Back v Allity Pty Ltd t/as Calare Aged Care [2022] NSWDC 424

District Court New South Wales

Medium Neutral Citation: Back v Allity Pty Ltd t/as Calare Aged Care [2022] NSWDC 424 Hearing dates: 7 and 19 September 2022 Date of orders: 23 September 2022 Decision date: 23 September 2022 Jurisdiction: Civil Before: Judge Levy SC Decision: 1. Pursuant to UCPR r 5.2 and r 5.3, by 5 October 2022, the respondent is ordered to provide the applicant with discovery of: (a) All clinical notes, medical reports, file notes, letters, and any other information the respondent may have in relation to the deceased Harley Back and any treatment provided; (b) All records pertaining to the late Harley Back; (c) Any report, document, file, and record relating to the investigation undertaken by the Aged Care Quality and Safety Commissioner in relation to the late Harley Back; 2. The respondent is to pay the applicant's costs of and incidental to the summons and requests for discovery as agreed or assessed; 3. If advised to do so, the applicant has leave to file a statement of claim in the present proceedings within 120 days of being provided with the material which is the subject of Order (1) above; 4. Liberty to apply on 7 days' notice if further or other orders are required. Catchwords: PROCEDURE – preliminary discovery of health records held by an aged care facility in respect of a deceased resident in that facility – orders made pursuant to UCPR r 5.2 and r 5.3 after construing relevant provisions of Health Records Information Privacy Act 2002 (NSW) Legislation Cited: Civil Liability Act 2002 (NSW), s 30 Civil Procedure Act 2005 (NSW), s 26, s 56, s 57, s 58(2), s 98 Compensation to Relatives Act 1897 (NSW), s 4 Guardianship Act 1987 (NSW), Pt 5 Health Records Information Privacy Act 2002 (NSW), s 4, s 8, s 26, s 31 s 58, s 62, Sch 1, cl 10(h), cl 11(1)(g) Uniform Civil Procedure Rules 2005 (NSW), r 5.2, r 5.3 Cases Cited: Equiti Capital Limited v Hewson [2015] NSWSC 1388 Gray v Richards (No 2) [2014] HCA 37 House v The King (1936) 55 CLR 499; [1936] HCA 40 Northern Territory v Sangare [2019] HCA 25 Proctor v Kalvis (No 2) [2010] FCA 1194 Texts Cited: Glossary to the Open Disclosure Code published in Australian Open Disclosure Framework in Better Communication – A better way to care; Australian Commission on Safety and Quality in Health Care; Commonwealth of Australia, 2013 Category: Procedural rulings Parties: Timothy Back (Applicant) Allity Pty Ltd t/as Calare Aged Care (Respondent) Representation: Counsel: Mr J de Greenlaw (Applicant) Mr N Riordan (Respondent)