Seven Network (Operations) Ltd v Media Entertainment and Arts Alliance
[2004] FCA 637
•21 MAY 2004
FEDERAL COURT OF AUSTRALIA
Seven Network (Operations) Limited v Media Entertainment and Arts Alliance [2004] FCA 637
PRIVACY – whether polling of employees by call centre on behalf of a union a breach of National Privacy Principles by either – if so whether private right of action
COURTS – Federal Court – scope of jurisdiction pursuant to Privacy Act 1988 (Cth)
COPYRIGHT – whether copyright in internal company telephone directory – whether annotation of directory breach of copyright – whether use of annotated directory to create electronic database breach of copyright – whether a case for additional damages or account of profit
WORKPLACE RELATIONS – whether telephone polling of employees on behalf of a union during postal voting for s 170LK Agreement done with intent to coerce – whether proceeding instituted vexatiously or without reasonable cause
COSTS – where proceedings instituted under Workplace Relations Act against one party – further party added and other federal causes of action added – effect of s 347 of Workplace Relations Act
Copyright Act 1968 (Cth), ss 14(1)(b), 31(1)(a)(i), 36(1), 115(4), 116
Privacy Act 1988 (Cth), ss 6A, 6B, 16A(2), 55A, 98, Schedule 3
Workplace Relations Act 1996 (Cth) ss 170LK, 170NC, 347Day v Lynn [2003] FCA 879 distinguished
Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd (2002) 119 FCR 491 followed
Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16 cited
Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 272 cited
Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 cited
Maritime Union of Australia v Geraldton Port Authority (2000) 94 IR 404 distinguished
National Tertiary Education Industry Union v Commonwealth (2002) 117 FCR 114 cited
National Union of Workers v Qenos Pty Ltd (2001) 106 IR 373 cited
Thompson v Hodder (1989) 21 FCR 467 cited
Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 referred toSEVEN NETWORK (OPERATIONS) LIMITED v MEDIA ENTERTAINMENT AND ARTS ALLIANCE AND ACTU MEMBER CONNECT PTY LTD (ACN 057 551 970)
N 789 OF 2003GYLES J
21 MAY 2004
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 789 OF 2003
BETWEEN:
SEVEN NETWORK (OPERATIONS) LIMITED
APPLICANTAND:
MEDIA ENTERTAINMENT AND ARTS ALLIANCE
FIRST RESPONDENTACTU MEMBER CONNECT PTY LTD (ACN 057 551 970)
SECOND RESPONDENTJUDGE:
GYLES J
DATE OF ORDER:
21 MAY 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The proceeding stand over to a date to be fixed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 789 OF 2003
BETWEEN:
SEVEN NETWORK (OPERATIONS) LIMITED
APPLICANTAND:
MEDIA ENTERTAINMENT AND ARTS ALLIANCE
FIRST RESPONDENTACTU MEMBER CONNECT PTY LTD (ACN 057 551 970)
SECOND RESPONDENT
JUDGE:
GYLES J
DATE:
21 MAY 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 4 July 2003, the applicant, Seven Network (Operations) Limited (‘Seven’), commenced proceedings under the Workplace Relations Act 1996 (Cth) (the Act) for contravention of s 170NC of that Act and sought interlocutory relief. In short, Seven alleged that the Media Entertainment and Arts Alliance (‘MEAA’), the first respondent, was engaging in action with intent to coerce the applicant’s employees to vote against a proposed agreement pursuant to s 170LK of the Act. On the first day set down for the hearing, the application for interlocutory relief was adjourned as the impugned conduct was said to have been discontinued.
The application was subsequently amended to allege breach by MEAA of the Privacy Act 1988 (Cth), of the Copyright Act 1968 (Cth), and of an equitable obligation of confidence. Breach of the Privacy Act and breach of the Copyright Act are now also alleged against ACTU Member Connect Pty Ltd (‘Connect’), which was joined as the second respondent. Connect is a body corporate registered pursuant to Part 2A.2 of the Corporations Act 2001 (Cth).
Background
Seven and MEAA, together with the Community and Public Sector Union (CPSU) are party to the Seven Network (Operations) Limited Enterprise Agreement 2000, which Agreement had a nominal expiry date of 30 June 2002. Seven proposed a new enterprise agreement. That was opposed by MEAA and CPSU and each campaigned against it. Mark Ryan was the Assistant Federal Secretary of MEAA from 1993 onwards and had the principal responsibility for industrial negotiations and dealings on other industrial matters between MEAA and Seven. He was away on long service leave and annual leave between 20 December 2002 and 10 June 2003. From time to time he attended negotiations with Seven concerning the new agreement although on leave. Benjamin Jake Peacock was a National Organiser with MEAA from February 2001 and had been involved in conjunction with Ryan in the negotiations with Seven. After Ryan went on extended leave Peacock assumed responsibility on a national level regarding dealings with Seven subject to consultation with Christopher Warren who was the Federal Secretary of MEAA and had the ultimate say.
On 16 April 2003 Seven forwarded a letter to all of its employees who would be covered by a proposed s 170LK agreement informing them that Seven proposed to seek to make such an agreement. On 30 April 2003 Seven forwarded a letter to each of its employees to be covered by the proposed agreement informing them that it intended to make such an agreement directly with them. The letter was as follows:
‘Notice of intention to make a Certified Agreement
Seven Network (Operations) Limited (“Seven”) notifies you that it intends to make a new enterprise agreement with you covering employees who are employed in production and operations including Journalists and administrative employees of Seven at its various locations across Australia. The proposed new agreement, Seven Network (Operations) Limited Enterprise Agreement 2003 (“the Agreement”) will be forwarded to you shortly for your review and consideration.
Under the Workplace Relations Act 1996 (Cth), Seven is required to inform you that, if:
(a)any person whose employment will be subject to the Agreement is a member of an organisation of employees; and
(b)the organisation is entitled to represent the person’s industrial interests in relation to work that will be subject to the Agreement,
the person may request the organisation to represent the person in meeting and conferring with Seven about the Agreement.
As you may be aware, Seven has spent in excess of ten (10) months trying to negotiate a new certified agreement direct with the Media, Entertainment and Arts Alliance and the Community and Public Sector Union. The parties have not been able to reach agreement as to some terms and, as a result, Seven employees have been denied the benefits of a new agreement. Seven is unwilling to delay the offer it is willing to make to its workforce any longer, which is why we have decided to seek agreement directly with our employees.
When you receive a copy of the Agreement it will have attached a brief explanation of the Agreement. It will outline the improved conditions on offer in the Agreement, as well as some new elements. Seven will be holding briefing sessions to discuss the Agreement with its employees, including yourself, at your work location following the Agreement being despatched.
If you are unable to attend one of these briefing sessions, or if you just have some questions concerning the Agreement, I encourage you to email the EBA 2003 feedback address – I will do everything I can to answer your questions as quickly as possible.
