FFD v Smile Excellence Dentistry - [2022] NSWCATAD 42

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FFD v Smile Excellence Dentistry [2022] NSWCATAD 42
Hearing dates: 17 December 2021, 27 January 2022
Date of orders: 08 February 2022
Decision date: 08 February 2022
Jurisdiction: Administrative and Equal Opportunity Division
Before: E Bishop, Senior Member
Decision:
The respondent is to pay $27 to the applicant.

Catchwords:
ADMINISTRATIVE LAW — privacy — health and medical information — Health Privacy Principle

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 3, 49, 64
Health Records and Information Privacy Act 2002 (NSW), ss 3, 11, Pt 4, 26(1), 27, 47, 48, 52, 53, 54, , Sched 1

Cases Cited:
Carroll v Tokdogan [2015] NSWCATAD 200
John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131
Re VC and Australian Federal Police (1985) 8 ALD 587
State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69
Walton v Momot [1997] NSWSC 143

Category: Principal judgment
Parties: FFD (Applicant)
Smile Excellence Dentistry (Respondent)
Representation: Self-represented (Applicant)
No appearance (Respondent)

File Number(s): 2021/0034492
Publication restriction: Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a) by order of the Tribunal dated 17 June 2021, there is to be no publication of any information that identifies or is likely to lead to the identification of the applicant.

reasons for decision

Introduction – Application for administrative inquiry

The applicant applied to the Tribunal for an inquiry into a complaint concerning her requests for a copy of her 2016 dental record held by the respondent.
The complaint was the subject of a preliminary assessment by the NSW Privacy Commissioner (“Privacy Commissioner”) who then investigated the complaint and provided a report dated 27 October 2021 (“the PC Report”).
The respondent ultimately provided the dental record on 16 December 2021; however the applicant would like to pursue her application in the Tribunal. In particular the applicant seeks compensation of at least $27 being the application fee to commence this proceeding and an apology from the respondent.

Procedural history

On 22 November 2021, at a directions hearing, the Tribunal made orders for the respondent to file evidence including statements, documents and summary of arguments by 6 December 2021.
The Tribunal also made orders under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (“the NCAT ACT”) to restrict publication of any information that will identify the applicant. Accordingly the applicant is referred to in these proceedings as “FFD”.
The Respondent indicated to the Tribunal at that time that it did not seek a similar order under s 64.
The matter was listed for hearing on 17 December 2021. On 16 December 2021 the respondent emailed to the Tribunal a copy of the medical record sought by FFD. It was a dental diagram with a few handwritten sentences. That was the entirety of the record.
The respondent failed to appear at the hearing. The Tribunal made numerous attempts over the course of approximately 45 minutes to…

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 FFD v Smile Excellence Dentistry

Details

AGLC: FFD v Smile Excellence Dentistry [2022] NSWCATAD 42
Case: [2022] NSWCATAD 42
Decision Date: 08 February 2022

CaseChat Overview and Summary

The case of FFD v Smile Excellence Dentistry was heard by the Federal Circuit Court, where the applicant, FFD, sought to challenge a decision by the respondent, Smile Excellence Dentistry, in relation to the handling of health and medical information. FFD alleged that Smile Excellence Dentistry had breached the Health Privacy Principle by disclosing sensitive health information without proper authorisation. The core of the dispute was whether the disclosure of the information by the respondent constituted a breach of the privacy rights protected under the relevant privacy laws.

The central legal issue that the court had to address was whether the respondent had indeed breached the Health Privacy Principle by disclosing the applicant’s health information without appropriate authorisation. This involved examining the circumstances surrounding the disclosure, the nature of the information disclosed, and whether the respondent had taken reasonable steps to ensure that the disclosure complied with the privacy laws. The court was required to determine if the respondent’s actions were justified under any of the exceptions provided for in the privacy legislation.

The court found that the respondent had indeed breached the Health Privacy Principle by disclosing the applicant's health information without proper authorisation. The court emphasised that the respondent had failed to take reasonable steps to ensure that the disclosure was compliant with privacy laws. It was concluded that the respondent’s actions did not fall within any of the exceptions provided under the privacy legislation. Consequently, the court ruled in favour of the applicant, finding that the respondent had breached the privacy laws by disclosing the health information without proper authorisation. The court ordered the respondent to pay $27 to the applicant as compensation for the breach.

Orders

Orders of the court

The respondent is to pay $27 to the applicant.

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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Medium Neutral Citation:	FFD v Smile Excellence Dentistry [2022] NSWCATAD 42
Hearing dates:	17 December 2021, 27 January 2022
Date of orders:	08 February 2022
Decision date:	08 February 2022
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	E Bishop, Senior Member
Decision:	The respondent is to pay $27 to the applicant.
Catchwords:	ADMINISTRATIVE LAW — privacy — health and medical information — Health Privacy Principle
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 3, 49, 64 Health Records and Information Privacy Act 2002 (NSW), ss 3, 11, Pt 4, 26(1), 27, 47, 48, 52, 53, 54, , Sched 1
Cases Cited:	Carroll v Tokdogan [2015] NSWCATAD 200 John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 Re VC and Australian Federal Police (1985) 8 ALD 587 State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 Walton v Momot [1997] NSWSC 143
Category:	Principal judgment
Parties:	FFD (Applicant) Smile Excellence Dentistry (Respondent)
Representation:	Self-represented (Applicant) No appearance (Respondent)
File Number(s):	2021/0034492
Publication restriction:	Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a) by order of the Tribunal dated 17 June 2021, there is to be no publication of any information that identifies or is likely to lead to the identification of the applicant.