Privacy Law & Policy Reporter --- "Cases and complaints" [2005] PrivLawPRpr 6; (2005) 11(5) Privacy Law and Policy Reporter 143

• Cases + Complaints

---

Cases + complaints

Australian Institute of Private Detectives Ltd v Privacy Commissioner [2004] FCA 1440

Federal Court of Australia, Sackville J, 5 November 2004

Privacy - disclosures of personal information to and by private investigators in the course of investigations concerning litigation or potential litigation - whether Federal Court has jurisdiction to declare acts and practices comply with National Privacy Principles

Facts

The Australian Institute of Private Detectives Ltd (the ‘Institute’) is an industry association, the members of which are private investigators. The Institute sought a declaration from the Federal Court that

“The disclosure by an organization of personal information to the [Institute] or its members for the purpose of enabling the [Institute] or member to investigate, on behalf of private citizens and corporations, matters concerning litigation, or potential litigation, constitutes disclosure or use ‘required or authorised by or under law’ within the meaning of National Privacy Principle 2.1(g) and is not a disclosure or use which is contrary to the provisions of the Privacy Act 1988”

A declaration in similar terms was also sought in respect of disclosures of personal information by the Institute or its members.

In its statement of claim the Institute stated that it had requested the Privacy Commissioner to make a public interest determination under section 72 of the Privacy Act in respect of the practices of the Institute and its members, but the evidence from the Institute was that no such request had been made.

The Privacy Commissioner requested the Court to dismiss the proceedings on the basis that the Court lacks jurisdiction because the Institute was seeking an advisory opinion on a hypothetical question.

Held (dismissing the Institute’s proceedings)

1 The only possible source of the Federal Court’s jurisdiction to grant the relief sought by the Institute is section 39B(1A)(c) of the Judiciary Act 1903 which provides that the original jurisdiction of the Federal Court includes jurisdiction in any matter arising under any laws made by the federal parliament.

2 For a ‘matter’ to exist upon which the Federal Court may declare that conduct which has not yet taken place will not be in breach of a law, there must be a concrete and established or agreed situation such that the Court’s determination will quell a controversy between the parties. Here, the Institute sought declarations independently of any factual allegations and no relief was sought in respect of any refusal of the Commissioner to make a public interest determination under section 72 of the Privacy Act. The declarations sought by the Institute could not quell any existing controversy between the Institute and the Privacy Commissioner. In effect, the Institute sought an advisory opinion from the Court without reference to any concrete facts. Accordingly, the Federal Court had no jurisdiction to grant the relief sought by the Institute and the proceedings were dismissed.

Bass v Permanent Trustee Company Ltd [1999] HCA 9; (1999) 198 CLR 334; In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, followed

Comment

The outcome of this case was entirely predictable - it has been clear since the early 1920s that Australian courts will not give advisory opinions or answers to hypothetical questions. No doubt the Institute was motivated by a desire to obtain greater clarity for its members as to the application of the Privacy Act to their day-to-day activities. But, as the history of the Privacy Act demonstrates, it is not a simple matter to obtain a court ruling on the application of any part of the Act. In my view, the most likely scenarios in which a decision will be made by a court on the application of the Act to the activities of private investigators are as follows.

• The subject of an investigation will apply for an injunction under section 98 of the Privacy Act seeking to restrain a private investigator from engaging in intrusive collection practices and disclosing the results of those investigations to their clients; or

• In the course of a trial an objection will be made to the admissibility of evidence gathered by a private investigator on the grounds that it was obtained illegally as a result of a contravention of the Privacy Act, and as part of the ruling on admissibility the court will consider the lawfulness of the investigator’s activities under the Privacy Act; or

• On the application of a private investigator, the court will review a determination by the Privacy Commissioner made under section 52 of the Privacy Act that the private investigator engaged in conduct that contravened the NPPs.

