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AT v Bundaberg Regional Council[2018] QCAT 179

AT v Bundaberg Regional Council[2018] QCAT 179

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

AT v Bundaberg Regional Council [2018] QCAT 179

PARTIES:

AT

(applicant)

v

BUNDABERG REGIONAL COUNCIL

(respondent)

APPLICATION NO/S:

OCL039-16

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

14 June 2018

HEARING DATE:

3 February 2017

HEARD AT:

Brisbane

DECISION OF:

Member Beckinsale

ORDERS:

  1. The complaint that Bundaberg Regional Council breached Privacy Principal 11 is not substantiated and is dismissed.
  2. The Tribunal prohibits the publication of any information that may enable the Applicant to be identified.

CATCHWORDS:

HUMAN RIGHTS – PRIVACY LEGISLATION –information privacy

Information Privacy Act 2009 (Qld), s 23(2), s 23(5), s 176(1), s 176(2), s 178, Schedule 3

Queensland Civil and Administrative Act 2009 (Qld), s 3(b), s 66(1)(c), s 66 (2)(b)

A Complainant v Secretary, Department of Defence [1993] Priv Cmr ACD 1

AXP v Queensland Police Service [2013] QCAT 680

Briginshaw v Briginshaw (1938) CLR 336

Complainant v ACT Government Solicitor [2003] Priv Cmr ACD 1

Deeming v Whangarei District Council [2015] NZHRRT 55

Director General, Department of Education and Training v MT (2006) 67 NSWLR 237

DK v Telstra Corporation Ltd [2014] AI Cmr 118

JL v Queensland Police Service [2014] QCATA 623

RM v Queensland Police Service [2017] QCAT 71

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

J P Hastie, solicitor of King & Company Solicitors

REASONS FOR DECISION

Background

  1. [1]
    On 14 December 2015, AT phoned the Bundaberg Regional Council to complain that she had seen a Council employee, Brian McMah, drinking during Council business hours at a local bowls club. She gave her first name and mobile telephone number to enable the complaint to be followed up. Later, on the same day, the Council’s human resources manager, Karen Craft, phoned AT to speak about her complaint. When Ms Craft subsequently spoke to Mr McMah, she revealed that the first name of the complainant was ‘[A]’.
  2. [2]
    On 19 December 2015, at the same bowls club, Mr McMah approached AT’s husband, KT, and asked him to admit that his wife had made a complaint against him. An exchange occurred between them.
  3. [3]
    AT made a complaint to the Office of the Information Commissioner (‘OIC’) that the Council breached her privacy under the Information Privacy Act 2009 (Qld) (‘IPA’) and that as a result, she suffered intimidation, hurt and humiliation and she sought compensation as well as the costs of her husband attending a different bowls club.
  4. [4]
    After unsuccessful mediation and upon AT’s request, the OIC referred the complaint to the Tribunal.[1]

Legal Framework

  1. [5]
    The Tribunal has original jurisdiction to decide a privacy complaint,[2] and can make one or more orders as follows:[3]
    1. (a)
      That the complaint, or part of the complaint, has been substantiated together with consequential orders such as an apology or monetary compensation;
    2. (b)
      That the complaint, or part of the complaint has been substantiated and that no further action is required;
    3. (c)
      That the complaint, or part of the complaint has not been substantiated and is dismissed; and/or
    4. (d)
      That the complainant be reimbursed for expenses reasonably incurred in connection with making the complaint.
  2. [6]
    A privacy complaint is defined as a complaint by an individual about an act or practice of a relevant entity in relation to the individual’s personal information, in breach of the relevant entity’s obligation under the IPA to comply with, inter alia, the privacy principles.[4]
  3. [7]
    The Tribunal is required to determine firstly, whether the Council has breached a privacy principal and if so, whether AT is entitled to the consequential orders sought.
  4. [8]
    The onus is on an applicant to prove a breach of the Act. The Tribunal has previously accepted that the relevant test is the balance of probabilities,[5] and that, depending on the circumstances, the test in Briginshaw might apply.[6]
  5. [9]
    The privacy principle alleged by AT to have been breached by the Council is Information Privacy Principle (‘IPP’) 11 (original emphasis):[7]

An agency having control of a document containing an individual’s personal information must not disclose the personal information to an entity (the relevant entity), other than the individual the subject of the personal information…

This is unless specific circumstances are met, which are set out in the section.[8]

  1. [10]
    The Council accepted that AT’s name is personal information.

Submissions requested as to applicability of IPP 9 and IPP 10

  1. [11]
    Following the hearing of this matter, I directed the Council to file and serve further submissions as to the applicability, if any, of IPP 9 and IPP 10 and for AT to respond to any submissions.
  2. [12]
    IPP 9 provides that an agency controlling a document containing personal information for use for a particular purpose, must use only the parts of the personal information that are directly relevant to fulfilling the particular purpose.
  3. [13]
    IPP 10 provides that 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 with exceptions which are set out.
  4. [14]
    Section 23 of the IP Act is as follows (original emphasis):

23  What it means to disclose personal information and to use personal information

  1. (1)
    This section applies for the application of the privacy principles.
  2. (2)
    An entity (the first entity) discloses personal information to another entity (the second entity) if—
  1. (a)
    the second entity does not know the personal information, and is        not in a position to be able to find it out; and
  2. (b)
    the first entity gives the second entity the personal information, or places it in a position to be able to find it out; and
  3. (c)
    the first entity ceases to have control over the second entity in relation to who will know the personal information in the future.
  1. (3)
    An entity uses personal information if it-
  1. (a)
    manipulates, searches or otherwise deals with the information; or
  2. (b)
    takes the information into account in the making of a decision; or
  3. (c)
    transfers the information from a part of the entity having particular functions to a part of the entity having different functions.
  1. (4)
    Subsection (3) does not limit what actions may be use of the personal information.
  1. (5)
    However, use of the personal information does not include the action of disclosing the personal information to another entity.
  1. [15]
    The Council complied with the directions, but AT’s reply to those further submissions only reiterated her previous position without addressing the issue of whether IPP 9 or IPP 10 had any applicability.
  2. [16]
    The Council submitted that the Tribunal did not have jurisdiction in these proceedings to determine whether the Council breached IPP 9 or IPP 10 given that was never part of AT’s complaint referred to the Tribunal. Council submitted the circumstances before the Tribunal could be distinguished from AXP v Queensland Police Service.[9]
  3. [17]
    In the event the Tribunal determined it had jurisdiction, Council submitted the Tribunal could not be satisfied there was a breach of IPP 9 or IPP 10. Ms Craft’s actions did not constitute ‘use’ of personal information having regard to section 23(5) of the IPA. Mr McMah’s actions in speaking to KT at the bowls club could not be attributed to the Council as his actions were unauthorised by the Council, were in breach of the Council’s policies governing his conduct as an employee, and went beyond the scope of his responsibilities as an employee.

