LG v Attorney Generals Department of NSW

LG v Attorney Generals Department of NSW - [2006] NSWSC 1267 - NSWSC 2009 case summary — Zoe

[7]

The Facts as Alleged by the Applicant 7 In her application for review LG set out the following background: My matter in the District Court of NSW related to an injury in more recent years. One Packet of relevant documents, records and correspondence to the proceedings were submitted by my Doctor (Packet 3). Subsequently, upon further excessive requests by the Defendants, two further packets were presented (Packets 4 and 5). Packet 4 included a mix of relevant and non-relevant information to the proceedings. One of these additional Packets, Packet 5, was sealed with objections (confidentiality, privilege and relevance) by my doctor. The subpoena list labeled this Packet 5: Privileged by the Producer. As such, no access or inspection was ordered by the Registrar under UNIFORM CIVIL PROCEDURE RULES 2005 - REG 33.9. The complaint and request for internal review involved unlawful access provided to this latter Packet 5 despite knowledge by the Registry that access was not to be provided and I claim that the Packet 5 access and access issues did not fall within the exemptions outlined by the NSW Attorney General's Department and the access provided was unlawful and as such an External Review is required. In addition, I noted issues I felt with the subpoena forms not outlining rights according to the actual law (1. an inaccurate and misleading presentation of Rule 33.4 of the Uniform Civil Procedure Rules 2005 and 2. not outlining any rights to object regarding relevance), inadequate control at the court (e.g. lack of audit trails on who accessed and with what identification, lack of accountability) and an apparent lack of uniformity or consistent standard of coding subpoena lists. I feel these security issues fall outside the exemptions and require review in the spirit of information protection and health privacy and security principles and form part of the corrective orders I would seek. I feel it would be extremely sad to think that this breach would not lead to review, improvement or even apology given the seriousness of the effects to those involved. I feel ignoring the issues and denying unlawful access would send an unfortunate message. I would like to see improvement for all concerned. Upon presentation of the Packet 4 and 5 records, my doctor's lawyer/counsel wrote to me: "Dr … separated documents in two bundles and sealed the documents [.....] not relevant to the proceeding. In addition, I further understand that he followed my advice and attached a letter to the Registrar of the District Court with a copy of the subpoena advising the Registrar: -of his compliance with the subpoena; -the reason for his compliance in two bundles and the nature of each bundle; and -objecting to the production of the documents in the 'sealed' package on the basis of confidentiality, privilege and relevance." The information had not been considered by the Court to evidence for the s 6 and s 13 exemptions to apply. The Packet 5 documents were not intended as evidence - objections had been placed on their access and a motion required for access to anyone, including myself as the Plaintiff and patient. The records were sealed with objections (letter citing confidentiality, relevance and privilege), and clearly marked/labeled on the actual packet to only be opened by a Judge. The District Court of NSW Subpoena list cited Packet 5: "Privileged by the Producer" - this was a Doctor. In the District Court of NSW, when documents are privileged by the Producer and that producer is a Doctor, a motion before a Judge (not even a Registrar) is required before access is provided. The Court does not assume whether this is legal or physician/patient privilege. Due process was not observed and they were given out by an Officer of the Court, flouting the fact that no hearing or determination had been made regarding these sealed records. They had not gone to the Judge yet. Due process was not observed. There were no access rights or orders made and my personal information included was not relevant or related to the proceedings. The privilege was waived by no one but an Officer of the Court who knew they were not meant to provide access. Unnecessary and flagrant discretion was shown in violation of Information Protection Principles. The packet was later resealed. Any practice of providing access to privileged by the Producer information, when that Producer is a Doctor, information is usually blocked without a hearing. There are over-riding patient welfare concerns with confidentiality objections and counseling privilege. The doctor must be advised of the application or called as a witness at motion for the safety of the patient and/or to defend his objections. The possibility of harm to the patient is paramount and in this case the information was not intended as evidence. I allege the claim of s 6 or s 13 exemption made by the NSW Attorney General's Department is seriously and deeply wrong and a complete violation of privacy and confidentiality has occurred unnecessarily and the issues at the court are not being taken seriously that would see such a breach go un-reviewed. This was an upsetting and unnecessary breach of privacy and confidentiality without access orders or due process.

