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. Consideration 1. The summons identified the documents that he must produce as follows: A true copy of your entire file in relation to all consultations with, treatment administered to or assessments or examinations of the applicant (Maria Czerniecki date of birth: [date deleted] including but not limited to all prescriptions, clinical notes (handwritten and electronic) correspondence, consent to treatment/surgery forms, treatment cards, all consultation notes and records, all reports, draft reports, correspondence, memoranda, file notes, letters of referral, test requests and results, radiological reports and films and any other document relating to any assessments, examinations, reviews, consultations and opinions regarding the applicant from the date of first attendance to date. 1. In compliance with that summons, Dr Hekel has produced the documents. Professional confidential relationship privilege 1. No-one can be required to disclose a document, including giving access to the document, if the Tribunal is satisfied that evidence of the document could not be adduced in proceedings before a NSW court because it is subject to professional confidential relationship privilege: NCAT Act, s 67(1)(c); s 67(2); Director General Department of Community Services v D [2006] NSWSC 827 at 588. 2. I have reviewed the documents produced by Dr Hekel. Some of those documents contain a "protected confidence". That term is defined in s 126A(1) of the Evidence Act: "protected confidence" means a communication made by a person in confidence to another person (in this Division called the "confidant" ): (a) in the course of a relationship in which the confidant was acting in a professional capacity, and (b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant. 1. The issue is whether, in relation to those documents, the Tribunal could be satisfied under s 126B(3) of the Evidence Act, that: 1. it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and 2. the nature and extent of the harm outweighs the desirability of the evidence being given. 1. "Harm" is defined to include: "actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear)": Evidence Act, s 126A(1). 2. In making this decision, the Tribunal must take into account the following matters listed in s 126B(4) of the Evidence Act: (a) the probative value of the evidence in the proceeding, (b) the importance of the evidence in the proceeding, (c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding, (d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates, (e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider, (f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed, (g) if the proceeding is a criminal proceeding-whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor, (h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person, (i) the public interest in preserving the confidentiality of protected confidences, (j) the public interest in preserving the confidentiality of protected identity information. 1. The evidence as to the harm that "would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced" was that Ms Czerniecki was under the impression from what she says I told her in a case conference, that no summons would be issued to Dr Hekel, at least not before she had filed her medical evidence. She said that if she had known a summons would be issued, she would have "personally prepared my doctor for the possibility of it happening." Ms Czerniecki went on to say, in an email to her lawyer dated 15 August 2017, that: Re my relationship with my Doctor, I feel the damage has largely been done and I already felt the strain at my appointment last week. I feel that there is an element of trust that has been broken, and that it may continue. I really love my Doctor, his expertise, patience and understanding, which I have never had before, and I don't say that lightly in any way, and I am really devastated about this event. Also, I know in those records there is a specific reference to the health condition of my friend, which is irrelevant to my condition and should never have been written into my records. I have redacted that in the documentation I sent you, as it is my friend's business only and I want to maintain my friend's privacy. I also don't know what else is in the medical records that were sent to NCAT and I don't believe it is of any value to TAFE to review my records. I have been completely open with TAFE about my condition, but I do believe that this is a breach of privacy for no useful purpose, legally or otherwise. I certainly do not want to trust TAFE with such deeply personal information especially as I know they are not acting in my best interest. History has already shown that to be the case. For me, objecting to the Summons was mostly about preventing the summons from getting to my doctor in the first place, which I now see was never going to happen. 1. It is apparent from this evidence that the 'harm' that Ms Czerniecki says she has suffered arises mainly from the fact that she was not able to warn her doctor that a summons may be issued and "personally prepare him for the possibility of it happening". As a result she feels that the relationship between herself and her doctor has been damaged because an element of trust has been broken. That kind of damage or harm is not the kind of harm to which s 126B(3) refers. In Uniform Evidence Law, (11th ed 2013, Lawbook Co) the author, Stephen Odgers, says at p 731 that: … the harm must be caused, or may possibly be caused, directly or indirectly, by the adducing of the evidence, rather than by some other cause. 1. In this case, there is "some other cause" for the harm, namely the damage or the perceived damage to the relationship between Ms Czerniecki and Dr Hekel from her failure to warn him that a summons may be issued. Similarly, there is no relevant harm to Ms Czerniecki in relation to the disclosure of her friend's records. However, I note that as this material is irrelevant to any issue in dispute in the proceedings, I presume that neither party will attempt to adduce that information in evidence. Similarly, "the mere fact of confidentiality does not create an entitlement to a favourable exercise of that discretion": Director-General Department of Community Services v D [2006] NSWSC 827 at [23]. 