Re Rummery & The Federal Privacy Commissioner & Anor
[2004] AATA 1221
•22 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1221
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/166
GENERAL ADMINISTRATIVE DIVISION ) Re ALAN RUMMERY Applicant And FEDERAL PRIVACY COMMISSIONER Respondent And DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY Party Joined DECISION
Tribunal Justice Downes, President
Mr J W Constance, Senior Member
Dr M D Miller, MemberDate22 November 2004
PlaceCanberra
Decision
The determination of the Privacy Commissioner made 19 April 2004 (being part of Determination No 5 of 2004) not to make a declaration as to compensation will be set aside and in substitution therefor the Tribunal decides and declares that Mr Rummery is entitled to $8,000 by way of compensation for loss and damage suffered by reason of the act or practice of the Department of Justice and Community Safety of the Australian Capital Territory which was found by the Privacy Commissioner in accordance with subpar 52(1)(b)(i)(B) of the Privacy Act to be an interference with Mr Rummery’s privacy.
.............................................
President
CATCHWORDS
PRIVACY ACT – review of determination of Privacy Commissioner not to award damages – entitlement to damages discretionary – assessment of damages measured by statute, assisted by rules in tort – assessment guided by complainant’s reaction – aggravated damages not awarded – part of determination not awarding damages set aside – damages awarded
Privacy Act 1988 (Cth) – ss 52, 61
Sex Discrimination Act 1984 (Cth) – s 81
Workplace Relations Act 1996 (Cth) – s 170EE
Alexander v Home Office [1988] 1 WLR 968
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217
Lennon v Gibson and Howes Ltd [1919] AC 709
Sheils v James [2000] FMCA 2
Complaint Determination No 5 of 2004, Federal Privacy Commissioner, April 2004
REASONS FOR DECISION
22 November 2004 Justice Downes, President
Mr J W Constance, Senior Member
Dr M D Miller, Member
1. In December 1998 Mr Alan Rummery was an employee of the Australian Capital Territory Department of Justice and Community Safety, the Party Joined. On 30 December 1998 Mr Rummery made a public interest disclosure to the ACT Ombudsman under the Public Interest Disclosure Act 1994 (ACT) alleging that the Department had failed to enforce provisions of the Liquor Act 1975 (ACT). The Department disclosed personal information relating to Mr Rummery to an officer of the Ombudsman during the investigation. On learning of this disclosure Mr Rummery made a complaint to the Federal Privacy Commissioner that his privacy had been interfered with. The Commissioner found that Mr Rummery’s complaint was substantiated but decided not to make a declaration as to compensation for the breach.
2. Mr Rummery has applied to the Tribunal to review the decision not to award compensation.
3. We have decided that Mr Rummery is entitled to compensation in the amount of $8,000.
FACTS
4. During 1998, and for some years prior, Mr Rummery was employed as a policy officer/inspector in the Department. Mr Rummery describes his policy officer role as involving making recommendations relating to the introduction of legislative changes and the briefing of the government on issues relating to the Liquor Act, such as under-age drinking and over-crowding of licensed premises. In his role as an inspector Mr Rummery spent many hours on the beat inspecting licensed premises late at night and in the early hours of the morning. The work was strenuous, and involved ten after-hour shifts per year over the three or four years prior to December 1998. Nevertheless in evidence he described it as “quite rewarding because you were dealing with young people” (22.09.04 transcript p 23).
5. In December 1998 Mr Rummery prepared a brief for his director, Mr Brown. The brief dealt with problems associated with under-age drinking and young people attending licensed premises in Canberra for “so-called under-age discos.” Mr Rummery raised questions as to the legality of young people under 18 years of age attending licensed premises and his concern that on many occasions the premises were over-crowded. Mr Rummery was, and still is, of the view that these issues “were just too dangerous to ignore.”
6. In preparing the brief for his director, it was Mr Rummery’s intention that, subject to the approval of various Departmental officers, the brief would ultimately be submitted to the Attorney-General. During December 1998, Mr Rummery did not receive a response from any of the officers within his Department and he decided that he was being ignored. He then rang the Departmental liaison officer in the office of the Attorney-General and asked for advice. Within an hour of making these telephone calls, Mr Rummery was “carpeted” (his description) by his director and told that he should not contact the Attorney-General’s office.
