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  • Unreported Judgment

PB v WorkCover Queensland Pty Ltd

 

[2020] QCATA 29

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

PB v WorkCover Queensland Pty Ltd [2020] QCATA 29

PARTIES:

PB

(applicant/appellant)

v

WORKCOVER QUEENSLAND PTY LTD

(respondent)

APPLICATION NO/S:

APL137-18

ORIGINATING

APPLICATION NO/S:

OCL045-17

MATTER TYPE:

Appeals

DELIVERED ON:

9 March 2020

HEARING DATE:

8 October 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown, Presiding

Member Browne

ORDERS:

  1. Application for leave to rely upon fresh evidence refused.
  2. Leave to appeal refused.
  3. Appeal dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – where the applicant alleged that the respondent collected and used information in processing his workers’ compensation claim in breach of the Information Privacy Act 2009 (Qld) – where the Tribunal found that the respondent acted in breach of information privacy principles 1, 2, 3, 4 and 11 and not 7, 8, 9 and 10 – where the applicant seeks leave to appeal – where the applicant claims that the Tribunal accepted and relied on evidence that was false and misleading information – where the applicant claims that the Tribunal erroneously relied on s 532C of the Workers Compensation and Rehabilitation Act 2003 (Qld), a provision that was not in effect at the time the applicant made his workers’ compensation claim - where the provisions of s 532C is largely in the same terms as the repealed s 519 – where the differences are not material – where it was open to the Tribunal to make relevant findings it did – where the applicant claims an error in the Tribunal’s finding that the respondent did not breach IPPs 7, 8, 9 and 10 – where no error found in the decision below – where the applicant claims that the Tribunal failed to observe rules of natural justice in conducting the hearing – where the applicant claims that the learned Member did not bring an impartial mind to the determination of issues – where the applicant has failed to identify any occasion where he was denied an opportunity to present his case, cross-examine witnesses or make submissions – where claim not merited

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – where the applicant seeks leave to rely upon fresh evidence not before the Tribunal below – where the applicant has failed to provide a satisfactory explanation as to why the material could not have been obtained at the time of the proceeding below – where leave to rely upon fresh evidence not merited

Information Privacy Act 2009 (Qld), s 178, s 178(a), s 178(a)(v), s 178(d)

Public Records Act 2002 (Qld), s 13

Queensland Civil and Administrative Tribunal Act 2009 Act (Qld), s 100, s 102, s 122(3)

Workers Compensation and Rehabilitation Act 2003 (Qld), s 32, s 134(1), s 279, s 532C, s 532C(1)(b)

Cachia v Grech [2009] NSWCA 232

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Ellis & Anor v Queensland Building Services Authority [2010] QCATA 93

Fox v Percy (2003) 214 CLR 118

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

House v The King (1936) 55 CLR 499

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

PB v WorkCover Queensland Pty Ltd [2018] QCAT 138

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

APPEARANCES

& REPRESENTATION:

Applicant:

Self-represented, assisted by CB

Respondent:

