Ogbonna v Qantas Airways Ltd
[2018] WASC 378
•13 DECEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: OGBONNA -v- QANTAS AIRWAYS LTD [2018] WASC 378
CORAM: LE MIERE J
HEARD: 23 NOVEMBER 2018
DELIVERED : 13 DECEMBER 2018
FILE NO/S: CIV 2573 of 2016
BETWEEN: CELESTINE OGBONNA
Plaintiff
AND
QANTAS AIRWAYS LTD
First Defendant
QANTAS GROUND SERVICES PTY LTD
Second Defendant
DAWN BARKER
Fourth Defendant
Catchwords:
Practice and procedure - Summary judgment application - Whether fourth defendant has a good defence to breach of privacy claim and breach of confidence claim
Legislation:
Mental Health Act 2014 (WA), s 4, s 16, s 17, s 576
Privacy Act 1988 (Cth)
Result:
Summary judgment granted
Category: B
Representation:
Counsel:
| Plaintiff | : | In person |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Fourth Defendant | : | Mr T J Palmer |
Solicitors:
| Plaintiff | : | In person |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Fourth Defendant | : | Panetta McGrath Lawyers |
Case(s) referred to in decision(s):
Nil
LE MIERE J:
Summary
The plaintiff was an employee of the second defendant, Qantas Ground Services Pty Ltd, where he worked as a baggage handler. In his substituted statement of claim (SSOC) of 30 August 2018 the plaintiff makes claims against four defendants; Qantas Airways Ltd, Qantas Ground Services Pty Ltd, Western Psychiatry Pty Ltd and Dr Dawn Barker. Dr Barker is a consultant psychiatrist. She was engaged by Qantas Ground Services to assess the plaintiff and report on his fitness for work. In the SSOC the plaintiff makes claims against Dr Barker for breach of privacy and confidentiality. Dr Barker has applied for summary judgment against the plaintiff on the ground that she has a good defence on the merits. For the reasons which follow the court will grant summary judgment and judgment will be entered for Dr Barker.
Plaintiff referred to Dr Barker
By letter of 21 September 2015 Qantas Ground Services engaged Dr Barker to assess the plaintiff and to give to Qantas Ground Services her opinion as to the plaintiff's ability to return to his normal duties as an airline services operator and to answer particular questions put to her. Qantas Ground Services provided to Dr Barker information concerning the plaintiff's employment with Qantas Ground Services, his employment duties and events leading to the plaintiff being directed not to attend work. Qantas Ground Services provided to Dr Barker a number of documents together with its letter.
The plaintiff attended upon Dr Barker on 24 September 2015. The plaintiff signed two consent forms. The first was signed by the plaintiff on his own letterhead. It said:
I, Celestine Ogbonna hereby consent and authorise Dr Dawn Barker to provide an authorised representative of Qantas Ground Services or Qantas Airways Ltd ('Qantas') or medical officer as the Qantas nominated doctor with any information relating to my medical visit.
The second was a consent form provided by Dr Barker. In that form the plaintiff said that he had read the Independent Medical Assessment Information Sheet and Consent Form and:
I
…
(b)understand that the usual Doctor: Patient relationship does not arise in this case;
(c)agree to participate in the assessment;
(d)consent to a report being provided to the Referring Party
…
After the consultation Dr Barker sent a report dated 29 September 2015 to Qantas Ground Services. In the report Dr Barker said, amongst other things:
I explained to [the plaintiff] that this interview was undertaken for the purpose of performing a fitness for work assessment, and was not intended for conventional psychiatric assessment and treatment. [The plaintiff] consented to me submitting a report to you.
Qantas Ground Services arranged for the plaintiff to attend on Dr Barker again on 3 December 2015 and requested a further report from Dr Barker. The plaintiff did not attend that appointment. Dr Barker sent a report of 8 December 2015 to Qantas Ground Services. In that report Dr Barker said that she would 'endeavour to answer some of your questions based on the further information that has been provided by yourself and Qantas'. Dr Barker also said:
Again, as detailed in my original report, I believe that [the plaintiff] should be engaged in further assessments with his GP and a psychiatrist.
Dr Barker repeated her opinion that the plaintiff was not currently fit for his normal full‑time duties in a security sensitive work area and said that that opinion was unchanged from her previous report and referred to further incidents of which she had been informed by Qantas Ground Services.
