MTD obo YTA v Lifestyle Solutions (Aust) Ltd (Human Rights) [2018] VCAT 440

1. The following material in the particulars of claim is struck out:

1. All of paragraphs 1.12 to 1.15; 2. In paragraph 1.16, the words "However there are several errors" and the rest of that paragraph after those words;

1. In paragraph 2.4, all the material before the words: "Also it should be noted", but not those words or the material after them; 2. All of paragraphs 2.5 and 2.6; 3. In paragraph 2.7, the allegation numbered "iii"; 4. In paragraph 3.1, item "i"; 5. In paragraph 3.2 item "i"; 6. In paragraph 3.3, items "ii", "iii", "v", "vi" and "xi".
2. The principal registrar is directed to notify the parties of a date and time for a directions hearing.

1. The Complainant, on behalf of his disabled son[1], complained to the Health Complaints Commissioner (HCC) that the Respondent had failed to make corrections to his son's health records and had failed to grant access to his son's health records, in breach of the Health Records Act 2001 (the HRA). The HCC declined to entertain the complaint and the Complainant then exercised his right to have the complaint referred to this Tribunal and it was referred here on 19 September 2017.
2. At the time of the complaint, the Respondent was or had recently been providing residential services to YTA, the Complainant's son.
3. MTD mentioned that his wife is a joint Complainant with him. The complaint referred from the HCC named only MTD as the Complainant, so I have not amended the name of the Complainant. The Respondent did not dispute the Complainant's standing to bring the complaint.
4. On 22 December 2017, following the filing of the Complainant's particulars of claim, the Respondent filed both its particulars of defence and an application for the particulars and complaint to be summarily dismissed or struck out in part or full, under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act).
5. Section 75 provides:

At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, misconceived or lacking in substance; or

(b) is otherwise an abuse of process.

1. In determining applications under section 75, this Tribunal has consistently followed what was said in Rabel v State Electricity Commission[2]. The principles in that case can be summarised as follows. The Tribunal should be very cautious before summarily terminating a proceeding under section 75, as such action will have the effect of depriving a litigant of the opportunity to have his or her case decided in the ordinary course. This is of special importance where the Complainant is unrepresented. The Tribunal should only proceed to strike out claims if a Respondent has satisfied the Tribunal that, because of one of the grounds in the section, the case is manifestly hopeless, undoubtedly untenable or doomed to fail.
2. In other cases, it has been said that a "high threshold must be met before VCAT can summarily dismiss or strike out all or part of a proceeding"[3]. Further, "where a case involves disputed questions of fact ...and findings as to what actually occurred in the light of the evidence ...it will not usually be appropriate to exercise the power to strike out"[4].
3. The Respondent submitted that the proceeding is: misconceived and obviously hopeless, an abuse of process because it is groundless, and vexatious as there were no reasonable grounds and that it had no prospect of success. The Respondent said also that the particulars of claim were misconceived because the allegations therein fall outside the Tribunal's jurisdiction in this matter.
4. The Complainant filed a document called "Application for leave to withdraw", which he clearly intended as a rebuttal of the section 75 application and I have treated it that way.
5. Most of the issues raised in that document[5] are dealt with elsewhere in these reasons for decision. There were a few preliminary issues which I discuss so that the Complainant understands they were not ignored.
6. The Complainant submitted that the Respondent's application under section 75 of the VCAT Act should be dismissed (as I understood his "application for withdrawal"), because the Respondent's name as set out in the section 75 application form was incorrect in using the expression "Limited" instead of "Ltd". That difference of expression is not a substantial one and the Complainant's submission is incorrect.
7. The Complainant also submitted that the Respondent's section 75 application should have been rejected as it was unsigned. The Victorian Civil and Administrative Tribunal (VCAT) accepts applications made electronically.[6] There is no VCAT Rule requiring personal signatures on applications, although signature is often sought as a useful way of ensuring that a Complainant understands their obligations. In this case, the application came from a firm of solicitors and there was no need to reject it for lack of a signature.
8. The Complainant mentioned that he was not given a fair hearing at an earlier directions hearing when I ordered that the Respondent should file and serve any section 75 application by a particular date. However, the Respondent was entitled to make an application under section 75 of the VCAT Act and since it has done so, VCAT is obliged to determine the application.

THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL'S JURISDICTION

1. I will address each of the Respondent's submissions, but begin with the last, that the Complainant's particulars go outside VCAT's jurisdiction. That jurisdiction is set out in section 74 of the HRA. Relevantly, the section provides:
   • (1) The Tribunal may hear a complaint-
     • (a) referred to it by the Health Services Commission under sections 51, 57, 63 or 65;
2. The referral in this matter was made under section 51.
3. VCAT's jurisdiction is derived wholly from statute. It has no inherent jurisdiction and, although its jurisdiction is extensive, "[it] is precisely defined in the various enabling enactments."[7] Other legislation contains clauses similar to section 74(1) of the Health Records Act 2001, limiting VCAT's jurisdiction to matters referred to it by some other body.[8]
4. Youd Homes v Milford Hall Pty Ltd & Anor [9] was a case brought under the Equal Opportunity Act 1995 where the Applicant sought leave to amend her particulars of complaint. Under that (now repealed) Act, complaints were referred to VCAT in a similar way to referrals under the Health Records Act 2001, which is the enabling enactment in this case. In refusing the application in Youd Deputy President McKenzie, at paragraph 8, said:

The power to amend documents given to VCAT must be read in the light of the enabling enactment which confers jurisdiction on the Tribunal in the anti-discrimination area. That enactment is the Equal Opportunity Act. The implication of the scheme of that Act on that power of amendment of documents, is that a fresh series of allegations which are not in the original complaint, and cannot in some way be extrapolated from it, ought not to be brought in by amendment at the VCAT stage, but ought properly to be the subject of a fresh complaint.

There are some cases where the Tribunal has allowed a complaint to be amended and further particulars to be filed, where it is simply a question of re-characterising in some legal way, facts that are already in the original complaint, or where the original complaint contains an allegation of a continuing pattern of contravention...and all that is being done is to add to that pattern.

1. As Senior Member Megay said in ZGP v Monash Health[10], referring to Youd, the result of the legislation, and the cases on the point, is that VCAT can only entertain the complaint referred to it, and that the only permissible amendment to that complaint needs to fall within the exception described by Deputy President McKenzie in Youd.
2. The HRA sets up a procedure for complaints about health information. A complaint is first made to the HCC and only if the Complainant is dissatisfied with the result at the HCC, can the Complainant then ask for the complaint to be referred to VCAT[11].
3. The complaint referred to VCAT by the HCC is set out in an online complaint form attached to the letter, dated 18 September 2017, from the HCC referring the complaint to VCAT. Under the heading "About your complaint - complaint summary", the form says:

#Not providing documents as summarised in the emails on p.4 of the attachment, as detailed in emails dated 23 March 2017, 7 March 2017, 14 December 2016 and November 2016.

#Not providing documents as summarised in the emails of the attachment dated 19 May 2017, 10 April 2017 and 19 March 2017.

1. Under the heading "What do you want to happen", the form says:

Corrections to documents as requested and provision of the documents as requested.