S A McLeod QC, instructed by Crown Law Solicitor

REASONS FOR DECISION

  1. [1]
    PB complains that WorkCover Queensland Pty Ltd (‘WorkCover’) collected and used information in processing his workers’ compensation claim in breach of the Information Privacy Act 2009 (Qld) (‘the Act’).
  2. [2]
    After a two day hearing, a member of the Tribunal found that WorkCover breached information privacy principles (‘IPPs’) 1, 2, 3, 4 and 11 and dismissed PB’s complaint that WorkCover breached information privacy principles 7, 8, 9 and 10. The Tribunal ordered that original medical records obtained by WorkCover from relevant medical practices, be returned to the practices. The Tribunal also awarded PB compensation in the amount of $5,000.[1]
  3. [3]
    PB seeks to appeal the Tribunal’s decision.[2] PB says that the Tribunal should have awarded him compensation in an amount of $100,000; and ordered that every copy of his medical records that were obtained by WorkCover from the relevant medical practices be destroyed.
  1. [1]
    PB identifies a number of errors in the Tribunal’s decision below that can be more conveniently dealt with as three discrete grounds of appeal. Each of the grounds of appeal raise questions of mixed fact and law for which leave to appeal is required.
  2. [2]
    The question of whether leave to appeal should be granted is determined according to established principles such as: is there a reasonably arguable case of error in the primary decision;[3] is there a reasonable prospect that the applicant will obtain substantive relief;[4] is leave necessary to correct a substantial injustice to the applicant caused by some error;[5] is there a question of general importance upon which further argument and a decision of the appellate court or tribunal, would be to the public advantage.[6] 
  3. [3]
    Here, we are not satisfied that PB has established an error in the Tribunal’s decision below. As discussed below, the Tribunal made a number of findings about medical records (obtained from PB’s doctors) and other information obtained by WorkCover that was used to assess PB’s claim. It is readily apparent from reading PB’s written submissions filed in this matter that he is dissatisfied with some of the Tribunal’s findings and orders made. More importantly, PB is dissatisfied with WorkCover’s evidence adduced and submissions made by WorkCover’s legal representative in the hearing below. This alone is not a sufficient reason for granting leave to appeal the Tribunal’s decision. It is not our task, in determining whether error has been shown on the part of the Tribunal below, to engage in a rehearing such as to ‘decide where the truth law as between the competing versions’...[7] It is, however, necessary for us to understand how the learned Member ‘came to his conclusion’.[8] As discussed below there was no error in the Tribunal’s interpretation of the Act and the finding that WorkCover did not breach information privacy principles 7, 8, 9 and 10. Further, we have found no error in the Tribunal’s exercise of its discretion to make certain orders about compensation and to order the return of relevant medical evidence.
  1. [4]
    We do not consider that there is a question of general importance upon which further consideration by the Appeal Tribunal would be to the public advantage. As explained below, WorkCover made a number of concessions in the hearing below about the handling of PB’s personal information and more importantly WorkCover conceded that inaccurate information about PB was obtained in the handling of his claim. As found by the Tribunal below, the inaccuracies in the information obtained by WorkCover were in some instances typographical errors and in other instances not unreasonable in the circumstances. Relevantly, the Tribunal found that WorkCover did, however, subsequently obtain accurate information about PB in assessing his claim. Turning to PB’s grounds of appeal, we have summarised the contentions as follows:
    1. (a)
      Did the Tribunal erroneously rely on s 532C of the Workers Compensation and Rehabilitation Act 2003 (Qld) (‘WCRA’), a provision that did not exist at the time PB made his claim?;
    2. (b)
      Is there an error in the Tribunal’s findings about whether WorkCover breached information privacy principles 7, 8, 9 and 10? Further, did the Tribunal below fail to make findings about the lawfulness of the letters sent by WorkCover (to PB’s doctors)?; and did the Tribunal accept and rely upon evidence presented by WorkCover’s legal representatives that was false and misleading?; and
    3. (c)
      Did the Tribunal fail to observe the rules of natural justice in conducting the hearing below? More importantly, did the learned Member bring an impartial mind to the determination of the issues before him and afford PB an opportunity to present his case including permitting him to cross-examine witnesses? Further, did an earlier decision of the Tribunal to give WorkCover leave to be legally represented in the proceeding deny PB an opportunity to present his case?
  2. [5]
    PB also seeks leave to rely upon fresh evidence that was not before the Tribunal below:[9]
    1. (a)
      File notes of psychologist Carolyn L Ritchie;
    2. (b)
      Employer Report 133, 133A WC;
    3. (c)
      ‘On-Tract Plan History’ screen print; and
    4. (d)
      Current Privacy Statement (2019) read to claimants.
  3. [6]
    PB also seeks to rely upon the Office of the Information Commissioner Guidelines[10] that PB says is relevant to the lawful and fair collection of information under the Act. At the appeal hearing, PB submitted that the fresh evidence should be placed before the Appeal Tribunal so it has all relevant material to enable a decision to be made fairly. In support of the application (for leave to rely upon fresh evidence) PB submits that, amongst other things, the new evidence shows that WorkCover continued to use information provided by the employer that was not correct.

What did the Tribunal find?

  1. [7]
    The Tribunal’s reasons set out the relevant factual background to PB’s complaint concerning PB’s workers’ compensation claim made on 22 July 2013. Relevantly, WorkCover issued two separate letters to PB’s treating doctors requesting, amongst other things, that a complete copy of PB’s medical file be provided. As explained in the Tribunal’s reasons, the letters sent to PB’s treating doctors were sent in error. WorkCover apologised to PB in writing and said that it would not use the information obtained (from PB’s doctors) with regard to any decisions or the management of PB’s claim. WorkCover told PB that, as stated, ‘[w]e will destroy this information immediately.’[11]
  2. [8]
    WorkCover rejected PB’s application for workers’ compensation. PB sought to have the decision reviewed by Q Comp, the workers’ compensation regulator.
  3. [9]
    WorkCover did not destroy the information obtained from PB’s treating doctors but rather provided all of the information to Q-Comp. As set out in the Tribunal’s reasons, Q-Comp confirmed WorkCover’s decision to reject PB’s workers’ compensation claim. The Queensland Industrial Relations Commission subsequently refused PB’s application to extend time to appeal the Q-Comp decision.
  4. [10]
    PB complained about the handling of his personal information. WorkCover conceded that it breached relevant information privacy principles set out in schedule 3 of the Act. The relevant findings made by the learned Member about the breaches of the Act appear at paragraphs [34] and [35] of the reasons:

