Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

PB v WorkCover Queensland[2020] QCA 278

PB v WorkCover Queensland[2020] QCA 278

SUPREME COURT OF QUEENSLAND

CITATION:

PB v WorkCover Queensland [2020] QCA 278

PARTIES:

PB

(applicant)

v

WORKCOVER QUEENSLAND

ABN 40 577 162 756

(respondent)

FILE NO/S:

Appeal No 4414 of 2020

QCATA No 137 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal – [2020] QCATA 29 (Senior Member Brown and Member Browne)

DELIVERED ON:

8 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

11 August 2020

JUDGES:

Fraser and Philippides and McMurdo JJA

ORDERS:

  1. Grant leave to appeal.
  2. Allow the appeal.
  3. Order that the decision of the Queensland Civil and Administrative Tribunal made on 4 May 2018 be varied by substituting, in order number 4, the sum of $15,000 for the sum of $5,000.
  4. Direct the parties to provide written submissions (if any) on the costs of the proceeding in this Court, not to exceed three pages in length, within 14 days of this judgment.

CATCHWORDS:

HUMAN RIGHTS – PRIVACY LEGISLATION – where the applicant applied for workers’ compensation under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – where, in responding to the application for workers’ compensation, the respondent conceded that it did not comply with the requirements of the Information Privacy Act 2009 (Qld) (the IPA) – whether certain Information Privacy Principles contained in the IPA were breached by the respondent – whether the Queensland Civil and Administrative Tribunal erred in awarding $5,000 in compensation

Information Privacy Act 2009 (Qld), s 178, sch 3

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 122

COUNSEL:

The applicant appeared on his own behalf with CB assisting

S A McLeod QC for the respondent

SOLICITORS:

The applicant appeared on his own behalf with CB assisting

Crown Law for the respondent

  1. [1]
    FRASER JA:  I agree with the reasons for judgment of McMurdo JA and the orders proposed by his Honour.
  2. [2]
    PHILIPPIDES JA:  I agree with the orders proposed by McMurdo JA for the reasons given by his Honour.
  3. [3]
    McMURDO JA:  The applicant for leave to appeal, whom I will call PB, applied for workers’ compensation under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the WCRA).  The respondent (WorkCover) rejected his claim, a decision which was confirmed by Q-Comp.[1]  PB unsuccessfully applied for an extension of time to appeal the Q-Comp decision to the Queensland Industrial Relations Commission.
  4. [4]
    None of those decisions is in question in this proceeding.  Of present relevance is the non-compliance by WorkCover, in responding to the application for workers’ compensation, with the requirements of the Information Privacy Act 2009 (Qld) (the IPA).
  5. [5]
    By s 27 of the IPA, WorkCover must comply with the Information Privacy Principles (IPPs) which are set out in schedule 3 of the IPA.[2]  PB made a complaint, under chapter 5 of the IPA, that WorkCover had breached nine of the 11 IPPs.  WorkCover conceded that it had breached three of them, and when the complaint was referred to QCAT, Member Cranwell held that WorkCover had breached five of those principles.  Orders were then made against WorkCover pursuant to s 178(a) of the IPA, including an order for the payment to PB of $5,000.[3]
  6. [6]
    PB applied, unsuccessfully, for leave to appeal to the Appeal Tribunal of QCAT,[4]  and this is an application for leave to appeal against that decision.  According to s 150(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), such an appeal may be made only with this Court’s leave and on a question of law.  In the usual way, this Court heard full argument on the merits of the proposed appeal.

Relevant facts

  1. [7]
    On 22 July 2013, PB made his claim for workers’ compensation via telephone.  Some of the information which PB provided was inaccurately recorded by WorkCover.  His occupation was recorded as “engine or boiler operator”, instead of “boilermaker”.  It was recorded that he suffered his injury on 22 July 2012, when in fact, he had said that his injury occurred over a period of time.  And the nature of his injury and the part of his body which was injured was described as “hand, other and unspecified dermatitis” arising from “irritant/allergy from substances exposed to at work”, when his true medical condition was bilateral contact dermatitis, and at the time he was unsure of its cause.[5]
  2. [8]
    During this same telephone call, a recording was played to him which described the circumstances in which WorkCover might release or obtain relevant information or documents about him.  In the recording this was said:

“WorkCover undertakes all reasonable measures to protect your privacy by collecting, using, storing and disclosing the personal information we hold about you in accordance with Queensland Government privacy requirements.  However, WorkCover may be required or authorised by law to release or obtain information or documents to other parties eg doctors, health authorities, allied health providers, rehabilitation providers or other insurers.”

  1. [9]
    After the telephone call, a printed claim form was generated by WorkCover.  It contained what purported to be a statement by the applicant, within which there was this authorisation by the applicant of the disclosure of relevant information:

“I authorize any doctor, health authority, allied health provider, rehabilitation provider or other insurer to disclose to WorkCover Queensland and its agents any information about my medical history relevant to this claim.”

  1. [10]
    On the day following the telephone call, the applicant spoke to a claims representative from WorkCover.  That person’s notes of the conversation correctly recorded the applicant’s occupation and his stated medical condition.  As to the cause of that condition, the claims representative recorded that the applicant was “[u]nable to confirm event that cause injury - specialists are unsure of the cause.”
  2. [11]
    The claims representative concluded that PB’s claim for compensation should be accepted, after receiving a report from PB’s treating dermatologist, saying that PB had an irritant contact dermatitis related to his work as a boilermaker.
  3. [12]
    PB’s employer sought a review of this decision by Q-Comp.  Before Q-Comp had made its decision, WorkCover wrote to a general practitioner (who was called Dr B in the original QCAT decision) relevantly as follows:

“I am writing to you in relation to a Notice of Claim for Damages lodged by [PB] under the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”) for an injury sustained in an event on or around 22 July 2012.