1. I conclude that the complaint is about obtaining access to documents and about having corrections made to documents. That is how the HCC treated it. The referral from the HCC indicates that the Complainant appears to rely on section 25 and Health Privacy Principle 6 of the HRA.
2. In his particulars, the Complainant alleges that there were errors in a letter, dated 9 August 2017, which he received from the HCC. Again, as Senior Member Megay said in ZGP v Monash Health, this proceeding is not a review of the processes in the office of the HCC and VCAT has no power to review whether the HCC responded correctly to MTD's original complaint or whether the Commissioner's understanding of it accorded with the Complainant's own view of it[12].
3. The particulars of claim include many allegations not covered by that original complaint to the HCC. For example, they allege that the Respondent has breached the Guardianship and Administration Act 1986, that YTA's information was not properly collected, stored, transferred or handled, that the information was disclosed without consent in breach of HPP 2.2, and that the Respondent did not return the relevant records to the Department of Health and Human Services (DHHS) as it had claimed. The particulars set out 11 kinds of orders that the Complainant seeks, including orders that the Respondent remove documents relevant to other clients from YTA's files and that the Respondent remove YTA's information from all their computers, USBs and other electronic storage devices.
4. At the hearing, the Complainant argued that the issues raised in his particulars were related to his complaint to the HCC, in that all issues were about his son's health records.
5. A number of emails were attached to the complaint and were referred on from the HCC with the complaint. The emails mention other issues which were apparently current between the Complainant and the Respondent at the relevant time. At that time, the Respondent was handing over to a new service provider. However, all of the attachments refer (to some degree) to the requests for access to documents and to the request for correction of documents.
6. Two of the emails attached to the complaint mention the question of what will happen to YTA's documents when the Respondent ceases to be his service provider. They are attachment B1 and attachment E1 to the complaint.
7. Since these documents were attached to a complaint form said to be about access to documents and about making corrections to documents, the inclusion of other topics in the attached emails appears incidental. The mere fact of their inclusion in the attachments does not change the character of the complaint set out in the complaint form. They concern collection, storage, handling and transfer or disclosure of documents.
8. Had those extra complaints been made to the HCC, the HCC may well have treated them differently to the complaint which was referred to VCAT. Those "new" complaints are not merely a re-characterising of the original complaint. They raise new issues about YTA's records.
9. Issues not covered by the original complaint are outside VCAT's jurisdiction. Particulars of claim which go beyond jurisdiction are, in my view, misconceived. Accordingly, those parts of the particulars of claim which deal with new issues must be struck out, pursuant to section 75 (1)(a) of the VCAT Act.
10. Turning to the detail in the particulars, it is necessary to consider each paragraph, because some paragraphs are about the original complaint and need not be struck out for lack of jurisdiction.
11. Paragraphs 1.1 to 1.11 are not struck out. They deal with surrounding circumstances and make no allegations.
12. Paragraphs 1.12 to 1.15 inclusive are struck out. They deal with the possible transfer of YTA's information to a new service provider and whether there was consent to the transfer. That issue is not part of the original complaint.
13. In paragraph 1.16, all the material following and including the words "However there are several errors..." is struck out. These words allege that the HCC's notice of 10 August 2017 was incorrect. Those allegations are not relevant to the complaint. The Tribunal is not reviewing the actions of the HCC. If the Complainant is dissatisfied with the way his complaint was referred to VCAT, he should take that up with the HCC. The material in paragraph 1.16 before the words "However there are several errors..." is not struck out because it merely relates background information.
14. Paragraph 1.17 is not struck out. It mentions circumstances which may be relevant to the original complaint.
15. Paragraph 2.1 is struck out. It deals with collection, handling, storage and transfer of health records. These are not covered by the original complaint.
16. Paragraph 2.2 is struck out. It deals with whether there was consent to transfer of information. Thais was not covered by the original complaint.
17. Paragraph 2.3 is struck out for the same reason as paragraph 2.2.
18. In paragraph 2.4, the material before the words "Also it should be noted" (but not those words themselves) is struck out for the same reason as for paragraph 2.2. The words after and including "Also it should be noted" are not struck out.
19. Paragraph 2.5 is struck out, because it deals with whether there was consent to the transfer of documents. That was not part of the original complaint.
20. Paragraph 2.6 is struck out for the same reason as paragraph 2.5.
21. In paragraph 2.7, only the allegation numbered "iii" is struck out. Most of paragraph 2.7 refers to the original complaint, but allegation "iii" is about the providing of document to another party. That was not part of the original complaint.
22. In each of paragraph 3.1 and 3.2, the item marked "i" is struck out. These items refer to alleged breach of the Guardianship and Administration Act 1986, which is not within the Tribunal's jurisdiction in this proceeding. Otherwise, the material in these paragraphs appears to be related to the original complaint.
23. In paragraph 3.3, items "i", "iv", "vii", "viii", "x" and "xi" are not struck out. These appear to be related to the original complaint. However, items numbered "ii", "iii", "v", "vi" and "ix" are not related to the original complaint and are struck out.
24. Genuine concern for YTA's rights moved the Complainant to raise the issues in his particulars. That was clear to me at the hearing. He said his son's records had been "treated with complete contempt". My decision to strike out part of the particulars is not a comment on the value or merit of his other concerns about YTA's records. However, VCAT has no power to deal with them in this proceeding.

1. The Respondent's other submissions must now be considered in relation to the remaining particulars, namely paragraphs 1.1 to 1.11, the first part of paragraph 1.16, paragraph 1.17, the second part of paragraph 2.4, the remaining parts of paragraphs 2.7, 3.1 and 3.2 and the following items from paragraph 3.3: i, iv, vii, viii, x, and xi.
2. The Respondent's other submissions in support of its application for the complaint to be dismissed were, in summary, as follows:

1. The complaint was about access to documents and corrections to documents, whereas the HRA deals with "information", rather than documents. 2. The Respondent could not have complied with the request for access to information when it was made for a number of reasons - because the request did not sufficiently identify the documents sought or specify the form of access sought; and because the Respondent handed over management of the facility where YTA lives to another service provider before the 45 days allowed by the HRA had elapsed. Further, the Respondent said, by the date the Complainant complained to the HCC, the Respondent had handed over its files, including YTA's document to DHHS or to the new service provider.

1. The corrections sought by the Complainant to YTA's files have been made.

1. The Respondent now has no power to make any corrections to documents of YTA. 2. There is no point in the Complainant seeking a copy of records or correction of records from the Respondent now.

