applicant is prevented from making this application to the Tribunal.
5. In the order made by the Tribunal on 16 June 2022, the parties were directed to provide to the Tribunal a copy of any application for internal review and any evidence of finalisation of the internal review.
6. Having considered the submissions and documents of the parties, I am not satisfied that the applicant ever made an application for internal review.
7. The applicant alludes in submissions to having sought internal review by telephone, including by phone at the quarantine hotel. Even if the Tribunal was to infer those oral requests were made, it would not meet the requirements of s53(2) as an application for internal review must be in writing.
8. The applicant also relies on a letter which she submits was a "letter of complaint - Request for Review". The letter is contained in the documents provided by the applicant on 22 June 2022. She submits the letter was sent on 13 September 2021.
9. I have considered the letter and I find that it does not amount to a request for an internal review of the orders or direction. The letter is a generalised complaint in relation to the conduct of the respondent arising out of the public health orders. The applicant complains about being forcibly removed from her residence, being falsely accused of being a close contact of the COVID-19 positive person and alleges that the public health orders were illegal and were forcibly and wrongly implemented. The complaint also relates to the conditions of the quarantine. There is an assertion that the public health orders and direction were illegally issued, but there is no request for review of the orders or direction. Even on a wide reading of the document, it is not apparent, nor could it be inferred that the applicant was seeking an internal review of the Public Health orders or direction. The document provided does not appear to be addressed to anyone and it does not specify an address to which a notice of the result can be sent as is required by s 53(2) (b) and (c).

Extension of Time

1. Section 40 of the NCAT Act provides that an application for administrative review to the Tribunal is to be made in the time and manner prescribed by the enabling legislation or the procedural rules. Section 55(2) of the ADR Act provides that, subject to the enabling legislation, an application is to be made in the time and manner prescribed in the procedural rules.
2. Rule 24 of the Civil and Administrative Tribunal Rules 2014 requires that an application for review must be made 28 days after the day on which the internal review is taken to have been finalised under section 53(9) of the ADR Act.
3. On 28 October 2021, Dr Teresa Anderson, Chief Executive of the Sydney Local Health District, wrote a letter to the applicant responding to a series of issues raised by the applicant. That letter has been provided by the applicant in her documents of 22 June 2022. Even if one was to assume that the letter was notification of the outcome of an internal review, the applicant was required to file the application to the Tribunal by 25 November 2021.
4. The application was not filed until 21 March 2022 and the applicant would require an extension of time for the matter to proceed with this application.
5. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 the Appeal Panel helpfully set out the principles to consider in relation to whether to grant an extension of time to appeal pursuant to s 41 of the NCAT Act (at [22]) The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2)The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a)The length of the delay; (b)The reason for the delay; (c)The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d)The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4)It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
6. While those principles relate to appeals, the principles are relevant to the considerations which I must consider in relation to granting an extension of time to make the application - see Gad v Commissioner of Police, NSW Police Force [2022] NSWCATAD 226 at [30] and CFZ v Department of Education [2015] NSWCATAD 231 at [8].
7. In relation to the 13 August order, the applicant submits that she was not aware of the order until documents were produced sometime in February 2022, after she made an application under the Government Information (Public Access) Act 2009 (GIPA Act).
8. The respondent submits that the 13 August order was never served on the applicant because it contained an error as to the date that it required the applicant to be detained. Moreover, the applicant states that the 13 August order never took effect because s 62 (8) of the Public Health Act states: (8) A public health order does not take effect until it is served personally on the person subject to the order.
9. On the applicant's own evidence, the 13 August order was never served on her, and it only came to her attention in documents she obtained under the GIPA Act. I find that the order never came into effect and never had any operation as a public health order. On that basis the Tribunal has no jurisdiction to review the purported 13 August order and no extension of time order can be made in relation to the 13 August order.
10. For those reasons I have only considered the extension of time application insofar as it relates to the 14 August order and 26 August direction.

The Length of the Delay

1. In BKW v Department of Family and Community Services [2014] NSWCATAD 205), the Tribunal observed that a delay of six weeks was "substantial" and explained at [18] that: "Time limits are set to promote the orderly and efficient conduct of proceedings in the Tribunal, to provide certainty for the parties to proceedings, and to achieve finality in litigation. And for these reasons, time limits should generally be strictly enforced unless the interests of justice require that the extension be granted."
2. As noted above, even assuming that the letter of Dr Anderson of 28 October 2021 was notification of the result of the internal review, the application for review was made almost four months late. I find that is a substantial delay in filing the application.

