Northern Sydney Local Health District v FZK

Commissioner of Police (NSW) v Camilleri [2002] NSWADTAP 19

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Flack v Commissioner of Police, New South Wales Police, New South Wales Police [2011] NSWADT 286

HealthShare NSW v CJU [2022] NSWCATAP 316

Leech v Sydney Water Corporation [2010] NSWADT 298

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610

Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98

Singh v Legal Aid Commission (no 2) [2015] NSW CATAD 5

Turnbull v Strange [2018] NSWCA 157

Transport for NSW v Searle [2018] NSWCATAP 93

YJB v YJC [2024] NSWCATAP 221

The publication or broadcast of the name of the respondent and any information tending to reveal the name of the respondent is prohibited pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

[2024] NSWCATAD 289

1. This appeal is concerned with the application of the Government Information (Public Access) Act 2009 (NSW) (GIPA) to the respondent's request for access to health information kept by the appellant in relation to the respondent.
2. In large part the respondent's request for access was granted but information contained in 3 pages described in Order 2 made by the Tribunal was redacted from the material she was supplied by the appellant. The Tribunal disagreed with the appellant's decision to redact this information and ordered that the redacted information be provided to the respondent. The appellant now appeals from that decision.
3. For the reasons set out below we have decided that the appeal should be allowed and the proceedings should be remitted to the Tribunal for redetermination insofar as they concern the redacted information described in Order 2.

1. Order 2 made by the Tribunal on 1 October 2024 was:

(2) Pursuant to s 55(2)(c) of the Privacy and Personal Information Protection Act 1998, within 14 days of the publication of these reasons for decision, the Respondent must provide the Applicant with their health information previously redacted on pages 133-134 and 229 of the 239 page bundle with the document "[Applicant]_LowerNorthShoreVolume 1_30 April 2024" by giving the Applicant a copy of that health information.

1. This order has been stayed pending the outcome of this appeal.
2. This order followed the Tribunal's conclusions that the health information referred to was not the "personal information" of third parties within the meaning of clause 3(a) of Table 14 in s 14 of GIPA and that the appellant had not established that disclosure would give rise to the risk of harm set out in clause 3 (f) of that Act.
3. Order 1 affirmed the appellant's decision not to disclose to the respondent redacted health information identified on pages 257-258 of another bundle of documents. This appeal was not concerned with any challenge by the respondent to that decision.
4. As a consequence of these conclusions the Tribunal never proceeded to carry out the weighing exercise required by s 13 of GIPA so as to determine whether there was an overriding public consideration against disclosure.

1. At the commencement of the hearing of the appeal the respondent made an application for each of the members of the Appeal Panel to recuse themselves from hearing the appeal.
2. After hearing from the respondent and a short oral submission from the appellant opposing the recusal application, we adjourned to consider the application. We then resumed the hearing and informed the parties that we refused the recusal application and we would give reasons for that decision when providing reasons in respect of the substance of the appeal. We now give those reasons.
3. The recusal application was founded upon two previous decisions of the Appeal Panel in appeals in which the respondent had been a party. In one of those decisions given in March 2024 Senior Member Durack SC was a member of the Appeal Panel and in the other decision given in 2024 Senior Member Andelman was a member of the Appeal Panel. We do not set out the citations of these decisions so as not to identify the name of the respondent, whose name has been anonymized by relevant orders in the primary proceedings and also in respect of the appeal.
4. In support of the recusal application the respondent relied upon separate one-page documents one concerning Senior Member Durack SC and the other concerning Senior Member Andelman. Each document was in the form of a NCAT Complaint Form in which there was a heading "EVENTS OR CIRCUMSTANCES ABOUT WHICH YOU COMPLAIN" and required the complainant to "Identify what you were complaining about and describe the factual basis for the complaint. Set out dates and places of hearing if these are relevant."
5. The document concerning Senior Member Durack SC, relevantly, stated:

The appeal concerns to generic questions of law:

1. Whether ACL overrides FTA

2. Whether s 29 of NCAT Act enables legislations, such as, Crimes Act and the Corporations Act

The decision does not require any examination of the merits, it is irrelevant which ss of ACL and FTA is involved, it is irrelevant which legislation is to be enabled.

The fact ACL became a law in NSW in 2011, answers the first question, it overrides FTA.

The fact that s 29 only have one condition: if the matter is before the Tribunal, answers the second question, it enables both.

