Civil and Administrative Tribunal New South Wales Medium Neutral Citation: EQH v Health Administration Corporation [2021] NSWCATAD 215 Hearing dates: 16 July 2021 Date of orders: 26 July 2021 Decision date: 26 July 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: C Mulvey, Senior Member Decision: (1) An order pursuant to s. 64(1)(a) of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the names of the employee and of the witness. (2) An order pursuant to s. 64(1)(c) of the Civil and Administrative Tribunal Act prohibiting the publication of the confidential matters contained in the confidential version of Matthew Ryan's statement, the confidential attachments to his statement and the confidential version of the Respondent's submissions filed on 31 May 2021. (3) An order pursuant to s. 64(1)(d) of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure to the Applicant of the confidential version of Matthew Ryan's statement, the confidential attachments to his statement and the confidential version of the Respondent's submissions filed on 31 May 2021. Catchwords: PRIVACY – confidential documents - s. 64 Civil and Administrative Tribunal Act 2013 (NSW) Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Administrative Decisions Tribunal Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Court Suppression and Non-Publication Orders Act 2010 Government Information (Public Access) Act 2009 Guardianship Act 1997 (NSW) Privacy and Personal Information Protection Act 1998 Cases Cited: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 Bellamy v Bellamy [2018] NSWSC 534 DRJ v Commissioner of Victims Rights [2020] NSWCA 136 Misrachi v Public Guardian [2019] NSWCA 67, at [13] Miss BCG (2015) NSWCATGD 61 SF v Shoalhaven City Council (2013) NSWADT 94 SL v University of Sydney [2011] NSWADT 65 State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 Tilly v Children's Guardian [2017] NSWCA 174 Category: Principal judgment Parties: EQH - Applicant Health Administration Corporation - Respondent Representation: Applicant - In person Respondent – Ms A Sapienza, for the Crown Solicitor File Number(s): 2021/00091004 Publication restriction: An order pursuant to s64(1)(a) Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure of the name of (EQH). An order pursuant to s. 64(1)(a) of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the names of the employee and of the witness. An order pursuant to s. 64(1)(c) of the Civil and Administrative Tribunal Act prohibiting the publication of the confidential matters contained in the confidential version of Matthew Ryan's statement, the confidential attachments to his statement and the confidential version of the Respondent's submissions filed on 31 May 2021. An order pursuant to s. 64(1)(d) of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure to the Applicant of the confidential version of Matthew Ryan's statement, the confidential attachments to his statement and the confidential version of the Respondent's submissions filed on 31 May 2021. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. REASONS FOR DECISION 1. On 1 April 2021, the Applicant filed an application seeking a review of conduct of the Respondent. The Applicant, known under a pseudonym ("EQH") alleges that the Respondent contravened several of the Information Protection Principles (IPPs) contained within Division.1 of Pt.2 of the Privacy and Personal Information Protection Act 1998 ("the PPIP Act"), and their equivalents in the Health Records and Information Privacy Act 2002 ("the HRIP Act"). 2. When such an application is made, the Administrator (in this case the Health Administration Corporation) ("the Respondent") must lodge material documents with the Tribunal; Administrative Decisions Act 1997 (NSW), s58(1). The documents, generically referred to as s58 documents, include any statement of reasons for the decision and "a copy of every document or part of a document that is in the possession, or under control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal"; s58(1)(b). 3. The Respondent filed and served a bundle of documents as required by s58 of the ADR Act, but seeks three confidentiality orders pursuant to s 64 of the Civil and Administrative Act 2013 (NSW) ("the Cat Act") in relation to parts of the statement and attachments of Mr Matthew Ryan and its submissions in the substantive proceedings. The Respondent submits in this interlocutory application that disclosure of the confidential material would identify personal information an employee of the Respondent and other matters which may lead to a breach of the PPIP Act and the Government Information (Public Access) Act 2009 ) ("the GIPA Act"). 4. These reasons for decision relate to an application filed by the Respondent on 24 June 2021, seeking the following orders pursuant to s64 of the CAT Act, to exclude the release of information and the identity of personal information contained in the statement and written submissions. 1. An order pursuant to s. 64(1)(a) of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the names of the employee and of the witness. 2. An order pursuant to s. 64(1)(c) of the Civil and Administrative Tribunal Act prohibiting the publication of the confidential matters contained in the confidential version of Matthew Ryan's statement, the confidential attachments to his statement and the confidential version of the Respondent's submissions filed on 31 May 2021. 