Kitson v Dennerstein (Human Rights) [2015] VCAT 783

1. Under section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), proceedings H296/2014, H297/2014 and H61/2014 are dismissed.

1. Any application for costs under section 75(2) of the VCAT Act by the respondent (as applicant for summary dismissal or strike out) shall be filed and served by 1 July 2015 together with a supporting affidavit and submissions.

1. Any response by the complainant to a costs application shall be filed and served by 29 July 2015.

1. By 5 August 2015, the parties shall notify the Tribunal whether a hearing on any costs application is sought. If a hearing is sought, the matter shall be listed before me after 14 August 2015. Allow half a day. If no hearing is sought, any costs application shall be determined on the papers.

1. In 2010, Mr Kitson was involved in workcover litigation in the County Court of Victoria. The insurer requested that Mr Kitson have a health assessment and it engaged Prof Dennerstein to undertake that assessment and produce a report. Prof Dennerstein is a registered medical practitioner and practises as a psychiatrist.
2. Mr Kitson attended one appointment with Prof Dennerstein on 13 August 2010. Prof Dennerstein produced a report dated 18 August 2010. Later that month, Mr Kitson settled the workcover claim. As I understand it, Prof Dennerstein's report was not presented to the Court and she was not required to give evidence.
3. In April 2012, Mr Kitson made his first complaint about Prof Dennerstein, relying on rights created by the Health Records Act 2001 (Vic) (HR Act). Mr Kitson has now made four more complaints under the HR Act about Prof Dennerstein. Each has found its way to this Tribunal in accordance with provisions of the HR Act.
4. Proceeding 1 (HP21/2013) was dismissed.[1] In proceeding 2 (H228/2014), the Tribunal found one of the complaints was proven but declined to take any further action and the remainder were dismissed.[2]
5. Prof Dennerstein has applied for proceedings 3 (H296/2014), 4 (H297/2014) and 5 (H61/2015) to be summarily dismissed or struck out under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act).
6. I have decided to grant Prof Dennerstein's application and dismiss the three proceedings.

1. The purpose of the HR Act is to promote fair and responsible handling of health information by: protecting the privacy of an individual's health information that is held in the public and private sectors; providing individuals with a right of access to their health information; and providing an accessible framework for the resolution of complaints regarding the handling of health information.[3]
2. The Act contains Health Privacy Principles (HPPs) which, amongst other things, deal with the collection, use and disclosure of health information and providing access to health information, the protection of health information.
3. There was no dispute before me that, for the purposes of the HR Act, Prof Dennerstein is an organisation bound by that Act and by the HPPs and that she is also a health services provider, as defined. Further, there was no dispute that the report she prepared and the records she holds about Mr Kitson comprise health information under the HR Act.
4. The HR Act provisions which deal with rights of access are relevant to these proceedings.
5. Section 25 says that an individual has a right of access, in accordance with Part 5 and HPP 6, to health information relating to the individual held by a health service provider or any other organisation. Sections 28 and 29 deal with the means of access.
6. Section 28(1) says that a right of access may be exercised in any one or more of the following ways:
   • (a) By inspecting the health information;
   • (b) By receiving a copy of the health information;
   • (c) By viewing the health information and, if it is held by a health service provider, having its content explained.
7. Section 28(3) sets out how the explanation process referred to in section 28(1)(c) works. In summary, if the health services provider is willing to do so, he or she is to provide the explanation. If the health services provider is not willing to provide the explanation, the provisions set up a nomination and approval process for another health services provider to step in.
8. HPP 11 deals with circumstances where an individual asks a health services provider for health information about them to be made available to another health services provider. HPP 11 arises, for example, when an individual changes health practitioners or seeks specialist advice or a second opinion. The health information may be passed on either by the individual requesting that the information be made available or by the second health services provider producing an authority given by the individual for that to be done. The first health services provider is required to make the health information available (on payment of an appropriate fee) to the second, either by providing a copy or by providing a written summary.
9. An individual may make a complaint about an act or practice that may be an interference with the privacy of that individual.[4] An act or practice of an organisation is an interference with the privacy of an individual if, and only if:

(a) The act or practice breaches Part 5 of the HR Act or a HPP in relation to health information that relates to the individual; or

(b) The act or practice breaches HPP 7 in relation to an identifier; or

(c) The act or practice is or results in a failure to provide access to health information that related to the individual in accordance with Part 5 or HPP 6.[5]

1. A complaint of this kind must, in the first instance, be made to the Health Services Commissioner (HSC). The HSC may decide to decline to entertain a complaint.[6] Where a complaint has been declined, the complainant may require the HSC to refer the complaint to the Tribunal for hearing.[7]
2. The HSC declined to entertain each of these three complaints and Mr Kitson required the HSC to refer them to the Tribunal. By those means, the three proceedings were commenced.
3. The Tribunal may, after hearing evidence and representations from the parties, find that a complaint or part of it is proven and make consequential orders, including for compensation, if it so chooses. Where the Tribunal finds a complaint or part of it not proven, the complaint, or part of it, is to be dismissed.[8]

1. Section 75 of the VCAT Act gives the Tribunal discretion to dismiss or strike out a proceeding whether or not all the evidence has been heard. It can do so if, in its opinion, all or part of the proceeding is frivolous, vexatious, misconceived or lacking in substance (section 75(1)(a)), or is otherwise an abuse of process (section 75(1)(b)).
2. There have been many cases about section 75 and the law about how to approach the section is clear.[9] The Tribunal is required to exercise caution before summarily terminating a proceeding. It should only do so if the proceeding is obviously hopeless or unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail. This will include, but is not limited to, a case where an application can be said to disclose no reasonable cause of action or where a respondent can show a good defence sufficient to warrant the summary termination of the proceeding.
3. If the Tribunal is not satisfied that the proceeding should be summarily dismissed or struck out, the matter should go to a hearing so the complainant has the chance to have the complaint heard and so the evidence can be tested in the usual way. When the high bar set out above is not reached, and there is simply a dispute between the parties as to the complaint, the matter should go to hearing.
4. In considering an application under section 75, the Tribunal must take the complainant's case at its highest.

