1. By 10 December 2014, the complainant shall file with the Tribunal and forward to the respondent particulars of the amended complaint.

1. If particulars of the amended complaint are not filed with the Tribunal by 10 December 2014, the proceeding shall be marked as withdrawn.

1. By 10 January 2015, the respondent shall file with the Tribunal and forward to the applicant points of defence to the particulars of the amended complaint.

1. The Complainant is to file with the Tribunal and serve on the Respondent witness statements on or before 24 January 2015.

1. The Respondent is to file with the Tribunal and serve on the Complainant witness statements on or before 31 January 2015.

1. The Complainant is to file and serve any material in reply on or before 7 February 2015 and on or before that date the parties are to exchange and file all the material on which they intend to rely at hearing.

1. Unless the Tribunal gives leave and except in accordance with these Directions, the parties may not:

(a) Present a case at the hearing different from that contained in the material filed by that party in the proceeding;

(b) Call a witness whose statement has not been provided;

(c) Seek to present further evidence-in-chief beyond that contained in the statement of a witness's evidence filed with the Tribunal.

1. The proceeding is listed for a half day hearing commencing at 10.00 am on 19 February 2015 before me at William Cooper Justice Centre, 223 William Street Melbourne

1. The Complainant is to attend the hearing in person.

1. Liberty to apply is granted to the parties in relation to these orders.

1. By an email with attachments sent 13 October 2013, the complainant ("Mr Reaper"), lodged a complaint ("the complaint") with the Health Services Commissioner ("the Commissioner"), against the respondent, Dr Kevin Fraser ("Dr Fraser"). The complaint was lodged under the Health Records Act 2001 ("the HR Act").

1. The complaint alleged that Dr Fraser failed to ensure the accuracy of Mr Reaper's health information in a report about Mr Reaper which Dr Fraser wrote dated 3 July 2012 ("the report") and also that the report itself contained inaccuracies. Dr Fraser, in fact, prepared two versions of the report.

1. Mr Reaper did not specify in the complaint what provisions of the HR Act he alleged had been breached by Dr Fraser. However, it had appeared to the Commissioner that Mr Reaper was relying on breaches of the Health Privacy Principles ("HPPs") 3.1 and 6.5.

1. The two versions of the report were identical in content except that in one version under the "Opinion" section, Dr Fraser referred to a surveillance/activity report (of MPOL Group) of 21 June 2010 while in the other version he referred to a surveillance/activity report (of MPOL Group) dated 17 January 2012.It is not clear in what chronological order the two versions were prepared.

1. Each version was addressed to QBE Workers Compensation ("QBE") in Melbourne. In the report, Dr Fraser stated that he had received a letter from QBE dated 15 June 2012 requesting him to examine Mr Reaper and to provide a report to assist QBE "in reviewing his medical and other services and in considering his weekly payment entitlements" ("the QBE letter").

1. Mr Reaper has alleged in the complaint that various issues arose from September 2012, after he first received a version of the report on 12 July 2012 and that he only discovered the "corrected version" (his expression), being the other version, on 7 July 2013.

1. Mr Reaper has sought various outcomes in his complaint. These are:

- neither version be made available to any other person or organisation,

- Dr Fraser's rapport with Worksafe referred patients be investigated,

- "restitution" for loss and damage suffered including for humiliation and injury to his feelings.

1. Mr Reaper also attached a five page summary to the printed complaint form. Unfortunately, he used only headings, without any numbering, to make his points.

1. Under section 51 of the HR Act, the Commissioner, by letter to Mr Reaper dated 18 December 2013, with attached reasons, declined to entertain the complaint ("the Commissioner's decision"). By notice dated 24 January 2014, Mr Reaper required the Commissioner to refer the complaint for hearing by the Tribunal which has jurisdiction under section 74 of the HR Act to do so.

1. Following a directions hearing, John W. Ball and Sons, lawyers for Dr Fraser, provided submissions to the Tribunal on 7 April 2014 seeking an order that the proceeding be dismissed or struck out under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"). Mr Reaper's responding submissions were then received by the Tribunal on 24 April 2014.

1. The hearing of the section 75 application proceeded before me on 8 August 2014. Mr Reaper attended without representation. Mr Andrew Smith, solicitor, appeared for Dr Fraser. I had before me the complaint including both versions of the report, the Commissioner's decision, Dr Fraser's submissions in support of the section 75 application and Mr Reaper's submissions opposing the application. At the hearing, Mr Smith and Mr Reaper also made oral submissions.

The report was prepared after Dr Fraser examined Mr Reaper on 29 June 2012. It set out in the heading that Mr Reaper was the "worker", Urban Domain Homes Pty Ltd was the "employer", the WorkSafe claim number, and the date of injury as 4 May 2007. Each version included Attachment 1 and Attachment 2 which had both been provided to Dr Fraser in the QBE letter.

1. Attachment 1 contained 21 specific questions for Dr Fraser to answer in his report after the examination. Attachment 2 was a schedule of medical reports and other documents provided to Dr Fraser by QBE ("the schedule"). It was to be completed by Dr Fraser in his capacity as an Independent Medical Examiner (IME) and returned to QBE with his report. The schedule set out in tabulated form a description of each report or document together with its date and by whom it was prepared. Next to the entry for each report or document, Dr Fraser had to confirm its receipt and then sign and date the schedule. Dr Fraser completed these steps. By signing and completing the schedule, and returning it as he did with the report, Dr Fraser was not only confirming receipt of the listed reports and documents but also that he had considered the information in them where relevant in completing his assessment of Mr Reaper.

