NZ v Director General Department of Housing

[2006] NSWADT 173

Pending Appeal:

CITATION:	NZ v Director General, Department of Housing [2006] NSWADT 173
DIVISION:	General Division
PARTIES:	APPLICANT NZ RESPONDENT Director General, Department of Housing
FILE NUMBER:	043220
HEARING DATES:	13/12/2005
SUBMISSIONS CLOSED:	12/13/2005
DATE OF DECISION:	06/07/2006
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	Review of conduct of public sector agency
MATTER FOR DECISION:	Orders
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Civil Liability Act 2002 Legal Profession Act 1987 Privacy Act 1988 (Cth) Privacy and Personal Information Protection Act 1998 Sex Discrimination Act 1984 (Cth)
CASES CITED:	NZ v Attorney General's Department [2005] NSWADT 103 NZ v Director General, Attorney General's Department (GD) [2005] NSWADTAP 62 NZ v Director General, New South Wales Department of Housing [2005] NSWADT 58 Rummery and the Federal Privacy Commissioner and anor [2004] AATA 1221 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 A and The Secretary, Department of Defence, Fed. Priv. Hdbk (CCH) [13-020] RD v Department of Education and Training [2005] NSWADT 195 Bourhill v Young [1943] AC 92 Beavis v Apthorpe (1962) 80 WN (NSW) 852 Havenaar v Havenaar [1982] 1 NSWLR 626 FM v Macquarie University [2003] NSWADT 78 NW v New South Wales Fire Brigades (No 2) [2006] NSWADT 61 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 187 CLR 384 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273
REPRESENTATION:	APPLICANT L Goodchild of counsel instructed by P Baker, solicitor RESPONDENT D M Loewenstein of counsel instructed by J Eccleston, solicitor, Department of Housing
ORDERS:	The Tribunal orders:; 1. Pursuant to s 55(2)(a), that the Department pay to the applicant damages of $4,000; 2. Pursuant to s 55(2)(e), that the Department render a written apology to the applicant for disclosing personal information about the applicant to a third person without lawful authority; 3. Pursuant to s 55(2)(e), that the Department place all copies of the letter of 22 January 2002 in a sealed archival location, subject to controls of the kind referred to in para [68] of these reasons; 4. Pursuant to s 55(2)(d), that the reference to the applicant as ‘vexatious’ be removed from any file where that reference relies on the contents of the letter of 22 January 2002; 5. Pursuant to s 55(2)(e), that the Department notify the outcome of these proceedings to the recipient of the letter of 22 January 2002

REASONS FOR DECISION

1 The Department of Housing, the respondent, sent a letter to one of the applicant’s sisters (Ms CW) in response to allegations made anonymously against Ms CW over her eligibility for public housing, which said the following about the applicant:

‘… I am satisfied that the allegations [against Ms CW] are false. On balance I am satisfied with your explanation that the information has come from your sister [the applicant]. I confirm we discussed the possibility that [the applicant] may be a vexatious complainant.’

2 The applicant became aware of the existence of this letter dated 22 January 2002 on or about 4 August 2003, when it was produced in apprehended violence order (AVO) proceedings brought against her by another of her sisters at the Waverley Local Court (exhibit 9 in those proceedings forming part of a tender on 4 August 2003).

3 In January 2004 in accordance with the Privacy and Personal Information Protection Act 1998 (the Privacy Act), the applicant made the complaint to the Department that has given rise to these proceedings. The applicant was not satisfied with the outcome of the Department’s review of her complaint, and pursuant to s 55 of the Privacy Act lodged an application for review of the conduct by the Tribunal. (The applicant has commenced proceedings in the Tribunal under the Privacy Act against other agencies connected to the Waverley Local Court proceedings: see, for example, NZ v Attorney General's Department [2005] NSWADT 103; and NZ v Director General, Attorney General's Department (GD) [2005] NSWADTAP 62.)

4 The Tribunal found that the Department contravened the requirements of the Privacy Act in relation to the contents of the letter, as it involved the unlawful disclosure of personal information about the applicant, in contravention of s 18 of the Act, with no defence or other exception applicable. See NZ v Director General, New South Wales Department of Housing [2005] NSWADT 58.

5 As a contravention was established, and in accordance with usual procedure, the Tribunal adjourned the matter and made directions for a hearing in relation to the appropriate orders. Section 55, in particular s 55(2) and (4), governs the Tribunal in this regard:

‘ 55 Review of conduct by Tribunal

(1) If a person who has made an application for internal review under section 53 is not satisfied with:

(a) the findings of the review, or

(b) the action taken by the public sector agency in relation to the application,

the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53.

