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AA v State of Queensland (Office of Industrial Relations)[2021] QCAT 258

AA v State of Queensland (Office of Industrial Relations)[2021] QCAT 258

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

AA v State of Queensland (Office of Industrial Relations) [2021] QCAT 258

PARTIES:

AA

(applicant)

v

State of queensland (office of industrial relations)

(respondent)

APPLICATION NO/S:

OCL056-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

23 July 2021

HEARING DATE:

7 April and 23 June 2021

HEARD AT:

Brisbane

DECISION OF:

Member Kent

ORDERS:

  1. The complaint that State of Queensland (Office of Industrial Relations) breached information privacy principle 11 on four occasions is substantiated.
  2. The State of Queensland (Office of Industrial Relations) must pay AA compensation in the amount of $20,000 within 28 days of the date of this decision.
  3. If any party seeks an order for costs, that party file and serve on each other party submissions in writing outlining the order sought and why it should be made within twenty-one days from the date of this decision.
  4. If any party does file and serve such submissions, any party against whom an order for costs is sought may file and serve on the party seeking costs submissions in response within twenty-one days of the submissions being served.
  5. The party seeking an order for costs may file and serve submissions in reply in fourteen days from service of the submissions in response.
  6. If submissions seeking costs are filed, the Tribunal will decide the question of costs on the papers on a date after all submissions have been filed.
  7. The Tribunal prohibits the publication of the name of the applicant and/or any information that may enable the applicant to be identified. The applicant is identified as AA in these orders and the reasons for this decision.

CATCHWORDS:

HUMAN RIGHTS – PRIVACY LEGISLATION – where respondent conceded there had been a breach of privacy caused by an employee of the respondent disclosing information to a third party without the applicant’s consent – whether disclosure was malicious – whether payment of compensation should be ordered

Information Privacy Act 2009 (Qld), s 176, s 178, Schedule 3

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102

Public Service Act 2008 (Qld) s 175

JL v Queensland Police Service [2014] QCAT 623

Lamb v Cotogno (1987) 164 CLR 1

RM v Queensland Police Service [2017] QCAT 71

CH v Queensland Police Service [2019] QCAT 297

PB v Workcover QLD [2020] QCATA 29

Australian Consolidated Press v Uren (1966) 117 CLR 185

GM v Director-General, Department of Justice and Attorney-General [2020] QCAT 113.

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

Respondent:

N Harris

REASONS FOR DECISION

  1. [1]
    The applicant is referred to as AA in these reasons.
  2. [2]
    On 26 June 2020, a privacy complaint made by AA was referred to the Tribunal under s 176 of the Information Privacy Act 2009 (Qld) (the IPA). The complaint was made against the State of Queensland (Office of Industrial Relations) (hereafter OIR).
  3. [3]
    The proceeding before the Tribunal is a referral under the IPA. In the referral lodged with the Tribunal, AA has sought compensation payable for four breaches of privacy along with his costs.

Issues

  1. [4]
    It is conceded by the respondent that the applicant’s privacy has been breached. The parties both agree that there were four breaches of the applicant’s privacy in the course of conversations between OIR staff member Steven Murray and staff at QSuper.
  2. [5]
    Despite agreement by the parties on the breaches, as this matter is subject to the original jurisdiction of the Tribunal[1] this has required the Tribunal to make an independent decision on this matter. Based on all the evidence before the Tribunal I find that there have been four breaches of the applicant’s privacy. These are breaches of Information Privacy Principle 11. This finding is based on the evidence and submissions that were before me both orally and in writing. The basis for my findings and findings on the monetary amount to be awarded are detailed in these reasons.
  3. [6]
    As a result of this finding the focus of the evidence fell on the issues of what, if any, compensation the applicant should be awarded, including legal costs and whether there should be any higher amount paid to the applicant due to the applicant’s allegation that the breaches were malicious in nature.
  4. [7]
    The respondent submitted that they agreed that some payment of compensation was appropriate, including for legal costs. The respondent submitted that the applicant needed to exactly prove and quantify the amount of legal costs. The respondent also submitted that the breaches, whilst admitted, were not malicious and that the applicant had failed to prove that they were.
  5. [8]
    The issues that remained in contention where whether there was sufficient evidence for me to conclude that the breaches not only occurred but were malicious. The significance of this, according to the applicant, was that this would indicate that a higher monetary award should be made to him, analogous to aggravated damages.