Prejudice

1. The respondent submits that, given the significant length of the delay, the respondent would be prejudiced if required to review its files and speak with the relevant officers and authorised medical practitioners for the purpose of preparing evidence in these proceedings. I accept there would be some prejudice suffered by the respondent if time to make the application was extended.

The Reason for the Delay

1. The applicant submits that she could not file legal proceedings without evidence and that the delay in obtaining evidence was caused by the respondents refusal and failure to provide the information she had requested. She submits that a delay was caused by the failure of the respondent to disclose information relevant to lodging the complaint and that Dr Teresa Anderson was the "primary offender". The applicant also submits she was seeking information about the person who issued the 14 August 2021 and the basis for the order. She submits that if she had been provided with that information, she would have commenced proceedings immediately.
2. The applicant also submits that delays have been caused by the respondent, who by its conduct has breached the GIPA ACT and the Crimes Act 1900. She submits that it was impossible to lodge a complaint with the Tribunal before receipt of the large number of documents under the GIPA Act in February 2022.
3. On 7 March 2022, the applicant lodged earlier proceedings with the Tribunal for review of the orders and the direction. The applicant withdrew the earlier application on 23 March 2022 and those proceedings were subsequently dismissed. The applicant lodged this revised version of the application with the Tribunal on 21 March 2022. It is unclear why the applicant withdrew the earlier proceedings; however it is noted that even those earlier proceedings were lodged over three months late.
4. I am not satisfied that any of the reasons provided by the applicant provide a satisfactory reason for the substantial delays. It was not necessary for the applicant to lodge an access application under the GIPA Act to be provided with information about who issued the 14 August order or the basis for the making of the order. Information about who issued the order, and the basis for the order, are apparent from the order itself (see [63] below).
5. There was nothing preventing the applicant from making her application for review with the Tribunal within 28 days after finalisation of any internal review and at the same time seeking any additional information for the purpose of preparing her evidence by way of an application under the GIPA Act.

Prospects of Success

1. Where there is no reasonable explanation for the delay, the applicant must go further than demonstrating their case is "fairly arguable" and instead demonstrate their case has "substantial merit" in order for an extension of time to be granted: see DWZ v Wandiyali [2019] NSWCATAD 190 (DWZ) at [61] and Singh v Fobupu Pty Ltd [2019] NSWCATAP 111 at [58].

13 August Order

1. As discussed above there are no prospects of success in relation to review of the 13 August order as it was never served on the applicant and therefore did not come into effect and is not amenable to review.

