Dixon, Tim --- "Hobson and Overend v Harding" [1995] PrivLawPRpr 35; (1995) 2(3) Privacy Law & Policy Reporter 53

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HOBSON AND OVEREND v HARDING

High Court of New Zealand, Thorp J, 6 March 1995

Privacy Act 1993 - breach of privacy - Health Information Privacy Code

The plaintiffs, a medical practitioner and an individual representing 171 of the practitioner's patients, brought damages cases against the defendants, the Northern Regional Area Health Service, Health Benefits Limited, and two public servants.

The plaintiffs sought to establish that the NZ Privacy Act 1993 either generally or within areas in which privacy codes have been developed, strikes out common law rights in the same areas. They sought to demonstrate that the legislation and codes supersede common law protection because they codify privacy law and provide a right to compensation for breach of the codes.

Thorpe J accepted that the Privacy Act 1993 establishes a 'broad and comprehensive mechanism to deal with personal information privacy'. He notes the historic view of courts that a statute made in the affirmative does not take away the common law in the absence of a direct or implied negative. Thorpe J determined that the Privacy Act 1993 is an affirmative Act which explicitly does not in all cases replace common law protections. It was, for instance, still necessary to state a specific exemption to the common law in s 115, relating to the protection of the Crown from civil or criminal proceedings relating to the disclosure of personal information. This confirms the conclusions of Longworth and McBride in The Privacy Act - A Guide (Wellington, 1994, GP Publications) that actions for breaches of confidentiality stand despite the passage of the Privacy Act and the Health Code.

Tim Dixon