(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.

(3) Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997.

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

(a) the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and

(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.

(4A) The Tribunal may not make an order under subsection (2) (a) if:

(a) the applicant is a convicted inmate or former convicted inmate or a spouse, partner, relative, friend or an associate of a convicted inmate or former convicted inmate, and

(b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and

(c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate.

(5) If, in the course of a review under this section, the Tribunal is of the opinion that the chief executive officer or an employee of the public sector agency concerned has failed to exercise in good faith a function conferred or imposed on the officer or employee by or under this Act (including by or under a privacy code of practice), the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister (if any) for the public sector agency.

(6) The Privacy Commissioner is to be notified by the Tribunal of any application made to it under this section.

(7) The Privacy Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to a review under this section.’

6 Sub-section (4A) is not applicable to these proceedings. No consideration has been given to the exercise of the power found in sub-section (5). The Privacy Commissioner did not appear.

Orders Sought

7 The applicant seeks the following orders:

(a) maximum damages allowable, being $40,000, an amount reduced as against the following claims as to the true loss:

(i) compensation of $110,000 for psychiatric injury, hurt, embarrassment, loss of dignity, mental distress and mental torment

(ii) aggravated damages of $40,000

(iii) compensation for financial loss of $375 (medical reports), and out of pocket expenses, $475

(b) an apology from the Department for the release of personal information to a third party

(c) removal of the letter of 22 January 2002 from the Department’s file

(d) an order requesting a correction on all personal information files regarding the applicant held by the Department. That correction being the removal of any document or notation which refers to the applicant as being a vexatious person and any reference to the applicant as being the person responsible for complaints against members of her family to the Department

(g) should the applicant require assistance in the future regarding her housing needs, that the personnel to provide this assistance not be the same individuals with whom the applicant has been dealing over the last four years in relation to this and other related complaints.

Material before the Tribunal

8 Unlike many of the other proceedings in the Tribunal brought by the applicant, the applicant did, on this occasion, have the benefit of legal representation through a grant of legal aid. The following material is before the Tribunal:

· Submissions prepared on behalf of the applicant, filed 9 November 2005

· The report of Dr Peter Klug, Forensic Psychiatrist, dated 12 September 2005

· The report of Joan Lunz, Psychologist, dated 17 January 2003

· The report of Yvette M Hall, Psychologist, dated 4 August 2005

· The report of Patricia Jungfer, Consultant Psychologist, dated 5 October 2005 (briefed by the Department)

· Pages 2 and 3 of a letter from Hugo Rodriguez, Psychologist, dated 5 December 2005

· Submissions prepared on behalf of the Department, filed 12 December 2005.

9 The applicant has filed personally, not through her legal representative, copious material since the conclusion of the hearing. This was not done in accordance with any directions. That material has not been taken into account by the Tribunal.

Applicant’s Submissions at Hearing

10 The applicant asserts that the disclosure caused her severe psychiatric injury; that it may have had an impact on the AVO proceedings as it gave rise to an order that she not to engage in intimidating conduct; that the discovery of the disclosure occurred in the most distressing of circumstances, as a result of production of the letter (obtained from the Department under subpoena) in the AVO proceedings; that the behaviour of the Department amounted to ‘the circulation of false and unfounded allegations’ against a woman who was suffering a mental illness and was in a particularly vulnerable situation made more so by the circumstances of the AVO proceedings; that it has had an ongoing effect; that as a public housing tenant, she has now lost all faith in the Department, in particular in its respect for the duty of confidence that it owes to her and all tenants; that she has suffered a loss of dignity and has been upset, humiliated and embarrassed, exacerbated by the broadcasting of its views to a third party; and that she has been seriously distressed and inconvenienced by these proceedings.

11 The applicant has a condition known as severe agoraphobia, i.e. a morbid fear of being in an open space. She does not now leave her home, a unit in a public housing estate. For example, the applicant appears in proceedings at the Tribunal by telephone.

12 The claim made in these proceedings is that she only began to suffer from the condition of agoraphobia in 2002, and the condition developed in the context of, what she saw as, false allegations being made about her to the Department going to her eligibility to remain in public housing and to have the benefit of a concessional rent. The nature of these allegations was canvassed, to an extent, in the earlier decision; and they are also referred to in some of the other decisions made by the Tribunal resulting from proceedings brought by the applicant.

