Moto Garage Industries Pty Ltd v Hassen
[2018] ACTIC 3
•25 September 2018
INDUSTRIAL COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Moto Garage Industries Pty Ltd v Hassen |
Citation: | [2018] ACTIC 3 |
Hearing Date: | 25 September 2018 |
DecisionDate: | 25 September 2018 |
Before: | Magistrate Theakston |
Category: | Voir dire |
Decision: | See paragraph 31 |
Catchwords: | WORKERS COMPENSATION – Leave to reject claim –Surveillance of employee by Insurer – Subrogation – Whether offence committed under Workplace Privacy Act 2011 EVIDENCE – Admissibility of evidence – Civil proceedings – Surveillance – Equity and good conscience – Improperly or illegally obtained evidence |
Legislation Cited: | Criminal Code 2002 (ACT) ss 22 (1), 51 Evidence Act 2011 (ACT) s 138 Legislation Act 2001 (ACT) ss 139, 140 Workers Compensation Act 1951 (ACT) s 132 Workplace Privacy Act 2011 (ACT) ss 7, 8, 10, 11, 13, 18, 42 |
Regulations Cited: | Workers Compensation Regulations 2002 (ACT) reg 56 (4) – (5) |
Bills Cited: | Workplace Privacy Bill 2010 |
Cases Cited: | Bunning v Cross [1978] HCA 22 DPP v Kypri [2011] VSCA 257 Klein v Bryant [1998] ACTSC 89 |
Parties: | Moto Garage Industries Pty Ltd (Applicant) Brett Hassen (Respondent) |
Representation: | Counsel Mr S Whybrow (Applicant) Mr A Muller (Respondent) |
| Solicitors Moray & Agnew Lawyers (Applicant) Slater & Gordon Lawyers (Respondent) | |
File Number: | WC 123 of 2018 |
MAGISTRATE THEAKSTON:
Background
It has been a practice of insurers to, from time to time, arrange for the surveillance of claimants for the purpose of checking the legitimacy of their claims. In 2011, legislation was enacted in the ACT regulating the surveillance of employees by their employers. This matter involves the intersection of those two concerns.
Moto Garage Industries Pty Ltd, through QBE Insurance (Australia) Limited exercising its subrogation rights, has applied to the court for leave to reject Mr Brett Hassen’s claim. That leave is required by s 132 of the Workers Compensation Act 1951 (ACT) if 12 months has passed since the claim was initially made. The application is made on the basis that Mr Hassen is no longer incapacitated for work.
On 25 September 2018 and following an objection, I ruled that surveillance product be admitted into evidence. That product included video media and observations by a witness, which were collected or made using a video camera. These are my reasons.
Issues
The objection raised the following three principal questions:
(a)Did Moto Garage breach s 18 of the Workplace Privacy Act 2011 (ACT)?
(b)Did QBE Insurance breach s 18 of the Workplace Privacy Act?
(c)If there was a breach of s 18 of the Workplace Privacy Act, should the evidence be admitted?
Agreed facts
The following facts were either agreed or not challenged, and I make findings accordingly:
(a)Mr Hassen commenced employment with Moto Garage in 2009 and at all material times was a ‘worker’ of Moto Garage, within the meaning of the Workers Compensation Act. Mr Hassen was also a director of Moto Garage at all material times.
(b)Moto Garage employed other workers from time to time.
(c)In 2015, Mr Hassen sustained an injury to his right shoulder in the course of his employment, which resulted in surgery and an incapacity to work.
(d)On the day of the injury, Moto Garage held a policy of workers compensation insurance with QBE Insurance, as required by the Workers Compensation Act.
(e)In late 2015, QBE Insurance accepted Mr Hassen’s insurance claim in respect of the injury. That claim remains accepted and payments continue to be made by QBE Insurance.
(f)In December 2017 and March, May and August 2018, QBE Insurance arranged for surveillance of Mr Hassen at his workplace.
(g)No notice was provided to Mr Hassen or Moto Garage prior to the surveillance.
(h)No application was made to this court for a ‘covert surveillance authority’ within the meaning of the Workplace Privacy Act.
