Underwood v Metro North Hospital and Health Service
[2022] QCATA 124
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- Unreported Judgment
- Underwood v Metro North Hospital and Health Service[2022] QCATA 124
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Underwood v Metro North Hospital and Health Service[2022] QCATA 124
Underwood v Metro North Hospital and Health Service[2022] QCATA 124
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Underwood v Metro North Hospital and Health Service & Anor [2022] QCATA 124 | ||||||||
PARTIES: |
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APPLICATION NO/S: | APL105-20 and APL153-21 | ||||||||
MATTER TYPE: | Appeals | ||||||||
DELIVERED ON: | 30 August 2022 | ||||||||
HEARING DATE: | 22 August 2022 | ||||||||
HEARD AT: | Brisbane | ||||||||
DECISION OF: | Judicial Member Forrest SC | ||||||||
ORDERS: |
by the close of business on Friday, 9 September 2022.
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CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – parties to proceeding – appeal to Appeal Tribunal from decisions of the Information Commissioner – Information Commissioner made respondent – other contradictor available – where Information Commissioner applied to be removed – where the application is opposed by the appellant – whether the Information Commissioner can be removed as a party to the proceedings – the Hardiman principle applied Right to Information Act 2009 (Qld) s 119 Gallo v Dawson (1990) 93 ALR 479 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 Stiles v Information Commissioner [2021] QCATA 152 Walker Group Holdings Pty Ltd v Queensland Information Commissioner (No 2) [2021] QCATA 84 | ||||||||
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REASONS FOR DECISION
- [1]In two substantive appeals brought by the one Appellant against the decisions of the Information Commissioner in separate external review applications, the Information Commissioner makes application to be removed as a Respondent to each of the proceedings. The other Respondent to the two appeals, Metro North Hospital and Health Service, does not oppose the Information Commissioner’s application and did not even appear at the hearing, clearly understanding that if the Information Commissioner is removed from the proceedings that it will be the sole contradictor in the two appeals.
- [2]The Appellant, Ms Underwood, opposes the application.
Some Background
- [3]The Appellant made two applications to the Metro North Hospital and Health Service for access to documents from her medical records pursuant to the Right to Information Act 2009 (Qld) (“Right to Information Act”). Her applications were determined and she was given access to most of the documents she applied to access and only partial access to several other pages, with some parts of those pages being redacted. Unhappy with that outcome, the Appellant applied to the Information Commissioner for external review of the Health Service’s primary decisions. Upon completion of the external reviews, the Information Commissioner affirmed the primary decisions of the Health Service.
- [4]The Appellant appealed to this Tribunal against the decisions of the Information Commissioner as is her right pursuant to s 119 of the Right to Information Act. As can be seen from this Tribunal’s numbering of these Appeals, one was commenced in 2020 and one was commenced in 2021. It is unfortunate, of course, that the matters have taken this long to be finalised in this Tribunal. There are numerous reasons for that, as I understand. In any event, both appeals are set down for hearing just a few days apart in November this year.
- [5]It seems that in appeals to this Tribunal against decisions of the Information Commissioner in external review applications pursuant to the provisions of the Right to Information Act, a practice had initially developed of making the Information Commissioner a party to the appeal along with the primary decision maker of the original application to access documents. The Information Commissioner would prepare the Appeal Books and appear but otherwise submit to such order as this Tribunal sitting in its appeal jurisdiction determined appropriate, without contesting the appellant’s case. That approach, in accordance with what is called the Hardiman principle, was indeed in accordance with authoritative pronouncements of the High Court.
- [6]In R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at [54], the High Court, in a unanimous judgment, said:
There is one final matter. [Counsel for the Tribunal] was instructed by the Tribunal to take the unusual course of contesting the prosecutors’ case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.
- [7]In appeals against external review decisions of the Information Commissioner, the Commissioner is in the exact same position as the Broadcasting Tribunal was in the Hardiman case. Appropriately, the Information Commissioner has correctly followed the principle propounded by the High Court in that case when appearing as a Respondent to appeals in this Tribunal.
- [8]This practice that developed in these appeals in this Tribunal apparently went unquestioned by all concerned for years. When Ms Underwood commenced these two particular appeals, the Information Commissioner was, as usual, named as a Respondent, along with the Health Service. Indeed, initially, as Ms Underwood pointed out in her written submissions opposing the Commissioner’s application, the Health Service itself sought to be removed as a Respondent but was refused. In making that application, the Health Service plainly relied upon the fact that the Information Commissioner was itself a Respondent.
