Austen v Civil Aviation Authority
[1994] FCA 303
•20 MAY 1994
MICHAEL JAMES AUSTEN v. CIVIL AVIATION AUTHORITY
No. WAG113 of 1993
FED No. 303/94
Number of pages - 9
Privacy
(1994) 33 ALD 429
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WILCOX, FOSTER AND CARR JJ
CATCHWORDS
Privacy - airline pilot - medical records - file maintained by Civil Aviation Authority - disclosure of file contents to airline proposing to employ appellant - appellant signed authority to release medical history - whether breach of Information Privacy Principles - whether breach of obligation of confidence - whether disclosure otherwise actionable.
Privacy Act 1988 (Cth) ss.6, 14, 15, 89, 90, 91, 93, 94
Public Service Act 1922 (Cth) s.97(1)(k)
Public Services Regulations, 8A, 8B
Beaudesert Shire Council v. Smith (1969) 120 CLR 145
Farrington v. Thomson and Bridgland (1959) VR 286
Kitano v. The Commonwealth (1974) 129 CLR 151
HEARING
PERTH, 23 March 1994
#DATE 20:5:1994
The Appellant: the appellant appeared in person
assisted by Dr S C Churches
Counsel for the Respondent: K J Martin with him J A Thornton
Solicitors for the Respondent: Parker and Parker
ORDER
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent's costs of the appeal.
NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
WILCOX, FOSTER AND CARR JJ This is an appeal against a decision of a Judge of the Court dismissing the appellant's application for damages said to have been sustained by the disclosure of the contents of a medical file kept by the respondent in relation to the appellant ("the medical history file"). At first instance the causes of action upon which the applicant relied were defamation, negligence, breach of statutory duty, misfeasance in a public office, intentional inducement of breach of contract, the rule in Beaudesert Shire Council v. Smith (1969) 120 CLR 145 and breach of obligations of confidence said to arise out of the Privacy Act 1988 (Cth) and in equity. The trial judge dismissed all of the claims following 15 days of hearing. There was no appeal in respect of his Honour's dismissal of the claims based on defamation. The appellant appeared in person at the trial and on the hearing of the appeal, but Dr S.C. Churches of counsel, acting on a voluntary basis, presented the appellant's legal arguments in respect of the appeal. Factual Background
The appellant holds a Senior Commercial Pilot Licence and, immediately prior to the events which gave rise to his claim, had been flying Boeing 737 200 Series aircraft for an airline in the United Kingdom. In October 1989, on the occasion of what was known as the Airline Pilots' Dispute the appellant returned to Australia and applied to Ansett Transport Industries (Operations) Pty Ltd ("Ansett") for employment as a pilot. After two interviews Ansett told the appellant that his application had been successful and that, subject to passing a medical examination and a simulator check, he would be employed to fly Boeing 737 aircraft and would be based in Melbourne.
The appellant was medically examined by Dr David Lewis, Ansett's Medical Director, who initially gave the result of the examination as a "pass".
At the time of the medical examination, the appellant signed a document which is described as a "Medical Information Authority" and which was in the following terms:
"I Michael James Austen authorise the Director of Aviation Medicine, Aviation Medicine Branch, D.O.A. to supply details of my medical history to the Medical Director, Ansett."
That document was apparently anachronistic in some of its terms but there was no dispute that the person to whom it was understood to have been addressed was the Director of Aviation Medicine to whatever body he was attached.
The medical examination and the simulator test both took place on 23 November 1989. Apparently having passed both, the appellant received a letter dated 23 November 1989 from Ansett confirming his appointment as an Intake Pilot. On the same day the appellant and Ansett signed a contract of employment.
Dr Lewis sent the Medical Information Authority to the respondent's Director of Aviation Medicine, Dr R.M. Liddell in Canberra.
The appellant's claims against the respondent Civil Aviation Authority were based on information communicated by Dr Liddell in writing to Dr Lewis, upon the subsequent production by Dr Liddell to Dr Lewis of the medical history file and an oral communication by Dr Liddell to Dr Lewis in respect of the appellant's resignation from employment with an airline known as Dan-Air. In view of the manner in which this case has been conducted on appeal, it is not necessary to outline the precise details of this information and the communication about which the appellant complains. It is sufficient to say that apart from the communication concerning the appellant's resignation from Dan-Air the information related to several episodes in the appellant's life which might have been relevant to the appellant's health and suitability to hold a pilot licence. In fairness to the appellant, it is appropriate to emphasize that he still holds a Senior Commercial Pilot Licence.
