By application dated 15 March 2013, the applicants seek review by the Tribunal of the respondent's conduct, said to be in contravention of information protection principles under the Privacy and Personal Information Protection Act 1998 ('PPIP Act'). In particular, the applicants allege that the Respondent breached their privacy through its improper collection and disclosure of their personal information, in breach of sections 8, 9 and 18 of the PPIP Act.
The Applicants' complaint arises from the conduct of Mr Hale, an employee of Housing NSW, which is now a part of the Department of Family and Community Services ('FACS').
In general terms the Applicants complain that Mr Hale improperly collected their personal information by conducting searches of their names on the driver's licence database maintained by Roads & Maritime Services ('RMS'), and electoral rolls without their consent. The Applicants claimed that these searches were not conducted for a lawful purpose, and were not otherwise reasonably necessary. Further, the applicants contended that the Respondent had disclosed their personal information to others.
[2]
Background
On 7 October 2009, the Applicants were the successful bidders at an auction for a property in the Rocks ('the property') being sold by NSW Land and Housing Corporation ('LHC'). They entered into an Agreement for Lease for the property for 99 years and paid the 5% deposit.
The senior solicitor for the LHC Mr Balomatis, after agreeing to some amendments to the terms of the Agreement for Lease, wrote the Applicants' first and surnames on the signature page of the Agreement for Lease and pointed out where to sign. The signatures were witnessed by an eligible witness.
In August 2010, the Applicants paid the full sum under the Agreement for Lease.
From about this time the applicants became concerned about the use of their intellectual property in relation to adjacent premises and were corresponding extensively with the LHC and the Minister's office about their concerns.
In early 2012, Mr Hale, a senior solicitor for Housing NSW, assumed responsibility for supervising a conveyancing clerk (for the LHC), Ms Reid, in her carriage of a number of files, including the applicants' file. Upon review of the file, he noted that the next step would be to finalise the lease. He also noted that the applicants had not provided middle names on the Agreement for Lease, although from other documents on the file, namely, the bank guarantee, and documents revealing APW's email address, it appeared that they had middle names.
On 30 April 2012 Ms Reid sent the Applicants' solicitor, Mr Jackson an email asking (among other things) that he provide the applicants' full names as they did not appear on the electoral roll. She also asked that copies of their driver's licences and passports be provided "following change to party verification requirements" and to ensure that LHC had correct details for the lease. She did not specify a time for response.
Meanwhile there was ongoing correspondence between the applicants and the Minister's office.
By email dated 9 May 2012 APW wrote to Ms Reid, as follows:
Our clear position, as stated below is that, given the extended period of our distress and lack of traction since 31 March 2012, together with the failure by your Department to respond in a timely or satisfactory manner to our serious concerns, when we have received the courtesy of a written response from the Minister to all our correspondence and have had the chance to review the GIPA documents you will forward to us, then we are happy to talk about a meeting.
The applicants contended that APW's email was not a direct response to Ms Reid's email of 30 April 2012, but was part of an email chain which related to their other grievances. It is something of an understatement to conclude that relations between the applicants and the LHC were, by this time, somewhat strained.
The email also does not, on its face, refuse to provide their identity documents but referred to the possibility of a meeting to discuss the applicants complaints in relation to the Department of Finance and Services ('DFS') and the complaints relating to the adjoining property. It was unclear why the email was sent to Ms Reid who, as a conveyancing clerk, had no role with respect to those complaints.
In view of the correspondence directly from the applicants and not their solicitor, Mr Hale wrote to Mr Jackson on 10 May 2012 asking him to confirm that he remained the applicants' solicitor on the record with carriage of the conveyancing matter and informing Mr Jackson that his client had contacted Ms Reid directly. He also asked Mr Jackson for the "verification documentation" previously requested. He noted the Applicants' full names appeared on the bank guarantee and that their names did not appear on the electoral roll at their previous address. He referred to Part 3A of the Real Property Regulation 2008 which had come into effect the previous November.
Later that day, Mr Hale informed Mr Jackson that FACS required copies of both a driver's licence and passport for each of the Applicants, the reason being that "driving licences carry addresses ... but do not always contain all first names whereas passports should have all names (but do not have addresses)". The email also referred to some of the other issues about which the applicants had complained.
Mr Jackson responded to Mr Hale that day that he would obtain copies of "the drivers' licences", noting that the 'incomplete names were inserted in the Agreement [for Lease] at the auction and was not picked up'. He also noted that the regulation to which Mr Hale had referred only related to mortgages. Mr Jackson also responded, confirming his instructions with respect to completion of the Agreement for Lease and the Lease, but not otherwise in relation to the applicants' complaints about the other issues.