Pursuant to section 279(1)(b)(iv) of the Act [PB] is required to give to WorkCover Queensland information reasonably requested in relation to his medical history, as far as it is relevant to the claim.  This includes any medical conditions, illnesses or injuries that are unrelated to the workplace injury as they are relevant in assessing the claimant’s past and future economic losses.

Please find enclosed the claimant’s signed written authority pursuant to section 275(7) of the Act.  This authority authorises you to provide WorkCover Queensland with a complete copy of your medical file in relation to [PB]…”

(Emphasis in original.)

  1. [13]
    In the original QCAT decision, it was found that there was “not a single sentence” in that part of the letter which was accurate.[6]  The Member identified three errors.  Firstly, PB had not lodged a notice of claim for damages: his claim was for workers’ compensation.  Secondly, as a consequence, s 279 of the WCRA did not apply.  Thirdly, PB had not provided any authority to WorkCover for it to obtain information about his medical history generally, whether pursuant to s 275(7) or otherwise.
  2. [14]
    The authority which was attached to WorkCover’s letter to Dr B was that in the claim form,[7] which had not been signed by PB, and which had not been explained to PB as an authority which he would be providing as a result of making his claim.  That authority was limited to information which was “relevant to this claim”, but read with the letter to Dr B, it would have been understood to extend to PB’s entire medical history.
  3. [15]
    In compliance with that request, Dr B provided to WorkCover a complete copy of her patient records for PB.
  4. [16]
    On 3 October 2013, Q-Comp set aside the decision to accept PB’s workers’ compensation claim, and returned it to WorkCover with several directions.  WorkCover was directed to obtain medical records from Dr B’s clinic in relation to PB’s seeking medical assistance “in relation to the injury”, and to do the same with another medical practice, in relation to PB’s consultation with that clinic “for the injury”.
  5. [17]
    WorkCover then wrote to a general practitioner in that other practice (who was called Dr W in the original QCAT decision), in identical terms to the letter it had sent to Dr B.  As the QCAT Member observed, this letter was “infected by the same errors”.[8]  Dr W, like Dr B, provided a complete copy of her medical records in relation to PB.
  6. [18]
    On 6 November 2013, WorkCover decided to reject PB’s workers’ compensation claim.
  7. [19]
    PB became aware of the letters sent to Dr B and Dr W, and, on 20 December 2013, made a complaint to WorkCover about them.  WorkCover replied by email, on 23 December 2013, in these terms:

“We write to advise that the letter that was sent to your doctor requesting medical information was sent in error.  That particular letter relates to Common Law claims, not Statutory matters.  WorkCover Queensland sincerely apologises for this.  Please note that WorkCover has not used any of this information with regard to any decisions or the management of your claim.

We will destroy this information immediately.”

  1. [20]
    Unfortunately, WorkCover did not act according to its assurance that the information (or more precisely, any record of it) would be destroyed.  The author of that email, Ms Sparks, conceded in her evidence in QCAT that she had not followed up on her instructions for the information to be destroyed.[9]
  2. [21]
    By s 544(1)(a)(i) of the WCRA, WorkCover was required to provide to Q-Comp “all relevant information and documents in relation to the application that is in the decision maker’s possession”.  Again unfortunately, WorkCover provided to Q-Comp all of the information which it had received from Dr B and Dr W.
  3. [22]
    On 10 March 2014, Q-Comp confirmed the decision of WorkCover to reject PB’s claim.  It did so for reasons which made reference to the records obtained from Dr B and Dr W.

The Information Privacy Principles

IPP 1

  1. [23]
    IPP 1 relevantly provides:

“An agency must not collect personal information in a way that is unfair or unlawful”.

  1. [24]
    At the original QCAT hearing, WorkCover conceded that it breached IPP 1, by collecting personal information in a way which was unfair.

IPP 2

  1. [25]
    Contrary to the submissions for WorkCover, it was found that IPP 2 was breached, and that finding is now accepted by WorkCover.  By IPP 2, it is provided that in collecting information about an individual, an agency must take all reasonable steps to ensure that the individual is generally aware of the fact that the collection of their personal information is authorised or required under a law, and that the individual is aware of the law authorising or requiring the collection.
  2. [26]
    The QCAT Member found that the recording, which had been played to PB when he telephoned to make his claim for compensation, did not explain the purpose for which his personal information would be collected, nor the law which authorised that collection of his personal information.  The Member also held that the recording did not disclose that WorkCover’s usual practices included disclosure of personal information to an employer and Q-Comp.

IPP 3

  1. [27]
    IPP 3 requires the agency to take all reasonable steps to ensure that the personal information collected is “relevant to the purpose for which it is collected”.  WorkCover conceded that it had failed to do so, in collecting information from Dr B and Dr W which was not relevant to PB’s claim for compensation.