1. Prof Dennerstein seeks summary dismissal or strike out of each of the current three proceedings. In written submissions dated 16 March 2015, Prof Dennerstein notes that the concepts set out in section 75(1)(a) and (b) overlap. The submissions contend that the overlap is present also in Mr Kitson's complaints. The submissions say:
   • The complaints are misconceived because they lack substance;
   • They are lacking in substance because they are not properly based;
   • They are not properly based because they seek an outcome beyond the reach of the HR Act and are therefore misconceived;
   • If formulated beyond the reach of the Act, the claims are plainly defective and can be struck out; and
   • Without a proper basis, they are untenable or manifestly groundless.
2. Prof Dennerstein says that, in effect, proceedings 3, 4 and 5 are all concerned with Mr Kitson seeking to challenge Prof Dennerstein's diagnosis as contained in her August 2010 report. Prof Dennerstein says that Mr Kitson is seeking to re-litigate matters which have been previously decided by this Tribunal, in proceeding 1. On this basis, Prof Dennerstein says that Mr Kitson is estopped from making the further complaints and that they amount to an abuse of process.[10]
3. It is also alleged that Mr Kitson is vexatious in continuing 'his singular pursuit of the respondent, on the issue of her explaining, substantiating or identifying the source of her diagnosis, when there is no evidence against her to support his claims under the Act.'[11]
4. I will refer to Mr Kitson's response to these matters later.

1. There is an interrelationship between issue estoppel and abuse of process. They are both concerned with finality in litigation, the unfairness of being harassed twice for the same cause and the 'scandal' of conflicting judgments.[12]
2. Issue estoppel arises where a state of fact or law is alleged or denied in a proceeding and the particular matter has been decided by a prior judgment or order. That same matter cannot be raised later by the same parties.[13] This rule avoids the possibility of contradictory findings on the same question of fact or law.
3. The term 'abuse of process' is not defined in the VCAT Act. Prof Dennerstein submits that it is a flexible concept designed to ensure that processes of the Tribunal are used in good faith. It can include any process used in a way that is manifestly unjust, oppressive or unfair to a party or would otherwise bring the administration of justice into disrepute among right-thinking people.[14] In her submissions, Prof Dennerstein notes that the categories of abuse of process are not closed but include proceedings which are manifestly groundless, without foundation or which serve no useful purpose, as well as multiple or successive proceedings which cause or are likely to cause improper vexation or oppression.[15] I accept these contentions as correct.
4. In Aon Risk Services Australia Limited v Australian National University,[16] Chief Justice French said that abuse of process principles may be invoked to prevent attempts to litigate that which should have been litigated in earlier proceedings as well as attempts to re-litigate that which has already been determined. [17] He cited with approval the decision of Mason CJ, Deane and Dawson JJ in Walton v Gardiner in which their Honours said that proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate again a case which has already been disposed of by earlier proceedings.[18]
5. It is open to find abuse of process where the processes and procedures of the relevant court or tribunal, which exist to administer justice with fairness and impartiality, are converted into instruments of injustice or unfairness.[19] Courts and tribunals have power to prevent misuse of their procedures where procedural rules are used in a way which, while not strictly inconsistent with those rules, make it manifestly unfair to a party for the litigation to continue. Alternatively, courts and tribunals may intervene where the continuation of the particular proceeding would otherwise bring the administration of justice into disrepute among right-thinking people.[20]
6. The public interest in the due administration of justice necessarily extends to ensuring that court and tribunal processes are used fairly by State and citizen alike. Another aspect of the public interest is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that court or tribunal processes may lend themselves to oppression and injustice.[21] While many of the cases which discuss abuse of process concern criminal proceedings, these broad statements may be applied to civil proceedings.
7. I will now turn to the current proceedings and the matters raised in each.

The requests for access to health information

1. On 7 May 2014, Mr Kitson wrote to Prof Dennerstein as follows:

I have discussed with my general medical practitioner - Dr [name redacted by Mr Kitson] - my concerns and desires regarding attaining comprehensive understanding of health issues purportedly identified by qualified medical practitioners.

Dr [name redacted] supports, and has agreed to assist in, my goal in attaining said understanding of any and all purported health issues.

Pursuant to HPP 11.1(a) you are hereby requested and required to furnish to Dr [name redacted] all documents identified in the enclosed authority dated 7 May 2014.

I, Keith Russell Kitson, hereby authorise Professor Lorraine Dennerstein to afford to Dr [name redacted] access to specified items of my health information held by Professor Dennerstein. The aforementioned authorised access is to be afforded via copies of all relevant material. Professor Dennerstein is not authorised to afford access by means of a written summary of my health information.

The items of my health information to which Professor Dennerstein is authorised, and required, to afford the aforementioned access are as follows:

• All material held by Professor Dennerstein and which reveals any or all specific criteria satisfied - as stipulated by the Diagnostic and Statistical Manual of Mental Disorders, edition IV (DSM-IV) for substantiation of the diagnosis revealed within Professor Dennerstein's report dated 18 August 2010 in regard to County Court of Victoria Proceeding No. C1-09-05644.
• All material held by Professor Dennerstein and which reveals any or all specific criteria satisfied as generally accepted by appropriately qualified and competent practicing (sic) members of the medical profession for substantiation of the diagnosis revealed within Professor Dennerstein's report dated 18 August 2010 in regard to County Court of Victoria Proceeding No. C1-09-05644.

The aforementioned access is to be afforded pursuant to [HPP] 11.

Professor Dennerstein is not authorised to afford access - by any means - to any item of my personal private information which does not reveal the aforementioned substantiating criteria. Affording access to such information will result in litigation being instigated without further notice.