Shortly afterwards APW wrote to Mr Hale, stating that "[o]ur position remains as per our email to Ms Reid yesterday...and we await both the Minister's" (sic)
The following day Mr Hale again emailed Mr Jackson pressing for the identification information. Mr Jackson responded, informing Mr Hale that he would seek his clients' instructions regarding "identification".
On 14 May 2012, Mr Hale emailed Mr Jackson that:
… APV (in full), date of birth 30-11-1959, has stated her residential address for NSW driving licence purposes as [the property] ... We note that no residential occupation of the property is currently permitted (either under the Agreement for Lease or under planning legislation). We note that your clients are on record as stating that the builder still has the site. Please explain how APW can legally state that she is resident [the property]. We also presume that this is also a reason as to why your clients are resisting the production of photographic identification documentation. We can only draw adverse inferences from such failure.
APV has no NSW driving licence although he has been a resident in NSW for in excess of 3 years ...
We claim the crown exemptions under section 23 of the Privacy and Personal Information Act 1998 and the investigating rights under the Housing Act 2011 (without limitation).
Mr Hale also referred to s.307B of the Crimes Act 1900 that it is an offence for a person to provide misleading or false information to a public authority, and alluded to "adverse inferences" to be drawn from the Applicants' failure to provide the verification documents.
In correspondence of 23 May 2012 to Mr Jackson Mr Hale set out the various searches conducted in relation to the Applicants.
In November 2012, the Applicants signed the Lease of the property, which was subsequently registered in December 2012 in their names, minus middle names, and as had appeared on the Agreement for Lease.
[3]
RELEVANT LEGISLATION
Section 8 of the PIPP Act provides as follows:
8 Collection of personal information for lawful purposes
(1) A public sector agency must not collect personal information unless:
(a) the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and
(b) the collection of the information is reasonably necessary for that purpose.
(2) A public sector agency must not collect personal information by any unlawful means.
Section 9 of the PIPP Act relevantly provides as follows:
9 Collection of personal information directly from individual
A public sector agency must, in collecting personal information, collect the information directly from the individual to whom the information relates unless:
(a) the individual has authorised collection of the information from someone else, or
(b) ...
Section 18 of the PIPP Act provides:
18 Limits on disclosure of personal information
(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such person or body is a public sector agency, unless:
the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or
the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or
…
If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.
Personal information is defined at s.4 of the PPIP Act as "information or an opinion... about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion."
"Personal information" does not include information about an individual that is contained in a publicly available publication: s.4(3)(b).
[4]
Is the information the subject of the applicants' complaint publicly available?
[5]
Electoral rolls
The Commonwealth electoral roll is available for public inspection, but only for the purposes of checking your own enrolment details, or making an objection to the enrolment of another elector: AEC website - About the Commonwealth Electoral Roll. However, Mr Hale's evidence, which was unchallenged, was that he performed the search by attending the AEC Office in Haymarket where he conducted a search on computer terminals in the reception area of the Office that any member of the public could access. It appears that, in practise, access is essentially unrestricted.
The NSW electoral roll can only be publicly accessed for limited purposes prescribed in the current policy by the NSW Electoral Commission to which the applicants referred. However, that policy only came into force in February 2014. I was informed that prior to that time there was no equivalent public policy in place. Accordingly, the respondent submitted, and I agree, that this policy is irrelevant to ascertaining the status of the information at the time of the conduct about which the applicants complain.
I accept that, at the time Mr Hale conducted the search at the NSW Electoral Commission, information contained in the electoral rolls fell within the scope of the exception to the definition of personal information in s.4(3)(b) as "information about an individual that is contained in a publicly available publication".
[6]
DRIVES database
Mr Hale also arranged a search of the DRIVES database, which, the Respondent conceded, is not publicly accessible. As Mr Hale explained in his evidence, he did not undertake this search personally, as only certain designated officers within the Tenancy Fraud Unit of Housing NSW (in FACS) have direct access to this database.
The respondent accepted that the collection of information from the DRIVES database was a collection of personal information for the purpose of the PPIP Act.
[7]
Was the collection of the personal information from DRIVES in breach of s.8 of the PPIP Act?
In the Applicants' submission, the DRIVES searches conducted on behalf of Mr Hale were not conducted for a lawful purpose and were not otherwise reasonably necessary.
[8]
Was the personal information collected for a lawful purpose?: s.8(1)(a)
"Lawful purpose" within the meaning of s.8 has been held to mean "a purpose that is authorised, as opposed to not forbidden, by law": WL v Randwick City Council [2007] NSWADTAP 58 at [45]. The Applicants submitted that their personal information was not collected for a purpose that was authorised by the Housing Act 2001 (NSW) ('Housing Act') or the Real Property Act 1900 (NSW) ('RP Act'). (The applicant also referred to the Direction of Processing of Personal Information by Public Sector Agencies in relation to their Investigative Functions ('Direction') or the Privacy Code of Practice for the Department of Housing ('the Code') but the Respondent did not rely on these provisions with respect to s.8).