DOES THE HEALTH RECORDS ACT 2001 COVER THE COMPLAINT

1. The Respondent sought dismissal of the complaint on the ground that it was about a request for documents and a request for the correction of documents, whereas section 25 of the HRA and Health Privacy Principle (HPP) 6.5, which I agree are the relevant provisions of the HRA, refer to "health information", rather than "documents".
2. Since information is often contained in a document, I was not persuaded that a request for access to or correction of documents could not be treated as a request about information. The HRA, it is true, refers to "information", not to "documents" but logically documents must often be involved. For example, under section 28(1)(b) of the HRA, a person may exercise a right of access to information by receiving a copy of the information. A copy of information is likely, in my view, to be provided in the form of a document, whether in an electronic or a hard copy. In this case, it appears from the references both parties made to files and folders that the information was actually in documents.
3. Further, as the Complainant submitted, section 5 of the HRA provides that an organisation holds health information if the information is contained in a document.

COULD THE RESPONDENT HAVE COMPLIED WITH THE REQUEST FOR ACCESS TO DOCUMENTS

1. The Respondent also submitted that the complaint about access to documents should be dismissed on the ground that the request for documents did not comply with the HRA part 5, in particular section 33(3). Section 33(3) provides:

(a) state the name and, unless it is already known to the organisation, the address of the individual; and

(b) sufficiently identify the health information to which access is sought; and

(c) specify the way in which the individual wishes to have access, being a way referred to in section 28; and

(i) a request by an authorised representative within the meaning of section 85(6); or

(ii) a request by a legal representative of a deceased individual.

1. The Respondent contended that the request for documents did not sufficiently specify the documents sought or the means of access sought, so that it was unable to comply with the request. I note that the original complaint referred to a number of emails from the Complainant, all attached to the complaint, in which the Complainant sought documents. There were also some replies from the Respondent included with those emails.
2. At the hearing before me, no evidence was given for the Complainant. He had an opportunity to make submissions about the section 75 application and to ask questions of the witnesses brought by the Respondent. However, he produced no evidence of his own.
3. It may be an oversight that the Complainant has not filed any witness statement. Had he done so, it might have been possible to determine, at the hearing before me, the facts relevant to the question of whether the request for documents complied with section 33.
4. The Respondent, no doubt, would say that the Complainant should have organised his evidence so as to have that material available. However, in the circumstance that the Complainant does not have a legal representative to ensure that matters are organised appropriately, I am not prepared to dismiss the complaint that the Respondent failed to respond to a valid request for access to information. That should be determined after the Complainant has had an opportunity to give evidence about his request and about how the Respondent dealt with it.
5. The Respondent also submitted that the time available to it to respond to the request for information was shorter than the 45 days allowed by section 34 of the HRA, because on 16 April 2017, that is, 28 days after the request was first made, the Respondent relinquished running the service which included services to YTA.
6. Further, the Respondent said that since it ceased running the service it has had no "live" copy of records concerning YTA, but only an archived copy of what was returned to DHHS or handed on to the new service provider.
7. If the relevant facts are established at a hearing, these may be defences to the claim that the Respondent failed to comply with the requirements of the HRA to grant access. I was not satisfied that these facts were established to the extent necessary for me to be satisfied that the complaint is "absolutely hopeless". While the Respondent referred to its submissions, the Complainant did not have an opportunity to cross-examine anyone about these assertions or to present his own evidence about them.
8. Accordingly, the complaint that the Respondent failed to grant access to YTA's health information is not struck out.

HAS THE RESPONDENT CORRECTED THE DOCUMENTS OR DOES IT LACK POWER TO DO SO

1. The Respondent submitted that it had already made the correction to YTA's documents which the Complainant sought. The corrections were made in November 2016, the Respondent said. At the hearing before me, evidence was given by Mark Malia, who had been in charge of operations for the Respondent at the relevant time and by Nicola Steele, the Respondent's general manager in Victoria. The Complainant had an opportunity to cross-examine both of them. However, while each of them was able to provide some information relevant to whether the corrections had indeed been made, they were not able to establish that fact. The evidence showed there was another person involved who was not at the section 75 hearing.
2. Since that hearing, a further witness statement about whether the corrections were made has been filed. The Complainant should, if he wishes, have an opportunity to cross-examine that witness.
3. Further, the Complainant did not, in my view, establish that the correction sought was one which the Respondent was obliged to make. It may be that this is not contentious; however, any evidence about that at the section 75 hearing was either slight or non-existent.
4. Accordingly, the complaint that the Respondent failed to make corrections to YTA's health information in breach of the HRA is not struck out.

