GR v Department of Housing

REASONS FOR DECISION 1 This is a privacy matter that was remitted for further consideration to the Tribunal by the Appeal Panel on 30 June 2004 in GR v Director-General, Department of Housing (GD)[2004] NSWADTAP 26. 2 My original decision in the present matter was published on 17 December 2003 in GR v Department of Housing [2003] NSWADT 268. I made a finding (at [20]) that the respondent breached section 18(1) of the Privacy and Personal Information Protection Act 1998 (NSW) ("the Privacy Act") on 27 June 2002 by disclosing the applicant's "personal information" without consent within the meaning of that expression as defined in section 4 of that Act. The personal information I found to have been disclosed was that in a telephone conversation, an officer of the respondent (the applicant's landlord and a State agency) disclosed to a Sydney radio station research officer the opinion that the applicant was a "known troublemaker" within the respondent agency (see the original decision at [9]-[12] & [19]). I did not make a monetary compensation order for damages for psychological harm as was sought by the applicant at the time as I was not satisfied of the adequacy of the then available medical evidence. 3 On appeal to the Appeal Panel, the original decision relating to the above breach of the Privacy Act was not challenged. However, the decision relating to the refusal to order compensation was set aside and "the application" was remitted to the Tribunal for further consideration. 4 The procedural steps taken before the Tribunal since then have been numerous. Suffice it to say that the matter finally came on for a final hearing on 9 June 2005. The applicant was represented by counsel on that day. At the original hearing and before the Appeal Panel, he had been self-represented. The respondent was also represented by counsel. 5 One medical expert, a psychiatrist, Dr Dinnen, was called by the applicant to give evidence, and one expert psychiatrist, Dr Allnutt, was called by the respondent to give evidence. Both specialists were subjected to cross-examination by counsel. Oral submissions were made. In addition, counsel for the applicant relied on written submissions dated 9 June 2005. I permitted the parties to file and serve further written submissions after the conclusion of the hearing and reserved my decision. 6 On 10 June 2005, the NSW Court of Appeal published its decision in Vice-Chancellor Macquarie University v FM [2005] NSWCA 192 (Spigelman CJ, Tobias JA and Brownie AJA). This decision concerned the meaning of "personal information" pursuant to section 4 of the Privacy Act. After detailed consideration, the Court of Appeal held that in order for information to relevantly constitute "personal information" under the Privacy Act, there must be a "physical object upon which or within which an information or opinion is recorded" (at [34]). Accordingly, an agency cannot relevantly "disclose" a mere opinion that comes from the mind of an agency officer or officers that is not also written down or so recorded in or on the agency's files. It would not constitute "personal information" under the Act. Accordingly, the decision of the Appeal Panel in Vice-Chancellor, Macquarie University v FM (No.2) (GD) [2004] NSWADTAP 37 was set aside. 7 As at the date of my original decision, on 17 December 2003, it had been accepted by the Tribunal, and it was not contested by the parties, that the disclosure of personal information could relevantly involve the disclosure of information that came from the mind of an officer of the agency and that had not been recorded in the agency files. As the applicant's counsel pointed out, the transcript of proceedings before the Tribunal on the earlier hearings on 29 April 2003 and 16 July 2003 show that the matter proceeded on the concessions of the parties, and, in particular, the respondent, that the subject information disclosed fell within the Privacy Act in that it relevantly constituted "personal information" (see transcript, Day Two at page 118). Further, the respondent did not seek to appeal the determination at all to the Appeal Panel and it does not appear to have been raised on the applicant's appeal by anyone. 8 On 4 July 2005, I caused the Registrar to write to the parties and enclose a copy of the Court of Appeal decision and to seek further submissions from them on it, if any. Submissions were also sought on a case that the Tribunal thought might impact on the meaning of the expression "psychological harm" in section 55 of the Privacy Act, namely, Crook v Consumer, Trader and Tenancy Tribunal of New South Wales (2003) 59 NSWLR 300. 9 The applicant's counsel filed further written submissions on 6 July 2005 and the respondent's counsel filed written submissions on 8 July 2005. As there were a number of issues that required discussion, I listed the matter for a further hearing for submissions on the afternoon of 31 August 2005. I caused the Registry to write to the parties in order to seek their submissions on the following issues: a) Does the Tribunal have any power to re-open or re-visit its decision of 17 December 2003 in relation to the "breach" issue in [2002] NSWADT 268? b) If so, what is the source of that power and in what circumstances or manner should it be exercised and should it be exercised in the present case? c) If the said decision is to be revisited, what evidence or further evidence, if any, should the Tribunal consider? d) Please address the Appeal Panel's decision of GA v Dept of Education & Training [2004] NSWADTAP 18 especially at [10] to [21]. 