1 Pursuant to s 60 of the Victorian Civil and Administrative Tribunal Act 1998 Helen Waltham is joined as an Applicant to this proceeding.

2 Pursuant to s 43(1)(b) of the Information Privacy Act 2000 the complaint herein is proven but the Tribunal declines to take any further action in the matter.

[Note: These written reasons consist of an edited transcription of reasons given orally on 8 August 2005]

1 This is an application pursuant to the Information Privacy Act 2000 (the Act) by the applicants against Greater Bendigo City Council (the Council) in relation to allegedly breaching the applicants' privacy in giving out to others the applicants' address and telephone number.

2 Before I set out the circumstances of this application, I mention that the second applicant was only joined this morning on application from her solicitor, Mr Vance, and no objection was made to her joinder as an applicant by Mr Lloyd who appeared as solicitor for the respondent. As a result, she was joined as an applicant to this proceeding.

3 Mr Whitfield and Ms Waltham live in a rural property in Strathfieldsaye which is in the area controlled by the Council. They have various animals and birds on their property.

4 On 6 November 2004, there was a storm in the Strathfieldsaye area. As a result, Mr Whitfield found a black Labrador dog with a collar roaming in the vicinity of his property. He brought the dog back on a leash to his property and tied up the dog near a kennel and looked after the dog very well. His partner, Ms Waltham, then telephoned the Council to inform them that they had found the dog and that they desired the ranger to come and pick it up.

5 I pause here to state that the 6 November 2004 was a Saturday and the Council outsource their service to a subsidiary of Chubbs Security who apparently took the call on that day.

6 It is admitted by the Council that the operator from Chubb, a female called Sam, informed a further caller who called a short while later looking for a black Labrador, of the telephone number and address of the applicants. There is dispute between the parties as to whether others were notified of the telephone number and address.

7 In any event, the applicants maintain that at approximately 6:30 pm one half hour after the original call had been made to the Council, a young boy rang looking for his black Labrador dog. He apparently lost a male dog and the dog that was found was a female dog. Mr Whitfield told him that the dog he found was not the boy's dog because it was of the wrong sex. The boy's mother rang up a short while later and she was told the same thing.

8 The applicants maintain that at approximately 9:00 pm they received a further telephone call from a male who was very drunk, abusive and aggressive. The caller was looking for his dog. They also maintain that 10 minutes later there was a further call from a female in the same house as the previous male caller also looking for a dog. They said that there was a further call at 11:00 pm from a woman. However, they said the 11:00 pm caller was polite and when she found out that the dog was not her dog, she gave them no further trouble.

9 The dog was eventually picked up by the ranger at about 8:30 the following morning. At that time, another vehicle who was approaching somewhere near the applicant's property talked to the ranger, apparently examined the dog and drove off.

10 It should be noted that the applicants have a private telephone number because they do not want people contacting them at large. Mr Whitfield said that a number of years ago he had problems with his ex-wife threatening to kidnap his children. Ms Waltham also said she had problems a considerable time ago in relation to someone assaulting her and that is why they have a private telephone number.

11 Mr Whitfield said that as a result of his breach of privacy, his nervous condition has deteriorated, he has suffered shock, he does not sleep at night, he worries when he hears an ambulance and goes to investigate, he also worries when animals or birds on his property make undue noise which also causes him to investigate. In summary, he said he experiences stress, anxiety and worry and said he suspected he may have an ulcer. These problems he attributed to the Council because it released his details.

12 Ms Waltham gave evidence that she also suffers from stress and worry as a result of her telephone number being given out. She is not sure now who might turn up at her property and she is particularly worried because of the previous assault.

13 While Mr Lloyd, who as I said appeared for the respondent, said he doubted whether giving a telephone number and address amounts to personal information, he said he did not wish to take that point and consequently the dispute before me this morning comes down to what action I should take, if any, pursuant to s 43 of the Act.

14 The applicants request that pursuant to s 43(1)(a)(iii), I should make an order for compensation in the amount of $50,000 as a result of loss or damage suffered by them including injury to their feelings or humiliation suffered by them by reason of the breach of their privacy. On the other hand, Mr Lloyd submitted that I should only make an order pursuant to s 43(1)(b) and find the complaint proven but decline to take any further action in the matter.

15 I accept the evidence that both the Council and Chubb have excellent procedures in place both before and after the incident of 6 November 2004 which should prevent these types of matters happening, that is, personal information being given out. The protocol is that a person's telephone number is taken and if the ranger has not arrived within about 20 minutes, the person is called back. The incident involving the applicants was a breach of that protocol and I accept that it was done for a very good motive, that is, to help a person or persons find their lost animal. However, that does not excuse the breach.

16 Neither the Council nor Chubb have suggested that it does excuse the breach. There were numerous verbal apologies made to the applicants soon after the event, including Sam who worked for Chubb, and eventually there was a written apology made on 15 December 2004.

17 The applicants complain that they had earlier requested a written apology but it did not come until further requests were made. Mr Grey, in his witness statements, said that the written apology should have been given earlier but it was not given and that was due to a slip up in the Council procedure. However, I note that vigorous and heartfelt apologies were made to the applicants by numerous people at both Chubbs and by the Council prior to the written apology being given.

18 While I think the breach of privacy in this regard was most unfortunate, I have difficulty in accepting the evidence of either of the applicants that it has caused them the injuries to which they lay claim. I note that no medical evidence has been called in support of either applicant's injuries, humiliation, stress or hurt feelings. One would have expected that in a claim as large as this one, $50,000 for stress, hurt feelings and humiliation, that it would have been supported by medical evidence but it was not.

19 Mr Vance, on behalf of the applicants, said that I should accept the applicants' evidence on these matters given by themselves. In my view, if the injury is as bad as what the applicants say it is as a result of this breach, I would find it quite extraordinary. I have sat on personal injury cases for a number of years and for psychological injury to be this severe would be extraordinary in the extreme in circumstances of this application. Even though the applicants desire privacy and have clearly taken steps to secure their privacy by having a private number, having telephone calls made in relation to a lost dog, even an abusive telephone call, in my mind would be unlikely to cause the stress and upset that the applicants have claimed and without sufficient medical evidence or any medical evidence, I do not accept their evidence of the same.

20 I have had reason to doubt the sincerity of the applicants' evidence, particularly that of Mr Whitfield. There were times during cross-examination where he suggested that the abusive caller at 9:00 pm called him by name. It was only after vigorous cross-examination by Mr Lloyd that he withdrew that allegation. I took the view that both he and Ms Waltham were happy to make any allegations they thought fit that would best support their case. I do not make a finding on whether there was one, two, four or five calls. I do not think it would alter my view in this matter.

21 I do not accept the fact that the applicants or either of them have suffered any loss or damage as a result of their breach of privacy and I do not accept the fact that their feelings have suffered or they have suffered any humiliation. In my view, they have blown this incident right out of proportion. Given those facts, I will make the order that was sought by the respondent and find that the complaint was proven but decline to take any further action in the matter and I will order accordingly.