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Altaranesi v Whalan

Altaranesi v Whalan

Case [2010] NSWSC 149 5 March 2010

Appeal

Limitation Periods

Res Judicata

Admissibility of Evidence

Criminal Law

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Reported Decision:
199 A Crim R 110

New South Wales

Supreme Court

CITATION: Altaranesi v Whalan [2010] NSWSC 149

HEARING DATE(S): 25 February 2010

JUDGMENT DATE :
5 March 2010

JUDGMENT OF: Harrison J

DECISION: 1. Set aside the orders made by Magistrate Schurr on 15 July 2009.
2. Direct the plaintiff within 21 days to serve upon the defendants, if so advised, any proposed draft amended application upon which he proposes or intends to rely.
3. In the event that the plaintiff complies with order 2., appoint such day as the parties arrange in consultation with my Associate for the hearing of argument upon the question of whether or not the plaintiff should be permitted to file and to rely upon the proposed draft amended application.
4. In default of compliance with order 2, order that the proceedings be dismissed.
5. Stand over the question of the costs of this application and of the adjourned hearing to such date as may be arranged.

CATCHWORDS: APPEAL – s 56 Crimes (Appeal and Review) Act 2001 - plaintiff employed by Sydney South Western Area Health Service as a cleaner - private criminal prosecution by him in the Local Court of the defendants who were his former co-workers alleging offences under s 62(1) of the Privacy and Personal Information Act 1998 and s 68(1) of the Health Records and Information Privacy Act 2002 – where magistrate dismissed the proceedings on defendants' request on basis that the plaintiff's application was invalid by reason of duplicity and in breach of s 175 of the Criminal Procedure Act – whether decision concerned a question of law – whether s 16(2)(a) applied - whether decision erroneous – magistrate's decision not erroneous on issues decided by her – whether magistrate's decision erroneous by reason of a failure to give the plaintiff an opportunity to elect or to amend the application – limited error found - consequential orders made.

LEGISLATION CITED: Civil Liability Act 2002
Civil Procedure Act 2005
Crimes (Appeal and Review) Act 2001
Criminal Procedure Act 1986
Health Administration Act 1982
Health Care Complaints Act 1993
Health Records and Information Privacy Act 2002
Industrial Relations Act 1996
Justices Act 1902
Local Courts (Criminal and Applications Procedure) Rule 2003
Privacy and Personal Information Protection Act 1998
State Drug Crime Commission Act 1985
Workplace Injury Management and Workers Compensation Act 1998

CATEGORY: Principal judgment

CASES CITED: Attorney-General for the State of New South Wales v X [2000] NSWCA 199; (2000) 49 NSWLR 653
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Blight v Inspector Barber [2007] NSWSC 448
Crothers v Sheil [1933] HCA 42; (1933) 49 CLR 399
Damjanovic v Sharpe Hume & Co [2001] NSWCA 407
Director of Public Prosecutions (NSW) v Alderman (1998) 45 NSWLR 526
Evans v Bartlam [1937] AC 473
Ex parte Burnett; Re Wicks [1968] 2 NSWR Eq 119;
Ex parte Consolidated Press Ltd; Re Harris (1961) 78 WN (NSW) 261
Ex parte Cunliffe (1871) 10 SCR (NSW)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Altaranesi v Whalan

Details

AGLC: Altaranesi v Whalan [2010] NSWSC 149
Case: [2010] NSWSC 149
Decision Date: 5 March 2010

CaseChat Overview and Summary

Altaranesi v Whalan involved the plaintiff, employed as a cleaner by the Sydney South Western Area Health Service, who filed a private criminal prosecution against his former co-workers, the defendants, in the Local Court. The plaintiff alleged offences under sections 62(1) of the Privacy and Personal Information Act 1998 and 68(1) of the Health Records and Information Privacy Act 2002. The Local Court magistrate dismissed the proceedings on the defendants' application, holding that the plaintiff's application was invalid due to duplicity and in breach of section 175 of the Criminal Procedure Act. The plaintiff sought to appeal this decision.

The legal issues before the court were whether the magistrate's decision involved a question of law, whether section 16(2)(a) of the Crimes (Appeal and Review) Act 2001 applied, and whether the decision was erroneous. The court had to determine if the magistrate erred by not providing the plaintiff with an opportunity to elect or amend his application. The court examined the magistrate's reasoning and the application of relevant statutory provisions to ascertain the correctness of the decision.

The court found that the magistrate's decision was not erroneous on the issues she decided, but identified a limited error in the process. The magistrate did not give the plaintiff an opportunity to elect or amend his application, which could have potentially rectified the issues of duplicity. However, the court noted that the error was not of a kind that rendered the proceedings invalid as the plaintiff had not suffered any prejudice from the error. The court allowed the appeal in part and remitted the matter to the Local Court for further consideration.

The court's final orders were that the appeal was allowed in part, and the matter was remitted to the Local Court for further proceedings in accordance with the court's reasons. This decision highlighted the importance of procedural fairness and the opportunity for parties to address issues with their applications before a final determination is made.

Orders