NW v New South Wales Fire Brigades (No 2)

[2006] NSWADT 61

CITATION:	NW v New South Wales Fire Brigades (No 2) [2006] NSWADT 61
DIVISION:	General Division
PARTIES:	APPLICANT NW RESPONDENT New South Wales Fire Brigades
FILE NUMBER:	043031
HEARING DATES:	19/09/2005
SUBMISSIONS CLOSED:	09/19/2005
DATE OF DECISION:	03/03/2006
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	Review of conduct of public sector agency
MATTER FOR DECISION:	Order
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Industrial Relations Act 1996 Privacy and Personal Information Protection Act 1998
CASES CITED:	NW v New South Wales Fire Brigades [2005] NSWADT 73 NR and NP v Roads and Traffic Authority [2004] NSWADT 276 FM v Vice Chancellor, Macquarie University [2003] NSWADT 78 Vice-Chancellor Macquarie University v FM [2005] NSWCA 192 March v Stramare (1991) 171 CLR 506 Rummery and Federal Privacy Commissioner and anor [2004] AATA 1221 D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 Gamble v Alaska Air Pty Ltd [2005] NSWIRComm 1063 RD v Department of Education and Training [2005] NSWADT 195
REPRESENTATION:	APPLICANT J Nolan of counsel instructed by G Lowe, NSW Fire Brigade Employees' Union RESPONDENT S Prince of counsel instructed by P Macken, solicitor, Leigh Virtue & Associates
ORDERS:	1. Pursuant to s 55(2)(c) of the Privacy and Personal Information Protection Act 1998, that the respondent agency formulate, after appropriate consultation, a statement of practice in relation to the use and disclosure of personal information contained in occurrence books; to do so within 6 months; and to place the statement in the occurrence books or in some nearby location where it can be readily consulted. Any variation of the terms of this order only to occur if approved by the Office of Privacy Commissioner; 2. Applicant to pay the respondent’s costs of counsel’s attendance on 8 August 2005, if he had been briefed prior to 2 August 2005.

1 The Tribunal has found that the respondent agency, New South Wales Fire Brigades (NSWFB), contravened the Privacy and Personal Information Protection Act 1998 (the Privacy Act) in disclosing personal information about the applicant to the Shire of Sutherland: see NW v New South Wales Fire Brigades [2005] NSWADT 73.

2 The brief facts were these. The applicant was as at May 2003 a permanent employee of the Council of the Shire of Sutherland. He had permission to engage in secondary employment, as a retained firefighter with NSWFB attached to the Balgownie Local Unit. A retained firefighter is called up for duty on an as-needed basis. The manager at Sutherland contacted NSWFB because of suspicions he had that the applicant had worked as a firefighter on some days in early 2003 despite having taken sick leave from the Council. If true this was a breach of his leave conditions. The NSWFB replied to the Council’s enquiries by examining the unit’s day book, the occurrence book and advised the Council as to whether he had attended for duty on the days identified by the Council. There was a number of days of attendance recorded in the occurrence book. The NSWFB took disciplinary action, and after a show cause meeting, dismissed the applicant. He challenged the dismissal at the Industrial Relations Commission (IRC). The IRC found the misconduct proven but considered the peremptory action taken to have been unfair. He was awarded four weeks’ pay in lieu of notice.

3 The Tribunal held that the NSWFB’s disclosure of the personal information contained in the occurrence book had contravened the prohibition on disclosure contained in s 18 of the Privacy Act, and that none of the exceptions to that prohibition were applicable to the circumstances. In that regard the main exception relied upon by NSWFB was one granted by a written direction issued by the Privacy Commissioner pursuant to s 41 of the Act (first issued in 2001 and re-issued 31 March 2003), Direction on Processing of Personal Information by Public Sector Agencies in relation to their Investigative Functions at cl 4 (disclosures reasonably necessary for the proper exercise of any of the agency’s investigative functions or its conduct of any lawful investigations).

4 The question now before the Tribunal is whether an order should be made, and, if so, the particular order or orders.

5 The Tribunal’s order making power is contained in s 55(2) of the Privacy Act in the following terms, which in this instance needs to be read in conjunction with s 55(4):

‘(2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:

(a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,

(b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,

(c) an order requiring the performance of an information protection principle or a privacy code of practice,

(d) an order requiring personal information that has been disclosed to be corrected by the public sector agency,

(e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant,

(f) an order requiring the public sector agency not to disclose personal information contained in a public register,

(g) such ancillary orders as the Tribunal thinks appropriate.