1. Dr Fraser noted early in the report that Mr Reaper had also provided some documentation (the nature of which is not clear) and Dr Fraser had "gleaned from" this material most of the details expressed in his report about Mr Reaper's injury, current circumstances, symptoms and restrictions, and treatment. Of relevance to the complaint, Dr Fraser also noted in this section of the report that "Mr Reaper has Crohn's disease for which he sees a gastroenterologist."

1. The report then contained sections headed "Examination", "Investigations" and "Opinion".

1. The examination section of the report set out Dr Fraser's observations and findings upon his physical examination of Mr Reaper. Amongst other comments, Dr Fraser expressed the views that Mr Reaper "moved slowly with an exaggerated, unsteady gait" and "there was marked over - reaction on physical examination."

1. Dr Fraser then set out in the "Investigations" section what he had noted from radiographic examinations on November 2007 and August 2008 which had been provided to him by QBE. Mr Reaper, however, did not bring any X - rays to the examination.

1. Under the "Opinion" section in one of the versions, Dr Fraser stated:

"I do not consider that there is any ongoing work- related injury in this case. His history of ongoing pain and incapacity is, in my view, implausible and I note the surveillance /activity report of 21 June 2010 which indicates that the observed "activities were conducted in what appeared a normal and unrestricted manner. " This is in contradiction to his presentation today and I believe that he was exaggerating his symptoms and signs. I note that the Medical Panel of 5 November 2009 found that he "displayed marked abnormal illness behaviour" which I consider to be a euphemism for malingering, although the Panel suggests that he has a "chronic pain syndrome" unrelated to any "discrete medical condition" of the affected areas."

1. The Opinion section expressed in the other version was identical to the one above except "17 January 2012" was substituted for "21 June 2010".

1. Dr Fraser then concluded the report by answering the 21 specific questions contained in Attachment 1. Of relevance again to the complaint, some of the questions separately required Dr Fraser to consider a report of Mr Thomas Kossman, a report of Veelyn Tan, and Medical Panel Opinion. As was evident from Attachment 2, the reports and documents provided to Dr Fraser by QBE included the reports of Mr Kossman and Ms Tan and four Medical Panel Opinions variously dated 2008, 2009 and 2010.

1. The purpose of the HR Act as set out in section 1 is to promote fair and responsible handling of health information by each of 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.

1. Section 6 of the HR Act sets out its objects which include the requirement to responsibly handle health information in the public and private sector, to balance the public interest in protecting the privacy of health information with the public interest in the use of that information, to enhance the ability of individuals to be informed about their health services and to promote the provision of quality health services.

1. The effect of sections 18 and 21 of the HR Act is that an organisation to which the Act applies must not do an act, or engage in a practice, that is an interference with the privacy of an individual. Such an interference occurs if, and only if, inter alia, the act or practice breaches a HPP. The HPPs are set out in Section 1 of the HR Act.

1. The HR Act applies to each of Dr Fraser and QBE as organisations in their own right. (Sections 3 and 11) as a health service provider or as entities which each collect, hold or use health information. The subject matter of the complaint is health information to which the HR Act applies.

1. Section 3 of the HR Act, defines "health information", insofar as it is relevant and applicable here to mean:

(i) the physical, mental or psychological health (at any time) of an individual, or

(ii) a disability (at any time ) of an individual, or

(iii) an individual's expressed wishes about the future provision of health services to him or her; or

(iv) a health service provided, or to be provided, to an individual -

(b) other personal information collected to provide, or in providing, a health service.........."

"Personal information" is later defined in section 3 to mean "information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion, but does not include information about an individual who has been dead for more than 30 years."

1. Section 3 of the HR Act defines "health services" to mean, inter alia,-

"(a) an activity performed in relation to an individual that is intended or claimed (expressly or otherwise) by the individual or the organisation performing it -

(i) to assess, maintain or improve the individual's health; or

(ii) to diagnose the individual's illness, injury or disability; or

(iii) to treat the individual's illness, injury or disability or suspected illness, injury or disability, ..........."

26. The Commissioner, as referred to earlier in these reasons, regarded the complaint as being made by Mr Reaper in reliance on HPP's 3.1 and 6.5. In addition to setting them out, for relevant background, I am including portions of HPPs 1.1, 2.1 and 2.2, as follows -

HPP 1.1: "An organisation must not collect health information about an individual unless the information is necessary for one or more of its functions or activities and at least one of the following applies -

(a) the individual has consented;

(b) the collection is required, authorised or permitted, whether expressly or impliedly, by or under law (other than a prescribed law); .......

(c) the collection is necessary for the establishment, exercise or defence of a legal or equitable claim.........."

HPP 2.1 "An organisation may use or disclose health information about an individual for the primary purpose for which the information was collected in accordance with HPP 1.1"

HPP 2.2 "An organisation must not use or disclose health information about an individual for a purpose (the secondary purpose) other than the primary purpose for which the information was collected unless at least one of the following paragraphs applies -

(i) the secondary purpose is directly related to the primary purpose ; and

(ii) the individual would reasonably expect the organisation to use or disclose the information for the secondary purpose; or

(b) the individual has consented to the use or disclosure; or

(c) the use or disclosure is required, authorised, or permitted, whether expressly or impliedly, by or under law (other than the prescribed law) ; or................... "

HPP 3.1 : " An organisation must take steps that are reasonable in the circumstances to make sure that, having regard to the purpose for which the information is to be used, the health information it collects, uses, holds or discloses is accurate, complete, up to date and relevant to its functions or activities."

