DTN v Commissioner of Police [2022] NSWCATAD 134

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DTN v Commissioner of Police [2022] NSWCATAD 134 Hearing dates: 19 January 2022 Date of orders: 27 April 2022 Decision date: 27 April 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: A Christie, Senior Member Decision: (1) A further hearing in relation to the Post-Hearing Submissions is dispensed with under s 50 of the CAT Act. (2) The decision of the Respondent is set aside. (3) Within 21 days of the of the Applicant providing their bank account (or other acceptable payment method) details to the Respondent, the Respondent is to pay the Applicant $7,500 as compensation for the harm suffered by the Applicant as a result of the Conduct of Concern. (4) Within 21 days of the date of these Reasons for Decision the Respondent is to provide an unreserved formal written apology to the Applicant signed by the Commander, Head of Workforce Safety of the NSWPF addressing and apologising for the Respondent's breaches of HPPs 3 and 9 in respect of the health information of the Applicant, as identified in these Reasons for Decision, and for all harm, distress and embarrassment caused to the Applicant resulting from such. (5) Within 21 days of the date of these Reasons for Decision the Respondent is to: (a) Redact or remove the Relevant Wording from all copies (digital and hard copies) of the Internal Report held by the Respondent and the NSWPF or under their control. (b) Annotate prominently every copy (digital and hard copies) of all medical and other reports and documentation held by the Respondent and the NSWPF or under their control which were included in the Relevant s 58 Bundle Documents that do not specifically relate to the injury which was the basis of the Applicant's medical discharge from the NSWPF in 2012 with words to the effect of 'this report/document does not relate to the injury which resulted in [applicant's name] medical discharge from the NSWPF in 2012'. (6) Within 21 days after the date of the apology provided pursuant to Order (3) above the Respondent is to provide a copy of the apology to all persons within the Respondent and the NSWPF (but no one outside of the NSWPF) who were involved in the preparation, processing, reviewing, consideration, approval and/or who were provided with a copy of the Internal Report noting the s 64 CAT Act publication restrictions, that the apology is confidential and that it is not to be provided by them to any other person (whether within or external to the NSWPF). (7) Within 90 days of the date of these Reasons for Decisions the Respondent is to (i) perform HPP 3 including by implementing such training, awareness raising and safeguards to ensure that health information about an individual is only collected from that individual, unless it is unreasonable or impracticable to do so and (ii) implement such administrative measures necessary to ensure that the Applicant's health information is only collected from the Applicant, unless it is unreasonable or impracticable to do so. (8) Within 90 days of the date of these Reasons for Decisions the Respondent is to (i) perform HPP 9 including by specifying in a procedures document and implementing in the NSWPF those steps as are reasonable in the circumstances, having regard to the purpose for which the relevant health information is to be used, which are to be taken by the Respondent and the NSWPF to ensure that all health information is relevant, accurate, up to date, complete and not misleading before it is used and (ii) implement such administrative measures necessary to ensure the Respondent will take such steps as are reasonable in the circumstances, having regard to the purpose for which the relevant health information is to be used, to ensure that any of the Applicant's health information to be used is relevant, accurate, up to date, complete and not misleading before it is used. Catchwords: ADMINISTRATIVE REVIEW – Health Records Information Privacy Act – application of HPP 3 and whether unreasonable or impracticable in the circumstances to collect health information from the applicant - assessing the application of HPP 9 in the circumstances – was it reasonable in the circumstances that no steps were taken under HPP 9 to check the relevance or accuracy of the relevant health information or if it was misleading- relief available where HPPs 3 and 9 breached - assessing causation and amount of damages for psychological and physical harm under ss 55(2)(a) and (4) Privacy and Personal Information Protection Act Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Health Records Information Privacy Act 2002 Privacy Act 1988 (Cth) Privacy and Personal Information Protection Act 1998 Cases Cited: ALZ v SafeWork [2017] NSWCATAD 52 ALZ v Workcover NSW [2014] NSWCATAD 49 ALZ v WorkCover NSW [2015] NSWCATAP 138 AOZ v Rail Corporation NSW (No 2) [2015] NSWCATAP 179 APV v Department of Finance and Services [2016] NSWCATAD 168 CEU v University of Technology Sydney [2018] NSWCATAD 13 CJU v SafeWork NSW [2018] NSWCATAD 300 CPJ v The University of Newcastle [2017] NSWCATAD 350 DED v Randwick City Council [2017] NSWCATAD 327 Department of Education and Training v GA (No 3) [2004] NSWADTAP 50 Department of Education and Training v ZR (No 2) [2009] NSWADTAP 44 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 DRX v City of Canada Bay Council [2020] NSWCATAD 26 DTN v Commissioner of Police (No 3) [2020] NSWCATAP 73 EEH v Insurance and Care NSW (iCare) [2021] NSWCATAD 72 EQ v Office of the Australian Information Commissioner (Freedom of Information) [2016] AATA 785 GR v Department of Housing [2003] NSWADT 268 Insurance and Care NSW v EEH [2021] NSWCATAP 350 JD v Department of Health (GD) [2005] NSWADTAP 44 JD v Director General, NSW Department of Health (No 2) [2004] NSWADT 227 JD v NSW Medical Board (No. 2) [2006] NSWADT 345 KT v Sydney Local Health Network [2011] NSWADT 171 March v Stramare (E and MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 NK v Northern Sydney Central Coast Area Health Service (No. 2) [2011] NSWADT 81 NZ v NSW Department of Housing [2006] NSWADT 173 PN v Department of Education and Training [2010] NSWADTAP 59 RD v Department of Education and Training [2005] NSWADT 195 SW v Forests NSW [2006] NSWADT 74 WT v Auburn Council [2007] NSWADT 253 Category: Principal judgment Parties: DTN (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Applicant (Self‑represented) Sparke Helmore Lawyers (Respondent) File Number(s): 2021/00178005 Publication restriction: The publication or broadcast of the name of the Applicant is prohibited under s 64(1)(a) Civil and Administrative Tribunal Act 2013.