- [9]Through 2021, the two appeals progressed towards being listed for hearings with a number of miscellaneous applications being made in them along the way. Then in July 2021, Judicial Member McGill SC decided a costs application in an appeal that he had already determined against an external review decision of the Information Commissioner. Relevantly, the Information Commissioner made submissions that she should never have been a party to the appeal in any event. In that decision, Walker Group Holdings Pty Ltd v Queensland Information Commissioner (No 2) [2021] QCATA 84 (“Walker”), Judicial Member McGill SC, in a carefully reasoned passage, accepted the Information Commissioner’s submissions that she should not have been made a party to the appeal in the first place.
- [10]Later, in another appeal against an external review decision of the Information Commissioner, Stiles v Information Commissioner [2021] QCATA 152 (“Stiles”), the Information Commissioner applied to be removed as a Respondent to the appeal and relied upon Judicial Member McGill SC’s reasoning in the earlier Walker decision. The Appellant in that matter opposed the application but Judicial Member McGill SC referred to his reasons in the Walker decision and ordered that the Information Commissioner be removed as a party in that appeal.
- [11]Now, the Information Commissioner relies on those two decisions of Judicial Member McGill SC in support of her application to be removed as a party in these appeals.
Judicial Member McGill SC’s Reasoning
- [12]In the Walker case, his Honour’s reasons were, relevantly, set out under the heading “Should the First Respondent have been a party?” between paragraphs [11]-[25]. I will not set them all out again here, but I have read them and have no reason to consider them to be incorrect or not applicable to the immediate circumstances in these appeals. I read the written submissions of the Information Commissioner and observe that they refer to the Walker case in support and rely on the reasoning of his Honour set out therein. That is, in essence, what Ms Lake who appeared for the Information Commissioner before me submitted orally to the Court as well.
- [13]Having read the first lot of written submissions of the Appellant, I called upon Ms Underwood to point out to me in her oral argument as to how and why the reasoning of Judicial Member McGill SC did not apply to the determination of the Information Commissioner’s application to be removed as a party to these appeals. Ms Underwood then handed to the Tribunal a second set of supplementary written submissions which were seventeen pages in length and attached some further items of evidence that I admitted into evidence in the application. Though the supplementary written submissions and attached evidence had not been provided to Ms Lake or the Information Commissioner in advance of the hearing, Ms Lake did not oppose them being received and considered by me.
The Appellant’s Submissions
- [14]The Appellant advocates for herself before this Tribunal. She is, I have no doubt, without the financial means to retain legal representation. The Appellant is also not without health challenges. The task of appearing in a tribunal such as this with those disadvantages is clearly daunting, but as McHugh J of the High Court said in Gallo v Dawson (1990) 93 ALR 479 at 481, “lack of legal knowledge is a misfortune, not a privilege”. Having said that though, the Appellant was able to sufficiently communicate her arguments to the Tribunal in her two sets of written submissions and in her oral submissions, albeit sometimes using very colourful, descriptive language.
- [15]The Appellant called her first point “the retrospectivity issue”. When this was explored with her, I was able to discern that what she was referring to was the fact that the Information Commissioner was already a party to both of these appeals at the time the Walker case was decided and therefore it would be wrong to apply Judicial Member McGill SC’s reasoning to let the Information Commissioner out now.
- [16]It is to be remembered that the decision in the Walker case was deciding a costs application after the substantive appeal had already been heard and finally determined. The appeal itself was all over. The Information Commissioner was not applying in that case to be removed from the proceedings, but simply submitting that she should never have been a party in the first place. Judicial Member McGill SC accepted that submission as correct. His Honour found that the Information Commissioner should not have been a party to the proceedings from their commencement. His Honour found that again in the Stiles decision.
- [17]Judicial Member McGill SC’s reasoning, which I accept as correct, applies in all appeals against the decisions of the Information Commissioner in this Tribunal. The fact that the Information Commissioner was already a party in this case when the Walker case was decided is not itself determinative of the point. These two appeals were only both recently set down for hearing. If the Information Commissioner is not allowed out of the proceedings, at the hearings she will only act in accordance with the Hardiman principle in any event. In each of the appeals, there will otherwise be an appropriate contradictor in the Health Service. I am completely satisfied that it is not too late at this point in the proceedings to let the Information Commissioner out.