The respondent submitted that the term "lawful purpose" is to be given a broader construction than in WL, and that it was not necessary to rely on the RP Act or the Housing Act. The Appeal Panel in WL (at [45]) referred to the decision of JM Montgomery in NX v Office of the Director of Public Prosecutions [2005] NSWADT 74 (at [21]-[22]). The Respondent submitted that the decision in NX is somewhat ambiguous in its discussion of what is to be meant by the term "lawful purpose". However, in any event the Appeal Panel in WL adopted the narrower view of "lawful purpose" which the applicants now contend.
"Lawful purpose" in s.8 was later considered in PN v Department of Education and Training [2009] NSWADT 287 where JM Montgomery adopted a broader interpretation of "lawful purpose" namely, "a purpose that is not forbidden, rather than positively authorised, by law". At [153], the Judicial Member observed that:
Section 8(1) of the PPIP Act provides that a public sector agency must not collect personal information unless it is collected for a "lawful purpose" that is directly related to a function or activity of the Agency and the collection of the information is reasonably necessary for that purpose.... "Lawful purpose" as has been stated to generally mean, a purpose that is not forbidden, rather than positively authorised, by law: NX v Office of the Director of Public Prosecutions [2005] NSWADT 74 at [22]. (emphasis added)
He went on, at [178] to note that:
In NX v Office of the Director of Public Prosecutions [2005] NSWADT 74, I considered the meaning of the words "lawful purpose" in section 8 of the PPIP Act. At paragraph [22] I accepted the submission that in the context of section 8 of the PPIP Act, "lawful purpose" should be interpreted to mean a purpose that is not forbidden, rather than positively authorised, by law.
The Judicial Member went on to find that the collection did not contravene s.8(1)(a) (at [179]) as:
Collecting information for workers compensation purposes is not forbidden by the general law and provision of some information is positively required by section 44(2) of the [Workers Compensation] Act. In my view, the requirement of section 8(1)(a) is also satisfied in that the lawful purpose was "directly related to a function or activity of the agency". The relevant function of the agency is to comply with its workers compensation obligations. Collection of the information about the circumstances in which an alleged workplace injury had occurred is, in my opinion, reasonably necessary for that purpose.
On appeal, in PN v Department of Education and Training [2010] NSWADTAP 59, the Appeal Panel specifically endorsed the Judicial Member's discussion of s.8 of the PPIP Act, at [23] and [65].
Mr Hale's evidence was that the collection of the applicants' personal information was undertaken for the purpose of verifying their identities, ensuring the correct details were entered into on the lease documentation, and in protecting the interests of the LHC in the context of a significant property transaction (in which it would continue to have a legal relationship with the applicants for many years). It was submitted that these are all lawful purposes directly related to FACS' functions.
The respondent submitted, and I agree, that the purpose for which Mr Hale collected the applicants' personal information was not "forbidden by law". I find there was no contravention of s.8(1)(a) of the PPIP Act and that the collection was for a lawful purpose directly related to a function of the Respondent, namely the provision of conveyancing and related legal services to the LHC.
[9]
Was the collection of the information was reasonably necessary for the purpose of the provision of conveyancing and related legal services to LHC?: s.8(1)(b)
The respondent submitted that a search of the DRIVES database was reasonably necessary, particularly in circumstances where, amongst other things, the bank guarantee suggested to Mr Hale that the applicants had middle names which, in his view (erroneously), needed to be included in the lease.
I accept that as the bank guarantee gave the applicants' full names Mr Hale was on notice of a possible discrepancy in the documentation relating to the transaction, and that the initial inquiries of Mr Jackson merely sought to resolve this apparent inconsistency.
Mr Hale's evidence was that the searches were conducted so as to verify the Applicants' identities for the purpose of the certificate of correctness under s.117 of the RP Act. The RP Act requires the correct names of parties to a real property transaction. In contrast, the Registrar General's Directions - at least the current version - requires the 'full name of the lessee must be stated'. The Lease was subsequently registered without the inclusion of the Applicants' middle names, so it appears Mr Hale was mistaken in his belief that the inclusion of middle names in the Lease was required for the Lease to be in registerable form.
The applicants disputed the respondent's claims about the apparent identity discrepancy, noting that the identity of APV had already been verified at the auction of the property, as was required in order to obtain the necessary bidder's card. The respondent observed though that identification would have been provided to the real estate agent at the auction for the purpose of preparing the bidders register, but it did not have access to that register. It is unknown if its client, LHC, had access to the register. Neither at the time of signing the Agreement for Lease, nor in the many months thereafter, were issues regarding the Applicants' identities raised until first, Ms Reid, and then, Mr Hale's correspondence with the applicants' solicitor, Mr Jackson commencing in April 2012.
