WT v Auburn Council [2008] NSWADTAP 16

Appeal Panel - Internal

CITATION: WT v Auburn Council [2008] NSWADTAP 16

APPELLANT WT PARTIES: RESPONDENT Auburn Council

FILE NUMBER: 079066

HEARING DATES: 14 February 2008

SUBMISSIONS CLOSED: 14 February 2008

DATE OF DECISION: 31 March 2008

BEFORE: O'Connor K - DCJ (President); Pearson L - Judicial Member; Blake C - Non Judicial Member

CATCHWORDS: Evidence - fresh evidence

MATTER FOR DECISION: Principal matter

Local Government Act 1993 LEGISLATION CITED : Privacy and Personal Information Protection Act 1998 Administrative Decisions Tribunal Act 1997

WT v Auburn Council [2007] NSWADT 253 Sellars v Adelaide Petroleum NL & Ors (1994) 179 CLR 332 CASES CITED: Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Johnson v Perez (1988) 166 CLR 351 Kitchen v Royal Air Force Association [1958] 1 WLR 563 Re A and The Secretary, Department of Defence (1993), Fed Priv Hbk [13-020]

APPELLANT In person REPRESENTATION: RESPONDENT R Oldfield, solicitor

ORDERS: Appeal dismissed.

REASONS FOR DECISION 1 In 2004 Mr WT was involved in a motor car accident and suffered injury. He instructed a solicitor to pursue a claim for damages. NRMA, the insurer of the prospective defendant, instructed Moray & Agnew to defend the claim. Moray & Agnew applied for release of file information held by the Auburn Council relating to WT. The application took the form of a 'Section 12' request, i.e. a request under s 12 of the Local Government Act 1993 (LGA) – the so-called 'open records' provision that applies to the records held by municipal councils in New South Wales. The Council released its records relating to WT. 2 Prior to obtaining those records, Moray & Agnew had been discussing settlement of the accident claim with WT's solicitor. After it got these records, it discontinued those discussions. WT believes, based on what his solicitor told him about the impact of release of the records on his accident claim, that he would have recovered at least $145,000 by way of settlement of his accident claim if this disclosure had not occurred. Moreover, he had been left with meeting his solicitor's costs when they would have been recovered as part of any settlement, their amount being approximately $37,500. 3 WT complained to the Council that this act of disclosure of personal information relating to him contravened the Privacy and Personal Information Protection Act 1998 (the Privacy Act). This law applies to the Council as a 'public sector agency'. The Act prohibits disclosure of personal information held by a public sector agency about an individual, unless one of several exceptions is applicable. In this instance none of the exceptions was applicable. The Council acknowledged that it had contravened the Privacy Act. The Council offered an apology and various administrative measures to avoid a repetition of the problem. 4 WT was not satisfied, and exercised his right to apply for review of the conduct and the making of an appropriate order by the Tribunal. In particular he sought damages to the maximum allowed by the Privacy Act, $40,000. He had two heads of claim: for financial loss, being the loss of settlement of his claim for a substantial sum; and for psychological harm, resulting from the impact of the disclosure on his mental health. The Tribunal allowed the second head of claim, and awarded $5,000. It declined to make an award for financial loss. See WT v Auburn Council [2007] NSWADT 253 (18 October 2007). WT's appeal is against the Tribunal's decision not to make an award for financial loss. 5 So far as awards of damages are concerned, the relevant provisions of the Act are: '(2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders: (a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct, … (4) The Tribunal may make an order under subsection (2) (a) only if: … (b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency.' 6 As to appeals, the Administrative Decisions Tribunal Act 1997 , s 113 provides: '(2) An appeal … : (a) may be made on any question of law, and (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.' 7 In his notice of appeal (filed 12 November 2007) WT referred to the difficulties he felt that he had in presenting his case to the Tribunal, as he was not able to afford legal representation. WT is of Polish origin, and has lived in Australia for many years. He has a reasonable command of ordinary spoken English, but both before the Tribunal and at the appeal hearing, he had present an interpreter, and occasionally reverted to his native language, and communicated via the interpreter. 8 In the notice of appeal he also said that 'more new evidence will be supplied'. He said that the 'allegations against me by Auburn Council should be carefully looked into and their breach of privacy had damaged my credibility'. 9 Directions were given for both parties to make submissions. The applicant made further submissions in a letter to the Tribunal dated 19 December 2007. On 20 December 2007 he filed a document headed 'Appellant's Submissions' signed by him. Clearly from its contents, it was prepared by a person with legal expertise, probably a practising lawyer, though the name of the author does not appear in the document. 10 In its notice in reply and submissions in reply, the Council contended that the appeal did not demonstrate any error of law in the approach taken by the Tribunal, and that it did not disclose any basis for extending the appeal to the merits. 11 The Tribunal gave the following fuller background to the financial loss claim: '19 The applicant contended that the loss and damage he suffered as a result of the respondent's disclosure was as follows: (a) the loss of $145,000.00 in compensation payment (i.e. damages) for personal injuries he suffered as a result of a car accident in 2002 and 2004. The applicant had not commenced legal proceedings in regard to his claim, but he had engaged a solicitor for this purpose. That solicitor, as is usual, had communicated with NRMA Insurance Ltd, the insurer for the potential defendant, in regard to the applicant's claim. As part of those discussions on 22 February 2005, the applicant's solicitor wrote to NRMA Insurance Ltd, on a 'without prejudice' basis, offering to settle the applicant's claim for an amount of $145,000.00 plus costs. This amount was made up of $10,000 for past out of pocket expenses that remained outstanding, $30,000 for future out of pocket expenses, $20,000 for past home care and $85,000.00 for future home care. Following the disclosure of the documents by the respondent, the applicant's solicitor advised him that his claim was worth nothing (see [23] below); (b) the inability to recover from NRMA Insurance Ltd the costs of his solicitor in pursuing his claim. These costs and disbursements were set out in two tax invoices dated 3 February 2006 for a sum of $9,798.80 and $26,827.00; … 22 The applicant also relied on a statutory declaration of his solicitor, dated 28 June 2006. In that declaration the solicitor set out the conversation he had with Moray & Agnew Solicitors and the applicant in regard to the documents disclosed by the respondent. In respect to his conversation with Moray & Agnew Solicitors the applicant's solicitor said he was told words to the effect of: 'We are not willing to offer any more money than what we previously offered. We have obtained some papers from Auburn Council and it appears that your client had received several complaints … about the state of his yard well before the motor vehicle accident.' 