AT’s Evidence

  1. [18]
    AT’s evidence was she had been at the bowls club on a Wednesday afternoon when she saw Mr McMah, drinking during Council hours. She said she had known Mr McMah for a long time, through bowling and from a time when her husband previously worked for the Council. She subsequently rang the Council on 14 December 2015 and said she wished to complain about a Council worker. The person taking the call said AT would need to speak to Ms Craft who was not available. AT left her name and number to enable Ms Craft to call her. She said Ms Craft called her later that day. AT told Ms Craft she wanted to complain about Mr McMah whom she had seen drinking in his Council uniform at the bowls club and had driven in a Council utility. She said Ms Craft ‘laughed’ at her and said to AT that employees can do what they like in their uniform. AT insisted she wished to put in a complaint. She told Ms Craft she had photographic evidence. Ms Craft said she would follow up and rang the following day requesting AT email the photographs to her.
  2. [19]
    AT had not been present at the bowls club when an altercation occurred between Mr McMah and her husband.
  3. [20]
    AT said about two weeks after the incident at the bowls club she received phone calls during which she could hear ‘heavy breathing’ from the caller who then hung up. She said three calls had been made to her mobile phone and one to her house phone. She said the calls stopped after the matter was referred to the OIC. At the hearing she said the mobile number was known only to her immediate family and her doctor. In her written submissions made in response to the Tribunal’s request regarding IPP 9 and IPP 10, AT said the mobile number had previously been her husband’s number and was known to Ms Craft who had rung it many times over the years he worked for the Council.
  4. [21]
    AT agreed she did not know who made the calls or the person’s motivation but said only one person had threatened her and her husband and she had never ‘done anything else to anyone in [her] life who is going to ring [her] up.’
  5. [22]
    Brief near-identical statements were provided from AT’s grandson and granddaughter,[10] to the effect that they were present when AT received a phone call, after which she was ‘shaking’ and told them the caller did nothing but breathe heavily then hang up. Each said they had been asked to stay with their grandmother as their grandfather works at night and ‘she is extremely scared for her safety.’
  6. [23]
    AT said she had been asked by people, whom she did not identify, about her complaint to Council. She said, they described it as ‘a low thing to do’ and subsequently ‘shunned’ her. At the hearing she referred to evidence in this regard being provided by DT, her daughter. DT’s statement said that she was with her mother when a person unknown to her approached and asked if she was KT’s wife and referred to her ‘dobbing’ in Brian McMah, and being a ‘snitch.’[11]
  7. [24]
    AT’s evidence in written submissions was that she had suffered ‘humiliation, embarrassment, intimidation and stress’ as a result of Council’s breach of privacy. She said she was unable to sleep at night, no longer answered the phone and needed her grandson and granddaughter to stay with her at night when her husband was at work as she feared for her safety. She said her doctor had prescribed her medication to help her sleep. She said also she is unable to watch her husband play bowls because Mr McMah, and other Council workers with whom he is friends, attend which she said is ‘intimidating and scary.’
  8. [25]
    AT provided letters from a GP stating she ‘is receiving medical treatment and is on sleeping tablets’, is ‘under’ a psychologist for her ‘medical issues’[12] and is ‘going through stress related conditions.’[13]
  9. [26]
    AT provided letters from clinical psychologist Ms Carol Gazzard. The first, dated 10 October 2016, reported AT was referred by her GP ‘for the treatment of anxiety and depressive symptoms due to various stressors’ and was initially seen by her on 15 September 2016.
  10. [27]
    Ms Gazzard reported that AT ‘complained of symptoms relative to a severe depression and an associated anxiety resulting from an incident in December 2015.’ She wrote that AT said she made an anonymous report to the Council after witnessing an employee consuming alcohol at a bowls club and that she ‘became greatly disturbed when the council worker, who was dressed in council uniform, left the club driving a (Council) work vehicle’ and felt that the staff member to whom she reported it ‘was dismissive of her complaint.’
  11. [28]
    AT told Ms Gazzard that the Council worker she had complained about later confronted AT’s husband in a threatening manner accusing him and AT of reporting him to the Council. AT told Ms Gazzard she was distressed that her privacy was violated and concerned about retaliation by the worker. She told her she began to receive prank phone calls and that she had been victimised by friends and associates of the worker and no longer felt comfortable attending any local bowling clubs. AT told Ms Gazzard she had been accused of making false allegations against the Council worker. A formal complaint was made against her at a local bowling club with the intention of having her banned from the venue. AT told Ms Gazzard the allegations against her were false and she thinks the complaint has been made due to her complaint to the Council.
  12. [29]
    Ms Gazzard reported that AT told her she previously enjoyed watching bowls competitions and supporting family and friends and that activity assisted her to cope with chronic pain and ‘brought great pleasure to her life.’ She now feels ‘marginalised’, avoids socialising, fears confrontations by friends of the Council worker which is having a negative effect on her mental health. She reported spending most of her time at home and ‘refuses to go out in public without her daughter for support.’
  13. [30]
    Ms Gazzard wrote that AT said her mental and physical health continue to decline while this matter is unresolved and that the ‘Council’s actions have caused irreversible damage to her reputation and social life.’ AT ‘is doubtful she will be able to attend to her hobby of attending lawn bowls events or feel at ease in public areas within (her local) region.’
  14. [31]
    In a subsequent letter dated 28 November 2016, Ms Gazzard clarified that AT suffered chronic pain from a pre-existing back injury and reported severe back pain exacerbated by stress and disruption to her pain management programme due to depression and loss of motivation. AT advised Ms Gazzard of two recent hospital admissions due to severe back pain.
  15. [32]
    Ms Gazzard concluded:

In my clinical opinion AT suffers Major Depressive Disorder associated with her complaint to [the] Council in December 2015. AT’s depression is likely to improve when this matter is resolved and she is able to focus on her recovery.

  1. [33]
    When asked at the hearing about her pre-existing injury, AT explained she had torn discs in her lumber spine in a workplace injury and was again injured in 2000 at her work place when a 15kg machine fell on her resulting in herniated discs in her neck. She said as a result she had chronic neck and back problems and attended a Brisbane hospital 6 monthly or yearly. She was prescribed medication for pain management since 2000 as well as attending pain clinics but had worked in various jobs since that injury. She denied suffering any anxiety or psychological condition as a result of these injuries although she saw a psychologist for two years after the accident. She says the stress she is experiencing exacerbates her pain. She said she now confines herself to the house and does not walk or swim which also contributes to her pain worsening.
  2. [34]
    AT said she had attended on Ms Gazzard eight times with a further five to go. She said she had been ‘forced’ to attend an extra appointment due to the Council requiring an additional letter.
  3. [35]
    Some weeks prior to the hearing, AT sought an adjournment on the basis that Ms Gazzard was unavailable on the hearing date. The adjournment was refused and Ms Gazzard given leave to attend by phone.[14] AT was advised by the registry that she may serve notice to Ms Gazzard to compel her attendance. At the commencement of the hearing AT advised Ms Gazzard was aware of the hearing and would make herself available at some point when telephoned although no specific arrangements had been made. Initially when the Tribunal phoned Ms Gazzard’s rooms her receptionist indicated she would be available between clients and the Tribunal attempted to make further contact numerous times throughout the hearing. Ultimately, both the Tribunal, and AT, were informed by Ms Gazzard’s receptionist that she would not be available at any time that day. The receptionist is reported as saying that Ms Gazzard said she had the week prior, told AT and the Tribunal she was unavailable.
  4. [36]
    AT in making what were intended to be final submissions, made further assertions which had not been part of her evidence and which the Council submitted should not be included as evidence.
  5. [37]
    One such assertion was that she had not told KT about making the complaint about Mr McMah to Council until after KT came home and told her about the altercation with Mr McMah.
  6. [38]
    AT also made the following statement during her submissions:

…my stress, anxiety is not because of the incident at the bowls club. I can go to any bowls club. The problem is the people. Now that they know what happened… people were saying to me that is horrible. You were the one who put him in. That’s not a bowls thing. That’s what’s been said and all these people know of it… because of what happened with Brian, they would not shake KT’s hand, saying “you don’t deserve it, because of what you did to Brian.” That’s his friends and it’s just escalated from there. There are eight bowls clubs in this district and Brian and his friends and his brother all play at these bowls clubs. It’s gone through them all.