Evidence – submissions (written and oral on 7 April 2021) Applicant

  1. [9]
    The three audio recordings of telephone conversations between the staff member of Office of Industrial Relations (OIR) and staff members of QSuper were played during the first day of the hearing. There were transcripts provided that the applicant advised the Tribunal he had prepared himself. The respondent noted that they had also prepared a transcript but had not filed this as part of their material due to what they saw as the similarities between the two documents.
  2. [10]
    The first recording’s transcript contained a description of a sound made by Mr Murray (staff member of OIR) that was indicated to be a laugh. I drew the attention of the parties to the fact that I could not hear it as a laugh rather I just heard a noise. Other noises were described as laughs in the other transcripts relating to conversations two and three. Some are indistinct and in at least one part of the recording Mr Murray appeared to be engaged in an exchange of laughter with the staff member of QSuper that he was talking to.
  3. [11]
    AA indicated the significance of this was that in his submission it went to proving that the employee of the respondent was acting in a malicious manner towards him. The respondent submitted that although inappropriate the breaches at no time rose to the level of being malicious.
  4. [12]
    The applicant submitted to the Tribunal that he was relying on the following points to prove that the employee of OIR was acting with malicious intent:
    1. (a)
      Why did Mr Murray need to speak to QSuper? The OIR had permission to speak to the applicant’s treating psychiatrist, General Practitioner (GP), and psychologist. In summary, AA considered that this was a backdoor method of attempting to achieve the aim of having him undertake an independent medical examination (IME). He said that he did not need an IME as his medical practitioners could supply information about him;
    2. (b)
      He said the tapes were proof of Mr Murray colluding with QSuper;
    3. (c)
      AA referenced the occasions he characterised as laughter on the audio tapes as further proof that Mr Murray was acting maliciously towards him;
    4. (d)
      AA accused Mr Murray of lying when he stated in the audio recordings that he had contacted doctors relating to AA. The applicant said that he could prove his treating team had never been contacted by the OIR or their staff. He said his doctors and psychologist would give evidence to this effect. The Tribunal gave leave for the applicant and the respondent to file further material on this point; and
    5. (e)
      AA attributed the alleged malicious behaviour by the OIR, first via Mr Murray and later in the OIR delays of handing his complaint, to him having succeeded in another legal matter against them. He saw the privacy breaches as malicious and retribution for his prior actions.
  5. [13]
    The applicant submitted that he found it highly offensive, humiliating, and embarrassing when he heard the information that was in the recordings. He said that he had had a long career in his job (30 years) and that he was very hurt to have been treated like this. It was the applicant's submission that Mr Murray was trying to achieve an illegal end i.e. to obtain an IME for the applicant by an underhanded method. He stated that he wanted people to know that the OIR did not take mental health seriously. He considered the OIR’s behaviour to have caused an aggravation of his illness. He stated that the OIR did not know how to address mental health and they were taking it out on him. He referenced a successful claim to the Industrial Relations Commission. He stated that he had been adversely affected by the OIR’s treatment of him. He gave evidence that he deserved to be compensated for being pushed out the door and what he saw as inappropriate treatment of him. He said that he was not the first person to have been treated like this and he was concerned that he would not be the last person.
  6. [14]
    The applicant filed material relating to his legal costs and it was his submission that he should be entitled to cover these costs. Leave was given for the applicant to file further material relating to these costs.
  7. [15]
    The applicant relied upon his submission that the fact that Mr Murray had not asked for any information from his doctors was proof that he was acting maliciously and that by attempting to get information by side method, such as speaking to QSuper about issues relating to his medical reports, could in fact be classified as being malicious.

Respondent

  1. [16]
    The OIR submitted that considerations relevant to the Tribunal could be found in the case of JL v Queensland Police Service [2]. This case sets out the discretion that the Tribunal must exercise under section 178 of the IPA. In JL it was stated that that the principles applied in tort law may assist however it is ultimately the wording of the statute that governs the exercise of the Tribunal’s discretion. The respondent cited a High Court decision that contrasted aggravated damages from exemplary damages by noting that unlike exemplary damages aggravated damages are compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like (Lamb v Cotogno.[3]) It was submitted that this requires the Tribunal to look at the facts of the case and see whether the applicant has demonstrated that they have suffered further injury as a result of the respondent’s conduct.
  2. [17]
    The respondent submitted that there was no evidence that Mr Murray or any other staff member of the OIR had in any way exhibited malicious behaviour in the breaches of the applicant’s privacy. The OIR conceded there were delays in how the applicant’s complaint was dealt with post the breaches of privacy. Reliance was placed upon the affidavit of Ms Lyttle, who was a team leader for the Right to Information Privacy team. It was submitted that whilst regrettable, the delays were the product of miscommunication and an unplanned absence by the officer with carriage of the matter. They were not motivated by malice or any other untoward emotion or intent. It was submitted that the written evidence of Ms Duffell-Wilson, manager of the Right to Privacy team in OIR, demonstrated that attempts were made to communicate with the Office of the Information Commissioner (OIC) on numerous occasions however due to misunderstanding the respondent held the view that as of 27 May 2020 the OIC did not require anything further from the respondent in relation to the applicant's complaint.
  3. [18]
    It was refuted by the respondent that these failings were deliberate. The OIR submitted that they were best described as unfortunate miscommunications. The respondent submitted that the evidence did not reflect these being deliberate failings and were not evidence of any contempt for the applicant or his complaint. It was submitted that the delays in dealing with complaints, whilst regrettable, do occur and reflect the resource constraints of the respondent and events beyond their control. Further it was submitted that there were similarities between the failures of the respondent in this instance to those considered by the Tribunal in RM v Queensland Police Service[4] where it was acknowledged that the matter could have been handled better. It was submitted that not being handled correctly was different to being a deliberate attempt to maliciously injure the applicant. It was noted that the disclosure by Mr Murray, the employee of OIR, was deliberate in the sense it was not accidental but there was insufficient evidence to demonstrate that it was motivated by malice. It was submitted by the respondent that there were issues that the respondent could lawfully approach QSuper about, but it was clearly acknowledged that the respondent went well beyond those. In summary, it was the respondent’s submission that the evidence did not demonstrate that OIR had aggravated the applicant's hurt and humiliation through its conduct after the breaches.
  4. [19]
    The respondent’s legal representative submitted that they believed that the medical treating team of AA had been contacted by the office of the OIR but would need to take instruction on this before he could definitely say this was so. The respondent and the applicant were given leave to produce more evidence on this point and the matter was adjourned.
  5. [20]
    The respondent agreed that the applicant's legal costs would be recoverable from the respondent and that the Tribunal could so order, however it was submitted that proof was required for this to occur.
  6. [21]
    The parties were given leave to file further material on this point and this occurred.

