OGBONNA -v- QANTAS AIRWAYS LIMITED [2019] WASCA 146 (20 September 2019)

I, Celestine Ogbonna hereby consent and authorise Dr Dawn Barker to provide an authorised representative of Qantas Ground Services or Qantas Airways Ltd ('Qantas') or medical officer as the Qantas nominated doctor with any information relating to my medical visit.

1. The second was a consent form provided by Dr Barker (second consent form). It referred, in effect, to Dr Barker having been asked to undertake an assessment of Mr Ogbonna at the request of a 'Referring Party', who, in this context, was Qantas Ground Services. In that form, Mr Ogbonna said he had read the 'Independent Medical Assessment Information Sheet and Consent Form' and that he:[8]

(b) [understood] that the usual Doctor: Patient relationship does not arise in this case;

(c) agree[d] to participate in the assessment;

(d) consent[ed] to a report being provided to the Referring Party.

1. On 29 September 2015, Dr Barker sent to Qantas Ground Services a report (first report), which stated:[9]

I explained to [Mr Ogbonna] that this interview was undertaken for the purpose of performing a fitness for work assessment, and was not intended for conventional psychiatric assessment and treatment. [Mr Ogbonna] consented to me submitting a report to you.

1. Dr Barker's report also expressed her view, based upon her assessment and information provided by Qantas Ground Services in its referral letter, that Mr Ogbonna was not then fit for his normal full-time duties.[10]
2. Qantas Ground Services arranged for Mr Ogbonna to attend upon Dr Barker again on 3 December 2015 and requested a further report. Mr Ogbonna did not attend that appointment.[11] The referral letter from Qantas Ground Services, dated 2 December 2015, gave an account of the company's interactions with Mr Ogbonna subsequent to Dr Barker's first report.[12]
3. Dr Barker sent to Qantas Ground Services a report dated 8 December 2015 (second report). In this report, she said that she 'would endeavour to answer some of your questions based on the further information that has been provided by ... Qantas'. She also said that she believed that Mr Ogbonna 'should be engaged in further assessments with his GP and a psychiatrist'. Dr Barker repeated her opinion that Mr Ogbonna was not currently fit for his normal full-time duties in a security sensitive work area and said that that opinion was unchanged from her previous report. She referred to further incidents of which she had been informed by Qantas Ground Services.[13]
4. Qantas Ground Services arranged a further appointment for Mr Ogbonna with Dr Barker on 28 January 2016. Mr Ogbonna did not attend that appointment either. Dr Barker sent a further report to Qantas Ground Services dated 2 February 2016 (third report).[14] In this report, Dr Barker confirmed that her opinion remained the same as in her second report. She referred to her original assessment on 24 September 2015 and the subsequent information provided to her by Qantas.[15] That information, provided by letter from Qantas Ground Services dated 22 January 2016, included accounts of recent interactions between the company and Mr Ogbonna.[16]

1. In his substituted statement of claim filed 30 August 2018, Mr Ogbonna alleged, in effect, that by providing her second report and third report to Qantas Ground Services, Dr Barker intentionally or recklessly intruded on his privacy. He pleaded that Dr Barker was, accordingly, liable for breach of privacy pursuant to the Privacy Act 1988 (Cth) and other related statutes. Mr Ogbonna's case was, in substance, that whilst he had consented to the provision of the first report, dated 29 September 2015, he had not consented to the provision of the second report and the third report.[17]
2. In the course of the application for summary judgment, Mr Ogbonna's oral submissions were primarily directed to the provisions of the Mental Health Act 2014 (WA). In particular, he claimed that Dr Barker had contravened s 576(2) of that Act. Section 576 of the Mental Health Act provides as follows:
   1. Confidentiality

relevant written law means any of these written laws -

(a) this Act;

(b) the Mental Health Act 1996;

(c) the Mental Health Act 1962.