  1. [39]
    AT went on to allege other incidents had occurred as a result of Mr McMah’s actions but she did not elaborate. She said she and KT had lived in the area thirty-eight years and she was born there. She said she had never before had so much stress, anxiety and depression. She said the stress affects her chronic neck and back problem. She said she now has to go to a physiotherapist as she is not going out and doing regular walking and swimming, but stays on the lounge not moving. She said she had seen a specialist in Brisbane. She asserted because an MRI showed no change, the doctor said it is the stress which ‘is helping cause’ or is ‘contributing to the pain.’ 
  2. [40]
    KT’s written material filed in this matter was brief but he gave more extensive evidence at the hearing.
  3. [41]
    KT’s evidence was that he was at the bowls club when Mr McMah approached him and accused him of ‘dobbing’ him into the Council. KT said he told Mr McMah he did not know what he was talking about and Mr McMah then accused KT’s wife of ‘doing it’ (dobbing). KT said Mr McMah said the Council told him it was KT and his wife who ‘dobbed him in’ for using a Council vehicle and drinking at the bowls club.
  4. [42]
    KT said he pointed his finger at Mr McMah and responded ‘don’t accuse my wife of doing anything’, to which Mr McMah responded ‘don’t point at me or I’ll rip it off and shove it up your arse. You and your wife are dogs and you’s (sic) deserve everything you’re going to get.’
  5. [43]
    KT said he then ‘defended’ himself and ‘slapped’ Mr McMah in the mouth and told him ‘don’t ever threaten me or my wife again.’ KT said Mr McMah’s brother ran out of the clubhouse and stood by him as he argued with Mr McMah. KT said he told Mr McMah ‘just go away from me.’
  6. [44]
    At the hearing KT agreed that he had ‘ripped off’ his shirt and punched Mr McMah in the face. He reiterated that was in response to Mr McMah threatening to ‘rip his finger off and shove it up his arsehole.’ He said ‘I do not take threats lightly’ and that Mr McMah had also threatened his wife. He said he was ‘entitled to defend’ himself if ‘threatened with physical violence.’ He said ‘if my wife is threatened, then I defend her.’
  7. [45]
    KT agreed that following the altercation at the bowls club he was banned for twelve months which has had the effect that he and his wife had been unable to attend that club during that period. He said at the hearing he had become a member of another bowls club although that was not in any written material before the Tribunal.
  8. [46]
    KT agreed at the hearing he had been suspended from competition bowls across the district in 2016 because of an unrelated incident at another bowls club. It was put to KT that he had ‘a long history of overreacting in these situations which led to negative consequences for you and your wife in terms of attending bowls clubs around the district.’ KT responded ‘No. Not at all. I’m still welcome to go to any club that I wish to go and play at.’
  9. [47]
    KT formerly worked for the Council. He agreed he had been given written warnings about his conduct during his employment. He agreed he had lodged a discrimination claim against the Council and claimed for a psychiatric injury to the Local Government Mutual Fund which he said was successful. When asked whether the claim was initially rejected and whether legal argument ensued between himself and the Council he said he was ‘not too sure. You’re going back nearly three years.’
  10. [48]
    KT agreed he was dismissed from Council on the grounds of misconduct over allegations of misappropriation of Council property but did not agree that his relationship with the Council had been ‘unhappy.’ KT said only that it was an employer/employee relationship and did not agree that he did not like people at the Council.
  11. [49]
    In response to questions put by AT, KT said he had worked for the Council for eleven years. During a period of flooding he worked twelve to fourteen hours a day and got no support ‘mentally, physically or morally’ from the Council although he found out while at work his mother ‘passed away due to the flood.’ He agreed with AT’s suggestion that after ‘Antidiscrimination ruled in his favour’ the Council put him ‘on the drains for two years.’ He agreed with her that he ‘took’ Council for ‘unfair dismissal’ and won his case. He agreed that he had worked without issue, including with Mr McMah.

Council’s evidence

  1. [50]
    Karen Craft’s role at the Council included investigating complaints against Council employees. Her statement was provided and she attended the hearing.[15] She provided a copy of a complaint recorded in the Council’s Customer Request Management (‘CRM’) system on 14 December 2015 which was:[16]

A “[A]” called complaining that Brian McMah goes to the bowls club on a Wednesday Night to have a couple of beers in his work uniform and in the Council Vehicle. She’d like to be contacted on [mobile phone number] to discuss this further otherwise she will take photos to the [local newspaper].

  1. [51]
    Ms Craft said Mr McMah was required to attend a meeting to discuss the complaint. She said in response to a question from Mr McMah she revealed the complainant was ‘[A]’ which she thought was ‘relatively anonymous.’ She said at no time did she give Mr McMah the mobile phone number.
  2. [52]
    The outcome of the complaint was that Mr McMah was found to have breached the Use of Council Vehicles Governance Policy,[17] but there was found to be no evidence he had been at the bowls club in work hours. Council acknowledged Mr McMah had not been informed of the need to have completed a ‘Use of Council Vehicle Use’ form. He was required to attend an information session on the use of Council vehicles. He was advised he was entitled to wear his uniform outside of work hours but Council suggested not doing so at a licenced venue might help avoid future complaints.
  3. [53]
    Ms Craft provided a copy of KT’s letter dated 21 December 2015 to the Council concerning his altercation with Mr McMah on 19 December 2015.
  4. [54]
    Ms Craft said following an internal investigation of her alleged breach of the IPA Act she was required by Council to undertake a refresher course in respect of her obligations under that act.
  5. [55]
    Ms Craft recalled speaking to AT on 14 December 2015. She said she did not recollect laughing at her.
  6. [56]
    A statement was provided from Mr McMah who also gave oral evidence. Mr McMah was employed as the Council’s depot operations manager, a position held for eleven years.
  7. [57]
    Mr McMah denied Council gave him a letter with the name ‘[A]’ or a mobile number or that he showed such a letter to any co-worker.
  8. [58]
    Mr McMah’s evidence was that on 19 December 2015 he had a conversation with KT at the bowls club in words to the following effect:

Mr McMah: K, just let me know if it was you. Tell me the truth about it.

KT: It wasn’t me.

Mr McMah: I believe it wasn’t you directly, I think it was A.

KT: Keep my wife out of this.

Mr McMah: why did you do it?

