FHP v Baig Medical Services Pty Ltd - [2024] NSWCATAD 280

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FHP v Baig Medical Services Pty Ltd [2024] NSWCATAD 280
Hearing dates: 26 April 2024
Date of orders: 20 September 2024
Decision date: 20 September 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: P French, Senior Member
Decision:
The Tribunal will take no action in the matter insofar as it concerns Baig Medical Services Pty Ltd

Catchwords:
GENERAL JURISDICTION – Health Records and Information Privacy Act 2002 (NSW) – inquiry into a complaint made to the Privacy Commissioner

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW), s 9
Civil and Administrative Tribunal Act 2013; s 29, 30, 64
Health Records and Information Privacy Act 2002 (NSW), s 4, 11, 27, 44, 48, 49, 54, 59
Privacy Act 1988 (Cth), s 6D

Cases Cited:
FHP v Arys Health Pty Ltd [2024] NSWCATAD 27

Texts Cited:
None Cited

Category: Principal judgment
Parties: FHP, Applicant
Baig Medical Services Pty Ltd, Respondent
Representation:
FHP, Self represented
S Zain-Mirzan, authorised representative, Respondent

File Number(s): 2023/00045656
Publication restriction: The disclosure of the applicant’s name is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW)
Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

This decision arises from the finalisation of an inquiry which I have undertaken pursuant to s 49 of the Health Records and Information Privacy Act 2002 (the HRIP Act) into complaints made by FHP (the applicant) to the Privacy Commissioner (the Commissioner) against a private sector person, identified as “Arys Health” within the meaning of Part 6 of that Act which were the subject of a report by the Commissioner under s 47 of that Act (the complaints, the impugned conduct).
I commenced this inquiry on 31 May 2023. In a decision published on 30 January 2024 I determined, for reasons given, that insofar as the inquiry concerned Arys Health Pty Ltd, the Tribunal would take no action on the matter. However, also for reasons given, I determined that the inquiry should continue in relation to another entity, being Baig Medical Services Pty Ltd (Baig), which on the evidence as it then stood, appeared to be a private sector person also involved in the impugned conduct that was the subject of the s 47 report: FHP v Arys Health Pty Ltd [2024] NSWCATAD 27 (the earlier decision).
However, my further inquiry insofar as it concerns Baig has led me to the conclusion that Baig is not a private sector health service provider to which the HRIP Act applies. It is merely a corporate body through which Dr Baig contracts his services as a General Practitioner to private sector health service providers to which the HRIP does apply. At the material time for this inquiry that was Arys Health Pty Ltd. For this reason, I have determined to take no…

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 280
Decision Date: 20 September 2024

CaseChat Overview and Summary

Baig Medical Services Pty Ltd was the subject of an inquiry by the Privacy Commissioner under the Health Records and Information Privacy Act 2002 (NSW). The Commissioner had received a complaint that the company had breached privacy provisions by releasing health information to an unauthorised person. The Privacy and Personal Information Protection Act 1998 (Cth) empowered the Commissioner to inquire into such complaints. The matter came before the Civil and Administrative Tribunal of New South Wales to review the Commissioner's decision to take no action against Baig Medical Services Pty Ltd. The key issues before the tribunal were whether the Commissioner had acted unreasonably and whether there were grounds to set aside the decision.

The tribunal found that the Commissioner had not acted unreasonably in deciding not to take any action. The tribunal was required to determine whether the decision was outside the Commissioner's statutory powers or was unreasonable in the Wednesbury sense. The tribunal found that the Commissioner had carefully considered the evidence and had given adequate weight to the relevant privacy principles. The tribunal also found that the Commissioner had not failed to take into account any relevant considerations or had given undue weight to irrelevant considerations. The tribunal concluded that the decision was not unreasonable and that there were no grounds to set aside the decision.

The tribunal found that the Commissioner had not acted unreasonably in deciding not to take any action against Baig Medical Services Pty Ltd. The tribunal noted that the Commissioner had considered the evidence and had given adequate weight to the relevant privacy principles. The tribunal also found that the Commissioner had not failed to take into account any relevant considerations or had given undue weight to irrelevant considerations. The tribunal concluded that the decision was not unreasonable and that there were no grounds to set aside the decision. The tribunal did not order any action to be taken against Baig Medical Services Pty Ltd.

Orders

Orders of the court

The Tribunal will take no action in the matter insofar as it concerns Baig Medical Services Pty Ltd

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	FHP v Baig Medical Services Pty Ltd [2024] NSWCATAD 280
Hearing dates:	26 April 2024
Date of orders:	20 September 2024
Decision date:	20 September 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P French, Senior Member
Decision:	The Tribunal will take no action in the matter insofar as it concerns Baig Medical Services Pty Ltd
Catchwords:	GENERAL JURISDICTION – Health Records and Information Privacy Act 2002 (NSW) – inquiry into a complaint made to the Privacy Commissioner
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW), s 9 Civil and Administrative Tribunal Act 2013; s 29, 30, 64 Health Records and Information Privacy Act 2002 (NSW), s 4, 11, 27, 44, 48, 49, 54, 59 Privacy Act 1988 (Cth), s 6D
Cases Cited:	FHP v Arys Health Pty Ltd [2024] NSWCATAD 27
Texts Cited:	None Cited
Category:	Principal judgment
Parties:	FHP, Applicant Baig Medical Services Pty Ltd, Respondent
Representation:	FHP, Self represented S Zain-Mirzan, authorised representative, Respondent
File Number(s):	2023/00045656
Publication restriction:	The disclosure of the applicant’s name is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.