HAR v Metro North Hospital and Health Service
[2021] QCATA 115
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- HAR v Metro North Hospital and Health Service[2021] QCATA 115
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HAR v Metro North Hospital and Health Service[2021] QCATA 115
HAR v Metro North Hospital and Health Service[2021] QCATA 115
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | HAR v Metro North Hospital and Health Service [2021] QCATA 115 |
PARTIES: | HAR (applicant/appellant) v metro north hospital and health service information commissioner (respondents) |
APPLICATION NO/S: | APL105-20, APL153-21. |
MATTER TYPE: | Appeals |
DELIVERED ON: | 22 October 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC |
ORDERS: | Applications for consolidation:
Applications for authorities: Applications dismissed. All applications: All questions of costs be reserved to the Member who decides the substantive appeals, provided that, if the second respondent is removed as a party, costs involving the second respondent be decided at that point, and that, if the appeals are resolved without a decision, there be no order as to costs. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – procedure – consolidation and sequencing of proceedings – appeals from separate decisions of Information Commissioner by same appellant – whether appropriate to consolidate appeals – whether appeals to be heard together Information Privacy Act 2009 (Qld) s 132. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 54, s 55. McCrystal v Information Commissioner [2019] QCATA 90 Osland v Secretary, Department of Justice (2010) 241 CLR 320 Powell v Queensland University of Technology [2018] 2 Qd R 276 Stacks Managed Investments Ltd v Tolteca Pty Ltd [2015] QSC 80 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondents: | Self-represented This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]There are before the Tribunal two appeals each brought by the same appellant from decisions of the Information Commissioner. On 1 June 2021 the appellant filed in the Tribunal two applications for miscellaneous matters in each of the appeals. One sought consolidation of the two appeals, and fresh directions as to the preparation of documentation for the two appeals, including that the appellant have more time to prepare, file and serve additional documentation. The other sought the production of the instruments of delegation to the various decision makers involved in the matters, and the representatives appearing in the Tribunal, and further information about the identification of certain files of the first respondent referred to in the material.
Background
- [2]On 26 September 2018 the appellant applied to the first respondent for access to all of her medical records, including mental health. The request was dealt with under the Information Privacy Act 2009 (Qld) (“the Act”). The first respondent located 503 pages within the terms of the application, and disclosed them apart from certain information provided by third parties to health professionals. The appellant applied for external review of the decision, seeking the release of that information, and that additional documents be located and released. During the review, some further information was provided to the appellant, but the second respondent decided to affirm the decision of the first respondent to refuse access to the information appearing on eighteen pages on the basis that the disclosure of that information was on balance contrary to the public interest. As well, the second respondent concluded that the first respondent had taken all reasonable steps to identify and locate the documents the appellant applied for.[1]
- [3]On 28 February 2020 the appellant applied to the first respondent for access to various documents, described in various ways, apparently designed to cover documents not covered by the earlier application, or not already released. It is not presently necessary to detail the terms of the request, parts of which were quite specific, and parts very broad. The first respondent located 176 pages covered by it, and released them apart from parts of four pages, to which access was refused. The appellant applied for external review of that decision, challenging the refusal of that access, and seeking that further documents be located and released. The second respondent upheld the decision not to disclose the information, and that further documents sought were non-existent or unlocatable.[2]
- [4]The appellant filed an application to appeal against the first decision of the second respondent on 27 April 2020. With that application, the appellant filed an application for a temporary stay of that appeal, anticipating that there would in due course be an appeal from the decision in the second review, with a view to the amalgamation of the two appeals, thus avoiding having to provide two sets of documents for the two appeals.[3] So far as I can see from the file, that application has never been heard. The appellant filed an application to appeal against the second decision of the second respondent on 1 June 2021. The President of the Tribunal gave directions in this appeal on 9 June 2021, which had they all been complied with would have led to an oral hearing of the appeal having already occurred. Then on 1 July 2021 the appellants filed the two applications in the Tribunal. Directions to accommodate them were made on 4 August 2021.