Applicant’s further material

  1. [22]
    AA set out a timeline dating from 17 July 2018 through to January 2020. He said that at no stage during or before the privacy breaches had the OIR tried to contact his treating doctors as they claimed. He stated that he had given them an authority to contact his doctors and they held it for over 17 months before they attempted to contact his doctors. He said his doctor listed on the authority had changed in February 2019, he had a new treating doctor for another eight months prior to the OIR attempting to use their authority. He claimed that the OIR attempted to contact his GP seven weeks after he lodged his first complaint. He saw this as an attempt to conceal information from other parties (himself and the OIC). An OIR staff member contacted his solicitors on 18 October 2019 to seek a new authority from his treating practitioner. He said this was unnecessary as the OIR already had a signed authority dated 7 July 2018 and that they had had it for so long that he had now changed doctors.[5]
  2. [23]
    It was AA’s submission these breaches were intentional and malicious because he lodged a grievance in relation to being asked to undertake an independent medical examination (IME). He said the grievance had not been resolved before Mr Murray was instructed to coerce QSuper to undertake their own IME solely for the OIR's benefit and to his detriment. It was his submission that OIR did not need to go to QSuper as they had his consent to get medical information from all his treating practitioners. He said OIR's actions maliciously intended to do him harm and they did him harm by causing a severe aggravation to his mental illness. They achieved this by breaching his privacy with no justification to do so. He stated that the OIC had confirmed the actions committed by the OIR were breaches of the Information Privacy Act 2009 (Qld).[6]
  3. [24]
    AA also submitted letters from his consultant psychiatrist who said that he had not been asked to release any information and he would not be doing so unless he was given written permission to do so or subpoenaed. His material included a letter from his psychologist. This letter stated that she had no contact or had any information requests made to her by the OIR. There was a letter from his GP who said that he had gone through his file and there was no contact with the OIR and, except for contact with QSuper, there was no other contact. He also included a letter addressed to his solicitors by the OIR and several medical certificates that he had provided.[7]

Respondent’s further submissions

  1. [25]
    On 2 June 2021 the respondent filed an affidavit from Steven Murray, OIR. This indicated that the deponent was on long service leave from his position. He said he had been in his role since 2016. He described his work role and then throughout paragraphs 5 to 24 he described his interactions with the applicant’s matter.[8]
  2. [26]
    The affidavit described the progress of the application from 14 November 2017. He set out that he had been told by the applicant’s solicitors that all correspondence was to go through them. The applicant had been copied into an email sent to his solicitors. This was objected to. In May 2018 the OIR sent an email to the solicitors and AA again requesting further information about obtaining a medical authority required for the provision of rehabilitation assistance. Ultimately AA’s solicitors wrote to the relevant minister complaining that the OIR was not complying with the request for no direct contact. On 14 June 2018 the Director General, Department of Education, wrote to AA’s solicitors advising that he supported OIR’s attempts to contact AA to initiate a return to work process.
  3. [27]
    On 26 June 2018 the solicitors advised the OIR that the applicant had an upcoming doctor’s appointment and following that appointment there would be an update on his prognosis. Between 26 June and 22 August 2018 Mr Murray maintained regular contact with the solicitors regarding the promised update. Mr Murray said the solicitors advised that the update had been delayed due to the doctor needing to deal with family matters. On 22 August 2018 Mr Murray received a copy of medical advice certificate dated 17 July 2018 completed by a doctor for QSuper plus the medical authorisation form that allowed the OIR to speak to AA’s treating practitioners.
  4. [28]
    Mr Murray said he considered seeking medical reports from the nominated professionals but noted that the medical advice certificate he had received had been reviewed by AA’s other treating practitioners. They had excluded any underlying psychiatric diagnosis and supported CBT. The psychiatrist referred the applicant back to the GP for ongoing management, advice and follow up. The received medical report advised that significant recovery was unlikely until the administrative workplace process was concluded.
  5. [29]
    It was Mr Murray's understanding the administrative process referred to related to a request by the applicant to be excluded from a training programme. OIR had refused the request to excuse him from the programme on the basis it was relevant to his role and without it they were not sure if he would maintain his knowledge and skills in workplace health and safety legislation. It was noted that the GP had been providing the applicant with medical certificates at three monthly intervals since February 2018 with no apparent change in his medical condition and the latest medical certificate that was issued by this doctor certified incapacity up to November 2018.
  6. [30]
    Mr Murray stated that because of all of the information he had received he considered that these medical professionals were unlikely to be able to provide further information at that stage. He did not think that they could provide information that may assist in developing a rehabilitation programme for the applicant. After consulting his management and colleagues it was determined that the applicant would be referred to an IME. It was concluded that this would be a better option as it would provide unbiased advice on how the OIR could manage the matters that were impacting on the applicant's health and how the OIR could assist his return to work.
  7. [31]
    Mr Murray prepared a briefing, in accordance with public service directives, recommending that the delegate should send the applicant to an IME. The delegate approved the briefing. A letter was sent to the applicant and he was directed to attend an appointment in January 2019. The applicant solicitors subsequently wrote the OIR objecting to the IME. They submitted that the process should be managed informally, and they queried why the OIR had not liaised with AA’s doctors.
  8. [32]
    Mr Murray said that he had called QSuper and the purpose of these calls were to ensure that QSuper was aware that the OIR was actively seeking to assist the applicant to return to work. He wanted QSuper to be aware of the barriers to the applicant’s return to work with OIR. He advised QSuper that the OIR had directed the applicant to attend an IME, but this had been opposed by the applicant’s solicitors. He provided information to QSuper as he believed it demonstrated that the OIR was committed to trying to resolve the issues causing the applicant to be absent from work. He also wished to provide QSuper with some insight into the applicant's reluctance to engage with the OIR process. He said that the applicant had suffered significant anxiety resulting from him perceiving how his employment was being managed by the OIR.
  9. [33]
    It was Mr Murray's view that as the applicant had advised that he was unable to engage with that process, Mr Murray was hoping that QSuper would be able to allocate some resources to assist with managing the applicant’s injury or illness
  10. [34]
    Mr Murray explained to QSuper that the applicant had provided the OIR with a form stating he did not consent to QSuper sharing information with the OIR. Mr Murray’s view was that this demonstrated the extent of the applicant’s difficulty engaging with the OIR rehabilitation process. He did not consider that was a breach of the applicant’s privacy as he considered the information necessary for QSuper to effectively manage the claim. He said that he was aware that when applying for an income protection benefit an applicant must provide QSuper with an authority which allows the employer to provide QSuper, service providers or its insurers the applicant’s personal medical information for use in assessing and managing their claim.[9]
  11. [35]
    Mr Murray rejected in the strongest possible terms that his calls to QSuper were motivated by malice. He was acting in accordance with his role in the best interests of the applicant and the OIR. He said he held a genuine concern that without active involvement by QSuper in the applicant’s rehabilitation there would be no resolution of the applicant’s workplace issues. He alleged that he was worried that the applicant would continue to experience anxiety and remain on a benefit until the benefit ran out. He claimed that he was concerned that at that time the applicant would find himself with no income and no employment to which he could safely return. He said he did not know the applicant prior to being appointed his return to work co-ordinator, he had never had an opportunity to speak with AA directly because AA declined to respond to his emails or to return his calls.
  12. [36]
    Mr Murray described himself as empathetic to the applicant’s situation. He could understand how his situation was causing AA anxiety, but he could also understand the impact AA’s ongoing absence was having on the business, his manager and his work colleagues. With no projected date for the applicant’s return to work the applicant’s manager was said to be under pressure. This pressure was then passed on to Mr Murray to provide advice to the applicant’s manager on the likely duration of the applicant's absence from work and how his rehabilitation was being managed. Mr Murray said it was incredibly challenging to assist the applicant with rehabilitation because his anxiety was apparently affecting his capacity to engage in the process.[10]