(2) A person must not (whether directly or indirectly) record, disclose or use any information obtained by the person because of -

(a) the person's office, position, employment or engagement under or for the purposes of a relevant written law; or

(b) any disclosure made to the person under this Act, including in response to a request made under section 448(1), 572(3), 573(3) or 574(3).

Penalty: a fine of $5,000.

(3) Subsection (2) does not apply in relation to the recording, disclosure or use of statistical or other information that is not personal information.

(4) A person does not commit an offence under subsection (2) if the recording, disclosure or use of the information is authorised under section 577(1).

1. Mr Ogbonna also referred to s 16 and s 17 of the Mental Health Act, which set out the requirements for informed consent and who can give informed consent. Section 16 of the Mental Health Act provides:

(1) A person gives informed consent to the provision of treatment to a patient (whether he or she or another person is the patient) only if -

(a) the requirements of this Division in relation to making a treatment decision about the provision of the treatment are satisfied; and

(b) the consent is given freely and voluntarily.

1. Treatment is defined in s 4 of the Mental Health Act to mean:

[t]he provision of a psychiatric, medical, psychological or psychosocial intervention intended (whether alone or in combination with one or more other therapeutic interventions) to alleviate or prevent the deterioration of a mental illness or a condition that is a consequence of a mental illness, and does not include bodily restraint, seclusion or sterilisation[.]

1. Mr Ogbonna also relied on the equitable breach of confidence doctrine in his written submissions.[18]

The primary decision Privacy Act

1. The judge said that the Supreme Court does not have the jurisdiction to determine a claim for breach of the provisions of the Privacy Act. His Honour said that the provisions of that Act provide that the remedy for a person who alleges a breach of that Act is to complain to the Information Commissioner, and after such complaint has been determined, to take action in the Federal Court or Federal Circuit Court.[19]
2. The judge acknowledged that pt VIII of the Privacy Act provided for the extension of certain obligations of confidence and for a right of action in that regard. His Honour said that that part only applied to obligations arising in certain circumstances which did not apply in the case.[20]

1. The judge said s 576 of the Mental Health Act has no application to any relevant information obtained by Dr Barker or her use of such information. His Honour said that Dr Barker did not obtain any information because of any office, position, employment or engagement under or for the purposes of any of the relevant written laws, being the Mental Health Act 2014 (WA), the Mental Health Act 1996 (WA) and the Mental Health Act 1962 (WA).[21]
2. The judge said s 16 and s 17 of the Mental Health Act do not give rise to a cause of action and do not apply to the current case. His Honour found that Dr Barker did not provide any 'treatment' as defined in s 4 of the Mental Health Act to Mr Ogbonna. His Honour found that Dr Barker's attendance upon an assessment of Mr Ogbonna was for the purpose of assessing his fitness to work, and that she did not provide any psychiatric, medical, psychological or psychosocial intervention.[22]

1. The judge said (without challenge in this appeal) that there were three essential elements to establish breach of confidence:[23]
   1. The information must have a necessary quality of confidence.
   2. The information must have been imparted in circumstances importing an obligation of confidence.
   3. There must be an unauthorised use of the information.
2. The judge found that Mr Ogbonna's claim in equity failed. His Honour said that Mr Ogbonna consented to Dr Barker using the confidential information imparted to her by him for the purpose of providing reports to Qantas Ground Services.[24]
3. The judge said that by Mr Ogbonna's written consent of 24 September 2015, he authorised Dr Barker to provide Qantas Ground Services 'with any information relating to [his] medical visit'. His Honour said that there was no express or implied restriction that Dr Barker could only use the information for the purposes of a single report.[25]
4. The judge also said that by Mr Ogbonna's consent on Dr Barker's consent form, he consented 'to a report being provided to the Referring Party', being Qantas Ground Services. His Honour said that the reference to 'a report' means any report relating to the proposed assessment, not just a single report.[26]
5. The judge said Dr Barker's second report and third report referred to additional information provided by Qantas Ground Services, but not to any additional information provided by Mr Ogbonna.[27]

1. Mr Ogbonna relies upon four grounds of appeal, which are to the effect that the judge:
   1. Erred in law and fact on the 'Standard of Review of the Facts of the Matter'.
   2. Erred in law and fact in finding 'that Dr Barker did not provide any psychiatric, medical, psychological or psychosocial intervention to [Mr Ogbonna] as set out in the definition'.
   3. Erred in fact in finding 'that "a report" in the context of the consent form means any report relating to the proposed assessment, not a single report'.
   4. Erred in law and fact in finding that 'there was no breach of confidence regarding information provided by [Dr Barker] in response to Qantas Ground Services' referral letters'.