Qantas Ground Services arranged a further appointment for the plaintiff with Dr Barker on 28 January 2016. The plaintiff did not attend that appointment. Dr Barker sent a further report of 28 January 2016 to Qantas Ground Services. In her report Dr Barker confirmed that her opinion remained the same as in her report of 8 December 2015. She referred to her original assessment on 24 September 2015 and the subsequent information provided to her by Qantas.
The substituted statement of claim
In [6] of his SSOC filed 30 August 2018 the plaintiff says that his claim is for defamation, breach of privacy and confidence, breach of employment contract, assault and battery, constructive dismissal and breach of duty of care while in the employment of Qantas Ground Services. Most of those claims relate to the first and second defendants. The plaintiff's claim against Dr Barker is pleaded at [51] ‑ [63] as follows. Mr Yeo, a representative of Qantas Ground Services, referred the plaintiff to see Dr Barker. The plaintiff consented to a report to be provided to Mr Yeo once Dr Barker completed her fit for work assessment for that visit only. The plaintiff understood the usual doctor patient relationship did not arise and knew that he had to consent to the report being disclosed to Mr Yeo for that visit only, and that further assessment would require his consent. For the 24 September 2015 visit the plaintiff understood that Dr Barker would prepare a report and provide copies to Qantas Ground Services and the plaintiff. Two other appointments, on 3 December 2015 and 28 January 2016, were scheduled for the plaintiff to attend. The plaintiff refused to attend those appointments. On 8 December 2015 and 2 February 2016 Dr Barker provided two separate reports to Dr Brown and Mr Meeham of Qantas Ground Services. When Dr Barker released the plaintiff's personal information to those persons without his consent it gave rise to an invasion of privacy. The 8 December 2015 and 2 February 2016 reports both contained the plaintiff's personal information. The plaintiff did not consent to Dr Barker releasing the personal information in the letters of 8 December 2015 and 2 February 2016.
At [61] of the SSOC the plaintiff pleads that the actions of Dr Barker constitute intentional or reckless intrusion upon privacy that would be highly offensive to a reasonable person, for which Dr Barker is liable. The plaintiff says that Dr Barker failed to take appropriate steps to guard against disclosing his personal information and as a result is liable for breach of privacy pursuant to the Privacy Act 1988 (Cth) and other related statutes. At [63] the plaintiff says that he claims damages resulting from Dr Barker's intentional breach of his right to privacy, aggravated and punitive damages and interest.
The summary judgment application
Dr Barker has applied for summary judgment. Her application is supported by affidavits sworn by her solicitor, Gemma Louise McGrath on 18 September 2018, 4 October 2018 and 15 November 2018.
The plaintiff opposed the application and relies upon his affidavits sworn on 31 October 2018 and 14 November 2018. The plaintiff applied for leave to issue a subpoena to Dr Barker to attend and give evidence. I refused leave on the ground that there was no sufficient reason to do so. In particular, the plaintiff did not identify any fact or matter which he wished to adduce from Dr Barker, or about which he wished to question Dr Barker, which was relevant to the issues in this summary judgment application.
Breach of privacy claim
In the SSOC paragraph 61 the plaintiff pleads that Dr Barker is liable for breach of privacy pursuant to the Privacy Act. In his written submissions of 8 November 2018 the plaintiff said that it is common practice for parties to include relevant pieces of legislation to support their argument in a pleading but he does not intend to rely on the Privacy Act or Mental Health Act 2014 (WA) to further his case.
This court does not have jurisdiction to determine a claim for breach of the provisions of the Privacy Act. In general, the Privacy Act provides that the remedy for a person who alleges a breach of a provision of the Act is to complain to the Information Commissioner. Only after such a complaint has been determined may action be taken in a court and such action must be taken in the Federal Court or the Federal Circuit Court. Part VIII of the Privacy Act does provide for the extension of certain obligations of confidence and for a right of action in that regard. However, that part only applies to obligations arising in certain circumstances. They do not apply in this case.