7. By reason of Mr Rummery’s belief in the importance of the issues raised in the brief, and the lack of response from his Department, Mr Rummery made a public interest disclosure to the Australian Capital Territory Ombudsman under the Public Interest Disclosure Act. “The disclosure alleged that JACS [the Department of Justice and Community Safety] had failed to enforce provisions of the Liquor Act adequately in relation to offences concerning minors and associated issues of public safety” (Complaint Determination No 5 of 2004 by Federal Privacy Commissioner, par 7).
8. There was some delay in processing the complaint by the Ombudsman. This was partly caused by Mr Rummery withdrawing the complaint following meetings on 16 and 17 February 1999 between Mr Rummery, Mr Keady (Department Head) and Mr Rummery’s supervisor. We accept Mr Rummery’s evidence that, during the meeting with Mr Keady, Mr Keady accused him of not preparing the brief for genuine reasons. We also accept Mr Rummery’s evidence that, when he asked Mr Keady why his brief had not been looked at, he was told that he [Mr Rummery] had prepared the brief “to try and cause trouble” and that “there’s no policy substance to the brief.”
9. In June 1999, Mr Rummery asked the Ombudsman to continue with a consideration of his public interest disclosure. The Ombudsman complied with this request and wrote to the Department seeking its views on the matters raised by Mr Rummery.
10. In Complaint Determination No 5 of 2004, the Federal Privacy Commissioner made the following findings (at pars 8-9):
“On 30 June 1999, Officer A of the Ombudsman’s Office, wrote to JACS in relation to Mr Rummery’s public interest disclosure. Officer A did not identify Mr Rummery. The letter said in part:
‘We have received a complaint under the provisions of the Public Interest Disclosure Act 1994 which we propose to investigate in accordance with section 9 of the Ombudsman Act 1989.
In order that the Ombudsman may decide what action, if any, to take on these matters I seek your comments on the matters raised in the complaint. I would appreciate your reply together with a copy of any relevant documentation by 30 July 1999.’
On 7 July 1999, in respect to this letter, the Chief Executive Officer of JACS, Mr Keady, telephoned Officer A. Officer A made a file note of the conversation. The file note records that in the course of the conversation Mr Keady advised Officer A that he presumed the public interest disclosure was made by Mr Rummery and proceeded to disclose to Officer A a range of personal information about Mr Rummery. Mr Keady did not make a file note of the conversation.”
11. The Privacy Commissioner found that Mr Keady made the following disclosures during the telephone conversation with Officer A:
·Mr Rummery “had experienced a number of problems at work and had sought a voluntary redundancy without success” (par 25);
·Mr Rummery “worked as a penciller for a bookie at racetracks for some time” (par 26);
·“personal information about Mr Rummery’s racing industry activities and about his request to JACS in relation to him holding a book-makers licence” (par 27);
·“Mr Rummery had sought a voluntary redundancy” and information “about Mr Rummery’s employment options” (par 28);
·Mr Rummery “had been refused a voluntary redundancy” (par 29); and
·“information about how public service rules apply to Mr Rummery’s activities as a bookmaker” (par 30).
These findings are set out in Complaint Determination No 5 of 2004.
12. Before us counsel for the Department cross-examined Mr Rummery at length concerning his employment history with the Department prior to the time he submitted the brief. It is clear that there had been a number of previous issues between Mr Rummery and his employer. However, there is no evidence to suggest that Mr Rummery had not been entitled to raise any of these issues, or that they were still under consideration at the time the complaint was made to the Ombudsman. Neither the manner of Mr Rummery’s earlier treatment by the Department, nor Mr Rummery’s perception of it, is relevant to the assessment of Mr Rummery’s entitlement to compensation. However, this background does assist us in understanding Mr Rummery’s reaction to the breach of his privacy by the disclosure of the personal information.