Senior Member Durack and Senior Member Wilson acknowledged both questions in their decision [citation given] at [30] and [37], and admitted both facts at [33] and [37] respectively, however, nevertheless concluded the opposite:

1. FTA overrides all ACL (at [26])

2. The Tribunal has no jurisdiction of Corporations Act (at [38]), when Member Durack made a finding per s109X (1) (a) of Corporations Act in [2019] NSW CATAP 237 at [44]

3. The Tribunal has no jurisdiction to consider fraud and dishonesty (at [42]), when Member Durack considered "fraud" in [2021] NSWCATAP 130 at [229], and supported Tribunal's findings on "dishonesty" in [2018] NSWCATA P164 at [65] and [68]

Further, as senior members on the appeal panel, they must know a determination on a question of law does not require any examination of the merits, but nevertheless included them with more than half of the considerations our analysis of merits, there is no room for competency speculation but to conclude a case of misconduct.

1. The document concerning Senior Member Andelman, relevantly, stated:

These proceedings concern claim of breach of s 60 of ACL, alternatively breach of contract.

On 18/7/2024, I lodged an appeal on single question of law, whether s267 (4) requires "foreseeable" damages or damages "incurred".

On 11/10/2024, during the hearing, Justice Balla raised a question: Tribunal's expression "in the event I am wrong" may not be a concession that it erred in finding there is no breach of s 60 of ACL and the contract.

I replied to her, if the Appeal Panel concludes it's not concession, I apply for leave to amend the Notice of Appeal because the Tribunal's findings are also errors of law.

She then asked the Respondent if he has any objection on leave to amend, and explained she believes it is reasonable to grant the leave to amend the Notice of Appeal because they were mentioned in my submissions, not a surprise.

I further submitted that, the Appeal Panel will need to make a finding on the appeal ground: s267 (4), first.

However, the Appeal Panel falsely claimed, it was agreed, that Justice Balla's question is my second appeal ground, made an order "leave to appeal is refused" when no leave was sought, notwithstanding, if the expression is not concession, leave to amend the Notice of Appeal should be granted.

These false statements are serious offence (s307B of Crimes Act) and (s327), in that, they are false on the face of record, because in no circumstances it would be my appeal ground; are given in compliance of the law (s 62 of CAT Act), under judicial oath, are most serious judicial behaviour/misconduct.