Respondent’s Submissions at Hearing

13 In its submissions the Department noted that before 4 August 2003:

(a) The applicant had sustained a post traumatic stress disorder, and chronic fatigue following upon injuries received in a motor vehicle accident in 1984. She was prescribed anti-depressants which she could not tolerate and did not attempt any alternative medication thereafter (report of Joan Lunz).

(b) The applicant suffered from anxiety and panic attacks and felt unsafe outside her home leading to the conclusions that ‘her symptoms are consistent with panic disorder with agoraphobia’ (report of Joan Lunz)

(c) The applicant appeared as at January 2003, i.e. before she saw the letter, to be ‘severely psychologically impaired’ (report of Joan Lunz)

(d) The applicant was diagnosed by Dr Liliane Goodman, her treating general practitioner, as having suffered from agoraphobia, panic attacks and social phobia since 2002 (report of Dr P Klug dated 12 September 2005).

14 Accordingly the Department submits that the applicant had, at the time the contents of the letter of 22 January 2002 became known to her, a pre-existing condition of severe psychological impairment.

15 The Department noted that Dr Klug, a psychiatrist who had been consulted by the applicant for the purpose of providing evidence in these proceedings, made no diagnosis of any exacerbation of the pre-existing severe psychological illness as a consequence of knowledge of the contents of the letter. The Department noted Dr Klug’s conclusion:

‘It appears from the history obtained and the documentation that I have reviewed and perused, that her current psychiatric state has been almost wholly caused by complex stresses involving her sibship who have misrepresented the situation to her with respect to property owned by her mother who died intestate in 1997 and unjustified allegations by Department of Housing and Centrelink.’
(As may be obvious, Dr Klug’s references to the conduct of the applicant’s sibship involves an acceptance of what he has been told unilaterally by the applicant.)

16 The Department noted that Dr Jungfer, who it had engaged to assess the applicant, stated that the applicant’s ‘psychiatric symptomatology she herself attributes to a large number of other actions as well as the release of documentation and letters …’. The Department noted that Dr Jungfer concludes that the applicant’s ‘current psychiatric symptomatology must be seen as a complex mix of multiple factors of which one small part is the provision of letters and provision of the opinion by the member of the Department of Housing.’

Relevant Principles: Damages Awards

17 In seeking to discern the appropriate principles in making an award of damages, the applicant’s submissions draw for insight, appropriately in my view, on rulings relating to damages made under anti-discrimination legislation.

18 The Privacy Act has some characteristics typical of administrative law statutes. For example it uses the language of ‘application for review’. In its details the Act imposes a number of administrative standards on public sector agencies. But it is clear that its remedies provisions draw on the models found in anti-discrimination statutes. Section 55 has a menu of possible orders beginning with damages and moving to orders which affect agency conduct. The making of an order is always discretionary. It is open to the Tribunal to decide not to take any further action even though a contravention may have been demonstrated.

19 The original information privacy legislation in Australia, the Commonwealth Privacy Act 1988 (the Commonwealth Privacy Act) conferred the power of determination to the Commissioner. The Commissioner was given the power to make declarations in the nature of monetary orders and conduct orders. Section 52 provides relevantly:

(1) After investigating a complaint, the Commissioner may:

(a) make a determination dismissing the complaint; or

(b) find the complaint substantiated and make a determination that includes one or more of the following:

(i) a declaration:

(A) where the principal executive of an agency is the Department – that the agency has engaged in conduct constituting an interference with the privacy of an individual and should not repeat or continue such conduct; or

(B) in any other case – that the Department has engaged in conduct constituting an interference with the privacy of an individual and should not repeat or continue such conduct;

(ii) a declaration that the Department should perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant;

(iii) a declaration that the complainant is entitled to a specified amount by way of compensation for any loss or damage suffered by reason of the act or practice the subject of the complaint;

(iv) a declaration that it would be inappropriate for any further action to be taken in the matter.

(1A) The loss or damage referred to in paragraph (1)(b) includes injury to the complainant’s feelings or humiliation suffered by the complainant.

20 A similar remedies model is to be found, for example, in the Anti-Discrimination Act 1977 (NSW) (the Anti-Discrimination Act) which at s 108 provides relevantly:

‘ 108 Order or other decision of Tribunal

(1) In proceedings relating to a complaint, the Tribunal may:

(a) dismiss the complaint in whole or in part, or

(b) find the complaint substantiated in whole or in part.