  1. [59]
    Mr McMah said he asked the same question in two or three different ways and that that within seconds of asking the second time, KT had ripped off his shirt and punched Mr McMah under the chin. Mr McMah said he fended off a couple of punches with his arms when people from the club came and broke them up. He said he was shaken and his mouth was bleeding.
  2. [60]
    Mr McMah said he commenced playing bowls but then left to report the assault to police. He said he chose to have police simply speak to KT rather than have him charged with assault. Mr McMah said subsequently police advised someone had been sent to speak to KT.
  3. [61]
    During questioning by AT at the hearing, Mr McMah denied saying to KT that Council told him she had ‘put him in to Council’ or that he had been told so by Council. He also denied making any threat to KT to ‘rip off his finger’ or to ‘shove it up his arse.’ He denied calling KT or his family ‘dogs.’ He denied assaulting KT and described himself as backing away as KT ‘came at [him].’
  4. [62]
    Mr McMah said that he had been told by Ms Craft the complaint was from a ‘[A]’, that he did his ‘own investigation on the [A]s’ that he thought it might have been and also ‘said to Council [he] thought it might have been [AT who] did the complaint originally.’
  5. [63]
    Mr McMah’s evidence was that he was able to look up any complaint on the Council CMR at the depot where he was based and did not require permission to do so.
  6. [64]
    Peter Byrne, the Chief Executive Officer of the Council for the last twenty-one years, provided a brief statement and gave evidence at the hearing. In response to questioning by AT, Mr Byrne agreed he had spoken to KT on the phone when he rang on 21 December 2015 to complain about Mr McMah’s interaction with him at the bowls club. He said he had informed KT the matter was reported to police and it was not a matter for Council given it occurred outside of Council hours. AT suggested Mr Byrne had told KT he had spoken to Ms Craft when Ms Craft was in fact, on leave at the time. Mr Byrne said he did not recollect whether he said he had spoken to Ms Craft but that he had listened to tapes of her conversations with Mr McMah. Mr Byrne said Council’s Code of Conduct as regards employee’s behaviour includes a general principle that people be treated with respect. AT suggested that the Code included a prohibition against an employee ‘retaliating’ against or contacting a person who has made a complaint against that employee. She said KT had been advised accordingly by Council in relation to an earlier non-related matter. AT suggested to Mr Byrne that his memorandum to Ms Craft dated 29 April 2016 admitted a breach of the IPA had occurred.
  7. [65]
    Christopher Joosen’s role with the Council includes processing and dealing with privacy information complaints. He provided two statements, one of which was tendered only at the hearing, and gave oral evidence.
  8. [66]
    Mr Joosen’s earlier statement set out some history of the complaint against Council for breach under the IPA which was initially by KT but subsequently pursued by AT.
  9. [67]
    Mr Joosen’s later statement attached copies of:
    1. (a)
      Council’s Privacy Statement as at 16 December 2015 and the current version;
    2. (b)
      Council’s Employee Code of Conduct as at 16 December 2015 and the current version;
    3. (c)
      an intranet posting on Council’s homepage dated 13 November 2015; and
    4. (d)
      Mr McMah’s position description.

Mr Joosen’s statement included the assertion that ‘Mr McMah would, in the course of his employment, have had access to the Council’s CRM system leading up to, on and after, 16 December 2015.’

  1. [68]
    AT was given the opportunity to read through this material at the commencement of the hearing and make submissions as to the statement being included. She indicated she had no issue with the document other than disagreeing with the assertion that Mr McMah had access to the CRM system. She said it was not the CRM where a complaint can be accessed.

Submissions of AT

  1. [69]
    AT submitted that, given KT did not know of her complaint to Council when confronted at the bowls club by Mr McMah, Mr McMah must have said something to cause KT’s reaction. She asserted Mr McMah did not deny, when questioned, that he had not said what KT alleged he said, only that he did not recall having said it.
  2. [70]
    AT’s submission regarding the letter she alleges was shown around the depot by Mr McMah was, in effect, that he admitted there was a letter because in his statement he referred to the letter.
  3. [71]
    AT submitted that Mr Byrne had on 21 December 2015 ‘automatically’ told KT that the matter which he rang to complain of, that is, his interaction with Mr McMah on 19 December 2015, was being dealt with by police. She said that was ‘strange’ and questioned how he could know that two days later. She asserted he had told KT that he spoke to Ms Craft that day which was not possible given she was away.
  4. [72]
    AT’s submission was, in effect, that if Ms Craft had not divulged her name to Mr McMah, Mr McMah would not have confronted KT at the bowls club and she would not need to see a psychologist, a physiotherapist and take additional medication.
  5. [73]
    AT said while the Council contended that Council did nothing wrong and that it was Mr McMah who did wrong, she submitted the basis of Mr McMah confronting KT, was that Council told him who had made the complaint.

Submissions of Council

  1. [74]
    Council accepted that in the course of dealings with the OIC, Council conceded that its conduct may have constituted a ‘probable breach’ of the IPA but did not maintain that position at the hearing.
  2. [75]
    Council submitted that there was no breach of IPP 11 because Council’s privacy policy,[18] which was in place at the time of the alleged breach, provided that in the course of dealing with complaints about, inter alia, employees, Council would collect personal information and may disclose that information within Council departments. Council submitted that as the privacy policy was accessible online it was readily available to members of the public and is a policy within the scope of the exception referred to in IPP 11(1)(a).[19] Council submitted that as a consequence of the existence of the policy, AT was reasonably likely to have been aware that Council would collect her personal information and disclose it within the Council for the purposes of investigating and dealing with her complaint.
  3. [76]
    Council further submitted that irrespective of whether AT was aware of the existence of the privacy policy, a person making a complaint about an employee would have been reasonably likely to have been aware that their identity may be disclosed to that employee. In many cases, it might be necessary, that the person the subject of the complaint, be aware of the complainant’s identity in order to fairly respond, although that was not submitted by Council to be the case in these circumstances.
  4. [77]
    Council further submitted, that, in this case, the requirement of section 23(2)(a) of the IPA was not satisfied as AT’s personal information was entered into the CRM database upon her making the complaint and Mr McMah as an employee had access to that. Although Council accepted that Mr McMah obtained AT’s personal information as a result of Ms Craft’s disclosure, Council submitted that the fact that he was in a position to obtain that information in any event, meant there was no breach of IPP 11.
  5. [78]
    Whilst it was Council’s submission that there was no breach of the IPPs, it was submitted that, should the Tribunal find to the contrary, then there was no basis for compensation to be paid in the amount of $20,000 sought by AT.
  6. [79]
    Council submitted the appropriate order should a breach be found, is that Council formally apologise to AT and take steps to ensure there is no repeat of the conduct which led to the alleged breach. In that regard Council has offered a formal apology and required appropriate training be undertaken by Ms Craft and additionally taken steps to ensure Mr McMah does not engage in conduct which might lessen the reputation of Council as an employer.
  7. [80]
    Council submitted that the compensation sought by AT for injury to her feelings or humiliation is misconceived and grossly excessive.
  8. [81]
    Council submitted that the Tribunal must be satisfied that there is a sufficient causal link between any alleged breach and the harm alleged to have been suffered by AT. There was no evidence such as telephone records, to link the nuisance calls which AT alleges she received to the alleged breach. Furthermore, the harm which AT alleges she suffered as a result of the altercation between Mr McMah and KT, including her inability to attend at the bowls club, was attributable to the actions of KT, not the alleged breach of the IPPs. Council submitted that the Tribunal should prefer Mr McMah’s evidence as to what occurred at the bowls club. Irrespectively, KT assaulted Mr McMah which led to his ban from that club and his need to seek membership elsewhere. The evidence of AT is that her inability to attend the bowls club has contributed to her hurt and humiliation.
  9. [82]
    Council submitted that the only independent evidence of injury suffered by AT are letters from Ms Gazzard who appeared to have formed an opinion on the basis of what she was told by AT without appropriate regard to other matters which may have caused or contributed towards any injury suffered by AT. Council submitted Ms Gazzard refers to a number of stressors and AT’s own evidence was that she has a history of chronic pain.
  10. [83]
    Council submitted it was not apparent how Ms Gazzard arrived at her conclusions or to what extent she relied on clinical judgment. Accordingly, Ms Gazzard’s letters should not be accepted by the Tribunal and if they are accepted, Council submitted they should be given minimal weight.
  11. [84]
    Should the tribunal consider compensation ought to be paid, Council submitted a nominal award only is appropriate. The breach of the IPP, if made out, occurred in the context of dealing with a complaint about an employee and disclosure was made solely to the person the subject of complaint. Nor should Council be required to compensate AT for travel expenses incurred by KT, as they were not losses incurred by AT and in any event were caused by KT’s own conduct in assaulting Mr McMah which led to his being banned from that club.
  12. [85]
    Council referred the Tribunal to a number of comparative decisions with   respect to compensation,[20] and submitted that the Tribunal should approach any award of compensation with restraint.[21]