1. At the hearing of the appeal the respondent informed us that no appeal had been commenced by her from the decision in which Senior Member Durack SC was a member of the Appeal Panel and that an appeal had been lodged from the decision in which Senior Member Andelman was a member of the Appeal Panel.
2. The contentions of misconduct in respect of Senior Member Durack are said to concern particular conclusions given in the decision. The alleged misconduct is not spelt out but the contention is that because lack of competency can be ruled out it must follow that there was misconduct. It would seem that the contention must be that the conclusions relied upon were known to be wrong.
3. The contentions of misconduct in respect of Senior Member Andelman concern aspects of the decision concerning an order that leave to appeal was refused that are said to involve the making of false statements. We interpret her contention to be that knowingly false statements were made in the decision, including the order that leave to appeal was refused. The contention was not clearly spelt out.
4. We also note that in her oral submissions the respondent indicated that her application was based upon actual bias on the basis that the matters referred to established misconduct by the members of the Appeal Panel and that since misconduct required a higher threshold of proof than bias it followed that bias was established. The respondent also referred to apprehended bias.
5. Whilst it appeared that her application was based upon actual bias we, nevertheless, deal with her application on the basis that she was raising both actual and apprehended bias.
6. As to actual bias, it is well established that such an allegation must be distinctly made and clearly proved with cogent evidence. The question in issue is whether either or both of the members of the Appeal Panel have embarked upon the hearing of the appeal with a closed mind against the respondent in respect of which they are not open to persuasion; see Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]- [74]; YJB v YJC [2024] NSWCATAP 221 at [69]- [70].
7. As to apprehended bias, the question is whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question it is required to decide; see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]- [7].
8. The recusal application in respect of Senior Member Durack SC is founded upon particular aspects of the reasons for the dismissal of her appeal in the earlier appeal we have referred to. That appeal concerned an entirely different matter from the present appeal. It concerned an appeal from a dismissal of her claim against a director of a company that had carried out work on a toilet at her apartment. The particular aspects of the reasons raised in the recusal application were conclusions of law in respect of her claim. They did not concern any personal criticism of the respondent as a litigant or as a witness.
9. There were three aspects of the reasons raised by the respondent. The first was said to be a conclusion that the Fair Trading Act 1987 (NSW) (FTA) overrides the Australian Consumer Law (NSW) (ACL). However, the conclusion at [26] of the reasons was not in those terms (see also at [32]-[33]). It was a conclusion that the Tribunal must apply the 3 year limitation period in s 79L of the FTA in determining whether it has jurisdiction to determine a "consumer claim", including a claim for relief under the ACL despite the 6 year period for an action provided for in s236 (1) of the ACL. The respondent has not shown that this conclusion was incorrect, let alone a conclusion that Senior Member Durack SC knew it to be incorrect.
10. The second aspect of the reasons raised by the respondent was said to be the conclusion at [38] that the Tribunal has no jurisdiction "of the Corporations Act" in circumstances where it had been concluded by an Appeal Panel in which Senior Member Durack SC was a member that s109X(1)(a) of the Corporations Act applied in respect of a question concerning service of documents. However, the conclusion was that the Corporations Act did not contain any provision conferring jurisdiction on the Tribunal to determine the claims arising under the Corporations Act of the kind which the respondents sought to pursue. It was not a conclusion about the applicability of a specific provision in the Corporations Act concerning the service of documents. The respondent has not shown that the conclusion in issue was incorrect, let alone that it was a conclusion that Senior Member Durack SC knew to be incorrect.
11. The third aspect of the reasons raised by the respondent was said to be the conclusion at [42] that the Tribunal had no jurisdiction to consider fraud and dishonesty in circumstances where fraud had been considered by an Appeal Panel in another appeal in which Senior Member Durack SC was a member and a finding of dishonesty had been upheld by an Appeal Panel in a further appeal in which Senior Member Durack SC had been a member. However, the conclusion in issue was a more narrow one than the respondent described. It was a conclusion that the Crimes Act 1900 (NSW) did not confer jurisdiction on the Tribunal to determine the claims made of fraud or dishonesty. It was not a conclusion that such subject matter could not be determined by the Tribunal with respect to a consumer claim. The respondent has not shown that the conclusion in issue was incorrect, let alone that it was a conclusion that Senior Member Durack SC knew to be incorrect.
12. As to the decision of the Appeal Panel the subject of the recusal application against Senior Member Andelman, the respondent described the decision as being concerned with a claim by the appellant for breach of s 60 of the ACL, alternatively breach of contract. The respondent stated that an issue arose during the course of the hearing of the appeal as to whether the appellant (respondent in this appeal) wished to challenge conclusions by the Tribunal in a section of the decision in which the Tribunal proceeded to deal with issues following a statement that "in the event I am wrong".
13. The respondent submitted that the Appeal Panel came to make an order refusing leave to appeal in respect of this part of the decision. The respondent contended that she had never sought leave to appeal, instead she replied that if the Appeal Panel considered that what the Tribunal said was not a concession of error then she wished to seek to amend her notice of appeal and contended that there were errors of law in respect of this part of the decision. She also contended that at the hearing of the appeal the Appeal Panel had made statements to the effect that leave to appeal should be granted.
14. The respondent contended that in these circumstances the order refusing leave to appeal and associated statements involved making false statements, perjury, judicial misbehaviour and misconduct. It would seem that the appellant contended that the Appeal Panel made an order and gave reasons that it knew to be false.
15. As set out in [12] of the reasons, the respondent's Notice of Appeal set out a single ground which was that the Tribunal erred in deciding that s 267(4) of ACL requires that damages had been incurred.
16. One of the submissions made by the respondent during the hearing was that the words used by the member at [30] "In the event I am wrong about this issue, I do not believe that the fact that the Applicant may not have known about the lateness term means that the Respondent breached its contract with her" and at [38] "In the event I am wrong about my conclusions concerning the consumer guarantee provision, I do not believe that the applicant has any ability to claim compensation" meant that the member was expressing doubt about the finding.
17. As set out at [13] of the reasons, the Appeal Panel informed the respondent that it would treat her submission that the Member was expressing a doubt about the finding in [30] and [38] as a "separate Ground of Appeal". Paragraph [30] was directed at the respondent's breach of contract claim and paragraph [38] was directed at the ACL claim.
18. The Appeal Panel dealt with this separate Ground of Appeal at [15]-[16] of the reasons. The Appeal Panel found that the phrase "In the event I am wrong" in [30] meant that even if the Member accepted the respondent's evidence as to not knowing about the term in the contract, he would have still found that the other party had not breached the contract. The Appeal Panel rejected the respondent's interpretation of the phrase to mean that the Member acknowledged that he may be wrong in his finding that the other party did not breach the contract.
19. As to the expression "In the event I am wrong" in [38], it was made in the context of the respondent's claim under s 61 of the ACL. The claim failed because the Member was not satisfied that the respondent made it known to the other party the particular purpose for which she was acquiring the service. That finding was not challenged on appeal. However, the respondent submitted that the expression in [38] was an acknowledgement that the Member may be wrong.
20. The Appeal Panel found that the expression was simply an introduction explaining that the respondent's claim under s 61 failed and there was no separate claim open to the respondent under s267(4).
21. The respondent has not shown that the order refusing leave to appeal was a conclusion that Senior Member Andelman knew to be incorrect, involved making false statements, perjury, judicial misbehaviour or misconduct.