(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following:

(a) … order the Department to pay the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the Department’s conduct,

(b) make an order enjoining the Department from continuing or repeating any conduct rendered unlawful by this Act or the regulations,

(c) … order the Department to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,

(d) order the Department to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),

(e) …

(f) …

(g) decline to take any further action in the matter.

…

(7) If the Tribunal makes an order under subsection (2) (b), (c), (d) or (e), it may also order that, in default of compliance with the order within the time specified by the Tribunal, the Department is to pay the complainant damages not exceeding $40,000 by way of compensation for failure to comply with the order.’

21 The most detailed elaboration of principles that might be applied in the making of monetary compensation awards for breach of information privacy standards is to be found in the Commonwealth Administrative Appeals Tribunal decision, Rummery and the Federal Privacy Commissioner and anor [2004] AATA 1221 (Downes J (President), Constance SM, Miller M).

22 The AAT had before it a determination and declarations made by the Federal Privacy Commissioner under the Commonwealth Privacy Act. The complainant applied for review of the determination, his objection being that, despite a finding of a serious contravention of the Information Privacy Principle relating to unlawful disclosure, the Commissioner had not made an award of damages though the Commissioner did make various conduct orders.

23 The AAT upheld the application for review, varied the determination and ordered the Department to pay $8,000 by way of compensation. The AAT noted that there were no precedents going to the question of the principles to be used in awarding damages under s 52. It noted the similarity in the terms of s 52 with the provisions of the Commonwealth Sex Discrimination Act 1984 (the Sex Discrimination Act), when first enacted, and referred to s 81 of that Act (a provision along similar lines to the provision quoted earlier from the NSW Act).

24 In Rummery the applicant had sought $200,000 (the Commonwealth Privacy Act does not contain a damages cap, in contrast to the NSW Act). The applicant contended that the breach of privacy had caused loss of his employment with the department.

25 The AAT referred to the need for a restrained approach to awards of damages in relation to legislation of the kind that Privacy laws represent – a type of human rights measure – so as not to undermine their public policy objectives and respect for these laws. It also referred to the possibility of making an additional award by way of aggravated damages. There was in Rummery substantial evidence of a conduct on the part of the agency that went well beyond the conduct which might be expected necessary for the ordinary defence of a claim.

26 The way the Federal Court had approached the application of s 81 of the Sex Discrimination Act in Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 commended itself to the AAT. Influenced by that case, the AAT formulated the following principles to guide the determination of damages in Commonwealth Privacy Act matters:

‘The principles which are relevant to this matter are:

(a) where a complaint is substantiated and loss or damage is suffered, the legislation contemplates some form of redress in the ordinary course;

(b) awards should be restrained but not minimal;

(c) in measuring compensation the principles of damages applied in tort law will assist, although the ultimate guide is the words of the statute;

(d) in an appropriate case, aggravated damages may be awarded;

(e) compensation should be assessed having regard to the complainant’s reaction and not to the perceived reaction of the majority of the community or of a reasonable person in similar circumstances.’

27 This approach is in line with an early determination of the Federal Privacy Commissioner, Complaint Determination No 1 of 1993, A and The Secretary, Department of Defence, see Federal Privacy Handbook (CCH) [13-020]. The complainant, formerly a member of the Army, had, following discharge from the Army, been dismissed from a civilian position before commencing duties. The Commissioner found that this was the ‘probable result’ of an unauthorised disclosure as to the circumstances of his discharge by a senior officer in the Army.

28 The Commissioner awarded damages, in the total amount of $5,000.

29 Under the heading ‘economic loss’ the Commissioner said that the complainant had ‘lost the opportunity to establish a career in which he was interested and expected to find fulfilling’. He was awarded compensation for the loss of 30 days’ salary and the loss of the use of a vehicle for that time. The total award for economic loss was $2,500.

30 As to the ‘non-economic loss’ component, the Commissioner referred to the considerable humiliation and embarrassment the complainant had suffered after arriving at the workplace to start work only to find that he was now to be dismissed in light of the contents of the unlawful disclosure. The Commissioner said:

‘While the ramifications of the disclosure were serious for A, they do refer to an isolated incident and the damage is, in my view, restricted to that event. I am of the view that having regard to all the circumstances of the case, compensation in the amount of $2500 for non-economic loss would be appropriate.’

