Healthquest v AF [2009] NSWADTAP 31

Appeal Panel - Internal

CITATION: Healthquest v AF [2009] NSWADTAP 31

APPLICANT Healthquest PARTIES: RESPONDENT AF

FILE NUMBER: 099012

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 6 May 2009

DATE OF DECISION: 18 May 2009

BEFORE: Chesterman M - Deputy President

CATCHWORDS: Appeal against decision authorising issue of summonses – application for urgent stay

DECISION UNDER APPEAL: AF v Healthquest [2009] NSWADT 28

FILE NUMBER UNDER APPEAL: 073365

DATE OF DECISION UNDER APPEAL: 05/18/2009

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997

Re ACI International Ltd (1986) 11 ACLR 240AF v Healthquest [2009] NSWADT 28 CASES CITED: Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 Elka Simjanovska v Roads and Traffic Authority [2007] NSWIRC 5 Joan Street & Ors v Luna Park Sydney Pty Ltd & Anor [2006] NSWSC 95

APPLICANT J Lucy, solicitor REPRESENTATION: RESPONDENT In person

ORDERS: The issue of the summonses listed in Orders 1 to 4 of the Tribunal's decision dated 20 February 2009 is to be stayed pending the disposition of this appeal or any contrary order of the Appeal Panel.

REASONS FOR DECISION Introduction 1 This decision relates to an application by the Appellant, Healthquest, for an urgent interlocutory order staying the decision under appeal. 2 The decision under appeal, delivered by Judicial Member Wilson on 9 February 2009 (AF v Healthquest [2009] NSWADT 28), was an interlocutory decision made in the course of proceedings previously instituted by the Respondent to the appeal, 'AF'. In those proceedings, AF has applied for a review by the Tribunal of conduct by Healthquest that she alleges to have been in breach of privacy legislation. 3 In the decision under appeal, the Tribunal determined an application by Healthquest for orders setting aside a number of summonses that AF had sought to have issued by the Registrar under section 84 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). The principal ground advanced by Healthquest was that the evidence likely to be obtained through the issue of the summonses was not relevant to the matters to be determined in the proceedings. 4 The Tribunal dismissed this application by Healthquest. It stated in Orders 1 to 4 that seven such summonses, addressed to persons who were not parties to the proceedings, might be issued requiring the recipients to attend and give evidence (in three instances) or to produce specified documents (in the remaining four instances). It expressed the opinion, at [21], that since the power to issue summonses was conferred by section 84 on the Registrar, the issuing of the summonses requested by AF should be referred to the Registrar for 'final determination'. 5 Both of the parties to the proceedings have appealed against this decision. For present purposes, the relevant appeal is that lodged by Healthquest. In its Notice of Appeal, filed on 20 March 2009, Healthquest has claimed that the decision should be set aside on the ground that it contains 'several errors of law'. It has also submitted that, in lieu of remitting the question of the validity of the summonses for redetermination by the Tribunal, the Appeal Panel should itself decide this question. 6 At a directions hearing on 31 March 2009, Magistrate Hennessy, Deputy President, granted leave under section 113(3) of the ADT Act for Healthquest's appeal to be filed out of time. She gave directions for the filing of written submissions and set down the appeal for hearing on 27 May 2009. 7 On 7 April 2009, Healthquest filed an application to the Appeal Panel for an urgent interlocutory order staying the operation of the Tribunal's decision. 8 On 15 April 2009, Deputy President Hennessy directed in chambers (a) that AF should filed and serve any written submissions in reply to Healthquest's application within fourteen days and (b) that the decision on the application should be made 'on the papers', under section 76 of the ADT Act. 9 On 6 May 2009, AF filed written submissions as directed. They included an explanation of why she was unable to observe the stipulated deadline. 10 As the present decision on Healthquest's application for a stay involves the exercise of an interlocutory function within the appeal proceedings, the Appeal Panel is constituted by a single presidential judicial member, pursuant to section 24A(2)(a) of the ADT Act. The arguments advanced by the parties 11 In its application, Healthquest advanced the following reasons for seeking a stay:- Healthquest has appealed against the decision of Wilson JM to issue summonses at the request of [AF]. If the order is not stayed, and the summonses are issued, the outcome of the appeal will be irrelevant. Healthquest originally did not apply to stay the decision, as [AF] had made an application to stay the decision herself. However at a planning meeting today, [AF] stated that she intended to request the Registrar to issue the summons ( sic ) today. 