HPP 6.5: "If an organisation holds health information about an individual and the individual is able to establish that the information is inaccurate, incomplete, misleading or not up to date, the organisation must take reasonable steps to correct the information so that it is accurate, complete and up to date but must not delete the information otherwise than in accordance with HPP 4.2."

1. Finally, I regard it as appropriate at this point in my reasons to note that section 7(1) of the HR Act says:

"If a provision made by or under this Act is inconsistent with a provision made by or under any other Act, that other provision prevails and the provision made by or under this Act is (to the extent of the inconsistency) of no force or effect."

1. There have been two previous VCAT decisions involving Mr Reaper and his workers' compensation claims and issues under the HR Act. The first decision was Reaper v QBE Workers Compensation and Anor (2012) VCAT 1514 ("Reaper/QBE1"). Mr Reaper lodged a complaint with the Commissioner by letters dated 4 March 2012. His claim was initially against QBE but the Victorian WorkCover Authority ("VWA") was then joined by the Commissioner during the processing of Mr Reaper's complaint. The Commissioner ultimately declined to entertain the complaint and it was referred to the Tribunal.

1. In Reaper/QBE 1, Mr Reaper alleged that his health information privacy had been interfered with as a result of breaches by QBE and VWA of the HR Act. The complaint was focused on disclosure of Mr Reaper's health information to a member of VWA's clinical services panel, the use of that information by that panel member in discussions with a health practitioner who was treating Mr Reaper and a resulting agreement then reached between the practitioners about what they regarded to be appropriate future treatment. The case was heard in September 2012. Mr Reaper's complaint was dismissed. However, the decision has particular relevance, as will be referred to in more detail, to this proceeding, as it contained substantive factual findings about the process followed in the assessment of workers' claims and the interaction between QBE, VWA and service providers.

1. The second decision was Reaper v QBE Workers Compensation (2013) VCAT 1870 ("Reaper/QBE2"). It was made in relation to an application by QBE for striking out or dismissal of Mr Reaper's complaint pursuant to section 75 of the VCAT Act. The application was heard by the Tribunal on 5 September 2013. Orders were made striking out parts of Mr Reaper's complaint but not all of it.

1. In Reaper/QBE2, Mr Reaper's complaint was lodged with the Commissioner who declined to entertain it and it was referred to the Tribunal. The Complaint, the subject of this second decision, alleged that QBE had manipulated or recommissioned documents during the course of dealing with and processing Mr Reaper's claims arising out of work- related injuries. The outcome of these actions, according to him, were detrimental effects on his health and well - being and adverse outcomes in his County Court civil action and in relation to his claims generally resulting in loss of entitlements including compensation payments and ancillary and health services.

1. The core document under consideration in the Reaper/QBE2 complaint was the surveillance report dated 17 January 2012 compiled by MPOL Group and which is one the surveillance reports central to the complaint in this proceeding against Dr Fraser.

1. What appeared to be accepted in Reaper/QBE 2 as events surrounding the 2012 surveillance report were:

- QBE engaged MPOL Group to undertake surveillance of Mr Reaper and provide a report.

- Surveillance was undertaken on 12 and 13 January 2012 and the report was written and sent to QBE on 17 January 2012.

- the surveillance described in the report involved MPOL Group employers observing Mr Reaper's home where on the first day he was seen being collected by a taxi and taken to a pre-arranged medical appointment and then returned home. He was not seen at all on the second day.

- the report also contained a You Tube video showing a person, also named "Brett Reaper", driving a sports car and it described the alleged injury, the subject of the claim, as " Back Pain- Crohn's Disease".

- after Mr Reaper saw the report he complained to QBE in September 2012 that he was not the Brett Reaper in the You Tube video and his claim was not in respect of Crohn's Disease. Shortly after QBE responded, agreeing that the report was false and misleading on those aspects and contained personal health information, and it arranged to have the 2012 report revised to remove references to the You Tube video and Crohn's Disease.

1. Mr Reaper, however, proceeded with his complaint in Reaper/QBE2 because he argued that before its revision, the 2012 surveillance report had been provided to medical and other health practitioners, including Dr Fraser, and they had relied on the 2012 surveillance report as factual and reliable in reaching their opinions. These opinions had accordingly been corrupted as had any decision of QBE about Mr Reaper based on those opinions and reports.

1. In Reaper/QBE2, one of the grounds relied upon by QBE in its section 75 application, was that the Tribunal was bound by the previous decision in Reaper/QBE1 about matters relevant to the Reaper/QBE2 Complaint, and, as a result, some of the matters raised by Mr Reaper in Reaper/QBE2 had already been decided.

1. I will refer later in more detail to Dr Fraser's submissions in support of the section 75 application in this proceeding, but it is appropriate to note here that these submissions include that the complaint has substantial similarities to the complaint in Reaper/QBE2 and while I am not bound by that decision, I ought to follow it.

1. I accept the following relevant matters of fact or law as having been found or decided in the two previous decisions:

- WorkSafe (formerly "VWA") is responsible for administering the worker's compensation scheme established by the Accident Compensation Act 1985 ("the AC Act").

- The functions of WorkSafe, as set out in the AC Act, include receiving, assessing, accepting and paying, or rejecting claims for compensation.

- The workers compensation claim of Mr Reaper is based on an injury suffered on 4 May 2007 which resulted in him ceasing work on 18 May 2007.