3. An order pursuant to s. 64(1)(d) of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure to the Applicant of the confidential version of Matthew Ryan's statement, the confidential attachments to his statement and the confidential version of the Respondent's submissions filed on 31 May 2021. 1. The Applicant concedes that the Tribunal should make orders in accordance with the proposed orders sought (1) and (2) above. The only order which is in contention is the proposed order (3). 2. In support of this preliminary application the Respondent filed written submissions with the originating application on 24 June 2021. The Applicant also filed written submissions in reply on 12 July 2021. The Hearing 1. The Applicant EQH was represented by her agent. The Respondent was represented by the Crown Solicitor, Ms A Sapienza. The documents in dispute 1. On 31 May 2021, the Respondent filed a confidential and open version of the statement of Matthew Ryan, including annexures and the Respondent's submissions. The parts of Mr Ryan's statement at paragraphs [15]-[16] and [32] as marked in red, attachments marked 'MR-6', 'MR-7', 'MR-9', 'MR-10' and 'MR-23' of Mr Ryan's statement, and the parts of the Respondent's written submissions marked in red at paragraphs [10], [12], [41] and [44] are the relative parts of the bundle in which the Respondent asserts collectively as 'the Confidential Information'. 2. The Confidential Information essentially comprises the following: 1. an investigation report into an employee of the Respondent who is not the Applicant; 2. documents outlining action taken by the Respondent in respect of findings in the investigation report, which action does not relate to the Applicant; 3. the employee's training records; and 4. descriptions or discussions of the contents of such documents. 1. It is this information the Respondent seeks an order pursuant to s. 64(1)(d) of the CAT Act. 2. I have considered and note the Respondent's submissions that consideration has been given to redacting certain details from the Confidential Information to overcome concerns about disclosure. Despite redaction, the Respondent maintains that it would not be effective as the redacted information is likely to disclose personal information from the content and context of the surrounding information. I accept this submission. Background to the Substantive Application 1. I have adopted a summary of the background to the substantive application as contained in the Respondent's submissions. 'The question that arises in the proceeding is whether, due to a contravention of HPP5(1)(c), the Respondent is responsible for the conduct of the employee in accessing the Applicant's personal and health information other than as required in exercise of her duties. On 3 May 2021, the Tribunal directed, by consent, that the issue of the Respondent's liability for the conduct of the employee be heard and determined first. HPP5(1)(c) relevantly obliges the Respondent to ensure that the Applicant's health information 'is protected, by taking such security safeguards as are reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure, and against all other misuse.' It may be observed that, to the extent that the Confidential Information relates to a claim that the Applicant requested the employee to access her information, any such request is irrelevant to the question of the reasonableness of safeguards taken by the Respondent against unauthorised access of that information. The Respondent accepts that, whether requested to or not, the employee should not have accessed the Applicant's health information otherwise than as required in the course of her duties. Whether or not the Applicant requested the employee to access her information may be relevant to the loss or damage allegedly suffered by the Applicant as a result of any such contravention, but it is not relevant to whether the Respondent contravened HPP5(1)(c) and was, therefore, responsible for the conduct of the employee.' 1. The above is a summary of the substantive application and the Respondent's contentions that are relevant to this application. Relevant Statutory Provisions 1. I have set out below the relevant statutory provisions. 2. Section 64 of the NCAT Act provides that: "64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders - (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings." 1. The Tribunal, therefore, before making an order under s61(1)(d) of the CAT Act, must be satisfied that it is desirable to do so by reason of the confidential nature of the evidence of the document or for any other reason. 2. Ordinarily, the Tribunal is bound by principles of procedural fairness or natural justice. It 'may enquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice' (the CAT Act, s38(2)). An express exception to this is found at s64(1)(d) of the CAT Act. The Tribunal is permitted pursuant to that section to make an order that evidence be withheld from a party if the Tribunal considers this to be 'desirable'. The word 'desirable' should be interpreted with regard to the most basic common law precept of open justice (see State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61], with reference to the predecessor to s64(1) of the CAT Act, being s75(2) of the Administrative Decisions Tribunal Act 1997 (as it was then known)). 