Breaches of privacy

[34] WorkCover has conceded that it breached the following information privacy principles (IPPs) set out in Schedule 3 of the IPA:

  1. IPP 1 requires that “[a]n agency must not collect personal information in a way that is unfair or unlawful”. WorkCover conceded that the information collected from Dr B and Dr W was done in a way which was unfair.
  2. IPP 3 requires that “[t]his agency must take all reasonable steps to ensure that … the personal information collected is … relevant to the purpose for which it is collected”. WorkCover conceded that it did not take reasonable steps to ensure that the information collected from Dr B and Dr W was relevant to the purpose for which it was collected.
  3. IPP 11 requires that “[a]n agency having control of a document containing an individual’s personal information must not disclose the personal information to an entity … unless … the disclosure is authorised or required under a law”. WorkCover conceded that s 544 of the WCRA required it to provide relevant information to Q-Comp, and insofar as it provided irrelevant information that information was not required by law.

[35] To this, I would add that there have also been breaches of IPPs 2 and 4.[12]

  1. [11]
    The learned Member said that he was unable to conclude that WorkCover complied with the requirement to protect PB’s personal information in circumstances where it undertook to destroy the records obtained from PB’s treating doctors (Dr B and Dr W) but did not do so. The learned Member observed at [40] that a more appropriate course would have been for WorkCover to return the records obtained to the respective doctors, and then to commence an alternative process such as that contained in s 532C of the WCRA to obtain relevant information from those doctors. The learned Member said at [40] as follows:

[40] I am unable to conclude that WorkCover complied with the requirement to protect PB’s personal information in circumstances where it undertook to destroy the personal information obtained from Dr B and Dr W but did not do so. Ms Sparks’ evidence was that she simply failed to follow up on her instructions. I note in passing that it may well be that the more appropriate course would have been for WorkCover to return the original records obtained from Dr B and Dr W to the respective doctors, and to then commence an alternative process (such as that contained in s 532C of the WCRA) to obtain relevant information from those doctors. I return to this issue below.[13]

