Insurance and Care NSW v FMM [2024] NSWCATAP 43

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Insurance and Care NSW v FMM [2024] NSWCATAP 43 Hearing dates: 6 October 2023 Date of orders: 25 March 2024 Decision date: 25 March 2024 Jurisdiction: Appeal Panel Before: Hennessy ADCJ, Deputy President J Lucy, Senior Member Decision: 1. The appeal is allowed. 2. Orders 2, 3 and 4 of the Tribunal are set aside. In substitution for those orders, the following order is made: The correct respondent is Insurance and Care NSW. 3. Insurance and Care NSW is substituted for Nominal Insurer as the proper name of the respondent in FMM v Nominal Insurer [2023] NSWCATAD 114. 4. Order 3 takes effect from the commencement of proceedings in FMM v Nominal Insurer [2023] NSWCATAD 114. 5. Orders 5 and 6 of the Tribunal are set aside. In substitution for those orders, the following order is made: The internal review findings that the agency contravened information protection principle 11 and health privacy principle 11 are set aside and in substitution for those findings it is determined that the conduct of the agency contravened s 12(c) of the Privacy and Personal Information Protection Act 1998 and clause 5(1)(c) of Schedule 1 to the Health Records and Information Privacy Act 2002. 6. Order 7 is varied so as to delete the words "Nominal Insurer" and substitute the words "the respondent". 7. Order 8 is varied so as to delete the words "the Nominal Insurer must ensure that its agent Insurance and Care NSW t/a iCare designs and implements" and substitute the words "the respondent must design and implement". 8. Order 9 is varied so as to delete the words "the Nominal Insurer must ensure that its agent Insurance and Care NSW t/a iCare institutes" and substitute the words "the respondent must institute". Catchwords: ADMINISTRATIVE LAW – privacy – whether Appeal Panel has jurisdiction to hear an appeal from an order that agency has contravened an Information Privacy Principle and a Health Privacy Principle – whether appeal is moot ADMINISTRATIVE LAW – privacy – meaning of "disclose" in section 18(1) of the Privacy and Personal Information Protection Act 1998 (NSW) – meaning of "disclose" in clause 11 to Schedule 1 of the Health Records and Information Privacy Act 2002 (NSW) Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Criminal Records Act 1991 (NSW) Health Records and Information Privacy Act 2002 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Government Information (Public Access) Act 2009 (NSW) Public Interest Disclosures Act 2022 (NSW) Privacy Act 1988 (Cth) State Insurance and Care Governance Act 2015 (NSW) Workers Compensation Act 1987 (NSW) Cases Cited: Austin Australia Pty Ltd (in liq) v A & G Scaffolding and Rigging Service Pty Ltd [2007] NSWSC 1077; (2007) 25 ACLC 1363 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian Press Council Inc v Southey [2022] NSWCATAP 127 Brennan v Comcare (1994) 50 FCR 555 Commissioner of Police, NSW Police Force v Cseszko [2016] NSWCATAP 194 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; (1979) 2 ALD 60 East West Airlines Ltd v Turner (2010) 78 NSWLR 1; [2010] NSWCA 53 Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 Industrial Relations Secretary v Fire Brigade Employees' Union of New South Wales [2020] NSWCA 46 Jardin and Jardim Investments Pty Ltd v Metcash Ltd [2011] NSWCA 409 KP v Narrandera Shire Council (GD) [2011] NSWADTAP 15 Nasr v State of New South Wales [2007] NSWCA 101 PC v University of New South Wales [2005] NSWADTAP 72 People with Disability Australia Incorporated v Minister for Disability Services [2011] NSWCA 253 Pratt Consolidated Holdings Pty Ltd v Commissioner of Taxation [2011] AATA 907 Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139 Shi v Migration Agents Registration Authority (2008) 235 CLR 286 Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191 Category: Principal judgment Parties: Insurance and Care NSW (Appellant) FMM (Respondent)