FHP v Arys Health Pty Ltd - [2024] NSWCATAD 27

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FHP v Arys Health Pty Ltd [2024] NSWCATAD 27
Hearing dates: 31 May 2023
Date of orders: 30 January 2024
Decision date: 30 January 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: P French, Senior Member
Decision:
1.   The respondent’s name is amended to Arys Health Pty Ltd.
2.   Baig Medical Services Pty Ltd trading as Arys Health Medical Centre is joined as a respondent.
3.   Ms J Scott of V Plus Corporation Pty Ltd is granted leave to appear on behalf of Arys Health Pty Ltd.
4.   The applicant’s request for an adjournment of the inquiry is refused.
5.   The applicant’s request that I disqualify myself from conducting the inquiry on the ground of apprehended bias is refused.
6.   The Tribunal will take no action on the matter insofar as it concerns Arys Health Pty Ltd.
7.   Insofar as it concerns Baig Medical Services Pty Ltd trading as Arys Health Medical Centre the application is to be listed for a    Case Conference to determine whether this inquiry should continue with respect to that organisation and if so, for directions.
8.   The applicant is to file with the Divisional Registrar an ASIC Company Extract for Baig Medical Services Pty Ltd trading as Arys Health Medical Centre which sets out its Registered Address within 7 days of the date of these orders.
9.   The applicant must serve a copy of his application and this decision on Baig Medical Services Pty Ltd trading as Arys Health    Medical Centre at its Registered Address within 7 days of the date of these orders.

Catchwords:
ADMINISTRATIVE REVIEW – Health Records and Information Privacy Act 2002 (NSW) – inquiry into a complaint made to the Privacy Commissioner
PRACTICE AND PROCEDURE – whether the Tribunal ought to recuse itself on the ground of apprehended bias – proper respondent – joinder of a respondent party – whether proceedings should be adjourned – whether leave should be refused for the respondent to be represented – whether a person should be compelled to appear as a witness

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW), s 58
Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 38, 46, 44, 48, 51, 64
Government Information (Public Access) Act 2009 (NSW)
Health Records and Information Privacy Act 2002 (NSW), ss 11, 25, 26, 27, 28, 29, 45, 47, 48, 49, 52, 54, 59

Cases Cited:
AHB v NSW Trustee and Guardian [2014] NSWCA 40
AON Risk Services Australia Limited v Australian National University [2009] HCA 27
Gaudie v Local Court of New South Wales & Anor [2013] NSWSC 1425
Ghazal v Masterton Homes Pty Ltd [2018] NSWCATAP 227

Texts Cited:
Nil

Category: Principal judgment
Parties: FHP (Applicant)
Arys Health Pty Ltd t/a Arys Health (First Respondent)
Baig Medical Services Pty Ltd t/a Arys Health Medical Centre (Second Respondent)
Representation: FHP (Self-Represented)
J Scott (Records Management Team, V Plus Corporation Pty Ltd ) (First Respondent)
Second Respondent (No Appearance)

File Number(s): 2023/00045656
Publication…

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.

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Details

Case: [2024] NSWCATAD 27
Decision Date: 30 January 2024

CaseChat Overview and Summary

The case of FHP v Arys Health Pty Ltd involves a dispute under the Health Records and Information Privacy Act 2002 (NSW) where the Privacy Commissioner received a complaint against Arys Health Pty Ltd. The Privacy Commissioner referred the complaint to the Civil and Administrative Tribunal (CAT) for an inquiry. The legal issues before the Tribunal included whether it should recuse itself due to apprehended bias, the proper respondent in the proceedings, the joinder of Baig Medical Services Pty Ltd trading as Arys Health Medical Centre as a respondent, the adjournment of the proceedings, and the representation and appearance of witnesses.

The Tribunal addressed the issue of whether it should recuse itself on the ground of apprehended bias, which was firmly denied. The proper respondent in the case was also examined, leading to the amendment of the respondent's name to Arys Health Pty Ltd and the joinder of Baig Medical Services Pty Ltd trading as Arys Health Medical Centre as an additional respondent. The Tribunal refused the applicant's request for an adjournment, while granting leave for Ms J Scott of V Plus Corporation Pty Ltd to appear on behalf of Arys Health Pty Ltd. Additionally, the Tribunal took no action concerning Arys Health Pty Ltd but scheduled a Case Conference for Baig Medical Services Pty Ltd trading as Arys Health Medical Centre to determine the continuation of the inquiry.

The final orders of the Tribunal included the amendment of the respondent's name, the joinder of Baig Medical Services Pty Ltd trading as Arys Health Medical Centre as a respondent, the granting of leave for Ms Scott to represent Arys Health Pty Ltd, the refusal of the adjournment request, the refusal of the request to disqualify the Tribunal member, and the scheduling of a Case Conference for Baig Medical Services Pty Ltd trading as Arys Health Medical Centre. Additionally, the applicant was required to provide an ASIC Company Extract for Baig Medical Services Pty Ltd trading as Arys Health Medical Centre and serve a copy of the application and the decision on the newly joined respondent within specified timeframes.

Orders

Orders of the court

1. The respondent’s name is amended to Arys Health Pty Ltd.

2. Baig Medical Services Pty Ltd trading as Arys Health Medical Centre is joined as a respondent.

3. Ms J Scott of V Plus Corporation Pty Ltd is granted leave to appear on behalf of Arys Health Pty Ltd.

4. The applicant’s request for an adjournment of the inquiry is refused.

5. The applicant’s request that I disqualify myself from conducting the inquiry on the ground of apprehended bias is refused.