The email address is: [email protected]
Once the document has been despatched for your review you will have fourteen (14) days to consider the Agreement, after which time we will hold a final vote to approve the Agreement. You will receive a ballot paper and further instructions on how you can cast your vote at that time.
Seven looks forward to completing this process as efficiently as possible, and to both employees and management alike sharing in the benefits this new Agreement has to offer. Please ensure that any questions you have about the Agreement are answered either at the EBA 2003 briefing session or by using the [email protected] email address.
As part of the process we require you to sign and return the acknowledgement below that states you have received this notification that the company intends to enter into a new Enterprise Agreement with employees of the Seven Network.
Please return this notification signed to acknowledge that you have been advised by the company of its intention to enter into a new certified agreement. All returns are to be returned no later than 12th May 2003 to Karen Attree – Employment Services, Sydney.’
Around 30 April 2003, Peacock read that letter and so discovered that Seven was planning to embark upon a course of going to a vote of the employees who were going to be covered by a likely agreement. Peacock gave evidence that, as Ryan was on leave, he had a discussion with Warren in about mid-May 2003 about how best to run the MEAA’s campaign in relation to the new agreement. According to Peacock’s evidence, Warren suggested using Connect to call people who work at Seven to ‘glean information about how they thought [the MEAA’s] campaign was going, and ... what people thought about the proposed vote coming up’.
Linda Jenkin was the Manager of the call centre operated by Connect. She gave evidence that the MEAA had been a client of Connect for three years, employing Connect to follow up non-financial members of the MEAA. She explained in cross examination that generally polling represented about 40% of Connect’s work, and she estimated that about 10% of its work involved polling of people who were both union members and non members. Jenkin gave evidence that Peacock contacted her in relation to the telephone polling of Seven employees in about mid-May 2003. She explained that the initial contact with Peacock may have included both herself and Wayne Wright, senior organiser at Connect. She recalled that Peacock was in Melbourne at the time and visited the Connect office. She claimed that Peacock contacted her again (or perhaps herself and Wright) about a week later confirming that MEAA wanted to engage Connect, and adding that Seven had decided to conduct a vote on a non-union agreement. She gave evidence that at that time Peacock said to her words to the following effect:
‘The MEAA wants to retain the ACTU Member Connect Call Centre to poll Channel Seven staff regarding any concerns they might have about the proposed agreement.’
Peacock gave evidence that he made arrangements with Wright for the polling to take place. A draft script was sent by Wright to Peacock on about 6 June 2003. The script was drawn up to assist the Connect employees who were to conduct the polling. In cross-examination, Jenkin said that the following question ‘7a: If you were voting on the Channel Seven proposal today do you think you would vote for it or against it?’ was added when the MEAA discovered that Seven was going to put forward a non-union agreement.
The proposed s 170LK agreement was forwarded to relevant employees on 17 and 18 June 2003. It was accompanied by two letters – the first was similar to that of 30 April; the second (omitting formal parts) was as follows:
‘I’m pleased to enclose a copy of the Seven Network (Operations) Limited Enterprise Agreement 2003 and the associated documentation that will provide you the information surrounding the Agreement the company will shortly be asking you to vote upon.
As you are aware it has taken a considerable amount of time to arrive at this point to be able to provide you with a comprehensive copy of the Agreement. It was somewhat disappointing to have encountered difficulties with the respective Unions throughout the process on certain aspects where agreement could not be reached.
Therefore the company chose to proceed with establishing an Agreement directly with the staff of the company. The Agreement is very comprehensive and addresses many issues that arose from the first Agreement, it also does not allow for any process or practice variations.
This Agreement will continue to provide you with the flexibility that you have been accustomed to receiving from the first Agreement. I’m also confident that no one will be at a disadvantage by working under the conditions of this new Agreement. This new Agreement will enable the Seven Network to continue to provide its staff with more attractive employment conditions than our competitors.
Therefore I urge you to take the time and thoroughly familiarise yourself with the Agreement, ensuring that you attend an information session that will be conducted at your location in the coming weeks to be confident that when you return your ballot paper that it is an informed vote.
The voting process will be conducted externally by KPMG who will manage the distribution, collection and collation of all ballot papers.
I trust you will also see the Agreement as a positive move forward in working conditions at the Seven Network.’
Thereafter Seven took a number of other steps to bring the vote to the attention of relevant employees.
On his return from leave Ryan told Peacock that he thought it would be useful to ‘include in the polling a question regarding the company’s proposed agreement, in order to gauge employees’ feelings on this issue’. Peacock claimed that he advised Wright to amend the draft script to include a question about the s 170LK agreement. The script included an opening: ‘Hi, my name’s _______________ and I’m calling from the Alliance’. Jenkin gave evidence that it was standard industry practice for contract call centres to identify as the client. Just before the polling campaign started, Peacock asked for a series of questions to be added to the agreed script asking employees whether they would be interested in joining the union and if so how they would like to pay and whether they would like to be sent any information. These questions were added to the list of questions. The final script was approved by Ryan in late June 2003.
The final script was in the following form:
‘Script
Hi, my name’s _____________ and I’m calling from the Alliance, how are you?
Would you have a minute for me to ask you a couple of quick questions about the current enterprise bargaining agreement at Channel Seven? Great, thanks.
If needed If now’s not a good time, we can make a time to call you back.
Employment Details
OK, if I can just check some employment details, so we make sure we’re getting feedback from a broad range of employees.
¨Are you permanent, casual or on contract?
¨Full-time or Part-time?
¨And how long have you worked there?
(options <1, 1, 2, 3, etc., through to 30, then 31+)
¨Are you currently a member of MEAA?
¨ Yes
¨ No
¨ Unsure
¨ Refused
Enterprise Agreement
The union negotiated employment agreement at Channel Seven has expired and following a breakdown in talks Seven has decided to issue its own proposal.
1.How well informed do you feel about this process?
¨Well informed
¨Adequately informed
¨Somewhat – not as much as I’d like
¨Not at all
¨Unsure
2.Where have you received most of your information about the company’s proposal?
¨Management
¨Supervisor
¨Workplace Union Rep
¨Union Office
¨Channel seven/Union jointly
¨Unsure
3.Please indicate the main ways you received Channel Seven’s information (multiple choices);
¨E-mail
¨Fax/letter
¨Face to face meetings
¨Personal contact
¨Other (please specify)
4.How would you rate Channel Seven’s information about the employment agreement?
¨Very Good
¨Good
¨Satisfactory
¨Poor
¨Unsure
¨None Received
5.Please indicate the main ways you received information from the union (multiple choices)
¨E-mail
¨Fax/letter
¨Face to face meetings
¨Personal contact
¨Other (please specify)
6.How would you rate the information you have received from the union?