Mental Health Act
The plaintiff's oral submissions were primarily directed to the provisions of the Mental Health Act. The plaintiff's principle submission was that Dr Barker has contravened s 576(2) of the Mental Health Act. Section 576 is:
Confidentiality
(1)In this section ‑
relevant written law means any of these written laws ‑
(a)this Act;
(b)the Mental Health Act 1996;
(c)the Mental Health Act 1962.
(2)A person must not (whether directly or indirectly) record, disclose or use any information obtained by the person because of ‑
(a)the person's office, position, employment or engagement under or for the purposes of a relevant written law; or
(b)any disclosure made to the person under this Act, including in response to a request made under section 448(1), 572(3), 573(3) or 574(3).
Penalty:a fine of $5,000.
(3)Subsection (2) does not apply in relation to the recording, disclosure or use of statistical or other information that is not personal information.
(4)A person does not commit an offence under subsection (2) if the recording, disclosure or use of the information is authorised under section 577(1).
Section 576 prohibits a person recording, disclosing or using any information only if the information was obtained by that person because of the person's office, position, employment or engagement under or for the purposes of a written law or any disclosure made to the person under the Act including response to a request under the specified sections. Dr Barker did not obtain any information because of any office, position, employment or engagement under or for the purposes of any of the relevant written laws, that is the Mental Health Act 2014 (WA), the Mental Health Act 1996 (WA) and the Mental Health Act 1962 (WA). Dr Barker did not obtain any information because of any disclosure made to her under the Mental Health Act. In short, s 576 has no application to any relevant information obtained by Dr Barker or her use of it.
The plaintiff also referred to s 16 and s 17 of the Mental Health Act. Sections 16 and 17 set out the requirements for informed consent and who can give informed consent. Those provisions do not give rise to any right of action. In any event, they do not apply to this case. Section 16 says:
(1)A person gives informed consent to the provision of treatment to a patient (whether he or she or another person is the patient) only if ‑
(a)the requirements of this Division in relation to making a treatment decision about the provision of the treatment are satisfied; and
(b)the consent is given freely and voluntarily.
Treatment is defined in s 4 to mean:
[t]he provision of a psychiatric, medical, psychological or psychosocial intervention intended (whether alone or in combination with one or more other therapeutic interventions) to alleviate or prevent the deterioration of a mental illness or a condition that is a consequence of a mental illness, and does not include bodily restraint, seclusion or sterilisation;
Dr Barker did not provide any psychiatric, medical, psychological or psychosocial intervention intended for any of the purposes set out in the definition. Her attendance upon an assessment of the plaintiff was for the purpose of a fitness to work assessment. She did not provide any psychiatric, medical, psychological or psychosocial intervention. She did not provide treatment. Accordingly, s 16 of the Act has no application to this case.
Equitable breach of confidence
In his written submissions the plaintiff says that he relies upon the equitable breach of confidence doctrine to claim damages against Dr Barker. There are three essential elements to establish breach of confidence:
(1)The information must have a necessary quality of confidence;
(2)The information must have been imparted in circumstances importing an obligation of confidence; and
(3)There must be an unauthorised use of the information.
The plaintiff does not complain about Dr Barker disclosing confidential information in her first report of 29 September 2015. He complains about the unauthorised disclosure of information in her second and third reports of 8 December 2015 and 2 February 2016. The plaintiff's claim for breach of the equitable duty of confidence must fail for two reasons.
First, the plaintiff consented to Dr Barker using the confidential information imparted to her by the plaintiff for the purpose of providing reports to Qantas Ground Services. By his consent on his letterhead of 24 September 2015 the plaintiff consented and authorised Dr Barker to provide Qantas Ground Services 'with any information relating to my medical visit'. There was no express or implied restriction that Dr Barker was only to use the information for the purposes of a single report. In his consent on Dr Barker's consent form the plaintiff consented 'to a report being provided to the Referring Party', that is Qantas Ground Services. In its context the reference to 'a report' means any report relating to the proposed assessment, not a single report.
Secondly, Dr Barker's reports of 8 December 2015 and 2 February 2016 did not refer to any additional information provided by the plaintiff. The additional information to which Dr Barker referred was further information provided by Qantas Ground Services.
Conclusion
Dr Barker has made out a good defence on the merits. Summary judgment will be granted.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RK
ASSOCIATE TO THE HONOURABLE JUSTICE LE MIERE13 DECEMBER 2018
4
0
2