1. The redacted information the subject of Order 2 was provided to us in an unredacted state as part of a bundle titled "Confidential Appeal Bundle" which became Exhibit A on the appeal. This bundle was not disclosed to the respondent. This unredacted information was identified by a markup showing the information in issue between red lines set out on pages 3, 4 and 5 of Exhibit A (these pages coincided with pages 133, 134 and 229 referred to in Order 2).
2. We have read and considered this unredacted information in determining the appeal. Our review of it reveals that it contains expressions of concern, opinions or knowledge held by third parties concerning the respondent. In one instance, the telephone number of a third party is set out.
3. As will be explained below, when regard is had to the relevant case authorities on the point, it is readily apparent from a review of the redacted information that it is the personal information of third parties, within the meaning of cl 3(a) of the Table in s 14 of GIPA. Accordingly, there appears to have been an error of law by the Tribunal, at least, on the basis that the decision was not legally reasonable.
4. Exhibit A also contained (at pages 9-15) the transcript of a confidential part of the hearing on 8 July 2024 concerning the redacted information in issue on the appeal. This hearing was heard in the absence of the respondent.

1. Having addressed the nature of the claim for access to information, the relevant background, the applicable legislation and the cases and submissions put forward by the parties, the Tribunal stated:

63 When seeking to rely on the GIPA Act public interest considerations against disclosure under the s 14 GIPA Act Table to refuse access under an HPP 7 access request, the [appellant] must first establish that the disclosure in question "could reasonably be expected to" have the nominated effect. That it, the effect specified for the relevant Table clauses relied on by the [appellant] (in this case, s 14 Table cls 3 (a) and (f)).

64 After considering a number of cases which had considered the phrase "could reasonably be expected to" in the context of the public interest considerations against disclosure in the s 14 GIPA Act Table, the Tribunal in Leech v Sydney Water Corporation [2010] NSWADT 298 concluded at [25]:

"[25]... The test to be applied is an objective one, approached from the viewpoint of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC."

65 That is, as held in Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42], the public interest considerations against disclosure in the Table in s 14 GIPA Act require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities. This is supported by s105 GIPA Act where the burden of establishing that the agency's decision is justified lies on the agency.

66 Ms Frost's evidence with respect to the confidentiality of the A Redacted Information [the redacted information referred to in Order 2] and the impact that releasing such confidential information may have on people providing information to the Respondent does not specifically address the public interest consideration against disclosure claim by the Respondent when applying in cl 3 (a) of the Table in s 14 GIPA Act. That is, it does not fully address if (and why) the A Redacted Information is the personal information of others.

67 As a result, the submissions of the Respondent and Ms Frost' evidence have not established, on the balance of probabilities, that the A Redacted Information is the personal information of others (i.e. other than the Applicant) and thus that the release of the of the A Redacted Information to the Applicant could reasonably be expected to reveal an individual's (other than the Applicant's personal information). This public interest consideration against disclosure is not made out and therefore does not come into the balancing against public interest considerations in favour of disclosure of the A Redacted Information as regards providing access to it under HPP 7.

68 As regards the claimed public interest consideration against disclosure under cls 3 (f) of the Table in s 14 GIP Act, Ms Frost's evidence and the Respondent's submissions do not establish, on the balance of probabilities, that the release of the A Redacted Information could reasonably be expected to expose a person (the Applicant or another) to a risk of serious harassment or serious intimidation.