IPP 4

  1. [28]
    By IPP 4, an agency having control of a document containing personal information must ensure that:

“(a) the document is protected against––

  1. (i)
    loss; and
  1. (ii)
    unauthorised access, use, modification or disclosure; and
  1. (iii)
    any other misuse …”
  1. [29]
    In the original QCAT decision, the Member said:

[40] I am unable to conclude that WorkCover complied with the requirement to protect PB’s personal information in circumstances where it undertook to destroy the personal information obtained from Dr B and Dr W but did not do so. Ms Sparks’ evidence was that she simply failed to follow up on her instructions. I note in passing that it may well be that the more appropriate course would have been for WorkCover to return the original records obtained from Dr B and Dr W to the respective doctors, and to then commence an alternative process (such as that contained in s 532C of the WCRA) to obtain relevant information from those doctors. I return to this issue below.”

IPP 5 and IPP 6

  1. [30]
    No complaint was made by PB of a breach of these principles.

IPP 7

  1. [31]
    IPP 7 requires an agency to take all reasonable steps, including by the making of an appropriate amendment, to ensure that personal information which it holds is accurate, and, having regard to the purpose for which it is collected or is to be used and to any purpose directly related to fulfilling the purpose, is relevant, complete, up to date and not misleading.
  2. [32]
    PB contended that this principle was breached, by the errors made by WorkCover in recording his details which he provided in his original telephone call.  Accurate information in those respects was obtained during the conversation, on the following day, with a claims representative.  However that person incorrectly recorded that PB had first sought medical attention in 2013, rather than in 2012.  Subsequent documents recorded that matter correctly.
  3. [33]
    The QCAT Member concluded that there was no breach of IPP 7, effectively because any inaccuracy was corrected in subsequent documents.[10]

IPP 8

  1. [34]
    By this principle, before an agency uses personal information contained in a document under its control, the agency must take all reasonable steps to ensure that, having regard to the purpose for which the information is proposed to be used, the information is accurate, complete and up to date.
  2. [35]
    This principle was said to have been breached because of the inaccuracies to which I have referred in discussing IPP 7, as well as an inaccuracy by the claims representative in recording one aspect of the dermatologist’s report.  The representative misinterpreted the report where it said that testing had shown a positive result for benzocaine.  The representative recorded that PB had been exposed to that material in his workplace.
  3. [36]
    The QCAT Member found that although that was an error in the interpretation of the dermatologist’s report, it was not an unreasonable one, and that it was not an error which was repeated in the representative’s statement of reasons for accepting PB’s claim for compensation.  Consequently, and for the reasons which he gave in relation to IPP 7, the Member concluded that there had been no breach of IPP 8.

IPP 9

  1. [37]
    By this principle, an agency must use only the parts of the personal information within a document under its control which “are directly relevant to fulfilling the particular purpose [of the agency]”.
  2. [38]
    The QCAT Member held that WorkCover had not used parts of the information which were irrelevant to PB’s claim for compensation.  An allegation that Q-Comp had done so was not relevant to PB’s complaint, which was against WorkCover.  Therefore this principle was not breached.

IPP 10

  1. [39]
    By this principle, an agency having control of a document, containing personal information that was obtained for a particular purpose, must not use the information for another purpose, except in certain circumstances which are not presently relevant.
  2. [40]
    Again, the QCAT Member found that WorkCover had not used the personal information, obtained from Dr B and Dr W, which was irrelevant to PB’s claim for compensation.[11]

IPP 11

  1. [41]
    This principle requires an agency, having control of a document containing an individual’s personal information, not to disclose that information to an entity except in certain circumstances.  Those circumstances include where the individual is reasonably likely to have been aware that it is the agency’s usual practice to disclose that type of personal information to the relevant entity, where the individual has agreed to the disclosure, or where the disclosure is authorised or required under a law.
  2. [42]
    At the original QCAT hearing, WorkCover conceded that insofar as it had provided irrelevant information to Q-Comp, it breached IPP 11.