1. So, in proceeding 3, Mr Kitson seeks all material held by Prof Dennerstein which reveals all of specific criteria satisfied (as stipulated by the DSM-IV) for substantiation of the diagnosis contained in her 18 August 2010 report. He also seeks all material held which reveals any or all specific criteria generally accepted by appropriately qualified and competent practising members of the medical profession for substantiation of the diagnosis contained in the 18 August 2010 report. In the alternative, Mr Kitson seeks a declaration that Prof Dennerstein was unable to recognise the category of information sought.
2. On 5 June 2014, Prof Dennerstein replied to Mr Kitson. The letter says that Prof Dennerstein would be willing to provide copies of all 33 pages to the nominated medical practitioner.

1. On 19 September 2014, Mr Kitson wrote to Prof Dennerstein. He made reference to earlier correspondence dated 28 October 2012, 11 November 2012, 2 and 15 December 2012 concerning the formulation of a request for access to health information. After discussing exchanges of correspondence between them and the operation of section 28(3) of the HR Act, Mr Kitson said:

I hereby request that you provide access, pursuant to sections 28(1)(c); 28(3)(b); 29(1)(d) and others of the HR Act, to all items of health information held by you and which reveal - pursuant to the requirements and guidelines of the DSM-IV - substantiation of the diagnosis you have declared as a result of your personal assessment of my health. You are not authorised or requested to afford access to any other items of my health information.

1. In summary, in proceeding 4, Mr Kitson seeks all items of health information held by Prof Dennerstein which reveal, pursuant to the requirements and guidelines of the DSM-IV, substantiation of her diagnosis resulting from her personal assessment of his health. The method of access is viewing and explanation under section 28(1)(c).
2. I understand that Prof Dennerstein refused to provide the access by way of viewing and explanation as sought.

1. On 24 November 2014, Mr Kitson wrote to Prof Dennerstein in similar terms to his 19 September 2014 letter. He sought access to the report dated 18 August 2010 under sections 28(1)(c), 28(3)(b) and 29(1)(d). In effect, the request sought access to the report only by way of an explanation of its contents by Prof Dennerstein or her nominee.
2. So, in proceeding 5, Mr Kitson seeks access in the same terms as expressed above in respect of proceeding 4 but limits the request to the 18 August 2010 report.
3. Prof Dennerstein's solicitors responded on her behalf on 8 December 2014, amongst other things, refusing the request and commenting that it was an abuse of process, vexatious and oppressive and amounts to harassment. The letter denies that Prof Dennerstein had interfered with Mr Kitson's privacy.
4. The complaint was referred to the HSC and then to the Tribunal. At the time the complaint was received, orders had been made for the hearing of Prof Dennerstein's section 75 application in respect of proceedings 3 and 4. I made orders for a section 75 application in respect of proceeding 5 to be heard at the same time.
5. I will now turn to the decision made in proceeding 1.

1. On 24 December 2013, then Senior Member, now Deputy President Nihill made an order dismissing the proceeding.
2. The Tribunal's file was available to me to review. I noted that in the first complaint made to the HSC, Mr Kitson requested access to specifically defined items of interest to him. The complaint then said that:

Prof. Dennerstein has declined to confirm or deny whether she holds - or ever held - any items which fall within the specific definition/description. Prof. Dennerstein has advised that she will not furnish any explanation of her records nor will she appoint any third party to provide such explanation. Prof. Dennerstein has declared that she will accept my nomination - should I so choose - of "any registered medical practitioner" for the purpose of explaining Dennerstein's records.

. . . Prof. Dennerstein states she will make her entire file available for my viewing and concurrent explanation by a suitably qualified third party of my choosing - at a place (and time) of Prof. Dennerstein's choosing.

1. DP Nihill's reasons explain that, on 17 January 2013, Prof Dennerstein sent copies of all of the health information held to Mr Kitson by registered post and that envelope was returned marked 'return to sender - refused'. An order was made for copies of the documents to be made available to Mr Kitson at Prof Dennerstein's solicitor's office. Her reasons record that, on 19 August 2013, Mr Kitson attended there and viewed the contents of the envelope containing this health information. He declined to take the copied documents with him.[22] I understand that, on 17 January 2014, Mr Kitson collected a complete copy of the 33 pages from Prof Dennerstein's solicitor's office.
2. There was no dispute before me or, as I understand it, before DP Nihill, that the health information held by Prof Dennerstein comprise 33 pages made up of:
   • Patient form (1 page)
   • Letter from Turks Legal to Prof Dennerstein, 2 August 2010 (2 pages)
   • Certificate of attendance, 13 August 2010 (1 page)
   • Medico-legal consent form, 13 August 2010 (1 page)
   • Referral letter and paperwork (1 page)
   • Handwritten notes of Prof Dennerstein (13 pages)
   • Report of Prof Dennerstein to Turks Legal, 18 August 2010 (14 pages).
3. In her reasons for decision, DP Nihill characterised Mr Kitson's complaint in the following way (footnotes deleted):
   1. Mr Kitson agrees that he has seen, and had an opportunity to accept copies of, the health information as described above. His complaint is that he does not want the whole of the health information, but only specific information, that is anything relied upon by Professor Dennerstein in making the diagnosis set out in the report.
   2. In his correspondence to Professor Dennerstein, Mr Kitson explained his request:

You are reminded that I seek access only to records/items which unambiguously reveal the specific (DSM-IV) criteria satisfied to make your personal diagnosis and the relationship of same to information/evidence you have obtained directly from myself. Access to any and all items of my health information which you have obtained from third parties is NOT requested.

1. Subsequent correspondence to Professor Dennerstein's solicitors expanded on this point:

... I have clearly - and repeatedly - requested Dennerstein simply to identify all items in her possession and which fall within the clearly defined category of interest in order that I may determine which items I might choose to access and by which lawful means... At no time have I requested Dennerstein to forward - by any means, secure or otherwise - copies of any or all items in her possession. The Health Records Act 2011 (sic) does not oblige me to take delivery of items of Dennerstein's choosing...

