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Frost v Gold Coast Hospital and Health Services[2021] QCAT 133

Frost v Gold Coast Hospital and Health Services[2021] QCAT 133

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Frost v Gold Coast Hospital and Health Services & Anor [2021] QCAT 133

PARTIES:

Julie Frost

(applicant)

v

GOLD COAST HOSPITAL AND HEALTH SERVICES

(first respondent)

OFFICE OF THE INFORMATION COMMISSIONER

(second respondent)

APPLICATION NO/S:

GAR262-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

18 May 2021

HEARING DATE:

18 March 2021

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

ORDERS:

The application to review a decision is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – REVIEW OF DECISIONS – OTHER STATES AND TERRITORIES – where applicant received medical treatment from first respondent – where applicant made multiple complaints and access applications to first respondent – where second respondent made a vexatious applicant declaration against applicant – where second respondent found that repeated engagement and harassment from applicant constituted abuse of process – where applicant applied to Tribunal for review of that decision – where Tribunal must hear and decide review by way of a fresh hearing on the merits – where review can be informed by approach of original decision maker – where applicant failed to address elements of original decision – whether decision of second respondent was correct and preferable

Information Privacy Act 2009 (Qld), s 60, s 127, s 133, sch 5

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20

Gold Coast Hospital and Health Service and Respondent [2020] QICmr 25

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

Ladhams v Medical Board of Australia (No 2) [2014] QCAT 286

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented, appearing by telephone

First Respondent:

Second Respondent:

A Northcott (solicitor) i/b Gold Coast Hospital and Health Service

R Moss (agent) i/b Office of the Information Commissioner

REASONS FOR DECISION

  1. [1]
    On 6 May 2020, the Information Commissioner (“IC”) made a declaration under s 127 of the Information Privacy Act 2009 (Qld) (“IP Act”) that the present Applicant, Julie Frost, was a vexatious applicant.[1] That declaration was made on the application of the present First Respondent, the Gold Coast Hospital and Health Service.
  2. [2]
    On 3 June 2020, the Applicant filed in the Tribunal the present application for a review of that decision by the IC. Such a review is available under s 133 of the IP Act, and requires the Tribunal to exercise its review jurisdiction under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).[2]
  3. [3]
    The Tribunal’s review jurisdiction is regulated by the provisions contained in Chapter 2 Part 1 Division 3 of the QCAT Act. Section 20 of the QCAT Act provides that the purpose of the review “is to produce the correct and preferable decision” and prescribes that the Tribunal must hear and decide a review “by way of a fresh hearing on the merits.” In so doing, there is no presumption that the decision under review is correct, nor is an applicant for review required to demonstrate error in the decision. That being said, and acknowledging that an application for review is not an appeal, the review can be informed by the approach taken by the original decision maker.[3]
  4. [4]
    Section 127(2) of the IP Act sets out the preconditions for the making of a vexatious applicant declaration:
  1. (2)
    The commissioner may make the declaration in relation to a person only if the commissioner is satisfied that—
  1. (a)
    the person has repeatedly engaged in access or amendment actions; and
  1. (b)
    1 of the following applies—
  1. (i)
    the repeated engagement involves an abuse of process for an access or amendment action;
  1. (ii)
    a particular access or amendment action in which the person engages involves, or would involve, an abuse of process for that access or amendment action;
  1. (iii)
    a particular access or amendment action in which the person engages would be manifestly unreasonable.
  1. [5]
    The term “access or amendment action” is defined to include an access application and an external review application.[4] An “access application” is an application by an individual under Chapter 3 of the IP Act to access a document containing that individual’s personal information.[5] External reviews by the IC are provided for under Chapter 3 Part 9 of the IP Act.
  2. [6]
    On this application, the Applicant did not challenge the findings of fact on which the IC had made its decision. Those facts can be sufficiently summarised as follows.
  3. [7]
    Between April 2014 and July 2016, the Applicant received medical treatment from various hospital departments of the First Respondent. The Applicant was dissatisfied with the medical treatment she received and with her subsequent dealings and interactions with the First Respondent. She made a series of complaints, both to the First Respondent and to the relevant regulators, about the First Respondent and a number of individual staff members on a variety of matters, including allegations of rape and torture as well as misuse and falsification of her medical records. Some information, including her health records, was released to her under the First Respondent’s administrative access scheme. The Applicant, however, made numerous applications to the First Respondent under the IP Act for access to her health records and other documents concerning her medical treatment, her interactions with the First Respondent’s staff, and their interactions with one another. The IC’s decision notes accurately that:

The bulk of her access applications generally request access to all correspondence and emails between named staff members of [the First Respondent] or between specified hospital departments with which the [Applicant] has had interactions, as well as seeking the names of staff who have accessed her health records and the dates of access.[6]

  1. [8]
    The material demonstrated that, as at December 2019, when the First Respondent applied for the vexatious applicant declaration, the Applicant had made no fewer than nineteen access applications to the First Respondent over a period of two years and nine months. Eleven of those were access applications and eight were external review applications. Nine of the access applications were made in a nine-month period.
  2. [9]
    On the hearing of the present application, the Applicant did not adduce any material for consideration which was not before the IC. Nor, as will be seen, did the Applicant advance any arguments which were not considered by the IC in making the decision. It is therefore convenient to briefly review that decision, and the approach taken by the IC in reaching that decision.

The IC Decision

  1. [10]
    The IC noted the First Respondent’s submission that the Applicant had repeatedly engaged in access actions, and that this repeated engagement constituted an abuse of process on the following grounds:
  • harassment and intimidation of [the First Respondent’s] staff;
  • the making of unsubstantiated or defamatory allegations against [the First Respondent’s] staff;
  • unreasonable interference with operations of [the First Respondent]; and
  • wastage of public resources and funds.[7]
  1. [11]
    The First Respondent had also submitted that relevant background information for the decision included:
  • the [Applicant] made 20 complaints against [the First Respondent] between May 2019 and August 2019;
  • the [Applicant] applied three times for access to her health records under [the First Respondent’s] administrative access scheme; and
  • over 1000 pages [had] been released to the [Applicant] on an administrative basis, including files relating to her interactions with [the First Respondent].[8]
  1. [12]
    The IC found that the Applicant had repeatedly engaged in access actions. In so doing, the IC considered and rejected the following arguments which had been advanced by the Applicant:
    1. (a)
      Her repeated applications were the result of her having been placed under communication restrictions by the First Respondent and the IC, and these restrictions affected her ability to communicate effectively because of a disability from which she suffers.
    2. (b)
      Decisions by the First Respondent to refuse to deal with her applications under s 60 of the IP Act forced her to make multiple subsequent applications to access the same information.[9]
    3. (c)
      The Applicant’s multiple requests were for multiple incidents which she sought to have investigated and prosecuted, and which involved her and other “victims” for whom she was advocating. She claimed to be a “public interest advocate” who represented “a lot of vulnerable people.”[10]
    4. (d)
      The Applicant suffered from trauma and depression which caused periods of her memory to be blacked out.
    5. (e)
      The First Respondent could simply have informed the Applicant if the information had been previously released.
  2. [13]
    In the reasons for decision, the IC addressed each of these arguments at length and considered the material relevant to each of those arguments, then concluding:
    1. (a)
      There was no evidence to establish that any restriction placed on the Applicant in terms of her form of communication with either the First Respondent or the IC resulted in her needing to engage in the repeated access actions.
    2. (b)
      The First Respondent’s refusal to deal with a number of the access applications because their scope was unreasonably wide such that their processing would substantially and unreasonably divert resources was not, in the circumstances, relevant to determining whether the conduct engaged in by the Applicant amounted to her repeatedly engaging in access actions.
    3. (c)
      The access actions were made in the Applicant’s own name and did not state that she was acting as anyone’s agent. Moreover, an access application under the IP Act by an individual is limited to that individual’s personal information. But in any event, the capacity in which the Applicant claimed to act was irrelevant to determining whether she in fact repeatedly engaged in access actions.
    4. (d)
      There was no evidence to suggest that the Applicant’s claimed memory lapses had any relevance to the issue of whether she had engaged in repeated access actions.
    5. (e)
      The Applicant’s contention that she could have been told that the information had already been provided was not relevant to determining whether she had in fact repeatedly engaged in access actions. Moreover, the IC noted that, despite her contention, the IC was “not aware of the [Applicant] having withdrawn an access application when advised by [the First Respondent] that responsive documents [had] already been released to her.”[11]
  3. [14]
    The IC concluded that the nineteen access actions in the period of two years and nine months, of which nine were made in a nine-month period, amounted to a repeated engagement in access actions within the meaning of s 127(2)(a) of the IP Act.
  4. [15]
    The IC then turned to consider whether the repeated engagement involved an abuse of process.
  5. [16]
    The reasons for decision first deal with the First Respondent’s assertions that the Applicant’s actions involved harassment and intimidation of employees and the making of unsubstantiated or defamatory allegations against certain staff. The reasons set out numerous examples of statements made both in the Applicant’s repeated applications and also in ancillary correspondence in which she accuses staff of a range of crimes and corrupt practices, impugns their integrity, and threatens litigation and other forms of retaliatory conduct. Far from resiling from any of those allegations, the Applicant sought to justify her actions. Indeed, as noted by the IC, the Applicant went so far as to demand that she be provided with the name of the external lawyer who had prepared the vexatious applicant application so that the Applicant could file a complaint about that lawyer with the Legal Services Commissioner for dishonest conduct.
  6. [17]
    The IC acknowledged that an access application might reasonably contain additional complaints or commentary by an applicant. But in this case, the IC found that:
    1. (a)
      the Applicant’s communications often contained insulting and offensive language which impugned the professional reputation and integrity of staff and which they found insulting and distressing;
    2. (b)
      the Applicant had made unsubstantiated, derogatory, inflammatory or defamatory allegations against staff; and
    3. (c)
      the Applicant’s communications often contained threats of litigation, dismissal or public exposure.
  7. [18]
    Having reviewed the Applicant’s numerous threats and allegations, the IC concluded:

… I consider that the language and content of [the Applicant’s] communications with [the First Respondent] go far beyond what could be considered to be reasonable and within the spirit of the IP Act in terms of facilitating scrutiny, comment and review of the government’s handling of personal information. Viewed objectively, I accept that staff would feel distressed and harassed by such communications.[12]

  1. [19]
    The Applicant put no evidence before the IC to establish any of the very serious allegations made against the First Respondent and its staff. The IC accepted that the threatening tone of the Applicant’s communications had the effect of intimidating staff.
  2. [20]
    Accordingly, the IC found that the Applicant’s repeated access actions involved an abuse of process because they harassed or intimidated staff members of the First Respondent.
  3. [21]
    The IC’s reasons for decision then deal at some length with whether the repeated access actions involved a wastage of public resources and funds, and found that this was the case having regard to:
    1. (a)
      the repetitive nature of the Applicant’s access applications;
    2. (b)
      her use of the IP Act process to “continue to ventilate and agitate grievances and complaints that have already been examined and dealt with”;[13]
    3. (c)
      her use of the IP Act process to intimidate and harass staff;
    4. (d)
      her refusal to cooperate in the processing of her applications; and
    5. (e)
      the additional resources which the First Respondent submitted it had been required to divert and devote to dealing with the Applicant’s matters.
  4. [22]
    The IC was accordingly satisfied that the Applicant had repeatedly engaged in access actions involving an abuse of process, and made the vexatious applicant declaration.

The Present Application

  1. [23]
    The Tribunal’s role in exercising the review jurisdiction is to reconsider the original decision and to make the correct and preferable decision.[14] An applicant on such an application must therefore address the elements of the relevant decision. In this case, that called for the Applicant, at the very least, to address the Tribunal on the fundamental issues of:
    1. (a)
      whether she had repeatedly engaged in access actions; and
    2. (b)
      whether her conduct did or did not involve an abuse of process.
  2. [24]
    The present Applicant conspicuously failed to grapple with these fundamental points. Rather, the application for review and her submissions to this Tribunal amounted to little more than a repetition of her claims to be acting as some sort of public interest advocate, her trenchant personal criticisms of numerous staff members of the First Respondent, and broad allegations of collusion and corruption by various government agencies.
  3. [25]
    For example, the Form 23 Application to Review a Decision required the Applicant to “state briefly why you think the decision is wrong or not properly made”. The Applicant completed this part of the form with a statement of “grounds”, which commenced as follows:
  1. Deliberate serious medical harm, torture, sexual assaults of patients, routinely falsified records to cover up malpracticse and deliberate abuse were carried out by [names of doctors and other staff redacted].
  1. Records access is required for the purpose of supporting the many legal, administrative and regulatory proceedings that have arisen from these sexual assaults, vicious grievous bodily harm, unlawful killing, torture and systemic falsification of medical records by GCHHS clinicians.
  1. Broad communication obligations of GCHHS to provide transparency and IP Act rights are flouted with the complicity of OIC executives [names redacted] as their legal strategy to run out the clock on personal injury and human rights abuse claims and to provide impunity for disgusting acts by [Gold Coast University Hospital] doctors and their victim-blaming executives.
  1. OIC and collaborating agencies have acted to cause continual delay and impediments to access to critical medical records, the complaint and investigation files, and PID registry for these abuses of patients.
  1. This is done while knowing the evidence is needed for open claims processing by human rights bodies and QCAT human rights division where three agencies including OIC are defendants to prosecutions by me for this same pattern of conduct of PID reprisals and retaliation for reporting serious harm by GCHHS clinicians.
  1. [26]
    The Form 23 also provided for the Applicant to briefly describe any other facts she thought important. She wrote:

Systemic patient profiling; bullying, ganging up on doctors & nurses against poor patients, patients who are black, disabled, of protected classes, whistleblowers. This is a systems enforced by governance where clinicians harass patients they discriminate against to force them to discharge themselves. All clinicians use the patient record to blacken the name of the patient they harmed. The inhouse lawyers instantly make up allegations against victims, whistleblowers & those they anticipate could sue or report abuse & malpractise. This includes having patients who are tortured & raped in the hospital criminally prosecuted with trumped up allegations. All regulators collude to give impunity to nurse & doctor offenders. Communication & access to evidence via IP Act records is blocked. I am seek the Tribunal reverse the decision & put in place safeguards available within its powers.