The original QCAT orders

  1. [43]
    The Member held that WorkCover had made a timely apology to PB, and that it had made appropriate concessions in the conduct of the proceeding before the Tribunal.  It had also offered PB counselling sessions, of which he had availed himself.[12]
  2. [44]
    The Member found that WorkCover had removed the template for the letters which were sent to Dr B and Dr W, so as to prevent such a letter from being inadvertently sent in the future.  It had also changed the privacy information contained in the recording played to telephone claimants.  More generally, the Member was satisfied that WorkCover had taken reasonable steps to prevent the breaches from being repeated in the future.[13]
  3. [45]
    The Member rejected PB’s request that he order the destruction of the medical records obtained from Dr B and Dr W.  In the Member’s view, the destruction of the records would require the consent of the State archivist, pursuant to s 13 of the Public Records Act 2002 (Qld).  However, the Member was prepared to order that the original records obtained from those practices be returned to them.[14]
  4. [46]
    The Member noted that PB conceded that within the letter from Dr W to WorkCover, there was information which was relevant to his claim.[15]
  5. [47]
    PB sought an order that WorkCover make amendments to his claim file, in order to remove the inaccuracies to which I have referred.  The Member refused to make an order of that kind, essentially because he had concluded that the inaccuracies were remedied by later records within the same file.[16]
  6. [48]
    The Member then turned to PB’s claim for compensation for breach of the privacy principles.  By s 178 of the IPA, QCAT was able to order that PB was entitled to an amount, not more than $100,000, to compensate him for loss or damage suffered by him because of the act or practice complained of, including for any injury to his feelings or humiliation suffered by him.  PB claimed the statutory maximum of $100,000.  He was awarded an amount of $5,000.
  7. [49]
    WorkCover submitted that PB had suffered no loss or damage as a result of WorkCover’s privacy breaches, upon the basis that only relevant information was relied upon in deciding PB’s workers’ compensation claim, and that WorkCover was bound by a direction from Q-Comp to obtain the relevant information from Dr B and Dr W, which WorkCover could have obtained without PB’s consent using its powers under another provision of the WCRA.  That other provision, according to WorkCover’s submission, was s 532C.
  8. [50]
    Unfortunately, WorkCover’s reference to s 532C was in error, because it was not in effect at the time at which PB made his workers’ compensation claim.  In its decision, the Appeal Tribunal referred to this error, whilst noting that s 532C was largely in the same terms as the repealed s 519 which was in force at the time at which PB made his claim.[17]
  9. [51]
    The Member did not rule on the merits of WorkCover’s submissions that it had been bound by a direction from Q-Comp to obtain the “relevant information” from Dr B and Dr W and that it could have obtained “the relevant information” by using one of its statutory powers.  Significantly, those submissions were addressed in terms of “the relevant information”.  Understood in that way, they were correct.  The problem, however, was that WorkCover sought information which was both relevant and irrelevant.  In any case, those submissions do not appear to have affected the Member’s assessment of the appropriate amount of compensation under s 178.
  10. [52]
    The Member discussed a report by a psychologist, dated 11 February 2018, which was approximately two months prior to the hearing, which said that PB was experiencing “extremely severe levels of Depression …, Anxiety … and Stress … due to the way he was treated by WorkCover, the shame of having personal sensitive information disclosed without his consent, and his inability to engage in meaningful activities due to his hands’ condition.”  PB’s difficulties, the psychologist wrote, were exacerbated by his severe dyslexia, which hindered the possibility of his undertaking further retraining.  The Member observed that this did not distinguish between the levels of psychological distress resulting from the privacy breaches, from those resulting from his dermatitis and dyslexia.  That may be accepted, but the Member added that there was “no evidence before the Tribunal that PB suffers from [a] psychological condition as a result of the privacy breaches independently of his other issues.”[18]
  11. [53]
    Although the author had not ventured an opinion as to the specific contribution of WorkCover’s conduct, in breach of the IPPs, upon PB’s psychological condition, she had clearly expressed the opinion that these breaches by WorkCover were a cause of his condition and the Member accepted that PB had suffered injury to his feelings and experienced humiliation as a result of WorkCover’s breaches of the principles.  The Member noted, in this context, that some of his irrelevant medical history related to “a particularly sensitive health complaint”.
  12. [54]
    The Member referred to a decision of another QCAT member in JL v Queensland Police Service,[19] in which certain principles to be applied in the exercise of the power under s 178 were ventured.  These included a principle that “awards should be restrained but not minimal” and that “in measuring compensation the principles applied in tort law will assist, although the ultimate guide is the words of the statute”.  The Member noted that in another case, RM v Queensland Police Service,[20] the Tribunal had ordered compensation in the amount of $5,000 for a breach which had been described as “careless rather than malicious”.[21]  Guided by that decision, the Member said that PB’s case was also one of that kind and that there was no feature of WorkCover’s conduct which should lead to a higher award of compensation than $5,000.[22]
  13. [55]
    PB was not legally represented, but sought an order that he be reimbursed for expenses reasonably incurred in connection with the making of his complaint.  That was refused by the Member, who reasoned as follows:

[61] In relation to s 178(d), I am not prepared to order WorkCover to reimburse PB for his expenses. The manner in which the proceeding has been run before the Tribunal has stemmed in large measure from the extravagant and exorbitant compensation claim made by PB. PB initially claimed compensation in the vicinity of $4 million, notwithstanding the statutory maximum of $100,000 clearly set out in s 178(a)(v). Had PB applied an element of sobriety to his claim, or at least claimed compensation within the statutory limit, it is likely that he and WorkCover would have been spared considerable expense in the conduct of the proceeding.”

  1. [56]
    For the same reasons, the Member refused to make any order for costs in PB’s favour.[23]

The case in the Appeal Tribunal

  1. [57]
    In his application for leave to appeal to the Appeal Tribunal, the applicant specified the orders which he would ask the Appeal Tribunal to make in these terms:

“[PB] requests the maximum award of $100,000 for the breach of his privacy at [Dr B’s clinic] and $100,000 for the breach of his privacy at [Dr W’s clinic] … PB also requests return and destruction of all his medical records, including electronic copies disclosed to 3rd parties.”

He also sought an order that WorkCover’s conduct be reported to the Crime and Corruption Commission.

