Altaranesi v Whalan [2010] NSWSC 149

Reported Decision : 199 A Crim R 110

New South Wales Supreme Court

CITATION : Altaranesi v Whalan [2010] NSWSC 149

HEARING DATE(S) : 25 February 2010

JUDGMENT DATE : 5 March 2010

JUDGMENT OF : Harrison J

1. Set aside the orders made by Magistrate Schurr on 15 July 2009. 2. Direct the plaintiff within 21 days to serve upon the defendants, if so advised, any proposed draft amended application upon which he proposes or intends to rely. DECISION : 3. In the event that the plaintiff complies with order 2., appoint such day as the parties arrange in consultation with my Associate for the hearing of argument upon the question of whether or not the plaintiff should be permitted to file and to rely upon the proposed draft amended application. 4. In default of compliance with order 2, order that the proceedings be dismissed. 5. Stand over the question of the costs of this application and of the adjourned hearing to such date as may be arranged.

CATCHWORDS : APPEAL – s 56 Crimes (Appeal and Review) Act 2001 - plaintiff employed by Sydney South Western Area Health Service as a cleaner - private criminal prosecution by him in the Local Court of the defendants who were his former co-workers alleging offences under s 62(1) of the Privacy and Personal Information Act 1998 and s 68(1) of the Health Records and Information Privacy Act 2002 – where magistrate dismissed the proceedings on defendants' request on basis that the plaintiff's application was invalid by reason of duplicity and in breach of s 175 of the Criminal Procedure Act – whether decision concerned a question of law – whether s 16(2)(a) applied - whether decision erroneous – magistrate's decision not erroneous on issues decided by her – whether magistrate's decision erroneous by reason of a failure to give the plaintiff an opportunity to elect or to amend the application – limited error found - consequential orders made.