31 In the present case there is clear evidence of the fragile mental health of the applicant. In Rummery, the AAT said at [46] of its reasons:

‘46. The final principle which emerges from the Hall decision, and which we consider is applicable in this matter, is that it is an applicant’s account of his or her reaction to a breach of the legislation (be it the discrimination legislation or the privacy legislation) which should guide the assessment of damages, and not the perceived reaction of the majority of the community or of a reasonable person in similar circumstances. As Wilcox J put it [in Hall v Sheiban ], at 256:
“...I do not think that it is helpful to test the evidence in the light of such matters as ‘reasonable community standards and expectation’; whatever they may be ...The damage is not to be ignored or discounted simply because the effect of the conduct on the complainant is unusually severe. Expressed in presently relevant pronouns, the rule is the same as in other areas of tort law: a sexual harasser takes his victim as he finds her.”’

32 To assist it in reaching a conclusion as to the appropriate amount, the AAT looked at the range of awards in privacy and discrimination jurisdictions around Australia for non-economic loss, and noted that they had been in a range up to $25,000, often at the lower end.

33 It did not look at settled privacy complaints as reported in the annual reports of Privacy Commissioner’s offices. By way of further illustration as to the ‘range’ of damages, it is helpful to take two illustrations, as reported in the Eighth Annual Report (1996) of the Federal Privacy Commissioner (AGPS) at p 92:

‘ Personal details disclosed to foreign government – IPP 11 [unlawful disclosure]

An agency unnecessarily disclosed the complainant’s personal details to the embassy of a foreign government. As a result of this disclosure the complainant had to renounce her Australian citizenship. The agency acknowledged the disclosure as soon as it came to their attention, and took steps to prevent a re-occurrence. The agency also assisted the complainant to regain her Australian citizenship. She was given over $21,000 in compensation. This consisted of $7,500 for general damages and the remainder for direct economic loss in costs incurred in ensuring that her overseas property was not confiscated.

All staff notice contains personal information – IPP 10 [unlawful use]

An agency agreed to pay a woman $10,000 compensation for her embarrassment over two notices sent to all staff at a government establishment. When the complainant reported that she had legionnaire’s disease, a notice was sent to all staff, naming her and explaining that as she had this disease the airconditioning towers were to be cleaned. A later notice advised incorrectly that the woman did not have legionnaire’s disease. The woman felt humiliated by the probability that her co-workers may have interpreted this to mean that she had invented an illness.’

34 In Rummery, the AAT concluded:

‘53. In assessing the appropriate amount of compensation we have considered Mr Rummery’s evidence as to his feelings when he learned of the details of the disclosures made by Mr Keady [the head of department]. This was clearly a serious breach in Mr Rummery’s eyes.

54. It is our opinion also that this was a serious breach. We have had regard to this in assessing the significance of Mr Rummery’s evidence as to the injury to his feelings and humiliation. It assists us in assessing the depth of his feelings. It is quite inappropriate for a senior officer of a law department to seek to answer a complaint made under specific provisions in Commonwealth legislation by a private telephone conversation not disclosed by the officer to the complainant, the substance of which answer is to concentrate on the character and conduct of the complainant apart from the subject matter of the complaint and not to concentrate on addressing the complaint and its content. This is playing the man and not the ball. It is as unfair in public administration as it is in sport.

55. Taking all relevant factors into account we are of the opinion that a restrained, but not minimal, award of compensation is $8,000.’

35 In my view the approach taken in Rummery and in the Federal Privacy Commissioner rulings and complaint summaries is generally appropriate to cases arising under the NSW Privacy Act.

36 I have made an award of damages under the Privacy Act in one previous case, RD v Department of Education and Training [2005] NSWADT 195 (19 August 2005), which involved an unlawful disclosure. I said:

‘31 The Tribunal is satisfied, in terms of the requirement of para (b) of sub-s (4) of s 55 , that ‘the applicant has suffered ... psychological ... harm, because of the conduct of the public sector agency’. The report of Dr Dragutinovich suffices in that regard.

32 Equally it is clear that this error is only one factor contributing to the state of the applicant’s present psychological condition. The gossip and rumour to which he referred at hearing was, it would seem, the major source of the psychological harm that he has experienced in recent years. On the other hand, the Tribunal accepts that he would have been, as he suggests, quite apprehensive in the lead-up to a HealthQuest interview, and the non-resolution of the problem once it became known on 23 February 2005 exacerbated his psychological condition. The Department’s evidence did not explain why once the letter had been returned ‘not known at address’ (the internal review report refers to a Departmental officer’s recollection of this problem – paras 12 and 13), some follow-up action was not taken.

