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Osborne v R

Osborne v R

Case [2014] NSWCCA 17 27 February 2014

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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 135A

Legislation 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, 63

Cases 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 379

Category: 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…

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.

Continue reading Osborne v R

Details

AGLC: Osborne v R [2014] NSWCCA 17
Case: [2014] NSWCCA 17
Decision Date: 27 February 2014

CaseChat Overview and Summary

The case of Osborne v R involved an interlocutory appeal from a decision made by a primary judge, who certified the appropriateness of the appeal. The appellant, Osborne, was contesting a subpoena that had been issued for his personal medical records from Medicare. The central issue before the court was whether the production of these documents was prohibited by the National Health Act 1953 (Cth), specifically section 135A, which restricts the disclosure of information to "any person." The appellant argued that the prohibition did not extend to a court, thereby allowing the subpoena to stand. The court was required to interpret the phrase "any person" in this context and determine whether it included a court.

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