69 As noted in section 3 of the Manual, the [appellant] is to apply the guidance in the Manual. Specifically in this case, section 12.3 (which was attached to Ms Frost's Statement) provides clear guidance (see section 12.3.1.2) as to how this potential public interest consideration against disclosure is to be assessed and determined by the Respondent. Failure to follow the prescribed procedures in the Manual and to provide the evidence of such leads, in the absence of any other compelling evidence to the contrary, to the [appellant] in this case being unable to establish to the relevant standard of proof that the release of the A Redacted Information could reasonably be expected to have the claimed effect. That is there was no evidence or submissions that the "treating health practitioner (considered that] access could be prejudicial to the physical or mental health of the patient or to another person" or that the "Department Head or Director of Medical Services" had this consideration referred to them for review and their decision and reasons as to whether the [respondent] should be granted access to their health information in this case.

70 In the absence of the clear procedures set out in the Manual being followed (and evidence being submitted as the outcome of such considerations), significant and substantial alternative evidence (which was not provided in this case) that the claimed effect could reasonably be expected from the release of the A Redacted Information would be needed to establish that this result could reasonably be expected and, even then, there may still be a concern as to why the clear guidance as to procedure set out in the Manual on the specific area was not followed.

71 Ms Frost's evidence and the [appellant's] submissions were not sufficient or specific enough to establish that the relevant effects could reasonably be expected from the release of the A Redacted Information. Ms Frost's evidence is that she was not the treating health practitioner of the [respondent], had no role in diagnosing or treating the [respondent] and in fact, had never met the [respondent].

1. Ms Frost was a witness (and the only witness) presented by the appellant. She is an Occupational Therapist who has worked with the North Shore Ryde Mental Health Service since 2010. At the relevant time she was acting Manager of Acute Community Services within the North Shore Ryde Mental Health Service. She had been requested by Health Information Services (a unit of the appellant) to review whether the respondent's medical records should be provided to the respondent. She carried out this review on 18 December 2023.
2. Earlier in the reasons for decision the Tribunal addressed Ms Frost's evidence, including:

51 In summary and most relevantly, in relation to each of the Redacted Information, Mr Frost's evidence is that:

(1) The redacted portions of pages 133-134 and 229 (i.e. the A Redacted Information) reveal the personal information of a number of individuals who are not the [respondent]. Ms Frost states that:

"the evidence I give... is based on my general experience in the provision of mental health care and services, and the concerns that I have about the release of the information of this nature".

(2) Ms Frost does not have direct knowledge of the [respondent] or any of the individuals noted in the A Redacted Information.

(3) Where there is engagement with individuals (such as those in the redacted portions of these pages) there is a general expectation that the information they provide will be dealt with confidentially, as far as is possible to do so because the individuals will often have concerns about maintaining their relationship with the consumer (i.e. the Applicant in this case) as well as concerns about ensuring their own privacy is respected.

(4) Ms Frost also expressed concern that the release of this A Redacted Information (i.e. provided by third parties) to a consumer might damage relationships that the consumer has with those individuals which may, in turn, trigger a change or have a detrimental impact on the consumer's mental health.

(5) Ms Frost also expressed a concern that the release of this A Redacted Information (as provided by third parties) has the potential to put these third party at risk "particularly if the consumer disagrees with the information or opinion that has been provided, or feels some sense of betrayal or grievance about the communication".

.....

52 In the Statement Ms Frost does not directly address or relate either (a) her general concerns and experience summarised above to the Redacted Information or (b) the reasoning for determining that, in accordance with those comments, the Redacted Information should not be provided to the Applicant.

53 Ms Frost's evidence in the Statement as to general practices and her general experience does not clearly apply such general concerns or practices to the specific Redacted Information in question in this case will fully explain why and how her general concerns and experience apply to the Applicant and that is why, in this specific case, there is an overriding public interest against its disclosure.

....

1. Earlier in the reasons for decision (at [43]) the Tribunal had set out relevant parts of the Manual (the New South Wales Health Privacy Manual for Health Information) (as at March 2015) which "provides operational guidance regarding the legislative obligations imposed by the [HRIP Act]". The Tribunal referred to provision 3.1 which stated that the Manual applies to all people who work within the NSW public health system. The Tribunal then set out the following:

12.3.1 Reasons for refusing access

the HRIP Act access provisions focus on individual's accessing their own medical and health information. As such, it will be rare to refuse access...

12.3.1.1 The disclosure of information could reasonably be expected to reveal another individual's personal information

....