I do not accept that the course of correspondence between Mr Hale, APW and Mr Jackson, demonstrates that the applicants resisted the requests to provide information verifying the identification as the respondent claimed, in circumstances where no time limit was specified for the response. It is unfortunate that the applicants' - as distinct from their solicitor's -correspondence, may have appeared to decline to co-operate until they had "received the courtesy of a written response from the Minister to all our correspondence and have had the chance to review the GIPA documents you will forward to us", in their broader dispute about the property.
Mr Hale regarded the applicant's 'refusal' to provide information regarding their identities as unusual and which, in his view, warranted further investigation. Searches of publicly available sources of information had not resolved his concerns and, in fact, had highlighted further possible discrepancies which he considered warranted further investigation; and Mr Hale also had information that the applicants were using the address of the property for correspondence, which gave rise to concerns that there might be use of the property in a manner inconsistent with the requirements of the Agreement for Lease.
The respondent submitted that Mr Hale only took the "last resort" option of arranging a DRIVES search due to the persistent refusal of the applicants to provide this information directly. I do not agree. It was open to Mr Hale to press the applicants' solicitor to provide the information, and in view of the short time since the information had been sought, should have adopted that course. To regard the DRIVES database as the 'last resort' was premature.
I find that Mr Hale's search of DRIVES at that time was unnecessary for the purpose of providing conveyancing and related legal services. Consequently, in the absence of some other authorization to access the applicants' personal information there was a breach of s.8 and s.9 of the PPIP Act.
[10]
Was the collection of the applicants' personal information otherwise authorised and thereby 'lawful'?
The respondent referred to the name discrepancy and claimed that the collection and use of the information was authorised under s.69B of the Housing Act for the purposes of preventing or investigating fraud against the LHC.
Section 69B(1) of the Housing Act relevantly provides:
For the purposes of preventing or investigating fraud against the Corporation... the Corporation may request, collect, use and disclose information from...the NSW driver licence register within the meaning of the Road Transport Act 2013... [ie DRIVES database]
Accordingly, FACS may only request, collect, use and disclose the personal information from the DRIVES database "for the purposes of preventing or investigating fraud against [FACS]".
The Housing Amendment (Tenant Fraud) Bill 2008 (the Bill) inserted s.69B into the Housing Act. The purpose of the Bill was to provide "a substantial legislative foundation to bring about the prevention detection investigation and prosecution of public housing tenant fraud". The Applicants were not 'public housing tenants' of the property, in the usual sense of the term, although, strictly speaking, they were 'tenants', albeit on a 99 year lease.
In any event, the applicants submitted, there could not be any legitimate basis for suspicion of fraud in this case. The applicants pointed to there being no likelihood of loss to the LHC to ground such a suspicion in circumstances where the full price for the property had been paid, and a bank guarantee had been provided. Secondly, the Applicants had already in effect invested in the LHC's assets by spending a substantial sum of money renovating the property at their own expense. As such, if there were any loss arising out of a defect in the property transaction, that loss would suffered by the Applicants, not the LHC. Thirdly, the Applicants had been known to various members of the Department for a considerable period of time.
I agree with the respondent's submission that for the exercise of investigative powers it is not necessary to show that there was, ultimately, some actual fraud. However, there must still be a possible fraud that is being investigated. The Respondent did not, in my view, explain what fraud against the LHC was suspected by Mr Hale.
I find that s.69B did not provide the Respondent with any lawful basis to conduct the searches of the DRIVES database.
[11]
Was the collection of the information in breach of s.9 of the PPIP Act?
The respondent submitted that compliance with s.9 was not required in this case as:
FACS was lawfully authorised not to comply with the requirements of s.9 by s.69B of the Housing Act (thus falling within the exemption in s. 25 of the PPIP Act); and
the collection was consistent with the Department of Housing Privacy Code of Practice; and
the collection of information was for investigative purposes and, accordingly, fell within the scope of the Direction on Processing of Personal Information by Public Sector Agencies in relation to their Investigative Functions
All of these provisions ultimately are based on the investigation of potential fraud.
The respondent, conceded that by performing a search of the DRIVES database, it had collected the applicants' personal information other than from the applicants. However, the respondent had requested that the applicants (and their solicitor) provide this information.
