Secretary, NSW Treasury v C (GD) [2004] NSWADTAP 6

Appeal Panel - Internal

CITATION: Secretary, NSW Treasury v C (GD) [2004] NSWADTAP 6 revised - 20/02/2004 APPELLANT PARTIES: Secretary, NSW Teasury RESPONDENT C FILE NUMBER: 039066 HEARING DATES: 8/12/2003 SUBMISSIONS CLOSED: 12/15/2003 DATE OF DECISION: 02/20/2004

C v Secretary, NSW Treasury (No 3) [2003] NSWADT 200 DECISION UNDER APPEAL: BEFORE: Chesterman M - ADCJ (Deputy President); Robinson MA - Judicial Member; Blake C - Member CATCHWORDS: application of common law test - no evidence MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 013081 DATE OF DECISION UNDER APPEAL: 08/25/2003 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998 Re Applicant and Department of Education and Training, Children's Youth and Family Services (1998) 53 ALD 509 Botany Council v The Ombudsman (1995) 37 NSWLR 357 Brown v Raphael [1958] Ch 636 Browne v Dunn (1893) 6 R 67 Bushell v Repatriation Commission (1992) 175 CLR 408 C v Secretary, NSW Treasury (No 3) [2003] NSWADT 200 Central Sydney Area Health Service v Crewdson [2001] NSWADTAP 44 Re Close and Australian National University (1993) 31 ALD 597 CASES CITED: Cox and Dept of Defence (1990) 20 ALD 499 Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 Director General Department of Community Services v S [2000] NSWADTAP 27 Re Gordon and Department of Social Security (1991) 25 ALD 33 Hewitt v Grabicki 794 F 2d 1373 Re Leverett and Australian Telecommunications Commission (1985) 8 ALN N135 Re Resch and Department of Veterans' Affairs (1986) 9 ALD 380 RR v Department of the Army 482 F Supp 770 (1980) Smith v Land & House Property Corporation (1884) 28 Ch D 7 Re Warren and Department of Defence, unreported, Administrative Appeals Tribunal, 22 December 1992 APPELLANT REPRESENTATION: M Allars, barrister RESPONDENT In person ORDERS: 1. Appeal allowed in part.; 2. The Tribunal's order, setting aside the Appellant's decision to refuse to amend the report of Dr Lucire relating to the Respondent, is upheld.; 3. In substitution for that decision of the Appellant, a decision is made to attach a notation to the report, and to every copy of the report held by the Appellant, a notation in the following terms:; 'The attached document is incorrect within the meaning of s 39(c) of the Freedom of Information Act 1989. Specifically, Dr Lucire's diagnosis that Mr C (insert full name) seemed on clinical examination to have a Paranoid Delusional Disorder and on the documents to have a Narcissistic Personality Disorder has been withdrawn by her. For further details, see the decision of the Appeal Panel of the Administrative Decisions Tribunal in Secretary, NSW Treasury v C [2004] NSWADTAP 6.'; 4. If the Appellant discloses to any person (including any other agency or any Minister) any information contained in Dr Lucire's report, the Appellant should ensure that the above notation is included when that disclosure is made.; 5. If either party wishes to make an application for costs, it should do so within 28 days of the date of this decision.; 6. If such an application is made, the other party is directed to file and serve any submissions in reply within 28 days of being served with the application. ; 7. Any application for costs will be determined by the Tribunal 'on the papers' pursuant to s 76 of the Administrative Decisions Tribunal Act 1997