- [18]In addition, though the Appellant was effectively submitting that it was too late to let the Information Commissioner out of the two appeals, she did concede that she did not completely comprehend the obvious difference in the Walker case and these appeals in respect to the issue of the timing of the application. In the Walker case, the Information Commissioner was submitting that she should not have costs ordered against her in the successful appeal as she should never have been joined as a Respondent in the first place, whilst in these appeals the Information Commissioner is submitting that she should be allowed out of the appeals before they are heard as she should never have been joined as a Respondent in the first place and now has no proper place in them going forward towards hearing. There is a clear and relevant difference in the timing and the Information Commissioner is simply doing what Judicial Member McGill SC said should be done, namely applying at an early stage to be removed as a party.
- [19]Another of the Appellant’s points of argument was that the “obstructionist approach” of the Information Commissioner justified her being kept in the proceedings. With respect to the Appellant, I have not seen any evidence that persuades me to the view that the Information Commissioner has taken an approach that could be objectively described as “obstructionist” and nor am I convinced by the submissions that an approach described as obstructionist taken by a party to an appeal who should not be a party to the appeal would justify keeping that party in the appeal.
- [20]The Appellant also submitted that a reason for keeping the Information Commissioner in the appeals is that it sets the methodology correctly for future appeals. This submission is based on her own personal view that the former practice of having the Information Commissioner as a respondent in all such appeals is good practice and should be continued. As I informed the Appellant at the hearing of the application, her own views on appropriate practice are matters she could take up with the policy makers and legislators but do not bear on the determination of this application unless they demonstrate mistake in Judicial Member McGill SC’s reasoning.
- [21]The Appellant’s submissions went on to assert that it is not appropriate for Metro North Hospital and Health Service to be the contradictor in her appeals. I understood one reason advanced by the Appellant in support of this submission was that it was incorrectly asserted by the Information Commissioner that the Health Service did not oppose the Commissioner’s application. The Appellant pointed to the fact that the Health Service had itself sought to be removed as a respondent early in the proceedings as evidence that the Information Commissioner’s assertion was wrong. With respect, that fact, though historically correct, is not supportive of a finding that the Health Service now opposes the Information Commissioner’s application. The non-appearance of the Health Service at the hearing of the application satisfies me that the Health Service does not oppose the removal of the Information Commissioner.
- [22]Another reason advanced by the Appellant in support of this submission that it is not appropriate for the Health Service to be the only respondent in the appeals was that the Appeal Books already prepared by the Health Service pursuant to directions of the President, Justice Mellifont, in Appeal APL105-20 were poorly put together, lacked some documents that should be in them and were generally not to her satisfaction in comparison with those already prepared by the Information Commissioner in Appeal APL153-21. The Appellant also pointed out that she had not been provided by the Health Service with redacted copies of the documents that were the subject of the external review application in Appeal APL105-20 as she has been by the Information Commissioner in Appeal APL153-21 when she provided the Appellant with the Appeal Books in that matter.
- [23]With respect, I consider those criticisms, if correct, do not constitute grounds demonstrating the incorrectness of a determination that the Information Commissioner should not be a respondent and that she should be allowed out of the appeals. Rather, they are grounds for giving the Appellant some input into the documents that should be included in the Appeal Books, which, as Ms Lake pointed out in her submissions, is how Appeal Court registries arrange for Appeal Books to be readied for appeals. I will do that in the directions I will make, in addition to making a direction that the Health Service provide the Appellant with redacted copies of those documents that were the subject of the external review application that are in issue between the parties.
- [24]I am, in the end, satisfied that the reasoning of Judicial Member McGill SC in the Walker decision, followed by his Honour again in the Stiles decision, was correct and that the Information Commissioner should not be a party to these two appeals that are set down for hearing in November. I will order that she be removed.
- [25]I will also, for administrative reasons already explained to the Appellant at the hearing of the application, vacate the hearing date for Appeal 153-21 currently set for Friday, 18 November and relist it for hearing on Monday, 21 November instead.
- [26]The direction I will make in respect of the Appeal Books in Appeal APL105-20 will give the Appellant, Ms Underwood, the opportunity to provide to the Health Service a list of the additional documents she wants included in the Appeal Books in that matter. I consider that giving her until the close of business on Friday, 23 September is a reasonable period of time within which she can do that. I also consider a further two weeks for the Health Service to prepare, file and serve the Supplementary Appeal Books with those additional documents identified by Ms Underwood in them is a reasonable period of time within which the Health Service can attend to that task.
- [27]I make the orders and directions that are set out at the commencement of these written reasons.