Mr Ogbonna's written submissions Ground 1 - standard of review

1. Mr Ogbonna submitted that the judge's 'failure to apply a more rigorous standard of review led to a substantial miscarriage of justice'. Mr Ogbonna submitted that cases involving common law rights or constitutional principles are subjected to 'high scrutiny'.[28]
2. Mr Ogbonna submitted, in effect, that the judge failed to address whether there was a contravention of the professional code of conduct by Dr Barker in failing to obtain Mr Ogbonna's consent before releasing his personal information in the second report and the third report. Mr Ogbonna submitted that the judge failed to address whether Mr Ogbonna's privacy was breached by Dr Barker's release of his personal information to Qantas Airways and Qantas Ground Services.[29]
3. Mr Ogbonna submitted that the Royal Australian and New Zealand College of Psychiatrists Code of Ethics 'protects individual rights and ensures professional accountability from an ethical and legal position', and so 'helps to prevent professional misconduct'. Mr Ogbonna submitted that Dr Barker breached this Code of Ethics in that she failed (1) to maintain the privacy and confidentiality of patients (principle 4), (2) to seek valid consent from patients before providing a report (principle 5) and (3) to uphold the integrity of the medical profession (principle 10). Mr Ogbonna submitted that Dr Barker engaged in professional misconduct in writing adverse and defamatory medical reports, in failing to obtain Mr Ogbonna's consent, forming opinions without examining Mr Ogbonna and in passing information to Qantas Ground Services and Qantas Airways.[30]
4. Mr Ogbonna submitted that Dr Barker breached his privacy in obtaining and disclosing his personal information without consent.[31]
5. Mr Ogbonna submitted that Dr Barker 'did not follow due diligence' in her report dated 8 December 2015, by 'confirming in writing from Qantas Ground Services'. He submitted that, in effect, 'a full investigation into his allegations' is necessary, as it is 'very important to ensure that there is no basis to his allegations before diagnosing him with any conditions'.[32]
6. Mr Ogbonna submitted that Dr Barker did not dispute that his personal information was published, and submitted that she contravened the Royal Australian and New Zealand College of Psychiatrists Code of Ethics and breached Mr Ogbonna's privacy.[33]
7. Mr Ogbonna concluded this section of his submissions as follows:[34]

If the relevant common law precedents and RANZCP code of ethics were applied to the facts of the matter, with respect to Dr Barker [sic] unauthorised publication and release of [Mr Ogbonna's] personal information to Qantas Ground Services, then the decision outcome would certainly have been different and in favour of [Mr Ogbonna].

1. In essence, Mr Ogbonna submitted that the judge erred in finding that Dr Barker did not provide any psychiatric, medical, psychological or psychosocial intervention for the purposes of s 4 of the Mental Health Act. Mr Ogbonna referred to the second consent form dated 24 September 2015, which included the following:[35]

Occasionally, during the course of performing an Assessment, [Dr Barker] identifies a clinical issue which requires addressing. In the event that this arises, [Dr Barker] has a professional obligation to ensure that your treating Doctor is made aware of her findings. Should this occur in your case, [Dr Barker] will advise you of her finding and she will also notify your General Practitioner (or other relevant treating Doctor), of the need for further follow up.