In some circumstances it will be reasonable to provide access to third-party information, such as:

• where this information is already known to the patient,
• where the third party has provided their consent,
• where there is no reason for the health service to believe that disclosure of the third-party information would unreasonably reveal another individual's personal information...

12.3.1.2 The disclosure of information could reasonably be expected to expose a person to a risk of harm

....

In rare circumstances where the treating health practitioner considers access could be prejudicial to the physical or mental health of the patient or to another person, the health record may be referred to a third party such as an independent health practitioner for assessment. If this occurs, the health record plus the assessment should then be referred to the Department Head or Director of Medical Services for review and a decision made as to whether the applicant should be granted access to all or part of the health records..."

1. Relevant provisions in GIPA regulate the enforceability of rights of access to government information, including information held by the appellant.
2. Under s 9 of GIPA a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an "overriding public interest against disclosure of the information". There is a general public interest in favour of the disclosure of government information; s 12(1) of GIPA.
3. Section 13 of the GIPA Act, relevantly, provides:

13 Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

1. Section 14 of the GIPA Act, relevantly, provides:

14 Public interest considerations against disclosure

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

....

Table

.....

3 Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects -

(a)

reveal an individual's personal information,

.....

(f)

expose a person to a risk of harm or of serious harassment or serious intimidation,

1. Unlike the position in Privacy and Personal Information Protection Act 1998 (NSW) (PIPA) and Health Records and Information Privacy Act 2002 (NSW) (HRIPA) (see below) GIPA contains no definition of "personal information".
2. The appellant did not rely upon clauses 1 (f) or (g) in the Table which provide:

(f)

prejudice the effective exercise by an agency of the agency's functions,

(g)

found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,

1. A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR); s 100 of GIPA.
2. Nothing in PIPA affects the operation of GIPA; s 5(1) of PIPA. Without limiting that section, the provisions of GIPA that impose conditions or limitations with respect to any matter referred to in s 14 (amongst others) are not affected by PIPA and the provisions of GIPA continue to apply in relation to any such matter as if those provisions were part of PIPA; s 20(5). Section 14 of PIPA contains an information protection principle and, relevantly, provides:

14 Access to personal information held by agencies

A public sector agency that holds personal information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information.

1. "Personal information" was, relevantly, defined in PIPA as:

4 Definition of "personal information"

(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

1. If a person is not satisfied with the findings of an internal review under s 53 of PIPA such person may apply to NCAT for administrative review under the ADR of the conduct the subject of the application for internal review. Included amongst the orders that the Tribunal may make in such administrative review proceedings is an order that requires the public sector agency to perform an information protection principle; s 55(2)(c) of PIPA.
2. The appellant was required to comply with the Health Privacy Principles in Schedule 1 of HRIPA, including Health Privacy Principle 7 which provides:

7 Access to health information

(1) An organisation that holds health information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information.

1. "Health information" was, relevantly, defined in the HRIPA as:

6 Definition of "health information"

In this Act, health information means -

(a) personal information that is information or an opinion about -

(i) the physical or mental health or a disability (at any time) of an individual, or

(ii) an individual's express wishes about the future provision of health services to him or her, or

(iii) a health service provided, or to be provided, to an individual, or

(b) other personal information collected to provide, or in providing, a health service, or

....

1. "Personal information" has the same definition in HRIPA as it does in PIPA
2. As with PIPA, nothing in HRIPA affects the operation of GIPA and the provisions of GIPA that impose conditions or limitations with respect to HPP 7 (amongst others) continue to apply as if those provisions were part of HRIPA; s 22 of HRIPA.

1. Under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. In respect of any other grounds the appellant must satisfy the Appeal Panel that leave to appeal should be granted.
2. With respect to the grant of leave to appeal, the Tribunal has a discretion concerning the grant of leave which it will ordinarily only exercise in the circumstances described in Collins v Urban [2014] NSWCATAP 17 at [84(2)], namely.

Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

1 issues of principle;

2 questions of public importance or matters of administration or policy which might have general application; or

3 an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

4 a factual error that was unreasonably arrived at and clearly mistaken; or

5 the Tribunal having gone about the fact- finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed,

(1) In reaching the conclusions:

(a) at [67] that the public interest consideration against disclosure at cl 3 (a) of the Table to s 14 did not apply; and

(b) at [68], that the public interest consideration at cl 3(f) of the Table to s 14 did not apply,

the Tribunal did not have regard to the actual information in issue (as it used as evidence before the Tribunal in the Respondent's Confidential Bundle) and, accordingly erred by failing to consider key evidence before it (Ground 1).