13. Mr Keady gave evidence. We accept his statement that it is his belief that the lodging of the brief by Mr Rummery “was stimulated primarily to cause difficulty for his superiors” (23.09.04 transcript p 18). We do not accept that this was in fact the reason for the preparation of the brief by Mr Rummery. We also accept Mr Keady’s evidence that he was seeking to have the Ombudsman treat Mr Rummery’s complaint as vexatious (23.09.04 transcript p 17).
14. In November 1999, during a telephone conversation with an officer of the Ombudsman’s office, Mr Rummery learned that there had been a telephone conversation between Mr Keady and Officer A which related to him [Mr Rummery]. As a result of a request under the Freedom of Information Act 1982 (Cth), on 24 November 1999 Mr Rummery obtained a copy of Officer A’s file note of the telephone conversation during which Mr Keady made the disclosures referred to.
15. We accept Mr Rummery’s evidence that when he saw what was in the file note he was distressed. He described his distress as follows:
“…it was very distressing to have your chief executive of your office express the belief that you didn’t give two hoots about all this under-age drinking work you have been doing for the last five or six years and not only that what he says is a repeat of what I’d already – he raised the exact same issue with me on 16 February ‘99 at a meeting with him about this – about this brief and I told him then I took offence to it and he repeated that allegation in these conversations and that – and, you know, told – raised issues about my book-making and lies to try and make me out to be some – I don’t know, what. I mean, if your chief executive is doing that to you, what future have you got at work if that’s what’s going on?” (22.09.04 transcript p 28)
16. We also accept Mr Rummery’s evidence that it made him feel “shattered” (22.09.04 transcript p 28).
17. When Mr Rummery was asked whether Mr Keady’s disclosure, that he [Mr Rummery] had experienced a number of problems at work and had sought a voluntary redundancy without success, concerned him, he said that it did. He said the reason for his concern was that the disclosure was a lie because the context suggested that that he had sought a redundancy after he was refused permission to be a book-maker and that was just not true.
18. When asked by the Tribunal how he reacted to the disclosure that he [Mr Rummery] worked as a penciller for a bookie at race tracks for some time, Mr Rummery’s response was:
“What was he possibly bringing that up for other than trying to make me out to be some sort of bad person… Why would he possibly raise that, other than to make me out to be a bad person and what relevance has bookmaking and pencilling got to do with underage drinking?” (22.09.04 transcript p 29)
19. Mr Rummery stated that Mr Keady’s disclosure of personal information about Mr Rummery’s racing industry activities and about his request to the Department in relation to his holding a book-maker’s licence made him feel that Mr Keady was “…trying to cast aspersions at me and state that I didn’t do it because I cared about under-age drinking issues, which was… 75 per cent of my job, which I’d done for 10 years.” (22.09.04 transcript p 29)
20. Again, Mr Rummery said that he felt that Mr Keady was trying to make him out to be in the wrong, and that he felt it was clear that he had no future in the Department when he learnt of the disclosure that he [Mr Rummery] had sought a voluntary redundancy and had discussed his employment options (22.09.04 transcript p 29).
21. We accept Mr Rummery’s description of his feelings as a result of the breach of his privacy. As he described it, the crux of the matter was that he had spent a number of years working in the area that gave rise to the concerns set out in the brief he prepared, the issues were important to him and the breach of privacy was such that it indicated that his employer did not accept that he was acting out of genuine concern for young people, but for an ulterior motive (22.09.04 transcript p 28). It is clear that Mr Rummery felt that the effort he had put into his work was seriously devalued. As a result he suffered injury to his feelings and humiliation. He felt he had nowhere to go in his job (22.09.04 transcript pp 33-34). He also said, and we accept, that he felt that he had thereafter been “stuck away” in his employment (22.09.04 transcript p 34).