Has there been a breach of IPP 11?

  1. [86]
    As was observed by Member Deane in RM v Queensland Police Service,[22] published after the hearing of this matter, the concepts of ‘use’ and ‘disclosure’ are defined in the IPA and are mutually exclusive.[23]
  2. [87]
    In that matter the learned member found (original emphasis):[24]

…that the concept of “use” is more consistent with dealings internal to an agency and “disclosure” is more consistent with dealings with entities including persons external to an agency.

  1. [88]
    Council have argued that Ms Craft cannot be said to have ‘disclosed’ AT’s personal information, that being her name, in breach of IPP 11, as section 23 of the IPA provides that disclosure from the first entity to the second entity occurs if the second entity does not know the personal information, and is not in a position to find out.[25]
  2. [89]
    AT refuted that Mr McMah had access to the CRM where her details were recorded with her complaint. She did not say how she knew this. I accept the direct evidence of Mr McMah and Mr Joosen that in his role Mr McMah had such access.
  3. [90]
    I agree with the proposition that Mr McMah having such access would mean in accordance with section 23(2) of the IPA it cannot be said that Council ‘disclosed’ the information to him. That accords with the approach taken by Member Deane, the information passing in this case, internally within the Council.
  4. [91]
    I accept the evidence of Ms Craft and Mr McMah that Ms Craft told Mr McMah it was a ‘[A]’ who had made the complaint against him. There was no evidence before the Tribunal that Mr McMah was given any letter containing a complainant’s name or phone number or that Mr McMah showed any such letter to other employees. Mr and Mrs T’s assertions they were told this occurred, in the absence of witnesses, are not evidence.
  5. [92]
    For these reasons, I find that Ms Craft advising Mr McMah that the complaint against him had been made by a ‘[A],’ did not breach IPP 11.
  6. [93]
    Could the actions of Mr McMah, in speaking to KT at the bowls club, be considered a breach by Council, of IPP 11? That argument was not specifically made by AT. It was only when she addressed the Tribunal, with which were supposed to be final submissions, that she asserted she had not told KT she had made the complaint until after the altercation with Mr McMah. That assertion being made in closing submissions, without any prior contention that the actions of Mr McMah were what constituted the breach by Council of IPP 11, the Council had no opportunity to specifically address that possibility. However, in the context of making written submissions regarding whether there was any breach of IPP 9 and IPP 10, Council submitted that Mr McMah’s actions, being unauthorised and in breach of Council’s then current Privacy Statement,[26] and Employee Code of Conduct,[27] could not be attributed to the Council.
  7. [94]
    Council submitted that breach of the IPPs does not involve strict liability. The issue was considered by Senior Member O'Callaghan, as she then was, in AXP v Queensland Police Service.[28]
  8. [95]
    In that matter, Senior Member O'Callaghan specifically considered whether an agency should be held responsible for a disclosure by an employee and thereby in breach of IPP 11.
  9. [96]
    Senior Member O'Callaghan noted the IPP did not expressly provide for strict liability nor identify when the conduct of an employee is to be attributed to an agency.[29] She found the analysis untaken by the NSW Court of Appeal, in Director General, Department of Education and Training v MT,[30] ‘equally applicable to the Queensland legislation’.[31] She concluded ‘that the scope and purpose of the [Queensland] legislative scheme does not lend itself to the conclusion that there is a strict liability imposed on the agency.’[32]
  10. [97]
    Senior Member O'Callaghan further concluded:[33]

The liability of agencies should be limited to those situations where the disclosure was within the ability of the agency to control either through its possession or control of the documents, or the adoption of protective safeguards. This involves a consideration of whether the disclosure was authorised by the [agency] or done when an employee was acting for the purpose of the agency or alternatively for personal reasons.

  1. [98]
    In that matter, Senior Member O'Callaghan found that the question of whether the agency could be vicariously liable for a breach of IPP 11 involved initially a question of whether in the circumstances IPP 4 had been breached,[34] and that the question whether security precautions were ‘reasonabl[y]’ required:[35]

A consideration of the nature of the information, which would include its sensitivity, and the consequences of loss, unauthorised access, use or disclosure.

  1. [99]
    There was no argument before the Tribunal as to the applicability of IPP 4 to AT’s complaint nor were submissions requested as they were regarding IPP 9 and IPP 10. In AXP v Queensland Police Service,[36] the Senior Member concluded there was a failure by the agency to take reasonable steps to safeguard the information,[37] but found that a breach of IPP 4 did not automatically result in liability for a breach of IPP 11 and that it was still necessary to conclude that the disclosure (under IPP 11) was related to the breach (of IPP 4).[38]
  2. [100]
    Council provided copies of its Privacy Policy and Employee Code of Conduct which are designed, inter alia, to safeguard information. The evidence of the Council was that Mr McMah’s conduct in approaching KT, was in breach of Council policy. There was no exploration at the hearing as to what disciplinary action an employee could expect to be taken by Council for such a breach. A copy of an intranet posting dated 13 November 2015,[39] which reminded staff of the effect of the IPA and that disciplinary action could be taken against an employee for ‘unauthorised access’, was provided but without explanation of what ongoing training was generally provided to staff. Such matters might arguably be appropriate to consider whether the Council took ‘reasonable steps to safeguard the information.’
  3. [101]
    As I have already noted, the issue of whether IPP 4 was breached by Council was not put before the Tribunal by AT. That Mr McMah’s actions, in arguably disclosing to KT that AT had made a complaint to Council, may have constituted a vicarious breach by Council, did not appear to have been contemplated when the matter was before the IOC. I will examine later in these reasons the Tribunal’s jurisdiction to consider whether there was a breach of IPP’s other than IP 11. However, on the basis of Senior Member O'Callaghan’s finding in AXP v Queensland Police Service, that the question of whether an agency can be vicariously liable for a breach of IPP 11 necessarily involves considering whether IPP 4 has been breached, I will consider whether Council took ‘reasonable steps to safeguard the information.’
  4. [102]
    On the evidence I have, Council’s Privacy Statement, the Employee’s Code of Conduct, evidence that employees are reminded via intranet of their obligations and evidence that Mr McMah breached the Code of Conduct, I find the Council did take ‘reasonable steps to safeguard the information’. The information being the name of the complainant, given ‘the nature of the information’, including its sensitivity and the consequences of loss, unauthorised access, use or disclosure. In AXP v Queensland Police Service, the Senior Member found that the agency (in that matter, the Queensland Police Service) had failed to provide reasonable steps to safeguard the information,[40] but, in my view, the information pertaining to AT was not of such a sensitive nature nor the consequences of unauthorised use or disclosure on par with the circumstances for the applicant in AXP v Queensland Police Service.[41] Clearly Mr McMah was not ‘acting for the purpose of’ the Council but ‘for personal reasons’ when approaching KT. 