¨Very Good
¨Good
¨Satisfactory
¨Poor
¨Unsure
¨None Received
7.Thinking about the company’s proposal employment agreement [sic], what is the issue or topic that is most important to you? (Please record verbatim and probe fully)
7a.If you were voting on the Channel 7 proposal today, do you think you’d vote for it or against it? (For / Against / Unsure / Declined)
8.Thinking about a possible pay increase. Please say a percentage increase per annum you think is appropriate.
¨1-3%
¨4%
¨5%
¨6%
¨7%
¨8%+
¨Linked to CPI (consumer price increase)
9.If the company’s proposal is voted down, what should the Union do next? (Please record verbatim and probe fully)
Delegates/Contacts
10.(Name) do you know who the Delegate is in your department? (Yes / No / Unsure)
11.Does your floor have a Contact Person? (Yes / No / Unsure)
If no to Contact Person
12.Do you think it would be good if there was a person who received information about workplace issues and distributed it to other staff? (Yes / No / Unsure)
If the person sounds keen
13.(Name) do you think you’d be interested in being a Contact Person for your colleagues? (Yes / No / Maybe)
If sounds hesitant
14.Perhaps if you and someone else jointly shared that role? (Yes / No / Maybe)
ACTIVISM
Would you be interested in participating in any of the following activities:
¨Distributing information to your colleagues
¨Sign a petition
¨Attend a lunchtime meeting
¨Attend an evening meeting
¨Attend a mass stop work meeting (during working hours)
¨Place a ban on doing parts of your work
¨Go on strike
Is there anything else you think you’d do in the campaign?
Do Activist Assessment: Hot/Warm/Cold
(Name) it sounds like you’ve got a really good idea of the issues at your workplace. It’s really important that we know what the issues are in the workplace so we can work with Members to improve things.
Would you like to receive more information from the union? (Yes/No)
If yes, please check or record all contact details and then go to closing.
Closing
(name) thanks for your time and your feedback today, we really appreciate it. Please don’t hesitate to give us a call back if you’ve got any queries.’
On 2 July 2003 KPMG forwarded a ballot paper to each employee of Seven eligible to be covered by the proposed agreement. The question was: ‘Do you agree to the making of the Seven Network (Operations) Limited Enterprise Agreement 2003?’. The ballot paper was returnable to KPMG by post no later than close of business on 14 July 2003.
There is some doubt as to when polling by Connect took place. The better view is that it commenced on 1 July and lasted three or four days. Peacock participated in some of the polling of Seven employees from Connect’s offices for two days. Approximately 140 employees were actually interviewed during the course of the polling although 1198 calls were made.
The MEAA received a written report from Connect on about 9 July 2003 detailing the overall result of the polling (the ‘EBA Report’). In addition, Connect provided MEAA with documents listing those employees who showed an interest in becoming involved with the MEAA, and those employees who wished to receive more information about it. These documents did not form part of the EBA Report.
A critical question for this case is the means by which the polling was done. There is no doubt that Peacock provided an internal Seven telephone list to Jenkin with a number of names ticked, principally by Ryan and some by Peacock, as being employees likely to be covered by the proposed agreement (the ‘Ryan Seven Directory’). There is a question as to the provenance of that list, to which I shall return.
Connect prepared an Access database to allow the call centre staff to enter the results of the polling directly into the database. The details entered into the database included the first and last names of the person to be called, the work telephone number, and the location. These details were copied from the Ryan Seven Directory, and the database could be used to print a list of those details alone. Jenkin explained that the database also included a box for the call centre staff to enter the page number of the sheet they were using from the Ryan Seven Directory.
Peacock gave evidence that he had inherited a copy of an internal Seven telephone list (the ‘Seven Directory’), which he claimed was the document annotated to become the Ryan Seven Directory, when he took over responsibility for Seven from Cheryl Winstanley. He said that he did not go through her files at that time and that he first saw the document in about May 2003 when he was looking through files that Winstanley had left. Winstanley was employed by MEAA as National Industrial Officer from 1988 to late 2001, during which time she had responsibility for industrial matters between Seven and MEAA. In her evidence in chief, Winstanley claimed to have received a copy of the Seven Directory anonymously in the mail in late 2000. In cross-examination Ryan claimed that he had seen the Seven Directory later when Winstanley had shown it to him in about 2001. Winstanley had told Ryan that the MEAA had received it in the mail.
Not long after the industrial agreement was certified (which Winstanley recalled was in July 2001, but which may have been on 15 August 2001), Winstanley attempted to send an email to Seven employees nationally using a list she had created with details from the Seven Directory. She claimed that within about an hour of sending this email she was contacted by a Seven representative, Stephen Payne. Winstanley claimed that she was told that she had frozen the Seven email network as a result of using old email addresses, and was advised to send emails in smaller batches to avoid crashing the system. Payne did not give evidence.
Winstanley claimed that she had contacted Scott Blakeman, the General Manager, Employment Services of Seven, to apologise and told him that she had used an old telephone list to compile the addresses. She also told him that sending all the emails at once might have caused the Seven email system to crash. Blakeman recalled an incident in 2000 or 2001 where Winstanley sent a bulk email, but he was unable to recall the exact date. He recalled that a member of Seven’s IT department telephoned him in relation to the incident and that Winstanley had also telephoned him, apologised and assured Blakeman that it would never happen again. Blakeman did not recall her informing him that she had used an old telephone directory to compile the address list for the email. It is not necessary to resolve that issue. It is not suggested that any form of licence or permission to use the Seven Directory was granted by Seven.
There was an issue on the evidence as to whether the Seven Directory used by Peacock and Ryan was that received by Winstanley in December 2000. All Winstanley could say was that they looked similar. However, it was agreed between the parties on the first day of the trial that the copy of the Ryan Seven Directory held by MEAA was printed after 24 July 2001 and before 30 August 2001. It is clear from this that the Seven Directory used by Peacock and Ryan was not the list obtained by Winstanley in late 2000. There is no evidence as to how MEAA came into possession of the Seven Directory.
Peacock had not used the MEAA’s copy of the Seven Directory until he proposed to Ryan that it be used to form the basis of the polling. Ryan gave evidence that he had marked the names of those employees in the Seven Directory whom he knew, or judged according to their position as indicated on the Seven Directory, would be covered by the s 170LK agreement. It was revealed in cross-examination that Peacock had in fact begun the ‘ticking’ process and then Ryan continued it. Peacock then provided the Ryan Seven Directory to Connect in Melbourne. Jenkin gave evidence that Peacock described the telephone list in the following terms: ‘about two to two and a half years old. Some of the persons on that list will no longer be employed by Channel Seven and some of them will have changed their phone extension number or their location or job title’. Peacock instructed Connect to telephone only those people whose names were ticked.