However, the likelihood of any of these scenarios arising in the short term is low. If an actual dispute (involving a controversy and a contradictor) within the original jurisdiction of the Federal Court exists, section 21 of the Federal Court of Australia Act 1976 allows the Court to give declaratory relief (if it is appropriate to do so).

Patrick Gunning, Mallesons Stephen Jaques

Cream Holdings Limited v Banerjee [2004] UKHL 44 (14 October 2004)

The House of Lords adopts a high, flexible threshold for the award of interlocutory injunctions in freedom of expression cases

House of Lords (14 October 2004)

Standard for grant of interlocutory injunction – section 12(3) Human Rights Act 1998 (UK) – breach of confidence – public interest in disclosure of confidential information

Facts

The plaintiffs, the Cream group of companies, are a prominent Liverpool business that runs nightclubs and a merchandising business. When Ms Banerjee, the company’s in-house accountant, was dismissed, she took documents allegedly disclosing illegal and improper activities. Ms Banerjee passed copies to the ‘Echo’, the publisher of two local newspapers. The newspapers published articles alleging corrupt behaviour. The plaintiffs sought an injunction against Ms Banerjee and the ‘Echo’ to restrain publication of further confidentual information. The defendants argued that publication was justified in the public interest.

Section 12 of the Human Rights Act and interlocutory relief

In the United Kingdom, the general law relating to publication of confidential information (and ‘private’ information) is modified by the Human Rights Act 1998 (the ‘HR Act’). Section 12 of the HR Act applies where a court is ‘considering whether to grant any relief’ that might affect the right to freedom of expression established under Article 10 of the European Human Rights’ Convention (the ‘ECHR’). Section 12(3) of the HR Act provides that relief that might affect freedom of expression is not to be granted so as to restrain publication before trial unless ‘the court is satisfied that the applicant is likely to establish that publication should not be allowed’. The wording of section 12 of the HR Act has given rise to much uncertainty.[1]

One issue that has arisen is the extent to which section 12(3) modifies the accepted test, established by American Cyanimid v Ethicon Ltd,[2] for awarding an interlocutory injunction. The test may be summarised as requiring the plaintiff seeking interlocutory relief to show that:

1.

There is a ‘serious question to be tried’ (meaning a ‘real prospect’ of success at trial); and

2.

The ‘balance of convenience’ weighs in favour of granting an injunction.

Previous cases interpreting section 12(3) and American Cyanimid

The interpretation of section 12(3), and its relationship to the accepted standard for awarding an interlocutory injunction, had come before the English courts a number of times before the instant case, resulting in inconsistent statements as to the effect of section 12(3). The underlying issue is whether section 12(3) and, in particular, the use of the term ‘likely’ in that sub-section, establishes a higher threshold for awarding an interlocutory injunction than the American Cyanimid test?

The cumulative effect of the previous cases was that there were two incompatible views on the standard required by section 12(3):

1.

The view expressed in Imutran,[3] and approved in A v B plc,[4] that the test was not ‘discernibly different’ from the American Cyanimid standard; or

2.

The view adopted in Theakston,[5] that section 12(3) established a higher standard, requiring the plaintiff to show that it is ‘more probable (or likely) than not’ that he or she will succeed at trial.

The approach of the lower courts

The English courts in Cream were required to confront these conflicting authorities. At first instance, Lloyd J awarded an interlocutory injunction. Following Imutran, he concluded that section 12(3) only required the plaintiff to establish a ‘real prospect of success’ and not that success was ‘more likely than not’.

On appeal, the three members of the Court of Appeal agreed that the standard to be applied under section 12(3) was whether the plaintiff had a ‘real prospect of success at trial’. Dismissing the appeal, Simon Brown and Arden LJJ held that the first instance judge had not misapplied this test and was entitled to grant an injunction. Sedley LJ, however, disagreed with this analysis, concluding that the information was ‘incontestably a matter of serious public interest’,[6] meaning there was no real possibility of the plaintiffs succeeding at trial.

