Czerniecki v TAFE NSW [2017] NSWCATAD 278

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Czerniecki v TAFE NSW [2017] NSWCATAD 278 Hearing dates: 29 August 2017 Date of orders: 15 September 2017 Decision date: 15 September 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: Hennessy LCM, Deputy President Decision: Ms Czerniecki's application for the summons to Dr Hekel to be set aside or for TAFE NSW not to be given access to those documents is refused. Catchwords: SUMMONS – professional confidential relationship privilege – doctor/patient relationship - whether harm caused to applicant if documents disclosed – whether summons should be set aside as being oppressive Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW) Cases Cited: Director General Department of Community Services v D [2006] NSWSC 827 Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 Texts Cited: Stephen Odgers, Uniform Evidence Law, (11th ed 2013, Lawbook Co) Category: Procedural and other rulings Parties: Maria Czerniecki (Applicant) TAFE NSW (Respondent) Representation: Counsel: M Gregory (Applicant)

Solicitors: Minter Ellison (Respondent) File Number(s): 2017/00158651 Publication restriction: Nil

REASONS FOR DECISION

Overview 1. A preliminary issue in this case is whether TAFE NSW should be given access to documents produced by Ms Czerniecki's general practitioner, Dr Hekel, under summons. Ms Czerniecki says TAFE should not be given access to the documents because they are subject to "professional confidential relationship privilege": Evidence Act 1995 (NSW) Part 3.10, Div 1A. Alternatively she says that the summons is oppressive because it is too wide. 2. TAFE issued the summons to Dr Hekel in proceedings brought by Ms Czerniecki under the Anti-Discrimination Act 1977 (NSW). Ms Czerniecki's complaint includes that TAFE discriminated against her on the ground of her disabilities in several ways including by refusing to enrol her in a course or by making her enrolment subject to certain conditions: Anti-Discrimination Act, s 49L. Ms Czerniecki identified her disabilities as being environmental sensitivity, multiple chemical sensitivity and spondylolisthesia. TAFE's reason for issuing the summons to Dr Hekel was that Ms Czerniecki had "not provided sufficient evidence that she has a disability" and that TAFE requires access to her health records to "consider the issue of disability and prepare its evidence and submissions …" 3. At the hearing TAFE added another ground for issuing the summons. It was said that reliance on the "unjustifiable hardship" defence in s 49L(4) and (5) meant that information about when Ms Czerniecki was suffering from the symptoms of her illness and the treatment she received is relevant. 4. I have decided to allow TAFE to have access to the documents produced by Dr Hekel because I am not satisfied that evidence of the documents could not be adduced in proceedings before a NSW court by reason of the operation of Part 3.10 (Privileges) of Chapter 3 to the Evidence Act.