Bracewell v Richmond Services Limited [2014] NZCA 629 (19 December 2014)

Last Updated: 13 January 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA410/2014 [2014] NZCA 629
BETWEEN	JAN SUSAN BRACEWELL Applicant
AND	RICHMOND SERVICES LIMITED Respondent

Court:	Randerson, Miller and Cooper JJ
Counsel:	Applicant in Person P M Shaw for Respondent
Judgment: (On the papers)	19 December 2014 at 10:00 am

JUDGMENT OF THE COURT

1. The application for an extension of time is granted.
2. The application for approval of representation by a lay advocate is declined.

100. The application for leave to appeal is dismissed.

4. The respondent is entitled to costs for a standard application on a Band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] The applicant Ms Bracewell was employed as a community support worker by the respondent Richmond Services Ltd (Richmond), a national provider of health services under contract to various district health boards and the Ministry of Health.
[2] Ms Bracewell resigned from her employment on 28 February 2013. She had alleged that one of Richmond’s clients (Client A) was being permitted by personnel at Richmond and the relevant district health board (the DHB) to engage in abusive prostitution, causing, and having the potential to cause, significant harm to her.
[3] When Ms Bracewell resigned from her employment she took copies of Client A’s clinical records. She disclosed these records to various parties in the hope they would take action to protect Client A from the harm Ms Bracewell perceived was being caused to Client A. Ms Bracewell also intended to use the clinical records to bring complaints about Richmond and certain personnel of the DHB including a case manager and a consultant psychiatrist.
[4] Richmond took proceedings under the Employment Relations Act 2000 (the ERA) against Ms Bracewell in the Employment Relations Authority (the Authority) and was granted orders that Ms Bracewell and her employment advocate return the relevant records.^[1] Ms Bracewell was also ordered to pay costs to Richmond of $3,375.^[2] Ms Bracewell then challenged the decision of the Authority in the Employment Court, seeking orders setting aside the Authority’s determinations and also claiming $40,000 compensation. Richmond brought a cross-challenge seeking an order for the return of all confidential information; a permanent injunction restraining Ms Bracewell from disclosing or using any confidential information; and a penalty for each breach of the confidentiality clause of the employment agreement with Ms Bracewell.
[5] In the Employment Court, Judge Corkill dismissed Ms Bracewell’s challenge to the Authority’s determination; granted an injunction for the return of the confidential information; and ordered Ms Bracewell and any agent of hers not to directly or indirectly use or disclose any of Richmond’s confidential information, including any information relating to its clients.^[3] A penalty of $2,000 was imposed on Ms Bracewell for breach of the employment agreement.
[6] Ms Bracewell now seeks leave to appeal on questions of law against the judgment of the Employment Court under s 214 of the ERA. She also seeks an order extending the time for appeal and an order that she be permitted to be represented by a lay advocate Dr Cook.
[7] On 9 September 2014 French J directed by minute that Ms Bracewell should:

(a) Apply for an extension of time giving reasons for the delay.

(b) File submissions in support of the representation issue.

(c) Formulate the questions of law she would seek to raise on appeal with precision and clarity.

[8] Ms Bracewell complied with the directions given and formulated questions of law which we summarise as follows:

(a) The Employment Court applied s 69 of the Evidence Act 2006 incorrectly in that it granted Richmond permission to admit confidential client information from DHB files but refused permission to her to admit confidential evidence relating to Client A’s care. This resulted in a miscarriage of justice, a breach of Ms Bracewell’s rights to natural justice and a fair hearing under s 27 of the New Zealand Bill of Rights Act 1990 and ss 4 and 189 of the Employment Relations Act.

(b) The Employment Court erred by misapplying the employment agreement and the Health Information Privacy Code thereby resulting in a miscarriage of justice.

(c) The Employment Court erred by failing to consider her allegation that Richmond had concealed key evidence and thus misapplied the employment agreement and the Protected Disclosures Act 2000 (the PD Act).

The Employment Court judgment

[9] The disclosures of confidential information made by Ms Bracewell occurred both before and after her resignation. They included disclosures to the police, the clinical director of Mental Health Services at the DHB, the Ombudsman, the Medical Council of New Zealand and the Health and Disability Commissioner. Crucially, disclosures were made to members of Client A’s family and to a journalist.
[10] The Judge thoroughly analysed the legal framework. This included the PD Act, the terms of the collective agreement governing Ms Bracewell’s employment relationship (cl 18 of that agreement in particular); and policies incorporated by reference into the collective agreement. These included a privacy policy (reflecting the Health Information Privacy Code 1994 (the HIPC)); an Information Systems Policy and a Protected Disclosure policy (the PD policy) promulgated under the PD Act.
[11] The Judge found that the protections available to Ms Bracewell under the PD Act applied to all the disclosures other than those to family members and the journalist. He found that those disclosures were not protected under the PD Act nor were family members or the media included as “appropriate authorities” for disclosure purposes in the PD policy. The Judge also found that disclosures to Client A’s family and to the journalist were not justified under cl 18.2 of the employment agreement nor mandated by r 11 of the HIPC. They amounted to serious breaches of the employment agreement. The disclosures had not been authorised by Client A.
[12] The Judge concluded it was appropriate to grant a mandatory injunction for the return of Richmond’s confidential information and to make an order prohibiting Ms Bracewell and any agent of hers from directly or indirectly using or disclosing any of Richmond’s confidential information, including any information relating to its clients.
[13] In imposing the penalty of $2,000 for breach of the employment agreement, the Judge took into account that Ms Bracewell’s actions had caused distress to Client A and to her family; there was a need to deter Ms Bracewell and others from making unwarranted disclosure of the confidential information of mental health patients; and the deliberate nature of the disclosures including the “egregious act” of initiating publication of the information in the media, even if anonymised. Since Ms Bracewell had been ordered to pay costs in the Authority, a modest penalty was considered appropriate.
[14] Addressing Ms Bracewell’s challenges to the Authority’s decision, the Judge found that Richmond had acted responsibly in seeking to protect Client A’s information; s 66 of the Human Rights Act 1993 did not apply; there was “no evidence whatsoever” to suggest that Richmond had committed perjury in its application for an injunction before the Authority; and there were no grounds to challenge the costs award made by the Authority.
[15] We now address each of the issues in turn.

