WT v Auburn Council

[2007] NSWADT 253

CITATION:	WT v Auburn Council [2007] NSWADT 253
DIVISION:	General Division
PARTIES:	APPLICANT WT RESPONDENT Auburn Council
FILE NUMBER:	063181
HEARING DATES:	18 May 2007
SUBMISSIONS CLOSED:	18 May 2007
DATE OF DECISION:	18 October 2007
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Privacy - information protection principle - disclosure to third party
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Local Government Act 1993 Privacy and Personal Information Protection Act 1998
CASES CITED:	JD v NSW Medical Board (No.2) [2006] NSWADT 345 NW v NSW Fire Brigade (No.2) [2006] NSWADT 61 NZ v Director General Department of Housing [2006] NSWADT 173 GR v Department of Housing (No.2) [2005] NSWADT 301 RD v Department of Education and Training [2005] NSWADT 195 Re Rummery & The Federal Privacy Commissioner & Anor [2004] AATA 1221
REPRESENTATION:	APPLICANT In person RESPONDENT R Oldfield, solicitor
ORDERS:	Pursuant to section 55(2)(a) of the Privacy and Personal Information Protection Act 1998, the Auburn Council is to pay to the applicant damages in the sum of $5,000.

Background

1 This is an application by WT (‘the applicant’), seeking review of the action taken by Auburn Council (‘the respondent’) in respect to conduct by the respondent, which was conduct that breached the disclosure ‘information protection principle’ as set out under s.18 of the Privacy and Personal Information Act 1998 (‘the PPIP Act’). The conduct in question was the respondent’s disclosure, to Moray & Agnew Solicitors, of documents it held containing personal information about the applicant and his property. Moray & Agnew Solicitors, who were acting on behalf of the insurer, NRMA Insurance, had requested the documents under s.12 of the Local Government Act 1993, for the purpose of defending the applicant’s proposed claim for compensation for personal injuries he had suffered as a result of a motor vehicle accident that occurred on 25 February 2002. On becoming aware of the disclosure, on 18 January 2006, pursuant to s.53 of the PPIP Act, the applicant made a request to the respondent for internal review in respect to that conduct.

2 In its internal review notification to the applicant, the respondent acknowledged that the disclosure of the documents had been a disclosure contrary to s.18 of the PPIP Act. At the same time the respondent contended that it was an ‘unintentional’ disclosure as the relevant officer of the respondent had ‘… incorrectly relied on written advice provided by Moray & Agnew that the documents sought were available under Section 12 of the Local Government Act 1993.’ The respondent has not resiled from this position and the matter has proceeded before the tribunal on the basis that the disclosure of the documents to Moray & Agnew was a breach of s.18 of the PPIP Act.

3 The action the respondent proposed as a result of the contravention was training and ongoing training sessions for all officers engaged in dealing with requests for the disclosure of information held by the respondent, training for newly engaged staff, the issue of a formal apology to the applicant and offer of compensation for any harm caused to the applicant. This offer of compensation was made on a without prejudice basis and without admission as to liability to pay the applicant compensation as a result of the respondent’s conduct.

4 The applicant being dissatisfied with the proposed action of the respondent, in particular the amount offered for compensation, he sought review, by the tribunal, pursuant to s.55(1) of the PPIP Act, of the proposed action. In his application for review the applicant sought the following orders pursuant to s.55(2) of that Act:

(a) an order requiring the respondent to pay the applicant damages not exceeding $40,000 by way of compensation for loss or damage suffered because of the conduct,

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

(f) an order requiring the respondent not to disclose personal information contained in a public register.

5 The latter order is misconceived as the information the subject of this application was not information that was contained on a public register. It is also noted that the applicant did not press this and for this reason it has not been considered it any further.

Relevant legislation

6 The PPIP Act provides for the protection of personal information that is collected, stored, held, used and disclosed by a public sector agency. These protections are contained in Part 2 of the Act and are described as ‘information protection principles’. There are twelve ‘information protection principles’ and public sector agencies are obliged to comply with these principles unless they are exempt from complying by reason of one or more of the other provisions of that Act (e.g. s.23 – exemptions relating to law enforcement and related matters and the other exclusions provided in each of the ‘information protection principles’).

7 As mentioned above, the ‘information protection principle’ that is relevant to this application is the provision which limits an agency’s ability to disclose documents it holds and which contain personal information: see s.18 of the PPIP Act. It is unnecessary to repeat the relevant provision other than to state that the respondent’s disclosure of the documents the subject of this application was not a disclosure that was authorised by that provision.