Ms Reid's correspondence with Mr Jackson had only commenced on 30 April 2012 and Mr Hale commenced his correspondence on 10 May 2012. Mr Hale arranged the search of the DRIVES database on 14 May 2012. He considered such a search necessary in view of a number of discrepancies regarding the applicants' names and addresses apparent on review of the file, and from searches of publicly available databases, which Mr Hale had been unable to resolve in the absence of any response from the applicants. He perceived the applicants' resistance to providing this material to the Department, which he considered to be suspicious. Mr Hale gave evidence that this is the only occasion in his career where he has encountered such resistance to the provision of identification information.
I do not consider that the perceived delay gave rise to a reasonable apprehension of 'resistance' such that he needed to arrange the search as a 'last resort'.
In his correspondence with the applicants' solicitor at that time, Mr Hale made it clear that he was relying on the investigative powers conferred under the Housing Act.
Section 69B of the Housing Act, discussed above, makes express provision for the collection of information from DRIVES, "for the purposes of preventing or investigating fraud against the Corporation". The respondent submitted that the search undertaken of the DRIVES database was authorised by s.69B. The powers under s.69B are conferred for the purpose of both "investigating" and "preventing" fraud. In this case, Mr Hale was investigating potential discrepancies, and conduct which was, in his experience, unusual and could be indicative of some underlying issue. He undertook the collection of information in an effort to investigate these discrepancies, and to ensure that the LHC was protected against any possible fraud. I accept that Mr Hale's concerns were in the context of the LHC entering into a long-term legal relationship with the applicants (as landlord/tenants) with respect to a valuable piece of government property. I do not accept however that he had any basis to engage the Tenancy Fraud Unit of Housing NSW to conduct the DRIVES search. That he may have wanted to clarify discrepancies did not warrant an 'investigation' under s.69B of the Housing Act.
Collection permitted under the Privacy Code of Practice?
The Housing Department Privacy Code of Practice (made pursuant to s.29 of the PPIP Act) provides that relevant agencies (including the LHC) need not comply with the requirements of s.9 in the following circumstances:
The Department of Housing may, where it appears appropriate, ascertain information directly from any third party where it appears that a fraud on the Department of Housing has, may be, or is being committed.
Such inquiries will be appropriate where fraud is reasonably suspected and the collection is necessary to assess whether a fraud has or is taking place or to investigate the extent of such fraud.
The Applicants gave their correct names, and paid the full amount for the property. As such, there can be no suggestion that the Applicants obtained or could reasonably have been seeking to obtain any sort of benefit by the non-inclusion of their middle names in the Agreement for Lease. Similarly, there can be no suggestion that the Respondent or any other government department suffered, or could reasonably have suffered, any detriment by the non-inclusion of the Applicants' middle names (to the contrary, they received the full amount for the property).
In these circumstances it cannot be said that fraud could reasonably be suspected, and therefore, the Code does not authorise the searches of the DRIVES database conducted by FACS.
Collection for investigative purposes - s.41 Direction?
In December 2011, the Privacy Commissioner issued the Direction on Processing of Personal Information by Public Sector Agencies in relation to their Investigative Functions has been issued by the Privacy Commissioner pursuant to s.41 of the PPIP Act. The Direction relevantly provides that:
A relevant agency need not comply with sections 9....if non-compliance is reasonably necessary for the proper exercise of any of the agency's investigative functions or its conduct of any lawful investigations.
I agree with the Applicants' submission that FACS did not carry out the "investigation" under specific legislative authority, nor was the power to conduct the "investigation" necessarily implied or reasonably contemplated by the Housing Act or the Real Property Act. Accordingly, the Direction did not provide any proper basis for FACS to conduct the searches of the DRIVES database.
[12]
Section 23 and s.24 exemptions
In an email dated 14 May 2012 Mr Hale purported to claim "the crown exemptions under section 23 of the [PPIP Act]", but the respondent does not rely on the exemptions under ss. 23 and 24 of the PPIP Act.
[13]
Disclosure of personal information
The applicants complain that Mr Hale also disclosed this personal information to Mr Jackson, as well as to a separate government department and numerous senior staff of that department, in breach of s.18 of the PPIP Act.
[14]
Disclosure to Mr Jackson
The applicants contended that there had been a breach of their privacy in the disclosure of their personal information to their solicitor, Mr Jackson. In his email of 10 May 2012, Mr Jackson confirmed that he was instructed to act on behalf of the applicants with respect to completion of the Agreement for Lease and Lease. In my view, any disclosures of the applicants' subject personal information by Mr Hale were in the course of communications between two legal practitioners acting on behalf of their respective clients. In those circumstances, Mr Jackson is properly regarded as the agent of the applicants because the information in question related to the very matter in which he was instructed.
Further, I accept that the disclosure of information to Mr Jackson would be permitted under s.18(1)(b) of the PPIP Act which allows an agency to disclose personal information where:
the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body.