Oral Submissions 23 June 2021

  1. [37]
    AA submitted that at the end of the first hearing date on 7 April 2021 the respondent's legal representative stated that he believed that Mr Murray had contacted the applicant’s doctors. It was submitted that Mr Murray's affidavit contradicted this. This was due to no contact having been made with AA’s treating doctors even though AA had authorised such contact to occur. He submitted that this was another example of the OIR stating one thing and then retracting that statement.
  2. [38]
    It was his contention that it was not until 17 months after he had issued the authority to contact his doctors that any contact was made. AA submitted that he did not know why the OIR did not use the power that he had granted them to contact his doctors. He stated that under section 175 of the Public Service Act 2008 (Qld) there was a power to request an independent medical examination. He said that Mr Murray went outside the Act and tried to obtain an IME through QSuper. He felt that this behaviour was a form of payback, demonstrating malice towards him as payback for his having made a complaint about the OIR. He referred to this grievance. He said this complaint was made only to two other members of the Department and that Mr Murray should have had no awareness of this. He noted that within two months of him making this complaint Mr Murray took the course of action that he did with QSuper.
  3. [39]
    It was submitted by AA that Mr Murray sought to collude with QSuper by obtaining an IME by illicit means. He said the fact that Mr Murray stated that AA had challenged and blocked the process demonstrated his malicious intent towards the applicant. He said Mr Murray was trying to undertake a process that the OIR could not properly achieve. This process was to have the applicant independently examined. AA disputed Mr Murray's claims that he was merely trying to help the applicant, so he did not run out of payments and was without funds, and that he was trying to assist him to return to work. AA refuted this and said that what Mr Murray was trying to do was cut him off from his benefits. AA said he was entitled to these benefits as he had paid the premiums and that it was not up to Mr Murray to make sure that QSuper was doing its job nor was it up to QSuper to make sure that the OIR were doing their job.
  4. [40]
    AA disputed that Mr. Murray was his rehabilitation officer. He based this on the information he had received, at the beginning of the process, in a letter to his solicitor. This letter stated that he had the opportunity to obtain the services of a third-party rehabilitation officer. He said he had never accepted that Mr Murray was to be his officer. He wanted an independent officer.
  5. [41]
    It was his submission that Mr Murray set out on a deliberate path of behaviour. He said this path of behaviour aligned with AA mounting a challenge to the IME ordered by the OIR. It was clear that Mr Murray was trying to entice QSuper to organise an IME where the Department had failed to do so. AA referred to paragraphs two and three of Mr Murray's affidavit, repeating that Mr Murray was not his rehabilitation coordinator and that he had wanted an independent officer. He said that the statement by Mr Murray that he was his rehabilitation officer conflicts with his view of the evidence.
  6. [42]
    AA submitted Mr Murray's affidavit was clear on the point that he did not have his consent to contact QSuper. He stated that paragraph 21 of Mr Murray’s affidavit demonstrated that Mr Murray's understanding of the administrative process was flawed. He said that the OIC decision only referred to a medical condition. He said that was all his doctor’s reports referred to. He said that could have been any kind of medical condition. Therefore, it was proven that Mr. Murray had not contacted any of his medical practitioners to find out the exact details of his illness. AA submitted that paragraphs 25, 26 and 27 of Mr Murray’s affidavit were evidence that Mr. Murray collaborated with QSuper at a time when he was given no permission to contact them in relation to AA’s matter.
  7. [43]
    AA drew attention to paragraph 29 of Mr Murray’s affidavit where the deponent stated that he did not consider providing the information to QSuper was a breach of the applicant’s privacy as he considered the information necessary for QSuper to effectively manage the claim. He also stated that he was concerned as he knew that when applying for an income protection benefit an applicant must provide QSuper with an authority which allows the employer to provide QSuper information and he thought that this was a necessary exchange of information. It is AA’s submission that this evidence is contradicted by the OIC decision stating that there had been breaches of privacy. Further this was conceded by the respondent.
  8. [44]
    AA made submissions relating to paragraph 31 to 34 of Mr Murray’s affidavit. He disputed that Mr Murray felt empathetic to his situation. AA refuted that there was any impact on his workplace. It was submitted that it was not Mr Murray’s concern whether QSuper were properly doing their job. If Mr Murray was concerned about the condition of the applicant, he needed to contact the applicant’s doctor and he had permission to do this. It was not his job to monitor QSuper. AA stated that Mr Murray’s affidavit contradicted other statements made to the Tribunal. He pointed again to what he considered to be Mr Murray laughing at him in his telephone exchange with a QSuper officer. In short, he submitted that the OIR was trying to enforce an IME when they had no power to do so. AA felt this behaviour was directly connected to him having started a grievance process, about the IME process, to two high ranking persons in the Department. He stated that he did not accept that the respondent was trying to assist him to return to work. He noted that Mr Murray had contacted QSuper four times and he believed this contact was made for malicious reasons.
  9. [45]
    AA submitted that he had suffered a severe aggravation of his health and that aggravation continued today. He said he had lost the benefit of his 30 years’ employment in the public service in Queensland, that he had to move his family interstate to gain further employment. He submitted that the Tribunal should find that the evidence was in his favour and that the OIR had not only breached his privacy but there were circumstances of aggravation. Further, he submitted that beyond just aggravation there were malicious acts on the part of the respondent. When questioned about what level of compensation he wished to have for each of the breaches ( 4 March 2019, 5 March 2019, 22 March 2019, and 28 August 2019) AA submitted he should be awarded the amount of $10,000 per breach or $40,000 in total.