33 It may be that in circumstances of this kind, where it would appear that the error was not remedied at the first point at which it could reasonably have been identified as having occurred, some punitive component should be incorporated into the damages award. The Tribunal will not explore that issue any further on this occasion.

34 The applicant’s claim for damages is a modest one. There is sufficient evidence here to support an assessment of $2000 for psychological harm.’

Assessment

37 The Tribunal has considered the various expert reports. It agrees with the main point of the Department’s submissions that the applicant’s present condition belongs to a continuum that commenced well before 4 August 2003, the date when she became aware of the contents of the letter.

38 As Dr Klug’s report notes, by August 2003 the applicant had been embroiled for some time in disputes with the Department of Housing over its claim that she had understated her asset position and attempts by it to have her evicted for non-payment of rent (which had been adjusted to a higher level than she had paid previously, and which she refused to pay). She had also had action taken against her Centrelink pension (she has been on a disability support pension since the car accident in 1984). She believed that she had been the subject of scurrilous allegations made to the Department, possibly by one or more of her sisters. Contention between the applicant and her siblings would appear to date from the time shortly after their mother died in 1997. The mother had died intestate. She had ownership interests in several properties, as well as personal effects. The applicant did not regard herself as fairly treated by her siblings in relation to the division of the assets (see Lunz report, p 3).

39 The fullest account, I consider, of the applicant’s reaction to revelation of the opinions expressed about her in the letter of 22 January 2002, is to be found in the report of Dr Jungfer. The report outlines the various reasons why the applicant feels that she is being persecuted by her siblings and the Department. As to the incident under notice in these proceedings, Dr Jungfer said:

‘In the course of the AVO’s being instituted [by other siblings and relatives of them] [the applicant] became aware of documents from the Department of Housing, she believes the Department of Housing has conspired with her family and neighbours to persecute her and to assist in obtaining the AVO. It is in the context of these letters being used in the AVO that she has pursued a breach of privacy under the Privacy Act and the subsequent Tribunal assessment.’

40 Dr Jungfer notes at [4.2] of her report:

‘[The applicant] reports that the onset of her difficulties was at the time of the eviction notice and the false allegations regarding real property and understatement of income. At this time she described that she became fearful, anxious, suffering from panic attacks and that she was no longer able to leave her home independently.’

41 The report refers to the deterioration in her condition, to the stage now where she is fearful of any contact with strangers including visitors such as workmen. The report states at [4.5] that she has ‘multiple persecutory ideas regarding her sister and neighbour and also makes multiple allegations regarding their conduct’.

42 The report states at [4.8] that she ‘has an intense sense of being wronged by the Department of Housing’. It continues:

‘She believes that their actions were all inappropriate but cannot explain why they should chose to target her for these actions. She is quite clear that the psychiatric symptoms started in 2001, with a deterioration when the AVOs were taken out in 2003. It would appear that the discovery of the documents from the Department of Housing were a component that contributed to her mental state but was not the sole explanation for her mental state.’

43 It is not necessary to set out any more fully in these reasons the assessment provided by Dr Jungfer. It goes on to deal with such matters as the applicant’s personal and family history, an examination of documentation provided by the applicant, comments on her style of interaction with outside organisations and legal practitioners (At [7.8]: ‘The ongoing provision of correspondence to myself within the 24 hours of having seen her would suggest that she has a fairly persistent interactional style.’), her mental state, a medical diagnosis and a prognosis.

Conclusions

44 So far as s 55(4) is concerned, the Tribunal is satisfied that a causal link is established by these reports as between the revelation to the applicant of the contents of the letter of 22 January 2002 and her present psychological condition. The difficulty lies in assessing the extent to which the revelation can be said to have contributed to, or exacerbated, that condition.

45 The applicant’s claims that the distress and humiliation she has suffered would, if there was no cap, warrant an award of $110,000 damages.

