Dezfouli v Justice Health [2009] NSWADT 97

CITATION: Dezfouli v Justice Health [2009] NSWADT 97

DIVISION: General Division

APPLICANT Saeed Dezfouli PARTIES: RESPONDENT Justice Health

FILE NUMBER: 083374

HEARING DATES: 1 April 2009

SUBMISSIONS CLOSED: 29 April 2009

DATE OF DECISION: 7 May 2009

BEFORE: Molony P - Judicial Member

LEGISLATION CITED : Freedom of Information Act 1989 Administrative Decisions Tribunal Act 1997

Dezfouli v Justice Health [2009] NSWADT 80 CASES CITED: Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 56 Lidden v Composite Buyers (1996) 139 ALR 549 White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR

APPLICANT In person REPRESENTATION: RESPONDENT G Singh, solicitor

ORDERS: This application is adjourned pending the outcome of the Tribunal's determination of the s 25(1b) issue in Tribunal File No 083188.

REASONS FOR DECISION 1 Mr Dezfouli has applied to review a decision of Justice Health to refuse him access to his medical records under s 25(1b) of the Freedom of Information Act 1989. That decision was made on internal review on 22 October 2008. It confirmed an earlier decision made on the same ground on 10 September 2008. Mr Dezfouli filed his application for review of the decision by the Tribunal on 18 December 2008. 2 Section 25(1b) of the FOI Act provides that an agency may refuse access to documents 'if it is a document that is available from, or available for inspection at, that agency, free of charge, in accordance with that agency's policies and practices.' 3 Mr Dezfouli is a forensic patient having been detained under s 39 of the Mental Health (Criminal Procedure) Act 1990. Justice Health maintains that Mr Dezfouli has access to his medical records at monthly meetings with Justice Health staff organised for that purpose, among others, after intervention by the Ombudsman. Mr Dezfouli has not attended those meetings since June 2007. Mr Dezfouli says he does not attend because he was 'insulted, provoked, humiliated and interrogated' at the meetings he did attend. 4 This decision to refuse Mr Dezfouli access to his medical records under s 25(1b) is not the first such decision made by Justice Health. With respect to an earlier decision by Justice Health to refuse him access to earlier medical records, on exactly the same grounds, Mr Dezfouli filed an application for review with the Tribunal on 13 June 2008. 5 That application was listed for two planning meetings before a Judicial Member on 5 August 2008 and 28 October 2008. Mr Dezfouli participated in the first planning meeting, following which statements and submissions were filed by Justice Health. Mr Dezfouli did not participate in the second planning meeting as he was not available by telephone as requested. Justice Health was legally represented. The Tribunal made directions for the filing of submissions by Mr Dezfouli. 6 Mr Dezfouli subsequently, on 8 November 2008, applied for the Judicial Member hearing that application to disqualify herself in that matter, and another matter in which Justice Health is the respondent. There has since been a hearing on that issue, on 10 February 2009, at which the Judicial Member reserved her decision on that issue. 7 When Mr Dezfouli filed the present application he wrote to the Registrar specifically requesting that it be listed before a Judicial Member other than the member who was hearing his earlier application. 8 Justice Health now seeks an order that this proceeding be adjourned pending the determination of the first proceedings. Mr Dezfouli opposes any adjournment. I considered the adjournment application at a preliminary hearing at which I heard submissions from both parties on the question. 9 Because there was a degree of disagreement between the parties as to the precise course of events followed in the earlier application, and as I was could not locate the relevant Tribunal file to find out for myself, I was unable to determine the adjournment application at the end of the preliminary hearing. I indicated to the parties that I would consult the relevant Tribunal file in order to determine what had occurred, and then give a decision in writing. 10 The course of events outlined above represents the Tribunal's record of what has transpired in the first proceedings. 11 Since I reserved my decision, the decision in Dezfouli v Justice Health [2009] NSWADT 80 has been published. The Judicial Member before whom the earlier application is listed has refused to disqualify herself. Consideration 12 There is no doubt that the primary, substantive issue to be determined in this case is the same as that to be determined in the earlier application for review; i.e. whether Justice Health was entitled to refuse Mr Dezfouli access to his medical records under s 25(1b). This will involve a consideration of whether the monthly meetings organised between Mr Dezfouli and Justice Health staff, at which he is said to have access to his medical records, equate to a "policy or practice" in accordance with which Mr Dezfouli's medical records are available for inspection at the agency without charge. Mr Dezfouli says that they do not, and that because he was 'insulted, provoked, humiliated and interrogated' at the meetings he did attend, he does not in reality have the access Justice Health says he enjoys. 13 There was agreement that these issues fall to be determined in both the application before me and in the earlier application. 14 Justice Health regards these issues as important, to the extent the Crown Solicitor has been retained to represent it in the earlier proceedings, with the attendant costs of doing so. Justice Health submitted it should not be required to argue and pay the costs of the same case twice. 15 Further, Justice Health argued that Mr Dezfouli is engaged in forum shopping within the Tribunal. He is seeking to have the issues determined by a Judicial Member other than the Member who is already seized of them. This, it was submitted, amounted to an abuse of process, and would, if successful, result in the course of justice being perverted. 16 In response Mr Dezfouli opposed the application for adjournment for a number of reasons. 17 First he said that if the other Judicial Member does not disqualify herself he will take the matter to the Appeal Panel. If unsuccessful before the Appeal Panel, he said, 'I will take the matter to the Supreme Court and it might take one, two three years.' This would result in the present application, if adjourned, not being dealt with during that process. 18 Secondly, he said, that this is a separate application with its own merits. He acknowledged that Justice Health had taken the same point with respect to his access to his medical records, albeit for different periods, in respect of both applications. He said that the other application, while pending, will not proceed because of the disqualification issue. It would, in his view, be contrary to the principles of justice to delay the determination of this application until the earlier application is decided. 