The document tendered as the Ryan Seven Directory held by the MEAA was on paper slightly shorter than the standard A4 page. Counsel for the applicant put to the respondents’ witnesses that it appeared that the document tendered had been cut off at the bottom. Their attention was drawn to the ticks made by MEAA, and the annotations made by Connect on the document which appeared to have been subsequently sliced. The witnesses agreed that the bottom of the document had been cut off. Counsel for Seven suggested to Winstanley that there had been a footer at the bottom of the page identifying who had printed off the document, but Winstanley claimed that she did not recall there being a name on the document. Peacock did not recall there being a footer on the bottom of the page. One of the copies of the Ryan Seven Directory used by Connect while conducting the polling was further annotated by Connect employees who wrote a summary of each call on the page of the Ryan Seven Directory from which they were calling. Jenkin agreed in cross-examination that it appeared that an annotation made by one of the Connect staff during the polling had been subsequently sliced through. Jenkin and Peacock gave evidence about the existence of page numbers on the Ryan Seven Directory used at Connect. There was no explanation provided as to when, by whom and why the document was cut. Peacock denied cutting off the bottom of the page or directing anyone else to do so. Ryan did the same. Warren did not give evidence.
I find that the bottom of at least one copy of the Ryan Seven Directory was cut off after it had been used by Connect, probably after it was required to be produced to the Court, in order to avoid disclosing or assisting to disclose the identity of the person who had provided it to the MEAA. I cannot determine who was responsible.
Workplace Relations Act – Intent to coerce
Counsel for Seven Network correctly stressed that the prohibition in s 170NC is upon intent to coerce rather than coercion. It is submitted that conduct that is intended to impair the freedom of choice of employees in voting answers this description. It is submitted that such impairment might be brought about because the employee perceives that a union that can obtain a direct private office telephone number and ask a series of personal questions could somehow ascertain how the employee voted and that the employee could later be victimised at the instigation of the MEAA if he or she voted in favour. It is submitted that the conduct of the MEAA was intended to apply pressure to undermine the efficacy of the secret ballot and the freedom of choice of employees. It is submitted that this was unconscionable and illegitimate conduct. Further, the use of the Ryan Seven Directory involved breach of the Copyright Act and the Privacy Act.
Ryan gave evidence that it was at no time his intention to coerce any employee of Seven in connection with the proposed agreement or otherwise. Particular emphasis was, however, placed by Seven upon the failure of Warren to give evidence, he being described as the key MEAA decision maker. I am not satisfied that any relevant adverse inference should be drawn from that circumstance. Whilst no doubt Warren was a significant participant in the affairs of the MEAA, I am not satisfied that he had any particular involvement in the polling decisions. Ryan was the person most closely involved.
It is submitted for the MEAA that the poll was information gathering rather than advocacy. The method was benign and involved the voluntary participation of employees. It is submitted that there is not the slightest basis for any suggestion of intent to coerce. The onus of proof lies upon the applicant and it has not been discharged. There was no conduct that could be regarded as intended to overbear the will of any employee or that could be described as wrongful, illegitimate, illegal or unconscionable.
The principles to be applied have been discussed in a series of decisions and are not in doubt, eg Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16; National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114; National Union of Workers v Qenos Pty Ltd (2001) 106 IR 373. In my opinion the facts fall well short of establishing intent to coerce according to the authorities. There is no inhibition upon campaigning for or against such a proposed agreement by or on behalf of a union, whether the vote is to be conducted by secret ballot or otherwise.
I can accept that a poll of this kind, conducted by reference to internal telephone numbers, may have been viewed by some recipients as subtle pressure to vote ‘no’. However, I do not find that an implied threat of victimisation was intended or that there was any intent to overbear the will of those polled.
Breach of copyright – MEAA
It is contended on behalf of Seven that it owned copyright in the Seven Directory. In the light of the evidence as to the compilation of it and the decision in Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd (2002) 119 FCR 491 this is clearly correct, as was virtually conceded on behalf of MEAA.
Seven contends that in annotating the Ryan Seven Directory, MEAA reproduced the Seven Directory in material form contrary to s 36(1) of the Copyright Act 1968 (Cth) as supplemented by s 31(1)(a)(i) and s 14(1)(b) of the Copyright Act. Again, there is little doubt about the correctness of that submission.
Breach of copyright - Connect
The creation of the Access database by Connect using the annotated Ryan Seven Directory to obtain name, telephone number and location of persons, which database can be reproduced in hard copy, was the reproduction of a substantial part of the copyright in the Ryan Seven Directory (s 21(1A) of the Copyright Act) and so infringed copyright (Desktop Marketing Systems).
Breach of copyright - relief
Injunctions and orders
Seven is entitled to injunctions and orders along the lines of those sought in relation to the breaches which have been found. I will determine the form of orders if the parties do not agree. It will be up to Seven to propound draft orders.
Damages
MEAA
Nothing more than nominal damage has been proved, and no profits were earned by MEAA. It is submitted that the circumstances call for an award of additional damages pursuant to s 115(4) of the Copyright Act. I agree. The infringement was done in secret, there could have been no colour of right and it enabled the exercise by Connect to be carried out in a much quicker and more efficient fashion than would otherwise have been possible. This was a real benefit. There is no deterrence of similar infringements absent an order pursuant to s 115(4). However, the breach of copyright did not consist in obtaining the Seven Directory or in using it as such. It only relates to the particular and somewhat unusual reproduction of it by annotation. That must limit the amount of additional damages to be awarded. In my opinion the appropriate amount of additional damages is $10,000. This, together with the injunctions and orders to be made, is a sufficient remedy and there is no occasion for additional relief pursuant to s 116.
Connect
Again, nothing other than nominal damage is established, but the infringement by Connect occurred in the course of a commercial activity which, it may be assumed, yielded a modest profit overall. The direct or indirect cost of taking an account would be disproportionate to the amounts involved. I would be prepared to order that an amount of $2500 be paid on account of profits to avoid that result, but will hear the parties about that. I do not consider it appropriate to award additional damages pursuant to s 115(4). It was not established that Connect had knowledge of the circumstances under which MEAA had come into possession of the Seven Directory or of the circumstances in which the Ryan Seven Directory was prepared. The account of profits, combined with appropriate injunctions and orders, is sufficient remedy and there is no occasion to grant relief pursuant to s 116.
Breach of Privacy Act
Section 16A(2) of the Privacy Act 1988 (Cth) provides:
‘To the extent (if any) that an organisation is not bound by an approved privacy code, the organisation must not do an act, or engage in a practice, that breaches a National Privacy Principle.’
It is not disputed that each of MEAA and Connect is an organisation that is not bound by an approved privacy code and therefore falls within the meaning of that provision.
