LB v Hunter New England Area Health Service [2009] NSWADT 101

CITATION: LB v Hunter New England Area Health Service [2009] NSWADT 101

DIVISION: General Division

PARTIES: APPLICANT LB

FILE NUMBER: 093058

HEARING DATES: 5 May 2009

SUBMISSIONS CLOSED: 5 May 2009

DATE OF DECISION: 8 May 2009

BEFORE: Handley R - Deputy President

CATCHWORDS: Bias – application for disqualification

Health Records and Information Privacy Act 2002 LEGISLATION CITED : Freedom of Information Act 1989 Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998

CASES CITED: Dezfouli v Justice Health [2009] NSWADT 80 Re JRL; ex parte CJL (1986) 161 CLR 342

APPLICANT In person REPRESENTATION: RESPONDENT A Johnson, solicitor

ORDERS: Application refused.

1 LB has applied for a review of the conduct of the Hunter New England Area Health Service ('the Health Service') under the Health Records and Information Privacy Act 2002 ('the HRIP Act') to deny him access to two documents containing his personal information: (1) a psychological report prepared by a private psychologist, Dr G Lattimore, dated December 2005; and (2) a Mental Health Triage Module, dated December 2005, created by the Hunter New England Mental Health Service, a unit of the Health Service. 2 LB's application to the Health Service for access to the documents, dated 1 December 2008, was refused and LB sought an internal review. This review found that there had been no breach of the health privacy principles HPP 7, Access to personal health information, and HPP 9 Accuracy of personal health information, and determined that access to the documents should continue to be refused on the ground that both documents were exempt or partially exempt pursuant to clauses 13(b) and 16(a)(iv) of Sch 1 of the Freedom of Information Act 1989 ('the FOI Act'). On 2 March 2009, LB applied to the Tribunal for a review of the Health Service's conduct. 3 LB has previously sought access to the documents under the FOI Act. His application to the NSW Commissioner of Police for access to the first document was refused and LB applied to the Tribunal for a review. The Tribunal determined this was an exempt document under cl 4(1)(b) of Sch 1 on the ground that it contained matter the disclosure of which could reasonably be expected "to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained". The Appeal Panel dismissed LB's appeal against this decision. I was not involved in either the initial determination or the appeal. 4 LB's application to the Health Service for access to the second document was refused as to part of the document and LB applied to the Tribunal for a review. On this occasion, I conducted the Tribunal review and determined that the document was partially exempt on the ground, first, that the document contained information obtained in confidence the disclosure of which could reasonably be expected to prejudice the future supply of such information to the agency and would, on balance, be contrary to the public interest (cl 13(b) of Sch 1), and second, contained matter the disclosure of which could reasonably be expected to have a substantial adverse effect on the effective performance by the agency of its functions and would, on balance, be contrary to the public interest (cl 16(a)(iv) of Sch 1). 5 In the current matter, I conducted a planning meeting with the parties on 24 March 2009 at which Ms Johnson raised, as a preliminary issue, the application of s 22 of the HRIP Act which provides that nothing in the Act affects the operation of the FOI Act and, in particular, does not operate to modify any exemption under that Act. I therefore set a timetable for the exchange of submissions on the preliminary issue raised by the Health Service of whether LB's application should be dismissed pursuant to s 73(5)(g)(iii) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act') on the ground that it is frivolous or lacking in substance. I set this preliminary matter down for hearing on 26 May 2009. 6 By letter dated 26 March 2009, addressed to the Registrar, LB requested that I "be removed from dealing with any further matter" LB has before the Tribunal. LB stated: "Mr Handley made it very clear on Tuesday of this week, that he has a predisposed attitude and opinion toward my applications and that he demonstrates a distinct bias against me. It is very clear to me, that his main concern relates to any legal point he can use to support the respondent and create difficulties for me, knowing that I have no legal knowledge of how to deal with these matters. His reference to the objects of the FOI Act, when he only read out Item 2b and did not read all the other items as requested, clearly demonstrates his pedantic attitude and his unwillingness to consider all the items under the heading of objects which clearly and totally support my applications and explain the true meaning and intentions of this Act." 7 On LB's letter being referred to me, I arranged a Directions Hearing to discuss LB's application. LB asked me to disqualify myself on the ground of bias. He referred to my previous handling of his applications and, in particular, to a hearing on 17 October 2008, when he contends, both Ms Johnson and I gave him legal advice. He asked that I listen to an audio recording of that hearing, which I agreed to do. 8 Ms Johnson submitted that there is no evidence of actual or apprehended bias. She referred to the recent Tribunal decision in Dezfouli v Justice Health [2009] NSWADT 80 ('Dezfouli'), where Pearson JM discussed the relevant law. Consideration 9 At the Directions Hearing on 5 May 2009, I referred to an explanation of the bias rule in a publication of the Commonwealth Administrative Review Council, Decision Making: Natural Justice (Best Practice Guide 2, August 2007), at pp 3 - 4: 'Actual bias' means that the decision maker has a predisposition to decide the matter otherwise than with an impartial and unprejudiced mind. 