After Dr Lewis had spoken to Dr Liddell and inspected the medical history file he wrote a memorandum for Ansett summarising (not altogether accurately) some of the matters on that file and giving an opinion that under normal recruitment procedure he would not recommend selection of the appellant.
Despite this memorandum, Ansett employed the appellant as a Pilot Relations Officer for an initial period of three months, following which Ansett decided that the appellant would be employed to fly as a pilot. Arrangements were made for the appellant to attend an appropriate training course as an "Intake Pilot" but then disagreement developed between the appellant and Ansett about the salary and allowances to be paid during that course. The appellant had been paid a higher rate carrying out the special duties of a Pilot Relations Officer than he would have been paid as an Intake Pilot while attending the training course. The appellant objected to being paid on the same basis as other Intake Pilots and when Ansett refused to pay him a higher salary and allowances, he resigned. The appellant initially sued both Ansett and the respondent for actions taken in connection with the making available of the medical history file but withdrew the claims against Ansett during the hearing.
The Matters to be Decided on Appeal
10. As the appellant has abandoned the claims based on defamation and in view of the manner in which the appeal was conducted there are three causes of action to be considered, namely (a) breach of obligations of confidence said to arise out of the Privacy Act and in equity, (b) the rule in Beaudesert Shire Council v. Smith and (c) misfeasance in public office. Dr Churches indicated that the appellant did not rely independently on breach of statutory duty but as furnishing part of the illegality on which the latter two causes of action were based.
(a) Breach of Obligations of Confidence
11. The relevant provisions of Part VIII of the Privacy Act are as follows:
"PART VIII - OBLIGATIONS OF CONFIDENCE Obligations of Confidence to which Part applies
89. Unless the contrary intention appears, a reference in this Part to an obligation of confidence is a reference to an obligation of confidence:
(a) to which an agency or a Commonwealth officer is subject, however the obligation arose; or
(b) . . .
Application of Part
90. (1) This Part applies where a person (in this Part called a "confidant") is subject to an obligation of confidence to another person (in this Part called a "confider") in respect of personal information, whether the information relates to the confider or to a third person, being an obligation in respect of a breach of which relief may be obtained (whether in the exercise of a discretion or not) in legal proceedings (emphasis added).
(2) . . .
Effect of Part on other laws
91. This Part does not, except to the extent that it does so expressly or by necessary implication, limit or restrict the operation of any other law or of any principle or rule of the common law or of equity, being a law, principle or rule:
(a) under or by virtue of which an obligation of confidence exists; or
(b) that has the effect of restricting or prohibiting, or imposing a liability (including a criminal liability) on a person in respect of, a disclosure or use of information. . . . .
Relief for breach etc. of certain obligations of confidence
93. (1) A confider may recover damages from a confidant in respect of a breach of an obligation of confidence with respect to personal information.
(2) Subsection (1) does not limit or restrict any other right that the confider has to relief in respect of the breach.
(3) . . .
Jurisdiction of courts
94. (1) The jurisdiction of the courts of the Australian Capital Territory extends to matters arising under this Part.
(2) Subsection (1) does not deprive a court of a State or of another Territory of any jurisdiction that it has."
Section 6 of the Privacy Act defines "personal information" in the following terms:
""Personal Information" means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion;"
The obligations of confidence relied upon by the appellant are said to arise from Information Privacy Principles 4, 7, 8, 9 and 11 which are set out in s.14 of the Privacy Act as follows:
"Principle 4
Storage and security of personal information A record-keeper who has possession or control of a record that contains personal information shall ensure:
(a) that the record is protected, by such security safeguards as it is reasonable in the circumstances to take, against loss, against unauthorised access, use, modification or disclosure, and against other misuse; and
(b) . . .
Principle 7
Alteration of records containing personal information
1. A record-keeper who has possession or control of a record that contains personal information shall take such steps (if any), by way of making appropriate corrections, deletions and additions as are, in the circumstances, reasonable to ensure that the record:
(a) is accurate; and
(b) is, having regard to the purpose for which the information was collected or is to be used and to any purpose that is directly related to that purpose, relevant, up to date, complete and not misleading. . . . .
Principle 8
Record-keeper to check accuracy etc. of personal information before use
A record-keeper who has possession or control of a record that contains personal information shall not use that information without taking such steps (if any) as are, in the circumstances, reasonable to ensure that, having regard to the purpose for which the information is proposed to be used, the information is accurate, up to date and complete. Principle 9
Personal information to be used only for relevant purposes A record-keeper who has possession or control of a record that contains personal information shall not use the information except for a purpose to which the information is relevant.