The National Privacy Principles (the Principles) are found in Schedule 3 to the Privacy Act. There is no need to set all of them out in full. Broadly speaking, they deal with the collection, use and disclosure of personal information about individuals. Seven claims that MEAA and Connect have breached the Principles in a number of respects. It seeks injunctions and positive orders pursuant to s 98 of the Act, the governing provision of which is in the following terms:
‘98 Injunctions
(1)Where a person has engaged, is engaging or is proposing to engage in any conduct that constituted or would constitute a contravention of this Act, the Federal Court or the Federal Magistrates Court may, on the application of the Commissioner or any other person, grant an injunction restraining the person from engaging in the conduct and, if in the court’s opinion it is desirable to do so, requiring the person to do any act or thing.’
It is submitted for MEAA and Connect that this claim for relief is misconceived as it is well established by authority that the Court has no direct role in the enforcement of the Principles, this being the province of the Privacy Commissioner pursuant to Part V of the Privacy Act. It is submitted that the role of the Court in the enforcement process in cases like the present is limited to proceedings pursuant to s 55A of the Act to enforce a determination of the Commissioner. The key provisions of s 55A are as follows:
‘55A Proceedings in the Federal Court or Federal Magistrates Court to enforce a determination
(1)Any of the following persons may commence proceedings in the Federal Court or the Federal Magistrates Court for an order to enforce a determination:
(a)the complainant;
(b)the Commissioner, if the determination was made under section 52;
(c)the adjudicator for the approved privacy code under which the determination was made, if it was made under an approved privacy code.
(2)If the court is satisfied that the respondent has engaged in conduct that constitutes an interference with the privacy of the complainant, the court may make such orders (including a declaration of right) as it thinks fit.’
To follow the point taken by counsel for MEAA and Connect, it is not necessary to go beyond the following passage from the judgment of Stone J in Day v Lynn [2003] FCA 879 at [50]:
‘The jurisdiction of this Court in relation to breaches of the Privacy Act is limited. The scheme of the Privacy Act is for complaints about such breaches to be made to the Privacy Commissioner who will investigate the complaint and make a determination; ss 36 and 52. Determinations of the Privacy Commissioner are not binding or conclusive between any of the parties to the determination; s 52(1B) but there is provision in s 55A for certain persons to seek to enforce a determination in this Court or in the Federal Magistrates Court. There is however no provision in the Privacy Act for a breach of the Privacy Principles to be directly actionable in this Court; Ibarcena v Templar [1999] FCA 900 at [8]-[9] per Finn J. See also Gao v Federal Privacy Commissioner [2001] FCA 1683, at [10] per Ryan J; upheld by the Full Court in Gao v Federal Privacy Commissioner [2002] FCAFC 128. The principles were also accepted by Goldberg J in Gao v Federal Privacy Commissioner [2002] FCA 823, at [22]–[23].’
The Privacy Act point was apparently not pursued on appeal (Day v Lynn [2004] FCAFC 69).
Stone J did not refer to s 98. The same is true of each of the judgments to which her Honour refers. This is explicable as there does not appear to have been a claim for orders pursuant to s 98 made in any of those cases including Day v Lynn. That is sufficient to distinguish that line of authority. I should add that the fact that those authorities relate to alleged breaches of the Information Privacy Principles by a public, rather than private, organisation may not be a sufficient basis to distinguish what is said in those authorities, as s 98 has always been a provision of the Act.
Once that line of authority is put to one side, there is no reason why s 98 should not be given effect according to its terms. The section is indistinguishable in principle from s 80 of the Trade Practices Act 1974 (Cth). (See also eg Australian Securities and Investments Commission Act 2000, s 12GD.) It is well established that that section is not to be read down. It is sufficient to refer to the decision of the High Court in Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591. There is no express provision that limits pursuit of complaints of breach of the Principles to the making of a complaint to the Privacy Commissioner and what follows from that. I can find no such necessary implication from the terms of the Act as a whole or in Part V of it. Indeed, the presence of s 55A (and also s 62 which deals with enforcement of a determination against an agency) points in the opposite direction. Further, it is by no means uncommon for there to be concurrent statutory remedies. An example is that maladministration can lead to a complaint to the Ombudsman a proceeding pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) or (in certain classes of case) an application to the Administrative Appeals Tribunal. I am satisfied that Seven is entitled to bring proceedings pursuant to s 98.
That makes it necessary to consider the merits of the allegations of breach. This consideration is not made easier by the fact that counsel for MEAA took the high ground rather than retreating to the detail in the foothills. As he did not hold the high ground, I am left without detailed submissions as to breach. I can say at once that various breaches of the Principles are established. Indeed, it is fairly obvious from both the manner in which the matter was handled at the time and from the evidence of Jenkin that neither MEAA nor Connect gave any serious consideration to the application of the Privacy Act to the task at hand, surprising as that may be in view of the significance of the extension of the Act to just such organisations as those in 2001.
The pleading of the Privacy Act breaches was as follows:
‘28.At all material times the information contained in the Seven Directory (as described in paragraph 5 above) and the information entered by Connect in the database “W:\MEAA\MEAA HSV7 (“Connect database”) in consequence of the making of each Connect call constituted personal information and/or sensitive information about each Seven employee within the meaning of s.6 of the Privacy Act (the “personal/sensitive information”).
Particulars
Seven refers to and relies upon the Ryan annotated Seven Directory, and the document on Connect letterhead titled “Organiser Brief”.
29.At all material times
neither MEAA norConnect did not requiredthe personal information for one or more of its functions or activities.30.By reason of the matters set out in paragraphs 15 to 24 (inclusive) MEAA and Connect each collected the personal information
.to the extent that it was constituted by the information in the Seven Directory.30A.By reason of the matters set out in paragraphs 19 to 24 (inclusive) Connect collected the personal/sensitive information which it obtained in consequence of making the Connect calls and which it stored in the Connect database.
31.By reason of the matters set out in paragraphs
1519 to 24 (inclusive)and30 and 30AMEAA andMEAA and Connecthave eachhave each performed an act or engaged in a practice that breached National Privacy Principle 1.1.32.In consequence of the matters set out in paragraph 31
each of MEAAor Connect has contravened s.16A of the Privacy Act.National Privacy Principle 1.2
33.Further or alternatively, by reason of the matters set out in paragraphs 15 to
2524 (inclusive)MEAA andConnecteachcollected the personal/sensitive information by unlawful and unfair meansorin an unreasonably intrusive way.Particulars
The unreasonably intrusive method of collection arises from Connect’s use of the Ryan annotated Seven Directory which, but for MEAA provision of same in circumstances where MEAA had no entitlement to make same available to it. Connect would not have had available to it the telephone numbers of the telephoned Seven employees but for the provision to it of the Ryan annotated Seven Directory.