19 I asked Mr Dezfouli what he said to the suggestion that he was forum shopping and that this was an abuse of process. He denied this saying that Justice Health was painting a false picture of him, and seeking to avoid its legal obligations to give him access to his medical files. He submitted that in seeking the adjournment Justice Health was endeavouring to 'cover up their unlawful conduct of tampering with his medical file, destroying documents in the medical file, and not releasing the documents.' 20 The present application asks the Tribunal to review Justice Health's decision to refuse Mr Dezfouli access to his medical records for a specific period on the ground specified in s 25(1b) of the FOI Act. Mr Dezfouli's earlier application asks the Tribunal to review Justice Health's decision to refuse Mr Dezfouli access to his medical records for an earlier period on the ground specified in s 25(1b) of the FOI Act. In both cases, if the Tribunal finds that the refusal was not justified, then the Tribunal will either have make a fresh determination with respect to Mr Dezfouli's request for access to those medical records or, more probably, remit the application to Justice Health for reconsideration. Ultimately, it is possible that different issues might then arise for consideration in each case, due to the differing nature the medical records for each period which may give rise to differing claims for exemption. Mr Singh who appeared for Justice Health conceded that if the Tribunal found that the refusal in either case was not justified under s 25(1b), then it would have to reconsider its position in the both cases. 21 When Mr Dezfouli made this application the earlier application had already been to two planning meetings (the last of which Mr Dezfouli did not participate through no fault of his own), evidence had been filed, and the Judicial Member had made directions for its further progress within the Tribunal. Mr Dezfouli was well aware of this and had, on 8 November 2008, asked that Judicial Member to disqualify herself. When he filed the present application, more than a month later, he wrote to the Registrar requesting that it be listed before a different Judicial Member. 22 When it was put to Mr Dezfouli that he was engaged in forum shopping, and that this was an abuse of process, he prevaricated and avoided the issue. I directed him to the issue twice, but on each occasion he did not address the question instead attacking the bona fides of the agency. 23 Mr Dezfouli's reasons for opposing the agency's adjournment request, because this case might be long delayed while he pursues the disqualification application, supports the contention that his true motivation in making and prosecuting the present application is to have the issues determined by someone other than the Judicial Member seized of his earlier application. His reluctance to address suggestions that he is manipulating the Tribunal's process and engaging in forum shopping reinforces that contention. 24 It is evident, and I accept, that Mr Dezfouli's predominant purpose in making the present application is to have those issues determined by a Judicial Member other than the member who is considering the earlier application. This is his collateral, but predominant, objective. There is no doubt that he wishes to have the issues determined, but not by the Judicial Member seized of the initial application. 25 I also accept that if the present application is not adjourned and proceeds the Agency will be put to additional costs and expense. At the same time there will be an additional public cost incurred by the Tribunal embarking on a separate hearing of matters already before it. 26 Justice Health has not sought an order that Mr Dezfouli's claim be dismissed on the ground that it is frivolous or vexatious or otherwise misconceived or lacking in substance under s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1997 . Rather, Justice Health seeks an order that the proceedings be adjourned pending the determination, in the earlier proceedings, of whether the agency was entitled to refuse access to Mr Dezfouli medical records under s 25(1b) of the FOI Act. 27 The course proposed by Justice Health impresses me as a sensible one, preserving for later determination claims for exemption which may arise in respect to individual documents, should its blanket reliance on s 25(1b) fail. 28 As I accept that Mr Dezfouli's predominant purpose in making the present application is to have that issue determined by a Judicial Member other than the member initially seized of it, the case for adjourning becomes even stronger. This is so because Mr Dezfouli, by filing this application in pursuit of that objective, is manipulating the Tribunal's processes in order to achieve his desired result: irrespective of the ultimate outcome of his application to have the other Judicial Member disqualify herself. That is not a purpose for which the Tribunal's processes are intended. 29 In Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 56, Merkel J at [11] said: It is well established that, prima facie, it is vexatious and oppressive for a second or subsequent action to be commenced in a court in Australia if an action between the same parties is already pending with respect to the same subject matter in an Australian court. In such circumstances it would lie on the party who brings the second action to show that it was not so: see The Christianberg (1885) 10 PD 141 at 148 per Lord Esher M R and Slough Estates Ltd v Slough Borough Council [1968] Ch 299 at 315 . 30 In White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169 at 239-241 Goldberg J considered the principles applicable to abuse of process to achieve a collateral purpose. His Honour said that: … it seems to me that there is a process of abuse of process independently of the tort of abuse of process strictly so-called which occurs when a party conceives or implements a purpose for misusing or manipulating the court process for purposes other than those for which the court process is intended. 31 In Lidden v Composite Buyers (1996) 139 ALR 549 at 559, Finn J said: Where proceedings have been started in one court, it is an abuse of process to duplicate proceedings in another court when a complete remedy is available in the first court. It likewise seems the case that where proceedings are pending in a court, a separate action in the same court should at least be stayed where both actions involve the same parties and the same subject matter and where the hearing of the first will effectively dispose of the need for the hearing of the second. 32 In my opinion the present application should be adjourned pending the Tribunal determination of the s 25(1b) issue in Mr Dezfouli's first application. The issues there are identical to those here. Once that determination is made any issues which might then arise can be considered. Conclusion 33 This application is adjourned pending the outcome of the Tribunal's determination of the s 25(1b) issue in Tribunal File No 083188.