- At the time of his injury, Mr Reaper was both an employee and director of Urban Domain Homes Pty Ltd

- Mr Reaper made a claim for compensation under the AC Act on 14 July 2007 and signed the relevant claim form which comprised four pages.

- The first page of the claim form informed the worker "to sign the authority to release medical information and the worker declaration at the end of this form" and to "read the statement on the back of this form that explains how your personal and health information will be collected and used".

- The last page of this claim form includes the following words:

"In processing your claim, the VWA and any WorkCover Agent acting for the VWA in relation to your claim may collect personal and health information about you. The VWA and Agents are required by law to ensure that all people about whom they collect personal and health information are provided with the following information:

The VWA is a body established under the AC Act. Agents are appointed by the VWA under that Act to act on its behalf in managing workers' compensation policies and claims for compensation.

Personal and health information about you is collected on this form and may also be collected during the processing, assessing and management of your claim. It may be collected from your current, previous and future employers, other government agencies, credit reporting agencies, health service providers and other persons who can provide information relevant to the claim.

Personal and health information about you may also be collected by solicitors, private investigators, loss adjusters and other service providers acting on behalf of the VWA or your employer's Agent.

Personal and health information collected about you is used for the purpose of processing, assessing and managing your claim and to verify any evidence you may submit in support of the claim. The information may also be used for one or more of the purposes listed in section 243 of the AC Act, for the purposes of legal proceedings arising under that Act, to assist with your rehabilitation and return to work and to assist the VWA and WorkCover Agents to better manage claims generally.

For the purposes of processing, assessing and managing your claim, the VWA and your employer's Agent may disclose personal and health information about you to each other and to the following types of organisations:

Employers, contractors and agents of the VWA and the VWA's agents."

- Mr Reaper's health information was collected in accordance with HPP1.1 as part of Work Safe's ongoing claims management functions and review process.

- The collection of Mr Reaper's health information was authorised by him when he signed the claim form.

- Mr Reaper's health information was disclosed and used for the primary purpose of collection, which is in the course of WorkSafe's claims management and review processes and its function to determine whether treatment continued to be appropriate.

- At the time of the workers' compensation claim made by Mr Reaper and at the time of the two previous decisions, Section 39(1) of the AC Act was in operation and it said:

"Subject to the County Court Act 1958, the County Court has exclusive jurisdiction to inquire into, hear and determine any question or matter under this Act, arising after the commencement of section 10 of the Accident Compensation (WorkCover) Act 1992, out of -

(a) any decision of the Authority, employer or a self - insurer; or

(b) any recommendation or direction of a conciliation officer"

- Section 39 of the AC Act conferred exclusive jurisdiction on the County Court to hear and determine questions or matters arising out of decisions of WorkSafe.

- The combined legal effect of section 7(1) of the HR Act and section 39(1) of the AC Act is that the Tribunal has no jurisdiction to consider any matters which relate to the assessment or management of, or decisions made about, workers' compensation claims or which are relied upon in relation to such assessment, management or decision - making processes.

1. It is appropriate to note that on and from 1 July 2014, s. 39 of the AC Act was repealed by section 627 of the Workplace Injury Rehabilitation and Compensation Act 2013 ("the 2013 Act"). However, section 264 (1) of the 2013 Act which replaced the former s 39(1) now reads, almost identically, as follows:

"Subject to the County Court Act 1958, the County Court has exclusive jurisdiction to inquire into, hear and determine any question or matter arising under this Act or the Accident Compensation Act 1985 out of -

(a) any decision of the Authority, employer or a self - insurer ; or

(b) any recommendation or direction of a conciliation officer."

1. As previously indicated, Mr Reaper's five page typed complaint summary only used various headings. I will summarize the complaint using my own lettering:

(a) Mr Reaper received a version of the report around 12 July 2012 which noted that Dr Fraser had used the MPOL Group surveillance report dated 21 June 2010. According to Mr Reaper, that report was "annulled" on or around 19 August 2010 due to various inappropriate actions of the surveillance operator. In these circumstances he complains that Dr Fraser failed to take steps to ensure the health information he collected, used, held, and disclosed was accurate, complete, up to date and relevant to his functions and activities.

(b) Mr Reaper makes a number of complaints against Dr Fraser about his use of Mr Kossman's and Ms. Tan's reports in answering specific questions in Attachment 1 to the QBE letter. The complaints common to both reports are:

- the reports were produced for a purpose other than for which he used them.

- their use and disclosure were not required for him as an IME to produce an independent opinion of his own accord and expertise.

- their use and disclosure for a secondary purpose by him was not reasonably expected by Mr Reaper.

- he failed to notify Mr Reaper at or before the time or as soon as practicable thereafter that he received a copy of the reports.

- he failed to take steps to ensure the health information be collected, used, held and disclosed was accurate, complete, up to date and relevant to his functions and activities.

A specific complaint against Dr Fraser in relation to Mr Kossman's report was that it was incomplete as Mr Kossman did not assess or consider Mr Reaper's cervical workplace injury.

Complaints against Dr Fraser specific to Ms Tan's report were that the circumstances which forced Mr Reaper to partake in Ms Tan's assessment were not realised and her assessment contains false, misleading and personal information relating to Mr Reaper's claim.