22. Having learnt of the disclosures made by Mr Keady, on 7 July 1999 Mr Rummery lodged a complaint with the Federal Privacy Commissioner. On 14 February 2000 the Privacy Commissioner formally advised the parties that he was opening an investigation into the complaint. The investigation was not completed until 19 April 2004 when the Privacy Commissioner issued Complaint Determination No 5 of 2004. We have before us evidence that the Department made detailed submissions through its legal representatives opposing Mr Rummery’s claim. It retained Queen’s Counsel. At least partly as a result of this opposition, it took the Privacy Commissioner almost four years to deal with the complaint. The Department submitted that Mr Rummery’s disclosures were frivolous and vexatious. The Privacy Commissioner found that:
“…it was not relevant to the question of whether Mr Rummery’s public interest disclosure was frivolous and vexatious for JACS to disclose detailed information about Mr Rummery’s background and his working relationship with JACS and accordingly the disclosure of this personal information was not authorised by IPP 11.1(d).” (Complaint No 5 at par 73)
23. The Commissioner determined:
“In accordance with section 52(1)(b)(i)(B) of the Privacy Act, I find Mr Rummery’s complaint that his privacy has been interfered with substantiated and I declare that JACS has engaged in conduct constituting an interference with the privacy of Mr Rummery by disclosing personal information about him to the Ombudsman’s Office that was not authorised by IPP 11.1(a) or IPP 11.1(d) and that JACS should not repeat such conduct.” (Complaint No 5 at par 76)
24. The Commissioner also found that the disclosures were made to two staff of the Ombudsman’s office and that disclosures did not occur outside the confines of the investigating team and were not known more widely in that office or in the community. For these reasons the Commissioner decided not to make a declaration as to compensation.
25. The Privacy Commissioner did declare that the Department should apologise to Mr Rummery for disclosing his personal information. The apology that was issued was dated 11 June 2004 and was in the following terms:
“Dear Mr. Rummery
Complaint Determination No 5 of 2004
I refer to Complaint Determination No 5 of 2004 made by the Federal Privacy Commissioner (FPC) on 19 April 2004.
In accordance with that determination, I apologise to you for disclosing your personal information that was not relevant to the Ombudsman’s investigation of your public interest disclosure complaint.
It is noted that you have filed an application with the Administrative Appeals Tribunal for review of the FPC’s decision not to award you any compensation. JACS does not concede by this apology that you are entitled to any compensation.
Yours sincerely
[sgd.]
Elizabeth Kelly
Acting Chief Executive”
RELEVANT LEGISLATION
26. Section 52 of the Privacy Act1988 (Cth) provides that after investigating a complaint, the Commissioner may find the complaint substantiated and may make “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.”
Subsection 52(1A) provides:
“The loss or damage referred to in paragraph (1)(b) includes injury to the complainant’s feelings or humiliation suffered by the complainant.”
The Act provides no further guidance as to when a determination that a complainant is entitled to compensation should be made nor does it provide any further guidance in how the amount of compensation is to be determined.
27. Section 61 of the Act provides that application may be made to this Tribunal for review of a decision refusing a declaration that a complainant is entitled to compensation. The Tribunal does not have power to review other aspects of the Commissioner’s determination.
THE ISSUES
28. The issues for our determination are:
(1)Should there be a declaration that Mr Rummery is entitled to compensation for the breach of his privacy?
(2) If so, what is the amount of the compensation to which he is entitled?
ENTITLEMENT TO COMPENSATION
29. Counsel was not able to refer us to any decisions relating to the Privacy Act setting out the principles upon which we should act in determining the above issues, nor have we been able to find any such authorities ourselves. In these circumstances, it is appropriate to seek assistance from decisions which interpret similar provisions in other legislation. In Lennon v Gibson and Howes Ltd [1919] AC 709 at 711-12, the Privy Council (on appeal from the High Court of Australia) said:
“In the absence of any context indicating a contrary intention, it may be presumed that the Legislature intended to attach the same meaning to the same words when used in a subsequent statute in a similar connection.”
30. Section 81 of the Sex Discrimination Act1984 (Cth), when first enacted, contained very similar provisions to those in s 52 of the Privacy Act. Subsection 81(1) of the Sex Discrimination Act provided, inter alia:
“After holding an inquiry, the Commission may… find the complaint substantiated and make a determination, which may include… a declaration that the respondent should pay to the complainant damages by way of compensation for any loss or damage suffered by reason of the conduct of the respondent.”
Subsection 81(4) provided:
“The damage referred to in paragraph (1)(b) includes injury to the complainant’s feelings or humiliation suffered by the complainant.”