- [5]The appellant filed submissions in support of the applications with them. The respondents have filed submissions in writing, but no submissions in reply have been filed. The first respondent’s submissions as to the application for consolidation and further directions are quite limited, simply not objecting to a hearing on the papers.
Application for consolidation
- [6]Two proceedings can be consolidated under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act’) s 54. Alternatively, they can be heard together, or in a particular sequence, under the QCAT Act s 55. The difference is that consolidation has the effect of merging the two proceedings into one proceeding, but if proceedings are heard together, they remain separate proceedings, so that they give rise to separate relief.
- [7]Consolidation may be appropriate if the whole of the matters in issue can be dealt with in the one grant of relief, and is useful if it would be inappropriate to grant relief in one proceeding without also accommodating the relief appropriate in the other proceeding. Under the Uniform Civil Procedure Rules 1999 (Qld) r 78, proceedings may be consolidated if the same or substantially the same question is involved in all the proceedings, or the decision in one will decide or affect the other or others, but consolidation will not necessarily be ordered just because one of these requirements is satisfied. It is relevant to consider the extent of commonality of issues between the proceedings, and whether consolidation is likely to cause delay or increased cost.[4]
- [8]In the present case, the parties are the same in both proceedings, and both involve applications for disclosure under the Act, although they involve different applications, made in different but related terms. They also involve two separate decisions by the second respondent. That produces a difficulty for an application for consolidation, in view of the decision of the President of the Tribunal in McCrystal v Information Commissioner [2019] QCATA 90 at [19]. In that matter his Honour was considering an application under the QCAT Act s 55, that four separate appeals from the Commissioner be heard together, but also discussed the power to consolidate proceedings under s 54. In relation to that, he said that the appeals, being from separate decisions of the Commissioner, could not have been brought in the one proceeding in the Tribunal, and therefore could not be consolidated, since as a general rule consolidation would not be ordered unless the matters covered by the two proceedings could have been joined in the one proceeding.[5] In that matter, the application that the appeals be heard together was rejected, on the basis that each appeal was only on a question of law, and the decisions of the Commissioner were different in each matter, as were the grounds of the appeal and the questions of law identified in them: [14], [15].
- [9]There is a right to appeal to the Tribunal under the Act s 132, but only on a question of law. The appeal provided by s 132, because it was confined to a question of law, is in the nature of judicial review, as is shown by strong authority.[6] The appeal does not provide a mechanism for reconsidering any issue of fact decided by the first respondent, except on the narrow ground that, as a matter of law, the decision on the issue was not open on the material before the second respondent. The only issue is whether an error of law was made by the second respondent.[7] That would have to be decided separately in relation to each decision of the second respondent, and whatever relief was appropriate in each appeal would have to be given separately in respect of each appeal. If in an appeal an error of law is shown, the appropriate course is to refer the matter back to the second respondent to decide according to law, unless as a matter of law only one decision was open on the material before the second respondent.[8]
- [10]There is some commonality in the two decisions, in that each dealt with an issue of whether there is additional information within the scope of the request for access which has not been located by the first respondent, but each had to be considered in the light of differently expressed requests for access. In each appeal the appellant raises an issue as to the existence of further relevant information, although it appears that in each the appeal really seeks to raise an issue of fact, not an issue of law.
- [11]When comparing the two appeals, it is apparent that many of the grounds of appeal stated by the appellant are in the same terms in both appeals. Such grounds however are expressed in language which is so broad as to be meaningless, such as that “there has been a denial of natural justice.”[9] The first appeal raised some grounds about the actions of the first respondent, but the appeal is limited to questions of law arising in the decision of the second respondent. There are allegations of bias which are expressed in the same but very general terms, except for one specific allegation (made in both appeals) of bias on a particular ground, which may raise a question of law apart from the issue of bias. The actual decision maker was a different assistant information commissioner in each decision under appeal.