8 Part 5 of PPIP Act makes provision for a person to seek review of conduct by a public sector agency which he/she asserts is conduct that contravenes an information protection principle which applies to that agency. That process of review is commenced by the person making a written request for an internal review under s.53(1) of the PPIP Act. The agency is responsible for conducting the review within 60 days from the day on which the internal review request was received (see s.53(2), (4), (5) and (6) of the PPIP Act) and ‘following the completion of the review’ the agency is expressly given the power to do one or more of the following in s.53(7) of the Act:

‘(a) take no further action on the matter,

(b) make a formal apology to the applicant,

(c) take such remedial action as it seems appropriate (e.g. the payment of monetary compensation to the applicant),

(d) provide undertakings that the conduct will not occur again,

(e) implement administrative measures to ensure that the conduct will not occur again.’

9 If dissatisfied with the agency’s findings of the review or the action taken by it in relation to the review, s.55(1) of the PPIP Act gives the person a right to apply to the tribunal for a further review of the conduct that was the subject of the person’s internal review request.

10 The tribunal’s power on review is also set out in s.55 of the PPIP Act, the relevant parts of which provide as follows:

‘ 55 Review of conduct by Tribunal
(1) …

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

(a) subject to subsection (3), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,

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

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

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

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

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

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

(3) …

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

(a) …

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

11 In order to understand the basis of the applicant’s assertions about the loss and damage he allegedly suffered as a result of the respondent’s contravening conduct, it is necessary to briefly set out the contravening conduct and the nature of the documents that were disclosed.

12 On 21 June 2005, Moray & Agnew Solicitors wrote to the records department of the respondent requesting specified documents relating to the applicant’s property. The letter expressly said that the application for documents was a ‘Privacy Act Section 12 Application’. However, the reference to s.12 was a reference to s.12 of the Local Government Act 1983 and not the PPIP Act.

13 The author of the letter confirmed that Moray & Agnew Solicitors were acting on behalf of NRMA Insurance in regard to the applicant’s motor vehicle personal injury claim and went on to say as follows:

‘As part of [the applicant’s] claim for damages he alleges that he is unable to care for his property and as such it has fallen into such a state of disrepair that numerous complains have been made to the [respondent]. Would you kindly provide us with all documentation on file regarding complaints about [the applicant’s] property in order to help us assess our claim. We anticipate these will include but not be limited to: …’

14 Enclosed with the letter was an authority signed by the applicant on 23 April 2002, which the author of the letter asserted ‘allowed’ the respondent to release the information as requested.

15 The declaration in fact authorised the nominal defendant or the insurer against whom the claim was being made, to contact and obtain information and documents relevant to the claim from any ‘doctor, ambulance, hospital or other service provider, any employer or accountant of the injured person, any police department, any personal injury claim insurer, any property damage insurer, any workers compensation insurer, Centrelink, and Health Insurance Commission’.

16 Following receipt of the letter, on 29 June 2006, Ms B. an officer of the respondent extracted and copied the documents requested and prepared them for disclosure subject to receipt of payment. On 10 October 2005, after payment had been received the documents were disclosed.

17 The documents that were disclosed by the respondent were dated between 26 May and August 2000 and November 2002 and 23 December 2003. In summary these documents consisted of the following:

(a) complaints;

(b) notice of proposed orders under s.124(21) of the LG Act;

(c) orders made under s.124(21) of the LG Act;

(d) infringement notice;

(e) correspondence between the applicant and the respondent;

(f) photographs of the applicant’s backyard;

(g) an internal memorandum from the Corporate Services Department to the General Manager of the respondent;

(h) a medical certificate; and

(i) a doctor’s report.

18 The documents all related to the applicant’s property and reports about the applicant’s health.

Applicant’s Case on Damages

19 The applicant contended that the loss and damage he suffered as a result of the respondent’s disclosure was as follows:

(a) the loss of $145,000.00 in compensation payment (i.e. damages) for personal injuries he suffered as a result of a car accident in 2002 and 2004. The applicant had not commenced legal proceedings in regard to his claim, but he had engaged a solicitor for this purpose. That solicitor, as is usual, had communicated with NRMA Insurance Ltd, the insurer for the potential defendant, in regard to the applicant’s claim. As part of those discussions on 22 February 2005, the applicant’s solicitor wrote to NRMA Insurance Ltd, on a ‘without prejudice’ basis, offering to settle the applicant’s claim for an amount of $145,000.00 plus costs. This amount was made up of $10,000 for past out of pocket expenses that remained outstanding, $30,000 for future out of pocket expenses, $20,000 for past home care and $85,000.00 for future home care. Following the disclosure of the documents by the respondent, the applicant’s solicitor advised him that his claim was worth nothing (see [23] below);