  1. [12]
    The Tribunal was not satisfied that WorkCover breached IPPs 7, 8, 9 and 10. In addressing IPP 7 the learned Member found that although WorkCover made some errors in recording PB’s details when completing his telephone claim, the accurate information was subsequently obtained the following day. The learned Member accepted that Mr Belither (a claims representative for WorkCover) incorrectly recorded the date upon which PB first sought medical attention as being in 2013 rather than 2012. The learned Member found, however, that a number of errors made in recording PB’s details were commonly made typographical errors, noting that correct references to the relevant date (of 4 April 2012) appear in subsequent documents.[14]
  2. [13]
    In addressing IPP8, the learned Member accepted that Mr Belither, in interpreting Dr N’s report, made reference to exposure to benzocaine in the workplace in his email to the employer of 13 August 2013. The learned Member found, however, that Mr Belither’s interpretation of Dr N’s report, while erroneous, was not unreasonable in the circumstances and observed that the ‘erroneous interpretation’ was not repeated in his statement of reasons. The learned Member also observed that the allegations concerning Q-Comp’s use of the inaccurate information was beyond the scope of PB’s complaint against WorkCover.[15]
  3. [14]
    In addressing IPP9, the learned Member found there was no evidence that WorkCover used parts of PB’s personal information that were not relevant to determining his workers’ compensation claim. The learned Member also observed that the allegations concerning Q-Comp’s use of irrelevant information was beyond the scope of PB’s complaint against WorkCover.[16]
  4. [15]
    In addressing IPP10, the learned Member found that there was no evidence that WorkCover had used PB’s personal information for any purpose other than determining his workers’ compensation claim.[17]
  5. [16]
    Finally, the Tribunal considered the discretionary power to make orders under s 178(a) and subsection (d) of the Act and noted that WorkCover made a timely apology to PB that was repeated to PB on 30 Aril 2014. The Tribunal found that WorkCover made appropriate concessions in the conduct of the proceeding before the Tribunal and offered counselling sessions, of which PB availed himself.[18] The Tribunal found that WorkCover removed the template for the letters sent to Dr B and Dr W from its case management system so as to prevent such a letter from being inadvertently sent in the future. The Tribunal observed that WorkCover also changed the privacy information contained in the recording played to telephone claimants. The Tribunal was satisfied that WorkCover has taken all reasonable steps to prevent the breaches from being repeated in the future.[19]
  6. [17]
    The Tribunal considered PB’s request to order the destruction of the medical records obtained by WorkCover from the Mackay GP Super clinic and Fenner Family Medicine. The Tribunal found that the destruction of the records would require the consent of the State archivist pursuant to s 13 of the Public Records Act 2002 (Qld) and ordered that the original records obtained from the relevant medical practices be returned. The Tribunal did not make any orders with respect to the destruction of any copies of the records held by WorkCover.[20]
  7. [18]
    The Tribunal also considered PB’s request that WorkCover be ordered to make corrections to PB’s workers’ compensation file. The Tribunal relied upon its reasons in finding a breach of IPPs 7 and 8. The Tribunal was not satisfied that there were outstanding matters requiring correction by WorkCover and found that corrections by Q-Comp were beyond the scope of PB’s complaint.[21]
  8. [19]
    The Tribunal considered PB’s claim for loss or damage alleged to have been suffered by him as a result of the privacy breaches. The Tribunal accepted PB’s evidence that he had suffered injury to his feelings and experienced humiliation as a result of the irrelevant information having been obtained by WorkCover, some of which (as found) related to a particularly sensitive health complaint.[22] The Tribunal was not satisfied that there were any features in WorkCover’s conduct which should lead to a higher award of compensation and found that the amount of $5,000 was an appropriate award of compensation to PB.[23] Further, the Tribunal was not prepared to order (under s 178(d) of the Act) that WorkCover reimburse PB for his expenses. The Tribunal observed that PB initially claimed compensation in the vicinity of $4 million notwithstanding the statutory maximum of $100,000 clearly set out in s 178(a)(v) of the Act. The Tribunal observed that had PB applied, as stated, ‘an element of sobriety to his claim’ or at least claimed compensation within the statutory limit, PB and WorkCover would have been spared considerable expense in the conduct of the proceeding.[24] The Tribunal made no order as to costs having regard to s 100 and s 102 of the Queensland Civil and Administrative Tribunal Act 2009 Act (Qld).[25]

Ground 1: Application of s 532C of the Workers Compensation and Rehabilitation Act 2003 (Qld) (‘WCRA’)

  1. [20]
    PB contends that the legal representatives for WorkCover provided false and misleading information to the Tribunal during the hearing that influenced the learned Member to accept the evidence given as true and correct.[26] PB contends that the legal representative for WorkCover provided the Tribunal with a copy of legislation that only came into effect months after PB made a claim for workers’ compensation benefits. PB says the correct version of the WCRA effective on 1 July 2013 only had, as contended, one paragraph under s 532 that does not contain s 532C.[27]
  2. [21]
    At the appeal hearing PB submitted that WorkCover’s legal representative referred the Tribunal below to s 532C of the WCRA with the intention of obtaining information. More importantly, PB submitted that WorkCover sent letters with an intention to request PB’s medical records on the basis that the legislation gave them power to do so. PB submitted that the Tribunal fell into error by failing to find that the letters sent were unlawful.
  3. [22]
    PB further contends that the learned Member failed to make findings about WorkCover’s evidence given in the hearing below that PB says is false and misleading. For example, PB refers to the online application for compensation form that consists of drop-down fields. PB says that when Mr Belither was questioned at the hearing about the application form he, as contended by PB, ‘blatantly lied’ during the proceedings about the form by giving evidence to the effect that there is no form based fields of the application. PB says that the learned Member failed to take into account the fact that the application for compensation form contains a statement that WorkCover staff manipulated and falsified as if it were a statement made by PB.[28]
  4. [23]
    We have carefully considered PB’s contentions about the Tribunal’s reference to s 532C of the WCRA, a provision that was not in effect at the time PB made his workers’ compensation claim. Further, we have considered the information alleged to have been given by WorkCover’s legal representatives to the Tribunal in the hearing below and PB’s contentions that evidence adduced by WorkCover’s legal representatives in the hearing below was misleading and unlawful.
  5. [24]
    Section 532C was enacted when Chapter 12, Part 1 of the WCRA was repealed and replaced with the current provisions. Section 532C authorises WorkCover to obtain information or documents relevant to, among other things, a person’s entitlement to claim compensation.[29] The provision is largely in the same terms as the repealed section 519. For present purposes the differences are not material.
  6. [25]
    Here, it is non-contentious that WorkCover sent two letters (to Dr B and Dr W) requesting information that incorrectly referred to s 279 of the WCRA. That section authorises WorkCover to obtain information in circumstances where a worker makes a common law claim.[30] PB was not making a common law claim. He was making a claim for statutory benefits. Further WorkCover accepted that, in sending the letters to PB’s doctors, there had been a breach of IPPs 1 and 2.[31]
  7. [26]
    The transcript of the hearing below shows that the learned Member asked WorkCover whether there was a legislative basis for making a request (for information). The Tribunal was referred to WorkCover’s written submissions and the WCRA. Relevantly, a copy of ‘various sections’ of the Act were handed up to the Tribunal.[32] The transcript shows that the Tribunal was referred to s 532C of the WCRA as being the section giving  WorkCover the power by an authorised person to make a request and that the section (s 532C). WorkCover’s legal representative made the submission that in many cases (that is, where a worker is claiming statutory compensation), the link between the worker’s employment and the injury is not in issue in which case WorkCover would not, as a general rule, request medical records from a general practitioner.[33] The relevant extract from the transcript is as follows:

Mr Van Brunschot: Well, section 532C is important because it gives WorkCover the power of – by an authorised person to make a request. Now my instructions are that that section is not enlivened in an ordinary case because you just make the request to a general practitioner but I – that section is of importance because we wouldn’t be here, Member, if WorkCover had adopted that section which basically gives WorkCover the power to request document[s] relevant to their determination….[34]

  1. [27]
    The Transcript shows that WorkCover’s legal representative submitted in the hearing below that when determining a claim WorkCover is required to address s 32 of the WCRA to assess the cause of the injury.[35] Further, in assessing PB’s case, it was submitted that WorkCover sent letters to PB’s doctors to address the relevant medical history in order to assess the question of injury (that is, PB’s contact dermatitis) and whether the condition was compensable under the WCRA.[36] The relevant extract from the transcript is as follows:

Mr Van Brunschot: …In this case, of course, what didn’t happen was the respondent didn’t [rely] on section 532C to serve a notice to produce. It sent letters to doctors to address the relevant medical history to assess the question as to whether [PB’s] contact dermatitis was compensable under the Act; was it an injury and did it arise out of employment. Now, the matter is further complicated by the fact that [PB] commenced employment with Key Solutions, which was his employer at the time he made the application for compensation on 25 June 2012. And this reference to an earlier presentation for dermatitis in April 2012 to a general practitioner at the GP Super Clinic. So you can appreciate that – WorkCover has to determine the question of injury and it has to be satisfied that the cost need to be sheeted home to the employer, Key Solutions who is the employer. Did the dermatitis arise as a consequence of the employment with Key Solutions, the relevant employer in question?[37]

  1. [28]
    WorkCover’s legal representative submitted that WorkCover’s request was misconceived in that it quoted s 279 of the WCRA and did not limit the request to the relevance of the determination (that is, the cause of the injury being contact dermatitis). Further, it was submitted that the only information obtained that was relevant was  a consultation of 4 April 2012 which was referred to significantly in the material. The relevant extract from the transcript is as follows:

Mr Van Brunschot: …the request was misconceived in that it quoted section 279 and didn’t limit it appropriately to the relevance of the determination. But critically, Member, the WorkCover’s position is this: that the only information that was relevant that was obtained was a consolation of 4 April 2012 which was referred to significantly in the material. One consultation. One consultation that predates employment with Key Solutions. And it’s that consultation that is referred to in the Regulator’s decision and it is that decision which ultimately compels a Regulator which is a separate distinct body with oversight of the scheme, to reject the claim for compensation.[38]