  1. [58]
    His grounds of appeal were not succinctly stated in that application.  Nevertheless, the grounds could be distilled to be the following:
    1. (a)
      WorkCover had misled the Tribunal by referring to s 532C of the WCRA, which influenced the Member’s decision;
    2. (b)
      false evidence was given to the Tribunal by a witness for WorkCover, as to details of the form used for a claim for workers’ compensation;
    3. (c)
      in assessing the compensation, the Tribunal did not take into consideration the extent to which the applicant’s mental health had been affected by the actions of WorkCover;
    4. (d)
      the Member had erred in finding that WorkCover had apologised for its conduct, when its apology had been more limited;
    5. (e)
      in assessing compensation, the Member did not consider the fact that WorkCover had not attempted “to offer any resolution whatsoever” of the dispute;
    6. (f)
      the Member erred in not ordering the destruction of all copies of electronic versions of PB’s medical history or the recovery of the medical history that had been disclosed to third parties; and
    7. (g)
      the extent of the breach of the privacy principles in this case went beyond that in most other cases, which have involved a single breach of a privacy principle.
  2. [59]
    PB applied for leave to rely on further evidence before the Appeal Tribunal.  One subject matter of the evidence was his deteriorating mental health and the relevance of the counselling to which the Member had referred in his decision.
  3. [60]
    The Appeal Tribunal, constituted by Senior Member Brown and Member Browne, heard this appeal in October 2019 and gave a reserved decision in March 2020, refusing leave to rely upon the fresh evidence and refusing leave to appeal.[24]
  4. [61]
    The Appeal Tribunal analysed PB’s case as a complaint of three errors in the Tribunal’s original decision.  Those points were described by the Appeal Tribunal as follows:
    1. (a)
      Did the Member erroneously rely upon s 532C of the WCRA?
    2. (b)
      Did the Member err in finding that WorkCover had not breached IPPs 7, 8, 9 and 10?  (Including an issue of whether the member wrongly relied upon evidence presented by WorkCover which was said to be false and misleading.)
    3. (c)
      Did the Member fail to observe the rules of natural justice in conducting the hearing before him, and did he bring an impartial mind to the determination of the issues before him?
  5. [62]
    The Appeal Tribunal referred to a complaint which was that PB had been denied procedural fairness and natural justice, because WorkCover had been allowed to be legally represented, which the Appeal Tribunal related to that third point.
  6. [63]
    As to the argument about s 532C, the Appeal Tribunal said that, clearly, s 532C was not in effect at the time that PB made his workers’ compensation claim, but that this provision was largely in the same terms as the repealed s 519 of the WCRA.[25]
  7. [64]
    It was noted that WorkCover had conceded that the information collected from Dr B and Dr W was done in a way which was unfair.[26]
  8. [65]
    Curiously, the Appeal Tribunal did not accept the contention that WorkCover’s legal representative had misled the Member in any way, notwithstanding that incorrect reliance upon a provision which was not part of the WCRA at the relevant time.  The Member was misled, although it is another thing to say that it mattered for the Member’s decision.
  9. [66]
    The Appeal Tribunal referred to another allegation that WorkCover’s case was misleading, namely that a witness had “blatantly lied” in the original hearing by giving evidence as to the content of the form of the application for workers’ compensation which WorkCover was using.  The Appeal Tribunal rejected the allegation, although without elaborating upon that conclusion.
  10. [67]
    It further held that it was open to the Member to make “relevant findings as set out in [his] reasons”.  In essence, the Appeal Tribunal found that it was open to the Member to make the findings which he did as to IPPs 7, 8, 9 and 10.
  11. [68]
    The Appeal Tribunal rejected PB’s claims that the Member was biased and that he had been denied procedural fairness.  A particular claim which was then made by PB, and pursued in this Court, is that he was unfairly prejudiced by WorkCover being legally represented in the original QCAT hearing.  A party could not be legally represented except with leave granted by the Tribunal.  WorkCover applied for leave on 6 March 2018.  PB’s response was to say that because he would be unrepresented, so too should WorkCover.
  12. [69]
    On 23 March 2018, Senior Member Brown directed that “the parties” have leave to be legally represented.  PB asked for reasons, on 27 March 2018.  By s 122(3) of the QCAT Act, the Tribunal has 45 days in which to provide reasons after a request, a period which expired after the scheduled hearing date.  The original QCAT hearing commenced on 30 April 2018.  The reasons were provided on 1 June 2018.  PB complained that the unavailability of the reasons disadvantaged him in the original QCAT hearing.  The Appeal Tribunal said that it was disingenuous of PB to now seek to raise the provision of the reasons as a ground of appeal, and that the absence of reasons did not matter to the determination of whether the Member’s decision in some respect should be overturned.[27]  The Appeal Tribunal pointed out that PB was aware of the Tribunal’s decision to grant WorkCover leave to be legally represented, and that he had not requested an adjournment of the original QCAT hearing.
  13. [70]
    As to PB’s complaints of the orders made, or not made, under s 178 of the IPA, the Appeal Tribunal said:

[52] We find no error in the Tribunal’s findings made about the amount of compensation payable to PB and the order that medical records obtained be returned to the medical practice. The power to make orders under s 178 of the Act involves the exercise of a broad discretion. It is clear that the learned Member considered carefully the evidence before him and particularly the medical evidence regarding what PB asserted were the consequences of the asserted privacy breaches. As held in House v The King, the manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  Here, PB has failed to convince us that the learned Member acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters.  Ground 3 is without merit.”

(Footnotes omitted.)

  1. [71]
    As to the application to rely upon fresh evidence, the Appeal Tribunal was unpersuaded that leave should be given.  Some of that evidence was not fresh evidence: it included documents which predated the original QCAT decision and there was no satisfactory explanation as to why the material could not have been obtained before then.[28]

The application to this Court

  1. [72]
    PB’s application to this Court sets out six reasons which justify the granting of leave to appeal and the appeal being allowed.  They are as follows:
    1. (a)
      Senior Member Brown was biased, because of his involvement in ordering that WorkCover could be legally represented in the original QCAT hearing, and because his reasons for that decision were not given until after that hearing.
    2. (b)
      The QCAT Member relied upon s 532C.
    3. (c)
      The QCAT Member denied PB procedural fairness, by not permitting him to cross-examine a certain witness.
    4. (d)
      Both the original and appellate decisions overlooked what is said to have been the relevance of s 392 of the WCRA.
    5. (e)
      The original decision wrongly found that WorkCover had remedied the content of the information about privacy which was conveyed to PB in his telephone call.
    6. (f)
      The IPPs 1, 7, 8, 9 and 10 were incorrectly interpreted in both decisions (notwithstanding that a breach of IPP 1 was conceded by WorkCover and found by the Member).