(c) Complaints are made that Dr Fraser relied on and used documentation pertaining to imaging results that were 4 and 5 years old and that he used the Medical Panel Opinion of 20 March 2008, which opinion Mr Reaper asserted had been superseded by the medical panel opinion of 5 November 2009. According to him, Dr Fraser had thereby again failed to take steps to ensure that the health information he collected, used, held and disclosed was accurate, complete, up to date and relevant to his functions and activities.

(d) Mr Reaper complains about the sentence in Dr Fraser's report: "He has Crohn's disease for which he sees a gastroenterologist." According to Mr Reaper he has not seen a gastroenterologist for Crohn's disease for some 10 years and, in any event, this represented a disclosure unrelated to his WorkCover claim and was personal health information which he did not reasonably expect would be disclosed in a WorkSafe IME report. Additionally, he complained that Dr Fraser had used this personal health information in an attempt to discredit his workplace injuries and further that personal health matters are not relevant to the functions of WorkSafe or a WorkSafe IME.

(e) In the version of the report which refers to the 2010 MPOL Group surveillance report, Mr Reaper complains that Dr Fraser does not explain why he preferred that surveillance report over eight other medical reports, particularly in circumstances where he came to a very different conclusion.

(f) Mr Reaper then focuses on the version of the report which he says he "discovered" on 7 July 2013 and which referenced the 2012 MPOL report in place of the 21 June 2010 MPOL report. Given this, and there being "no other correction," he makes numerous complaints and assertions:

- the insertion of the 17 January 2012 MPOL report caused a sentence shift in the balance of the "opinion" in that version and was made in circumstances in which Dr Fraser's "opinion" was grounded on the 2010 MPOL report.

- the alleged observations relied on by Dr Fraser from the 2010 MPOL report cannot be realised in the 2012 MPOL report.

- the 2012 MPOL report was "annulled" by QBE in September 2012.

- as there was another version, the original electronic copy has been edited by Dr Fraser or is a result of Dr Fraser having forwarded an unsecured electronic copy to QBE, and in these circumstances, Dr Fraser has failed to protect the integrity of the report from modification and misuse.

- the schedule confirms that Dr Fraser did not receive a copy of the 2012 MPOL report.

- (seemingly in the alternative), Dr Fraser failed to notify Mr Reaper at or before the time or as soon as practicable thereafter, that he had received a copy of the 2012 MPOL report.

- Dr Fraser both failed to notify him that the report had been corrected and the reason for correction and had failed to disclose by inclusion or attachment that the medical report he produced had been corrected, when and by whom.

- Dr Fraser had failed to take reasonable steps both to notify any person or organisation that had received, held or used the other version or may reasonably be expected to rely on it, that it had been corrected.

(g) As a separate complaint about the 2012 MPOL report version, Mr Reaper asserts that Dr Fraser colluded with QBE in producing that version to deceive, and evade investigation by, each and any of WorkSafe, Victorian Police Licensing and Regulation and Ombudsman Victoria about the recovery and use of the 2010 MPOL Group surveillance report.

(h) QBE relied on either or both versions of the report to make decisions (four separate decisions were specifically referenced) concerning the status of his workplace injuries and to cease his entitlements to medical and like expenses and ongoing compensation payments.

(i) the report was used as evidence against him by other organisations and health service providers in a number of capacities and on a number of occasions as follows:

- WorkStreams (3 Vocational Assessment reports and 1 Job Seeker Plan)

- Accident Compensation Conciliation Service ("ACCS") (3 outcomes)

(j) From the printed Complaint Form, Mr Reaper indicated that he had contacted Dr Fraser to try to discuss the complaint but Dr Fraser had refused. Towards the end of the typed summary, Mr Reaper stated that he sent a letter on 8 September 2013 by facsimile to Dr Fraser outlining his grievances and that he received a letter from Dr Fraser dated 18 September 2013 wherein Dr Fraser dismissed his claims and refused to discuss them any further. I have not been provided with these two correspondence items but after referring to them, Mr Reaper sets out a miscellany of complaints which he asserts arise as a result of Dr Fraser's correspondence. These "final" complaints include:

- further failures to authenticate the validity of the "annulled" 2010 and 2012 MPOL reports;

- failing to ensure that the Workers Injury Claim form dated 14 September 2007 (which was contained in the schedule as a document provided to Dr Fraser by QBE ) and which Mr Reaper now states relates to an aggravation of a 1993 injury and not the current workplace injuries, was adequate authorisation to collect, hold, use and disclose his health information,

- failing to take steps to correct information both leaving a real possibility of confusion or error in how to interpret the report and knowing it could cause him further harm and result in further inappropriate health services and care being provided;

- failing to provide written reasons for refusal to correct health information; and

- failing to remove the report from circulation knowing it to be false and misleading

1. The Commissioner declined to entertain the complaint pursuant to section 51 (1)(a) of the HR Act on the basis that he found that the acts or practices complained about by Mr Reaper are not an interference with his privacy.

1. In his decision, the Commissioner referred to portions of the complaint and of the findings of the Tribunal in Reaper/QBE2. Early in my summary of the complaint I noted that Mr Reaper asserted that the 2010 MPOL Report was "annulled" on or around 19 August 2010, and yet Dr Fraser had used it. However, I had no further particulars available about what was alleged to have constituted any annulment. However, it seems from the Commissioner's decision that on the information available to him, Mr Reaper had claimed that WorkSafe had agreed in 2010 to remove the 2010 MPOL report from his file and to not utilise it for any purpose.