10 At the hearing on 31 August 2005, further oral submissions were made and further written submissions of the applicant were relied upon dated 31 August 2005. 11 In short, the situation that day was that the medical evidence had plainly established that relevant harm to the applicant had been directly caused by the breach and that if the original decision on the breach was to be maintained, the applicant must be awarded some quantum of compensation by reason of the breach. However, the respondent formally applied for the Tribunal to re-open or re-visit the original decision in light of the Court of Appeal Decision in FM and on the basis that a "jurisdictional error" had occurred and the decision was never lawfully made (relying on the principles in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597). It was also contended that GA v Dept of Education & Training [2004] NSWADTAP 18 was wrongly decided or was distinguishable. In that case, the Appeal Panel held (at [10] to [21]) that once a valid Tribunal decision on a matter is pronounced, in the absence of any jurisdictional error it cannot be revisited except via the "slip rule" in section 87 of the Administrative Decisions Tribunal Act 1997("ADT Act"). Before me, the respondent submitted the Tribunal should revisit and reverse its previous decision of 17 December 2003 on the issue of the breach and dismiss the entire application. 12 The applicant argued that the Tribunal was "functus officio", in that the Tribunal's power had been fully exercised and the original decision had already "taken effect" pursuant to section 66(1) of the ADT Act and therefore, the "reviewable decision" had been substituted and was the operative decision. It was further submitted that the Appeal Panel's referral in this matter was expressly limited to further consideration of the compensation issue alone (see: GR v Director-General, Department of Housing (GD) [2004] NSWADTAP 26 at [43] & [44]). There is some force in these arguments. 13 Further, the applicant argued that if the Tribunal was minded to reopen its original decision, a new hearing ought to occur and the respondent's documents and files should be examined and, perhaps, further opportunity for oral evidence to be adduced should be given. Of particular concern was whether there existed in the files of the respondent any documentation that recorded the information that had been disclosed (that the applicant had been regarded as a troublemaker by an officer or officers of the respondent on the subject day). In order to avoid further potential difficulties arising or uncertainties remaining in the matter, the parties were content for the Tribunal to direct that the respondent now make its relevant files available to the applicant's legal advisers for inspection. The matter was stood over to a further hearing in order to ascertain whether the parties then wished to maintain their respective positions in light of the discovered material. 14 On 8 November 2005, the parties attended a planning meeting before the Tribunal. Counsel for the applicant said that the inspection of respondent's relevant files had occurred and that no document was present in which the relevant words or opinion had been recorded. Accordingly, it was accepted by the parties that there would be little point in the Tribunal going on to hold a further hearing, if it decided to revisit or reopen the original decision in the light of FM. Each party then stated that the remaining submissions and applications set out above in these reasons were maintained, namely, the applicant maintained his contention that the Tribunal could not revisit the original decision and the respondent maintained its contention that it could and should and that, thereupon, the original decision should be reversed. The Original Decision in the Light of FM 15 In the circumstances, I am of the view that I should revisit, as it were, the original decision of 17 December 2003 in the light of the Court of Appeal decision in FM. 16 I do not consider that any principle of functus officio or issue estoppel precludes this course (see, eg: the discussion of these issues in relation to administrative tribunals in McWilliam and Civil Aviation Safety Authority [2005] AATA 1148 at [25] to [37] (Deputy President Forgie, 11 November 2005) and the cases cited there.) I consider it to be the correct course for the Tribunal to adopt. 17 I say this because the Tribunal is bound to accept decisions of the Court of Appeal. It cannot assume jurisdiction. Jurisdiction cannot be conferred on the Tribunal by consent of the parties. Even if the parties are to be viewed as having not objected to the jurisdiction of the Tribunal at the time of the initial hearing, the respondent now, in the circumstances which have happened, cannot be viewed as being estopped from raising jurisdiction or a jurisdictional fact upon which the Tribunal must now rely as a basis for any determination of the compensation issue (as to jurisdictional facts, see, eg: Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at [30] to [68]). 