- [12]Because of the fact that each appeal is from a different decision of the second respondent, and because of the limited nature of the appeal under the Act s 132, it is not appropriate to order that the appeals be consolidated. That conclusion takes into account the statement by the President in McCrystal (supra), and that the second respondent has already filed and served on each other party a copy of the documents relied on in making the second respondent’s decision in the second appeal. Separate relief would have to be given in each appeal, regardless of the outcome. Overall, this is not an appropriate matter for consolidation.
- [13]Although the actual application for miscellaneous matters filed by the appellant referred only to an application for consolidation, in her submissions filed with the application the appellant sought in the alternative a direction under s 55 that the appeals be heard together. This was the sort of direction sought, and refused, in McCrystal (supra), largely on the basis that the appeals in that matter involved different questions of law, and that they were appeals from different decisions. The latter consideration still applies.
- [14]As to the refusal to disclose certain information, both involved a balancing of factors favouring disclosure and factors favouring non-disclosure. It appears that the decision maker in each appeal identified the same factors favouring disclosure, because I expect the appellant relied on the same factors in each review, and the same factors favouring non-disclosure. The weight given to each factor is not a matter for the Tribunal, as it does not involve a question of law; but whether a particular factor was relevant could well raise a question of law, although it is not clear that any such question is raised by the appellant’s appeals. One ground of appeal seems to challenge the balancing exercise carried out, but that a balancing exercise is required is laid down in the Act s 67. The ground as formulated does not identify a question of law.
- [15]This is a difficulty with these matters. The appellant does not have the benefit of legal advice, and has not identified specific questions of law said to arise in each appeal. I suspect that much of what the appellant is complaining about is not within the scope of the limited appeal available under the Act s 132, but the extent to which this is so will only be apparent when all of the submissions from the appellant have been made.
- [16]I note that the appellant seeks an oral hearing, and objects to a hearing on the papers. If there is to be an oral hearing of these matters, I expect it would be more efficient for the appellant to make the submissions she wants to make, which I expect will largely apply to both appeals, once, before one Tribunal member. The same could well apply to written submissions. Those the appellant has provided so far have not been succinct, and if the appellant is required to put all her submissions in writing, I expect there will be a good deal of overlap. That will impose a significant additional burden on the other parties, and on the Tribunal. My impression overall is that these matters will proceed more efficiently if the two appeals are heard together.
- [17]In those circumstances I am prepared to direct under the QCAT Act s 55 that these two appeals be heard together. The application also sought that paragraphs 3 to 5, part of 6, and 7 of the directions made by the President on 9 June 2021 be vacated, but these paragraphs have already been vacated by Senior Member Howard on 4 August 2021. The application seeks directions for the preparation of future documentation. The next step would appear to be for the appellant to file submissions in writing in one appeal, covering both appeals. The appellant has provided some information about other matters which would make it difficult for her to do this as at 1 July, but it is not clear when she considers she can do this. Further, the respondents have not made submissions as any timetable.
- [18]I consider that the appropriate course is for there to be a further directions hearing to deal with the appropriate directions in the light of this decision. That will have to be on a date to be fixed. As well, a decision will have to be made at some time as to whether there is to be an oral hearing of the appeals, as sought by the appellant, and as to the filing of documents relevant to the first appeal by the second respondent, and as to whether the second respondent should continue to be a party to the appeal.[10] Hopefully the matters can now be progressed more expeditiously.
Application as to authority
- [19]The appellant sought that the respondents provide authorities for certain decision makers and legal representatives. In the case of the first respondent, this was:
- (a)The person who made the decision on 12 November 2018 the subject of the first external review, and supposedly a relevant earlier decision on 18 October 2018.
- (b)The person who made the decision on 18 March 2020 the subject of the second external review.
- (c)The representatives who had appeared for the first respondent before the Tribunal.
- (a)
- [20]In the case of the second respondent, this was:
- (a)The person who made the decision on 27 March 2019 on the first external review, and provided some preliminary views in relation to it.
- (b)The person who provided a preliminary view in relation to the first external review on 11 July 2019.
- (c)The person who provided a preliminary view in relation to the second external review on 5 November 2020.