42. Having then found that HPP 3.1 was relevant to the complaint, the Commissioner also found that:

- Mr Reaper's grievances primarily relate to QBE's actions in forwarding the 2010 and 2012 MPOL reports to Dr Fraser;

- In June 2012 when Dr Fraser received documents from QBE in order to examine Mr Reaper and provide a medical report, Dr Fraser could not have known about the alleged annulment of the 2010 MPOL report;

- it appeared, from the available material, that Dr Fraser amended the report to reflect this after he was notified that the 2012 MPOL report was the correct report;

- Mr Reaper's grievance is with the opinion reached by Dr Fraser in the report and the consequences to his WorkCover claim;

- he (the Commissioner) was bound by the Tribunal's findings in Reaper/QBE2 with regard to the legal effect of section 39(1) of the AC Act (as it then was) and section 7(1) of the HR Act;

- in these circumstances, given Mr Reaper's further statement in the complaint to the effect that the repercussions have been that QBE relied on the report to make decisions concerning the status of his workplace injuries and to cease his entitlements, Dr Fraser has not breached HPP 3.1 in relation to the MPOL reports forwarded to him by QBE.

1. The Commissioner also considered HPP 6.5 in the context of Mr Reaper's complaints about alleged inaccuracies in the report arising from alleged inappropriate use of each of Mr Kossman's and Ms Tan's reports, the 2008 Medical Panel Opinion, and the X-rays, together with the disclosure of the Crohn's disease and the apparent preference of Dr Fraser for the 2010 MPOL Group surveillance report over other medical reports.

- HPP 6.5 only allowed him to deal with inaccuracies which can be objectively proven to be inaccurate, incomplete or misleading;

- Mr Reaper's grievance is with Dr Fraser's conclusion;

- Mr Reaper has not established that the matters referred to above have resulted in information contained in the report to be inaccurate, incomplete, misleading or not up to date.

- in these circumstances, there are no inaccuracies amenable to correction under HPP 6.5

"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, vexatious, misconceived or lacking in substance; or

(b) is otherwise an abuse of process."

1. It is clear from many cases that the Tribunal must exercise great care and caution before summarily dismissing or striking out a proceeding or any part of it under section 75. There have been various descriptions about what is required in order to succeed in such an application. These include that the burden of proof to be discharged is a "heavy one" (Burke v Victoria (2002) VCAT 1397), there is a "high threshold" which must be met (Towie v Victoria [2008] VSC 177; (2008) 19 VR 640) and a proceeding should not be summarily dismissed if it is "merely weak" or "has limited prospects of success" and for the power to summarily dismiss to be exercised "the bar is set very high " (Morrison v Stonnington CC (2011) VCAT 1325).

1. Accordingly if a claim is at all arguable or even if there is any doubt about whether or not it is arguable it should not be summarily dismissed. Likewise, if there are disputed questions of fact or contested pieces of evidence which need to established or clarified by oral evidence or cross - examination, or tested further, an application under section 75 must fail.
2. Finally, in dealing with an application under section 75, the Tribunal must take the best view of the case of the applicant in the proceeding and must assume that the applicant will be able to prove each fact alleged in the claims being made.

1. Dr Fraser, through his lawyers, has submitted that Mr Reaper's claim is vexatious, misconceived, lacking in substance, and is an abuse of process and the application should be entirely dismissed or struck out with a costs order made against Mr Reaper.

1. As previously noted, it has been contended on behalf of Dr Fraser that I should follow the decision in Reaper/QBE2 although I am not bound by it. The submissions otherwise substantially reiterate the Commissioner's decision with some additional emphases.

1. Dr Fraser has not retained copies of any documents provided by QBE or listed in the schedule and upon which he based the report. It appears he has destroyed them in line with his usual practice. In his submissions it is said that he received a call from "Nicholas" of QBE who requested that he alter the date of the surveillance report from 2012 to 2010. He agreed to this request. He listed in the schedule that he had received a surveillance report of 21 June 2010 but he is not sure whether he had a surveillance report from 2012 although he considers that a 2012 surveillance report may have been referred to in documents provided to him by QBE. He has contacted QBE to obtain a copy of the documents provided to him but QBE has refused his request on privacy grounds. He has not further pursued the documents.

1. Dr Fraser therefore admits that he altered the report and that is why there are the two versions. However, it is submitted on his behalf that it is irrelevant to my consideration of the complaint whether Dr Fraser had either or both of the surveillance reports. In this regard it is submitted that the report is not based solely upon the surveillance report but upon all information, including clinical information and history from Mr Reaper.

1. It is also submitted, in line with the Commissioner's decision, that the complaint largely relates to Mr Reaper's concerns about the management of his workers' compensation claim and accordingly there is no basis for me to determine that there has been an interference with privacy or a breach of the HR Act.

54. Dr Fraser's submissions conclude with reference to the Tribunal's jurisdiction. Two points that have been made should be noted. The first is that the Tribunal is said to have no greater jurisdiction in relation to a complaint than has the Commissioner. Secondly, it is submitted that it would be an abuse of process to proceed to a hearing on the complaint where the issues Mr Reaper seeks to ventilate have already been dealt with by the Tribunal.

1. He commences his submissions by referring to the high hurdle to be overcome and high threshold to be met by Dr Fraser to succeed in this application which he contends Dr Fraser cannot achieve.

1. He initially contends that the application pursuant to section 75 is itself misconceived, lacking in substance and an abuse of process as he has not filed or served an application, statement of complaint, affidavit, witness statement or any other document in this proceeding from which Dr Fraser could properly ascertain his complaint. He maintains that as he has not therefore informed the Tribunal about which or what complaint he will pursue, the application under section 75 is premature and relies solely on the Commissioner's decision, the relevance of which Mr Reaper then puts in question.