Respondent

  1. [46]
    The respondent’s legal representative submitted that he needed to correct AA's version of events at the end of the previous hearing day. He said that he did not believe that he had told the Tribunal that he was sure the staff of OIR had contacted AA’s medical advisors but said he would seek further instructions.
  2. [47]
    It was the respondent’s submission that Mr Murray's affidavit detailed contact in relation to AA's matter and it was conceded that Mr Murray did not directly contact the medical advisors of AA.
  3. [48]
    Section 178 of the IPA was referred to. It was submitted that this did not use the word malice and therefore the Tribunal would need to look outside of the legislation to discern the meaning of malice. Reference was made to Australian Consolidated Press v Uren.[11] It was submitted that there is no single test for malice and the standard of proof required for malice was an extremely high one. It was submitted acknowledged that the Tribunal was not bound by a defamation case.
  4. [49]
    The respondent further submittted that there was no direct proof or evidence that would give rise to a finding of malice nor evidence of malice. The respondent submitted that the question for the Tribunal was “do the circumstances give rise to an inference of malice?”. It was submitted that despite submissions being made by AA there was no evidence of malice that could be proven on the balance of probabilities.
  5. [50]
    The respondent relied upon Mr Murray's affidavit stating that there was no evidence that Mr Murray possessed the state of mind that would indicate malice in these circumstances. Although it was conceded that Mr Murray did not contact the medical practitioners utilised by AA it was said that he had a legitimate reason for not making such contact. This reason was that it was clear from the material that he had  received from AA’s GP that further enquiries of these practitioners would not lead to new information. Therefore, Mr Murray formed a view about the utility of contacting the health practitioners as he felt they had already expressed their views. It was submitted that this decision was not based in malice but in practicalities and a desire to move the matter forward for the mutual benefit of the applicant and the employer.
  6. [51]
    The respondent admitted that there were four breaches of the applicant's privacy. It was submitted that paragraphs 28, 29 and 30 of Mr Murray’s affidavit demonstrated that Mr Murray was trying to help the applicant. It was stated that Mr Murray had assessed the medical evidence that had been sent in to the OIR and it was noted that he made a decision that there was no point in having further interactions with the practitioners as they had already indicated that the situation would not be resolved until the workplace issues were resolved. The applicant’s GP had passed this information on. It was denied that any contact made with QSuper was in any way related to a complaint made by the applicant in relation to the request for him to undergo an IME.
  7. [52]
    It was submitted there was insufficient evidence to support a finding of malice so therefore there should be no award of damages for aggravation. This was the case as there was no justification based on the evidence. Although it was agreed that there were multiple breaches it was submitted that the appropriate amount to be awarded should be $5,000 in total for all four breaches. The Court of Appeal case of JL v Queensland Police Service was cited and it was submitted that in that case the Appellate Court had changed an award of $5,000 made by the Tribunal’s Appellate panel, stating there must have been an error of law as the amount was too low. In its place the Court of Appeal made an order that $15,000 be paid. It was submitted that unfortunately in that case there was no formula that indicated why that was the appropriate amount.
  8. [53]
    Submissions were made relating to the applicant's legal costs. It was stated that it was not contested that some legal costs could be paid, including those that were incurred prior to the commencement of the complaint, however it was submitted that currently there was insufficient evidence for the Tribunal to appropriately quantify an amount of award of costs in relation to legal services. It was submitted that the case of CH v Queensland Police Service [12] stated such costs could be awarded. The Tribunal was also referred to section 178(v) of the IPA in support of the submission that the Tribunal may award damages relating to legal expenses, including for those incurred prior to the Tribunal proceeding being commenced.

