Court of Criminal Appeal
New South Wales
Case Title: Osborne v R Medium Neutral Citation: [2014] NSWCCA 17 Hearing Date(s): 6 February 2014 Decision Date: 27 February 2014 Before: Basten JA at [1];
Hidden J at [36];
RS Hulme AJ at [37]Decision: (1) Allow the appeal from the judgment of Lerve DCJ delivered on 21 August 2013 on the notice of motion filed on 18 April 2013.
(2) Set aside the order made in the District Court setting aside the subpoena issued on behalf of the applicant to the Proper Officer, Medicare Australia.
(3) In lieu thereof, order that the motion filed on 18 April 2013 be dismissed.
Catchwords: APPEAL - criminal - interlocutory appeal - certification by primary judge of appropriateness of appeal - Criminal Appeal Act 1912 (NSW), s 5F
PRACTICE AND PROCEDURE - interlocutory appeal - setting aside subpoena to Medicare for personal records - whether production of documents prohibited -- prohibition on disclosure of information to "any person" considered - legislative history - National Health Act 1953 (Cth), s 135A
WORDS AND PHRASES - "any person" - "court" - whether "any person" includes a court - National Health Act 1953 (Cth), s 135ALegislation Cited: Criminal Appeal Act 1912 (NSW), s 5F
Health Legislation Amendment Act (No 2) 1983 (Cth)
Income Tax and Social Services Contribution Act 1936 (Cth), s 16
National Health Act 1953 (Cth), ss 82ZF, 135A
National Health Act 1969 (Cth), s 82ZF
Telecommunications (Interception) Act 1979 (Cth), ss 7, 63Cases Cited: Allina Pty Ltd v Commissioner of Taxation (1991) 28 FCR 203
Attorney General (NSW) v Lipton [2012] NSWCCA 156
Canadian Pacific Tobacco Co Ltd v Stapleton [1952] HCA 32; 86 CLR 1
Commissioner of Taxation v Nestle Australia Ltd (1985) 12 FCR 257
Grain Elevators Board (Vic) v Shire of Dunmunkle [1946] HCA 13; 73 CLR 70
Hilton v Wells [1985] HCA 16; 157 CLR 57
John Fairfax Publications Pty Ltd v Doe (1994) 37 NSWLR 81
Kizon v Palmer (1997) 72 FCR 409
Miller v Miller [1978] HCA 44; 141 CLR 269
R v Young [1999] NSWCCA 166; 46 NSWLR 681
Taylor v Centennial Newstan Pty Ltd [2009] NSWCA 276; 76 NSWLR 379Category: Interlocutory applications Parties: Aiden Shane Osborne (Applicant)
Medicare Australia (Respondent)Representation - Counsel: Counsel:
Mr T Quilter (Applicant)
Ms A M Mitchelmore (Medicare Australia)- Solicitors: Solicitors:
Aboriginal Legal Service (NSW/ACT) Ltd (Applicant)
Australian Government Solicitor (Respondent)File Number(s): CCA 2012/74646 Decision Under Appeal - Court / Tribunal: District Court - Before: Lerve DCJ - Date of Decision: 21 August 2013 - Court File Number(s): DC 2012/74646
JUDGMENT
BASTEN JA: The applicant, Aiden Shane Osborne, is due to stand trial on a charge of break and enter a dwelling house and stealing a wallet containing various cards and money, including a Medicare card, from premises in Dubbo. The offences were alleged to have taken place on 23 January 2012. On 13 February 2013, the solicitor for the…
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- AGLC
- Osborne v R [2014] NSWCCA 17
- Case
- [2014] NSWCCA 17
- Decision Date
CaseChat Overview and Summary
The court delved into the legislative history and the language of section 135A, examining the intent behind the prohibition on disclosure. It considered whether the prohibition was meant to be absolute or if there were exceptions that would allow courts to access such information in specific circumstances. The court found that the language of the act and its purpose to protect personal health information did not explicitly exclude courts from the definition of "any person." Therefore, the court held that the prohibition applied to all entities, including itself, unless there were specific provisions allowing access. As such, the subpoena for the medical records was set aside.
The court concluded that the National Health Act 1953 (Cth) did not provide an exception for courts when it came to the disclosure of personal health information. The language of section 135A was clear and unambiguous in its prohibition, which encompassed all persons, including courts, without specific legislative exceptions. The appeal was allowed, and the subpoena was quashed. The court's decision emphasised the importance of legislative intent and the need for explicit exceptions when it comes to accessing sensitive personal information.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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