2. I am not satisfied that it is likely that harm would or might be caused (whether directly or indirectly) to Ms Czerniecki if the evidence is adduced or if the information is disclosed. As she has said, from her point of view, the damage has largely been done. This finding makes it makes it unnecessary to consider the factors in s 126B(4) of the Evidence Act. I decline to make the order sought by Ms Czerniecki that TAFE should not be given access to the documents produced by Dr Hekel on the ground of professional confidential relationship privilege. Is the summons oppressive? 1. A summons must only be issued for a legitimate forensic purpose. It is an abuse of process to issue a summons in relation to documents which have no "apparent relevance" to the issues in dispute: Portal Software v Bodsworth [2005] NSWSC 1115 Brereton J at [22] and [23]; Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [26]. The question is not whether the documents would be admissible in evidence or will "definitely advance the case of the parties" issuing the summons: Portal Software v Bodsworth [2005] NSWSC 1115 Brereton J at [25] The onus is on the party attempting to procure the material to demonstrate a legitimate forensic purpose by reference to the issues as disclosed in the pleadings: Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [27]. 2. Ms Czerniecki has filed Points of Claim but TAFE is not due to file its Points of Defence until 22 September 2017. On the basis of the Points of Claim and what TAFE's lawyers said in the case conference and the interlocutory hearing, my understanding is as follows: 1. Ms Czerniecki alleges disability discrimination in education under s 49L(2)(a) and/or (c) of the Anti-Discrimination Act; 2. Ms Czerniecki seeks to amend the period of the complaint to cover the period from 19 January 2015 to 2 March 2016; 3. The conduct which allegedly breaches the Act is: 1. TAFE refused to accept her enrolment; or 2. TAFE made Ms Czerniecki's enrolment subject to certain terms; 3. TAFE subjected Ms Czerniecki to a detriment during meetings on 11 February 2015. 1. The complaint is one of direct discrimination on the ground of disability as defined in s 4, 49A and 49B. 2. TAFE relies on the following exceptions/defences or submissions 1. Ms Czerniecki has not proved that she has a disability within the meaning of that term in the Anti-Discrimination Act. The documents at pages 66 and 68 of the President's Report do not prove that she has a disability. 2. TAFE NSW relies on the exception of unjustifiable hardship in s 49L(4) and s 49L(5) of the Anti-Discrimination Act. 1. Since the case conference, Ms Czerniecki has filed evidence including two reports from her general practitioner, Dr Hekel and a report of Dr Heslop. Despite these reports, my understanding is that TAFE maintains that Ms Czerniecki has not proven that she has a disability or that TAFE has discriminated against her in breach of s 49L. 2. The onus is on Ms Czerniecki to prove that she has a disability as defined in s 4 of the anti-Discrimination Act and that TAFE has discriminated against her on the ground of that disability. If TAFE continues to deny that Ms Czerniecki has the disabilities she has identified, then the documents under summons will have a legitimate forensic purpose. 3. The unjustifiable hardship defences in s 49L(4) and (5) apply to specific breaches of s 49L(1) and (2). What s 49L(4) requires an educational authority to do before refusing to accept a person's application for admission or before expelling a student who requires services or facilities, is to: 1. determine whether the person could be admitted to the course with the aid of services or facilities which are not required by people without a disability; and 2. determine whether it would impose an unjustifiable hardship on the educational authority to provide the person with those services or facilities: Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 at [57]. 1. What s 49L(5) requires an educational authority to do before denying a person access or limiting his or her access to any benefit, is to: 1. determine whether the person requires the benefit to be provided in a special manner; and 2. determine whether it would impose an unjustifiable hardship on the educational authority to provide the person with the benefit in that manner. 1. Both these provisions place a positive obligation on an educational authority to identify whether the person could be enrolled or given access to any benefit with the aid of services or facilities and then to provide the person with those services or facilities if it would not impose an unjustifiable hardship on the educational authority to do so. It is a legislative stipulation that there be different treatment of people with a disability in those limited circumstances. As the Tribunal said in the comparable provision of s 49D(4) in Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261: An employer may invoke the defence or exception to liability set out in s49D(4) only when the employer has done the positive things dictated by that sub-section. 1. The circumstances to be taken into account when determining unjustifiable hardship are listed in s 49C. The burden of establishing the exception falls on the educational authority: Anti-Discrimination Act, s 104. Whether the hardship existed must be determined at the time of the allegedly discriminatory conduct, not at the time of the hearing: Moxon (No 2) v Westbus Pty Ltd [2002] NSWADTAP 24 at [50]. 2. When considering whether TAFE has established either of the unjustifiable hardship exceptions, the Tribunal will have to make factual findings about the need for the kinds of services or facilities Ms Czerniecki required or the manner in which she required a benefit to be provided. Her medical records which relate to the period in which she was seeking enrolment or access to a benefit are "apparently relevant" to those issues. Orders 1. 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. ******** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 September 2017