NCKX and Australian Information Commissioner

[2024] AATA 1100

NCKX and Australian Information Commissioner [2024] AATA 1100 (10 May 2024)

Division:FREEDOM OF INFORMATION DIVISION

File Number(s):      2022/0098

Re:NCKX

APPLICANT

Australian Information Commissioner And  

RESPONDENT

AndChief Executive Officer, Australian Centre for International Agricultural Research

OTHER PARTY

DECISION

Tribunal:Deputy President B W Rayment OAM KC

Date:10 May 2024

Place:Sydney

The decision under review is set aside and substituted with a decision that the award of compensation in favour of the applicant will be fixed at $10,000.

............................[SGD]............................................

Deputy President B W Rayment OAM KC

CATCHWORDS

PRIVACY -  breach of privacy – publication of applicant’s information by third party on a register for period of time – where third party accepts adverse findings – hurt and humiliation – whether quantum of compensation determined by third party was adequate ­–  award to be restrained but not minimal –decision under review set aside and substituted

LEGISLATION

Freedom of Information Act 1982 (Cth)

Privacy Act 1988 (Cth)

CASES

Rummery and Federal Privacy Commissioner, Department of Justice and Community Safety, Party joined [2004] AATA 1321

REASONS FOR DECISION

Deputy President B W Rayment OAM KC

10 May 2024

1. The applicant seeks review of a decision of the Australian Information Commissioner on a claim for compensation under section 36 the Privacy Act, 1988 (Cth) made against the Third Party, Chief Executive Officer, Australian Centre for International Agricultural Research. The respondent has played a more neutral role in the review than the Third Party.

2. The applicant once had employment in Fiji and had dealings with employees of the Third Party, which made a grant to a Fijian organisation about which the applicant complained to the Department of Foreign Affairs and Trade (DFAT).

3. The applicant made a claim against the Third Party seeking that the respondent Commissioner declare that he is entitled to a specified amount by way of compensation for any loss or damage suffered by reason of conduct constituting an interference with his privacy. The Commissioner, being satisfied that an act of the Third Party interfered with the privacy of the applicant, determined that the Third Party should pay the applicant the sum of $5,000.

4. The applicant sought review in the Tribunal of the amount that the Commissioner ordered to be paid, asserting that it was insufficient.

5. The interference with the applicant’s privacy consisted of the publication of information concerning the applicant on a register published by the Third Party, which was kept by it, and was accessed by unknown persons on a number of occasions while it remained open to public access, over a period of 30 days.

6. Amongst a number of matters urged by the applicant were a number of other matters which the applicant, who appeared before the Tribunal without representation, sought to rely upon in his challenge to the compensation claimed by him.  Most of those matters were rejected by the Commissioner as matters to be taken into account. The correctness of those views was reagitated before the Tribunal and I deal with them at the conclusion of these reasons.  For the present I will assume that, as I sought to explain to the applicant in the course of discussing his submissions, they are not proper matters for an award of compensation.  No evidence connects them causally to the breach of privacy, as such.

7. The Third Party by its counsel Ms Ernst, instructed by Gadens Lawyers, expressly accepted each of the (adverse) findings made by the Information Commissioner and submitted that the compensation determined by the Commissioner was in accordance with authority.

8. I was assisted by reference to the decision of the Tribunal (Downes J, president, Mr J.W. Constance, (then) a Senior Member and Dr M.D. Miller, Member) in Rummery and Federal Privacy Commissioner, Department of Justice and Community Safety, Party joined [2004] AATA 1321, and authorities considered therein. In the upshot, the test for determining the quantum of an award of compensation for hurt and humiliation cases is that the award should be restrained but not minimal. I proceed on that basis.

9. The applicant left Fiji, and at the time of the most recent appearance before the Tribunal, he and his wife had relocated to Australia. Not because of the breach of one or more Australian privacy principles by the Third Party, the applicant lost his employment (which occurred before the breach by the Third Party), suffering economic loss, and he and his wife suffered other consequences from real or presumed mistreatment of various kinds.  I see no reason to disregard that fact, although it is not directly compensable in this case, and its merits have not been investigated because of the nature of the claim relevant to this case.