Application for extension of time

[16] We are satisfied that the delay in filing the application for leave to appeal was relatively minor. It appears to have arisen from a misunderstanding of court procedure by a self-represented litigant. Despite opposition by Richmond, we grant an extension of time to appeal.

Representation by Dr Cook

[17] As French J pointed out in her minute of 9 September 2014, the general policy of this Court is not to allow lay representation. Although the rule is not

absolute, the Court’s discretion to allow lay representation is to be exercised sparingly and only for good reason.^[4]

[18] We are not satisfied that the representation application should be granted. The questions of law have been formulated sufficiently for the purposes of the application for leave to appeal and it has been agreed that the application is to be dealt with on the papers. Accordingly, we do not consider that Ms Bracewell has been placed at any disadvantage as a lay advocate.

Should leave to appeal be granted?

[19] Section 214(3) of the ERA provides:

214 Appeals on question of law

...

(3) The Court of Appeal may grant leave accordingly if, in the opinion of that court, the question of law involved in that appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[20] We now address each of the three questions identified by Ms Bracewell.

Misapplication of s 69 of the Evidence Act

[21] Prior to the hearing in the Employment Court, it was submitted on Ms Bracewell’s behalf that the Judge should consider the relevant records relating to Client A’s care.
[22] The Judge declined to do so. He noted in his judgment that the Evidence Act did not automatically apply to proceedings in the Employment Court although its principles could be of assistance and may be applied by analogy.^[5] He then examined each of the factors guiding the exercise of discretion under s 69(2) of the Evidence Act. The Judge was satisfied it was not appropriate for the private information of Client A to be admitted, even for the limited purpose of consideration by the Court. He took into account that Ms Bracewell had summarised in her brief of evidence the key points in the documents at issue; there was no need for the Court to examine the documents itself; there was a possible risk of harm to Client A if she were informed that the Court had considered the documents; other similar relationships could be affected if it became known that private, sensitive information could be considered by the Court; and there was no public interest in Client A’s information being considered beyond that which was already available to the Court.
[23] Ms Bracewell submitted that the Court had erred in this determination and submitted that this resulted in a miscarriage of justice and a breach of her rights to natural justice and a fair hearing.
[24] Decisions as to the admission or rejection of evidence may amount to questions of law. However, we see no error in Judge Corkill’s approach to the exercise of discretion in this case. Nor do we view the Judge’s decision as being material to the outcome of the case. In the end, the Employment Court’s decision turned on a determination that the disclosures of confidential information to members of Client A’s family and to a journalist could not amount to a protected disclosure to an appropriate authority under the PD Act or the PD policy. The precise nature of the confidential information disclosed is not material to that decision.

Misapplication of the employment agreement, the Privacy Act and the HIPC

[25] Ms Bracewell submitted under this heading that Judge Corkill had overlooked evidence that she was still employed when approaching Client A’s family and thus, she submitted, covered by privacy law. She also submitted the Judge had wrongly concluded that she gave Client A’s documents to the media by attributing to her evidence that she did not give.
[26] These are purely factual questions and could not amount to questions of law for the purposes of an appeal under s 214 of the ERA.

Failure to consider evidence of alleged concealment by Richmond of key evidence

[27] Ms Bracewell submitted finally that the Employment Court had failed to consider what she described as Richmond’s concealment of key evidence through sixteen months of proceedings including the investigation and mediation stages of the case. She submitted that the Court had misapplied the provisions of the employment agreement and the PD Act in consequence.
[28] There is no merit in this point since, as already noted, the Judge did consider this allegation but found no evidence to support it.

Conclusions

[29] Only one of the three questions proposed could potentially amount to a question of law. However, we are satisfied the Judge did not err in relation to that question.
[30] More generally, we see no indication of error in the carefully considered judgment of the Employment Court. There is no question of law that, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for decision.

Result

[31] The application for an extension of time is granted.
[32] The application for approval of representation by a lay advocate is declined.
[33] The application for leave to appeal is dismissed.
[34] The respondent is entitled to costs for a standard application on a Band A basis with usual disbursements.

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^[1] Richmond Services Ltd v Bracewell [2013] NZERA 481.

^[2] Richmond Services Ltd v Bracewell [2013] NZERA 519.

^[3] Richmond Services Ltd v Bracewell [2014] NZEmpC 111.

^[4] Honda New Zealand Ltd v New Zealand Boilermakers Union [1999] 1 NZLR 392 (CA) at 397; and Petersons Global Sales Ltd v Peterson [2010] NZCA 56 at [23].

^[5] R v X(CA533/09) [2009] NZCA 531; [2010] 2 NZLR 181.