Tribunal’s Jurisdiction to Consider Whether Breach of Other IPPs

  1. [103]
    IPP 9 and IPP 10 deal with ‘use’ rather than ‘disclosure’ of personal information so are more likely to apply to internal dealings within an agency.
  2. [104]
    As submitted by Council, no allegation that the Council breached either IPP 9 or IPP10 was ever part of AT’s privacy complaint referred to the Tribunal.
  3. [105]
    As noted by Council, the Tribunal’s jurisdiction to determine whether there was a breach of an IPP that was not included in the referral from the IOC, was considered also by Senior Member O'Callaghan, in AXP v Queensland Police Service.[42]
  4. [106]
    In that matter, the complaint referred from the IOC alleged a breach of IPP 11. The applicant’s written submissions, delivered more than six months prior to the hearing alleged also a breach of IPP 4. Senior Member O'Callaghan concluded:[43]

In circumstances where both alleged breaches involve allegations of conduct which is based on the disclosure of the same information in the same document I accept that the complaint is one that has been referred to the Tribunal and that I have jurisdiction to determine whether the complaint regarding the conduct concerning the information in the document, is substantiated.

  1. [107]
    As noted above, Senior Member O'Callaghan said:[44]

…that an examination of whether [the respondents] have breached IPP 11 involves a consideration of whether they have breached [I]PP 4…

…

In those circumstances it would be inconsistent with QCAT’s objectives to deal with matters in a way that is accessible, fair, just, economical, informal and quick not to deal with the complaint concerning IPP 4. (citations omitted)

  1. [108]
    Council submitted the matter now before the tribunal differs from AXP v Queensland Police Service in a number of respects including that in the present case, any conduct of the Council which may found a breach of IPP 9 or IPP 10, does not involve the ‘disclosure of the same information in the same document’. Council submitted that while IPP 11 involves disclosure of personal information, IPP 9 and IPP 10 turn on whether there has been use of personal information.
  2. [109]
    The current matter proceeded on the basis that AT contended that Ms Craft letting it be known to Mr McMah that the name of the person making a complaint against him was ‘[A]’ was a breach of IPP 11. That there was a breach of IPP 11 specifically, was not stated in AT’s material other than being written on the front of the Referral of a matter filed in the tribunal 24 June 2016. Letters from OIC consistently state that the IPP alleged to have been breached was IPP 11.
  3. [110]
    Senior Member O'Callaghan in AXP found she had jurisdiction to consider whether IPP 4 was breached, although in the referral only IPP 11 was alleged to have been breached. There were strong reasons for that approach in that matter given that the Senior Member found it was necessary to consider whether IPP 4 had been breached in order to consider whether IPP 11 was breached. Also, the allegation that IPP 4 was breached was contained in that applicant’s submissions filed more than six months before the hearing.
  4. [111]
    I think there would be circumstances, not limited to the facts in AXP, where an unrepresented applicant might be allowed some latitude by the tribunal, in being able to allege at the hearing, that the IPP which was breached, was a different IPP from that which was alleged to have been breached in the referral.
  5. [112]
    I do not think that just because the IPP alleged in the referral to have been breached, concerned the use of personal information, whereas the IPP an applicant may allege at hearing was breached, concerned the disclosure of personal information, would necessarily preclude the tribunal from determining it had jurisdiction, as was submitted by the Council.
  6. [113]
    If the same facts alleged by an applicant, supported that an IPP was breached, other than the IPP alleged in the referral to have been breached, and the respondent suffered no material disadvantage in the preparation of the response, I think there would be an argument that not dealing with the IPP alleged after the referral to have been breached, would, as raised in AXP,[45] be inconsistent with the tribunal’s objectives to deal with matters in a way that is accessible, fair, just, economical, informal and quick.[46]
  7. [114]
    AT did not at any time seek to rely upon there being a breach of any IPP’s other than IPP 11. When invited to make submissions about IPP 9 and IPP 10, she did not.
  8. [115]
    It has been noted that the obligations under section 29 of the QCAT Act do not extend to the Tribunal being required to advise parties how to conduct their claim.[47] To take the matter any further on behalf of AT would, in my view, be falling into that error. I find that I do not have jurisdiction to consider whether IPP 9 or IPP 10 have been breached.
  9. [116]
    If I am wrong about the Tribunal’s jurisdiction in that regard, I will consider whether either the conduct of Ms Craft in revealing AT’s name to Mr McMah, or Mr McMah’s conduct in raising AT’s complaint with KT, constituted a breach of IPP 9 or IPP 10 by the Council.
  10. [117]
    Council submitted that Ms Craft’s actions involve disclosure of personal information and therefore cannot constitute the use of personal information as contemplated under IPP 9 and IPP 10, and section 23 of the IPA stating the terms are mutually exclusive.
  11. [118]
    I do not agree with that argument. The fact that in everyday language, Ms Craft telling Mr McMah the name of the complainant, can be also described as disclosing the name, does not, in my view, mean her actions cannot be use of personal information as contemplated by that section.
  12. [119]
    Section 23 of the IPA gives examples of an entity using personal information,[48] but specifically provides that what actions may constitute use is not limited by the giving of those examples.[49]
  13. [120]
    One example of use of personal information is if an entity ‘transfers the information from a part of the entity having particular functions to a part of the entity having different functions.’[50] Again, that accords with the observation of Member Deane that ‘the concept of “use” is more consistent with dealings internal to an agency.’[51]
  14. [121]
    I do not find that Ms Craft, in inadvertently giving Mr McMah sufficient information (that is, the complainant’s first name) that he was able to identify who made the complaint against him, could be considered a use of information as contemplated by section 23 of the IPA.
  15. [122]
    Nor would I find that Mr McMah in speaking to KT at the bowls club used the personal information as contemplated in section 23, as KT was not an entity internal to the Council.
  16. [123]
    It therefore follows that Council was not in breach of IPP 9 or IPP 10, in my view, if I had decided the Tribunal had jurisdiction to consider whether there were breaches of those IPPs.

If a breach had been substantiated, was AT entitled to the consequential orders sought?