1. Mr Ogbonna also submitted that '[p]sychiatric intervention is [the] same as early intervention'. He submitted that this is described by 'Health Victoria' as 'the process of providing specialist intervention and support to a person who is experiencing or demonstrating any of the early symptoms of mental illness'. Mr Ogbonna submitted, in effect, that if Dr Barker identified a mental health issue, she would intervene to address it by bringing it to the attention of the 'treating General Practitioner, whose treating plan would be based on Dr Barker's diagnosis and medical recommendations'.[36]
2. Mr Ogbonna submitted that the fitness for work assessment performed by Dr Barker was effectively a psychiatric assessment and the purpose of it was to determine whether Mr Ogbonna could perform his duties safely and if not, to 'diagnose the prevalent mental health issues including relevant treatment'. He submitted that the purpose of the assessment was to provide psychiatric, medical, psychological or psychosocial interventions.[37]
3. Mr Ogbonna submitted that the 'WA Health Consent to Treatment Policy (2016)' defines 'treatment' consistently with s 4, s 16 and s 17 of the Mental Health Act, as to include 'any treatment, procedure or other health care'. Mr Ogbonna submitted, in effect, that the fitness for work assessment fits this definition.[38]

1. Mr Ogbonna submitted that the judge erred in finding that the first consent form of 24 September 2015 was not limited to a single report. Mr Ogbonna submitted that the judge ignored that the second report and the third report were in fact published without Mr Ogbonna's consent, as he did not attend the second and third scheduled appointments, which was required for him to give consent. He submitted that he consented to information from his one-off medical visit to Dr Barker being released to Qantas Ground Services, but he only consented to this first and only visit.[39]
2. Mr Ogbonna submitted that the judge erred in interpreting the second consent form, as in its context, 'a report' meant a single report published with respect to Mr Ogbonna's attendance upon Dr Barker on 24 September 2015. He cited the Macquarie Dictionary definition of 'report' as 'an account brought back or presented; a statement submitted in reply to inquiry as the result of investigation, or by a person authorised to examine and bring or send information'. He submitted 'report' is singular while 'reports' is plural. He submitted that it is impossible for the words 'a report' to represent multiple reports.[40]
3. Mr Ogbonna submitted, in effect, that the judge's decision should have been based on the Royal Australian and New Zealand College of Psychiatrists Code of Ethics. He submitted that principle 5 of the Code of Ethics says that a psychiatrist shall seek valid consent from their patients before, relevantly, the provision of a report for legal or other purposes.[41]
4. Mr Ogbonna submitted that he signed the second consent form on 24 September 2015 because the information on it 'clearly explained what would happen ... after the psychiatric assessment [had] taken place'.[42] The explanation in that consent form[43] was that after assessment, a report would be provided to the referring party, and Dr Barker might require him to undergo further diagnostic tests, and, if she did, he would be asked to consent to any further testing. He submitted that the second consent form made it clear that he would be required to consent to further diagnostic assessment. In this context, Dr Barker's further assessments without his participation demonstrated 'medical malpractice' on Dr Barker's part.[44]
5. Mr Ogbonna submitted that new information was provided in Dr Barker's second report and third report, which required his attendance for her to be able to provide those reports.[45]