Dennerstein - acting in the role of servant/agent of the Courts - has declared her "personal diagnosis". Dennerstein lists, ad tedium, the professional qualifications which purportedly qualify and enable her to form and present such a "diagnosis". It is reasonable to expect Dennerstein to be able - and willing - to substantiate said "diagnosis" in a professionally recognised manner...

Dennerstein has been afforded every reasonable opportunity to either identify all items by which her "personal diagnosis" is substantiated - as per DSM-IV criteria - or to declare that no such evidence exists. In Response, Dennerstein intensifies her efforts to avoid doing either. Appropriate action will be instigated, without further notice, to compel Dennerstein to provide an unambiguous answer. Dennerstein will be held liable for all associated costs, expenses etc.

1. At the hearing, Mr Kitson reiterated that s 33(3) (b) of the HR Act states that a request for access must sufficiently identify the health information to which access is sought, and that what follows from this is that Professor Dennerstein's offer to provide all health information does not meet the requirements of the HR Act.
2. Mr Kitson said that he wanted to be able to understand why the diagnosis was made, and the only way he could see of doing so was to take the relevant information to another medical practitioner to review.
3. DP Nihill said the following at paragraphs 28 and 29:
   1. In my view, Professor Dennerstein has complied with the requirements of the HR Act. She is not withholding any information. She holds no health information about Mr Kitson other than that which she has provided. Mr Kitson submitted that s 33 (3)(b) imposed a requirement on Professor Dennerstein to identify particular documents and provide only those. S 33 (3) (b) does not do this. It requires the person who is making the request to identify the health information he or she is requesting. The HR Act does not require Professor Dennerstein to justify or provide further detail as to her diagnosis. The Tribunal may make orders about a complaint (s 74 HR Act), and a complaint must be about an act or practice that may be an interference with privacy (ss 45, 54). An interference with privacy is defined in s 18 of the HR Act. There is no evidence before me that Professor Dennerstein has interfered with Mr Kitson's privacy as defined. In my view, Mr Kitson, in seeking to have Professor [Dennerstein] analyse and provide further detail as to her diagnosis, is seeking to achieve an outcome beyond that contemplated by the HR Act. He is seeking to rely on the HR Act to meet an objective that is beyond its reach.
   2. It follows that I find I do not have the jurisdiction to make the orders sought by Mr Kitson. Professor Dennerstein has responded to the request made by Mr Kitson for access to his health information. She has provided full and complete access. There is, in my view, nothing more that the HR Act requires her to do.
4. In summary, DP Nihill found:
   • Prof Dennerstein had complied with the requirements of the HR Act by providing to Mr Kitson the health information she held;
   • The HR Act did not, under section 33(3)(b) or otherwise, require Prof Dennerstein to identify particular documents or to justify or provide further detail as to her diagnosis;
   • By seeking to have Prof Dennerstein analyse and provide further detail as to her diagnosis, Mr Kitson was seeking to achieve an outcome beyond that contemplated by the HR Act;
   • The Tribunal did not have the jurisdiction to make the orders sought; and
   • Prof Dennerstein had responded to the request made for access and that she had provided full and complete access.

1. In both Prof Dennerstein and Mr Kitson's written submissions on the section 75 application, they addressed some matters in the specific context of proceedings 3 and 4 and also made individual comments. The parties agreed that their submissions for proceedings 3 and 4 would be relied on for proceeding 5.

1. Prof Dennerstein says that the request to identify documents and substantiate her diagnosis has been found not to be required by the HR Act in proceeding 1. Accordingly, those matters are the subject of an estoppel or are otherwise an abuse of process as those terms are discussed earlier. The submissions attached a very helpful table which set out the terms of the complaints, relevant parts of the decision of the HSC and, for proceedings 1 and 2, relevant parts of the decision of the Tribunal.
2. Prof Dennerstein noted that, in addition to the access request set out, Mr Kitson says that Prof Dennerstein needs 'remedial advice because she is transgressing the HRA' and that he will refer her to the appropriate registration board. It is contended that this allegation and a suggestion that Prof Dennerstein is 'professionally and morally reprehensible' is unfounded and intended to embarrass and annoy. She notes that allegations that are irrelevant, unnecessary or scandalous are also an abuse of process.