  1. [124]
    I have found that AT has failed to substantiate any breach of the IPPs by Council but if I am wrong, will consider what consequential orders ought to have flowed from a breach.
  2. [125]
    Problematical to AT’s argument that she suffered hurt and humiliation as a result of Mr McMah being told she had made a complaint against him, are the actions of KT.
  3. [126]
    Where the evidence of what occurred at the bowls club differs between KT and Mr McMah, I prefer Mr McMah’s evidence. Mr McMah presented with a calm demeanour and answered the questions he was asked.
  4. [127]
    KT told the Tribunal that he tended to raise his voice due to being deaf and I took that into account. KT did not merely speak loudly, he became angry with some questions and did not provide straightforward answers when straightforward questions were put to him. He did not raise his voice in the same manner when answering questions put to him by AT. While he described ‘slapping’ Mr McMah in written submissions, he agreed at the hearing he had ‘punched’ him. There is some question around his memory given his denial of remembering some significant events occurring only three years ago. Even on his own version of events, involving only verbal threats from Mr McMah, KT’s actions at the bowls club, taking off his shirt and punching Mr McMah sufficient to cause bleeding, were an extraordinary overreaction. KT’s characterisation of what he did as ‘defending’ himself and his wife was inexplicable.
  5. [128]
    The evidence of KT was that his altercation with Mr McMah resulted in his being banned for a period from that bowls club and another incident, not detailed at the hearing, resulted in his being banned from playing competition bowls for a period.
  6. [129]
    AT said she has been ‘shunned’ because of people finding out she made a complaint to the Council about Mr McMah. She did not provide any detail whatsoever of who shunned her, when and where. Her daughter’s statement only said she was with AT when an ‘unknown’ person approached and referred to her ‘dobbing in’ Mr McMah and being a ‘snitch’. No detail was given as to time or place or any context at all. The only way that it was possible to infer that people’s treatment of AT related to the complaint about Mr McMah, as opposed to KT physically assaulting him, is the use of the terms ‘dogs’, ‘snitch’ and ‘dobbing’. It was not possible to infer from the evidence given by AT, to what degree, if any, people treated her in the manner she described because of finding out she had complained about Mr McMah or because of finding out about KT’s assaulting him. It is possible that AT inferred the way she was treated by people was a result of her making the complaint about Mr McMah when that was not the case. In her own submissions, she gave an account of people refusing to shake KT’s hand, saying he did not ‘deserve it because of what you [KT] did to [Mr McMah]’. KT did not make the complaint on AT’s evidence. The inference to draw from that exchange is that people who ‘shunned’ AT and KT had a view about KT having assaulted Mr McMah.
  7. [130]
    AT asked the Tribunal to infer that the ‘prank’ phone calls she received were a result of it being known she had made a complaint against Mr McMah. The only connection to that event she is able to draw is that the calls, and there were only four, one to her home and three to her mobile according to AT, occurred two weeks after the incident at the bowls club and ceased after she made a complaint to the OIC. She contradicted what she said at the hearing about her mobile number only being known by her immediate family and doctor. In her later submissions, she said the number used to be KT’s and was known to Ms Craft from when KT worked at the Council. Presumably other people from the Council may have known the number from that time.
  8. [131]
    I can attach little weight to the statements of AT’s grandson and granddaughter. The statements were identical other than the names of each, so not written at all from individual points of view. They say nothing more than that AT told them when she answered the phone the caller breathed heavily before hanging up. Each described AT as ‘shaking’. There was no detail as to the context of the call. There appeared to have been just the one call when they were present.
  9. [132]
    The statements from the grandchildren confirm what AT said about needing her grandchildren to stay with her at nights when KT is at work. They each said they were present when she took a phone call which raises the possibility they were at her home on occasions anyway rather than needing to be asked to stay.
  10. [133]
    AT did not explain how the presence of her grandchildren would make her feel safe. I assume they are adults, although that is not stated. As a grandparent, I would think she would be protective towards grandchildren, adult aged or not, and if there was truly any ‘danger’ that she would not want her grandchildren present.
  11. [134]
    As submitted by the Council, Ms Gazzard’s appears to have based her conclusions only from what AT has informed her. Ms Gazzard states AT was referred by her GP for treatment due to various stressors. She stated AT related her symptoms to an incident in December 2015. Ms Gazzard related that AT ‘became greatly disturbed when the Council worker, who was dressed in uniform, left the club driving a work vehicle’, and that the staff member to whom she reported it ‘was dismissive of her complaint'. AT’s evidence was that Ms Craft ‘laughed’ at her. That was denied by Ms Craft but clearly AT felt she was not being taken seriously. She appeared to have considered what she had witnessed sufficiently serious to ‘go to the media’ if Council did not respond.[52]
  12. [135]
    Ms Gazzard also recounted that AT ‘was distressed that her privacy was violated and concerned about retaliation.’ In her conclusion, Ms Gazzard wrote that AT’s ‘depression is likely to improve when this matter is resolved and she is able to focus on her recovery.’
  13. [136]
    Ms Gazzard’s conclusion arguably contemplates that it is the ongoing nature of this process which is affecting AT’s recovery. AT presented at the hearing as ‘having an axe to grind’ with the Council, highlighting what she viewed as poor treatment of her husband. She presented as someone who felt she and her husband had been ‘victimised’ by their treatment over the years by the Council, fuelling her indignation about the way her complaint about Mr McMah was handled.
  14. [137]
    AT did not, in my view sufficiently establish that Ms Craft’s actions, if they were a breach of the IPP’s, which I have found they were not, resulted in her hurt and humiliation and stress, anxiety or depression.
  15. [138]
    If some of her hurt and humiliation was due in part to the actions of the Council in giving information to Mr McMah such that he was able to determine she had made a complaint against him, then that part was insignificant and would justify payment of a nominal sum only.
  16. [139]
    AT did not quantify her costs, if any, of attending on her doctor or psychologist.
  17. [140]
    KT’s costs in attending another bowls club were not AT’s costs nor were they properly quantified in evidence.
  18. [141]
    Ms Craft having already undertaken appropriate training, no order in that regard was required.
  19. [142]
    AT rejected an offered apology as unhelpful so I would not order it.

Summary of Findings

  1. [143]
    Ms Craft’s letting it be known to Mr McMah that the name of the person making a complaint against him was ‘[A]’ did not disclose personal information as defined in section 23 of the IPA, as Mr McMah was in a position to find out that information. Therefore, the Council was not in breach of IPP 11 by reason of Ms Craft’s actions.
  2. [144]
    Mr McMah asking KT about AT making a complaint against him, if it was a disclosure (although there was insufficient evidence before the tribunal as to whether that information was already known to KT), was done without Council authorisation, in breach of the Employee Code of Conduct, and for personal reasons, and therefore the Council was not vicariously liable for that disclosure, if any. Therefore, the Council was not in breach of IPP 11 by reason of Mr McMah’s actions.
  3. [145]
    To determine whether IPP 11 was vicariously breached by Council through the actions of Mr McMah, it was necessary to consider whether Council ‘took reasonable steps to safeguard the personal information’ as required by IPP 4. I found that the Council did take such reasonable steps and accordingly, Council did not breach IPP 4.
  4. [146]
    AT did not make any case that there was a breach of IPP 9 and IPP 10 and the Tribunal did not have jurisdiction to consider whether Council breached those IPPs.
  5. [147]
    In any event I would have found that neither the actions of Ms Craft nor those of Mr McMah constituted use of personal information and therefore would not breach IPP 9 or IPP 10.
  6. [148]
    If a breach of the IPPs by Council had been substantiated, I would not find that the consequential orders sought by AT should be made. She failed to satisfactorily show that her hurt and humiliation was due to Mr McMah being informed she had made a complaint, rather than the improper actions of KT.
  7. [149]
    If some of her hurt and humiliation was due in part to the actions of the Council in giving information to Mr McMah such that he was able to determine she had made a complaint against him, then that part was insignificant and would justify payment of a nominal sum only.
  8. [150]
    AT did not quantify her costs, if any, of attending on her doctor or psychologist.
  9. [151]
    KT’s costs in attending another bowls club were not AT’s costs nor were they properly quantified in evidence.
  10. [152]
    Ms Craft having already undertaken appropriate training, no order in that regard was required.
  11. [153]
    AT rejected an offered apology as unhelpful so I would not order it.