34.By reason of the matters set out in paragraphs 15 to
2524 (inclusive) and 33MEAA andConnecthave eachhas performed an act or engaged in a practice that breached National Privacy Principle 1.2.35.In consequence of the matters set out in paragraph 34
each of MEAA andConnect has contravened s.16A of the Privacy Act.National Primary Principle 1.3
35A.Further or alternatively, at the time it made each of the Connect calls, Connect was required to inform each of the telephoned Seven employees;
(a) of Connect’s identity and how to contact Connect;
(b)the fact that the telephoned Seven employee is able to gain access to the information being collected;
(c)the fact that the information was being collected by Connect for the purpose of provision to and use by MEAA.
Particulars
Seven refers to and relies upon the provisions of National Privacy Principle 1.3.
35B.In wrongful contravention of the requirements of National Privacy Principle 1.3 Connect when it made each of the Connect calls pretended that it was the MEAA.
Particulars
Seven refers to and relies upon the Blitz Campaign script.
35C.In further breach of National Privacy Principle 1.3 Connect in making the Connect calls did not reveal to the telephoned Seven employees that fact that he or she was able to gain access to the information; the purposes for which the information was collected, nor the fact that Connect proposed passing the information on to MEAA.
Particulars
Seven refers to and relies upon the Blitz Campaign script.
35D.In consequence of the matters set out in paragraphs 35A – 35C above Connect has contravened s.16A of the Privacy Act.
National Privacy Principle 1.4
36.Further or alternatively, at all material times it was reasonable and practicable for
each of MEAA andConnect to seek to collect the personal information about each Seven employee only from that individual.37.By reason of the matters set out in paragraphs 15 to
2524 (inclusive)MEAA andConnecteachcollected the personal information about each Seven employee contained in the Ryan annotated Seven Directory other than from that individual.38.By reason of the matters set out in paragraphs 15 to
2524 (inclusive), 36 and 37 aboveMEAA andConnecthave eachhas performed an act or engaged in a practice that breached National Privacy Principle 1.439.In consequence of the matters set out in paragraph 38
each of MEAA andConnect has contravened s.16A of the Privacy Act.National Privacy Principle 1.5
40.Further or alternatively, in the circumstances set out in paragraphs 15 to
2524 (inclusive), each of MEAA and Connect collected the personal information about each Seven employee contained in the Ryan annotated Seven Directory, from someone else.41.At no time has MEAA and/or Connect
(in its own right nor as agent for MEAA)taken reasonable steps to ensure that each Seven employee has been made aware:(a)of the identity of MEAA and how to contact it;
(b)of the fact that he or she is able to gain access to the personal information;
(c)of the purpose for which each of them has collected the personal information;
(d)of the organisations (or types of organisations) to which MEAA and/or Connect usually disclose information of the kind constituted by the personal information.
42.By reason of the matters set out in paragraphs 15 to
2524 (inclusive), 40 and 41 MEAA and Connect have each performed an act or engaged in a practice that breached National Privacy Principle 1.5.43.In consequence of the matters set out in paragraph 42 each of MEAA and Connect has contravened s.16A of the Privacy Act.
National Privacy Principle 2.1
44.Further or alternatively, at all material times
both MEAA andConnectwerewas prohibited by National Privacy Principle 2.1 from using or disclosing the personal information.for the purpose of making the MEAA calls.44A.In or about July 2003 after Connect had made the Connect calls and collected information from the telephoned Seven employees Connect disclosed to MEAA the personal/sensitive information about those employees.
Particulars
The said disclosure by Connect to MEAA was made by Connect transmitting to MEAA documents containing the personal/sensitive information as stored in the Connect database in the course of performing the Channel Seven EBA Blitz Campaign. These documents are known to MEAA and Connect.
44B.Subsequent to its receipt from Connect of the said personal/sensitive information MEAA has used that personal/sensitive information in the conduct of its affairs.
45.By reason of the matters set out in paragraphs 15 to
2524 (inclusive) and 44 MEAA and Connect have each performed an act or engaged in a practice that breached National Privacy Principle 2.146.In consequence of the matters set out in paragraph 45 each of MEAA and Connect has contravened s.16A of the Privacy Act.
National Privacy Principle 10.1
47.Further or alternatively, by reason of the matters set out in paragraphs 23 and 24
MEAA andConnecthave eachhas sought to collect information from the telephoned Seven employees which was sensitive information within the meaning of s.6 of the Privacy Act.48.
Neither MEAA norConnect atanytimeno time whilst seeking to collect the sensitive information specifically requested of the telephoned employee permission to do so.49.By reason of the matters set out in paragraphs
15 to 25 (inclusive),23 and 24, 47 and 48MEAA andConnecthave eachhas performed an act or engaged in a practice that breached National Privacy Principle 10.150.In consequence of the matters set out in paragraph 49
each of MEAA andConnect has contravened s.16A of the Privacy Act.’(mark up as per pleading)
The relevant Principles are as follows:
‘1 Collection
1.1An organisation must not collect personal information unless the information is necessary for one or more of its functions or activities.
1.2An organisation must collect personal information only by lawful and fair means and not in an unreasonably intrusive way.
1.3At or before the time (or, if that is not practicable, as soon as practicable after) an organisation collects personal information about an individual from the individual, the organisation must take reasonable steps to ensure that the individual is aware of:
(a)the identity of the organisation and how to contact it; and
(b)the fact that he or she is able to gain access to the information; and
(c)the purposes for which the information is collected; and
(d)the organisations (or the types of organisations) to which the organisation usually discloses information of that kind; and
(e)any law that requires the particular information to be collected; and
(f)the main consequences (if any) for the individual if all or part of the information is not provided.
1.4If it is reasonable and practicable to do so, an organisation must collect personal information about an individual only from that individual.
1.5If an organisation collects personal information about an individual from someone else, it must take reasonable steps to ensure that the individual is or has been made aware of the matters listed in subclause 1.3 except to the extent that making the individual aware of the matters would pose a serious threat to the life or health of any individual.