(b) the inability to recover from NRMA Insurance Ltd the costs of his solicitor in pursuing his claim. These costs and disbursements were set out in two tax invoices dated 3 February 2006 for a sum of $9,798.80 and $26,827.00; and

(c) damages for psychological harm in the form of depression and anxiety. The applicant’s evidence was that the depression and anxiety had manifested itself by him being unable to sleep or eat. He also said that he had been unable to secure another lawyer to represent him in regard to his personal injury claim, and this caused him further strain and anxiety.

20 In regard to the alleged psychological harm, the applicant relied on a report of Dr Alex Sharah, consultant psychiatrist, dated 8 January 2007. In that report Dr Sharah said that, on 12 May 2006, the applicant’s general practitioner referred the applicant to him for consultation. Dr Sharah also said the following:

‘…and then [the applicant] had been involved in several motor accidents, the first one on 27/8/1983 and then on 24/4/1984, 7/10/1987, 25/2/2004 and 14/7/2004.

The 1983, 1984 and 1987 accidents were all lumped together in which he suffered injury to his back, neck and psychiatrist problems.

The injuries in 2002 and 2004 were combined by the insurance company…

He has had to use a stick since those accidents when he gets around. He is unable to engage in walking or in his other interests, going to the country and bushwalking and enjoying nature as he used to do…

His claim for compensation has been rejected on the basis of a breach of privacy in which the details of his involvement with the Auburn Council were disclosed to his solicitors and were used to discredit his claim.

He has, in the past, been treated for depression with Dr Samad, a psychiatrist, but he had been well in the years prior to these accidents in 1982 and 1984. Following on the 1984 accident he has been on anti-depressants again and I have been treating him with Tosranil 100 mg/day (a potent anti-depressant) since he saw me.

His present problem now is that he cannot sleep well, suffering from nightmares and anxiety and waking in a sweat. He has been coming for psychiatric sessions since he saw me, to deal with these and to continue on his medication.

He feels now alienated from Council where he lives and that he can’t trust them. He has had nightmares in which he has imagined agents of the Council have visited him and made an inspection. He has woken up in a sweat at times.

…He worries about how he will manage to live his own life independently without compensation to help him in keeping his house in order and occasionally personal care he feels is required. He has been seen by me for depression and will probably require the same care over the next year at monthly intervals. There is also the requirement to pay for his medication. These costs concern him although he doesn’t pay to see me, he does when he gets his medication.’

21 During his evidence the applicant said that the cost of his medication, per month was between, $100 to $150.

22 The applicant also relied on a statutory declaration of his solicitor, dated 28 June 2006. In that declaration the solicitor set out the conversation he had with Moray & Agnew Solicitors and the applicant in regard to the documents disclosed by the respondent. In respect to his conversation with Moray & Agnew Solicitors the applicant’s solicitor said he was told words to the effect of:

‘We are not willing to offer any more money than what we previously offered. We have obtained some papers from Auburn Council and it appears that your client had received several complaints … about the state of his yard well before the motor vehicle accident.’

23 In respect to his conversation with the applicant he said he used words to the following effect of:

‘The solicitor for NRMA has told me that he has obtained papers from Auburn Council concerning complaints about the state of your yard … The effect of these documents means that the care component of your claim is now worth nothing and your credibility is also affected, so it affects the overall value of your claim. I advise that we should resolve your claim now. I cannot get any more money, it was when I rang the solicitor to try and get more money that he told me this. Your claim is worth nothing and we should take what we can get.’

24 Mr Oldfield, on behalf of the respondent, submitted that the applicant had failed to produce sufficient evidence to establish that the loss he had claimed was in fact caused by the conduct of the respondent in releasing the documents in question. He argued that the report of Dr Sharah failed to attribute the applicant’s current depressive illness and need for ongoing psychiatric treatment and medication as being attributable to the conduct of the respondent. That is, this illness was attributable to a pre-existing injury, namely his 2002 and 2004 car accidents.

