AF v Healthquest [2009] NSWADT 28

Set aside by Appeal :

CITATION: AF v Healthquest [2009] NSWADT 28

DIVISION: General Division

APPLICANT AF PARTIES: RESPONDENT Healthquest

FILE NUMBER: 073365

HEARING DATES: 2 December 2008

SUBMISSIONS CLOSED: 30 January 2009

DATE OF DECISION: 9 February 2009

BEFORE: Wilson R - Judicial Member

CATCHWORDS: Issue of summonses to produce documents - Issue of summonses for witnesses to attend to give evidence

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997

APPLICANT In person REPRESENTATION: RESPONDENT K Mattes, solicitor

1. Summonses may be issued at the request of the applicant to Steve Davison, Richard Boggon, Emilia Cvetkovic and Rae Giffin to attend at the substantive hearing for the purpose of giving evidence ORDERS: 2. A summons may issue at the request of the applicant to Telstra Corporation Ltd to produce records as to the three telephone calls listed in the schedule to the draft summons to that corporation which is part of exhibit A3 3. A summons may issue at the request of the applicant to New South Wales Health to produce all records evidencing the establishment of the HealthQuest Board in 2006 and 2007 4. A summons may issue at the request of the applicant to the Roads and Traffic Authority to produce documents as set forth in the schedule to the draft summons to the RTA contained in exhibit A3.