The ‘higher’ standard adopted by the House of Lords

The House of Lords, in a decision delivered by Nicholls LJ, unanimously upheld an appeal and discharged the injunction. Nicholls LJ rejected the lower standard of a ‘real prospect of success’ adopted by the Court of Appeal but, in so doing, adopted a flexible approach to the meaning of the word ‘likely’ in section 12(3). His Lordship explained the approach to be adopted in applying the statutory test in the following terms:

There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant’s prospects of success at trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success ‘sufficiently favourable’, the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably (‘more likely than not’) succeed at the trial ... But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include ... where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal.[7]

In the instant case, Nicholls LJ, although applying a more stringent test than the Court of Appeal, agreed with Sedley LJ that the material proposed to be published was of ‘serious public interest’.[8] His Lordship therefore discharged the injunction on the basis that the Cream group were ‘more likely than not’ to fail at trial.

Discussion

The decision of the House of Lords in Cream, following on from other decisions concerning the HR Act, further illustrates the extent to which English law has diverged from the law in other common law jurisdictions. The case, being essentially concerned with statutory interpretation, will have negligible effect on Australian law. Its main interest, for those outside of the United Kingdom, lies in the extent to which it forms part of the continuing, and far-reaching, impact of the HR Act on the development of English private law.

At the same time, it should be borne in mind that the award of interlocutory relief, regardless of the standard adopted, remains highly discretionary and context-dependent. In this, the flexible approach adopted by the House of Lords to the application of section 12(3) has much to recommend it. Given the high level of discretion preserved by the House in Cream, the decision may, in practice, not have much of an effect on the protection of privacy at general law in the United Kingdom. Whether it will result in less protection of privacy in cases against media defendants remains to be seen.

David Lindsay, University of Melbourne

JD v Director General, NSW Department of Health (No.2) [2004] NSWADT 227

NSW Administrative Decisions Tribunal (8 October 2004)

Privacy – investigations – accuracy – use - disclosure

Synopsis

Investigation carried out by one agency at the request of another, and resulting report passed to requesting agency for further action. Despite information being in part incomplete and inaccurate, no breach of IPPs 9, 10 or 11.

Background

JD was a general practitioner. The Medical Board had received complaints about JD and wanted to ascertain whether or not he had been self-administering narcotics. It was not within the Medical Board’s powers to conduct an investigation into the question of whether there had been any breach of the Poisons & Therapeutic Goods Act 1996.

JD’s conduct was therefore investigated by the Pharmaceutical Services Branch of the Department of Health, at the ‘urgent’ request of the NSW Medical Board. The Department found no evidence of the self-administration of narcotics, but did find irregularities with respect to JD’s record-keeping, which were matters within the Medical Board’s jurisdiction as a possible breach of the Medical Practice Act 1992. Once complete, a report of the Department’s investigation was forwarded by the Department to the Medical Board.

JD claimed breaches of IPPs 9 (check accuracy before use), 10 (use) and 11 (disclosure) by the Department of Health.

IPP 9 : check accuracy before use

The Tribunal found that in forming opinions and preparing a report, the investigating officer at the Department of Health had ‘used’ JD’s personal information, which had been collected from a number of sources.

The Tribunal agreed with the Privacy Commissioner that a planned use which would be adverse to the interests of the person “places a higher threshold on an agency to ensure that the information is relevant, accurate, up to date, complete and not misleading”.

In this case the Department conceded that the investigating officer had taken no steps to ensure information he collected about JD from other parties was relevant, accurate, etc. (The officer had not taken sworn statements from any of the witnesses interviewed, nor had he sought JD’s views.)

However the Department argued that ‘no steps’ was reasonable in the circumstances, as the investigating officer had quickly formed the view that there was no evidence of a breach.

The Tribunal agreed, and thus found that although the Department’s report was “inaccurate and incomplete”, they had not breached IPP 9.