2 Use and disclosure
2.1An organisation must not use or disclose personal information about an individual for a purpose (the secondary purpose) other than the primary purpose of collection unless:
(a)both of the following apply:
(i)the secondary purpose is related to the primary purpose of collection and, if the personal information is sensitive information, directly related to the primary purpose of collection;
(ii)the individual would reasonably expect the organisation to use or disclose the information for the secondary purpose; or
(b)the individual has consented to the use or disclosure; or
(c)if the information is not sensitive information and the use of the information is for the secondary purpose of direct marketing:
(i)it is impracticable for the organisation to seek the individual’s consent before that particular use; and
(ii)the organisation will not charge the individual for giving effect to a request by the individual to the organisation not to receive direct marketing communications; and
(iii)the individual has not made a request to the organisation not to receive direct marketing communications; and
(iv)in each direct marketing communication with the individual, the organisation draws to the individual’s attention, or prominently displays a notice, that he or she may express a wish not to receive any further direct marketing communications; and
(v)each written direct marketing communication by the organisation with the individual (up to and including the communication that involves the use) sets out the organisation’s business address and telephone number and, if the communication with the individual is made by fax, telex or other electronic means, a number or address at which the organisation can be directly contacted electronically; or
(d)if the information is health information and the use or disclosure is necessary for research, or the compilation or analysis of statistics, relevant to public health or public safety:
(i)it is impracticable for the organisation to seek the individual’s consent before the use or disclosure; and
(ii)the use or disclosure is conducted in accordance with guidelines approved by the Commissioner under section 95A for the purposes of this subparagraph; and
(iii)in the case of disclosure—the organisation reasonably believes that the recipient of the health information will not disclose the health information, or personal information derived from the health information; or
(e)the organisation reasonably believes that the use or disclosure is necessary to lessen or prevent:
(i)a serious and imminent threat to an individual’s life, health or safety; or
(ii)a serious threat to public health or public safety; or
(f)the organisation has reason to suspect that unlawful activity has been, is being or may be engaged in, and uses or discloses the personal information as a necessary part of its investigation of the matter or in reporting its concerns to relevant persons or authorities; or
(g)the use or disclosure is required or authorised by or under law; or
(h)the organisation reasonably believes that the use or disclosure is reasonably necessary for one or more of the following by or on behalf of an enforcement body:
(i)the prevention, detection, investigation, prosecution or punishment of criminal offences, breaches of a law imposing a penalty or sanction or breaches of a prescribed law;
(ii)the enforcement of laws relating to the confiscation of the proceeds of crime;
(iii)the protection of the public revenue;
(iv)the prevention, detection, investigation or remedying of seriously improper conduct or prescribed conduct;
(v)the preparation for, or conduct of, proceedings before any court or tribunal, or implementation of the orders of a court or tribunal.
…
10 Sensitive information
10.1An organisation must not collect sensitive information about an individual unless:
(a)the individual has consented; or
(b)the collection is required by law; or
(c)the collection is necessary to prevent or lessen a serious and imminent threat to the life or health of any individual, where the individual whom the information concerns:
(i)is physically or legally incapable of giving consent to the collection; or
(ii)physically cannot communicate consent to the collection; or
(d)if the information is collected in the course of the activities of a non‑profit organisation—the following conditions are satisfied:
(i)the information relates solely to the members of the organisation or to individuals who have regular contact with it in connection with its activities;
(ii)at or before the time of collecting the information, the organisation undertakes to the individual whom the information concerns that the organisation will not disclose the information without the individual’s consent; or
(e)the collection is necessary for the establishment, exercise or defence of a legal or equitable claim.’
Other relevant sections of the Privacy Act are as follows:
‘6A Breach of a National Privacy Principle
Breach if contrary to, or inconsistent with, Principle
(1)For the purposes of this Act, an act or practice breaches a National Privacy Principle if, and only if, it is contrary to, or inconsistent with, that National Privacy Principle.
…
16B Personal information in records
(1)This Act (except Divisions 4 and 5 of Part III and Part IIIA) applies to the collection of personal information by an organisation only if the information is collected for inclusion in a record or a generally available publication.’
The interpretation section provides as follows:
‘6 Interpretation
…personal information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
…
record means:
(a)a document; or
(b)a database (however kept); or
(c)a photograph or other pictorial representation of a person;
but does not include:
(d)a generally available publication; or
(e)anything kept in a library, art gallery or museum for the purposes of reference, study or exhibition; or
(f)Commonwealth records as defined by subsection 3(1) of the Archives Act 1983 that are in the open access period for the purposes of that Act; or
(fa)records (as defined in the Archives Act 1983) in the custody of the Archives (as defined in that Act) in relation to which the Archives has entered into arrangements with a person other than a Commonwealth institution (as defined in that Act) providing for the extent to which the Archives or other persons are to have access to the records; or
(g)documents placed by or on behalf of a person (other than an agency) in the memorial collection within the meaning of the Australian War Memorial Act 1980; or
(h)letters or other articles in the course of transmission by post.
…
sensitive information means:
(a) information or an opinion about an individual’s:
(i) racial or ethnic origin; or
(ii) political opinions; or
(iii) membership of a political association; or
(iv) religious beliefs or affiliations; or
(v) philosophical beliefs; or
(vi) membership of a professional or trade association; or
(vii) membership of a trade union; or
(viii) sexual preferences or practices; or
(ix) criminal record;
that is also personal information; or
(b) health information about an individual.’
MEAA
Principle 1
The first issue is whether in receiving the Seven Directory, MEAA ‘collected’ personal information. In my opinion it did within the ordinary meaning of ‘collection’. It would not always be the case that the passive receipt of information could be described as ‘collecting’ information. In the present instance MEAA has simply not led any evidence which I accept as to the provenance of the Seven Directory. That is no doubt because it wishes to protect the identity of the source of the document. In the absence of such evidence I am entitled to infer, (and do infer), that it would not have assisted the case for MEAA. I infer that some active step was taken on behalf of MEAA to obtain the information. Furthermore, in my opinion it was obviously retained amongst the records of MEAA and is within the extended definition of ‘record’ being part of a manually kept database. In my opinion the information is ‘personal’ in the statutory sense. To know where and for which organisation a person works and the work telephone number of the person is ‘personal’ as required. The information was not necessary for any function of MEAA, although undoubtedly it was very useful. However, s 16C provides that Principle 1 applies only in relation to the collection of personal information after 21 December 2001. All that can be established is that the Seven Directory was printed by 30 August 2001. As I have said, there is no evidence that I accept as to how and when it was received by MEAA. I do not think that any inference that arises because of the absence of such evidence would supply proof that it was received after 21 December 2001. Therefore, this breach is not established.
Another issue is whether the survey information received by MEAA from Connect was caught by Principle 1. The lists of those employees with an interest in MEAA and of those wishing to receive more information about MEAA plainly contain personal information about those employees. That information, no matter how useful or desirable to MEAA, was hardly necessary for any of its functions. In my opinion the commissioning of the survey seeking the information that was conveyed and the obtaining of the report as a result can properly be described as ‘collecting’ that information which was in permanent form and retained by MEAA amongst its records for use and so is within the extended definition of ‘record’. It follows that MEAA was in breach of Principle 1.1 in relation to the information received as a result of the survey. Furthermore, there is no evidence of any compliance with Principle 1.5 by MEAA in that case. It is apparent from the Connect script that it did not comply with Principle 1.3.
Connect
Principle 1
As discussed in relation to MEAA, there is little doubt that the conducting of the telephone poll can be classified as the collection of ‘personal information’. The information was clearly collected for inclusion in a ‘record’. The question is whether that information was necessary for one or more of the functions or activities of Connect. It is submitted for Seven that the relevant function or activity of Connect was as a call centre and that the information was not necessary for that function.