3. In Bellamy v Bellamy [2018] NSWSC 534 at [30], Parker J said, with respect to s64(1)(d): "Section 64(1)(d) is a provision which applies generally to the proceedings in the Tribunal. Most proceedings in the Tribunal are ordinary adversarial proceedings and in those proceedings the rules of natural justice generally apply so as to require the Tribunal to afford various procedural safeguards to the parties. One elementary safeguard is that, except in extraordinary circumstances, the rules of natural justice prevent a party from being deprived of an opportunity to make full submissions on the issues to be decided by not being provided with all of the evidence which is before the Tribunal." 1. The Court of Appeal has noted the 'sharp contrast' between s64, which permits an order preserving confidentiality of documents to be made where the Tribunal considers it to be 'desirable', and the 'relatively onerous' regime for suppression orders established by the Court Suppression and Non-Publication Orders Act 2010. See, Misrachi v Public Guardian [2019] NSWCA 67, at [13]; DRJ v Commissioner of Victims Rights [2020] NSWCA 136 ("DRJ"), at [23]. In particular, as observed by Leeming JA in DRJ at [24]: "[i]t is to be firmly borne in mind that an application for merits review in a State Tribunal is quite different from commencing civil proceedings in the Supreme Court. When the applicants commence proceedings in the Supreme Court, the principle of open justice was engaged, as was noted in Tilly v Children's Guardian [2017] NSWCA 174 at [46]. Open hearings are a hallmark of curial determination of proceedings." His Honour went on to say at [27]: "The important role of public and professional scrutiny of curial proceedings explains the significance between the powers in section 64 of the Civil and Administrative Act 2013 and the Court Suppression and Non-Publication Orders Act." 1. In Dezfouli at [81], the Appeal Panel set out the following considerations of relevance in a case determining whether an order pursuant to the equivalent of s64 should be made as follows: "(a) the presumption if favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of 'desirability'; (d) the important differences between the types of suppression order that may be made - between (for instance) an order as in this case prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served ('any other reason'); (f) the possibility that the purposes to be served may be a mixture of private and public interest; and (g) the possibility that, although generally speaking the prospect of damage to reputation or 'embarrassment' affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order." 1. Considerations (f) and (g) in this application are not relevant. The nature of the order sought (consideration (d)), is relevant and weighs in favour of strong reasons for making an order being required (consideration (b)). However, consideration (e) clearly demonstrates that s64 confers a discretion on the Tribunal to make a non-disclosure order for a broad range of reasons. 2. In my view the most relevant considerations, as mentioned in Dezfouli, are (a), the open justice principle, and consideration (b), the need to establish good grounds, or good reason, for making the order. The Principle of Open Justice 1. The High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, 98 - 100, confirmed the proposition that by putting the substance, rather than precise details, of allegations to a person is a procedurally fair manner in which to approach information provided on a confidential basis where there is a public interest in preserving a flow of information to an agency. 2. I have reviewed the Confidential Bundle which contains the documents the Respondent seeks an order pursuant to s64(1)(d) of the Cat Act. I am satisfied that the Applicant, and open justice, is adequately safeguarded by the fact that she has been informed of the substance of the information held by the Respondent in respect of the substantive matter. I find that by the Respondent redacting the Confidential Information will not deprive the Applicant of the opportunity to put the case before the Tribunal. I find that attachment MR -17 at pages 356 and 361 demonstrate that the Respondent has informed the Applicant of the substance of her complaint of inappropriate access to her personal and health information was investigated and a finding being made that the employee did access her health information without a reason to do so relating to her duties of employment. The investigation found the employee breached her obligations under the NSW Health Code of Conduct, and the matter was referred for consideration of further action. 3. I am satisfied at MR-8 the substance of the allegation that the Applicant asked the employee to access her personal and health information, the principle of open justice is adequately safeguarded in so far as the Applicant has been informed of the substance of those allegations in that attachment. 