46 In my view, at most only an aspect of the applicant’s current state of health can be attributed to the particular event that is the subject of these proceedings. I accept, in general, the view expressed in Rummery that the errant agency must take the individual harmed as he or she presents, and it is the impact on the victim that is to be assessed (similar to the ‘egg shell skull’ theory of tort law: see Bourhill v Young [1943] AC 92 at 109-110 per Lord Wright; Beavis v Apthorpe (1962) 80 WN (NSW) 852 at 857 per Herron CJ; Havenaar v Havenaar [1982] 1 NSWLR 626 at 631 per Glass JA). Some people will have a more severe reaction to an event than others.

47 In light of the expert material, and the applicant’s copious filings made prior to hearing setting out the harm she suffered in her own words, I accept that the applicant had a reaction to the contents of the letter that was a heightened or severe one, affected as she was already by deep levels of anxiety and a propensity to panic attacks. The letter contained seriously negative opinions about her. It was transmitted, initially, only to her sister. It received wider currency as a result of being produced in court.

48 In my view any person would have been upset to see opinions of the kind contained in the letter spread about in this way. The Department, having put into circulation negative comments about a person, was at risk, unbeknown to them, that the letter might be used by a person advantaged by its contents in a way hostile to the subject of the comments. This was especially possible in the charged environment of the relationships that existed among some of the members of the applicant’s family. The applicant, with her condition, was likely to be more upset than a person without such a condition; and the Department must accept that.

49 In my view this is a case where there should be an award. I accept that there may be exceptional cases where a causal connection might be shown but, in its discretion, the Tribunal might decline, as the Privacy Act contemplates, to make no award by taking no further action, or no further action of that kind (see further, FM v Macquarie University [2003] NSWADT 78 at [100] per Hennessy DP, NW v New South Wales Fire Brigades (No 2) [2006] NSWADT 61 at [26]-[32]).

50 In my view, an appropriate award for the pain and suffering caused to the applicant by the disclosure, taking account of all these factors, and having regard to the various considerations canvassed in Rummery, is $4,000.

51 I have already taken into account the special impact on the applicant of the disclosure, and I do not see any need to consider a further award in that respect by way of ‘aggravated’ damages.

52 The applicant also seeks an award for ‘aggravated damages’ that involves a form of reproof or chastisement of the Department going beyond that which is effected by the making of an award of damages of the usual kind. This type of award is more usually referred to in tort law as an award of ‘exemplary’ or ‘punitive’ damages. Rummery is a good illustration of a case where the conduct of the agency in defence of the claim was so egregious that such an award might well have been made. But the award ultimately made was global, and there was no express reference by the AAT to the inclusion within it of a ‘punitive’ or ‘exemplary’ element. I should add that I do not see any difficulty in awarding aggravated or exemplary damages if the case justifies it. There was a passing reference to the possibility of a ‘punitive’ component to a damages award in a privacy case in my earlier decision, previously mentioned, RD, at [33].

53 The circumstance warranting chastisement, the applicant submits, is the alleged failure of the Department to inform the applicant of the ‘genesis’ of the letter that was sent on 22 January 2002. In the Tribunal’s view, the basic circumstances giving rise to the letter are clear.

54 Nor do I think, contrary to the applicant’s submissions, that an inference is open to the Tribunal that the Department was somehow motivated by malice or ill-will towards the applicant in the actions it took in investigating the allegation against Ms CW. Allegations of this gravity must be the subject of clear and weighty proofs.

55 Civil Liability Act. There is a further argument by the Department that the provisions of the Civil Liability Act 2002 (Civil Liability Act) bear on the assessment of compensation in this case.

56 The Department’s interpretation of the legislation depends on a literal and mechanical reading divorced, in my view, from its context (the Department refers for example to the definition of court as including tribunal (s 3), the definition of damages as including ‘any form’ of monetary compensation (s 3), the definition of ‘injury’ as including any form of mental impairment (s 11), and then seeks to impose on these proceedings the various rules in the Act to do with proof of non-economic loss, including the impairment thresholds for damages set down by the Act).

57 The long title of this Act is:

‘An Act to make provision in relation to the recovery of damages for death or personal injury caused by the fault of a person; to amend the Legal Profession Act 1987 in relation to costs in civil claims; and for other purposes.’