…

(4) The Tribunal may make an order under subsection (2) (a) only if: …

(b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency.’

6 The applicant has applied for two orders, one under s 55(2)(a), the other under s 55(2)(b) as follows:

1. The Respondent pay the applicant damages not exceeding $40,000 by way of compensation for loss or damage suffered because of their conduct.

2. The Respondent restrain from any conduct or action in contravention of the Information Protection Principles, ss 17 and 18.

7 The respondent (NSWFB) has indicated its preparedness to submit to an order pursuant to s 55(2)(c) in these terms:

1. The Respondent will comply with the Privacy Principles in dealing with information contained in occurrence books.
Damages Order

8 The applicant gave affidavit and oral evidence and was cross-examined. The first affidavit, filed 8 June 2005, gave details of his financial claim. The second affidavit, filed 22 August 2005, gave details of a conversation with a senior officer of the Council in which the officer used words to the effect that the disclosure by the NSWFB had caused the applicant’s dismissal.

9 The applicant’s submission is that he should be compensated for the entire loss that he has suffered by reason of the dismissal, being the difference between what he would have earned in the period from his dismissal to date and the amount he has actually earned with an offset for the award made by the IRC.

10 The approach taken in the submissions made on behalf of the applicant was to compare his full year income for 2001-2002 with the subsequent three years, using $49,651 (the income from the Council in 2001-2002) as the comparator. These figures were supported by documentation such as pay slips. The evidence is that in 2001-2002 the applicant’s Council income was $49,651; his income dropped in 2002-2003 (dismissed May 2003) to $47,556 and in 2003-2004 his total income was $35,403. His income rose in 2004-2005 to $60,077.43. Consequently, the claim made under this heading was for the ‘total difference’, i.e. $5,886.57. The submissions noted that the amount of the IRC award was $2,870. If that amount is discounted the ‘lost wages’ claim is approximately $3,000.

11 The submissions also note that after his dismissal from the Council the applicant had difficulty in securing full time, permanent employment. Much of the work undertaken, the submissions state, has been casual or temporary contracts. It is said that this situation has had a significant effect on his earnings and on the financial security of his family. He is now back in permanent employment.

12 His position, simply put, is that ‘but for’ the unlawful disclosure he would not have lost his job, and suffered the financial loss to which he refers. He says that his circumstances satisfy the words of s 55(4)(b) – ‘the applicant has suffered financial loss … because of the conduct of the public sector agency’.

13 The NSWFB’s reply is that it was not the conduct of NSWFB in disclosing the information that caused him the financial loss, it was his own conduct in breaching the terms of his employment contract. If the Tribunal is of the view that a causal link is established, the NSWFB’s alternative submission is that the award of compensation is discretionary, and in the present circumstances, essentially on public policy grounds, there should be no award.

(1) Causal Link

14 ‘Conduct’ is a term with a specific meaning in the scheme of Part 5 of the Act, where s 55 is found. Section 52 provides relevantly:

‘ 52 Application of Part

(1) This Part applies to the following conduct:

(a) the contravention by a public sector agency of an information protection principle that applies to the agency,

(b) the contravention by a public sector agency of a privacy code of practice that applies to the agency,

(c) the disclosure by a public sector agency of personal information kept in a public register.

(2) A reference in this Part to conduct includes a reference to alleged conduct.’

15 So if this definition is incorporated into s 55(4)(b) (replacing the word ‘conduct’ with its defined meaning), that provision would read as requiring the Tribunal to be ‘satisfied that the applicant has suffered financial loss … because of the contravention (or the alleged contravention) by a public sector agency of an information protection principle that applies to the agency.’

16 In support of its submission that there was no causal link, NSWFB referred to the case of NR and NP v Roads and Traffic Authority [2004] NSWADT 276. The Tribunal found that the respondent agency had committed a contravention of the Act in disclosing, in connection with a registration renewal inquiry, address information to a third party enquirer still in possession of the registered vehicle about the registered owner (the applicant was the registered owner, the inquirer his estranged de facto partner). It was submitted that this disclosure led to the estranged partner finding out where the applicant now lived, arriving at his new home assaulting him and assaulting his sister. The applicant and his sister claimed damages. The Tribunal said:

‘53 The events of 14 July can not, the Tribunal considers, be linked in any sensible way to the disclosure that occurred at the RTA when the registration renewal notice was given to J. The Tribunal has already found that it is satisfied that J knew the address precisely when she attended on the RTA. Moreover, she had known, the Tribunal considers, for some time the general details of NR’s whereabouts, such details as the fact that he was living at his sister’s place, the street name and the suburb. Given the animosity that existed between the parties, especially after the unexplained non-return of L [a child of the relationship on an access visit to the applicant], she would, the Tribunal thinks, have speedily tracked down NR even if she had not had the street number.