However described, Connect did initiate calls to persons on behalf of clients as part of its business. I would regard conducting a poll of the kind undertaken here as a function or activity of Connect. Is the information necessary for that function or activity? In one sense, the answer must be in the affirmative. If a client wants to obtain certain kinds of information that happen to be personal within the meaning of the Privacy Act and contracts out the task of doing so, then collecting that information is necessary in the carrying out of that function by the agent. On the other hand, the manner in which the information is obtained (by telephone polling) does not depend upon the nature of the information. Further, if the Principle is construed in favour of Connect, then the most personal of information can be collected by a contract market researcher provided that the information is required by the client. That is a surprising result at first blush.
Nonetheless, I have come to the conclusion that Seven’s arguments as to the construction of Principle 1.1 should be rejected. The information sought by the client was necessary for the functions and activities of Connect. There are two safeguards. The first is that the balance of Principle 1 is designed to regulate the means by which the function is carried out. The second is that the client is bound by Principle 1.1 in circumstances where the market researcher is simply a contractor. In the present case it is MEAA that has to justify the collection of the information.
I am not satisfied that there was any breach of Principle 1.2. I do not regard the statements made by Connect telephonists identifying themselves as calling from MEAA as unlawful or unfair. Whilst they were in one sense incorrect, they accorded with the reality of the situation. Connect was acting as a mere agent of MEAA. I do not find that Connect knew that the Ryan Seven Directory had been obtained surreptitiously or was being used improperly.
As I have remarked earlier, the script used by Connect makes it apparent that there was no compliance with Principle 1.3. In that connection, in my opinion, Connect was the organisation referred to in Principle 1.3(a).
It is argued for Seven that Connect breached Principle 1.4 because it collected personal information about the individuals in the Ryan Seven Directory from MEAA, and not from the individuals concerned. Given the function to be performed, it was not reasonable or practicable for it to collect the information only from the individual. Neither do I regard what was done by Connect as a breach of Principle 1.5.
Principle 2
It is submitted for Seven that the primary purpose of collection was that of Connect, and the release to MEAA of the information was a secondary purpose that was not related to the primary purpose and, in so far as it related to sensitive information (eg information about membership of a trade union) was not directly related to the primary purpose. I am not satisfied that there is a primary and a secondary purpose in an agency situation like the present. If there is, then the better view is that the primary purpose is that of the principal MEAA. In any event, if there are two purposes, they were directly related. There is no breach of Principle 2. That Principle is directed to a case where information obtained properly for one purpose is collaterally exploited for another purpose. That is not this case.
Principle 10
It is submitted that, as Connect pretended to be MEAA and did not make full disclosure as to what it was doing, there was no informed consent by the individuals polled. I do not accept that argument. The questions were clear enough. The individuals had a choice as to whether to answer. There is no breach of Principle 10.
Relief
Seven is entitled to injunctions and orders along the lines of those sought pursuant to s 98 in relation to the breaches of the Privacy Act that have been found. The principles that have developed in relation to s 80 of the Trade Practices Act give useful guidance. I will determine the form of orders if the parties do not agree. It will be up to Seven to propound draft orders.
Breach of confidence
The claim for breach of confidence is not pursued.
Costs
It is submitted on behalf of MEAA and Connect that s 347 of the Workplace Relations Act1996 immunises them from any order for costs in the proceeding as they are parties to a proceeding in a matter arising under that Act and did not institute the proceeding. It is submitted that the joinder of other causes of action and the result of those other causes of action does not affect that immunity, citing Maritime Union of Australia v Geraldton Port Authority (2000) 94 IR 404 at [61]–[78]. In fact MEAA and Connect go further and submit that they are each entitled to an order for costs as Seven instituted the proceeding vexatiously or without reasonable cause. They refer to the test enunciated by Wilcox J in Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 at 264–265.
I reject the latter submission. I have held that the evidence falls well short of the requisite threshold for establishing intent to coerce. I accept that the claim of breach of s 170NC was always problematic, perhaps even somewhat adventurous. However, a last minute onslaught of direct contact by a union with employees on private work telephones at a critical stage of the campaign was well out of the ordinary, and a fear that it might be intended to coerce employees was not far-fetched. I am not satisfied that instituting the proceeding was either vexatious or without reasonable cause. I must bear in mind the warnings that courts should not be too ready to lift the immunity (eg Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 272; Thompson v Hodder (1989) 21 FCR 467 at 470).
The former submission obtains considerable support from the passages cited from the judgment of RD Nicholson J in Maritime Union of Australia v Geraldton Port Authority which included consideration of a body of prior authority. It is submitted on behalf of Seven that that decision is distinguishable because the other causes of action were there common law claims only joined pursuant to the accrued or associated jurisdiction, whereas the other claims in this case are federal claims. Whilst that is a point of difference between that case and this one, it may not be critical to the reasoning of RD Nicholson J, which might be summarised (at the cost of completeness) as ‘once a Workplace Relations Act proceeding always a Workplace Relations Act proceeding’. The result of that reasoning would be somewhat surprising in the present case.
This can most clearly be seen when considering the position of Connect. There is not and there never was any Workplace Relations Act claim against it. The other separate federal claims against it have succeeded. The same point would arise in relation to a cross claim to enforce a separate statutory cause of action filed in a proceeding instituted pursuant to the Workplace Relations Act. As counsel for Seven points out, it was necessary that the other claims be brought here in order to avoid an Anshun estoppel. It is certainly desirable in the interests of justice that all questions arising out of the same substratum of fact should be heard together. It is difficult to see why discrete federal claims that are pursued in the one proceeding should be affected by being caught up with a Workplace Relations Act claim even if arising out of the same general course of events.
I conclude that a separate federal claim is not ‘in a matter arising under’ the Workplace Relations Act within the meaning of s 347. I am not concerned with the accrued or associated jurisdiction. Thus, the claims for breach of the Copyright Act and breach of the Privacy Act are not caught by s 347.
It follows that Connect is to pay the costs of the proceeding against it. MEAA is entitled to the full benefit of the s 347 immunity, but should pay the costs of the other successful causes of action. In my opinion that means that in these circumstances the costs to be borne by MEAA should only be those that can be identified as costs which would not have been incurred in relation to the s 347 cause of action in any event and are only attributable to the other successful causes of action. The assessment and taxation of costs will ensure that there is no doubling up of costs to be paid to Seven as a result of each order.
The proceeding will stand over to enable formal orders to be made to give effect to these reasons.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate:
Dated: 21 May 2004
Counsel for the Applicant: MD Wyles Solicitor for the Applicant: Clayton Utz Counsel for the First and Second Respondents: J Nolan Solicitor for the First Respondent: Shaw McDonald Solicitor for the Second Respondent: A Watson Date of Hearing: 17–20 November 2003 Date of Judgment: 21 May 2004
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