Ground (a): bias

  1. [73]
    It is true, as the Appeal Tribunal said, that s 122(3) of the QCAT Act provides that the Tribunal must give written reasons for its decision within 45 days of a request to do so, for a decision of this kind.  That having been said, and acknowledging the heavy workload in this tribunal, it would have been preferable for the reasons to be given within the five or so weeks which passed between the request and the commencement of the hearing.
  2. [74]
    Nevertheless, it cannot be accepted that any disadvantage was caused to PB from the order which permitted WorkCover to be legally represented, or the absence of reasons for that order at the commencement of the hearing.  The presentation of PB’s case would have been assisted by his own legal representation, but that is a different matter.
  3. [75]
    Nor can it be accepted that there was any actual or apprehended bias, on the part of Senior Member Brown, because of his involvement in that order.  PB’s complaint about the order for legal representation, and the absence of reasons for it ahead of the hearing, was without any merit, as any Senior Member sitting in the Appeal Tribunal would have held.  PB complained in this Court that the lack of reasons for the order had the consequence that he was unaware of the complexity of the case so that he did not think to obtain his own legal representation.  That assertion cannot be accepted.  In opposing the order for legal representation, PB had submitted that he did not have the financial capacity to obtain legal assistance.[29]

Ground (b): s 532C

  1. [76]
    Indisputably, WorkCover’s legal representative should not have referred the QCAT Member to s 532C.  But as the Appeal Tribunal said, the predecessor of s 532C was in materially the same terms.  And whether PB is able to accept it, evidently this was an innocent mistake by WorkCover’s legal representative.
  2. [77]
    More importantly, it was a mistake which had no consequence for the outcome.  The essence of WorkCover’s wrongdoing, in writing to Dr B and Dr W, was that it sought information from them which went beyond what was relevant for the assessment of PB’s claim for workers’ compensation.  It was no answer to that complaint for WorkCover to say that it had a statutory power to request relevant information, when its breach was that it requested information which was irrelevant.  Although the QCAT Member did not say so, that is likely to have been his view of WorkCover’s submission in reliance upon s 532C which, tellingly, he did not further discuss.
  3. [78]
    It is submitted that the Appeal Tribunal erred in saying that there was similar legislation at the relevant time, namely s 519.  It is submitted that WorkCover had no rights under s 519 because that only applied to the Regulator.  That submission is incorrect.  Section 519 permitted “an authorised person” to require relevant information to be provided in relation to a person’s entitlement to compensation.  An authorised person, as defined in schedule 6, included a person appointed as such by WorkCover under s 466.
  4. [79]
    Consequently, the mistaken reference to s 532C provided no basis for PB’s attempt to appeal to the Appeal Tribunal, and nor does it do so here.

Ground (c): procedural fairness

  1. [80]
    The author of the letters to Dr B and Dr W was Ms Stafford.  She was not a witness at the original QCAT hearing.  The legal representative for WorkCover told the Tribunal that this was because Ms Stafford was no longer employed by WorkCover.  PB’s complaint is that he lost the opportunity to cross-examine her.
  2. [81]
    The errors in her letters were not disputed by WorkCover.  The only thing which PB may have hoped to gain, from cross-examining Ms Stafford, was the extraction of an admission by her that she deliberately misled the doctors.  However, there is no evidence to suggest that this was anything more than a theoretical possibility.  It is quite unlikely that this was her intention, or that if it was, she would have admitted it under cross-examination.  This ground cannot be accepted.

Ground (d): the failure of the Appeal Tribunal to consider s 392 of the WCRA

  1. [82]
    This ground is based upon s 392 of the WCRA, by which a person having dealings with WorkCover is entitled to make certain assumptions.  One of those assumptions is that a person who is held out by WorkCover to be an officer or agent of WorkCover has authority to exercise the powers and perform the functions customarily exercised or performed by an officer or agent of the kind concerned.[30]  Another assumption which may be made is that at all relevant times, there has been compliance with the WCRA.[31]  PB’s argument appears to address a false issue, namely whether Ms Stafford was authorised by WorkCover to write the letters to Dr B and Dr W.  This is a false issue because WorkCover’s case conceded that the letters constituted correspondence by WorkCover.

Ground (e): pre-recorded privacy statement

  1. [83]
    The Member found that the recording which was played to PB, when he phoned to make his claim for compensation, did not explain the purpose for which his personal information would be collected, nor the legislative authorisation for the collection of that personal information.  It was also found that it did not disclose that WorkCover’s usual practices included disclosure of personal information to employers and Q-Comp.  The Member noted that the recording played to telephone claimants had since been changed by WorkCover.
  2. [84]
    PB says that WorkCover had no authority to alter the recording.  He says that only Q-Comp was able to do so.  This argument relies upon s 132 and s 586 of the WCRA.
  3. [85]
    Section 132(1) requires an application for compensation to be made “in the approved form”.  Section 586 provides that it is the Regulator (Q-Comp) which may approve forms for use under the WCRA (apart from forms in relation to contracts of insurance).  However the standard recording which was played to telephone claimants was not itself an application for compensation.  The recording is not within the operation of s 132 and s 586.  This ground must be rejected.