6. The Tribunal will take no action on the matter insofar as it concerns Arys Health Pty Ltd.

7. Insofar as it concerns Baig Medical Services Pty Ltd trading as Arys Health Medical Centre the application is to be listed for a Case Conference to determine whether this inquiry should continue with respect to that organisation and if so, for directions.

8. The applicant is to file with the Divisional Registrar an ASIC Company Extract for Baig Medical Services Pty Ltd trading as Arys Health Medical Centre which sets out its Registered Address within 7 days of the date of these orders.

9. The applicant must serve a copy of his application and this decision on Baig Medical Services Pty Ltd trading as Arys Health Medical Centre at its Registered Address within 7 days of the date of these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Order or other decision of Tribunal After holding an inquiry, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders – The Tribunal may make an order under subsection (1)(a) only if – In making an order for damages under this section concerning a complaint lodged on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the persons or persons. How this Act applies to organisations This Act applies to every organisation that is a health service provider or that collects, holds or uses health information. An organisation to whom or to which this Act applies is required to comply with the Health Privacy Principles … An organisation must not do a thing, or engage in any practice, that contravenes a Health Privacy Principle … Part 4 of the HRIP Act contains provisions for private sector agencies. Division 2 concerns the Retention of health information. In this respect s 25 provides: Retention of health information: health service providers A private sector person who is a health service provider must retain health information relating to an individual as follows – A health service provider who deletes or disposes of health information must keep a record of the name of the individual to whom the health information related, the period covered by it and the date on which it was deleted or disposed of. A health service provider who transfers health information to another organisation and does not continue to hold a record of that information must keep a record of the name and address of the organisation to whom or to which it was transferred. A record referred to in subsection (2) or (3) may be kept in electronic form, but only if it is capable of being printed on paper. Nothing in this section authorises a health service provider to delete, dispose of or transfer health information in contravention of an Act (including an Act of the Commonwealth) or any other law. Division 3 of Part 4 concerns Access to health information. In this respect, ss 26 to 29 provide, relevantly: Making a request for access An individual may request a private sector person to provide the individual with access to health information relating to the individual held by the private sector person. A request must – Response to request for access A private sector person must respond to a request for access within 45 days after receiving the request, A private sector person responds to a request for access by – A private sector person who refuses to give an individual access to information must give the individual a written reason for refusal of access, being a reason for refusal provided for by this Act. A private sector person is taken to have refused access to health information if the private sector person fails to respond to the request for access as required by this section. Form of access Access to health information relating to an individual is to be provided to the individual –

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	FHP v Arys Health Pty Ltd [2024] NSWCATAD 27
Hearing dates:	31 May 2023
Date of orders:	30 January 2024
Decision date:	30 January 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P French, Senior Member
Decision:	1. The respondent’s name is amended to Arys Health Pty Ltd. 2. Baig Medical Services Pty Ltd trading as Arys Health Medical Centre is joined as a respondent. 3. Ms J Scott of V Plus Corporation Pty Ltd is granted leave to appear on behalf of Arys Health Pty Ltd. 4. The applicant’s request for an adjournment of the inquiry is refused. 5. The applicant’s request that I disqualify myself from conducting the inquiry on the ground of apprehended bias is refused. 6. The Tribunal will take no action on the matter insofar as it concerns Arys Health Pty Ltd. 7. Insofar as it concerns Baig Medical Services Pty Ltd trading as Arys Health Medical Centre the application is to be listed for a Case Conference to determine whether this inquiry should continue with respect to that organisation and if so, for directions. 8. The applicant is to file with the Divisional Registrar an ASIC Company Extract for Baig Medical Services Pty Ltd trading as Arys Health Medical Centre which sets out its Registered Address within 7 days of the date of these orders. 9. The applicant must serve a copy of his application and this decision on Baig Medical Services Pty Ltd trading as Arys Health Medical Centre at its Registered Address within 7 days of the date of these orders.
Catchwords:	ADMINISTRATIVE REVIEW – Health Records and Information Privacy Act 2002 (NSW) – inquiry into a complaint made to the Privacy Commissioner PRACTICE AND PROCEDURE – whether the Tribunal ought to recuse itself on the ground of apprehended bias – proper respondent – joinder of a respondent party – whether proceedings should be adjourned – whether leave should be refused for the respondent to be represented – whether a person should be compelled to appear as a witness
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW), s 58 Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 38, 46, 44, 48, 51, 64 Government Information (Public Access) Act 2009 (NSW) Health Records and Information Privacy Act 2002 (NSW), ss 11, 25, 26, 27, 28, 29, 45, 47, 48, 49, 52, 54, 59
Cases Cited:	AHB v NSW Trustee and Guardian [2014] NSWCA 40 AON Risk Services Australia Limited v Australian National University [2009] HCA 27 Gaudie v Local Court of New South Wales & Anor [2013] NSWSC 1425 Ghazal v Masterton Homes Pty Ltd [2018] NSWCATAP 227
Texts Cited:	Nil
Category:	Principal judgment
Parties:	FHP (Applicant) Arys Health Pty Ltd t/a Arys Health (First Respondent) Baig Medical Services Pty Ltd t/a Arys Health Medical Centre (Second Respondent)
Representation:	FHP (Self-Represented) J Scott (Records Management Team, V Plus Corporation Pty Ltd ) (First Respondent) Second Respondent (No Appearance)
File Number(s):	2023/00045656
Publication…