1. Mr Kitson filed written submissions in response to the section 75 application dated 7 April 2015. I read those submissions and heard further from Mr Kitson at the hearing. I summarise his position as follows.
2. Mr Kitson says that the decision in respect of proceeding 1 cannot answer proceeding 3 (or for that matter proceedings 4 or 5) because the events leading to those complaints had not then occurred. He also notes that, in proceeding 1, he sought copies of his health records whereas in proceeding 3 he asks for those records to be provided to a third party, his nominated health practitioner. Similarly, proceeding 4 and proceeding 5 seek the disclosure of health information to a third party and so they are said to be different from proceeding 1 and not subject to an estoppel.
3. Mr Kitson contends that proceeding 1 did not decide, where an individual has sufficiently identified the health information in issue, whether a health service provider is required to isolate and provide access only to those identified items where the manner of access necessarily involves disclosure to one or more third parties. A related issue in this context is the extent to which an organisation is obliged to observe and fulfil their obligations under HPP 4.1 to protect health information from unauthorised access.[23]
4. Mr Kitson says that each proceeding has been commenced in strict compliance with the HR Act and, as a result of Prof Dennerstein's refusal to provide access by the means specified, he has a valid cause of action. He says that there is no previous proceeding in which the questions raised in these proceedings have been decided and so no estoppel has been created. That is essentially because each proceeding has relied on a different access method under the HR Act or the HPPs.
5. Mr Kitson says that, having seen the 33 pages of material, he has concerns about the manner in which the information has been handled and the accuracy, completeness and whether it is up to date. He says he felt the need to seek lawful access to the health information in alternate ways as contemplated by the HR Act.[24] He contends that there have been multiple possible interferences with his privacy and that he is entitled to raise each as a possible breach of section 18 of the HR Act.
6. Mr Kitson notes that no evidence has been produced by Prof Dennerstein that the proceedings have been commenced for a collateral purpose.
7. He says that he does not seek to have the diagnosis explained or substantiated or have the source of the diagnosis identified. Prof Dennerstein has been asked to 'afford lawful access to a sufficiently identified subset of health information reasonably believed to exist.'[25]
8. Mr Kitson says that Prof Dennerstein has misrepresented the nature of the access request and the outcome sought. He says that the 'prominent outcome sought from the Tribunal in the relevant matters is a conclusive determination as to whether the HR Act truly affords an individual an enforceable right to access health information in the way(s) requested - and suggested by the HR Act - and whether the HR Act affords health information any genuine protection from unauthorised access.'[26]
9. On the question of abuse of process, Mr Kitson notes that no evidence has been produced to support that allegation. He says that the 'useful purpose' of the proceedings is to enable the Tribunal 'to establish absolute clarification of the true meaning and intent of the HR Act, in particular, the extent of enforceability of an individual's legislated right to access health information in one or more of the ways depicted within that Act and to ensure protection of his or her own health information from unauthorised access.'[27]
10. Mr Kitson drew attention to the fact that the HR Act's referral process means that it is not open to a complainant to amend a claim before the Tribunal to include matters beyond the scope of the complaint made to the HSC. He notes this matter was raised in proceeding 2 and Deputy President Lambrick declined to allow an amendment to allow the complaints which are the subject of proceedings 3 and 4 to be heard and determined at the same time.
11. To the suggestion that he could supply copies of the documents to his chosen health practitioner and have him or her explain the contents and discuss the diagnosis with him, Mr Kitson explained that he does not want another practitioner to have all of the information, in part because the practitioner would be required to store the information in compliance with the HR Act. Mr Kitson drew a similarity between his request of Prof Dennerstein for the identified categories of information to a request for specific documents of a patient where the whole record fills an entire filing cabinet. He suggests that, by his request, he is avoiding his chosen practitioner from having to read a large number of documents and rather be in a position to simply address the particular concern raised by reference to the relevant documents.
12. On the question of explanation, Mr Kitson was unwilling to indicate what he wanted Prof Dennerstein to explain. He regarded that as a private matter. Accordingly, he disagreed with the proposition that he could take the records to another practitioner and ask questions of that person about the matters of concern.
13. Mr Kitson says that, if these matters are summarily dismissed or struck out, it will create a precedent 'whereby an individual, having had cause to raise a complaint about one form of interference with privacy in regard to distinct health information held by an organisation, will be denied any and all right to raise any other complaint regarding a significantly different form of interference with privacy concerning the same health information held by the same organisation' (my emphasis).[28]
14. Mr Kitson says that the section 75 application is misconceived, without substance, frivolous, vexatious and an abuse of process and should be dismissed or struck out with an order in his favour for costs and expenses.[29]

Issue estoppel - the requests for access to health information

1. As summarised above, in proceeding 1, the Tribunal found that the HR Act did not require Prof Dennerstein to justify or provide further detail of her diagnosis and that, by seeking to have her do so, Mr Kitson was seeking to achieve an outcome beyond that contemplated by the HR Act. Accordingly, the Tribunal did not have the jurisdiction to make the orders sought. Importantly, the Tribunal also found that section 33(3)(b) of the HR Act created no obligation on Prof Dennerstein to identify particular documents and provide only those.
2. I find that the health information sought in proceedings 1 and 3 is the same - it is the information from the DSM-IV or otherwise on which Prof Dennerstein relied to make her diagnosis. The only substantive difference is that proceeding 3 makes specific reference to the 18 August 2010 report while proceeding 1 only refers to the diagnosis. Given that the 18 August 2010 report is the primary document which contains Prof Dennerstein's expression of her diagnosis and opinion, this difference is not material.
3. I find that the health information sought in proceeding 4, is the same as that which was sought in proceeding 1. While proceeding 4 is limited to items which connect her diagnosis with the DSM-IV rather than the broader range of health information referred to in proceeding 1, it is apparent that the limited material in proceeding 4 falls within that considered in proceeding 1. For the same reasons, I find that the health information sought in proceeding 5 is the same as that considered in proceeding 1 except that it is even more limited as it is expressed to be made only in respect of the 18 August 2010 report and not all health information held.
4. I am satisfied that, even leaving to one side whether Mr Kitson seeks to have the diagnosis explained or substantiated or have the source of the diagnosis identified, he is not entitled under the HR Act to require the provision of what he terms the 'sufficiently identified subset of health information reasonably believed to exist.' DP Nihill found that Prof Dennerstein was under no obligation to identify such a set of documents and that, by providing a complete copy of all health records held, she had met Mr Kitson's access request. Further, it seems to me that, where all records are already held, Mr Kitson's request calls either for Prof Dennerstein to highlight or annotate the documents or create a new document setting out the specific health information sought. That would be the same as analysing and detailing further material which DP Nihill found is not required under the HR Act.
5. Issue estoppel applies to these circumstances because the Tribunal has already, in proceeding 1, considered and made findings about a request for the same health information which is sought in each of proceedings 3, 4 and 5. Mr Kitson cannot raise that matter again as the question of whether Prof Dennerstein is required to identify a subset of the health information contained in the documents for the purposes of providing access under section 33(3)(b) of the HR Act has been decided.
6. While Mr Kitson has emphasised the fact that he has sought to make use of different access methods on each occasion, I do not consider that is material. That is because, irrespective of the method of access, the Tribunal has found that he has no entitlement to access the health information he has defined and it is that defined health information which is at the heart of his access requests and these three proceedings.
7. This conclusion is a sufficient basis to determine that the entirety of the three proceedings are misconceived and lacking in substance under section 75(1)(a) of the VCAT Act and so ought to be dismissed.
8. In case I should be found to be incorrect in that conclusion, I have considered the other aspects of Prof Dennerstein's application.