IPP 10 : use

The Tribunal found that the Department had used the information solely for the purpose for which it was collected, namely to investigate a possible breach of the Poisons & Therapeutic Goods Act 1996.

IPP 11 : disclosure

The Tribunal applied the disclosure principle to different parts of the report, and found that only part complied with IPP 11. The part of the report which communicated the Department’s findings – that there was no evidence to suggest JD was self-administering narcotics – was appropriate to disclose to the Medical Board under s.18(1)(a), which says:

(1) A public sector agency that holds personal information must not disclose the information ... unless:

(a) 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

However other information contained in the report, including statements made about JD by various witnesses and the officer’s own conclusions drawn from his examination of JD’s patient records, went beyond just responding to the Medical Board’s request. The Tribunal found these other parts of the report were disclosed contrary to IPP 11.

The Tribunal then examined various exemptions to IPP 11.

An exemption in s.23(5) of the PPIP Act for ‘law enforcement’ provides:

(5) A public sector agency ... is not required to comply with section 18 if the disclosure of the information concerned:

(a) is made in connection with proceedings for an offence or for law enforcement purposes ..., or

(b) is ... for the purposes of ascertaining the whereabouts of an individual who has been reported to a police officer as a missing person, or

(c) is authorised or required by subpoena or by search warrant or other statutory instrument, or

(d) is reasonably necessary:

(i) or the protection of the public revenue, or

(ii) in order to investigate an offence where there are reasonable grounds to believe that an offence may have been committed.

The Tribunal stated (at para [76]) that “these exemptions do not apply to this particular application”. No other comments were made on this point.

The Tribunal then examined a public interest direction issued by the Privacy Commissioner under s.41 of the PPIP Act, which allowed, inter alia,

• exchanges of information which are reasonably necessary for law enforcement purposes and are not covered by an exemption in Part 2 Division 3 of the Act;

• exchanges of personal information which are reasonably necessary for the performance of agreements (whether formal or informal) between agencies, and which agreements operated in the 12 month period prior to 1 July 2000 and have continued to operate since 1 July 2000 under the directions referred to in Paragraph 4 of this Direction

The Tribunal did not make a finding in relation to the ‘necessary for the performance of agreements’ exemption, as it had been provided little detail of the existing arrangements for transferring personal information between the Department and the Medical Board. (A copy of a letter from the Registrar of the Medical Board, tendered as part of an affidavit on behalf of the Department, was apparently not sufficient proof for the Tribunal on this point.)

However the Tribunal did accept the ‘law enforcement’ aspect of this direction, stating (at para [79]):

“the term ‘law enforcement’ should be given its ordinary meaning and it should not be narrowly construed. ... I am also of the view that disciplinary action, pursuant to an Act of Parliament, for breaches of professional standards comes within the term ‘law enforcement’”

Ultimately the Tribunal found that the disclosure of all the information was ‘reasonably necessary’ for the law enforcement purposes of the Medical Board, even though some of the material was only ‘indirectly’ related to JD’s prescribing practices.

The Tribunal thus found that the Department’s non-compliance with IPP 11 was authorised under the terms of the Privacy Commissioner’s public interest direction.

Nonetheless the Tribunal concluded with the following comments (at para [84]):

However, I am concerned that there appears to be an assumption that all personal information that the PSB holds in respect of medical practitioners can be disclosed to the Medical Board. ... in the event it has not already done so, I suggest the PSB consider examining the terms of any agreement that it has with the Medical Board and any other public sector agency about exchanging personal information to ensure that the practices and policies of the PSB in acting in accordance with those agreements comply with the information protection principles of the PPIP Act ...

Comment

The Tribunal appears to have given a different meaning to “law enforcement purposes” under the Privacy Commissioner’s direction than it attributed to the same phrase when it is used in the Act itself, at s.23. The treatment in this case of the various overlapping ‘law enforcement’ exemptions is therefore somewhat confusing.