- (d)The person who made the decision on 4 May 2021 on the second external review
- (e)The representatives who had appeared for the second respondent before the Tribunal.
- (a)
- [21]The appellant blandly asserts that these are required to establish the validity of the decision makers and the legal representatives. I am not at all sure that that is correct, particularly in the case of the persons who made decisions on behalf of the first respondent, since there was no issue as to their authority to make those decisions before the second respondent, and so necessarily no error of law on the part of the second respondent in relation to that issue. If there has been no valid decision of the second respondent from which to bring an appeal to the Tribunal, it would appear to follow that the appeal is itself invalid, and should be struck out; but if there can be an appeal on the ground that the person who made the decision was not authorised to make it, I would expect the onus would be on the appellant to prove that that was the case, not on the respondent to prove the contrary.
- [22]It appears however that the first respondent has provided directly to the appellant copies of the relevant delegations approved by the Board of the first respondent, which would satisfy the first two parts of the request.[11] As to the authority of the representatives before the Tribunal, the first respondent said that they have been government legal officers, who were entitled to appear under the Act s 198(2), and the QCAT Act s 43(2)(b)(iii). That is certainly sufficient to satisfy any information properly required.
- [23]The second respondent attached to the submissions in relation to the application a copy of the instrument of delegation by the Information Commissioner to the Assistant Information Commissioners concerned, which would satisfy the first four parts of that request, although the second respondent asserted that what the appellant described as a partial decision dated 6 November 2019 was simply a letter. As to the authority of the representatives before the Tribunal, that has involved appearances by a Senior Review Officer as part of the duties of such a position. That is again sufficient to satisfy any information properly required.
- [24]The appellant also seeks, in the application filed in the second appeal, a direction that the first respondent identify two files in the appeals “as they relate to each other.” The appellant said that files in the first appeal are referred to as Vol I and Vol II, whereas files in the second appeal were referred to as Item 1 and Item 2. The document attached to the application is quite inadequate for me to understand what this direction is about, and I am not going to make a direction I do not understand. If this is a reference to the information disclosed in response to the first access application, and the material disclosed in response to the second access application, then there is no reason to assume any overlap, but in any event, it is a matter for the appellant to compare the two sets of material, and work it out herself. I cannot see how this has anything to do with an appeal on a question of law.
- [25]Accordingly the second application is dismissed. The second respondent reserved her position on the question of costs. Because of the interlocutory nature of these applications, I consider that any application for costs should be decided when the appeals are decided, or, if the second respondent is removed as a party to the appeals, at that time. If the appeals are resolved other than by a decision of the Tribunal, there will be no order as to costs.
Footnotes
[1] H89 and Metro North Hospital and Health Service [2020] QICmr 18.
[2] H89 and Metro North Hospital and Health Service [2021] QICmr 18.
[3] Originally Queensland Health was also a respondent, but it was removed by the President of the Tribunal on 3 September 2020.
[4] Stacks Managed Investments Ltd v Tolteca Pty Ltd [2015] QSC 80 at [38] per Bond J as he then was.
[5] Citing Pacific Century Productions Pty Ltd v Taylor’s Contracting Services Pty Ltd [2003] QSC 289 at [25].
[6] Osland v Secretary, Department of Justice (2010) 241 CLR 320; Powell v Queensland University of Technology [2018] 2 Qd R 276 at [42] – [46], a case concerning the Information Privacy Act 2019 (Qld) s 132.
[7] As to the identification of an error of law, see also Commissioner for Liquor and Gaming v Farquhar Corporation Pty Ltd [2018] QCA 202.
[8] Powell (supra).
[9] One ground on each appeal is that “there has been a breach of the Nuremburg Rule.” I have no idea what that means.
[10] In the light of my decision in Walker Group Holdings Pty Ltd v Queensland Information Commissioner (No 2) [2021] QCATA 84.
[11] Letter of first respondent to appellant dated 26 August 2021, a copy of which was provided to the Tribunal.