. . .
Principle 11
Limits on disclosure of personal information
1. A record-keeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless:
(a) the individual concerned is reasonably likely to have been aware, or made aware under Principle 2, that information of that kind is usually passed to that person, body or agency;
(b) the individual concerned has consented to the disclosure;
(c) the record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or of another person;
(d) the disclosure is required or authorised by or under law; or
(e) the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.
2. Where personal information is disclosed for the purposes of enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the purpose of the protection of the public revenue, the record- keeper shall include in the record containing that information a note of the disclosure.
3. A person, body or agency to whom personal information is disclosed under clause 1 of this Principle shall not use or disclose the information for a purpose other than the purpose for which the information was given to the person, body or agency."
Insofar as complaint is made of breach of Principle 4, the answer to that claim in our opinion, is that the access and use of the personal information contained on the medical history file was authorised by the Medical Information Authority. Principle 7 does not impose any obligation of confidence.
A complete answer to the complaint that the disclosure of personal information concerning the appellant constituted use of that information in breach of Principles 8 and 9 is the definition of the word "use" in s.6 of the Act. That definition is as follows:
""use", in relation to information, does not include mere disclosure of the information, but does include the inclusion of the information in a publication."
The appellant does not suggest that the respondent, by Dr Liddell, did any more than disclose the information.
There are two reasons why Principle 11 does not assist the appellant in this matter. The first is that Principle 11 applies only in relation to information collected after the commencement of the Privacy Act, that is after 1 January 1989, (s.15(1)) and none of the information relevant to the present case was collected after that date. Secondly, Principle 11 expressly permits disclosure where "the individual concerned has consented to the disclosure". In our opinion when the appellant signed the Medical Information Authority he consented to the disclosure of the information on the medical history file.
Although s.93 of the Privacy Act provides for a confider to recover damages from a confidant in respect of a breach of an obligation of confidence with respect to personal information, s.90 limits the operation of Part VIII (in which s.93 appears) to obligations of confidence in respect of a breach of which relief may be obtained in legal proceedings - see the passage underlined above.
Any claim which the appellant might have had in equity for breach of confidence was clearly not maintainable in view of the appellant's consent, by signing the Medical Information Authority, to the release of that information.
Accordingly, at the time when the respondent made the disclosures of which the appellant complains, it was not under an obligation of confidence to him (whether statutory or in equity) not to release that information to Ansett. If legal proceedings had been brought to restrain that disclosure no relief would have been obtainable.
It would appear that a deliberate decision was made by Parliament not to give a right of action in tort for breach of a privacy principle; see The Law Reform Commission Report No. 22 Vol. 2 para. 1085 and ss.105-110 in the draft Bill forming Appendix A to that volume which, so far as is relevant, is in substantially identical terms to ss.89-94 of the Privacy Act as enacted; also the Explanatory Memorandum for the Privacy Bill paragraphs 201, 203 and 205. Instead the provisions of Part VIII of the Privacy Act can be seen as extending the remedies available in equity for breach of an obligation of confidence. However, the appellant's consent to the release of information to Ansett would not invalidate an argument that, if Principle 11 had been applicable, it would have created a continuing obligation of confidence of the type referred to in s.89(a) of the Privacy Act not to disclose the information to persons other than Ansett. If a confider became aware of an anticipated breach of such an obligation then an injunction might be obtainable to restrain that anticipated breach. There may be room for an argument that Part VIII (and in particular s.93) of the Privacy Act might, in those circumstances, apply to give rise to an action for damages where a breach had occurred before a confidant had been able to institute proceedings to obtain equitable relief. On the facts of this matter it is not necessary for us to decide that question.
The appellant contended that the medical history file was not a medical history file because it was not compiled on the basis of a doctor-patient relationship and extended to matters which did not constitute part of his medical history. Accordingly, he said that the Medical Information Authority did not cover the material supplied to Dr Lewis.
The trial judge held that the various matters recorded in the file were properly matters of medical history. There was ample evidence to support that finding. For example, Dr M. Traub gave evidence in relation to an anonymous telephone call which he had received concerning the appellant and said that in his opinion his note of that telephone conversation together with notes of what happened in consequence would definitely form part of a patient's medical history. The evidence was that steps were taken to follow up the matters raised in that anonymous telephone call, including a further examination by Dr Traub, following which reports favourable to the appellant were put on the medical history file.