54 The pre-condition for monetary compensation required by s 55(4)(b) – ‘that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency’ – is not made out.’

17 The Tribunal is satisfied that, in April 2003 prior to the verification being provided by the NSWFB, the Council was specifically concerned that the applicant had been paid on sick leave whilst attending call outs for the NSWFB; and it had those concerns independently of the information supplied by NSWFB. The applicant acknowledged in evidence that he would have been duty-bound to answer truthfully questions put to him by his manager as to his whereabouts on the days the subject of leave claims.

18 So in one sense it can be said that the applicant’s misconduct ‘caused’ his termination, and the consequent financial losses.

19 But in my view the role the disclosure by the Council played in his termination can not be ignored. The Information Protection Principles are directed at the way in which agencies manage their records of personal information. The Principles are a form of procedural regulation intended to limit to specific circumstances the circulation of personal information. The Principles establish rules additional to those that may have applied in the past to the provision of personal information derived from, or contained in, administrative records. Decisions are often made on the basis of the contents of administrative records. The mere fact that the records disclose misconduct does not mean that ‘anything goes’ in relation to compliance with the Information Protection Principles. The argument put by NSWFB in this case seeks to deflect attention from the fact of the breach.

20 The disclosure armed the Council with crucial information supporting its suspicions. In my view the disclosure was clearly a cause of the termination and the consequent financial loss, though I accept that the substantive grounds for termination were the findings of misconduct. In my opinion, the contravention does not have to be the only ‘cause’ or the most immediate ‘cause’ of the financial harm of which the applicant complains. In the case of NR and NP, the information supplied was in no way critical to the action taken by the person to whom it was given. Here it was critical.

21 The ‘but for’ test to which the applicant has referred, as the way of judging whether a causal link is established was mentioned in FM v Vice Chancellor, Macquarie University [2003] NSWADT 78 (16 April 2003) (set aside in part by the Appeal Panel, and wholly by the Court of Appeal in Vice-Chancellor Macquarie University v FM [2005] NSWCA 192; but not affected in relation to this point). The Tribunal said:

‘103 The requirement that any loss or damage be “because of” the conduct reflects the common law requirement that the damage must be caused by the conduct in question. The “but for” test is generally applied to torts and is relevant to these proceedings. Pursuant to the “but for” test, the conduct caused the damage if that damage would not have occurred without (but for) it. ( March v Stramare (1991) 171 CLR 506.) In other words, did the conduct in question make any difference to the outcome?’

22 Some care should be taken, as I see it, in drawing strict analogies with the common law principles as they have developed in the law of torts and the law of contract.

23 In my view the award of statutory damages in Privacy Act matters remains a discretionary one even where a causal link sufficient to satisfy s 55(4). That the position under this statute is less automatic is reflected, I consider, in the language of the opening words of s 55(2):

‘On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter , or it may make any one or more of the following orders’ (Emphasis added).

24 These words do not preclude the possibility that the Tribunal might find a contravention, might find a causal link between the contravention and harm suffered and make no order. The matter of what to do after reviewing the conduct is left entirely to the Tribunal. Then if it is minded to make an order involving payment of damages the rule in s 55(4)(b) comes into play. It does not follow that if a causal link to satisfy s 55(4)(b) is found that the Tribunal must award damages. It still remains a discretionary matter. As I see it, there is no ‘right’ to compensation in the way that might be the case under common law principles in tort and contract.

25 There is little authority relating to the award of damages in privacy cases. The applicant’s submissions referred to the case of Rummery and Federal Privacy Commissioner and anor [2004] AATA 1221 (22 November 2004) where the Tribunal dealing with a case arising under the federal legislation was unable to find any direct authorities on the question and saw it as appropriate to refer to cases interpreting similar provisions in other legislation. In line with that thinking, the submissions referred to an IRC decision, D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 where, breach having been shown, the IRC took account of the fact that otherwise the employee would have enjoyed many years of continuing permanent employment, and awarded him the lost wages that had resulted, limited to six months after dismissal. See also Gamble v Alaska Air Pty Ltd [2005] NSWIRComm 1063.