12 The explanation given by AF for exceeding the time limit stipulated for filing her submissions was a reasonable one, and the submissions have been taken into consideration. 13 The principal contention put forward in those submissions is that Healthquest lacked standing to apply for the summonses to be set aside. It follows, AF submitted, that the Tribunal's decision to authorise the issue of the summonses was correct and the appeal was without merit. 14 In making this argument, AF relies on a passage in the judgment of Sams DP in Elka Simjanovska v Roads and Traffic Authority [2007] NSWIRC 5 at [10]. Sams DP held, citing Rule 94(1) of the Industrial Commission's Rules, that in Commission proceedings only the party to whom a summons was addressed can apply for it to be set aside. AF argues that this ruling is applicable to the present case. 15 AF has also raised the following arguments: (a) that the material sought to be obtained through issue of the seven summonses in contention was indeed relevant to the proceedings; (b) that issuing the summonses would 'improve the efficiency of the proceeding' and would not disadvantage Healthquest in any way; and (c) that she was denied procedural fairness through not being provided with a copy of the transcript of the Tribunal hearing. The Appeal Panel's decision 16 Healthquest's argument that the outcome of the appeal will be irrelevant if no stay is granted carries considerable weight, at least so far as the summonses to produce documents are concerned. Assuming that the recipients of these summonses would be likely to comply with them within the period stipulated, Healthquest would be deprived of any opportunity to maintain that the issuing of them should not have been authorised by the Tribunal. 17 The detriment suffered by AF if a stay is granted is distinctly less. If the appeal fails, her access to the documents required by the summons will have been delayed by a period of some weeks. In this connection, it is relevant that the hearing of the appeal is scheduled to take place in only a fortnight's time. 18 A stay would not be appropriate if the appeal lacked any reasonable prospect of success. In this connection, AF's claim that only the recipients of the summonses have standing to apply for them to be set aside is an important matter for consideration. If it were well founded, Healthquest's status as a party to the proceedings would be insufficient to confer standing upon it, and its appeal would have to be dismissed. 19 The authority cited by AF on this question, Elka Simjanovska v Roads and Traffic Authority [2007] NSWIRC 5, does not, however, conclude this question in her favour. The reason is that it is based specifically on Rule 94(1) of the Rules of the Industrial Commission. That Rule expressly provides that a recipient of a summons issued by the Commission may apply to set it aside. No corresponding provision is to be found in the ADT Act or in any other legislative provision applying to the present proceedings. 20 There are in fact conflicting decisions on the question whether a party to court or tribunal proceedings may rely on his or her status as such to claim standing to apply for an order setting aside a summons or subpoena addressed to a non-party. In Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 102, the Supreme Court held that a party did have standing, at least where the ground on which the summons was challenged was that it was an abuse of a process. That decision has been followed in later Supreme Court decisions (see for example Joan Street & Ors v Luna Park Sydney Pty Ltd & Anor [2006] NSWSC 95 at [3 – 6]) and has been applied in the Legal Services Division of this Tribunal (see New South Wales Bar Association v Archer [2004] NSWADT 38 at [51]). But it has also attracted dissent: see for example Re ACI International Ltd (1986) 11 ACLR 240. 21 It is sufficient for present purposes to conclude that Healthquest's claim to have standing, by virtue of being a party, to apply for the relevant summonses to be set aside is at least arguable. In the Appeal Panel's opinion, the same may be said with regard to some, at least, of the grounds for challenging the Tribunal's decision that it has set out in its Notice of Appeal. None of these grounds was expressly opposed in the submissions by AF relating to this application for a stay. 22 Since for the foregoing reasons the grounds of appeal urged by Healthquest are, at the least, arguable and the 'balance of hardship' clearly favours an order in its favour, the Appeal Panel's conclusion is that Healthquest's application should be granted. 23 The Appeal Panel orders that the issue of the summonses listed in Orders 1 to 4 of the Tribunal's decision dated 20 February 2009 is to be stayed pending the disposition of this appeal or any contrary order of the Appeal Panel.