  1. [29]
    PB’s contention that the Tribunal erroneously relied on s 532C of the WCRA that did not exist at the time PB made his claim misapprehends the Tribunal’s findings about the WCRA and whether WorkCover had the power to request the information from PB’s doctors.
  2. [30]
    Although the Tribunal’s reasons refer to s 532C of the WCRA, its reference (to s 532C) is at best observations made about an alternative process available to WorkCover to obtain information from PB’s doctors (Dr B and Dr W). In our view, the Tribunal’s observations are entirely appropriate given the submissions made in the hearing below by WorkCover’s legal representative, as discussed above. In any event, and as we have observed, s 532C is in largely the same terms as the equivalent provision in effect at the relevant time.
  3. [31]
    The Tribunal’s reference, that we consider to be observations only, to s 532C of the WCRA were not critical to the findings made that WorkCover breached IPP 1. As explained in the Tribunal’s reasons at paragraphs [34] to [37], inclusive, WorkCover conceded that the information collected from Dr B and Dr W was done in a way which was unfair.
  4. [32]
    The Tribunal did not erroneously rely on s 532C of the WCRA and more importantly did not fall into error by failing to make findings about the lawfulness of the letters sent (to Dr B and Dr W) by WorkCover. The Tribunal below was required to make findings about whether WorkCover had, in the collection of information and the handling of PB’s claim, breached the Act. The Tribunal below was required to make findings about the relevant privacy principles. It was open to the Tribunal to find that in sending the letters to Dr B and Dr W, WorkCover breached IPP 1. Relevantly, the Tribunal found that WorkCover collected the information in a way that was unfair.[39] 
  5. [33]
    We do not accept PB’s contention that WorkCover’s legal representative has misled the Tribunal in any way or presented information in the hearing below that is false. As discussed above, the transcript shows that WorkCover’s legal representatives were outlining the relevant sections of the WCRA that permits WorkCover to request and obtain information relevant to assessing a claim. In assessing PB’s claim, as submitted in the hearing below, WorkCover’s legal representative conceded that the request was misconceived in that the request quoted s 279 of the WCRA and did not appropriately limit the request to the relevance of the determination.
  6. [34]
    We do not accept PB’s contention that WorkCover adduced evidence in the hearing below that was false and misleading. It was open to the Tribunal to make relevant findings as set out in its reasons. Ground one of the appeal is without merit.

Ground 2: The Tribunal’s findings about information privacy principles (‘IPPs’) 7, 8, 9 and 10

  1. [35]
    PB contends that the Tribunal failed to consider the totality of IPP 7 because of the use of the word ‘and’ as it appears in the legislation. Further PB says that it is not correct that WorkCover completed PB’s claim by telephone.
  2. [36]
    PB has failed to convince us that the Tribunal misconstrued the necessary elements of IPP 7 as it appears in schedule 3 of the Act. The Tribunal’s reasons clearly identify what is required by WorkCover (as an agency) in considering whether there has been a possible breach of IPP 7. The Tribunal observed that IPP 7 requires that an agency take all reasonable steps to ensure that personal information held is accurate. We do not consider that it is not necessary for the Tribunal to restate in its reasons the entirety of IPP 7 as it appears in the schedule of the Act. We see no error in the Tribunal’s reasoning about IPP 7. The  reasons clearly refer to the requirement that an agency take all reasonable steps to ensure that personal information is accurate. 
  3. [37]
    Here, the Tribunal accepted that WorkCover made some errors in recording PB’s details in completing his telephone claim on 22 July 2013. Even if, as contended by PB, the Tribunal was wrong in its finding that PB’s claim was completed by telephone on 22 July 2013, it was open for the Tribunal to make its findings that accurate information was later obtained by WorkCover during a further telephone conversation. More importantly PB does not seek to challenge the Tribunal’s findings that WorkCover collected information relevant to PB’s claim after the telephone conversation on 22 July 2013. It was open for the Tribunal to find that any error made by WorkCover was a commonly made typographical error.
  4. [38]
    PB also contends that the Tribunal should have found a breach of IPP 8. PB contends that the Tribunal failed to properly consider the purpose for which the information was to be used, that is,  to assess PB’s workers’ compensation claim. PB contends that the Tribunal should have found that the error (in interpreting Dr N’s report) was unreasonable in the circumstances given that WorkCover has access to doctors to help them interpret medical records. Further, PB says that given the form (that contained errors) was used for the release of medical records from PB’s doctors, there was a clear  breach of IPP 8.[40]
  5. [39]
    PB has failed to identify an error in the Tribunal’s findings relevant to the complaint that there was breach of IPP 8. It was open for the Tribunal to make the finding that the erroneous interpretation of Dr N’s report was not unreasonable in the circumstances. As discussed by the Tribunal in its reasons at [42], the accurate information about PB’s claim was obtained during a further telephone call by Mr Belither.
  6. [40]
    Turning to the Tribunal’s findings that there was no breach of IPP 9, PB contends that WorkCover did not use relevant information as required under IPP 9. PB contends that because WorkCover used an application for compensation form containing information provided by PB’s employer instead of information provided by PB, WorkCover has used information that had no relevance to PB’s claim and his claim was not properly assessed in accordance with s 134(1) of the WCRA.[41] PB invites us to adopt a broad interpretation of the word ‘use’ as it appears in IPP 9 and s 23 of the Act. PB contends that his claim was therefore assessed based on information that was irrelevant to his claim and as such there is a clear breach of IPP 9.[42]
  7. [41]
    PB’s contention that there has been a breach of IPP 9 misconstrues the purpose for which the information (obtained from PB’s employer) that was conveyed to WorkCover, was obtained. As set out in the Tribunal’s reasons, the information was only used by WorkCover for PB’s claim and for no other purpose.
  8. [42]
    It was open for the Tribunal to find that there was no breach of IPP 9. PB has failed to identify any error in the Tribunal’s finding that there is no evidence that WorkCover used parts of PB’s personal information that were not relevant to determining PB’s worker’s compensation claim.
  9. [43]
    We turn now to PB’s contentions concerning the Tribunal’s finding that there was no breach of IPP 10. PB says that he did not authorise the use of the employer’s information provided to WorkCover to assess PB’s claim. PB’s contention is, in our view, misguided because WorkCover has only used the information to assess PB’s claim. IPP 10 prohibits an agency from using personal information obtained for a particular purpose for another purpose. Here, the only purpose for which the information was obtained from PB’s employer was to assess PB’s claim. There is no error in the Tribunal’s finding that there was no evidence WorkCover used the personal information obtained for any purpose other than determining PB’s worker’s compensation claim.
  10. [44]
    PB has failed to identify any error in the Tribunal’s findings that WorkCover did not breach IPPs 7, 8, 9 and 10. Ground two is without merit.