1. In this regard, he refers to an incorrect date and reference number being included in the Commissioner's decision and he submits that, in reality, the Commissioner's decision is itself misconceived as it refers to the complaint in Reaper/QBE 2 and it is only applicable to the actions of QBE.

1. Mr Reaper maintains that the five page typed complaint summary in the complaint is a draft only and that the Commissioner has, in this matter, breached his duty under section 45(6) of the HR Act to "provide appropriate assistance to an individual who wishes to make a complaint and requires assistance to formulate the complaint." He further contends, with reference to section 67 of the HR Act, that the Commissioner should have clarified who "corrected" the report of Dr Fraser and the circumstances surrounding such correction to enable the complaint to progress. He maintains that without such clarification, the crux of the complaint could not be ascertained. This appears to be a further criticism of the Commissioner's decision upon which Mr Reaper argues that Dr Fraser's submissions solely rely.

1. The next substantive point of response by Mr Reaper is that Dr Fraser is not an "authorised agent of WorkSafe " and that the combined effect of section 39(1) of the AC Act and section 7(1) of the HR Act does not extend to an IME.

1. After having regard to his contentions about the Commissioner's decision, its alleged inadequacies and his assertions that Dr Fraser's submissions solely rely on it, he submits that this section 75 application does not test the complaint but rather is only "hearing" the Commissioner's decision and is not hearing the complaint as required by section 74 of the HR Act.

1. Mr Reaper concludes his submissions by asserting that the submissions of Dr Fraser are obviously hopeless themselves and are not capable of amounting to a plain and obvious case for summary dismissal of this proceeding.

62. It is appropriate at the outset of my findings to deal with three particular issues raised by Mr Reaper in his submissions. The first is his contention that his complaint was only in draft form and that he had not received assistance from the Commissioner as required by section 45(6) of the HR Act. I do not accept these contentions. The complaint process pursuant to the HR Act is not novel to Mr Reaper, have regard to the two previous decisions. None of the printed complaint form, the five page typed complaint summary or the covering email lodging the documents refer to them being in "draft" form. Mr Reaper has also comprehensively completed the printed form with particular reference to the section pertaining to the outcomes he is seeking. It is very clearly noted on the form that the Commissioner can provide advice about possible outcomes before it is completed. Mr Reaper has signed the complaint form on 9 October 2013 unreservedly providing the Commissioner with the requisite authorisations, permitting him to forward the complaint, in the form it was provided, to Dr Fraser.

1. The second issue relates to his submission that the Commissioner should have ascertained the details surrounding the correction of the report before proceeding with consideration of the complaint, in accordance with section 67 of the HR Act. However, the wording of this section makes it clear that it has no relevance to the complaint nor to the basis of the Commissioner's decision.

1. Thirdly, Mr Reaper has made considerable issue about the fact that he has not yet filed any formal documentation with the Tribunal and therefore this application is premature. However, an application may be made under section 75(1) at any time in a proceeding (Director of Consumer Affairs Victoria v Geeveekay Pty Ltd (2005) VCAT 555). Section 75(1) also empowers the Tribunal to dismiss or strike out part or all of any document that articulates the applicant's claim (Martin v Fasham Johnson Pty Ltd (2008) VSC289. It had also earlier been found in Yim v Victoria (2000) VCAT 821, a proceeding under the Equal Opportunity Act 1995, that section 75(1) may be used to dismiss or strike out a claim found in any document in a proceeding and this included "the complaint".
2. Reverting to the complaint, I will deal with it by referring to each section as designated by the lettering I used in my summary of the complaint.

1. As to (a) , any criticism of use by Dr Fraser of the 2010 MPOL Group surveillance report in circumstances where it had been previously been "annulled" is without merit. From the schedule, it is apparent that QBE provided the report to Dr Fraser without further explanation. From the claim form signed by Mr Reaper, Mr Reaper was aware that QBE, to whom Dr Fraser was, at the very least, a contractor, was permitted to, and would, disclose to him personal and health information about Mr Reaper for the purpose of him providing the report as part of the processing, assessing and managing of his workers' compensation claim. In these circumstances, there was no requirement upon Dr Fraser to seek or inquire any further about the documents in the schedule provided to him. There is no basis upon which Dr Fraser could have known of the prior annulment, as explained by the Commissioner, and while Mr Reaper has criticised the actions of the surveillance operator upon which the 2010 MPOL report was based, he has not disputed, or specifically commented on, the contents of any reference to that surveillance report, by Dr Fraser in the report.

1. The same comments as above relating to (a) apply in relation to the complaints in (b) about aspects of Dr Fraser's use of Mr Kossman's and Ms Tan's reports. He was requested by QBE to consider those reports in the context of providing his report. He was not required to go further and analyse the content and manner of compilation of those reports. Indeed, Mr Kossman's report was provided to QBE by Mr Reaper's solicitors as part of the claims process. Dr Fraser's involvement was part of QBE's information collection process to whom Mr Reaper had consented and which was in compliance with HPP's 1.1 and 2. From (b) it also appears that Mr Reaper is seeking to rely on HPP 1.4 when he asserts that Dr Fraser failed to notify him at or before the time or as soon as practicable thereafter that he received a copy of the reports of Mr Kossman and Ms Tan. However, any such purported reliance on HPP 1.4 is again misconceived. Dr Fraser did not collect health information about Mr Reaper from Mr Reaper in the form of these reports. They were provided to him again by QBE as part of its collection of information in accordance with Mr Reaper's consent, the contents of the injury claim form and HPP's 1.1 and 2.

