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- Unreported Judgment
TOV v VEP  QCAT 94
Other civil dispute matters
On the papers
Senior Member Brown
18 March 2016
INFORMATION PRIVACY – leave for representation – whether in the interests of justice for party to be legally represented – whether proceeding likely to involve complex questions of fact or law
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 43, sch 3
Information Privacy Act 2009 (Qld), s 36, s 176, sch 5
AXP v Queensland Police Service  QCAT 680
Briginshaw v Briginshaw (1938) 60 CLR 336
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- TOV complains that VEP breached his privacy. On 13 November 2015 the Office of the Information Commissioner referred TOV’s complaint to the Tribunal. On 24 February 2015 VEP filed an application for leave to be legally represented. On 1 March 2016 I made directions that the parties be given leave to be legally represented in the proceedings. These are the reasons for my decision.
- Following TOV’s complaint to the Office of the Information Commissioner, the OIC referred the complaint to the Tribunal in November 2015. TOV and VEP have subsequently filed in the Tribunal their respective statements of evidence and documents upon which they rely. VEP denies that it breached TOV’s privacy.
- VEP has filed an application for leave to be represented. TOV opposes the application.
- TOV says that he is not in a position to afford legal representation which would result in injustice and an inequitable situation in the proceedings if VEP was to be legally represented. He says that he would ‘not satisfy (the) QCAT test to qualify for legal representation’. TOV says that VEP has not provided any argument to support how the interests of justice would be served in permitting the parties to be represented. He says that VEP is not a state agency and that it has not provided any legal argument on questions of fact or law in support of its application for representation. TOV says that the sensitivities surrounding any information presented in the proceedings is sufficiently protected by law and that VEP can call upon the Department of Communities, Child Safety and Disability Services (the Department) ‘as a co-respondent’ if it has concerns about the legal requirements applying to young people under statutory care orders.
- The starting principle in any consideration of whether to grant representation in the Tribunal is that parties represent themselves unless the interests of justice require otherwise. The Tribunal may consider a number of circumstances as supporting the giving of leave to be represented including the party is a State agency and the proceeding is likely to involve complex questions of fact and law.
- VEP concedes that it is not a State agency within the meaning of Schedule 3 of the QCAT Act. It says however that it is obliged to comply with the Information Privacy Principles (‘IPP’s’) as a consequence of having entered into a service arrangement with the Department and that the Department is a State agency. VEP says that the Department would be entitled to be legally represented if it was a respondent to the proceedings and that as the complaint stems from obligations imposed on it by virtue of its contractual relationship with the Department, it follows that the interests of justice are best served by permitting VEP to be legally represented.
- TOV’s privacy complaint relates to what he says were statements about him made by employees of VEP to persons in VEP’s care which he says were based upon information concerning TOV that may be held by VEP. An external investigation by VEP concluded that there had been no breach by VEP of TOV’s privacy. Following TOV’s complaint the OIC concluded that it was unlikely that a resolution of the matter could be achieved through mediation. TOV subsequently requested the OIC refer the matter to the Tribunal.
- The IPA, despite having been in force and effect for some years, has been the subject of limited judicial consideration. TOV’s complaint relates to breaches of a number of IPP’s specifically: IPP4 – storage and security of personal information; IPP8 – checking of accuracy etc. of personal information before use by agency; IPP10 – Limits on use of personal information; IPP11 – limits on disclosure.
- TOV bears the onus of proving the breaches of privacy on the Briginshaw standard. I accept that the proceeding is likely to involve complex questions of law and fact. The matter involves alleged breaches of a number of the IPP’s. If TOV establishes that there has been disclosure as alleged, there may well be arguments as to whether VEP should be held responsible for such disclosure. Issues as to vicarious liability may well arise. It is also likely that detailed consideration will be required of the interaction between the various relevant IPP’s.
- I note that it is only VEP that has applied for leave to be represented. For the reasons outlined it is appropriate that both parties have leave to be legally represented in the proceedings. Of course, it is entirely a matter for TOV as to whether he engages legal representation and he is not obliged to do so as a result of this decision.
- As these proceedings, which are yet to be finally determined, involve allegations of breach of privacy that may involve minors it is appropriate that the Tribunal prohibits the publication of the name of the applicant and the respondent in these reasons.
- Both parties are granted leave to be legally represented in these proceedings.
- The Tribunal prohibits the publication of the names of the applicant and the respondent in the reasons published 18 March 2016.
 QCAT Act, s 43(1).
 Ibid, s 43(3)(a).
 Ibid, s 43(3)(b).
 QCAT Act, Schedule 3 – Information Privacy Principles.
 Information Privacy Act 2009 (Qld), s 176.
 Ibid, Schedule 5 – Dictionary.
 Ibid, s 36(1).
 Briginshaw v Briginshaw (1938) 60 CLR 336; AXP v Queensland Police Service  QCAT 680.
- Published Case Name:
TOV v VEP
- Shortened Case Name:
TOV v VEP
 QCAT 94
Senior Member Brown
18 Mar 2016