1. Prof Dennerstein noted that proceeding 3 included a complaint about the destruction of documents contrary to HPP 11. Whether or not HPP 11 applies to that matter, DP Lambrick considered and made a determination on the question of the shredding of certain documents in proceeding 2 in the context of HPP 4 and the meaning of interference with privacy in section 18 of the HR Act. She found that the complaint was proven, but, taking into account a range of matters including a finding that there has been no detriment to Mr Kitson, she declined to take any further action.[30]
2. As findings of fact and law have been made in respect of the circumstances surrounding the shredding of certain documents, issue estoppel applies and that matter may not be considered again.

Proceedings misconceived and lacking in substance - purpose of access requests and method of access

1. The material before me concerning why Mr Kitson has sought access to the health information and the methods he seeks to rely on leads me to conclude that those matters were either determined in proceeding 1 or are misconceived or lacking in substance under section 75(1)(a) of the VCAT Act.

1. Mr Kitson contends that the reason he has requested access to his health records is not relevant to whether there has been a breach of the HR Act. That is because the HPPs he relies on do not require a reason to be given.
2. While that may be true, I consider it relevant when considering whether the matters raised in proceedings 3, 4 and 5 have already been determined by this Tribunal and whether, despite the different access methods relied on, they are misconceived or lacking in substance such that they ought not to be allowed to continue.
3. The reasons for decision in respect of proceeding1 show that Mr Kitson said he wanted to be able to understand why the diagnosis was made and the only way he could see of doing so was to take the relevant information to another medical practitioner to review.
4. In respect of proceedings 3 and 4, Mr Kitson complains that, by refusing his requests, Prof Dennerstein had denied him of his right to be fully informed about his health. It was a denial of him having appropriate assistance and/or an opportunity to fully and appropriately comprehend and address a diagnosed health issue. He said at the hearing that he considered Prof Dennerstein's report to be a second opinion.
5. In his letter of request in proceeding 5, Mr Kitson says that:

The requested explanation of your records and/or diagnosis is intended and anticipated to assist in maintaining and/or improving my health.

1. It is apparent from these documents that Mr Kitson seeks the specific health information because he wants to have the opportunity for Prof Dennerstein's diagnosis to be discussed with his own medical practitioner to enable him to understand it and take it into account. The time for challenging the diagnosis in the context in which it was given is long passed as the County Court proceedings were settled in 2010. Mr Kitson is not being treated by Prof Dennerstein currently and has not seen her in a professional capacity since August 2010.
2. In so far as the complaints in proceedings 3, 4 or 5 allege that Mr Kitson requires discussion or further information from Prof Dennerstein to understand her report or his diagnosis, that matter has been disposed of by the Tribunal's finding in proceeding 1 that Prof Dennerstein is not required by the HR Act to analyse and provide further detail as to her diagnosis.
3. To the extent that the purpose of the access request is an issue in these proceedings, for these reasons issue estoppel applies and so that aspect of the proceeding is misconceived and lacking in substance under section 75(1)(a) of the VCAT Act.

1. On 7 April 2015, Mr Kitson filed a document entitled 'Interrogatories for the Respondent'. The Tribunal did not request or order the document to be filed.
2. In his written submissions in respect of the section 75 application, Mr Kitson asked that an order be made requiring Prof Dennerstein to answer the interrogatories in order to reveal the 'true purpose' behind Prof Dennerstein's actions to date and her section 75 application.[31]
3. The interrogatories ask a series of questions touching on:
   • Prof Dennerstein's use or otherwise of the DSM-IV and other matters in reaching her diagnosis;
   • The evidence Prof Dennerstein would have given had she been called to give evidence in the County Court in 2010; and
   • Prof Dennerstein's awareness or otherwise of aspects of obligations under the HR Act including in respect of third party explanation of health information.
4. These interrogatories strongly suggest that, Mr Kitson's purpose is to raise with Prof Dennerstein matters which fall well outside his access entitlements and well outside the purposes of the HR Act. I find that, where the Tribunal has already found that the HR Act does not require Prof Dennerstein to analyse and identify the health information she holds in the manner Mr Kitson seeks, proceedings which include the pursuit of those or similar matters are subject to issue estoppel and/or are misconceived and lacking in substance under section 75(1)(a) of the VCAT Act.

1. I have found that the health information Mr Kitson seeks in proceedings 3, 4 and 5 is the same as that which was sought in proceeding 1. The reason for seeking the health information is the same in terms of the personal outcome Mr Kitson seeks. The issue raised by Mr Kitson is whether he is entitled to again seek the same health information from Prof Dennerstein by a different method, the Tribunal having already decided that, at least in respect of one method, he cannot.
2. As I understand it, Mr Kitson relies on the fact that sections 28 and 29 of the HR Act provides for a number of different pathways to accessing health information: inspection (section 28(1)(a)); receiving copies (section 28(1)(b)); and viewing and explanation (section 28(1)(c)).
3. Accordingly, Mr Kitson says that what he has done is make requests for access by the different pathways and, on each occasion, Prof Dennerstein has refused his request. He says that, because those refusals may be breaches of sections of the HR Act or HPPs, then under section 18, those refusals may be interferences with his privacy. Section 45 allows an individual to make a complaint to the HSC about an act that may be an interference with privacy as defined in section 18. The HSC having declined to entertain the complaints, he has, in accordance with the HR Act, asked for the matter to be referred to the Tribunal.
4. Mr Kitson also notes, correctly, that the Tribunal may only consider the complaint as referred by the HSC and so he cannot apply to amend one proceeding to add additional allegations of breaches. That is why he has three new proceedings before the Tribunal. Despite these contentions, I have decided that these proceedings cannot continue.
5. That is because, the Tribunal has decided that Prof Dennerstein is not required by the HR Act to analyse and identify the health information she holds in the manner Mr Kitson seeks. That part of DP Nihill's decision is separate from the method of access. The decision was made in circumstances where all health records had been made available to Mr Kitson and he had viewed them but he was seeking a sub-set of that information focussed on a question of his own devising. The four requests for access are not for different kinds of health information - they are all requests for the same health information. I do not accept Mr Kitson's contention that these are all 'significantly different' possible interferences with privacy.
6. To allow proceedings based on a different access method to proceed would be inconsistent with the Tribunal's decision that the health information requested in each proceeding is not valid or capable of being the subject of an order of the Tribunal. The issue of whether there has been a breach in respect of the particular request for health information has been decided and so Mr Kitson is estopped from seeking to have the issue re-litigated under the guise of a different access method request. On the basis of this conclusion, I am satisfied that the proceedings are misconceived and lacking in substance under section 75(1)(a) of the VCAT Act.