(2) The Tribunal's determination, at [67], that clause 3 (a) of the Table to s. 14 of [GIPA] does not apply as a public interest consideration against disclosure is legally unreasonable, that is, it is a decision so unreasonable that no reasonable decision-maker could make it (Ground 2).

(3) To the extent that it is necessary to do so, the appellant seeks leave to argue that the Tribunal erred, at [67], in finding that:

(i) it had not been established that the "A Redacted Information" is the personal information of individuals other than the applicant for information; and, as a result

(ii) that cl. 3 (a) of the Table to s 14 of [GIPA] did not apply as a public interest consideration. (Ground 3)

(4) In considering the application of cl 3(f) of the Table to s 14 of GIPA, the Tribunal asked itself the wrong question at [69]-[70], that is, whether it had evidence that certain procedures set out in the NSW Health Privacy Manual for Health Information had been observed, rather than whether the evidence submitted demonstrated that the information could reasonably be expected to quote expose a person to a risk of harm or of serious harassment or serious intimidation". (Ground 4)

(5) In considering the application of cl 3(f) of the Table to s. 14 of [GIPA], the Tribunal took into account an irrelevant matter at [69-]-[70], that is, whether the procedures at 12.3.1.2 of the NSW Health Privacy Manual for Health Information had been observed. (Ground 5)

(6) The Tribunal erred by applying an incorrect evidentiary standard with respect to cl 3(f) of the Table to s 14 of [GIPA] insofar as the Tribunal found at [70] that for cl. 3(f) to be established as a consideration against disclosure, the respondent needed to either:

(i) adduce "clear evidence" of the procedures set out in the NSW Health Privacy Manual full Health Information having been followed; or

(ii) adduce "significant and substantial evidence... That the claimed effect could reasonably be expected to arise from release". (Ground 6)

(7) To the extent that is necessary to do so, the appellant seeks leave to argue that the Tribunal erred in finding at [69] that cl. 3(f) of the Table to s. 14 of [GIPA] did not apply as a public interest consideration against disclosure of the information (Ground 7).

1. Grounds 1, 2, 4, 5 and 6 raised questions of law. Leave to appeal was required in respect of Grounds 3 and 7.
2. In view of the conclusions we have reached as set out below, it is unnecessary for us to examine all of the grounds of appeal.

1. On the appeal we received written submissions from the appellant lodged on 22 November 2024 and written submissions from the respondent lodged on 13 December 2024. We also received oral submissions from the parties at the hearing of the appeal. Because the respondent did not have access to the redacted information, the submissions she was able to make were, understandably, constrained.
2. The respondent's written submissions on the appeal dated 13 December 2024 stated:

1. The appeal grounds aren't a few questions of law.

2. The Tribunal conceded they don't raise questions of law.

3. The Appellant applied leave.

4. The appellant relies on two arguments to seek leave:

a. The disclosure will reveal third parties' personal information, while admitting those third parties are known to the Respondent; therefore, the disclosure will not reveal any personal information.

b. The disclosure will result in risk of harm, while admitting NSW Health Privacy Manual for Health Information (the Manual) is mandatory (Annexure 1), but failed to produce a report of Respondent's treating doctor per s 12.3.1.2 of the Manual (Annexure 2).

Consideration-the Tribunal's conclusion about cl 3(a) of the Table in s. 14 of GIPA

1. With respect to the conclusion that the appellant had not established that the redacted information consisted of the personal information of third parties, it is clear that the Tribunal did not have regard to the breadth of the meaning of "personal information", as established by case law interpretation of the meaning of this phrase.
2. We have already summarised the nature of the redacted information.
3. It is well established that "personal information" may be the personal information of more than one person: see, for example, Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5 at [49].
4. In Turnbull v Strange [2018] NSWCA 157, when considering the definition of "personal information" in PIPA, Basten JA said at [5]:

"..... The phrase "about an individual" provides an essential qualification of the subject matter of the definition, namely "information or an opinion". It may be that the content of a telephone conversation, including statements made by one party, will constitute "opinions" about the other party to the conversation. However, statements by the relevant individual will not constitute opinions about himself or herself, in most circumstances. On the other hand, statements made by the individual they identify "information" about that individual, in that they may reveal that he or she held a particular opinion or new certain things at a particular time". [Our emphasis]

1. In HealthShare NSW V CJU [2022] NSWCATAP 316, the Appeal Panel said at [56]:

We consider that CJU's belief that there may be a staff member at the Local Health District who is "acting inappropriately" is personal information about CJU, in that it reveals a suspicion that she held on 29 June 2020. The fact that an individual holds a suspicion must be personal information in the same way that the fact of holding of an opinion is considered to be personal information about the holder of the opinion in Turnbull v Strange. A suspicion can be characterised as the holding of an opinion that a particular state of affairs may exist."