25 In addition to this, Mr Oldfield submitted that the alleged financial loss suffered by the applicant was not caused by the conduct of the respondent. In the event the tribunal were to find to the contrary, Mr Oldfield submitted that the applicant had failed to establish his actual financial loss. In this regard he pointed to the fact that the letter of 22 February 2005 from the applicant’s then solicitor to NRMA Insurance Ltd was essentially a ‘wish list’ in that it was presented for the purposes of negotiating a settlement of the applicant’s claim and it was not a document that the tribunal could place any weight on. Mr Oldfield also pointed out that the statutory declaration of the applicant’s former solicitor did not go so far as to say that the applicant’s personal injury claim was not worth anything. To the contrary, the applicant’s former solicitor only made reference to the care component of the applicant’s claim being worth nothing. Otherwise, in regard to the applicant’s claim generally the solicitor indicated that he could not get any more money than what had been offered previously by NRMA Insurance Ltd. There was no evidence as to what that amount may have been.

Consideration

Applicable principles

26 The tribunal has considered the question of compensation under the PPIP Act on a number of occasions: see JD v NSW Medical Board (No.2) [2006] NSWADT 345; NW v NSW Fire Brigade (No.2) [2006] NSWADT 61, NZ v Director General Department of Housing [2006] NSWADT 173; GR v Department of Housing (No.2) [2005] NSWADT 301 and RD v Department of Education and Training [2005] NSWADT 195. Cited with approval in some of these decisions is the decision of the Commonwealth Administrative Appeals Tribunal in Re Rummery & The Federal Privacy Commissioner & Anor [2004] AATA 1221.

27 The principles set out in the abovementioned decisions and which are relevant to this applicant are:

(a) that damages are compensatory in that the applicant should be awarded such sums of money so as that he/she may be restored to the position that he/she would have been in but for the breach: see GR (supra) at [26] and Rummery (supra) at [32]. However, this must also be viewed in the context of the $40,000 limit as provided for in the PPIP Act;

(b) in measuring compensation the principles of damages as apply in tort law are a guidance but the ultimate guide is the wording of the PPIP Act and its objectives: see NW (supra) at [22];

(c) 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: see Rummery (supra) at [46] as adopted in NZ (supra) at [35];

(d) ‘psychological harm’ in s.55(4) of the PPIP Act is intended to encompass situations where an individual suffered some impairment of the mental states and processes. These being conditions such as depression and anxiety: see JD v NSW Medical Board (N0. 2) at [53]; and

(e) even where an applicant is able to substantiate loss or damage as a result of conduct that contravenes an ‘information principle’ under the PPIP Act, an award of damages under that Act remains a discretionary one: see NW (supra) at [23] and [24] and cf. Re Rummery (supra) at [32].

28 It is noted that an agency’s power to award monetary compensation under s.53(7)(c) of the PPIP Act is considerably wider than that contained in s.55(2)(a) and (4) of the Act. It is the later provision which binds the tribunal in regard to the compensation orders it may make.

Applicant’s loss and damage

29 The applicant claims compensation for both financial loss and psychological harm. In order to meet the threshold of being entitled to an order for compensation under s.55(2)(a) of the PPIP Act the tribunal must be satisfied, on the balance of probability, that:

(a) the applicant has in fact suffered the financial loss and psychological harm as alleged; and

(b) that this loss and harm was in fact ‘caused’ by the respondent’s disclosure of the documents concerning the applicant to Moray & Agnew Solicitors.

30 Financial Loss – there are two aspects to the applicant’s alleged financial loss. One relates to the amount of compensation the applicant alleges he lost and the other relates to his solicitor’s costs. In the case of the former, the amount claimed by the applicant is an unrealised or unliquidated amount and the tribunal agrees with the submissions of the respondent that the letter of 22 February 2005 from the applicant’s solicitor to NRMA Insurance does not evidence an actual award of damages to which the applicant was entitled to.

31 The applicant’s case however, is best described as a claim for the loss of an opportunity. That opportunity being the payment of compensation for a sum of $185,000 from NRMA Insurance as settlement of his claim together with a payment to cover his solicitor’s fees. However, as explained to the applicant on several occasions, the opportunity to settle or litigate his claim had not been lost. At the same time, at no stage, prior to the respondents release of the documents or thereafter, was there an agreement by NRMA Insurance that the applicant was entitled to a compensation payment of $185,000 plus costs. This was purely and assessment made by the applicant’s solicitor. Accordingly, it cannot be said that this represented what the applicant’s claim was in fact worth – it was purely speculative. Ultimately the value of the applicant’s motor vehicle compensation claim can only be determined by agreement between the relevant parties or by a court. It is not a matter for determination by the tribunal.

