ALZ v WorkCover NSW [2015] NSWCATAD 241

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ALZ v WorkCover NSW [2015] NSWCATAD 241 Hearing dates: 3 November 2015 Date of orders: 22 September 2015 Decision date: 03 November 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: Hennessy LCM, Deputy President Decision: ALZ's request to refer certain questions of law to the Supreme Court is refused. Catchwords: ANCILLARY DECISION – request for referral of questions of law to Supreme Court – questions arise from separate Appeal Panel proceedings – applicant has a remedy by way of appeal to the Supreme Court from the Appeal Panel's decision Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 54 Health Records and Information Privacy Act 2002 (NSW) Cases Cited: ALZ v Workcover New South Wales [2015] NSWCATAP 138 Category: Consequential orders (other than Costs) Parties: ALZ (Applicant) WorkCover NSW (Respondent) Representation: ALZ (Applicant in person)

Solicitors: Crown Solicitor's Office (Respondent) File Number(s): 133158

ex tempore reasons for decision 1. DEPUTY PRESIDENT HENNESSY: This is an application under s 54 of the Civil and Administrative Tribunal Act 2013 (NSW) for the referral of questions of law to the Supreme Court. Section 54 states that: (1) The Tribunal (including when constituted as an Appeal Panel) may, of its own motion or at the request of a party, refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court. (2) The Tribunal may refer a question of law under this section only if the President has consented in writing to the question being referred. 1. The substantive proceedings are between ALZ and Workcover NSW and relate to the Health Records and Information Privacy Act 2002. 2. The request for referral is contained in a letter from ALZ dated 28 July 2015. The request arises from separate proceedings involving her and WorkCover NSW determined by the Appeal Panel on 10 July 2015: ALZ v Workcover New South Wales [2015] NSWCATAP 138. ALZ questions the legality of the Appeal Panel's rulings and says they are unjust and not in accordance with the purpose and objects of the Health Records and Information Privacy Act. According to ALZ, if the Tribunal follows the Appeal Panel's rulings when determining the present proceedings, an injustice will occur because her personal information will not be protected. 3. ALZ maintains that some issues on which she appealed were not addressed by the Appeal Panel and that others were decided in a way with which she disagrees. She has set out in her submissions a table identifying the questions of law for referral to the Supreme Court. The issues relate to the interpretation of the Health Privacy Principles (HPPs) in the Health Records and Information Privacy Act. In particular, the questions relate to HPP 1(1)(b), 2, 3, 4, 9, and 10. 4. A question of law cannot be referred to the Supreme Court unless the President has consented in writing to the question being referred. I appreciate ALZ's candour in saying that she is not an expert in articulating a question of law but it is not the articulation of the question that is the reason for my refusal to recommend that consent be given. 5. The questions as drafted by ALZ arise from a decision in the Appeal Panel. There is some overlap between the issues in these proceedings and those that were considered on appeal. 6. A question of law must be direct and material to the proceedings and not a hypothetical question. While there is some public policy benefit in ensuring that the HPPs are interpreted consistently, not all the issues to which ALZ refers arise directly in these proceedings. 7. Issues relating to the interpretation of HPPs are matters which the Tribunal routinely determines. They are not particularly novel nor do they raise matters of public interest which have not previously been dealt with by the Tribunal. Indeed, the Tribunal has determined many of these issues in the Appeal Panel decision. ALZ has a remedy and that is to appeal against the Appeal Panel decision. The Appeal Panel has determined these issues and in the normal course ALZ's disagreement with that determination should be the subject of an appeal rather than a referral to the Supreme Court in other proceedings. 8. I appreciate that ALZ cannot afford legal representation and feels intimidated by the prospect of appealing to the Supreme Court. She also mentioned that in order to ask any questions of that Court she needs to attend in person and she does not live in Sydney. Despite those obvious barriers to her appealing, that is the mechanism that is generally available to litigants in the Tribunal and the one with which litigants must comply. 9. In addition, the questions must be decided in the context of a factual scenario and no findings of fact have yet been made in these proceedings which could found the Supreme Court's jurisdiction to determine a question of law. That is not an insurmountable barrier because either the parties could agree on the factual basis of the matter or the Tribunal could make preliminary findings as to those matters and then refer a question. However, in circumstances where the Appeal Panel has ruled on these matters and the Tribunal at first instance is bound, at least as a matter of comity, to follow that decision it is not appropriate to refer these questions to the Supreme Court. 10. I also add that no hypothetical question can be determined nor can any question be determined which relates to the conduct of a respondent as distinct from a question as to whether the respondent has breached the relevant legislation.