4. I reject the Applicant's submissions that she would be disadvantaged in preparing for the substantive matter should the proposed order (3) be made. I am not satisfied the Applicant would be deprived of being able to put her case to the Tribunal given my findings that the substance of the allegations are available in accordance with the principles in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs. 5. I am satisfied that the presumption in favour of open justice can be maintained by making the proposed order 3. Grounds for Making the Order 1. I find that it would be desirable to make an order under s64(1)(d) such that the Confidential Information, absent such an order, is information which if disclosed would likely be subject to an overriding public interest against disclosure if an application were made pursuant to the Government Information (Public Access) Act 2009 ("the GIPA Act"). In this regard the operation of s20(5) of the PPIP Act is relevant and provides: "Without limiting the generality of section 5, the provisions of the Government Information (Public Access) Act 2009 that impose conditions or limitations (however expressed) with respect to any matter referred to in section 13, 14 or 15 are not affected by this Act, and those provisions continue to apply in relation to any such matter as if those provisions were part of this Act." 1. The application of s20(5) of the PPIP Act is such that the agency is not required to disclose government information which is subject to an 'overriding public interest against disclosure' within the meaning of those words in the GIPA Act. (See SL v University of Sydney [2011] NSWADT 65; SF v Shoalhaven City Council (2013) NSWADT 94, where Judicial Member Montgomery held, at [174], that '[a]n application made under the PPIPA should not yield a different outcome to an application made under the GIPA Act where the facts and circumstances are not materially different'.) 2. Generally, s5 of the GIPA Act provides a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Section 13 of the GIPA Act provides that there is an overriding public interest against disclosure for the purposes of the GIPA Act if, and only if, there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 3. I am satisfied that the purpose and operation of s20(5) of the PPIP Act, in retaining the relevance of an overriding public interest against disclosure for the purposes of that Act, would be frustrated if a person could obtain access to the same information simply by making a privacy complaint to the Tribunal. 4. The table to s14 of the GIPA Act lists public interest considerations against disclosure that are permitted to be weighed against the public interest in favour of disclosure of government information. 5. For similar reasons as above, I am satisfied that clauses 3(a) and 1(f) of the table to s14 of the GIPA Act are apposite. In that regard the Confidential Bundle of information could reasonably be expected to reveal individuals' personal information and contravene a principle under the PPIP Act because a number of the documents in that bundle record opinions held or things known by various persons. Disclosure of the Confidential Information could also in my view, reasonably prejudice the effective exercise by the Respondent of its' functions, namely, the carrying out of investigations of employees misconduct. The disclosure of investigations and Confidential Information may lead in the future, to an employee having little or no trust in the agency conducting such investigations which are often undertaken on a confidential basis. 6. I do not accept the Applicant's submissions that the Tribunal will not be in a position to determine the liability of the Respondent in the substantive matter if the proposed order (3) is made. It will be incumbent upon the Tribunal in deciding the substantive matter to consider all of the evidence which will include any Confidential Information pertaining to the proposed order (3). I have considered the Applicant's submissions in terms of the GIPA Act being not relevant and the contention that the Applicant is not seeking personal information of any individual which would engage or offend the PPIP Act. Given the reasons as set out above, I reject those submissions as they are misconceived. 7. When weighing the public interest considerations against disclosure with the public interest in favour of disclosure, I find that the balance weighs in favour of non-disclosure of the information. The Confidential Information outweighs the public interest considerations in favour of disclosure. 8. I therefore find it desirable to make an order pursuant to s64(1)(d) of the NCAT Act in respect of the Confidential Information. Orders 1. An order pursuant to s. 64(1)(a) of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the names of the employee and of the witness. 2. An order pursuant to s. 64(1)(c) of the Civil and Administrative Tribunal Act prohibiting the publication of the confidential matters contained in the confidential version of Matthew Ryan's statement, the confidential attachments to his statement and the confidential version of the Respondent's submissions filed on 31 May 2021. 3. An order pursuant to s. 64(1)(d) of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure to the Applicant of the confidential version of Matthew Ryan's statement, the confidential attachments to his statement and the confidential version of the Respondent's submissions filed on 31 May 2021. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 Amendments 30 August 2021 - Representation - insert 'for the' (respondent) 12 January 2022 - Pursuant to s 63 of the Civil and Administrative Tribunal Act and to give effect to Orders of the Tribunal made 3 May 2021 the name of the Respondent is amended to 'Health Administration Corporation' 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: 12 January 2022