[22]

24 What is encompassed within the concept of a court or tribunal's 'judicial functions' has been the subject of a number of earlier decisions in relation to the PIPP Act and the Freedom of Information Act 1989. In NZ v Attorney-General's Department [2005] NSWADT 103, the President considered the term in the context of s 6 of the PIPP Act. There the conduct in issue was the release by the Registrar of a Local Court of documents filed by an applicant for an AVO to other parties. He said, at[14 -18] "14 Section 6(1), to reiterate, provides that: `Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court's, or the tribunal's, judicial functions.' The Department referred in its submissions to the structure of courts, and in particular s 10 of the Local Courts Act which provides for the office of registrar of a local court. The Tribunal is satisfied that a Registrar of a Local Court is the holder of an office of a court. 15 The conduct did not occur in Court, but involved access to files given at the counter by Registry staff. Does activity of this kind fall within the meaning of the 'judicial functions' of the Court? Section 6(3), to reiterate, provides relevantly that: 'In this section, "judicial functions" of a court or tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it...'. 16 The Tribunal agrees with the Department's submission that the words 'relate to' have a broad meaning and denote a wide connection between the conduct of interest and the activity of hearing and determining proceedings: Tooheys Ltd v Commissioner of Stamp Duties (NSW) [1961] HCA 35 ; (1961) 105 CLR 602 per Taylor J at 620, 622; Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 479-480 per Wilcox J. 17 See also N (No 2) v Director General, Attorney General's Department [2002] NSWADT 33 at [32]- [33] where I dealt with a similar question, there involving a similarly-expressed immunity from review contained in s 10 of the Freedom of Information Act 1989 . In that case there was an issue as to whether communications with the Registry from professional representatives were immune from the operation of the FOI Act on the basis that they were documents held by the Registry in the exercise of functions that 'relate to' the hearing and determination of claims. In that instance I ruled that professional communications of this kind 'are necessary to the efficient conduct of a claim, and fall within the scope ... of those functions that 'relate to' the hearing and determination of claims' (at [31]) (appeal dismissed, [2002] NSWADTAP 41). 18 This is a stronger case. The applicant's personal information is found in documents lodged with the Registry for use as evidence in support of her application for AVOs. The efficient performance of judicial functions depends greatly on there being a system for the receipt and organization of intended evidence in advance of the formal hearing of a matter. This system is commonly provided by a Registry under the direction of a Registrar. Decisions will frequently have to be taken by Registry officers as to the extent to which access is given to this material, ahead of hearing; or after the material has been dealt with at hearing, and has, possibly, become part of the evidence. The function of giving access to documents of that kind, and to the personal information they may contain, is one, I consider, that 'relates to' the exercise by the Court of its judicial functions.

[28]

32 Part 33 of the Uniform Civil Procedure Rules 2005 contains rules relating the issue and service of subpoenas, compliance with subpoenas, and access to, inspection of, and the return of documents produced under subpoena. In LG's case her doctor complied with a subpoena by sending the documents to the Sydney Registry in accordance with r.33.6(4)(b). Rule 33.9 relevantly provides: (1) This rule applies if an addressee produces a document or thing in accordance with rule 33.6 (4) (b). (2) On the request in writing of a party, the registrar must inform the party whether production in response to a subpoena has occurred, and, if so, include a description, in general terms, of the documents and things produced. (3) Subject to this rule, no person may inspect a document or thing produced unless the court has granted leave and the inspection is in accordance with that leave. (4) Unless the court orders otherwise, the registrar may permit the parties to inspect at the office of the registrar any document or thing produced unless the addressee, a party or any person having sufficient interest objects to the inspection under this rule. (5) If the addressee objects to a document or thing being inspected by any party to the proceeding, the addressee must, at the time of production, notify the registrar in writing of the objection and of the grounds of the objection. (6) If a party or person having a sufficient interest objects to a document or thing being inspected by a party to the proceeding, the objector may notify the registrar in writing of the objection and of the grounds of the objection. (7) On receiving notice of an objection under this rule, the registrar: (a) must not permit any, or any further, inspection of the document or thing the subject of the objection, and (b) must refer the objection to the court for hearing and determination. (8) The registrar must notify the issuing party of the objection and of the date, time and place at which the objection will be heard, and the issuing party must notify the addressee, the objector and each other party accordingly. (9) The registrar must not permit any document or thing produced to be removed from the office of the registrar except on application in writing signed by the solicitor for a party. Note. See rule 1.3 (2) with respect to the meaning of the reference to a solicitor for a party. (10) A solicitor who signs an application under subrule (9) and removes a document or thing from the office of the registrar, undertakes to the court by force of this rule that: (a) the document or thing will be kept in the personal custody of the solicitor or a barrister briefed by the solicitor in the proceeding, and (b) the document or thing will be returned to the registry in the same condition, order and packaging in which it was removed, as and when directed by the registrar. Note. See rule 1.3 (3) with respect to the meaning of the reference to a solicitor who removes a document or thing from the office of the registrar and the reference to the personal custody of the solicitor. (11) The registrar may, in the registrar's discretion, grant an application under subrule (9) subject to conditions or refuse to grant the application.

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