Ground 3: The Tribunal hearing below

  1. [45]
    PB raises an allegation of bias in that he contends the learned Member did not bring an impartial mind to the determination of the issues and that PB was not afforded an opportunity to present his case and cross-examine witnesses. Further, PB says that he was denied an opportunity to present his case by reason of WorkCover being legally represented in the proceedings and he was not given an opportunity to consider the reasons for the Tribunal’s earlier decision to give WorkCover leave to be legally represented in the proceedings, the Tribunal’s written reasons for its decision having been given to PB after the hearing.
  2. [46]
    The tribunal granted leave for the parties to be legally represented in the proceedings on 23 March 2018. The hearing commenced on 30 April 2018. DB requested reasons for the grant of leave on 27 March 2018. The tribunal has 45 days to provide reasons after a request.[43] That period expired after the scheduled hearing date. It is disingenuous of DB to now seek to raise the provision of the reasons after the hearing as a ground of appeal. Furthermore, how the absence of reasons supports DB’s ground of appeal is not made clear. DB had the opportunity to be legally represented at the hearing below. It was DB’s choice not to do so. It was open to DB to appeal the decision to grant the parties leave to be legally represented if he felt sufficiently aggrieved at the decision. He chose not do so.
  3. [47]
    PB has failed to convince us that there was a breach of natural justice by the learned Member in conducting the hearing below that raises a question of bias and more importantly that the learned Member did not bring an impartial mind to the determination of issues. Bias is a serious allegation. In Ebner v Official Trustee in Bankruptcy[44] the test is identified as follows:

… if a fair minded lay bystander might reasonably apprehend that the decision-maker might not bring an impartial mind to the determination of the issues that he or she must decide.[45]

  1. [48]
    PB has failed to identify with reference to the transcript any occasion during the hearing where he was denied an opportunity to present his case including being denied the opportunity to cross-examine witnesses or make submissions. Indeed the transcript shows that PB was aware of the Tribunal’s decision to grant WorkCover leave to be legally represented and PB did not request an adjournment of the hearing.[46]
  2. [49]
    We find no error in the Tribunal’s findings made about the amount of compensation payable to PB and the order that medical records obtained be returned to the medical practice. The power to make orders under s 178 of the Act involves the exercise of a broad discretion. It is clear that the learned Member considered carefully the evidence before him and particularly the medical evidence regarding what PB asserted were the consequences of the asserted privacy breaches. As held in House v The King, the manner in which an appeal against an exercise of discretion should be determined is governed by established principles.[47] Here, PB has failed to convince us that the learned Member acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters.[48] Ground 3 is without merit.