1. However, of greatest relevance to the issues and complaints contained in (b), (c), (e), (h), and (i) is the application to them of the combined legal effect of section 39 (1) of the AC Act and section 7 (1) of the HR Act. Despite Mr Reaper's submission to the contrary, any complaints he has about the manner of use in the report by Dr Fraser of each of Mr Kossman's and Ms Tan's reports, the radiological investigations, the Medical Panel Opinions and the 2010 MPOL Group report and the provision of the report to, and the reliance on it, by each of Mr Simm ,Dr Shan, WorkStreams, and QBE and at the ACCS are matters for the consideration of the County Court as they relate to the assessment and management of his workers' compensation claim. The Tribunal has no jurisdiction under the HR Act in relation to those issues.

1. As to (d) and the reference to Crohn's disease, again Mr Reaper consented to, and was aware of, the possibility and permissibility of collection of personal and health information by a service provider such as Dr Fraser engaged in the capacity as he was by QBE. Mr Reaper himself provided the information which, in the form it has been expressed in the report, is not misleading.

1. In relation to the range of complaints made by Mr Reaper in (f) pertaining to the "corrected version" of the report and Dr Fraser's reference to the 2012 MPOL Group surveillance report, again to the extent that he regards it as having in any way affected Dr Fraser's opinion, it is a matter for the County Court pertaining to the assessment and management of Mr Reaper's workers' compensation claim. The 2012 MPOL report was revised and not "annulled" and this occurred after Dr Fraser's report was prepared. Mr Reaper's reference to Dr Fraser having forwarded an unsecured electronic copy of the report to QBE appears to have been an allegation of a breach of HPP 4.1 relating to data security and data retention. Mr Reaper, however, accepts in his responding submissions that Dr Fraser amended the report. Accordingly, I do not regard HPP 4.1 as now being the basis of any ongoing complaint by Mr Reaper. The report was requested by, and then provided to, QBE which disseminated the report. After the provision of the report to QBE, Dr Fraser was not required to notify any other entity of any amendment or "correction" he made. However, while any reliance by Dr Fraser on either of the MPOL reports is not an issue for the Tribunal under the HR Act, but rather for the County Court under the AC Act, it is apparent that the information provided by the 2012 MPOL report is different from that provided by the 2010 report. Additionally it remains unclear as to whether Dr Fraser was ever provided with a copy of the 2012 MPOL report.

1. I regard (g) as entirely without foundation, lacking any substance and an abuse of process.

1. The final aspects of the complaint to consider are the contents of (j). Again, I do not regard such contents to have any basis for a finding that Dr Fraser interfered with Mr Reaper's privacy in the context of the HR Act. The substance of the complaints made in (j) have been dealt with previously except for the allegations made in relation to Dr Fraser having been provided with a copy of a claim form dated 14 September 2007 rather than the form dated 14 July 2007. The terms of the claim form itself have no relevance to the role of Dr Fraser in relation to the health information. Its relevance in that regard is to QBE and WorkSafe.
2. I agree overall with the submissions of Dr Fraser and the Commissioner's decision to the effect that Mr Reaper's concerns continue to principally relate to the management of his workers' compensation claim and, in particular, decisions made by QBE.

1. However, I am ever mindful of the high bar set by section 75. I also take into account the range of orders that can be made by the Tribunal pursuant to section 78 of the HR Act.

1. Dr Fraser is uncertain about what documents with which he was ultimately provided by QBE and, in particular, whether he did ever receive a copy of the 2012 MPOL Group surveillance report separately from the reports and documents referred to in the schedule. An explanation about what led to there being two versions of the report of Dr Fraser was given in his submissions.

1. However, I found the explanation to be unclear particularly without evidence from Dr Fraser and from the QBE file operator. As noted earlier, the basis and extent of any reliance by Dr Fraser on a surveillance report in reaching his opinion and conclusion is not relevant to the complaint. Any such issue falls for determination by the County Court in relation to assessment and management of the workers' compensation claim.

1. Despite this, the complaint does raise concerns, in light of the available material to date, about the accuracy of the reference in the report to the 2012 surveillance report. Having regard to the purposes and objects of the HR Act and their focus on the fair and responsible handling of health information, it remains arguable whether Dr Fraser did breach HPP 3.1 in the use or disclosure of health information in the form of his reference to the 2012 MPOL Group surveillance report. It would therefore be inappropriate for the entirety of the complaint to be struck out.

1. Accordingly, I will order that Mr Reaper provide particulars of an amended complaint limited to the use and disclosure by Dr Fraser of the 2012 MPOL Group report. However, these particulars are not to relate to any issue connected with the use and disclosure of this surveillance report in the context of the assessment and management of the workers' compensation claim. I will also make orders about dates by which the amended complaint is to be filed and served and when any points of defence are to be provided. I will also order the exchange of witness statements and that this proceeding is fixed for hearing before me.

1. The balance of the complaint I will order to be struck out. I am making this order as I am of the opinion that it is misconceived, lacking in substance, and an abuse of process.
2. In relation to the particulars of the amended complaint, in following Reaper/QBE2, I note that such particulars are not to include new issues or a fresh set of allegations beyond those contained in the complaint lodged with the Commissioner.