(i)The surveillance was performed by Mr Paul Martin of Verifact Investigations. The surveillance involved the recording of video images using a camera, and real time observations, including viewing Mr Hassen through the camera. The camera had a zoom facility.
(j)Mr Hassen was observed at, and in the driveway of, his workshop and at other locations where he took possession of motorcycles. He was observed to push motorcycles up a ramp into his work van, ride a motorcycle and carry various objects.
Did Moto Garage breach s 18 of the Workplace Privacy Act?
Section 18 of the Workplace Privacy Act creates a number of offences. Relevantly subsection (1) creates the following offence:
(1) An employer commits an offence if the employer—
(a)is required to notify a worker of surveillance under section 13; and
(b)the employer fails to comply with a requirement under section 13 in relation to the surveillance.
Maximum penalty: 20 penalty units.
This offence is ambulatory in nature, as described in by Nettle JA in DPP v Kypri [2011] VSCA 257 at [15], in that the elements of the offence are informed by the requirements of another section, namely s 13. Section 13 reads:
Notice of surveillance required
(1) An employer may only conduct surveillance of a worker in a workplace if—
(a)the employer gives written notice to the worker under this section; and
Note For how documents may be given, see the Legislation Act, Pt 19.5.
(b)the surveillance is conducted in accordance with the notice.
(2) However, an employer need not give written notice to a worker for surveillance using an optical surveillance device in a workplace if the workplace is not a usual workplace of the worker.
(3) The notice must be given—
(a)at least 14 days before the surveillance starts; or
(b)if the worker agrees to a period of less than 14 days for giving the notice—within the agreed lesser period; or
(c)if a new worker starts work with an employer that already conducts surveillance or will start conducting surveillance in less than 14 days after the new worker starts work—before the new worker starts work.
(4) The notice must state—
(a)the kind of surveillance device to be used for the surveillance; and
(b)how the surveillance will be conducted; and
(c)who will regularly or ordinarily be the subject of the surveillance; and
(d)when the surveillance will start; and
(e)whether the surveillance will be continuous or intermittent; and
(f)whether the surveillance will be for a stated period or ongoing; and
(g)the purpose for which the employer may use and disclose surveillance records of the surveillance; and
(h)that the worker may consult with the employer about the conduct of the surveillance under section 14.
(5) A notice may be in the form of a policy of the employer or otherwise.
The expressions ‘worker’, ‘employer’, ‘workplace’, ‘conducts surveillance’, ‘optical surveillance device’, ‘surveillance’ and ‘surveillance device’ are defined at ss 7, 8, 10 and 11 to mean (emphasis added):
“worker” means an individual who carries out work in relation to a business or undertaking, whether for reward or otherwise, under an arrangement with the person conducting the business or undertaking.
"employer", of a worker—
(a)includes—
(i)a person who engages the worker to carry out work in the person's business or undertaking; and
(ii)if the person who engages the worker is a corporation—a related body corporate of the corporation; but
(b)does not include a person (the "householder") who engages someone else to perform domestic duties at the premises where the householder lives.
"workplace" means a place where work is, has been, or is to be, carried out by or for someone conducting a business or undertaking.
person conducts surveillance if the person—
(a)conducts the surveillance personally; or
(b)causes someone else to conduct the surveillance.
"optical surveillance device"—
(a)means a device capable of being used to record visually or observe an activity; but
(b)does not include spectacles, contact lenses or a similar device used by a person with impaired sight to overcome that impairment.
"surveillance" means surveillance using a surveillance device.
"surveillance device" means—
(a)data surveillance device, an optical surveillance device or a tracking device; …
Applying the above definitions, the cameras used by Mr Martin were optical surveillance devices, both when used to record footage and when used to simply view Mr Hassen. The cameras are therefore also surveillance devices. Accordingly, the use of the cameras amounts to surveillance. It is similarly axiomatic that Mr Hassen was a worker and Moto Garage was his employer for the purpose of the Workplace Privacy Act. The work premises and other places where Mr Hassen performed duties associated with his employment fell within the term ‘workplace’. However, in the absence of evidence that the other places were usual workplaces for Mr Hassen, it has not been established on the balance of probabilities that they are not excluded by the exception at s 13(2).