32 In regard to the memorandum of costs and disbursements of the applicant’s former solicitor, the tribunal notes that they appear to include costs and disbursements relating to matters other than the applicant’s motor vehicle personal injury claim. Leaving this aside, the costs and disbursements, all incurred prior to the respondent’s conduct the subject of this application, were all incurred on instructions from the applicant. These costs are stated to be in accordance with a cost disclosure the applicant received from his solicitor. What is not clear is whether the costs were contingent on the applicant succeeding in his claim for compensation and if they were the basis on which they were contingent.

33 In any event, the applicant’s claim in regard to these costs is once again best described as a loss of opportunity to recover these costs in total, or part there of, following a successful pursuit of his motor vehicle compensation claim. For the same reasons set out above, I am not satisfied that the applicant has lost the opportunity to claim these costs and the amount of the costs that may be recoverable will depend on what is agreed at settlement or as determined by a court.

34 Accordingly, I find that the applicant has failed to establish his alleged financial loss in regard to his motor vehicle compensation claim and on this basis alone his claim for that loss must fail.

35 Psychological harm – I accept the applicant’s evidence and that of Dr Alex Sharah that the respondent’s conduct in releasing the documents about the applicant and his property caused the applicant to suffer depression and anxiety. I do not read the report of Dr Alex Sharah as narrowly as submitted by the respondent. He saw the applicant for the first time after the respondent’s disclosure and his report should be read in that context; namely that his treatment of the applicant related to the depression and anxiety the applicant had suffered as a result of the conduct of the respondent. While the applicant readily acknowledged having suffered from depression previously his evidence was that at the time of the disclosure he was only taking a minimum amount of medication, if any. However, following the disclosure by the respondent his depressive illness has become worse resulting in him taking considerably more medication.

36 Accordingly, I am satisfied that the applicant suffered psychological harm as a result of the respondent’s conduct in releasing the documents concerning the applicant and his property to Moray & Agnew Solicitors. However, it is not clear for how long the applicant will require treatment for this illness in so far as it is causative of the respondent’s conduct. There are clearly other ongoing issues which effect the applicant’s health and psychological well being. However, I accept that at the time of hearing it remained a contributing factor to his illness.

37 As mentioned above, the general principles in regard to the quantum of damages, is that they are compensatory in that the applicant be awarded such sums of money so that he may be restored to the position that he would have been in, but for the respondent’s contravention. However, in the case of damages under the PPIP Act regard is to be had to the upper limit that may be awarded.

38 The applicant’s in GR v Department of Housing (No.2) (supra) and JD v NSW Medical Board (No 2) (supra) each made a claim for psychological damage as a result of a breach of the respective respondent public sector agencies. In GR, and in JD the tribunal awarded an amount of $7,500 in damages. In a recent decision of Acting Deputy President R Handley in JD v NSW Department of Health [2007] NSWADT 219 the tribunal made an order for damages for the sum of $4,500 in respect to psychological harm suffered by JD as a result of a contravention of s.18 of the PPIP Act by the respondent Department.

39 While each application must be considered in light of its own facts, in my opinion the abovementioned decisions provide some guidance.

40 In this application, having regard to the impact the disclosure has had on the applicant, the fact that the applicant has had to pay additional amounts for his medication and the upper limit of damages that the tribunal is able to award, I consider an amount of $5,000 is the appropriate amount of damages in the circumstances.

41 Discretion – The final question for determination is whether the tribunal should exercise its discretion and make an order under s.55(2)(a) of the PPIP Act.

42 Although the respondent has at all times asserted that the contravention was an unintentional one, it can only have arisen because the respondent did not have adequate policies and procedures in place to ensure that its officers complied with the provisions of the PPIP Act. How these provisions interact with provisions such as s.12 of the Local Government Act 1993 were clearly misconceived and misunderstood by the officer who released the documents in this application.

43 At the same time the respondent has at all times acknowledged the error.

44 It was also raised during the hearing that had proceedings been commenced by the applicant, then NRMA Limited could have sought the issue of a subpoena ordering the respondent to produce the documents in question to the court. That may have been the case, but this does not justify the release of those documents otherwise. Had a subpoena been issued, the applicant, under current court procedures, would have been advised of the issue of that subpoena. In this case he was not given any such warning.

45 Accordingly, on the material before the tribunal, there is no basis to not make the order sought.

Orders

Pursuant to section 55(2)(a) of the Privacy and Personal Information Protection Act 1998, the Auburn Council is to pay to the applicant damages in the sum of $5,000.