Furthermore the Tribunal’s obiter recommendations to the Department, its conclusion that some of the information was inaccurate and incomplete, and its comment that some of the information only ‘indirectly’ related to JD’s prescribing practices, sits uneasily with its conclusion that the material was nonetheless ‘reasonably necessary’ for the Department to disclose to the Medical Board. Unlike other cases which have more closely examined claims for exemptions, in this case the Tribunal did not engage in any ‘what if’ scenarios. (See for example Macquarie University v FM (No 2) [2004] NSWADTAP 37 at [55].)

The absence of more detailed discussion on these points means this decision is ultimately unhelpful for practitioners attempting to interpret the PPIP Act.

Given that IPP 9 does not require an agency to check the accuracy etc of information before its disclosure, this case highlights a significant gap in privacy protection: an agency can admit to taking no steps to ensure that the information it collects is relevant, accurate, up to date, complete and not misleading, and that information may be disclosed to a third party without breaching the Act (assuming the disclosure is authorised). That is, no matter how irrelevant, inaccurate etc the information is, the agency will not have breached IPP 9 so long as the agency did not use the information for its own purposes in a way that would be adverse to the subject person.

Anna Johnston, Salinger & Co

EG (No 2) v Commissioner of Police, New South Wales Police [2004] NSWADT 226

NSW Administrative Decisions Tribunal (8 October 2004)

Privacy – dismissal of proceedings - costs

The proceedings were dismissed because of EG’s repeated unavailability. EG’s withdrawal on the day before the hearing was found to constitute ‘special circumstances’ warranting a costs order. The respondent was awarded costs from the date when EG missed the first date for filing of submissions.

Anna Johnston, Salinger & Co

MG v Director General, Department of Education and Training [2004] NSWADTAP 45

NSW Administrative Decisions Tribunal – Appeal Panel (19 October 2004)

Privacy – Tribunal’s jurisdiction - out-of-time application for internal review

The respondent agency declined to accept an out-of-time application for an internal review. MG had sought a review of this decision. This case was an appeal from the Tribunal’s original judgment that it had no jurisdiction to hear MG’s case.

The question in this case was whether a refusal to accept an application out-of-time is a decision which the Tribunal has power to review.

Section 55 of the PPIP Act gives the Tribunal power to review “the conduct that was the subject of the application under section 53” (an internal review application). That is, the review is of the conduct which the person alleges breached their privacy, by way of contravening an IPP, Code or the public register provisions.

Section 55 also sets out the trigger for the Tribunal to conduct such a review: if “a person who has made an application for internal review under section 53 is not satisfied with: (a) the findings of the review, or (b) the action taken by the public sector agency in relation to the application”.

The Appeal Panel confirmed that despite the triggering provisions, s.55 only allows the Tribunal to review the original conduct. The Tribunal thus has no jurisdiction to review a decision to decline an internal review application as being out-of-time, or the findings of the internal review, or the action taken in relation to the internal review.

This case confirms the original decision in MG, and the approach taken consistently since the very first case under the PPIP Act, Y v DET [2001] NSWADT 149.

Anna Johnston, Salinger & Co

---

[1] For a discussion of some of the issues see David Lindsay, ‘Naomi Campbell in the House of Lords: Implications for Australia’ (2004) 11(1) PLPR 4.

[2] [1975] UKHL 1; [1975] AC 396.

[3] Imutran Limited v Uncaged Campaigns Limited [2001] EWHC 31; [2001] 2 All ER 385, para [17] per Sir Andrew Morritt VC.

[4] [2002] EWCA Civ 337; [2002] 3 WLR 542, para 11(iii) per Lord Woolf CJ.

[5] Theakston v MGN Limited [2002] EWHC 137, para [19] per Ouseley J.

[6] [2003] EWCA Civ 103, para [88].

[7] [2004] UKHL 44, para [22].

[8] [2004] UKHL 44, para [24].