Attorney General in and for the State of NSW v Bar-Mordecai [2013] NSWSC 393

Supreme Court New South Wales

Medium Neutral Citation: Attorney General in and for the State of NSW v Bar-Mordecai [2013] NSWSC 393 Hearing dates: 19 April 2013 Decision date: 22 April 2013 Jurisdiction: Common Law Before: Schmidt J Decision: Applications not granted. Catchwords: PROCEDURE - judgment - application to remove paragraph from judgment - alleged breach of s 68 of the Health Records and Information Privacy Act 2002 - no breach - application not granted

PROCEDURE - courts and judges generally - bias - apprehended bias - application for her Honour to recuse herself - not granted Legislation Cited: Health Records and Information Privacy Act 2002 Judicial Officers Act 1986 Vexatious Proceedings Act 2008 Cases Cited: Attorney General in and for the State of New South Wales v Bar-Mordecai [2013] NSWSC 129 Category: Procedural and other rulings Parties: Attorney General in and for the State of NSW (Plaintiff) Michael Jacob Bar-Mordecai (Defendant) Representation: Counsel: M Lynch (Dr XY) Solicitors: Mr D Galbraith Crown Solicitor's Office (Plaintiff) Mr Bar-Mordecai (unrepresented) (Defendant) Avant Legal (Dr XY) File Number(s): 2004/180898 Publication restriction: None

Judgment 1Judgment was given in this matter on 27 February 2013 (see Attorney General in and for the State of New South Wales v Bar-Mordecai [2013] NSWSC 129). The matter is next listed in June, for determination of the question of costs. 2By letter of 9 April 2013, Mr Bar-Mordecai claimed that at paragraph [57] of the judgment I had corruptly disclosed his private health information, with the result that there had been a breach of s 68 of the Health Records and Information Privacy Act 2002. Mr Bar-Mordecai's complaint was that a referral letter concerning him had there been quoted. 3In the result Mr Bar-Mordecai asked that paragraph [57] of the judgment be withdrawn and that I recuse myself from further hearing the proceedings. 4Both applications were opposed by the Attorney General and Dr XY. After hearing the parties, I indicated that the applications could not be acceded to. These are the reasons for that conclusion. 5Mr Bar-Mordecai's complaint was that the referral letter had been quoted. It was sufficient, on his submission, for the letter to have been referred to. He submitted that the reason for his referral to Dr XY was not relevant to Dr XY's alleged negligence and thus ought not to have been disclosed in the judgment. In the circumstances, quoting the letter involved a breach of s 68. 6Neither submission could be accepted. 7Mr Bar-Mordecai was declared a vexatious litigant on 25 February 2005. These proceedings concern an application he made under the Vexatious Proceedings Act 2008, for leave to bring proceedings in negligence against Dr XY, a psychiatrist. In the February judgment I concluded that his application for leave had to be refused. 8At paragraph [57] of the judgment I quoted the referral letter sent to Dr XY by Mr Bar-Mordecai's former GP. It had been tendered without objection. The referral letter was relevant to an issue lying between the parties as to the reason for Mr Bar-Mordecai's referral and what he was thereafter treated for by Dr XY. 9In order to succeed on his leave application, Mr Bar-Mordecai had to establish that he had a prima facie case that Dr XY had been negligent. In order to do so, amongst other things, he had to establish what treatment he had sought of Dr XY and what treatment Dr XY had provided. They were in issue. The referral letter was relevant to those matters. It was tendered without objection and reference was made to it in the submissions which the parties advanced. 10The letter was quoted in the part of the judgment where I outlined the evidence on which the question of whether Mr Bar-Mordecai had established a prima facie case had to be determined. Contrary to Mr Bar-Mordecai's submissions the letter, and particularly the reason for his referral to Dr XY, was relevant to a determination of the issues arising in these proceedings. 11In the result, the application for removal of paragraph [57] from the judgment could not be granted. Nor could the application that I recuse myself. 12Section 68 provides: "68 Corrupt disclosure or use of health information by public sector officials (1) A public sector official must not, otherwise than in connection with the lawful exercise of his or her official functions, intentionally disclose or use any health information about an individual to which the official has or had access in the exercise of his or her official functions. Maximum penalty: 100 penalty units or imprisonment for 2 years or both." 13In s 4, a "public sector official" is defined to include "(b) a judicial officer within the meaning of the Judicial Officers Act 1986". Quoting a letter containing health information relating to a party, which has been tendered in the proceedings in a judgment given in those proceedings, is plainly done in the course of the exercise of judicial functions and so can involve no breach of s 68. 14That conclusion is confirmed by s 13 of the Act which provides: "13 Courts, tribunals and Royal Commissions not affected (1) Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court's, or the tribunal's, judicial functions. (2) Nothing in this Act affects the manner in which a Royal Commission, or any Special Commission of Inquiry, exercises the Commission's functions. (3) In this section, judicial functions of a court or tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it, and includes: (a) in relation to a justice-such of the functions of the justice as relate to the conduct of committal proceedings, and (b) in relation to a coroner-such of the functions of the coroner as relate to the conduct of inquests and inquiries under the Coroners Act 2009." 15Both of Mr Bar-Mordecai's applications were pressed on the basis of an alleged breach of s 68. That there had been such a breach could not be accepted in the circumstances and accordingly, they both had to be refused.