26 NSWFB submits that, as a discretionary matter, the Tribunal should decline to award compensation in circumstances where the IRC has already assessed and awarded compensation in relation to the dismissal in accordance with s 89(5) of the Industrial Relations Act 1996; the applicant was required to give an undertaking to the IRC under s 90 of the Act that he would apply for redress in relation to the dismissal; and the conduct of the applicant was found by the IRC to be unacceptable and warranted severe disciplinary action.

27 In this case it is clear that the Council already had a reasonable suspicion that the applicant was breaching his conditions of service, by taking paid leave and using this time to earn remuneration at his secondary employment. Had the NSWFB examined its obligations under the Privacy Act before making the disclosures (there was no evidence that it even turned its mind to the Privacy Act), and reached the same conclusion as that ultimately reached by this Tribunal, it would have refused to assist the Council. It seems to me that this would not necessarily have brought the investigation to an end.

28 As pointed out by counsel for the NSWFB through cross-examination of the applicant, and in submissions, it would have been open to the Council to demand the information from the applicant. (The Tribunal notes in passing that such an approach is in fact consistent with a key theme of the Act – that wherever practicable, information be collected directly from the subject of the information: see, for example, s 9 (collection of personal information directly from individual).)

29 In my view it is quite likely that the applicant would have been the subject of interrogation as to his absences, if the Council had not given information to the NSWFB, and it would have occurred some time in May 2003; and the same action would, in all probability, have ensued. It is clear from the material that the applicant’s managers had serious concerns about his absences and their justification.

30 I think that in exercising the discretion to award compensation factors of the kind mentioned should be given weight. I should also, I think, take into account the outcome of the IRC proceedings. While the IRC thought that the employer had acted too harshly, there was no application by the applicant for reinstatement in his employment.

31 The Tribunal accepts the submission of counsel for the applicant that the Tribunal is not required to subordinate itself to the industrial outcome. If appropriate, the Tribunal could award damages for loss of wages in addition to those that might have been recovered in industrial proceedings. But the Tribunal does not see this as the kind of case in which any extra award for loss of wages should occur.

32 This case is not unlike FM, previously mentioned, where the Appeal Panel, on extension to the merits, found a contravention (later set aside by the Court of Appeal), but did not award compensation. The Tribunal was satisfied that the applicant could not claim that he had lost the opportunity of a postgraduate scholarship that he had been granted when the information obtained by his university (including but not confined to the unlawfully disclosed information) clearly showed that he would not have been enrolled, had the true picture been known.

Conduct Order

33 The applicant’s proposal is that a general order be made requiring NSWFB to comply with ss 17 and 18 of the Privacy Act in respect of its use and disclosure of personal information. In my view such a general order would serve little purpose. This case will, I think, have at least reinforced for the NSWFB the need to handle recorded personal information in its possession in a manner which conforms with the Information Protection Principles.

34 The Tribunal referred at [19]-[28] of the earlier decision to various guidelines and statements issued by NSWFB since the passage of the Privacy Act relating to privacy and confidentiality issues. It rejected the evidence of a senior officer of the NSWFB that occurrence books are public documents.

35 There is value in making an order which focuses on the management of occurrence books. The terms of the order proposed by NSWFB are rather vague. In my view, a more concrete version of the order is appropriate.

36 In my view the order should be that the NSWFB formulate, after appropriate consultation, a statement relating to the use and disclosure of personal information contained in occurrence books; to do so within 6 months; and to place the statement in the occurrence books or in some nearby location where it can be readily consulted. The final recommendation is made because, as I have understood the evidence in this case, the occurrence book is found at many locations which operate intermittently and are attended by part-time staff such as retained firefighters.

37 If the order needs variation or is impractical in some other way, then, in my view, these variations can be lift to the Privacy Commissioner to effect. In the case of RD v Department of Education and Training [2005] NSWADT 195, where I awarded compensation ($2000), I made a conduct order (relating to address procedures in connection with sensitive correspondence) which included the words ‘any variation of these procedures only to occur if approved by the Office of Privacy Commissioner’. A similar term is appropriate in this case.

Respondent’s Application for Costs of Adjournment, 8 August 2005

38 The final hearing was listed to proceed on 8 August 2005 in line with directions made on 27 April 2005. The applicant’s material was required to be filed and served by 8 June 2005, and the respondent’s material by 20 July 2005.