'Apparent bias' means that in the circumstances a fair-minded observer might reasonably suspect that the decision maker is not impartial. In most cases, apparent bias is enough to disqualify a person from making a decision. Whether a decision maker is disqualified or not is a legal question. A decision maker is not disqualified simply because a person whose interests are affected by the decision alleges bias or asks for a different decision maker. It is not about whether an affected person thinks the decision maker is biased; it is about whether a fair-minded observer would reasonably suspect bias. An apprehension or suspicion of bias can arise from things the decision maker says or does not say that suggest he or she is either partial or hostile to one side or has formed prejudgments and is not open to persuasion. A closed mind might be demonstrated by ignoring evidence or dismissing it for insufficient reason. Actual or apprehended bias can arise if a decision maker plays conflicting roles, such as making allegations and fact finding." 10 Ms Johnson referred to the recent decision of Pearson JM in Dezfouli at [17] – [18], which, I agree, succinctly expresses the relevant law: 17 The principles for establishing actual or apprehended bias are clear. Actual bias is established where it is shown that a decision-maker's state of mind "is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 532. The test for apprehended bias is that a fair-minded observer might reasonably apprehend that a decision-maker might not bring an impartial mind to the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy [2000] HCA 63. 18 The High Court has held that a decision maker should not be too ready to agree to a request by a party that he or she disqualify themselves. In Re JRL; ex parte CJL (1986) 161 CLR 342 Mason J said: "The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues ( Reg. v. Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, at pp 258-263; Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, at pp 293-294). This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done. It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established" ( Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554; Watson , at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12, at p 14; 32 ALR 47, at pp 50-51). Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour." 11 It is important to understand that the Tribunal is a creature of statute. It only has such powers as are conferred on it by legislation. At the Directions Hearing, I explained to LB that the role of the Tribunal, on receipt of an application, is to conduct a review of the reviewable decision and "decide what the correct and preferable decision is having regard to the material before it", including any relevant factual material and the applicable law: s 63(1) of the ADT Act. In doing so, the Tribunal may exercise all the functions conferred by law on the administrator: s 63(2). The powers of the Tribunal under the ADT Act are set out in s 63(3). However, the Tribunal may also be endowed with other powers by the provisions of other legislation by which jurisdiction is conferred on the Tribunal, for example, by Privacy and Personal Information Protection Act 1998, s 55(2), and the HRIP Act, s 54. 12 LB has stressed on many occasions that he is seeking justice for what he says is a wrong done to him, and contends that he is being denied the right to access his personal information. Equally, I have explained to him on many occasions that most rights are qualified in some way. The Planning Meeting on 24 March 2009, to which LB refers in his letter, quoted above, was, like most other Planning Meetings, not recorded. My recollection is that, at that meeting, I explained that the right of access to information under the FOI Act is a qualified right. The legally enforceable right to be given access to documents held by the Government referred to in the statement of objects in s 5(2)(b) is stated to be "subject only to such restrictions as are reasonably necessary for the proper administration of the Government". Then, pursuant to s 25(1), an agency may refuse access to an 'exempt document', defined in s 6(1) as including "a document referred to in any one or more of the provisions of Schedule 1". 13 In support of his contention that I have favoured the Respondent in conducting my reviews, LB said to me during the course of the Directions Hearing on 5 May 2009 that in my 2008 decision on his FOI application, I failed to refer to the onus of proof borne by the agency in proceedings under the FOI Act. That is not correct. At paragraph 9 of my decision, I referred to the onus of proof being on the agency to establish that a document to which it denies access is an exempt document, citing s 61 in brackets. With regard to the exemptions relied on by the Health Service, I said at paragraphs 30 and 35 that I was satisfied that the Health Service had established that the exemptions claimed could be justified. I note that if LB was dissatisfied with my decision, it was open to him to appeal that decision to an Appeal Panel pursuant to s 113 of the ADT Act. I understand that he did not do so. 14 At LB's request, I have listened to what I believe are the two relevant parts of the audio recording of the hearing on 17 October 2008, recorded on the third and fourth CDs. At about 57 minutes into the third CD, LB said he had only learned a few weeks ago about his right to make an application under the HRIP Act. He asked me to be "flexible", to use my discretion, and to consider his application not only in relation to the FOI Act but also in relation to the HRIP Act. I told LB that I could not do so because, in this instance, his application being under the FOI Act, I did not have power to review his application as if it were made under the HRIP Act. LB was critical of my being "pendantic" and indicated that he would be making a new application under the HRIP Act. 15 At about three minutes into the fourth CD, the hearing is drawing to a close, both parties having made their submissions. There is a brief discussion about Ms Johnson providing him with information about making an application under the HRIP Act. This was purely a matter of being helpful and providing information about the application process to a person who had indicated earlier that he intended making such an application. 16 In conclusion, I am not persuaded by LB's submissions and the evidence to which he referred that I am actually biased, or that a fair-minded observer would reasonably apprehend that I would not bring an impartial and unprejudiced mind to reviewing the conduct that is the subject of his application in the current proceedings. I therefore refuse LB's application to disqualify myself from these proceedings. Decision 17 Application refused.