10. The privacy breach, however, related to the publication for 30 days of information which ought never to have been published by the Third Party. The extra hurt suffered by the applicant as a result of the wrong in issue in these proceedings is difficult to identify. The applicant and his wife were no doubt more distressed because of what preceded the interference with the applicant’s privacy complaint, and, in my opinion, by analogy with the “egg-shell” cases, it is not irrelevant that the applicant, no doubt felt the effects of the injury done to him more acutely than a person who had not already felt much injured by what had already occurred to him and his wife.  On the other hand, this is not an occasion to compensate him, or his wife, for earlier pain suffered by them.  The award of compensation must be restrained but not minimal, and must compensate him for the consequences, to him, of the privacy breach. 

11. Having heard the submitted complaints of the applicant the evaluative decision I have arrived at is that the compensation which ought to be given to him is greater than the amount fixed by the Information Commissioner in the circumstances of the applicant. A restrained award would, in my opinion, be no less than $10,000 as opposed to the $5000 specified in the reviewable decision, and I will so decide.

12. The applicant lost his job in Fiji and sued, thus far unsuccessfully, for wrongful dismissal. The proceedings are apparently now to be the subject of an appeal. The applicant made it clear that he is not pressing that claim in the Tribunal. Whatever its merits, it long preceded the privacy breach.

13. The applicant sought to press a claim against the Third Party which depended on acts done by the Third Party before it published his personal information on its disclosure log. He sought a finding as to the disclosure of his email to DFAT to a person said to have been responsible for the grant made by the government which he believed was the nub of his email to DFAT. That allegation was rejected on the basis that the primary facts were not proved in evidence before the Information Commissioner. I am in the same position. Such a finding could not be made by me on the matters proved, and what precisely the person in question may have done when he became aware of the email in question is not apparent. The particular breach by the Third Party, namely publication on its disclosure log was supported by evidence and therefore is a proper matter for consideration as to compensation in these proceedings.

14. He also sought to complain about the failure of DFAT to keep his email confidential until, as he requested DFAT to do.  DFAT is not a party to this proceeding, and if it was, it would have had an opportunity to explain why it had acted in defiance of his request not to communicate with the Third Party until it had itself responded to the applicant about his email. The failure to make DFAT the thrust of his alleged privacy complaint and his failure to press a claim against DFAT makes it impossible to deal with a complaint against DFAT in the course of these proceedings.

15. The Information Commissioner, having identified a breach of the Australian Privacy Principles, found it unnecessary to investigate whether the same loss suffered by the applicant followed from the breach of another APP involving the same breach of the applicant’s privacy. The occasion for compensation was the same no matter how many of the AAP was breached.

16. Similarly, neither the economic expenditure of the applicant in making an FOI application seeking to unearth dealings between the applicant under the Freedom of Information Act, 1982 (Cth) nor his application for legal aid, resulted in the breach of privacy constituted by the publication on the disclosure log, and could not therefore be included in the award of compensation fixed upon by the Information Commissioner. All of the expenditure was incurred before the breach of the applicant’s privacy occurred.

17. The applicant also says that damage suffered by his wife was also recoverable by him.  I have taken into account the distress suffered by the applicant as a result of his wife’s distress.  Absent a case made by his wife in her own right, and proof by her that her own privacy was breached, no order in her favour could be made by the Information Commissioner, and the Tribunal is in no different position.

18. So far as I can see from the evidence, the award which I have indicated is the only allowable basis relevant to an award of compensation for the privacy breach.

19. In the result, therefore, the award of compensation will be fixed by the Tribunal at $10,000 instead of the $5,000 made by the Information Commissioner.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC

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Associate

Dated: 10 May 2024

Date(s) of hearing:	10 October 2023 & 06 March 2024
Applicant:	In person
Solicitors for the Respondent:	Ms Sangha, Mills Oakley Lawyers
Counsel for the Other Party:	Ms C Ernst
Solicitors for the Other Party:	Ms S White, Gadens Lawyers