REASONS FOR DECISION 1 The applicant commenced the substantive proceedings in the Tribunal seeking to review conduct of the respondent which is alleged to have been in breach of privacy legislation: either the Privacy and Personal Information Protection Act 1998 or the Health Records and Information Privacy Act 2002. During the course of preparing the matter for hearing, issues have arisen concerning summonses that the applicant seeks to have issued. By consent, the issues on this point were heard and argued on 02.12.08, whereupon the Tribunal initially reserved its decision. The applicant had filed written submissions (exhibits A1 and A2) at that stage. The applicant filed further written submissions on 09.12.08 and, given the vacation period, the respondent was allowed time to file any submissions in response by 30.01.09. 2 The applicant has filed draft summonses for the production of documents directed to the Roads and Traffic Authority (NSW), to New South Wales Health and to Telstra Corporation Ltd. She also seeks summonses directed to six named persons to attend at the substantive hearing of the proceedings for the purpose of giving evidence. These individuals are, or were at relevant times, employees of either HealthQuest or the RTA. The draft summonses to produce are exhibit A3 and the applicant has identified the witnesses in her written submissions. 3 Whilst the legal representative appearing for the respondent has no instructions from the persons and entities to whom the summonses have issued, save for Ms Hennessy and Ms O'Toole, who are still employees of the respondent, she has appeared and presented argument in relation to the summonses so as to provide assistance to the Tribunal. For this assistance the Tribunal is grateful. 4 At hearing the parties outlined the issues and arguments that will be advanced at a later stage. The Tribunal has also referred to the written submissions filed for this purpose. The applicant also requested the Tribunal to review the evidence filed by the parties, however this is not necessary at present as the oral and written submissions are sufficient for the task at hand. 5 The substantive proceedings concern acts of the respondent and of the RTA concerning the applicant's personal information. In June 2007 the applicant was an employee of the RTA and was in the course of resuming her employment after an absence pursuant to a program that had been put in place by her employer. Her earlier absence from work was upon medical grounds. She provided a number of medical certificates to the RTA's workcover insurer, Also, it seems, she provided other medical documents relating to her health to her employer which, it is alleged, had a connection with litigation between the applicant and her employer that was on foot as well as further document which related to an internal investigation conducted by the RTA. 6 On 20.06.07, the respondent received a written request from the RTA to prepare an assessment, putting it generally, of the applicant's fitness to continue employment with the RTA. Attached to this request were other documents, referred to above, recording information about the applicant's health and activities. The applicant alleges that the RTA used this information unlawfully and that, for this reason as well as others, the respondent collected this information unlawfully. In this connexion, the applicant also alleges that the collection of this information was unlawful because at material times HealthQuest was not properly constituted and was not officially accredited. These events gave rise to the first contention to be argued in the substantive proceedings. 7 The respondent commenced to undertake this assessment and contacted the applicant to arrange an interview. The applicant, by a series of emails, advised the respondent of certain issues concerning this process. This assessment process was never completed as the applicant resigned her employment with the RTA. The applicant alleges that, even though the assessment was never completed, by embarking on this assessment HealthQuest used the information it had been given contrary to Privacy legislation. These events give rise to the second contention alleged against the respondent. It is also to be argued that the respondent's records incorrectly show the applicant as having retired from her employment with the RTA, whereas the correct position is that she resigned (the third contention to be argued). 8 During the time that the respondent was undertaking the assessment, it received the emails from the applicant already noted above. The respondent passed several of these communications from the applicant to the RTA. These events give rise to the fourth contention to be argued. 9 Also, whilst this assessment process was on foot, an employee of the respondent, one Steve Davison rang the applicant on her private number. The applicant seeks to argue that the making of this call was a usage of information in breach of Privacy legislation (the fifth contention to be argued). 10 The applicant also wishes to argue that she was granted extensions of time in relation to the interview with her proposed by the respondent and therefore to the extent that the respondent's records show that the applicant refused to attend the interview, if such be the case, they are incorrect (the sixth contention). From discussions at the hearing it appears that this particular aspect may well resolve. For present purposes though it should be treated as a potential issue. 11 The applicant has submitted that she wishes to establish that the acts of the respondent are in breach of s.68 of the Privacy and Personal Information Protection Act 1998. This aspect should be put to one side at the moment as it there is obviously a significant issue as to the Tribunal's jurisdiction and powers in relation to such an allegation. 12 Two of the proposed witnesses, Ms Hennessy and Ms O'Toole are current employees of the respondent. A statement by Ms. Hennessy has been filed in the proceedings and the respondent has agreed that she should be made available for cross-examination by the applicant. No statement has been filed by Ms O'Toole, but the respondent has also agreed to make her available as a witness to give evidence in the proceedings. The way in which she is to be examined will be determined at the substantive hearing. However, in relation to these two witnesses there is no need for a summons to issue requiring their attendance at the hearing. 13 As to the remaining summonses, the respondent has provided assistance to the Tribunal by putting forward arguments that question the relevance and usefulness of the materials sought by the summonses to produce and by questioning whether the witnesses could give any evidence that would be of use, given that much of the factual material is common ground. Whilst the applicant did not argue against this directly, she pointed out that the factual issues are more extensive than the respondent perceives them to be. The applicant may be quite correct on this, but this will have to await consideration at the substantive hearing. In the meantime the Tribunal should act upon the broad issues as the applicant has outlined them. 14 In relation to the proposed witnesses Richard Boggon and Emilia Cvetkovic, they were at material times employees of the RTA who were involved in the assessment referral to HealthQuest, on Mr Boggon's part, or with the legal proceedings between the applicant and her employer on Ms Cvetkovic's part. Consequently, they may possibly be able to give evidence relevant to the issues that the applicant seeks to argue. Summonses should therefore issue requiring their attendance to give evidence at the substantive hearing. 15 The proposed witness, Ms Rae Giffin, was an employees of the workcover insurer who dealt with the applicant's claim in relation to her absences from work. It appears that she provided information to the RTA during the course of her duties. This has possible relevance as well and therefore a summons to attend should issue to her. 16 The summons to the Telstra Corporation requiring it to produce documents concerns any documents relating to three specific telephone calls. The making of these calls do not appear to really be in issue in the proceedings. However, the applicant has informed the Tribunal that she has been informed, by an officer of the corporation, that it is possible that these records could obtain a record of the actual conversations but that this will only be ascertained if a summons is issued and served. Whilst there is some doubt about this, the Corporation should have no difficulty in locating relevant documents and therefore, as a matter of convenience, the summons should issue. 17 The summons to New South Wales Health seeks production of documents relating to whether HealthQuest was accredited under relevant legislation at the time. The respondent has accepted that it was not accredited at the time, so there is no factual matter actually in issue to which such documents could go. Consequently, the summons should not require any records relating to accreditation. This summons also seeks records relating to the proper constitution of the HealthQuest Board under the legislation. The respondent accepts, for present purposes, that particular steps were in fact taken arising from some concerns about the appointment of the Board, putting it very generally and imprecisely. If the Board was not properly constituted, the applicant seeks to argue that it had no entitlement to collect information from the RTA and, perhaps, no entitlement to embark upon the assessment of the applicant that the RTA had requested it to undertake. Whilst these arguments do not appear to be very strong ones, it is often the case that proceedings in this Tribunal can turn on an issue like this, so there is some merit in the argument. As the summons in this regard does not seem too onerous it would be appropriate for a summons to issue requiring the production of the records establishing how the Board was established. The summons however should be limited to all records maintained by NSW Health evidencing the establishment of the HealthQuest Board in 2006 and 2007. 18 The draft summons proposed to be issued to the RTA (contained in exhibit A3) is very broad and compliance could involve a significant amount of time on the part of officers dealing with the summons. Parts of the proposed summons cover an extensive period, that between April and November 2007. However, the summons specifies clear criteria by which the documents sought may be ascertained so that it may well be that the RTA is able to manage compliance within reasonable limits. Whilst this remains to be seen, it may well be that compliance with the summons may be achieved by the production of specific files containing the relevant records. Should the RTA take a different view it may seek orders in relation to the breadth of the summons. 19 The critical issue however, is the potential relevance of the documents sought. There are basically four categories of documents specified, all of which the applicant submits have potential relevance: firstly, records which are concerned with the referral by the RTA to HealthQuest seeking a work assessment of the applicant, which clearly have potential relevance; secondly, records of communications between officers of the RTA and officers of HealthQuest concerning this referral, which appear most likely to fall within the first category in any event, and therefore have potential relevance; thirdly, records of communications between the applicant and any of three specified persons who are to be witnesses in the proceedings, which potentially could go towards proving facts in the case or towards the credit of the witnesses, depending upon the evidence they may give, and therefore have potential relevance; and fourthly, communications between these witnesses themselves concerning the applicant, which have similar relevance to documents in the third category. 20 The applicant has essentially based her case on the argument that the specific documents which record the acts of the respondent (such as the referral document) do not fully set out the whole factual matrix, which she argues it is necessary for the Tribunal to know. She has subsequently formulated the terms of this summons with a degree of careful thought so that it is not difficult to see how the type of documents sought could possibly assist her in presenting her case. Whether they in fact do this is, of course, unknown at present. However, it is appropriate that a summons issue to the RTA in the terms set forth in the draft summons to the RTA contained in exhibit A3. 21 The power to issue summonses is conferred upon the Registrar of the Tribunal pursuant to s.84 of the Tribunal's enabling legislation. Accordingly, the issue of the summonses requested by the applicant is referred to the registrar for final determination in accordance with the Act. The substantive proceedings have been adjourned to 12:30 pm on 06.03.09 pending the resolution of these interlocutory matters. Consequently there is no further order needed to advance the proceedings.