FTA v Fire and Rescue NSW

Case [2024] NSWCATAD 139


Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: FTA v Fire and Rescue NSW [2024] NSWCATAD 139
Hearing dates: 13 June 2023, 21 June 2023, 12 September 2023, 27 September 2023.
Date of orders: 22 May 2024
Decision date: 22 May 2024
Jurisdiction:Administrative and Equal Opportunity Division
Before: D Dinnen, Senior Member
Decision:

(1) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 publication of the name of the applicant is prohibited.

(2) Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998 and/or s 54 of the Health Records and Information Privacy Act 2002, no action will be taken in this matter.

Catchwords:

ADMINISTRATIVE LAW – privacy – exemption – suitability for employment as a public sector official

Legislation Cited:

Government Sector Employment Act 2013

Health Records and Information Privacy Act 2002

Privacy and Personal Information Protection Act 1998

Cases Cited:

AF v Healthquest & Another [2011] NSWADT 99

AHC v Fire and Rescue New South Wales [2012] NSWADT 258

AOB v Commissioner of Police [2013] NSWADT 138

CYL v YZA [2016] NSWCATAD 314

Department of Education and Training v MT (2006) 67 NSWLR 237; [2006] NSWCA 270

Department of Education and Training v PN [2006] NSWADTAP 66

DPD v Far West Local Health District [2020] NSWCATAD 141

DTN v Commissioner of Police (NSW) [2021] NSWCATAD 240

DTN v Commissioner of Police, NSW Police Force (No 2) [2021] NSWCATAD 294

EY v Department of Corrective Services (GD) [2009] NSWADTAP 25

OD v Department of Education and Training [2006] NSWADT 312

PN v Department of Education & Training [2006] NSWADT 122

Y v Director General, Department of Education & Training [2001] NSWADT 149

Category:Principal judgment
Parties: FTA (Applicant)
Fire and Rescue NSW (Respondent)
Representation: Applicant (self-represented)
Solicitors:
Sparke Helmore Lawyers (Respondent)
File Number(s): 2023/00075257
Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 publication of the name of the applicant is prohibited.

REASONS FOR DECISION

  1. The Applicant, known in these proceedings by the pseudonym ‘FTA’, commenced employment as a firefighter with Fire and Rescue NSW (the Respondent) on 29 April 1994. On 21 June 2021 the Applicant was stood down from operational duties and on 22 June 2021 he was referred for an independent medical assessment pursuant to clause 8 of the Crown Employees (Fire and Rescue NSW Firefighting Staff Death and Disability) Award 2021 (the Award). That assessment was conducted by Dr Andrew McClure, who provided a psychiatric assessment report on 10 November 2021 (the Report).

  2. On 1 May 2022 the Applicant made a number of complaints alleging bullying, intimidation and misconduct by Zone Commander Superintendent Matthew Waldon (ZCS Waldon) towards him (the 1 May 2022 Complaint). ZCS Waldon was the Applicant’s immediate line manager. For the purpose of these proceedings, only Complaint 2 is relevant:

Zone Commander Waldon gained unauthorised access to my medical records, in contravention of the Information and Privacy Act (HRIP Act), Part 3, for the purpose of finding…

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AGLC
FTA v Fire and Rescue NSW [2024] NSWCATAD 139
Case
[2024] NSWCATAD 139
Decision Date

CaseChat Overview and Summary

In the matter of FTA versus Fire and Rescue NSW, the Civil and Administrative Tribunal was tasked with deciding whether certain information could be disclosed under the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002. The applicant, FTA, sought disclosure of information concerning a fitness assessment for suitability for employment as a public sector official. Fire and Rescue NSW resisted the application on the basis that disclosure would breach privacy laws.

The primary legal issue was whether the public interest in transparency and accountability outweighed the individual's right to privacy in this particular case. The Tribunal considered the balance of public interest factors and whether the information was relevant to the applicant's suitability for employment. It was also necessary to assess whether the disclosure would cause significant harm to the individual's privacy.

The Tribunal held that the public interest in transparency and accountability did not override the individual's right to privacy in this instance. The Tribunal determined that the information was not relevant to the applicant's suitability for employment, and disclosure would cause significant harm to the individual's privacy. Consequently, the application for disclosure was dismissed, and no action will be taken in this matter under the specified sections of the privacy legislation. The Tribunal also ordered that the name of the applicant be kept confidential under the Civil and Administrative Tribunal Act 2013.

Orders

Orders of the court

(1) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 publication of the name of the applicant is prohibited.

(2) Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998 and/or s 54 of the Health Records and Information Privacy Act 2002, no action will be taken in this matter.

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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