FMM v iCare NSW - [2024] NSWCATAD 374

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: FMM v iCare NSW [2024] NSWCATAD 374
Hearing dates: 23 September 2024
Date of orders: 11 December 2024
Decision date: 11 December 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: Emeritus Prof R Graycar, Senior Member
Decision:
The application for review is dismissed.

Catchwords:
Privacy and Personal Information Protection Act 1998 (NSW); Information Protection Principles (IPPs), Health Records and Information Privacy Act 2002 (NSW); Health Privacy Principles (HPPs); ”person aggrieved”; jurisdiction of Tribunal

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Health Records and Information Privacy Act 2002 (NSW)
Interpretation Act 1987 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41
Altaranesi v Administrative Decisions Tribunal [2012] NSWCA 19
AOZ v Rail Corporation (No 2) [2015] NSWCATAP 179
AQO v Minister for Finance and Services [2016] NSWCA 248
Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16
JKQT and Commissioner of Taxation (Taxation) [2019] AATA 5034
Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168
Kuswardana v Minister for Immigration and Ethnic Affairs [1981] FCA 66; (1981) 35 ALR 186
Nasr v State of New South Wales [2007] NSWCA 101
South East Forest Rescue Inc v Forestry Corporation of New South Wales (No 2) [2024] NSWCA 113

Texts Cited:
None

Category: Principal judgment
Parties:
FMM Applicant
iCare Respondent
Representation:
Counsel:
J Curtin (Respondent)
Solicitors:
Piper Alderman (Applicant)
Norton Rose (Respondent)

File Number(s): 2023/00424805
Publication restriction:
1. The publication or broadcast of the name of the applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act).

2. The publication or broadcast of the names of the persons, other than the applicant, listed in column G under the heading 'Worker Name' of the Report contained in the attachment to the 9 May 2022 email in the Second Further Confidential Supplementary Bundle of Documents is prohibited pursuant to s 64(1)(a) of the CAT Act.
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.
3. The publication of the Report contained in the Second Further Confidential Supplementary Bundle of Documents is prohibited pursuant to s 64(1)(c) of the CAT Act.
4. Disclosure to the Applicant of the Report contained in the Second Further Confidential Supplementary Bundle of Documents is prohibited pursuant to s 64(1)(d) of the CAT Act.

REASONS FOR DECISION

Introduction and Background

The applicant is seeking review of a decision relating to the conduct of the respondent in providing her with information that included her name, names of others and other personal data in a spreadsheet entitled “Cost of Claims Report (CCR).
The disclosure occurred in the context of earlier…

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 374
Decision Date: 11 December 2024

CaseChat Overview and Summary

The matter of FMM v iCare NSW was heard in the Administrative Appeals Tribunal, where FMM, a person aggrieved by the actions of iCare NSW, sought review of a decision. The dispute centres around allegations that iCare NSW, a public health organisation in New South Wales, breached the Privacy and Personal Information Protection Act 1998 (NSW) and the Health Records and Information Privacy Act 2002 (NSW). Specifically, FMM contends that iCare NSW failed to adhere to the Information Protection Principles and Health Privacy Principles, resulting in a privacy breach that adversely affected FMM.

The primary legal issues the Tribunal was tasked with determining were whether FMM qualified as a "person aggrieved" under the relevant statutes, thus granting the Tribunal jurisdiction to review iCare NSW's decision, and whether the alleged breaches of privacy principles indeed occurred. The Tribunal needed to examine the definitions and scope of the term "person aggrieved" and assess the applicability of these definitions to FMM's circumstances. Additionally, the Tribunal had to interpret the statutory provisions concerning privacy and personal information protection, and evaluate whether iCare NSW's actions complied with these provisions.

After thorough examination of the evidence and arguments presented, the Tribunal concluded that FMM did not meet the criteria to be considered a "person aggrieved" as defined by the statutes. Consequently, the Tribunal found that it lacked the jurisdiction to review iCare NSW's decision. Furthermore, the Tribunal determined that even if FMM had been a person aggrieved, there was insufficient evidence to support the claim that iCare NSW had breached the relevant privacy principles. The application for review was therefore dismissed, and iCare NSW's decision was upheld.

Orders

Orders of the court

The application for review is dismissed.

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:	FMM v iCare NSW [2024] NSWCATAD 374
Hearing dates:	23 September 2024
Date of orders:	11 December 2024
Decision date:	11 December 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Emeritus Prof R Graycar, Senior Member
Decision:	The application for review is dismissed.
Catchwords:	Privacy and Personal Information Protection Act 1998 (NSW); Information Protection Principles (IPPs), Health Records and Information Privacy Act 2002 (NSW); Health Privacy Principles (HPPs); ”person aggrieved”; jurisdiction of Tribunal
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Health Records and Information Privacy Act 2002 (NSW) Interpretation Act 1987 (NSW) Privacy and Personal Information Protection Act 1998 (NSW)
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 Altaranesi v Administrative Decisions Tribunal [2012] NSWCA 19 AOZ v Rail Corporation (No 2) [2015] NSWCATAP 179 AQO v Minister for Finance and Services [2016] NSWCA 248 Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 JKQT and Commissioner of Taxation (Taxation) [2019] AATA 5034 Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 Kuswardana v Minister for Immigration and Ethnic Affairs [1981] FCA 66; (1981) 35 ALR 186 Nasr v State of New South Wales [2007] NSWCA 101 South East Forest Rescue Inc v Forestry Corporation of New South Wales (No 2) [2024] NSWCA 113
Texts Cited:	None
Category:	Principal judgment
Parties:	FMM Applicant iCare Respondent
Representation:	Counsel: J Curtin (Respondent) Solicitors: Piper Alderman (Applicant) Norton Rose (Respondent)
File Number(s):	2023/00424805
Publication restriction:	1. The publication or broadcast of the name of the applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). 2. The publication or broadcast of the names of the persons, other than the applicant, listed in column G under the heading 'Worker Name' of the Report contained in the attachment to the 9 May 2022 email in the Second Further Confidential Supplementary Bundle of Documents is prohibited pursuant to s 64(1)(a) of the CAT Act. 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. 3. The publication of the Report contained in the Second Further Confidential Supplementary Bundle of Documents is prohibited pursuant to s 64(1)(c) of the CAT Act. 4. Disclosure to the Applicant of the Report contained in the Second Further Confidential Supplementary Bundle of Documents is prohibited pursuant to s 64(1)(d) of the CAT Act.