Skatulski v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-01-18

Background

On 10 October 2020 the Applicant, Mikolaj Skatulski, applied for a Category AB firearms licence. On 16 September 2021 the Respondent decided to refuse the application, on the basis that it is not in the public interest for him to hold a firearms licence. That decision was affirmed on internal review. The Applicant sought review by this Tribunal.

Present issue: summons

The Respondent applied to the Tribunal for a summons to be issued to the Applicant's general practitioner (GP), Dr Gayani Jayasinghe, to produce a copy of the documents specified in the schedule of the summons (Summons). On 28 November 2022, the Registrar of the Tribunal issued the requested Summons in the following terms: All of the documents and other things in the medical file of Mr Mikolaj Skatulski (DOB: 15/09/1975) since 1 January 2018 (or for all dates where no range can be specified), including but not limited to: - history; - notes; - records; - reports; - discharge summaries; and - medications prescribed.
The Summons was served on the GP by express post on 28 November 2022 and on the Applicant by email on 30 November 2022. The Summons was returnable on 8 December 2022, and, on that date, the GP provided material to the Tribunal (Summons material).
At the return of summons (ROS) hearing on 12 December 2022, the Respondent sought general access orders to the Summons material but the Applicant opposed those orders, as he informed the Tribunal by email on 1 December 2022. As the Respondent pressed for general access orders be made, the Registrar ordered the parties to file written submissions (of no more than five pages) as to what orders should be made in respect of the Summons. The Respondent lodged submissions, but the Applicant filed no further submissions beyond those which he had provided in his email of 1 December 2022, and orally, at the ROS hearing.

Legislation relevant to the present issue

On the application of a party to Tribunal proceedings a summons may be issued by the Registrar: s 48(1)(a) Civil and Administrative Tribunal Act 2013 (CAT Act). A summons may require the person to whom it is addressed to attend and produce documents: s 48(3)(b) CAT Act.
According to the Tribunal's Procedural Direction 2 entitled "Summonses" (Procedural Direction) the standard access direction is for all parties to have access to the documents or other things so that all parties can look at and photocopy the documents or look at the other things produced: cl 36.

Submissions

The Applicant wrote that the information requested in the Summons was not clearly specified. Also, information in relation to the Applicant's current (medical) suitability to hold a firearms licence had already been supplied to the Respondent (presumably referring to the letter dated 27 October 2022 from the GP - see below). At the ROS hearing the Applicant also referred to the internal review statement of reasons, and suggested that the Respondent had only previously wanted information about his current mental health, not his historic mental health, and did not understand why the Respondent now sought documents going back to 2018.
At the ROS hearing the Applicant also contended that the GP's records contain sensitive information. He also asserted that he was receiving 'special treatment' by the Respondent.
In summary, the Respondent submitted that general access orders should be made and the Summons not set aside because it serves a legitimate forensic purpose by reference to a key issue in the substantive proceedings.

CONSIDERATION

Each of the Applicant's concerns about access to the Summons is addressed in turn.

the information requested was not clearly specified

Documents requested for production should be specified with reasonable particularity: Lane v Registrar of Supreme Court (NSW) (1981) 148 CLR 245. Summonses that are too broad can be set aside if they amount to a "fishing expedition". The documents need not be shown to definitely advance the case of the issuing party, but whether they have apparent, as distinct from actual, relevance to the case: CPJ v University of Newcastle [2017] NSWCATAD 35 at [11].
As to the Applicant's complaint, essentially as to the breadth of the Summons, in particular that it sought records from 2018, the Respondent submitted that a person's current health can only be understood in context, and that this is particularly so for mental health issues, which may develop over a lengthy period of time, or which may have subsisted for a lengthy period of time but which may not be showing any symptoms presently.
The Summons requested the GP's file with respect to the Applicant including history, notes, records, reports, discharge summaries and medications prescribed. It is appropriate, in my view, in seeking a medical practitioner's file, to request a comprehensive suite of information so that the full picture of the patient's medical condition is available; it may be unclear to the party requesting the production of the file what relevant information it may contain, and, indeed, whether that information may advance the requester's case. In this matter, I consider the information sought was with sufficient specificity to have apparent relevance in the matter. Even if the GP's file were to reveal that the Applicant has never reported any mental health issues to her, that will assist the Tribunal in making its determination in the substantive matter.
I observe that the GP herself raised no concerns about being unable to identify what was the information sought.