  1. [27]
    In her lengthy oral submissions on the hearing of this application, the Applicant made a variety of assertions, including that:
    1. (a)
      she is a targeted whistleblower;
    2. (b)
      she is a victim; and
    3. (c)
      she has been bullied, including by the court and judges.
  2. [28]
    The Applicant agreed that she had made “a lot of applications” for access to documents but sought to justify that conduct by saying that one has to look at the reason for which she was seeking access. That reason, according to her, was to facilitate her conduct as some sort of public interest advocate.
  3. [29]
    Despite ranging far and wide in her oral submissions, including commentary about other proceedings she has on foot against a wide variety of parties, and despite being repeatedly asked to do so, the Applicant failed to address the elements of s 127(2) of the IP Act. She did not mount any intelligible argument as to why her multiple access applications ought not be regarded as “repeated engagement”, nor did she in any way deal with the propositions that her repeated engagement, and the content of her repeated engagement, amounted to an abuse of process.
  4. [30]
    Having reviewed the material before the IC, the content of the present application, and the submissions made on this application, I consider this is a case in which I can also be guided by the approach taken by the original decision maker. In my view, the approach taken by the IC as decision maker was correct, as was the IC’s assessment of the issues which fell for consideration under section 127.
  5. [31]
    On my review of the material, I consider that, in the circumstances of this case, the IC was correct in finding that the Applicant had repeatedly engaged in access actions, and that such repeated engagement involved an abuse of process. I am also satisfied of those matters for the purposes of s 127(2) of the IP Act.
  6. [32]
    Accordingly, for the purposes of s 20 of the QCAT Act, this Tribunal finds that the correct and preferable decision is the vexatious applicant declaration made by the IC on 6 May 2020.
  7. [33]
    The application for review will therefore be dismissed.

Footnotes

[1] Gold Coast Hospital and Health Service and Respondent [2020] QICmr 25 (“GCHHS”).

[2] IP Act, s 133(2).

[3] Ladhams v Medical Board of Australia (No 2) [2014] QCAT 286, [48].

[4] IP Act, s 127(8).

[5] IP Act, sch 5.

[6] GCHHS [2020] QICmr 25, [2].

[7] Ibid, [20].

[8] Ibid, [21].

[9] Section 60 of the IP Act allows an agency to refuse to deal with an access application if, relevantly, the work involved would substantially and unreasonably divert the resources of the agency from the performance of its functions.

[10] GCHHS [2020] QICmr 25, [30].

[11] GCHHS [2020] QICmr 25, [43].

[12] GCHHS [2020] QICmr 25, [81].

[13] Ibid, [113].

[14] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

Close

Editorial Notes

  • Published Case Name:

    Frost v Gold Coast Hospital and Health Services & Anor

  • Shortened Case Name:

    Frost v Gold Coast Hospital and Health Services

  • MNC:

    [2021] QCAT 133

  • Court:

    QCAT

  • Judge(s):

    Justice Daubney, President

  • Date:

    18 May 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Gold Coast Hospital v Health Service and Respondent [2020] QICmr 25
9 citations
Jump To
Cite 1 - [2020] QICmr 25
Cite 2 - [2020] QICmr 25
Cite 3 - [2020] QICmr 25
Cite 4 - [2020] QICmr 25
Cite 5 - [2020] QICmr 25
Cite 6 - [2020] QICmr 25
Cite 7 - [2020] QICmr 25
Cite 8 - [2020] QICmr 25
Cite 9 - [2020] QICmr 25
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
2 citations
Jump To
Cite 1 - [2010] QCATA 58
Cite 2 - [2010] QCATA 58
Ladhams v Medical Board of Australia (No 2) [2014] QCAT 286
2 citations
Jump To
Cite 1 - [2014] QCAT 286
Cite 2 - [2014] QCAT 286

Cases Citing

Case NameFull CitationFrequency
Crime and Corruption Commission v Acting Deputy Commissioner Wright [2022] QCAT 2431 citation
1

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