1. Mr Ogbonna submitted that the judge erred by wrongly assuming that because Dr Barker's second report and third report did not contain any additional information provided by Mr Ogbonna, there was no breach of confidence.[46]
2. Mr Ogbonna submitted that Dr Barker published her second report to Qantas Ground Services without assessing Mr Ogbonna or obtaining his consent.[47]
3. Mr Ogbonna submitted that Dr Barker provided Qantas Ground Services with personal information about him which was 'adverse and defamatory' without his consent. He submitted that Dr Barker's opinions about Mr Ogbonna were personal information that were 'improperly or surreptitiously obtained' in circumstances of confidence and released to Qantas Ground Services without his consent. He submitted that as Dr Barker is a psychiatrist, she is in a position of 'trust and confidence'.[48]
4. Mr Ogbonna submitted that Dr Barker's opinions about him were personal information pursuant to s 4(1)(a) of the Mental Health Act and cl 1 of the glossary in Freedom of Information Act 1982 (WA). He submitted that her opinions also match the definition of personal information under the Privacy Act as 'information or an opinion about an identified individual ... whether the information or opinion is true or not'.[49]
5. Mr Ogbonna submitted that Dr Barker knew the importance of consent because of the sensitive information she handles. He submitted that her first report, for which he gave consent, was 'speculative', while her second report and third report were 'confirmatory'. He alleged that she did not follow due diligence to verify Mr Ogbonna's allegations relevant to the medical assessment, and that she did not keep records of her communication with Qantas Ground Services. He submitted that 'there is no doubt Dr Barker contravened principle 5 of the [Royal Australian and New Zealand College of Psychiatrists Code of Ethics] by not obtaining Mr Ogbonna's consent'.[50]
6. Mr Ogbonna submitted that his case below relied on the common law and the Royal Australian and New Zealand College of Psychiatrists Code of Ethics, not the Mental Health Act. He said that he used the Mental Health Act to demonstrate the seriousness of Dr Barker's misconduct, which he said was 'deplorable'. Mr Ogbonna referred to cases which, he said, demonstrate that the right of privacy is protected with a duty of confidence.[51] He cited Australian Broadcasting Corporations v Lenah Games Meat Pty Ltd,[52] as supporting an action for breach of confidence to protect private information being disclosed, and submitted, in effect, that had the judge applied the principles in that case, he would have found that Dr Barker breached her duty of confidence towards him.[53]

1. Mr Ogbonna also handed up, at the commencement of the hearing of the appeal, an 18‑page document referring to aspects of the evidence and emphasising a number of the arguments that he made in his written submissions filed as part of his appellant's case.

1. There is no merit in ground 1. The only relevant standard the judge was required to apply was proof on the balance of probabilities, bearing in mind that the relevant context was a defendant's summary judgment application.[54]
2. The relevant principles governing the exercise of the court's power to grant summary judgement were summarised by this court in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd:[55]

Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55].

1. In this case, there was no dispute as to the terms of the consent forms signed by Mr Ogbonna on 24 September 2015. The only real question on which Dr Barker's liability turned was whether, on their proper construction, those two consent forms authorised the release of information provided by Mr Ogbonna to Dr Barker in her second report and third report. If they did, then Dr Barker would have an unassailable defence to Mr Ogbonna's action against her. For the reasons explained by the judge, and elaborated upon below, Mr Ogbonna's construction of the consent forms was not reasonably arguable. The consent forms clearly authorised the release of information provided by Mr Ogbonna to Dr Barker on 24 September 2015 in the second report and third report. In these circumstances, the action against Dr Barker was doomed to fail, and the judge correctly concluded that the high threshold for granting summary judgement was met.
2. It should also be noted that all of Mr Ogbonna's arguments under ground 1 have, as their central premise, that Dr Barker was precluded by obligations of confidentiality from providing her second report and third report to Qantas Management Services. In other words, the arguments in support assumed, rather than demonstrated, any error on the part of the judge.

1. Ground 2 has no merit for two reasons. First, the effect of the passage in the second consent form referred to in [34] above, is that Dr Barker would inform Mr Ogbonna's treating doctor of any clinical issue which arose in the course of performing her assessment for Qantas Ground Services. It indicates that (1) Dr Barker is not, and was not, Mr Ogbonna's treating doctor, and (2) any medical intervention to deal with any such issue would be undertaken, not by Dr Barker, but by Mr Ogbonna's treating doctor/s.
2. The second reason is that the point goes nowhere, in any event. Even if Mr Ogbonna's contentions in this ground were correct, Mr Ogbonna would still need to demonstrate that the judge erred in finding that Dr Barker had a good defence on the merits to Mr Ogbonna's claim for breach of confidence. The resolution of that question ultimately, in this case, turns upon the proper construction and application of the two consent forms signed by Mr Ogbonna.

