Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: CNC v NSW Police Force [2017] NSWCATAD 94 Hearing dates: 15 February 2017 Date of orders: 30 March 2017 Decision date: 30 March 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member Decision: 1. The respondent is to provide the applicant with access to the letters of instructions to a psychiatrist and the attached documents containing her health information, which have been filed confidentially in these proceedings, within 30 days of the date of this decision.
2. The proceedings are to be relisted for further directions on 11 April 2017 at 9.30am in respect of the review of the alleged contravention by the respondent of health privacy principle 10.
3. The non-disclosure orders made in these proceedings are varied to the extent necessary to allow the respondent to comply with order 1 above.Catchwords: PRIVACY – Whether provision of health information to an agency’s solicitors is a use or disclosure of information – Finding that it is a use – Whether health information was used for the purpose for which it was collected – Whether possible to infer purpose of collection from documents – No reasonable and definite inference available - Insufficient evidence about purpose of collection – Need to relist matter for purpose of obtaining such evidence
PRIVACY – Access to health information – Whether non-compliance with access principle permitted by law of legal professional privilege – Common law principles of legal professional privilege apply – Whether advice privilege at common law extends to letters of instruction from a solicitor to an expert – Finding that it does not – Non-compliance with access principle not permitted in circumstances of case
ISSUE ESTOPPEL – Whether issue estoppel applies to determination made in interlocutory hearing in privacy proceedings –Whether issue in substantive proceedings is the same as that determined in interlocutory decision –Finding that issue is different because common law principles of legal professional privilege relevantly different from statutory principles governing advice privilege –Issue estoppel does not ariseLegislation Cited: Privacy and Personal Information Protection Act 1998 (NSW)
Health Records and Information Privacy Act 2002 (NSW)
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Evidence Act 1995 (NSW)Cases Cited: AIN v Medical Council of New South Wales [2015] NSWCATAP 241
ALZ v SafeWork NSW (No 2) [2016] NSWCATAD 121
APV and APW v Department of Family and Community Services [2015] NSWCATAD 140
Bevege v Commissioner of Police (NSW) [2014] NSWCATAD 22
CNC v NSW Police Force [2017] NSWCATAD 43
Community Services [2015] NSWCATAD 140
Department of Education and Communities v VK [2011] NSWADTAP 61
Director General, Department of Education and Training v MT [2005] NSWADTAP 77
Melrose Cranes and Rigging Pty Ltd v Manitowoc Crane Group Australia Pty Ltd [2012] NSWSC 904
Meteyard v Love (2005) 65 NSWLR 36
Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332
NZ v Department of Housing (NSW) [2005] NSWADT 58
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- AGLC
- CNC v NSW Police Force [2017] NSWCATAD 94
- Case
- [2017] NSWCATAD 94
- Decision Date
CaseChat Overview and Summary
The court found that the provision of health information to the solicitors was indeed a use of that information, not merely a disclosure. It was also determined that there was no reasonable and definite inference that could be made regarding the purpose for which the health information was collected. Consequently, the matter needed to be relisted to obtain sufficient evidence about the purpose of the collection. Regarding legal professional privilege, the court found that common law principles applied rather than statutory principles, and therefore, advice privilege did not extend to letters of instruction from a solicitor to an expert. The court ruled that issue estoppel did not apply because the issues in the substantive proceedings were different from those determined in the interlocutory decision.
The court ordered that the respondent must provide the applicant with access to specific health information within 30 days. The proceedings were also relisted to review the alleged contravention of a health privacy principle. Furthermore, the non-disclosure orders were varied to accommodate the respondent's compliance with the access order.
Orders
Orders of the court
1. The respondent is to provide the applicant with access to the letters of instructions to a psychiatrist and the attached documents containing her health information, which have been filed confidentially in these proceedings, within 30 days of the date of this decision.
2. The proceedings are to be relisted for further directions on 11 April 2017 at 9.30am in respect of the review of the alleged contravention by the respondent of health privacy principle 10.
3. The non-disclosure orders made in these proceedings are varied to the extent necessary to allow the respondent to comply with order 1 above.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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