58 There is nothing in the long title to suggest that this Act was meant to impact on the calculation of a damages order under the Privacy Act. The s 55 Privacy Act jurisdiction is not, in any meaningful sense, a personal injuries jurisdiction. The Minister informed Parliament (see Hansard, Legislative Assembly, 2085 (28 May 2002) that the Civil Liability Act formed part of the ‘Government’s tort law reform program’. The Minister said: ‘[T]he approach of the courts to public liability is unsustainable … We need to protect our beaches and parks. We need our roads and schools to operate free from unrealistic standards – standards imposed by the courts with hindsight and with no regard for the cost to the community’. The concern clearly was personal injury litigation of the usual kind (motor car accidents, public liability claims against councils, professional malpractice suits and the like). For example, Part 1A is headed ‘Negligence’ and deals with such issues as duty of care, causation, assumption of risk and recreational activities. Part 2 is headed ‘Personal Injury Damages’ and deals with such issues as fixing damages for economic loss and for non-economic loss (including general damages), third party contribution and structured settlements.

59 The Department’s approach to the construction of the statute does not take account of recent High Court statements requiring that the context and purpose of the statute be first considered. For example, see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 per McHugh, Gummow, Kirby and Hayne JJ (footnotes omitted):

‘The context of the words, the consequences of a literal or grammatical construction, the purpose of a statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.’

60 See further, CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273 per McHugh ACJ, Gummow and Hayne JJ at [11].

61 I am of the view that order-making under the Privacy Act was not intended to be caught up in the net of the Civil Liability Act even though the Privacy Act is not found in the list of those statutory schemes expressly excluded from the operation of the Civil Liability Act by s 3B(1), among which is included the Anti-Discrimination Act. I see s 3B(1) as having been included out of an abundance of caution, and the omission of the Privacy Act does not thereby subject its award-making power to the provisions of the Civil Liability Act.

62 Economic Loss. The Department submits that the Privacy Act does not provide for the award of damages for economic loss. It is submitted that it restricts recoverable damages to losses attributable to pain and suffering. I see no impediment to including in a damages award under the Privacy Act a component for economic loss, provided there is a causal link.

63 The words of s 55(2)(a) refer to the award being ‘by way of compensation for any loss or damage suffered because of the conduct’. These are words of wide import. As cases such as the early Federal Privacy Commissioner case of A and The Secretary, Department of Defence illustrate, an interference with privacy might produce economic losses as well as non-economic losses. There is no reason, as I see it, to have expected the legislature to spell that out.

64 Moreover, s 55(4) refers expressly to a form of loss described as ‘financial loss’.

65 In any case I am not inclined to make a separate economic loss award for another reason. I do not have in the tendered material any proofs to substantiate the claim for fees in connection with Dr Hall’s reports (the claim is for $375), or for ‘past out of pocket expenses’ said to have been incurred by the applicant ($475). No award is made under this heading.

Conduct Orders

66 I turn now to the other orders sought.

67 The first is an apology from the Department for the release of personal information to a third party. At hearing the Department indicated its agreement to such an order.

68 The second application is for removal of the letter of 22 January 2002 from the Department’s file. In my view this should be done. The letter can be placed in a sealed archival location, with some link being held by an appropriate senior officer, in case for some reason in the future the linkage needs to be restored.

69 The third application is for

‘a correction on all personal information files regarding the applicant held by the Department. That correction being the removal of any document or notation which refers to the applicant as being a vexatious person any reference to the applicant as being the person responsible for complaints against members of her family to the Department.’

70 I am not satisfied on the material before the Tribunal that an order for correction should be made. However, I note that the Department is prepared to remove from its files reference to the applicant as vexatious. This is a helpful concession made, as I see it, with a view to resolving the dispute. I will order such a correction.

71 The fourth non-monetary order sought is that should the applicant require assistance in the future regarding her housing needs, that the personnel to provide this assistance not be the same individual with whom the applicant has been dealing over the last four years in relation to this and other related complaints. It is not appropriate for the Tribunal to give a general administrative direction of this kind. The head of the Department is responsible for the deployment of staff.

Orders

The Tribunal orders:

1. Pursuant to s 55(2)(a), that the Department pay to the applicant damages of $4,000.

2. Pursuant to s 55(2)(e), that the Department render a written apology to the applicant for disclosing personal information about the applicant to a third person without lawful authority.

3. Pursuant to s 55(2)(e), that the Department place all copies of the letter of 22 January 2002 in a sealed archival location, subject to controls of the kind referred to in para [68] of these reasons.

4. Pursuant to s 55(2)(d), that the reference to the applicant as ‘vexatious’ be removed from any file where that reference relies on the contents of the letter of 22 January 2002.

5. Pursuant to s 55(2)(e), that the Department notify the outcome of these proceedings to the recipient of the letter of 22 January 2002.