31. In Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217, the Federal Court gave detailed consideration to the determination of the entitlement to compensation, and the assessment of that compensation, under s 81 of the Sex Discrimination Act. We are of the view that these principles are applicable to the issues we have to decide in relation to s 52 of the Privacy Act.
32. 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.
33. We now turn to the above principles in detail. At 261 of Hall, Wilcox J said:
“The learned President found that each of the three applicants did suffer damage as a result of the conduct of Dr Sheiban. That being so, he erred in law in declining to make a determination that the respondents should pay to the respective applicants damages by way of compensation for that loss. Although the powers conferred upon the Commission are introduced by the word ‘may’, a claim under the Sex Discrimination Act is a claim for a stated statutory tort: see Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 604; Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at 65. In a case where sex discrimination is proved the Commission is bound to award appropriate relief. Where loss or damage is shown, this relief must include appropriate compensation for that loss or damage.”
At 282, French J said:
“The discretion, however, must be exercised with reference to the purpose of the legislation and it is plain that where a complaint is substantiated and loss or damage is suffered some form of redress is contemplated in the ordinary course.”
34. We respectfully adopt the view of French J and do not go so far as deciding that we must award compensation once a loss is established. However, we are of the view that once loss is proved, there would need to be good reason shown to the Tribunal as to why compensation for that loss should not be awarded. In this case no such reason appears.
35. We find that Mr Rummery is entitled to an amount by way of compensation for the loss or damage suffered by him by reason of the breach of his privacy by the respondent. In this case, the damage suffered is the injury to Mr Rummery’s feelings and the humiliation suffered by him. He is not entitled to compensation in these proceedings for any loss he alleges he has suffered as a result of incidents in his workplace prior to the breach of his privacy by the Department.
AMOUNT OF COMPENSATION
36. We now turn to the question of how the amount of compensation payable is to be assessed.
37. Mr Rummery has claimed compensation of $200,000 on the basis that the breach of his privacy caused him to cease his employment with the Department. We do not have evidence before us to enable us to make such a finding and we do not assess compensation on that basis.
38. In Hall v Sheiban the Federal Court referred to the difficulty in assessing compensation, but went on to say that “to ignore such items [injury to feelings, distress and humiliation] of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in respect of a proved item of damage” (see Wilcox J at 256). His Honour adopted “as a statement of principle useful in this area of the law” (at 256) a statement by May LJ, of the English Court of Appeal in a racial discrimination case, Alexander v Home Office [1988] 1 WLR 968 at 975:
“For the injury to feelings however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained. To award sums which are generally felt to be excessive does almost as much harm to the policy and the results which it seeks to achieve as do nominal awards.”
39. The Federal Court also expressed the view that normally it would be appropriate to measure damages to be awarded under statutory provisions in accordance with the general principles of tort law. At 239, Lockhart J described this as “…the closest analogy that I can find and one that would in most foreseeable cases be a sensible and sound test.” His Honour said that this approach “…is to compare the position in which the complainant might have been expected to be if the discriminatory conduct had not occurred with the situation in which he or she was placed by reason of the conduct of the respondent” (at 239).
40. On the other hand, French J said that the measure was to be found not in the law of tort but in the words of the statute, but he did agree that the rules applicable in tort could be of assistance provided they did not conflict with the terms of the statute (at 281).
41. We are of the view that there is no conflict between these principles and the provisions of s 52 of the Privacy Act and we assess compensation in accordance with those principles. This then raises the issue of whether the breach of privacy in this case should attract an award of aggravated damages.
42. In Hall v Sheiban, at 239-240, Lockhart J stated:
“Assuming that the principles of tort are properly applicable to the assessment of damages by way of compensation for loss or damage suffered by the complainant… then it is useful to refer to the circumstances in which aggravated damages are available in the Australian law of torts. It is fundamental that an award of a larger amount of damages by way of aggravated damages serves to compensate the victim for damage occasioned by the defendant’s conduct where an element of aggravation is involved in that conduct, and not to punish the defendant... In Lamb v Cotogno (1987) 164 CLR 1 at 8, the High Court observed in a joint judgment that ‘[a]ggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff’s feeling caused by insult, humiliation and the like’.
