At v Bundaberg Regional Council

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

AT v Bundaberg Regional Council [2018] QCAT 179

PARTIES:

AT
(applicant)
v

BUNDABERG REGIONAL COUNCIL

(respondent)

APPLICATION NO/S:

OCL039-16

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

14 June 2018

HEARING DATE:

3 February 2017

HEARD AT:

Brisbane

DECISION OF:

Member Beckinsale

ORDERS:

1.   The complaint that Bundaberg Regional Council breached Privacy Principal 11 is not substantiated and is dismissed.

2.   The Tribunal prohibits the publication of any information that may enable the Applicant to be identified.

CATCHWORDS:

HUMAN RIGHTS – PRIVACY LEGISLATION –information privacy

Information Privacy Act 2009 (Qld), s 23(2), s 23(5),
s 176(1), s 176(2), s 178, Schedule 3

Queensland Civil and Administrative Act 2009 (Qld),
s 3(b), s 66(1)(c), s 66 (2)(b)

A Complainant v Secretary, Department of Defence [1993] Priv Cmr ACD 1
AXP v Queensland Police Service [2013] QCAT 680
Briginshaw v Briginshaw (1938) CLR 336
Complainant v ACT Government Solicitor [2003] Priv Cmr ACD 1
Deeming v Whangarei District Council [2015] NZHRRT 55
Director General, Department of Education and Training v MT (2006) 67 NSWLR 237
DK v Telstra Corporation Ltd [2014] AI Cmr 118
JL v Queensland Police Service [2014] QCATA 623
RM v Queensland Police Service [2017] QCAT 71

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

J P Hastie, solicitor of King & Company Solicitors

REASONS FOR DECISION

Background

  1. On 14 December 2015, AT phoned the Bundaberg Regional Council to complain that she had seen a Council employee, Brian McMah, drinking during Council business hours at a local bowls club. She gave her first name and mobile telephone number to enable the complaint to be followed up. Later, on the same day, the Council’s human resources manager, Karen Craft, phoned AT to speak about her complaint. When


    Ms Craft subsequently spoke to Mr McMah, she revealed that the first name of the complainant was ‘[A]’.

  2. On 19 December 2015, at the same bowls club, Mr McMah approached AT’s husband, KT, and asked him to admit that his wife had made a complaint against him. An exchange occurred between them.

  3. AT made a complaint to the Office of the Information Commissioner (‘OIC’) that the Council breached her privacy under the Information Privacy Act 2009 (Qld) (‘IPA’) and that as a result, she suffered intimidation, hurt and humiliation and she sought compensation as well as the costs of her husband attending a different bowls club.

  4. After unsuccessful mediation and upon AT’s request, the OIC referred the complaint to the Tribunal.[1]

    [1]IPA, s 176(1).

    Legal Framework

  5. The Tribunal has original jurisdiction to decide a privacy complaint,[2] and can make one or more orders as follows:[3]

    (a)That the complaint, or part of the complaint, has been substantiated together with consequential orders such as an apology or monetary compensation;

    (b)That the complaint, or part of the complaint has been substantiated and that no further action is required;

    (c)That the complaint, or part of the complaint has not been substantiated and is dismissed; and/or

    (d)That the complainant be reimbursed for expenses…

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Details
Case
[2018] QCAT 179
Decision Date

CaseChat Overview and Summary

The case between AT and Bundaberg Regional Council was brought before a tribunal, with AT alleging that the Council breached certain privacy principles under the Information Privacy Act 2009 (Qld). AT claimed that the Council had breached Privacy Principal 11, which concerns the handling of personal information. The core of the dispute involved allegations that an employee of the Council, Mr McMah, had been drinking on duty at a bowls club, and that subsequent to AT lodging a complaint about this conduct, she received threatening phone calls.

The tribunal was tasked with determining whether the Bundaberg Regional Council had indeed breached Privacy Principal 11, which mandates that personal information be protected from misuse, interference, loss, unauthorised modification, or unauthorised disclosure. AT argued that the Council's handling of her complaint led to her receiving threatening calls, implying a breach of the privacy principle. The Council, on the other hand, argued that the alleged breaches did not occur as claimed. They asserted that the employee's actions were unauthorised and not representative of Council policy, and therefore, the Council could not be held liable for these actions.

In its decision, the tribunal found that the Council had not breached Privacy Principal 11. It concluded that Ms Craft's handling of the complaint did not constitute a misuse of AT's personal information as per the definition in the Act, and that Mr McMah's actions were not attributable to the Council due to their unauthorised nature and breach of internal policies. Consequently, the tribunal dismissed AT's complaint against the Council, finding it unsubstantiated.

The tribunal also issued an order prohibiting the publication of any information that could identify the Applicant, AT, in line with privacy protection measures. This ruling ensured that AT's identity remained confidential, respecting her privacy rights throughout the proceedings.

Orders

Orders of the court

1. The complaint that Bundaberg Regional Council breached Privacy Principal 11 is not substantiated and is dismissed.

2. The Tribunal prohibits the publication of any information that may enable the Applicant to be identified.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In the event the Tribunal determined it had jurisdiction, Council submitted the Tribunal could not be satisfied there was a breach of IPP 9 or IPP 10. Ms Craft’s actions did not constitute ‘use’ of personal information having regard to section 23(5) of the IPA. Mr McMah’s actions in speaking to KT at the bowls club could not be attributed to the Council as his actions were unauthorised by the Council, were in breach of the Council’s policies governing his conduct as an employee, and went beyond the scope of his responsibilities as an employee.AT’s Evidence AT’s evidence was she had been at the bowls club on a Wednesday afternoon when she saw Mr McMah, drinking during Council hours. She said she had known Mr McMah for a long time, through bowling and from a time when her husband previously worked for the Council. She subsequently rang the Council on 14 December 2015 and said she wished to complain about a Council worker. The person taking the call said AT would need to speak to Ms Craft who was not available. AT left her name and number to enable Ms Craft to call her. She said Ms Craft called her later that day. AT told Ms Craft she wanted to complain about Mr McMah whom she had seen drinking in his Council uniform at the bowls club and had driven in a Council utility. She said Ms Craft ‘laughed’ at her and said to AT that employees can do what they like in their uniform. AT insisted she wished to put in a complaint. She told Ms Craft she had photographic evidence. Ms Craft said she would follow up and rang the following day requesting AT email the photographs to her. AT had not been present at the bowls club when an altercation occurred between Mr McMah and her husband. AT said about two weeks after the incident at the bowls club she received phone calls during which she could hear ‘heavy breathing’ from the caller who then hung up. She said three calls had been made to her mobile phone and one to her house phone. She said the calls stopped after the matter was referred to the OIC. At the hearing she said the mobile number was known only to her immediate family and her doctor. In her written submissions made in response to the Tribunal’s request regarding IPP 9 and IPP 10, AT said the mobile number had previously been her husband’s number and was known to Ms Craft who had rung it many times over the years he worked for the Council. AT agreed she did not know who made the calls or the person’s motivation but said only one person had threatened her and her husband and she had never ‘done anything else to anyone in [her] life who is going to ring [her] up.’ Brief near-identical statements were provided from AT’s grandson and granddaughter,[10] to the effect that they were present when AT received a phone call, after which she was ‘shaking’ and told them the caller did nothing but breathe heavily then hang up. Each said they had been asked to stay with their grandmother as their grandfather works at night and ‘she is extremely scared for her safety.’[10]Document numbers 12-13 in applicant’s list of documents.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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