1. As I understand it, Mr Kitson suggests that, over time, he has reflected on the content of the health information and further matters of concern have arisen. As a result, he has progressively taken up those concerns with Prof Dennerstein.
2. At the hearing before me, there was a discussion about a report produced in the County Court proceedings on the letterhead of IMO Pty Ltd[32] dated 19 August 2010. Mr Ball, for Prof Dennerstein, explained that the main content of that report was the same as that produced on Prof Dennerstein's letterhead and dated 18 August 2010 except that some introductory and concluding paragraphs and headings had been inserted by IMO Pty Ltd.
3. Mr Kitson told me that he only received access to Prof Dennerstein's 18 August 2010 report in 2014. He confirmed its receipt led to proceeding 2. Mr Kitson also says that, seeing that report led him to seek further access by certain documents being sent to his nominated medical practitioner (proceeding 3) and also in the form of an explanation (proceedings 4 and 5).
4. I noted the comments Mr Kitson made at the hearing about only seeing the 18 August 2010 report in 2014, as compared to the IMO Pty Ltd version dated 19 August 2010. However, it is apparent from the decision in respect of proceeding 1 that, as early as 19 August 2013, Mr Kitson viewed Prof Dennerstein's report and he had a copy by January 2014. Having heard from Mr Ball about the form of the two reports, I am satisfied that, in the course of the County Court proceedings Mr Kitson had at least the IMO Pty Ltd version and have no reason to doubt the explanation that, while the introductory and concluding parts of that document may have been added, together with some headings, it contained Prof Dennerstein's diagnosis. To the extent that Mr Kitson suggests that having a hard copy of the 18 August 2010 report somehow changed his need for information from Prof Dennerstein, I reject that contention.
5. I reject any suggestion that obtaining a copy of the 18 August 2010 report or reflecting on its content justified the further proceedings. As early as 2012, Mr Kitson expressed a desire to understand the diagnosis Prof Dennerstein made and discuss that with his own health practitioner. That has continued to be his wish throughout the events leading to proceedings 3, 4 and 5. Mr Kitson's interrogatories demonstrate that at the forefront of his mind is a desire to have Prof Dennerstein justify her diagnosis having regard to the DSM-IV and other matters.
6. It has been in Mr Kitson's power since at least January 2014 to take all of the documents he has to his own health practitioner and discuss them. His own health practitioner ought to be able to identify, if necessary by description rather than reading, which documents are most useful to that process. Mr Kitson does not have to leave copies with the practitioner if he does not want to impose on the practitioner the retention obligations under the HR Act. Mr Kitson suggested that the task of identifying the health information needed for his purposes is like producing a filing cabinet full of documents rather than the relevant ones. That analogy simply does not apply where the total number of pages of health information is 33 and the listed descriptions of each make it plain which are likely to be of assistance to another health practitioner. There has been no suggestion that the health information is difficult to read, poorly written, illegible or confusing.
7. It seems to me that, despite his denials, what Mr Kitson seeks is either a medical consultation or an opportunity to put to Prof Dennerstein in person his views about her diagnosis and to seek a change. In the absence of any suggestion in the HR Act that a medical practitioner who has previously had dealings with an individual is compelled to be available for such a discussion, I consider an explanation of health information of that kind to be beyond the obligations created by the HR Act.
8. Mr Kitson declined to tell me what he needed explained. His complaints, particulars of claim and written submissions show him to be an intelligent and capable person, well able to read and dissect a statute as complex as the HR Act. While entitled to refuse to tell me what he needed explained, I consider it open to take into account the above matters and the content of Mr Kitson's requests, correspondence and the interrogatories when considering his applications.
9. I will, for the moment, leave the referral process which applies under the HR Act and the difficulties that causes in respect of later amendments to proceedings at the Tribunal to one side. Taking into account Mr Kitson's ability to read and understand the HR Act, I consider it would have been well within Mr Kitson's power to raise all of the matters contained in proceedings 3, 4 and 5 at the time he complained to the HSC about the matters discussed in proceeding 2. He held a copy of all of the health information at that time. Since early 2012, he has wished to discuss Prof Dennerstein's opinion with his own practitioner. He knew the process of complaint handling within the HSC and the referral process to the Tribunal.
10. The extract from the original complaint to the HSC set out in paragraph 47 above shows that access by explanation was the subject of a request to Prof Dennerstein in the complaint which led to proceeding 1. Even if a strict estoppel does not apply to that matter, in my mind it is an abuse of process to use the HSC and Tribunal process to raise that matter again when it could have been raised earlier, at latest in proceeding 2.
11. Taking into account the content of his letters and his explanation about how he came to make the individual applications, it seems to me that Mr Kitson has made a deliberate choice to make separate requests based on different HR Act provisions. While I note that Mr Kitson seems to say he thought he had to raise individual possible interferences with privacy in separate complaints, in proceeding 2 he raised a number of complaints based on different aspects of the HR Act and HPPs. In each letter to Prof Dennerstein he threatened litigation in the event of a refusal to accede to the particular request.
12. Taking all of these matters together with material such as the interrogatories, I find it to be more probable than not that Mr Kitson's motivation has been to trouble Prof Dennerstein by bringing multiple complaints and proceedings and by finding new ways to re-litigate essentially the same issue. I find that Mr Kitson is seeking to use the HR Act to address his grievances with Prof Dennerstein about the content of her report, her diagnosis and opinions and her refusal to accede to his requests. That is not a proper use of the HSC process or of proceedings in the Tribunal.
13. The HSC decisions declining to entertain Mr Kitson's complaints referred to my decision in Reaper v QBE Workers Compensation.[33] That decision is also relied on by Prof Dennerstein. In that case, I struck out a number of complaints, in part on the basis that they were matters which ought to be dealt with in the County Court under the Accident Compensation Act 1985 (Vic). I noted that Mr Reaper was using the HR Act as a vehicle to seek reconsideration of the assessment of his injuries and his workcover claim.
14. While Mr Kitson's concerns are not said to be more appropriately dealt with under another Act, it is my view that, like Mr Reaper, he seeks to use the HR Act as a means to achieve an outcome beyond its scope. The nature of the HR Act, and the HPPs in particular, tend to allow for the construction of complaints relying on different provisions or HPPs where in truth the complaint arises from the same circumstances or is directed at the same purpose.
15. Where there are possible breaches of obligations which are different in nature, it is legitimate to rely on the relevant different provisions or HPPs. Where the alleged breaches are essentially about the same subject-matter or are intended to prosecute a claim other than one properly arising from the objects of the HR Act, that may be an abuse of process.
16. Mr Kitson claims that his concerns are about significantly different forms of interferences with privacy arising from the same health information held by the same person. I do not accept that position for the reasons already given in respect of the content and nature of the access requests he has made. Further, the fact that he can construct arguments relying on different provisions and HPPs does not of itself make the nature of the proceedings different or appropriate. This is particularly so in circumstances where I have found that they have been brought to address his grievances with Prof Dennerstein about the content of her report, her diagnosis and opinions and her refusal to accede to his requests.
17. I discussed earlier the nature of abuse of process and, in particular, when legal processes may be used as instruments of injustice or unfairness. I also take into account the public interest in the proper use of those processes. I am satisfied that right-thinking people would consider these further proceedings, which deal with matters which have been before the Tribunal and decided, bring the administration of justice into disrepute. An aspect of the finality of litigation is that parties may leave the dispute behind. Where no adverse finding has been made against a party on the issue raised, it is an injustice and unfairness for that party to be subjected to repeated proceedings which are likely to incur significant costs and are likely to bring unnecessary anxiety. The concept of issue estoppel seeks to prevent the unfairness of being harassed twice. Abuse of process is capable of including harassment of that kind, particularly in the circumstances before me where the relevant party has now been harassed about the same subject matter four times.
18. I am satisfied that Mr Kitson's conduct falls within the meaning of abuse of process as discussed above.
19. I stop short of finding that Mr Kitson has acted vexatiously but I am satisfied that his conduct, in all of the circumstances discussed, is an abuse of process under section 75(1)(b) of the VCAT Act.