14 August Order and 26 August Direction

1. On 14 August 2021, Dr Gregory Joseph Stewart, Deputy Public Health Controller and an authorised medical practitioner within the meaning of s 60 of the Public Health Act, issued the 14 August order under s 62 of the Public Health Act. The order was served on the applicant in the following terms. "I, GREGORY JOSEPH STEWART, Deputy Public Health Controller, and an authorised medical practitioner within the meaning of section 60 of the Public Health Act 2010 (Act), am satisfied on reasonable grounds that MORGAN HOWARD is a person who: • Is at risk of developing COVID-19 and • Because of the way that MORGAN HOWARD behaves, may be a risk to public health. Therefore, in accordance with section 62 of the Act, I make this public health order requiring MORGAN HOWARD to: a) be detained at the SYDNEY SPECIAL HEALTH ACCOMMODATION until 27 August 2021; b) Undergo oropharyngeal and nasopharyngeal swab testing for COVID-19 as directed by staff of the SYDNEY SPECIAL HEALTH ACCOMODATION. The circumstances justifying the making of this order are as follows: 1) l am satisfied on reasonable grounds that MORGAN HOWARD has been exposed to COVID-19 being a disease transmissible via close contact with someone with COVID-19. 2) I am satisfied that MORGAN HOWARD is not complying with the advice and directions of clinicians, is symptomatic, is refusing to be swabbed for COVID- 19, and is not compliant with her usual medications. 3) There is no other effective way to ensure that the health of the public is not endangered or likely to be endangered. In deciding to make this order, I have taken into account the principle that any restriction on the liberty of the person should be imposed only if it is the most effective way to prevent any risk to public health pursuant to section 62(6) of the Public Health Act 2010. I have taken into account the matters listed in clause 39 of the Public Health Regulation 2012. Unless this order is earlier varied as to its duration or is earlier revoked it expires at the end of 14 days from the date of service on MORGAN HOWARD."
2. The respondent submits that on 15 August 2021, the applicant was transferred to the quarantine hotel. On admission, she advised staff that she would not permit observations or comply with requests to be swabbed due to "strongly held beliefs". She believed that the 14 August order was unlawful and that she was being held against her will. She advised that she was planning to sue the person who "scheduled" her.
3. The applicant submits that the issuing of the 14 August 2021 order constituted a criminal offence, including because the order was a forgery issued by a criminal with intention to cause serious harm.
4. On 26 August 2021, Dr Karen Chee, staff specialist at Sydney Special Health Accommodation, gave the 26 August direction which was then served on the applicant. The 26 August direction stated: You are currently required to be in self-isolation under the Public Health (COVID-19 Self-Isolation) Order (No 5) 2020 (Order) as you were identified as a close contact of a person diagnosed with COVID-19. You[r] period of self-isolation ends at midnight on 27/8/21. In accordance with the Order, I am formally directing you to: 1) Be tested for COV-19 on or before 27/8/21, or 2) If you fail to be tested for COVID-19 by 27/8/21, to continue self-isolation in accordance with the Order for another 10 days until 11.59pm on 6/9/21. If you fail to be tested for COVID by 27/8/21, you are required to self-isolate until 11.59pm on 6/9/21 and you must: • not leave the residence or place you are currently self-isolating except: o for the purposes of obtaining medical care, including a test for COVID-19, or medical supplies, or o in another emergency situation, • not permit another person to enter the residence or you are currently self- isolating unless: o the other person usually lives there or is self-isolating there, o the entry is for medical or emergency purposes, or o [t]he entry is to a place, other than a residence, for the purposes of delivering food or essential items, • otherwise comply with the NSW Health self-isolation guidelines.
5. The respondent submits that the applicant was discharged from the hotel on 6 September 2021.
6. I am not satisfied that this review application has substantial merit. In relation to the 13 August order, I accept that it was never served on the applicant and as such it never came into effect and as a result is not amenable to review.
7. Under s 63 of the ADR Act, in determining an application for the administrative review, the Tribunal may decide to: 1. affirm the administratively reviewable decision, or 2. vary the administratively reviewable decision, or 3. set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or 4. set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
8. In relation to the applicant's assertions that the respondent engaged in illegal conduct, that she was treated inhumanely during her time in quarantine, or that she did not consent to be made subject to quarantine, the Tribunal is not the appropriate forum for those alleged criminal acts. It is not the function of the Tribunal to make recommendations in relation to criminal prosecutions.
9. In an administrative review, the Tribunal is required to consider whether the decision under challenge is the correct and preferable decision. Section 62(1) of the Public Health Act requires that an authorised medical practitioner be satisfied "on reasonable grounds" to make the public health order. Nothing that the applicant has submitted indicates that the medical practitioner could not have been satisfied to make the order or direction on reasonable grounds.
10. Further, the time for compliance with the order and direction has now passed and there is little utility in reviewing the order or direction. The Tribunal does not have jurisdiction to make a declaration that might apply to the making of public health orders in the future: see, Dibb v Transport for NSW (No 2) [2022] NSWCATAP 89 at [17].

The Public Interest

1. The applicant submits the grant of an extension of time would be necessary because determination of this matter is in the public interest. In oral submissions at the hearing, the applicant emphasised that she was not making this application for only her own benefit, but also for the benefit of others. She submitted the orders were oppressive and were a misuse of power by government. The applicant submits that officers of the respondent pose a serious risk to the health and safety of persons and that the orders and direction were issued to enable the respondent to commit serious indictable offences including, kidnapping, false imprisonment, threats to cause harm, intention to extort and fraud.
2. While I acknowledge that the applicant feels very strongly that that determination of this application is in the public interest, there is nothing to support her assertions. Further, this is not the appropriate forum for the outcomes she is seeking. As stated above, this is an application for review and does not relate to criminal prosecution. I do not find that the proceedings raise issues of public interest.

Conclusion on extension of time

1. Weighing up the relevant factors, even if the Tribunal had jurisdiction, I would not grant an extension of time for the making of this application. There has been a considerable delay in the making of the application and the reasons given for that delay are not adequate. The matter lacks substantial merits and despite the applicant's very firm assertions, I do not find that it would raise public interest issues which would warrant an extension of time. Given the orders no longer have effect, I also find there would be no utility in the application proceeding.

Orders

1. Accordingly, I made the following orders: 1. The decision of the Registrar to refuse to issue the summons is affirmed. 2. The application for administrative review lodged on 21 March 2022 is dismissed.

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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: 09 August 2022