In so far as such damages offer compensation to the plaintiff, reflecting a recognition of the nature of the defendant’s conduct and of its consequences for the plaintiff, then they appear to fall properly within the scope of s 81(1)(b)(iv) of the Act. Also, the circumstances in which the defendant’s conduct takes place may themselves give rise to an element of aggravation. Sexual harassment in contravention of s 28 of the Act, occurring within the relationship of employer and employee where the employer has power or authority over the employee and commonly has an ability to adversely affect the interests of the employee, would by its nature appear to involve an element of aggravation so as to give rise to the possibility of aggravated damages.”
AGGRAVATED DAMAGES
43. We have given careful consideration as to whether the award of compensation in this case should include a component of aggravated damages. Given the presence of subs 52(1A) in the Privacy Act, which we must apply, and having regard to the evidence before us, we do not think that it is appropriate to consider an award of aggravated damages in the present case.
44. Although we will not take it into account in assessing damages, we think that it is worth noting the persistence of the Department in maintaining that Mr Rummery’s conduct was not bona fide. In giving evidence Mr Keady said, in response to a question concerning the preparation of the brief:
“Well, I can only speculate about his motives and I would suggest – and this is my belief – that it was stimulated primarily to cause difficulty for his superiors.” (23.09.04 transcript p 18)
45. The Department incurred substantial expense in maintaining this position before the Privacy Commissioner. In our opinion, it was always doomed to failure. We also note that the Department’s apology, only given on direction from the Privacy Commissioner, was as limited as it could be and would not convey any real sense of regret to a reasonable reader. However, we disregard this in assessing damages.
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, 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.”
47. Having determined that the above principles are those which we should apply, it is necessary to consider how “a specified amount” as required by par 52(1)(iii) is to be determined.
48. We have considered awards of compensation under a number of statutory provisions, including awards of the Privacy Commissioner.
49. Under the former subs 170EE(3) of the Workplace Relations Act1996 (Cth) the Australian Industrial Relations Commission may award compensation for shock and distress occasioned by the way in which an employee’s employment is terminated. A consideration of those awards indicates that awards are usually made between a few thousand dollars and $20,000 [see Australian Labour Law Reporter (CCH) vol. 3 pp 35,602–35,604].
50. In Discrimination Law and Practice (2nd ed.) the authors, Ronalds and Pepper, summarise recent damages awards for pain and suffering in discrimination cases. These examples, set out at pp 218-219, range from $1,500.00 to $25,000.00.
51. In Sheils v James [2000] FMCA 2 the Federal Magistrates Court of Australia considered the range of damages for hurt and humiliation cases dealing with discrimination and employment on grounds of sexual harassment. In that case, the Court held that:
“The cases, including those previously cited, indicate a range for damages for hurt and humiliation of between $7,500.00 and $20,000.00. In the higher range of those Judgments the activities complained of constituted either more physical action (Harwin v Pateluch) (supra) or more substantial physical sequelae (Smith v Buvet) (supra). Bearing these matters in mind and the dates on which those cases were decided the Court is of the view that an appropriate award in this case would be $13,000.00.” (par 79)
52. It appears that the Privacy Commissioner has made only two awards of compensation in the sums of $1,000 and $2,500. This information was provided to the Tribunal by Counsel for the Department.
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. 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.
DECISION
56. The determination of the Privacy Commissioner made 19 April 2004 (being part of Determination No 5 of 2004) not to make a declaration as to compensation will be set aside and in substitution therefor the Tribunal decides and declares that Mr Rummery is entitled to $8,000 by way of compensation for loss and damage suffered by reason of the act or practice of the Department of Justice and Community Safety of the Australian Capital Territory which was found by the Privacy Commissioner in accordance with subpar 52(1)(b)(i)(B) of the Privacy Act to be an interference with Mr Rummery’s privacy.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Downes, President, Mr J W Constance, Senior Member, and Dr M D Miller, Member
Signed: ........................................................
AssociateDates of Hearing 22 & 23 September 2004
Date of Decision 22 November 2004
Representative for the Applicant Self-representedSolicitor for the Respondent Australian Government Solicitor
(no appearance)
Counsel for the Joined Party Mr D J C Mossop
Solicitor for the Joined Party ACT Government Solicitor
20
5
0