Applicant’s submissions in reply

  1. [54]
    The applicant submitted that the evidence justified his legal costs. He noted he was not represented during QCAT proceedings. The applicant said he wished to have a total amount of $10,000 per breach of a privacy principle. This would make the total award to him $40,000. The applicant did not clarify in submissions whether the amount of $10,000 per breach included legal costs.
  2. [55]
    AA submitted that the amount the respondent had suggested as being appropriate ($5,000 for all four breaches) was what he considered to be “a real slap in the face”. He made the statement “what about my state of mind, my humiliation… I was gutted when I finally found out through a right to information application that my privacy had been breached”. He said that until that point, he had been looking forward to retirement. He had been proud of his 30 plus years of continuous employment in the public service. He said this service was not recognised and that his employer had treated him as a substandard person. AA said that there was no consideration given to helping him and his best interests were not considered. He said he had wanted to work however due to the behaviour of his employer he had not been able to return to work and he had needed to move interstate to find employment.
  3. [56]
    AA’s submission was that he required closure of the harm caused him by the OIR’s behaviour. He wanted the OIR to accept that they had not acted in his best interest. It was his submission that $10,000 per breach was an appropriate award in the circumstances. He was disappointed that the OIR colluded with his insurance company with the object of attempting to cut him off from his benefits. He stated that his unblemished history had not been counted by the OIR in their dealings with him. He stated the $10,000 per complaint (in total $40,000) may put him in a position to have a healthy life. He stated the OIR needed to accept responsibility for what they had done to him and he needed to have a message sent to them that this behaviour could not be done to another person.

Jurisdictional issues

  1. [57]
    At the hearing the respondent made submissions relating to what were referred to as jurisdictional issues: (i) that the complaint had been validly referred to the Tribunal on 26 June 2020. The Tribunal accepted the submission. It was also noted that under section 176 (2) of the IPA that the Tribunal was exercising its original jurisdiction to hear the complaint. It was noted that even though the parties agreed that privacy had been breached the Tribunal had to decide whether to accept that concession themselves. As already dealt with in these reasons I am satisfied based on the evidence before me that the privacy breach of IPP 11 has occurred on four occasions.
  2. [58]
    Regarding the original submission that the Tribunal should make an order under the Public Interest Disclosure Act 2010 (Qld) it is noted that when sitting in its original jurisdiction the Tribunal is not a public entity for the purposes of the Human Rights Act 2019 (Qld). The Tribunal has dealt with this matter in its original jurisdiction therefore the Tribunal is not acting as a public entity for the decision and is not a public entity for the purposes of this proceeding. It follows that the Human Rights Act is not further considered because the Tribunal accepts that submission that this is not a jurisdiction in which the Human Rights Act operates.

Discussion

  1. [59]
    It is apparent from the relevant factual background to AA’s privacy complaint that OIR made four breaches of privacy while processing his claim.

Breaches of privacy

  1. [60]
    The OIR has conceded and the Tribunal accepted that on four occasions it breached the following information privacy principles (IPPs) set out in Schedule 3 of the IPA:
    1. (a)
      IPP 11 requires that “[a]n agency having control of a document containing an individual’s personal information must not disclose the personal information to an entity … unless … the disclosure is authorised or required under a law”. OIR conceded that their staff member Mr Murray should not have contacted QSuper and disclosed information about the applicant to their staff. It was submitted to the Tribunal that insofar as it provided irrelevant information that information was not required by law.

Resolution of complaint

  1. [61]
    In circumstances where a complaint, or part of a complaint, has been substantiated, the Tribunal may make one or more of the orders set out in s 178(a) of the IPA:
    1. (a)
      that an act or practice of the respondent is an interference with the privacy of the complainant for the complaint and that the respondent must not repeat or continue the act or practice;
    2. (b)
      that the respondent must engage in a stated reasonable act or practice to compensate for loss or damage suffered by the complainant;
    3. (c)
      that the respondent must apologise to the complainant for the interference with the privacy of the complainant;
    4. (d)
      that the respondent must make stated amendments of documents it holds;
    5. (e)
      that the complainant is entitled to a stated amount, of not more than $100,000, to compensate the complainant for loss or damage suffered by the complainant because of the act or practice complained of, including for any injury to the complainant’s feelings or humiliation suffered by the complainant.
  2. [62]
    Section 178(d) also permits the Tribunal to order that the complainant be reimbursed for expenses reasonably incurred in connection with making the complaint.
  3. [63]
    I accept that the applicant’s privacy has been breached four times. I need to consider what the amount of money awarded for the breaches should be. AA submitted that the respondent behaved maliciously during the breaches and post the breaches. He alleges that this is evidenced by the language and actions used by Mr Murray in the recordings. He alleges that at certain junctures of the recording Mr Murray is laughing at him or about him. I have had the benefit of hearing the full audio and reading the transcripts prepared by AA. I raised the issue about the first transcript where the term laugh is used that I could not hear any sound that could be attributed to a laugh. Similarly where the term laugh is used in other paragraphs of the transcripts for recordings two and three some of those are indistinct and others appear to be a noise included in an exchange of laughter which appears to have been initiated by the QSuper employee that Mr Murray was speaking to. Certainly, Mr Murray's behaviour and indeed perhaps that of the QSuper employee appears to be awkward and at times inappropriate but I was not able to conclude that they were laughing at AA or making fun of him or in any way acting maliciously.
  4. [64]
    It is accepted by the respondent that Mr Murray’s actions amount to a breach of privacy on their behalf. However, from the words and actions used I cannot draw the conclusion that the behaviour is malicious. Something malicious requires a step further beyond being badly handled or inappropriate. This matter was certainly inappropriately, and one could say badly handled by the OIR with several errors that include the breaches by Mr Murray and then the lack of communication that led to time delays after AA’s complaint was filed. I can find no evidence on listening to the recording that there is proof of malice contained in them. The transcript was prepared by the applicant so therefore is not a certified transcript. It provides no further assistance to me that would allow me to be satisfied that the words used, and the sounds made by Mr Murray were made with malice. The applicant suggests that malice is also demonstrated by what he says to be a collusion between QSuper and the OIR. There appears to be no evidence available to me that would support an allegation of collusion.
  5. [65]
    AA suggests that the employee of the OIR, Mr Murray, was lying when he said that he had spoken to or had contact with the doctors of AA. Mr Murray’s affidavit provided exactly what contact he undertook (none beyond reading a report from AA’s GP). It was agreed that he had not spoken with the health practitioners. Mr Murray set out his reasons for this and indicated why he had gone down the pathway of an IME after taking advice from his superiors. His affidavit stated that the solicitors for the applicant indicated that this was a formal step and they asked why the matter could not be dealt with informally. They asked why AA’s doctors had not been contacted. It was Mr Murray's evidence that he felt there was no point in doing this because he had extracted all the information that he could from the GP’s report and the rehabilitation and return to work process was at a standstill. It was in this context that he contacted QSuper. He wanted to let QSuper know all of the circumstances and the difficulty the OIR was having in trying to implement a return to work programme with AA. He felt he was also fulfilling an obligation to give QSuper the information that the employer had.
  6. [66]
    Although I find the contact with QSuper was ill advised and inappropriate I find that there is no evidence that this was malicious contact on the part of Mr Murray. I accept  Mr Murray's statement in his affidavit that he had not met the applicant and had not had contact with him. On the evidence before me I cannot accept there is an established motive of malice involved in this matter. I note the evidence provided by the applicant with regard to this; even if I fully accept that Mr Murray was wrong about whether or not he had contacted the treating practitioners, I cannot see how this takes me down a path where I must inevitably conclude that Mr. Murray was lying and therefore demonstrating malicious intention towards the applicant when he said this. I cannot speculate on his reasons for saying that. There is no evidence of collusion with QSuper.
  7. [67]
    The facts of this case are that Mr Murray did in fact contact QSuper. However, I can find no evidence that he did so out of malicious intention. I did find evidence that this was inappropriate and as conceded by the respondent that he has breached the applicant’s privacy in doing so. Finding errors in statements made during the recorded audio recordings on behalf of the employee of the OIR does not of itself prove malice. AA suggests that the motive for malice is founded in the applicant having been successful in another legal matter involving the OIR. Beyond his suggestion of this I can find no further evidence that indicates that this was a motivating factor for any of the behaviours that Mr Murray or the OIR undertook.