1. Ground 3 has no merit for two reasons. First, Mr Ogbonna's first consent form (see [5] above) authorised Dr Barker to provide Qantas 'with any information relating to [Mr Ogbonna's] medical visit'. The subsequent reports, insofar as they disclosed information relating to his 'medical visit' on 24 September 2015, were made in accordance with Mr Ogbonna's written authority. To the extent that the other reports referred to information provided by Qantas Ground Services, neither of Mr Ogbonna's two consent forms precluded Dr Barker from using information provided by the 'Referring Party'.
2. Secondly, in the second consent form (see [6] above), the words 'consent to a report being provided' to (relevantly) Qantas Ground Services, in the context of the form as a whole, evidently refer to a report using information provided to Dr Barker in the course of her assessment. The phrase 'consent to a report' in this context means, objectively, consent to any report provided to Qantas Ground Services pursuant to Mr Ogbonna's participation in the assessment on 24 September 2015. It cannot reasonably arguably be read to mean consent to a single report only. The judge was correct so to find.

1. Mr Ogbonna's arguments in ground 4 are, ultimately, not materially different from those raised in grounds 1 ‑ 3. For the reasons given in grounds 1 ‑ 3, the arguments have no merit. Ground 4 should also, accordingly, be dismissed. The matters elaborated on in the 18‑page document and adopted by Mr Ogbonna also do not advance, in any material way, the arguments raised by grounds 1 ‑ 4.

1. No error has been established in the judge's reasons. The appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Ogbonna v Qantas Airways Ltd [2018] WASC 378 (primary decision).

[10] Affidavit of Gemma Louise McGrath sworn 18 September 2018, annexure GLM2; GB 13.

[12] Affidavit of Gemma Louise McGrath sworn 4 October 2018, annexure GLM7; GB 77 ‑ 81.

[16] Affidavit of Gemma Louise McGrath sworn 4 October 2018, annexure GLM 8; GB 82 ‑ 85.

[28] Appellant's written submissions, par 1.2; WB 6; citing Kennedy v Charity Commission [2014] UKSC 20; [2015] AC 455; [2014] 2 WLR 808 [51] and R v Secretary of State for the Home Department, Ex parte Bugdaycay [1986] UKHL 3; [1987] AC 514; [1987] 2 WLR 606.

[29] Appellant's written submissions, pars 1.4, 1.6, 1.10; WB 7 - 9.

[30] Appellant's written submissions, pars 1.6, 1.8; WB 7 - 8.

[31] Appellant's written submissions, par 1.10; WB 9.

[32] Appellant's written submissions, par 1.14; WB 10.

[33] Appellant's written submissions, par 1.15; WB 10.

[34] Appellant's written submissions, par 1.16; WB 10 - 11.

[36] Appellant's written submissions, pars 2.3 - 2.4; WB 11 - 12.

[37] Appellant's written submissions, par 2.6; WB 12.

[38] Appellant's written submissions, pars 2.9 - 2.10; WB 13.

[39] Appellant's written submissions, pars 3.1 - 3.3; WB 14.

[40] Appellant's written submissions, pars 3.5 - 3.8; WB 16. See also pars 3.11, 3.12, 3.14; WB 17 ‑ 18.

[41] Appellant's written submissions, par 3.4; WB 15.

[42] Appellant's written submissions, par 3.5; WB 16.

[44] Appellant's written submissions, par 3.5, 3.9; WB 16 - 17.

[45] Appellant's written submissions, par 3.6; WB 16.

[46] Appellant's written submissions, par 4.1; WB 19.

[47] Appellant's written submissions, pars 4.2; WB 19.

[48] Appellant's written submissions, pars 4.3 - 4.4; WB 19.

[49] Appellant's written submissions, par 4.5; WB 20.

[50] Appellant's written submissions, pars 4.6 - 4.8, 4.12; WB 20 - 21.

[51] Appellant's written submissions, pars 4.15 - 4.22; WB 22 - 24.

[52] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199.

[53] Appellant's written submissions, pars 4.21, 4.23; WB 24 - 25.

[54] See, in that regard, O 16 r 1 of the Rules of the Supreme Court 1971 (WA).

[55] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].