Ground (f): the proper interpretation of IPPs 1, 7, 8, 9 and 10

  1. [86]
    The first point here is that the QCAT Member, and the Appeal Tribunal, each erred in failing to make a finding as to the lawfulness of the letters.  IPP 1 provides that an agency must not collect information in a way that is unfair or unlawful.
  2. [87]
    In the Explanatory Note for this provision, this was said about IPP 1:[32]

“This requirement applies whether or not the information was requested from the individual concerned or another party.  Collection of personal information for inclusion in a document or generally available publication must be for a lawful purpose directly related to the agency’s functions and be necessary for, or directly related to, that purpose.”

  1. [88]
    On the findings of the QCAT Member, information was collected from Dr B and Dr W which was not for a lawful purpose directly related to WorkCover’s functions, because WorkCover was then concerned only with a claim for workers’ compensation.  WorkCover had no lawful authority to require the provision of information to it, which was irrelevant for its purpose and which was confidential to PB.  I accept that in that sense, information was collected in a way which was unlawful, although the conduct did not involve the commission of an offence.
  2. [89]
    That said, the characterisation of WorkCover’s conduct as unlawful in that sense adds nothing to the seriousness of the conduct which is evident from the concession by WorkCover and the findings of the Member.  This point does not warrant the grant of leave to appeal, because it does not provide a basis for disturbing the orders which were made by the Appeal Tribunal.  In particular, it would not affect the order, made at first instance, that the complaint that WorkCover breached IPP 1 was substantiated.
  3. [90]
    The Member concluded that there was no breach of IPP 7, because any inaccuracy in the document which originally recorded PB’s details, as provided in his telephone call, was corrected in subsequent documents.  In my opinion, strictly speaking, this was not sufficient for WorkCover to comply with IPP 7.  It requires an agency to make an appropriate amendment to any document which contains inaccurate personal information.  The fact that later documents have corrected that inaccuracy is not necessarily an answer to the complaint.
  4. [91]
    Nevertheless, any such breach of IPP 7 could have no practical consequence, because of the existence of the other documents.  It could not be said that it has occasioned any damage to PB, pecuniary or otherwise.
  5. [92]
    As to IPP 8, it is submitted that a breach of that principle followed if IPP 7 was breached.  That is not so.  A breach of IPP 7 was by WorkCover not taking reasonable steps, including by the making of an appropriate amendment, to ensure that the information contained within that original document was accurate.  It is another thing to say that the inaccurate information was used by WorkCover, contrary to IPP 8.  On the evidence, it did not do so.
  6. [93]
    The further complaint about IPP 8 is for the misinterpretation of the dermatologist’s report.  The Member found that this was not an unreasonable interpretation.  In my view, IPP 8 was not breached in this respect, because there was no inaccuracy in the information as contained in a document under WorkCover’s control.  Any document recording the WorkCover employee’s understanding of the report was just that; it was an accurate record of the employee’s opinion. In other words, the dermatologist’s report was accurate.  If some part of it was misunderstood, that was not a breach of IPP 8.
  7. [94]
    The Member’s conclusion about IPP 9 was that it was not breached because WorkCover had not used those parts of the information, obtained from Dr B and Dr W, which were irrelevant to PB’s claim for compensation.  The argument here is that WorkCover did use that information.
  8. [95]
    The evidence included WorkCover’s email, dated 23 December 2013, in which it assured PB that it had not used any of that information in making any decision or in managing his claim for compensation.  This issue, of course, is a factual one.  However PB now argues that he was denied procedural fairness in the determination of the question; there is no basis for that contention.
  9. [96]
    It is submitted that a breach of IPP 10 followed from WorkCover’s concessions that PB’s medical records were obtained by the representation that they would be used for the purposes of assessing a common law claim.  That argument cannot be accepted.  The disposition of this complaint follows from the outcome about IPP 9.  The Member found that WorkCover had not used the information in question, so that there was no breach of IPP 10. I agree with that finding.

Insufficient compensation

  1. [97]
    In his application for leave to appeal, PB seeks, amongst other orders, an order that he be compensated in accordance with s 178(a)(v) of the IPA.  Although no error in the assessment of his compensation of $5,000 is identified in the application for leave to appeal, it is the subject of a short submission in his written outline of argument.  He submits that it would be in the public interest to significantly increase the award of damages to deter WorkCover from breaching the privacy of injured workers in the future.
  2. [98]
    The assessment of compensation under s 178(a)(v) was a discretionary judgment.  It was not for the Appeal Tribunal to substitute a higher amount in the absence of any demonstrated error in this assessment.  The Appeal Tribunal found no such error.[33]
  3. [99]
    The maximum compensation under this provision is $100,000.  That limit applies also in cases of a pecuniary loss which is caused by the relevant conduct.  There was no pecuniary loss here, and the breaches were characterised as careless, rather than malicious conduct.  The Member seems to have been guided by the tribunal’s decision in another case, to which he referred, where an amount of $5,000 was awarded.
  4. [100]
    The amount of $5,000 appears to be a low figure in all of the circumstances of this case.  Although the content of the improperly obtained information is unknown, what is known is that it was of a particularly sensitive nature and that this has had a significant psychological effect upon PB.  In WorkCover’s favour, this was not malicious conduct.  But it was a series of mistakes which resulted in the wrongful procurement and distribution of information which was confidential to PB.  The case has caused WorkCover to revise some of its standard documentation.  It is not at all a trivial case, and I have concluded that the assessment was so low that it must be inferred that in some way there was a failure properly to exercise the discretion.  The reasoning of the Appeal Tribunal does not provide a reason to conclude otherwise, and in that respect the Appeal Tribunal erred.  Whether there was an error, albeit one which could not be identified, in the exercise of this discretion is a question of law.