1. Having found under section 75(1)(a) of the VCAT Act that the proceedings are misconceived and lacking in substance and under section 75(1)(b) of the VCAT Act that they are an abuse of process, it is appropriate that the proceedings are dismissed.

1. Prof Dennerstein has sought costs under section 75(2) of the VCAT Act. As no submissions were made on that matter, I will allow time for an application for costs to be made with supporting submissions and for Mr Kitson to reply. The matter will then be listed for further hearing by me unless the parties agree and notify the Tribunal that the question of costs may be determined on the papers.

[1] Kitson v Dennerstein [2013] VCAT 2189.

[2] Kitson v Dennerstein [2015] VCAT 138.

[9] The cases include the following: State Electricity Commission of Victoria v Rabel & Ors [1998] 1 VR 102; Norman v Australian Red Cross Society (1998) 14 VAR 243; Towie v State of Victoria [2002] VCAT 1395; Forrester v AIMS Corporation [2004] VSC 506; Naylor v Oakley Thompson & Co Pty Ltd & Ors [2008] VCAT 2074.

[10] Prof Dennerstein originally also relied on the estoppel discussed in the decision of the High Court of Australia in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45. At the conclusion of the hearing, I gave the parties an opportunity to provide copies of any decisions where the operation of that form of estoppel had been considered in the context of a referral process of the kind which applies under the HR Act. Prof Dennerstein then notified the Tribunal and Mr Kitson that she no longer relied on that contention and so it has not been considered further.

[12] Johnson v Gore Wood & Co [2002] 2 AC 1 per Lord Bingham, cited with approval by French CJ in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [34]; Rogers v The Queen [1994] HCA 42 per Deane and Gaudron JJ at [10].

[13] Blair v Curran [1939] HCA 23, per Dixon J; Anshun per Gibbs CJ, Mason and Aicken JJ at [17].

[14] Molyneux v VCAT & Anor [2007] VSC 89 at [53].

[16] [2009] HCA 27.

[18] [1993] HCA 77, per Mason CJ, Deane and Dawson JJ at [23].

[19] Walton v Gardiner [1993] HCA 77, per Mason CJ, Deane and Dawson JJ at [23].

[20] Hunter v Chief Constable of the West Midlands Police and Ors [1981] UKHL 13 per Lord Diplock.

[21] Jago v District Court of NSW [1989] HCA 46 per Dixon CJ at [12] to [13].

[32] IMO Pty Ltd was used as an intermediary between Turks Legal (acting for the insurer) and Prof Dennerstein in the County Court proceeding. Matters relating to that report and relationship, including the transfer of a word version of Prof Dennerstein's report to IMO Pty Ltd were considered in proceeding 2. I note that DP Lambrick considered HPP 3 which is concerned with data quality and obligations to ensure that health information is accurate, complete, up to date and relevant to the organisation's functions or activities . She found that HPP 3 is not a vehicle through which a health diagnosis may be challenged (paragraphs [53] to [55]).

[33] [2013] VCAT 1870.