Monetary Claims

  1. [68]
    I have considered AA’s request regarding the monetary orders that should be made in his favour. In his evidence the applicant failed to establish exactly what the exacerbation or aggravation of his existing illness was that was could be directly attributable to the breaches of his privacy by the OIR. I am prepared to accept that he has suffered hurt and humiliation because of these breaches. I do acknowledge that this might well have made an underlying condition worse but to what degree I am lacking in any evidence provided by the applicant that can assist me to assess this amount in relation to what his loss is.
  2. [69]
    The applicant filed submissions regarding the amounts of money that he wished to recover if he were successful in this action. I am unable to link the situation AA describes as his being forced to move interstate and accept a lower amount of money and a lower superannuation payment as being directly attributable to the breaches of privacy. He refers to his mental health but does not provide further evidence in the form of reports or specific evidence  attributing his mental state to these breaches of privacy. Certainly, some of the reasons for the outcomes referred to predate any of any of the issues that are involved in this case i.e. the breaches of privacy.
  3. [70]
    I am prepared to accept that AA has suffered injury to his feelings and experienced humiliation because of breaches of privacy.
  4. [71]
    In JL v Queensland Police Service,[13] the Tribunal set out the principles applicable to compensation awards under s 178(a)(v) of the IPA as follows:
    1. (a)
      Where a complaint is substantiated and a loss or damage is suffered, the legislation contemplates some form of redress in the ordinary course;
    2. (b)
      Awards should be restrained but not minimal;
    3. (c)
      In measuring compensation, the principles applied in tort law will assist, although the ultimately (sic) guide is the words of the statute;
    4. (d)
      In an appropriate case, aggravated damages may be awarded;
    5. (e)
      Compensation should be assessed having regard to the complainant’s reaction and not to the perceived reaction of the majority of the community or of a reasonable person in similar circumstances.
  5. [72]
    In RM v Queensland Police Service,[14] the Tribunal characterised the breach in that case as having been "careless rather than malicious". It ordered compensation in the sum of $5,000.
  6. [73]
    There is no medical or other evidence before the Tribunal, save for his own views, that AA suffers from a psychological condition because of the privacy breaches independently of his other issues.
  7. [74]
    I am prepared to accept that AA has suffered injury to his feelings and experienced humiliation because of breaches of privacy.
  8. [75]
    I refer to the words of the Court of Appeal in the decision of PB v Workcover QLD[15] that the assessment of compensation is a discretionary judgement. The maximum compensation provided for in the legislation is $100,000. In paragraph 99 of that decision the Court says those breaches were characterised as careless rather than malicious conduct. I note in these circumstances that I also characterise the current breaches as careless rather than malicious conduct. In the original Tribunal decision on that matter the amount awarded was $5,000. In paragraph 100 of the Court of Appeal decision it was stated that the amount of $5,000 appeared to be a low figure in all of the circumstances and that it was not malicious conduct but it was a series of mistakes which resulted in the wrongful procurement and distribution of information that was confidential. The Court concluded that the assessment was so low that it must be inferred that there was a failure on the part of the QCAT Appeal Tribunal to exercise their discretion. The Court then went on to order that the decision of the 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. I find that there are similarities between this case and that Court of Appeal decision e.g. there has been a series of mistakes that were attributable to the respondent – in the current case the series of mistakes are attributable to the OIR – I find that PB sets a reasonable benchmark as I find the series of mistakes in this case are of a comparable nature to those in the Court of Appeal decision. 
  9. [76]
    I have not been able to make a finding of malice that would justify an increase of damages due to malice or aggravation.
  10. [77]
    In the present case, OIR's breaches are also readily characterised as actions that are careless, inept, or ill-conceived rather than malicious. However, I am satisfied that there are features in OIR’s conduct that indicates that amount of $5,000 as a global award, as submitted by OIR, is insufficient. I note the relevant decisions in similar proceedings. I am satisfied that a higher amount of compensation than $5,000 in total is in order. Accordingly, I consider that payment by the OIR of the amount of $5,000 per breach ($20,000 in total) is an appropriate compensation to AA. This considers the nature of the breaches and the hurt and distress caused to the applicant by these breaches.
  11. [78]
    I reject that the OIR, through its staff, acted with malice or that they intentionally colluded with QSuper to achieve an unlawful end. I find that there is no evidence of malice and I find there is insufficient evidence that would allow me to attribute AA’s mental ill health to the breaches. This evidence is simply not before me beyond the applicant’s own submissions.
  12. [79]
    The OIR concede that the applicant is entitled to recover his legal costs. However greater specificity of his actual legal costs is required, and I make directions for the filing of further submissions on this point if the parties  so desire.