Accordingly, s 13 imposed a requirement that any use of a camera, as caused by Mr Hassen’s employer, to record or view Mr Hassen while at the work premises, needed to be done following and in accordance with a notice give to Mr Hassen. As indicated above no such notice was given.
Without listing all of the elements for the offence at s 18(1), but nevertheless applying the default fault element for conduct as required by s 22(1) of the Criminal Code 2002 (ACT), it is arguable that if it was proved that the above surveillance was intentionally caused by Mr Hassen’s employer, then the offence may be established.
It is common ground that Moto Garage, Mr Hassen’s employer, was simply not aware of the surveillance. Consequently, it is not established that Moto Garage had the requisite intention to cause the surveillance. This is so, notwithstanding how intention may be established for corporations under s 51 of the Criminal Code. Accordingly, I find that it has not been established on the balance of probabilities that Moto Garage breached s 18 of the Workplace Privacy Act.
I note out of completeness that Moto Garage may have been found to have breached the Workplace Privacy Act, had there been reliable evidence establishing that Moto Garage had, in some way, caused QBE Insurance to arrange the surveillance, whether or not such surveillance occurred in the workplace. While ss 13 and 18 impose requirements for surveillance in the workplace, s 42 prohibits surveillance outside of the workplace.
Did QBE Insurance breach s 18 of the Workplace Privacy Act?
The issue therefore moves to the enquiry about whether the term ‘employer’ as used within ss 13 and 18 of the Workplace Privacy Act includes QBE Insurance in the circumstances of this case. The parties did not draw my attention to any authorities that may assist with determining this issue.
It was submitted on behalf of Mr Hassen that the Workplace Privacy Act was intended to prevent conduct of the type that has occurred in this case. In support of that contention, reference was made to parts of the Explanatory Statement to the Workplace Privacy Bill 2010, which described the need to ensure that employers inform and consult with employees on any surveillance that takes place in the workplace; and which recognised a balance between employees’ rights to privacy and business owners’ rights to take reasonable steps to protect their business and monitor their employees.
However, the statement also noted that the Bill arose out of a concern that the surveillance by employers of employees was unregulated in the Territory and security cameras were being installed within workplaces without the knowledge of employees.
It is apparent that the Act regulates the interaction between employers and employees. It does not purport to regulate an employer’s use of surveillance more generally, or an employee’s right to privacy more generally. It is therefore not clear that the Workplace Privacy Act was intended to prevent conduct of the type that has occurred in this case.
It was further submitted on behalf of Mr Hassen that by exercising its subrogation rights, QBE Insurance was able to take steps standing in the shoes of the employer and therefore its actions in arranging the surveillance was an activity caused by Mr Hassen’s employer.
The insurance contract between QBE Insurance and Moto Garage included the following provisions of subrogation:
4. The Insurer shall in respect of anything indemnified under this Policy, including the bringing, defending, enforcing, or settling of legal proceedings for the benefit of the Insurer, be entitled to use the name of the Employer. The Employer shall give all necessary information and assistance, and forward all documents to enable the Insurer to settle or resist any claim as the Insurer may think fit.
5. The Insurer shall be entitled to use the name of the Employer in proceedings to enforce, for the benefit of the Insurer, any order made for costs or otherwise, and shall have the right of subrogation, in respect of all rights which the Employer may have against a person or persons who may be responsible to the Employer or otherwise in respect of any claim for any accident or disease covered by this Policy, and the Employer shall as and when required execute any necessary documents for the purpose of vesting such rights in the Insurer.
While it is clear that QBE Insurance had the right to bring, for its own benefit, the application in Moto Garage’s name, the existence of that right does not mean that every step taken by QBE Insurance in relation to the claim, was done by exercising that right. QBE Insurance retained the capacity to take steps for its own purposes independent of the right of subrogation, for examples steps in relation to its relationship with Moto Garage. Consistent with this, the instructions on behalf of QBE Insurance to Verifact Investigations of 7 May 2018, makes no mention of QBE Insurance giving those instructions pursuant to a subrogation right nor makes any mention of the current proceedings. Considering the relationship between QBE Insurance and Moto Garage more broadly, I do not accept that merely because QBE Insurance had a right of subrogation, that conduct it engaged in can be attributed to Moto Garage for all purposes, in particular offences; or that QBE Insurance assumes all rights, responsibilities and duties of Moto Garage as an employer. Put another way, by commencing proceedings in Moto Garage’s name in April 2018, QBE Insurance did not assume the responsibilities or duties of Moto Garage that existed before taking that step, and did not automatically assume all responsibilities of Moto Garage that may arise after taking that step.