WHETHER THE RESPONDENT CAN NOW DO WHAT THE COMPLAINANT ASKS

1. The Respondent also submitted the complaint should be dismissed because it now has no power to deal with YTA's records, either by granting access or making a correction to them. Also the Respondent said, there is no point in the Complainant seeking that it grant access or make corrections to those documents.
2. Section 45 of the HRA provides that an individual may complain to the HCC about an interference with the individual's privacy. The Complainant has done so. There is nothing in the HRA to indicate that the act or practice complained of must be ongoing. So even if the Respondent no longer has access to YTA's records, there may still be issues for VCAT to decide.
3. Section 78 lists what VCAT can decide in relation to a complaint referred to it. It can find a complaint proven and make related orders, including for compensation, or it can find it proven and decline to take any further action in the matter. Even if the Respondent now has no control of YTA's records, VCAT could find that a breach of the HRA and Privacy Principles had or had not occurred in the past in relation to those records and make orders (or not) accordingly.

1. The particulars of claim also referred to the Charter of Human Rights and Responsibilities Act 2006 (the Charter). In paragraphs 2.4, 2.5 and 2.6 the particulars alleged that the Respondent breached the Charter. Paragraphs 3.1 and 3.2 sought findings that the Respondent had breached the Charter.
2. Section 39(1) of the Charter says

If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

1. Bell J's decision in Goode v Common Equity Housing[13] made it clear that, in respect of an act or decision of a public authority such as the HCC, where an Applicant may seek relief or remedy for unlawfulness under one statute (such as here the Health Records Act 2001) then a claim for relief or remedy for unlawfulness may also be made under the Charter.
2. I have found that in this proceeding, VCAT lacks jurisdiction to deal with a number of issues raised by the Complainant. Paragraphs 2.5 and 2.6 have been entirely struck out. In those paragraphs, the Complainant claims that the allegations there are also breaches of his son's rights under the Charter. Since VCAT lacks jurisdiction to deal with those issues under the HRA, section 39 does not give VCAT jurisdiction to deal with them under the Charter. There is no relief or remedy available under the Charter in relation to those issues.
3. However, in relation to those particulars of claim which have not been struck out, the references to the Charter also remain. Those are in paragraphs 2.4, 3.1 and 3.2.

1. For all these reasons, the complaint is not struck out or dismissed summarily. However, the particulars of complaint are struck out in part, as I have indicated.
2. The Complainant says the issues he has raised should proceed to hearing. I have found that there is insufficient reason to strike out or dismiss his original complaint, so there will be a hearing, but only about the issues raised in that original complaint.
3. As I have said, a Respondent who seeks to have a proceeding struck out or dismissed faces a high threshold - they must show that the case is absolutely hopeless. Here, in regard to the original complaint, there are disputed questions of fact about which evidence has not yet been heard. Accordingly, while the Respondent's application succeeds in part, the complaint is not entirely struck out.
4. For the Complainant, this indicates nothing about the ultimate outcome which might be reached at a final hearing of his complaint. It is not, as VCAT has said in other cases, a "de facto validation of the substance" of the complaint[14].
5. The hearing date has been vacated. The proceeding is now referred to a directions hearing to set a timetable for the next steps in the proceeding.

[1] The Complainant, MTD, and his wife are plenary guardians for their son YTA. They are joint and several guardians by the order made under the Guardianship and Administration Act 1986 on 10 August 2015, which was attached as an "exhibit 1" to the Complainant's particulars of claim.

[2] (1998) 1 VR 102

[3] Towie v Victoria (2008) 19VR640; 2008 VSC 177 at paragraph 29

[4] Campagnolo v Benalla and District Football League Inc [2009] VSC 228 at paragraph 41

[6] See Rule 4.05 of the VCAT Rules 2008

[7] Roads Corporation v Maclaw No 469 [2001] VSC 435; (2001) 19 VAR 169 at paragraph 19

[8] See for example the Privacy and Data Protection Act 2014 section73 and the former Equal Opportunity Act 1995 section 134

[9] [2003] VCAT 1256

[10] [2015] VCAT 1103 at paragraph 28

[11] This procedure is set out in Divisions 2, 3 and 4 of Part 6 of the Health Records Act 2001

[12] See ZGP v Monash Health, cited above, also at paragraph 28

[13] [2014] VSC 585 at paragraph 39

[14] Morrison v Stonnington CC [2011] VCAT 1325 at paragraph 17