If the information would properly form part of a medical history file had the appellant been a patient, then in our view, the same applies in respect of information placed on file consequent upon or arising out of the fact that the appellant was attending not as a patient but for medical assessment of his fitness to be licensed as a pilot. We can see no valid distinction which might require narrowing the range of information appropriate for the latter situation.
(b) The Rule in Beaudesert Shire Council v. Smith
25. In Beaudesert Shire Council v. Smith the Council removed a large quantity of gravel from a riverbed at a point near a farm owned by Mr Smith and thereby destroyed a natural waterhole from which he pumped water. A Full Court of the High Court of Australia (Taylor, Menzies and Owen JJ) held that although the Council was not liable to Mr Smith in negligence or for public or private nuisance it was liable in an action on the case because it intentionally did a positive act forbidden by law which inevitably caused damage to Mr Smith by preventing the continued exercise of his rights as a licensee to take water from the river. At pp.155-156 there appears the following passage:
"There is, therefore, a solid body of authority which protects one person's lawful activities from the deliberate, unlawful and positive acts of another. It is not, however, possible to adopt a principle wide enough to afford protection in all circumstances of loss to one person flowing from a breach of the law by another, for regard must be had to the limitations which the law has placed upon the right of a person injured by reason of another's breach of a statutory duty to recover damages for his injury. Bearing this in mind, it appears that the authorities cited do justify a proposition that, independently of trespass, negligence or nuisance but by an action for damages upon the case, a person who suffers harm or loss as the inevitable consequence of the unlawful, intentional and positive acts of another is entitled to recover damages from that other."
The appellant relied upon what was said to be the respondent's breach of statutory duty as satisfying the requirement of a positive act forbidden by law. That breach of statutory duty, so it was argued, arose out of the contravention by Dr Liddell of certain regulations (Regulations 8A and 8B) made pursuant to s.97(1)(k) of the Public Service Act 1922. The appellant acknowledged that no private right of action was conferred by these regulations but argued that the very lack of such a private right leaves open a claim on the principles of Beaudesert. In further support of this ground for a Beaudesert cause of action, the appellant relied upon what he said were the breaches of the Privacy Act constituted by breaches of the Information Privacy Principles referred to above. We have already expressed the view that there were no breaches of the Information Privacy Principles. The conduct by the respondent which is said to be in breach of the regulations made under the Public Service Act was the provision of information from the medical history file and the communication concerning Dan-Air. The information made available from the medical history file was all covered by the Medical Information Authority. The communication concerning Dan-Air was not made by Dr Liddell in the course of his official duties. It was a private communication in respect of which his employer would not be vicariously liable. In any event the evidence was that he was not employed by the respondent but by the Commonwealth.
A further answer to the claim based on Beaudesert is that it was not inevitable that loss would flow from publication to Ansett of the information contained on the medical history file. In fact, as matters turned out, Ansett hired the appellant as a pilot. If he had not resigned he would not have suffered any loss at all, and his resignation was for reasons unrelated to the disclosed information. The requirement that loss be an inevitable consequence of the conduct complained of was endorsed by another Full Court of the High Court (McTiernan, Menzies, Gibbs and Stephen JJ) in Kitano v. The Commonwealth (1974) 129 CLR 151 where the Court held that Mason J's judgment, from which the appeal was brought, was right. One of the bases upon which Mason J dismissed the action was that the Plaintiff's loss was not an inevitable consequence of the act about which complaint was made.
(c) Misfeasance in Public Office 28. What has been described (by Trindade and Cane in "The Law of Torts in Australia" (2ed) O.U.P. p.237) as perhaps the best definition of this tort is the statement of Smith J in Farrington v. Thomson and Bridgland (1959) VR 286 at p 293:
"In my view, therefore, the rule should be taken to go this far at least that if a public officer does an act which, to his knowledge, amounts to an abuse of his office, and he thereby causes damage to another person, then an action in tort for misfeasance in a public office will lie against him at the suit of that person."
The trial judge found that neither the respondent nor Dr Liddell acted maliciously or with knowledge that what he did was an abuse of his office. There was more than sufficient evidence to support that finding. For example, summaries made by Dr Liddell about the two important aspects of the appellant's medical history were both favourable to the appellant. It will be recalled that insofar as complaint was made about Dr Liddell's statement in respect of the Dan-Air issue, that complaint was based on slander and the defamation claim has been abandoned.
Conclusion
30. For the above reasons the appeal will be dismissed with costs.
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