18 The effect of the Appeal Panel's decision to remit the question of compensation must carry with it an obligation to consider the premise upon which that issue must be determined. The position is that I must accept the now-declared interpretation of section 4 of the Act in FM as the legally correct interpretation. This does not mean I uncritically accept the "declaratory theory" of law. However, in the absence of any "prospective overruling" by the Court of Appeal (namely, an order that the interpretation of the Act in FM is to apply only on and from a particular date), I must accept that the Court of Appeal decision has retrospective operation (see, eg: Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581 at 593D to 595C (per Sackville J with Foster and Lehane JJ agreeing). An application to the High Court of Australia for leave to appeal that decision was refused on 4 August 1997 [1997] 15 Leg Rep SL4c). It follows, that to maintain the Tribunal's ruling in the original decision would be to compound a legal error. That error goes to jurisdiction. 19 While I am mindful of the Appeal Panel's decision in GA v Dept of Education & Training [2004] NSWADTAP 18 at [10] to [21], I do not consider it applicable to the situation here, where it is now plain that the Tribunal applied an approach that was sufficiently erroneous as to have gone to the Tribunal's jurisdiction. Failing to both identify and apply the correct legal test, being the correct interpretation of and application of section 4 of the Act (as now revealed by the Court of Appeal) was plainly a jurisdictional error (GA, ibid, at [20]; and see, eg, Sydney Water Corp Ltd v Industrial Relations Commission of NSW (2004) 61 NSWLR 661 at [65]-[67]). 20 Due to the investigation undertaken by the parties in the present case this year regarding inspection of the respondent's documents, I am satisfied that there is little point in the Tribunal conducting any further hearing into the factual issues. I am satisfied that no document of the respondent records the offending remarks of the officer of the respondent. It was merely an expressed opinion. As such, FM is directly applicable. 21 Applying the principles in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (esp at [51] & [53]), I set aside the Tribunal's original decision on the respondent's breach of the Privacy Act made on 17 December 2003 and, it follows, regrettably, that I must, in substance, dismiss the applicant's application. 22 In case I am wrong, and I am unable to revisit the original decision, I should record some remarks on the psychological damage case that was run on 9 June 2005 (the day before the Court of Appeal decision in FM came down) and any order I would have made pursuant to section 55(2)&(4) of the Privacy Act. Generally, I accept the evidence of both psychiatrists. To the extent there was any inconsistency - and, by the end of the oral examination of both doctors, there was relatively little inconsistency - I would prefer the expert evidence of Dr Dinnen, who gave evidence for the applicant. 23 On any view of the medical evidence, I am satisfied that the conduct of the respondent's officer, in making the "disclosure" to 2UE that he did, that the applicant was a known troublemaker, was a direct and relevant cause of the psychological harm (a depressive disorder - DSM IV category) that ensued, and which continues to this day. I am satisfied that the evidence established this causal connection. It is not to the point that the applicant was particularly fragile, vulnerable or even that he was pre-disposed to injury of this kind. The respondent had to take its tenant as it found him in this regard. 24 I accept the evidence of Dr Dinnen that the applicant should undergo further monthly treatment by a psychologist for about 2 years. I find that at the rate of $175 per hour for 2 years, I should make an allowance for the amount of $4,200 for future expenses specifically for this purpose. In her submissions, the applicant's counsel said, inter alia: "The Applicant is entitled to recover a sum payable by way of compensation for pain and suffering caused to him by reason of the Respondent's breach. An attempt must be made by the Tribunal to fix a sum and in doing so the Tribunal should have regard to "the general standards prevailing in the community" ( O'Brien v Dunsdon (1965) 39 ALJR 78). The Applicant seeks $20,000 in total to be payable by way of compensation to the Applicant for the conduct of the Respondent in breach of the Act." 25 No other orders or directions were sought by the applicant in these proceedings pursuant to section 55(2) of the Act. 26 On the quantum of damages issue, the respondent's counsel submitted, inter alia: "The general principle is that damages are compensatory. The plaintiff or applicant should be awarded such sums of money so that he may be restored to the position that he would have been in but for the breach, so far as money can do this (eg. Cullen v Trappell (1980) 146 CLR 1, 11; Todorovic v Waller (1981) 150 CLR 402, 412, 427, 442, 463). In addition, the plaintiff may not recover more than he has lost (eg. Harris v Commercial Minerals Limited (1995-6) 186 CLR 1,18). Therefore, such damages that may be awarded are limited to what may be necessary to restore [GR] to the admittedly imperfect condition that he was in immediately prior to the unlawful disclosure. I do not say that quantifying such damages is easy. I merely say that the Tribunal should do the best that it can." 27 I consider the amount of $20,000 to be excessive. The evidence does not justify such an order for compensation. Doing the best I can, were I to go on to make a formal determination of the quantum of damages in the matter, I would have ordered the respondent to pay the applicant a sum that took the total amount to $15,000. 28 In the circumstances, I do not make any such award in the matter for the reasons set out above. Determination The Tribunal determines not to take any action on the matter.

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