In my view the applicants cannot reasonably contend that they were unaware their personal information may be disclosed to their solicitor in the course of finalising the Lease. I reject the applicant's contention that, given the correspondence between Mr Hale and Mr Jackson, that the Applicants would not have expected such information to be disclosed to their solicitor.
The respondent also submitted that s.25 of the PPIP Act operates to permit non-compliance with s.18:
A public sector agency is not required to comply with section 9... if:
(a) the agency is lawfully authorised or required not to comply with the principle concerned, or
(b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law....
Disclosure of an individual's personal information by an agency to that individual's legal representative is a disclosure that is lawfully authorised (indeed, required) by cl.33 of the New South Wales Professional Conduct and Practice Rules 2013 ("the Solicitors' Rules").
I find there to have been no breach of s.18 of the PPIP Act in these circumstances.
[15]
Disclosure to another Department
It was not entirely clear to which other government department the applicants allege disclosures were made, nor the "senior staff" of that department; nor is it clear what personal information is alleged to have been disclosed. This complaint appears to relate to Mr Hale having conferred with officers of the DFS while managing the applicants' file.
Mr Hale was engaged to provide conveyancing and legal services to the LHC, a body corporate that, at that time, sat within the DFS. I accept that such services were provided pursuant to arrangements made in connection with the delegation of functions under the Housing Act to the Chief Executive of Housing NSW, and were also the result of the fact that two separate agencies were involved in the management of affairs of the LHC (consistent with s.7(3) of the Housing Act) following the transfer of certain functions under the Public Sector Employment (Departments) Order 2011.
In those circumstances I find that there was no breach of s.18 PPIP Act in any disclosure.
[16]
DAMAGES
I have found that the respondent breached s.8 and s.9 of the PPIP Act.
The applicants seek damages in the amount of $40,000 by way of compensation for the "loss and damage suffered as a result of the conduct complained of". They claimed to have suffered "significant reputational and emotional damage" and have lost "numerous business opportunities to utilise their unique skills in the damage and restoration space". These damages are described in detail in their statements dated 24 October 2014.
In summary, the Applicants claimed that they have suffered the following types of damage:
1. additional rent incurred due to the delay in issuing the Lease, of $700 per week for 16 weeks, a total of $11,200;
2. additional legal costs of $4,000 payable to Mr Jackson;
3. lost business opportunities from at least two years hosting events and viewings at the property , conservatively estimated as being worth $42,875;
4. lost business opportunities of APW from at least two years of giving presentations and conducting promotional work for the Barangaroo Development Authority, conservatively estimated as being worth $12,000;
5. lost business opportunities of APW regarding consultancy services, for which the Applicants estimate they could have charged a total of $25,500;
6. significant reputational damage in the Applicants' local community, with other leaseholders in Millers Point, and with the heritage, restoration and design communities; and
7. significant emotional harm caused by the serious allegations made against them, and the prolonged response to their complaint since.
The respondent submitted that the damages sought by the applicants are entirely disproportionate to the conduct alleged, particularly having regard to damages awards made by the Tribunal in other cases under the PPIP Act. Furthermore, the respondent contended:
1. The applicants had failed to demonstrate any causation between the conduct complained of, and the economic harm said to arise;
2. Much of the applicants' evidence as to lost business opportunities was entirely speculative; and
3. The applicants' evidence of the "emotional harm" they have suffered falls far short of psychological injury for which compensation is payable.
The respondent referred to some general principles in respect of damages under the PPIP Act. It observed that s.55(2) of the PPIP Act empowers the Tribunal to make an order for requiring an agency to pay damages "not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct [complained of]". This power is subject, relevantly, to s.55(4)(b) which further provides that such an award may only be made where the Tribunal is satisfied that the applicant has suffered "financial loss, or psychological or physical harm" because of the conduct of the agency.
When making a claim for compensation under s. 55(2)(a) of the PPIP Act, it is for the applicant to adduce evidence of causation, and establish the causal link between the breach of privacy and the damage suffered: eg: AKL v University of Western Sydney [2013] NSWADT 147 ('AKL') at [58].
The payment of damages under s. 55(2)(a) is expressed to be "by way of compensation". In assessing the appropriate quantum of damages, I agree with the respondent's submission that regard should to be had to the maximum amount of damages that may be awarded under the PPIP Act, that is, $40,000, an amount which should be reserved for the most serious breaches of the PPIP Act. The respondent referred to previous decisions where the Tribunal has been reluctant to award large sums by way of compensation. For example, there is only one case where an order for damages anywhere near the maximum has been made, NK v Northern Sydney Central Coast Area Health Service (No 2) [2011] NSWADT 81, where the circumstances were unique in that, amongst other things, there were a large number of breaches, and the applicant's health had been very seriously affected by the breaches.