1. When these authorities are applied to the redacted information the only reasonable conclusion open is that the redacted information does fall within cl 3(a) of the Table in s. 14 of GIPA. Accordingly, in our view, the Tribunal's conclusion on this point was legally unreasonable.
2. In these circumstances, it is unnecessary for us to consider Ground 1 of the appeal in so far as it concerned the Tribunal's conclusion about cl 3(a).
3. Our conclusion about the operation of cl 3(a) in this case is sufficient for the appeal to be upheld and for an order to be made that Order 2 be set aside. The consequence is that the weighing exercise required by s 13 of GIPA must be carried out by the Tribunal.
4. Nevertheless, it is of utility for us to address the issues raised by the Tribunal's conclusion concerning cl 3(f) because it might have some bearing upon the weighing issue that needs to be carried out under s 13.

Consideration-the Tribunal's conclusion about cl 3 (f) of the Table in s. 14 of GIPA

1. We are inclined to consider that the Tribunal did make an error or errors of law in respect of its conclusion concerning the application of cl 3(f) by, at least, failing to direct itself to the correct question, namely whether on the material before the Tribunal the appellant had established, on the balance of probabilities, that the terms of cl 3(f) were satisfied.
2. However, it is not necessary for us to consider the various contentions of error made by the appellant because we do not consider that if there were such errors they were material errors.
3. This is because on the material before the Tribunal we consider that there was no realistic possibility of any other conclusion than the one that was drawn by the Tribunal: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [16].
4. The appellant's case to establish that the terms of cl 3(f) had been satisfied was based on the redacted information itself in conjunction with the opinion evidence from Ms Frost, to which we have referred to above.
5. However, we consider that such evidentiary material failed to provide the real and substantial grounds for a conclusion that the claimed effect could reasonably be expected to occur, as is required by the authorities to which the Tribunal referred, including the decision in Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] and Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42].
6. In our view, the material provided did not rise above speculation that the claimed effect could reasonably be expected to occur.
7. It is far from self-evident from the redacted information itself that the disclosure of the redacted information could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation. Ms Frost's opinion to this effect was expressed to be an opinion founded upon her general experience, but it was not founded on any specific aspect of the redacted information combined with any particular information concerning the respondent and/or the respondent's relationship with the third parties mentioned in the redacted information.
8. For these reasons, we also refuse leave to appeal in respect of this aspect of the appeal because we do not consider that the Tribunal's ultimate conclusion about the operation of cl 3(f) was incorrect.
9. Accordingly, to the extent that the appeal was founded upon a challenge to the conclusion about the operation of cl 3(f) we would not have upheld the appeal.

1. In view of our conclusions about the operation of cl 3(a) in this case, the question under s 13 of GIPA whether the public interest consideration against disclosure in cl 3(a) of the Table in s. 14 of GIPA outweighs the public interest considerations in favour of disclosure must be remitted to the Tribunal for redetermination. If the answer is that such public interest against disclosure does not outweigh the public interest considerations in favour of disclosure then the making of an order for access to the redacted information will follow.
2. We see no reason why this question and the making of any consequential orders should not be remitted to the same member of the Tribunal who made the decision on 1 October 2024.

1. For the above reasons, we make the following orders:

(1) Appeal allowed.

(2) Order 2 made by the Tribunal on 1 October 2024 is set aside.

(3) Insofar as they are concerned with the redacted information identified in Order 2 made by the Tribunal on 1 October 2024, the proceedings are remitted to the Tribunal for redetermination in accordance with these reasons for decision and on such evidence as the parties file and serve in accordance with the directions and rules for that hearing.

(4) Pursuant to s 64 (1) of the Civil and Administrative Tribunal Act 2013 (NSW) the documents in the Confidential Appeal Bundle marked as Exhibit A on the appeal are not to be published or disclosed to the appellant.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.