Publication in Deidentified Form

  1. [154]
    When asked about deidentifying these reasons, AT told the Tribunal she did not care either way, that it was ‘too late anyway.’ Council said it would not oppose such an order.
  2. [155]
    The Tribunal is able to prohibit publication of information that enables a person who has appeared before the Tribunal, or is affected by the proceeding, to be identified,[53] inter alia, to avoid endangering the mental health of a person.[54] There is evidence before the Tribunal that AT has mental health issues. I am satisfied the principles of openness and accountability can be achieved by publishing these reasons in a deidentified manner to avoid ongoing exposure of AT’s private circumstances given the level of distress she expressed to have been experienced by her.

Orders

  1. [156]
    The appropriate orders are as follows:
    1. (a)
      The complaint that Bundaberg Regional Council breached Information Privacy Principal 11 is not substantiated and is dismissed; and
    2. (b)
      The Tribunal prohibits the publication of any information that may enable the Applicant to be identified.

Footnotes

[1]IPA, s 176(1).

[2]Ibid s 176(2).

[3]Ibid s 178.

[4]Ibid s 164(1).

[5]JL v Queensland Police Service [2009] QCATA 623.

[6]Briginshaw v Briginshaw (1938) CLR 336.

[7]Ibid Schedule 3, s 11.

[8]Ibid Schedule 3, s 11(1)(a)-(f).

[9][2013] QCAT 680.

[10]Document numbers 12-13 in applicant’s list of documents.

[11]Document number 11 in applicant’s list of documents.

[12]Medical Certificate of Dr Ahmad, 6 October 2016.

[13]Medical Certificate of Dr Ahmad, 23 November 2016.

[14]Decision of Senior Member Brown, 17 January 2018.

[15]Dated 23 August 2016.

[16]Council’s Statement of Evidence, 3.

[17]Council’s Statement of Reasons, Letter from K. Craft to B. McMah, 16 December 2016, 11.

[18]Annexure ‘A’ to Statement of Christopher Joosen, 2 February 2017.

[19]The section provides for an exception as follows: ‘the individual is reasonably likely to have been made aware, under IPP 2 or under a policy or other arrangement in operation before the commencement of this schedule, that it is the agency’s usual practice to disclose that type of personal information to the relevant entity…’

[20]DK v Telstra Corporation Ltd [2014] AICmr 118; A Complainant v Secretary, Department of Defence [1993] PrivCmrACD 1; Complainant v ACT Government Solicitor [2003] PrivCmrACD 1; Deeming v Whangarei Council [2015] NZHRRT 55.

[21]JL v Queensland Police Service [2014] QCAT 623, which applied Rummery v Federal Privacy Commissioner & Anor [2004] AAT 1221.

[22][2017] QCAT 71.

[23]Information Privacy Act 2009 (Qld), s 23(5).

[24]RM v Queensland Police Service [2017] QCAT 71, [132].

[25]Information Privacy Act 2009 (Qld), s 23(2).

[26]Statement of C. Joosen, 1 February 2017, attachment ‘A’.

[27]Ibid attachment ‘C’.

[28][2013] QCAT 680.

[29]Ibid [104].

[30](2006) 67 NSW LR 237.

[31]AXP v Queensland Police Service [2013] QCAT 680, [116].

[32]Ibid [121].

[33]Ibid [125].

[34]Ibid [128].

[35]Ibid [132].

[36]Ibid.

[37]Ibid [148].

[38]Ibid [149].

[39]Statement of C. Joosen, 1 February 2017, attachment ‘E’.

[40]Although, she was not satisfied there was a sufficient connection between the disclosure and the breach, and so did not find the agency vicariously liable: see [149], [150].

[41]Ibid.

[42]Ibid.

[43]Ibid [24].

[44]Ibid [25], [26].

[45]Ibid, [26].

[46]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 3(b).

[47]Ibid; Harrison & Anor v Meehan [2016] QCATA 197, [58].

[48]IPA, s 23(3)(a)-(c).

[49]Ibid s 23(4).

[50]Ibid s 23 (3)(c).

[51]RM v Queensland Police Service [2017] QCAT 71, [132].

[52]Statement of Reasons, document 2.

[53]QCAT Act s 66(1)(c).

[54]Ibid s 66(2)(b).

Close

Editorial Notes

  • Published Case Name:

    AT v Bundaberg Regional Council

  • Shortened Case Name:

    AT v Bundaberg Regional Council

  • MNC:

    [2018] QCAT 179

  • Court:

    QCAT

  • Judge(s):

    Member Beckinsale

  • Date:

    14 Jun 2018

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
A Complainant v Secretary [1993] Priv Cmr ACD 1
2 citations
Jump To
Cite 1 - [1993] Priv Cmr ACD 1
Cite 2 - [1993] Priv Cmr ACD 1
AXP v Queensland Police Service [2013] QCAT 680
11 citations
Jump To
Cite 1 - [2013] QCAT 680
Cite 2 - [2013] QCAT 680
Cite 3 - [2013] QCAT 680
Cite 4 - [2013] QCAT 680
Cite 5 - [2013] QCAT 680
Cite 6 - [2013] QCAT 680
Cite 7 - [2013] QCAT 680
Cite 8 - [2013] QCAT 680
Cite 9 - [2013] QCAT 680
Cite 10 - [2013] QCAT 680
Cite 11 - [2013] QCAT 680
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Complainant v ACT Government Solicitor [2003] Priv Cmr ACD 1
2 citations
Jump To
Cite 1 - [2003] Priv Cmr ACD 1
Cite 2 - [2003] Priv Cmr ACD 1
Deeming v Whangarei Council [2015] NZHRRT 55
2 citations
Jump To
Cite 1 - [2015] NZHRRT 55
Cite 2 - [2015] NZHRRT 55
Department of Education and Training v MT (2006) 67 NSW LR 237
2 citations
Jump To
Cite 1 - (2006) 67 NSW LR 237
Cite 2 - (2006) 67 NSW LR 237
DK v Telstra Corporation Ltd [2014] AI Cmr 118
2 citations
Jump To
Cite 1 - [2014] AI Cmr 118
Cite 2 - [2014] AI Cmr 118
Harrison and Anor v Meehan [2016] QCATA 197
1 citation
Jump To
Cite 1 - [2016] QCATA 197
JL v Queensland Police Service [2014] QCAT 623
1 citation
Jump To
Cite 1 - [2014] QCAT 623
JL v Queensland Police Service [2014] QCATA 623
1 citation
Jump To
Cite 1 - [2014] QCATA 623
JL v Queensland Police Service [2009] QCATA 623
1 citation
Jump To
Cite 1 - [2009] QCATA 623
RM v Queensland Police Service [2017] QCAT 71
4 citations
Jump To
Cite 1 - [2017] QCAT 71
Cite 2 - [2017] QCAT 71
Cite 3 - [2017] QCAT 71
Cite 4 - [2017] QCAT 71
Rummery v Federal Privacy Commissioner & Anor [2004] AAT 1221
1 citation
Jump To
Cite 1 - [2004] AAT 1221

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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