Other orders sought

  1. [101]
    In his outline of argument, PB requested that orders be made as set out in his application for leave to appeal.  One of those orders would be for WorkCover to destroy copies of the medical records obtained from Dr B and Dr W, including any electronic copies.  The Member held that this would require the consent of the State Archivist pursuant to s 13 of the Public Records Act 2002 (Qld).  Section 13 provides that a person must not dispose of a public record except under an authority given by the Archivist or some other legal authority, justification or excuse.  A public record is defined by s 6 as follows:

“6 What is a public record

  1. (1)
    A public record is any of the following records made before or after the commencement of this Act—
  1. (a)
    a record made for use by, or a purpose of, a public authority, other than a Minister or Assistant Minister;
  1. (b)
    a record received or kept by a public authority, other than a Minister or Assistant Minister, in the exercise of its statutory, administrative or other public responsibilities or for a related purpose;
  1. (c)
    a Ministerial record;
  1. (d)
    a record of an Assistant Minister.

Editor’s note

See also section 52 (Application of Act to certain of Governor’s records).

  1. (2)
    A public record includes—
  1. (a)
    a copy of a public record; and
  1. (b)
    a part of a public record, or a copy of a part of a public record.”
  1. [102]
    WorkCover is a public authority as defined for that Act.[34]  The information wrongly received by WorkCover from the medical practices would constitute “a record”.  This would constitute a public record, as defined in s 6(1)(b), if it was a record received or kept by WorkCover in the exercise of its statutory responsibilities.
  2. [103]
    This question was not argued by either side, making this not an appropriate case in which to decide it.  And on a practical level, it would be expected that the Archivist would agree to the destruction by WorkCover or any remaining record of such of the irrelevant information which WorkCover received from the medical practices.

Further evidence

  1. [104]
    The application for leave to appeal sought an order that PB be allowed to rely on fresh evidence.  No argument was addressed by PB to this Court in that respect.  However three affidavits were filed in this Court for this application.  The first was by PB’s wife, which explained the reasons why she was allowed to argue PB’s case on his behalf.  There were two affidavits by PB, one of which went to the question of being represented by his wife, but also contained matters of argument.  The third affidavit contained evidence of PB’s poor financial position.
  2. [105]
    I have had regard to this evidence, which need not be further discussed because it does not advance any of the grounds of the proposed appeal.

Conclusion and orders

  1. [106]
    In my conclusion PB’s case should succeed in one respect, namely the assessment of compensation.  The other grounds of his proposed appeal are not established.
  2. [107]
    I would order as follows:
  1. Grant leave to appeal.
  2. Allow the appeal.
  3. Order that the decision of the Queensland Civil and Administrative Tribunal made on 4 May 2018 be varied by substituting, in order number 4, the sum of $15,000 for the sum of $5,000.
  4. Direct the parties to provide written submissions (if any) on the costs of the proceeding in this Court, not to exceed three pages in length, within 14 days of this judgment.

Footnotes

[1]Now the Workers’ Compensation Regulator.

[2]As an “agency” for the purposes of chapter 2 of the IPA.

[3]PB v WorkCover Queensland [2018] QCAT 138 (“original QCAT decision”).

[4]PB v WorkCover Queensland Pty Ltd [2020] QCATA 29 (“QCAT appeal decision”).

[5]Original QCAT decision [5].

[6]Original QCAT decision [21].

[7]Quoted above in [9].

[8]Original QCAT decision [25].

[9]Original QCAT decision [29].

[10]Original QCAT decision [42].

[11]Original QCAT decision [45].

[12]Original QCAT decision [48].

[13]Original QCAT decision [49].

[14]Original QCAT decision [50].

[15]Original QCAT decision [53].

[16]Original QCAT decision [51].

[17]QCAT appeal decision [27].

[18]Original QCAT decision [56].

[19][2014] QCAT 623 at [213].

[20][2017] QCAT 71 at [171].

[21]Original QCAT decision [59].

[22]Original QCAT decision [60].

[23]Original QCAT decision [62].

[24]At the same time, the Tribunal ordered “appeal dismissed”.

[25]QCAT appeal decision [26], [27].

[26]QCAT appeal decision [34], [35].

[27]QCAT appeal decision [49].

[28]QCAT appeal decision [54].

[29]Page 10 of his written submissions.

[30]s 392(3)(b)(ii).

[31]s 392(3)(a).

[32]At page 45.

[33]QCAT appeal decision [52].

[34]Schedule 2 of the Public Records Act 2002 (Qld) (definition of “public authority”).

Close

Editorial Notes

  • Published Case Name:

    PB v WorkCover Queensland

  • Shortened Case Name:

    PB v WorkCover Queensland

  • MNC:

    [2020] QCA 278

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Philippides JA, McMurdo JA

  • Date:

    08 Dec 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.