The respondent invited attention to cases where conservative amounts of compensation were paid for privacy contraventions: eg $5000 was awarded in FM v Department of Community Services [2008] NSWADT 288 where disclosure by the agency of a report to FM's mother, which included information about how FM viewed her relationship with her mother, leading to a breakdown in the relationship between FM and her mother. Further, the respondent noted that amounts less than $5000 have been awarded in, for example, HP v Hunter New England Area Health Services [2009] NSWADT 186 ($2,500 for documented psychological harm).
An applicant who can show an agency's conduct has caused damage is not automatically entitled to compensation under s 55(2)(a). The award of damages is discretionary: eg: AKL at [57]. The respondent also referred to several cases where there were contraventions of privacy principles but no damages were awarded at all. See also: AHG v Snowy River Shire Council [2012] NSWADT 152; MH v NSW Maritime [2011] NSWADT 248; JS v Snowy River Shire Council [2010] NSWADT 247; JD v Director-General, NSW Department of Health (No. 2) [2007] NSWADT 256; SW v Forests NSW [2006] NSWADT 74; FM v Vice Chancellor, Macquarie University [2003] NSWADT 78.
Claim for additional rent
Mr Hale's carriage of the applicants' matter ceased on Mr Balomatis' return from leave in about July 2012. His evidence was that he had made inquiries as to the chronology in the finalisation of the lease, which revealed, relevantly, that the applicants advised that their works were completed on 16 August 2012, and that a certificate of occupation was submitted by the applicant on 19 September 2012, by which time, the conduct complained of had concluded. As far as I could see the conduct complained of had no impact on the timing of the applicants' taking up residence at the property.
Additional legal costs
The applicants claimed that they incurred $4000 legal fees because of Mr Hale's correspondence. The contention was unsupported by evidence from Mr Jackson, nor were any invoices provided, so it is unknown if the amount claimed represented some or all of the applicants' legal fees in respect of the Agreement for Lease and the Lease. In any event, there is no indication that the conduct complained of, as distinct from Mr Hale's correspondence, gave rise to any additional costs. The respondent conceded that the tone of Mr Hale's communications with Mr Jackson was not conducive to resolving issues. However this is not the "conduct" that is at issue in these proceedings.
Lost business opportunities
APW provided a detailed statement in support of the claim for lost business opportunities. I accept that the applicants' work at the property led to significant media and other attention, as was set out in the statement. However, I did not find the applicants' evidence regarding "lost business opportunities", to be at all persuasive. Most importantly, I could see no nexus between the conduct in question and the purported lost business opportunities.
Reputational harm
The respondent submitted that it is questionable whether damages can be awarded under the PPIP Act for reputational harm, unless it can be demonstrated that this has given rise to some financial loss or psychological injury to the applicant, although that contention was unsupported by authorities.
In any event, in my view, the applicants, in their statements did not address how the conduct complained of led to the claimed reputational harm.
Emotional harm
In their statements the applicants wrote of the "whole experience" - which I took to mean their dealings with LHC and Mr Hale as being "deeply traumatic" and being "shocked" to learn of the electoral roll searches. There was a reference to being "deeply concerned and intimidated" and "distressed" but this, it appeared to me, was in the context of the broader dispute between the parties.
The respondent and Mr Hale's "unprofessional conduct" was referred to, particularly in referring to the possibility of fraudulent conduct by the applicants. They noted that the respondent continues to justify its conduct by reference to the investigation of potential fraud. I accept that this may have been hurtful. However, this falls short of the type of psychological injury for which damages may be awarded under the PPIP Act. 'Psychological harm' in s.55(4) of the PPIP Act is intended to encompass situations where an individual suffered some evidenced impairment of the mental states and processes: see JD v NSW Medical Board (No 2) [2006] NSWADT 345 at [53].
[17]
Conclusion in relation to damages
Compensation for alleged financial loss and alleged psychological and physical harm can only be considered where the Tribunal finds that the alleged loss and harm was 'because of' or 'caused by' the contravening conduct of the respondent: HP v Hunter New England Area Health Services [2009] NSWADT 186 at [43]. The applicants' claims for compensation must fail, as no causation can be demonstrated between the conduct complained of, and the harm said to arise. That "conduct" was that Mr Hale undertook searches of the DRIVES database to obtain the applicants' details.
The applicants have broader grievances regarding their interactions with the LHC and the respondent, but those concerns are not the subject of these proceedings and are not properly be the subject of any claim for damages under the PPIP Act.