Non -publication order

  1. [80]
    The Tribunal may make such an order on its own initiative if satisfied that it is necessary for any of the reasons specified in the QCAT Act s 66(2). The question for determination is whether the publication would be contrary to the public interest or contrary to the interests of justice. Evidence in this matter included details of AA’s medical conditions and medical records. It included information about his interactions with his employer, other legal issues and his complaints. It also included information from his solicitors. AA outlined his need to move interstate to make a fresh start via finding new employment. This is a matter dealing with breaches of AA’s privacy and the impact on him of these breaches . It is not in the public interest or in the interests of justice that the applicant be identified. A non-publication order should be made in this instance to protect the identity of the applicant in the proceedings. The Tribunal prohibits the publication of the name of the Applicant and/or any information that would enable the applicant to be identified.[16]

Orders

  1. The complaint that in relation to AA the State of Queensland (Office of Industrial Relations)
    breached information privacy principle 11 on four occasions is substantiated.
  1. The State of Queensland (Office of Industrial Relations) must pay AA compensation in the amount of $20 000 within 28 days of the date of this decision.
  2. If any party seeks an order for costs, that party file and serve on each other party submissions in writing outlining the order sought and why it should be made within twenty-one days from the date of this decision.
  3. If any party does file and serve such submissions, any party against whom an order for costs is sought may file and serve on the party seeking costs submissions in response within twenty-one days of the submissions being served.
  4. The party seeking an order for costs may file and serve submissions in reply in fourteen days from service of the submissions in response.
  5. If submissions seeking costs are filed, the Tribunal will decide the question of costs on the papers on a date after all submissions have been filed.
  6. The Tribunal prohibits the publication of the name of the applicant and/or any information that may enable the applicant to be identified. The applicant is identified as AA in these orders and the reasons for this decision.

Footnotes

[1]    Section 11 of Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

[2]    [2014] QCAT 623.

[3] (1987) 164 CLR 1, 8.

[4] [2017] QCAT 71.

[5]  Applicant’s submissions 5 May 2021.

[6]    Applicant’s submissions 5 May 2021.

[7]    Applicant’s submissions 5 May 2021.

[8]    Steven Murray’s affidavit dated 2 June 2021 paras 5 to 24.

[9]   Steven Murray affidavit paras 25 to 29.

[10]   Steven Murray affidavit paras 30 to 35.

[11]    (1966) 117 CLR 185.

[12]    [2019] QCAT 297, [49].

[13]  [2014] QCAT 623, [213].

[14]  [2017] QCAT 71, [171].

[15]     [2020] QCATA 29.

[16] GM v Director-General, Department of Justice and Attorney-General [2020] QCAT 113.

Close

Editorial Notes

  • Published Case Name:

    AA v State of Queensland (Office of Industrial Relations)

  • Shortened Case Name:

    AA v State of Queensland (Office of Industrial Relations)

  • MNC:

    [2021] QCAT 258

  • Court:

    QCAT

  • Judge(s):

    Member Kent

  • Date:

    23 Jul 2021

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
Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185
2 citations
Jump To
Cite 1 - (1966) 117 CLR 185
Cite 2 - (1966) 117 CLR 185
CH v Queensland Police Service [2019] QCAT 297
2 citations
Jump To
Cite 1 - [2019] QCAT 297
Cite 2 - [2019] QCAT 297
GM v Director-General, Department of Justice and Attorney-General [2020] QCAT 113
2 citations
Jump To
Cite 1 - [2020] QCAT 113
Cite 2 - [2020] QCAT 113
JL v Queensland Police Service [2014] QCAT 623
3 citations
Jump To
Cite 1 - [2014] QCAT 623
Cite 2 - [2014] QCAT 623
Cite 3 - [2014] QCAT 623
Lamb v Cotogno (1987) 164 C.L.R 1
2 citations
Jump To
Cite 1 - (1987) 164 C.L.R 1
Cite 2 - (1987) 164 C.L.R 1
PB v WorkCover Queensland Pty Ltd [2020] QCATA 29
2 citations
Jump To
Cite 1 - [2020] QCATA 29
Cite 2 - [2020] QCATA 29
RM v Queensland Police Service [2017] QCAT 71
3 citations
Jump To
Cite 1 - [2017] QCAT 71
Cite 2 - [2017] QCAT 71
Cite 3 - [2017] QCAT 71

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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