I accept the submission made on behalf of Moto Garage, that a private agreement cannot effect the interpretation of legislation, in particular an offence provision. However, a private agreement may of course lead to conduct or circumstances that establish an element of an offence.
As referenced above, the term ‘employer’ is defined and relates to the person who engages the worker to carry out work in the person’s business. Sections 139 and 140 of the Legislation Act 2001 (ACT) require me to prefer an interpretation of the offence provisions that would best achieve the purpose of the Workplace Privacy Act, and those provisions should be read in the context of the Act as a whole.
Taking into account the purposes of the Act described above, and noting the various arrangements provided within the Act, it is my view that the term ‘employer’ does not extend to QBE Insurance either before or after QBE Insurance exercised its right to commence these proceedings. This is because, on its face, the definition of ‘employer’ would not include a separate entity such as QBE Insurance, and because the Act focuses on the interaction between employers and employees, as those expressions are ordinarily used, and not on the actions of third parties, conducted without the knowledge of the employer. The purpose of the Act would therefore be best achieved by adopting the narrower construction.
Accordingly, I find that it has not been established on the balance of probabilities that QBE Insurance breached s 18 of the Workplace Privacy Act.
If there was a breach of s 18 of the Workplace Privacy Act, should the evidence be admitted?
Due to the above findings, it is not necessary for me to exercise a discretion about whether or not to admit the evidence due to it being improperly or unlawfully obtained. However, out of completeness I note the following.
The test for the admissibility of evidence during an arbitration before this court and under the Workers Compensation Act is provided by reg 56(4) and (5) of the Workers Compensation Regulations 2002 (ACT). Those provisions read:
(4) The Magistrates Court or a committee may inform itself about anything in the way it considers appropriate.
(5) The Magistrates Court or a committee must act according to equity, good conscience and the substantial merits of the matter being arbitrated, without regard to technicalities and legal form.
Equity and good conscience must be informed by the established principles, although not necessarily the mechanics, of the law relating to the rules of evidence. Section 138 of the Evidence Act 2011 (ACT) deals with circumstances where evidence is improperly or illegally obtained. The test applied in such circumstances is the balancing of two competing public interests, namely the desirability of admitting the evidence, and the desirability of not admitting evidence that has been obtained in the way in which the evidence was obtained. The former interest relates to the desirability of a party being able to put before the court relevant and cogent evidence to assist the court in doing justice between the parties. The latter interest relates to the undesirable consequences that may follow curial approval or encouragement of improper or illegal conduct that occurring during the acquisition of the evidence: see Bunning v Cross [1978] HCA 22 at and Klein v Bryant [1998] ACTSC 89.
Section 138(3) provides a number of considerations for the purpose of this balancing exercise. They are:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
For the purposes of the sixth consideration, Article 17 of the International Covenant on Civil and Political Rights provides relevantly:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
Were I required to conduct the balancing exercise in this matter, I would be minded to admit the evidence. This is due to the significance nature of the evidence and the minor nature of the putative contravention. The evidence would be of considerable value to the court when deciding the merits of the matter, and Moto Garage would be unlikely to obtain equivalent evidence by alternative means. Any putative contravention would have been very much at the lower end of objective seriousness. The surveillance was conducted from locations open to the public and was not directed at any personal, private or confidential activities of Mr Hassen or anyone else. There is no suggestion that any putative contravention was deliberate or reckless.
Orders
I make the following rulings:
1. The digital video disks containing video images associated with the Verifact Investigations surveillance reports of 27 December 2017, 14 March 2018, 11 May 2018 and 4 September 2018 be admitted into evidence.
2. The observations by Mr Paul Martin of Mr Brett Hassen, made through a camera, be admitted into evidence.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Theakston. Associate: Sam Lynch Date: 2 October 2018 |
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