Application for leave to rely upon fresh evidence

  1. [50]
    It is settled law that leave to adduce fresh or new evidence will involve the exercise of a broad discretion having regard to established principles as identified in Ellis & Anor v Queensland Building Services Authority:[49]

… New evidence will ordinarily only be allowed if: it could not have been obtained with reasonable diligence at the time of trial; had the evidence been given, it would have had an important influence on the result (although it need not be decisive); and, the evidence is apparently credible, although not necessarily incontrovertible.

  1. [51]
    Here, the appeal proceeding is decided upon questions of mixed fact and law. PB has failed to convince us that leave to rely on fresh evidence in the appeal proceeding should be given. The fresh evidence sought to be adduced includes documents that predate the decision of the Tribunal below. PB has failed to provide a satisfactory explanation as to why the material could not have been obtained at the time of the proceeding below. Further, PB did not seek to rely on the documents that are now fresh or new evidence, in the proceeding below. Leave to rely upon fresh evidence is refused.

Disposition of the application for leave to appeal or appeal

  1. [52]
    We have found that grounds one, two and three are without merit. We have also refused PB’s application for leave to appeal the decision below on the basis that it was open to the Tribunal to make relevant findings about the complaint and to award compensation and make final orders accordingly. The appeal is otherwise dismissed.

Footnotes

[1]Tribunal Decision dated 4 May 2018; See PB v WorkCover Queensland Pty Ltd [2018] QCAT 138.

[2]Application for leave to appeal or appeal filed 19 June 2018.

[3]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 

[4]Cachia v Grech [2009] NSWCA 232, [13]. 

[5]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[6]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578-580.

[7]Fox v Percy (2003) 214 CLR 118, [129].

[8]Ibid.

[9]Application for miscellaneous matters filed 23 July 2019; Email from CB dated 23 July 2019.

[10]Exhibit ‘A’.

[11]PB v WorkCover Queensland Pty Ltd [2018] QCAT 138, [28].

[12]Ibid [34]–[35].

[13]PB v WorkCover Queensland Pty Ltd [2018] QCAT 138, [40].

[14]Ibid [42].

[15]Ibid [43].

[16]Ibid [44].

[17]Ibid [45].

[18]PB v WorkCover Queensland Pty Ltd [2018] QCAT 138, [48].

[19]Ibid [49].

[20]Ibid [50].

[21]Ibid [51].

[22]Ibid [57].

[23]Ibid [60].

[24]Ibid [61].

[25]Ibid [61]-[62].

[26]Application for leave to appeal or appeal filed 19 June 2018. See also applicant’s submissions filed 25 May 2019, 24 July 2019.

[27]Ibid.

[28]Ibid.

[29]Workers Compensation and Rehabilitation Act 2003 (Qld) s 532C(1)(b).

[30]Appeal Book, Transcript of Proceedings, PB v WorkCover Queensland Pty Ltd [2018] QCAT 138 (7 March 2018), 23.

[31]Appeal Book, Transcript of Proceedings, PB v WorkCover Queensland Pty Ltd [2018] QCAT 138 (7 March 2018), 23.

[32]Ibid 24.

[33]Ibid 25.

[34]Ibid lines 15-21.

[35]Ibid 26.

[36]Ibid.

[37]Ibid lines 4-16.

[38]Appeal Book, Transcript of Proceedings, PB v WorkCover Queensland Pty Ltd [2018] QCAT 138 (7 March 2018) 26, lines 20-34.

[39]PB v WorkCover Queensland Pty Ltd [2018] QCAT 138, [34].

[40]PB’s response to WorkCover’s submissions filed 24 July 2019, [71].

[41]PB’s response to WorkCover’s submissions filed 24 July 2019, [71].

[42]Ibid.

[43]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 122(3).

[44](2000) 205 CLR 337.

[45]Ibid [345].

[46]Appeal Book, Transcript of Proceedings, PB v WorkCover Queensland Pty Ltd [2018] QCAT 138 (7 March 2018) 10, line 44.

[47](1936) 55 CLR 499, [504].

[48]Ibid [504]-[505].

[49][2010] QCATA 93, 3 [7]. See also Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408.

Close

Editorial Notes

  • Published Case Name:

    PB v WorkCover Queensland Pty Ltd

  • Shortened Case Name:

    PB v WorkCover Queensland Pty Ltd

  • MNC:

    [2020] QCATA 29

  • Court:

    QCATA

  • Judge(s):

    Brown, Browne

  • Date:

    09 Mar 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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