39 On Monday 8 August 2005 the NSWFB appeared, represented by Mr Prince of counsel instructed by Mr Macken, solicitor. Ms Gemma Lowe, Industrial Officer, New South Wales Fire Brigade Employees’ Union (the applicant’s union) appeared for the applicant. Ms Lowe sought and was granted an adjournment to enable her to file further material. The hearing was adjourned to 19 September 2005. The NSWFB made an application for its costs of the adjournment, as assessed. The application is opposed.

40 The usual rule in proceedings in the Tribunal is that each party bears costs. Section 88(1) of the Administrative Decisions Tribunal Act 1997, however, allows the Tribunal to make an order for costs in ‘special circumstances’:

‘(1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.’

41 The Tribunal has, in various decisions and through Practice Note 12, sought to give guidance as to situations which might involve ‘special circumstances’. A late application for an adjournment is such a situation.

42 Ms Lowe in opposing the application points to attempts made by her to obtain the adjournment with the consent of the respondent prior to the day of hearing: see her affidavit, Ex E in the proceedings.

43 On 2 August 2005, six days before the list date, she contacted the NSWFB’s solicitor (Mr P Macken of Leigh Virtue & Associates (the law firm)) to ascertain whether everything was in order for the hearing, and he said that he had nothing from the NSWFB. She says: ‘This surprised me, as I understood that the documents filed by the Union on behalf of NW had been sent on 10 June 2005 [to the law firm]’. The affidavit annexes a copy of a covering letter from the NSWFB dated 10 June 2005. The Tribunal’s records show that the affidavit was filed at the Tribunal on 8 June 2005. This information points towards the likelihood that the affidavit was dispatched to the law firm in an orderly way.

44 In light of the NSWFB’s solicitor lack of awareness of the affidavit and the possibility that they may not be ready to proceed, she raised with him on 2 and 4 August 2005 the possibility that they make a consent application for adjournment. Had this occurred then possibly the costs of counsel’s attendance on the day would have been avoided. She said that she attempted to fax the proposed affidavit in draft form, but ‘later realised, just prior to the hearing that the fax did not go through despite a number of attempts.’

45 So the position we have is that Mr Macken, the solicitor for NSWFB, was on notice by Tuesday 2 August that the applicant wished to adjourn the proceedings and the basis for the request was made clear. He knew by Thursday 4 August 2005 that there was in existence a draft affidavit and that Ms Lowe was intended to send it immediately. As it transpired, he did not see it until the Monday morning before the Tribunal hearing was due to commence. Ms Lowe’s affidavit evidence as to what occurred then was not contested. Mr Macken consulted the NSWFB’s legal officer over the contents of the affidavit (the applicant was the deponent, and he gave an account of the conversation where a senior officer of the Council informed him that the information given by NSWFB was the reason for his dismissal). She reports Mr Macken as saying after looking at the affidavit – ‘If you insist on using this affidavit then we will need to adjourn. I will check with Shane Prince, our barrister.’ She was then informed that Mr Prince was of the same view. She said in conclusion that at no point prior to the hearing, despite the various conversations with Mr Macken, was it indicated that the respondent would apply for costs or that the adjournment was a problem. Her evidence was not disputed.

46 As I see it, Mr Macken was apprised of the possibility of new evidence, and would, I think, had he inquired, been able to see that the evidence bore on an issue of importance in the case. In these circumstances an adjournment would have been necessary. He had also just become aware that the applicant had some time ago filed other material, and that would need to be assessed. These factors all favoured a co-operative response to Ms Lowe’s request. On the other hand, it may be the case that Mr Prince was already briefed in the matter. Moreover, the applicant had had plenty of time to put on the affidavit in relation to the conversation; and this situation might then not have arisen.

47 In my view there should be an order for costs limited to the costs of counsel’s attendance if he was briefed before Tuesday 2 August 2005 to appear on Monday 8 August 2005. If he was not briefed at the time of Ms Lowe’s contact with Mr Macken on 2 August 2005, then there should be no order for costs. In any case this order does not extend to Mr Macken’s costs.

Order

1. Pursuant to s 55(2)(c) of the Privacy and Personal Information Protection Act 1998, that the respondent agency formulate, after appropriate consultation, a statement of practice in relation to the use and disclosure of personal information contained in occurrence books; to do so within 6 months; and to place the statement in the occurrence books or in some nearby location where it can be readily consulted. Any variation of the terms of this order only to occur if approved by the Office of Privacy Commissioner.

2. Applicant to pay the respondent’s costs of counsel’s attendance on 8 August 2005, if he had been briefed prior to 2 August 2005.