relevance of historical information

In the Internal Review Statement of Reasons, after affirming the decision, the Respondent's delegate suggested to the Applicant that, for the purposes of review (by the Tribunal) or in any future application, it may be beneficial if he provided evidence of any treatment or assessment in relation to his mental health. In response, the Applicant provided the Respondent with a brief medical certificate from the GP, dated 27 October 2022. Despite filing material in support of his Application for Review, the Applicant did not file a copy of the GP's medical certificate, nor did he do so in these interlocutory proceedings. Although the Respondent submitted that it proposed to make detailed submissions about the adequacy of the medical certificate in the substantive proceedings, the certificate was said to provide only a 'current assessment' of the Applicant's mental health, and does not provide any details, reasoning, history taken, or the facts applied to any criteria relied upon by the GP in forming her opinion.
In Melhem v Commissioner of Police, NSW Police Force [2016] NSWCATAD 279 at [27] DP Hennessey stated that the test is whether the documents sought under the summons have apparent, as distinct from actual relevance to the case. She observed that the principle of apparent relevance has been expressed in various ways including whether the summons has a "legitimate forensic purpose"; "is reasonably likely to add ... to the relevant evidence in the case" and whether it appears to be "on the cards" that the document sought will materially assist the requesting party: Becwell Legal Service Pty Ltd v McMaster [2011] FCA 1501 at [25] and [26].
The GP's file in relation to the Applicant, the Respondent submitted, and I agree, will assist the Tribunal to critically evaluate the GP's opinion and to better understand the Applicant's current mental health, and hence, whether it is in the public interest for him to hold a firearms licence.

sensitive information

I accept that the very nature of a person's medical records means that the information therein is likely to contain information the person may regard as sensitive and which they would rather not have scrutinised by other people.
The Respondent submitted and I agree, however, that the key question in relation to the Summons though is not whether the information sought is sensitive, but whether it serves a legitimate forensic purpose. This is discussed below.
The Applicant may be assured as to handling of the Summons material, that the Procedural Direction notes, at clause 41: Documents and other things obtained under a summons must only be used for purposes directly connected with the proceedings. Using the documents or other things for any other purpose or publishing their contents for any other purpose, may constitute contempt of the Tribunal and be punishable by fine or other orders.

'special treatment' by the Respondent

As to the Applicant's assertion that the Respondent is giving the Applicant (adverse) 'special treatment' or has otherwise treated him unfairly in seeking the GP's file, I observe that mental health concerns are commonly raised in the consideration of firearms licensing; it is trite to say that a person's mental health is relevant to public safety is at the heart of the licensing scheme set up by the Firearms Act 1996. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.
Similarly, in applications for review to the Tribunal in respect of firearms licences, it is not uncommon for the Respondent to seek a summons in respect of the applicant's medical records, so as to assist the Tribunal to make the correct and preferable decision.
I do not consider the Applicant has been singled out or otherwise treated unfairly in the Respondent having sought the Summons material.

Respondent's assertion of legitimate forensic purpose

In Sharpe v Grobbel [2017] NSWSC 1065, at [35], Brereton J summarized the principle to be applied with respect to a summons/subpoena as follows: [35] …. there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. This reflects the notions that the documents relate to, throw light on or are sufficiently relevant to the dispute; that they 'appear relevant in the sense they relate to the subject matter of the proceedings'; or that they could possibly throw light on the issues in the case.
The onus is on the Respondent to demonstrate a legitimate forensic purpose: QQ v Commissioner of Police [2011] NSWADT 54 at [9].
Both the refusal of the Applicant's firearms application and the internal review statement of reasons referred to concerns about the Applicant's mental health. In the course of making a complaint to Police on 11 December 2020, that the Applicant had allegedly assaulted her on 28 November 2020, the Applicant's wife said that the Applicant suffered depression. Earlier, on 18 September 2015, intelligence was received by Police that the Applicant allegedly claimed to have what may be an assault weapon. This, amongst other interactions with a work colleague, gave rise to the Respondent's further concerns about the Applicant's mental health.
The Applicant's mental health is squarely at issue in considering whether he is to be issued with a firearms licence, namely whether it is in the public interest for the Applicant to be granted a firearms licence: s 11(7) of the Firearms Act 1996. The documents sought are medical records which may include information in relation to the Applicant's mental health. I therefore find that there is apparent relevance of the Summons material in that it has a "legitimate forensic purpose".

CONCLUSION

The Applicant's concerns have been noted, but are, ultimately, ill-founded. The link with the substantive issue in considering the Applicant's application for a firearms licence of public safety is sufficient to give the Summons a legitimate forensic purpose. It is then entirely appropriate that general access orders be made.

DECISION

General access is granted in relation to the summons material produced by Dr Gayani Jayasinghe on 8 December 2022.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 January 2023

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Parties

Cases Cited (6)