[18]
APOLOGY
The applicants seek an apology and their submissions suggest a broad-ranging apology. The respondent submitted that a number of aspects of the apology sought would be inappropriate and, in certain respects, beyond the Tribunal's jurisdiction in this matter. In particular, it submitted that any acknowledgment with respect to the conduct of Mr Hale would, necessarily, be limited to the scope of the Tribunal's finding of a contravention of the PPIP Act. I agree. Furthermore, no finding has been made about Ms Reid's conduct as being in contravention of the PPIP Act and therefore is not relevant to any apology.
I agree that an apology is appropriate and I so order. The precise terms of the apology are best left to the parties, if possible.
[19]
COSTS
Section 60(1) of the Civil and Administrative Tribunal Act 2013 ("the CAT Act") sets out the default provision with respect to costs, namely that parties to proceedings before the Tribunal are to pay their own costs. Under s.60(2) the Tribunal may only make an award for costs where "satisfied that there are special circumstances warranting" such an award.
Section 60(3) sets out the types of matters to which the Tribunal may have regard when considering whether there are special circumstances:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,
(f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),
(g) any other matter that the Tribunal considers relevant.
The applicants did not specifically address these matters, other than asserting that there are "special circumstances" in this case which would warrant an award of costs being made under s.60 of the CAT Act and outlined a number of matters that they submitted were relevant to the consideration of costs.
The applicants contended that the respondent's conduct has led to an "unreasonably lengthy dispute in which the Applicants' have suffered further distress, and incurred significant legal costs which should not have been necessary." They claimed that the Respondent had vigorously denied the Applicants' complaint, despite there clearly having been misconduct and this had led to an unreasonably lengthy legal dispute in which the Applicants' have suffered further distress, and incurred significant legal costs which should not have been necessary. In response, the respondent said that it has always acknowledged that the tone of Mr Hale's correspondence was not conducive to resolving issues, and indicated in its correspondence of 10 April 2013 that any concern caused by the correspondence was unintentional; and had never disputed that the conduct complained of had occurred, only disputing that it contravened the terms of the PPIP Act.
The applicants contended that the Respondent delayed the proceedings for an extended period due to their unsuccessful application in relation to jurisdiction in which it alleged that FACS was not the correct entity to receive this complaint. The respondent submitted that there was a real controversy as to the Tribunal's jurisdiction that it was entitled to raise, and parties should not be penalised for raising such issues. It referred to Cianfrano v Premier's Department [2008] NSWADT 102 at [16], where the Tribunal noted that it often relies on respondents in proceedings to raise jurisdictional issues and, once it appears to a respondent that such an issue arises, it must be promptly raised. It should also be noted that the applicants did not have a legal representative on the record until 15 September 2014, well after the jurisdictional issue was considered by the Tribunal. Consequently, costs are not relevant in respect of that period.
The applicants contended that the Respondent delayed the proceedings further by having their solicitors attend a mediation process in circumstances where their solicitors were not able to obtain timely instructions as to possible settlements. The respondent denied that this was the case, noting that its representatives attended the mediation on 25 August 2014, in an effort to resolve matters. An officer of the respondent with sufficient authority to authorise the terms of any proposed settlement said to have been in attendance, so that timely instructions could be obtained. The terms of the Mediation Agreement signed by both parties impose strict confidentiality requirements, so the competing contentions cannot be tested further.
The applicants claimed the Respondent had applied a disproportionately high amount of resources to defending the applicants' complaint, for example, having four representatives present at a planning meeting, forcing the Applicants to similarly incur significant costs. The respondent agreed that it is unfortunate that significant public resources have been devoted to answering this claim but denied, that this has been a disproportionate response. The respondent provided a detailed explanation in response to the applicants' specific example of there being "four representatives present at a planning meeting, forcing the applicants to incur significant costs". It is unnecessary in my view to canvass how and why the respondent chooses to devote resources to proceedings before the Tribunal. In any event, the applicants were not 'forced' to obtain legal representation in response. From the file I could see no evidence of undue delay occasioned by the respondent's conduct of the matter.
The applicants asserted that "the conduct of the Respondent has not been conducive to facilitating the just, quick and cheap resolution of the real issues in these proceedings." The respondent denied this, and noted that it has tried, on several occasions, to resolve this matter so as to avoid the expense and inconvenience of a hearing.
I do not find there to be special circumstances warranting an order for costs in favour of the applicants in this matter. Each party should bear their own costs, consistent with s.60(1) of the CAT Act.
[20]
Decision
The Tribunal finds that the respondent breached s.8 and s.9 of the PPIP Act in relation to the collection of the applicants' personal information from the DRIVES databse.
[21]
Orders
The respondent is to provide an apology to the applicants. If within 14 days of today's date the parties are unable to agree to the terms of an apology, the matter is to be listed for directions.
No order as to costs.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 06 July 2015