23 In respect to his conversation with the applicant he said he used words to the following effect of: 'The solicitor for NRMA has told me that he has obtained papers from Auburn Council concerning complaints about the state of your yard … The effect of these documents means that the care component of your claim is now worth nothing and your credibility is also affected, so it affects the overall value of your claim. I advise that we should resolve your claim now. I cannot get any more money, it was when I rang the solicitor to try and get more money that he told me this. Your claim is worth nothing and we should take what we can get.' 12 The Tribunal gave the following reasons for declining to make the award sought under this head of claim: '30 Financial Loss – there are two aspects to the applicant's alleged financial loss. One relates to the amount of compensation the applicant alleges he lost and the other relates to his solicitor's costs. In the case of the former, the amount claimed by the applicant is an unrealised or unliquidated amount and the tribunal agrees with the submissions of the respondent that the letter of 22 February 2005 from the applicant's solicitor to NRMA Insurance does not evidence an actual award of damages to which the applicant was entitled to. 31 The applicant's case however, is best described as a claim for the loss of an opportunity. That opportunity being the payment of compensation for a sum of $185,000 [sic] from NRMA Insurance as settlement of his claim together with a payment to cover his solicitor's fees. However, as explained to the applicant on several occasions, the opportunity to settle or litigate his claim had not been lost. At the same time, at no stage, prior to the respondents release of the documents or thereafter, was there an agreement by NRMA Insurance that the applicant was entitled to a compensation payment of $185,000 [sic] plus costs. This was purely and assessment made by the applicant's solicitor. Accordingly, it cannot be said that this represented what the applicant's claim was in fact worth – it was purely speculative. Ultimately the value of the applicant's motor vehicle compensation claim can only be determined by agreement between the relevant parties or by a court. It is not a matter for determination by the tribunal. 32 In regard to the memorandum of costs and disbursements of the applicant's former solicitor, the tribunal notes that they appear to include costs and disbursements relating to matters other than the applicant's motor vehicle personal injury claim. Leaving this aside, the costs and disbursements, all incurred prior to the respondent's conduct the subject of this application, were all incurred on instructions from the applicant. These costs are stated to be in accordance with a cost disclosure the applicant received from his solicitor. What is not clear is whether the costs were contingent on the applicant succeeding in his claim for compensation and if they were the basis on which they were contingent. 33 In any event, the applicant's claim in regard to these costs is once again best described as a loss of opportunity to recover these costs in total, or part there of, following a successful pursuit of his motor vehicle compensation claim. For the same reasons set out above, I am not satisfied that the applicant has lost the opportunity to claim these costs and the amount of the costs that may be recoverable will depend on what is agreed at settlement or as determined by a court. 34 Accordingly, I find that the applicant has failed to establish his alleged financial loss in regard to his motor vehicle compensation claim and on this basis alone his claim for that loss must fail.' 13 WT's submissions of 20 December 2007 make the following points: - The loss of an opportunity to acquire a benefit or avoid a detriment is recognised as a 'loss' for which damages may be awarded, citing Sellars v Adelaide Petroleum NL & Ors (1994) 179 CLR 332 at 364, 355; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 92, 94 and 119. - The lost opportunity in the present case is the opportunity to obtain a payment of compensation from NRMA in settlement of his motor vehicle accident claim for the sum he would otherwise have obtained in the absence of contravening conduct, together with a payment to cover his solicitor's fees. - The opportunity lost was not merely the opportunity to settle but to settle or obtain judgment for the higher amount. That opportunity has been lost as a matter of fact. The position of the appellant has been irreversibly compromised as a result of the contravening conduct. - In assessing the value of the loss the Tribunal will necessarily be engaged in a hypothetical exercise of ascertaining how things might have turned out but for the contravening conduct, citing Amann Aviation at 94. - The Tribunal can (and indeed must, if it finds a loss of opportunity has been established) form its own assessment of the likelihood that the appellant would have received a higher amount, and determine the value of the opportunity lost. - A parallel situation is where a court is called on to determine the loss suffered by a plaintiff whose action is not filed in time due to the negligence of a solicitor. The submissions referred to a passage from Johnson v Perez (1988) 166 CLR 351 at 372 per Brennan J. His Honour referred to the nature of the court's task, including whether it was probable or not that the action might have been compromised, or determine 'as best it can on the balance of probabilities whether the plaintiff would have succeeded or not (and, if so, to what extent) or failed'. Assessment 14 The issues raised by this case are of some importance. 15 The reference to 'financial loss' in s 55(4)(b) is ordinarily to be understood as a reference to financial loss that has actually been incurred, and is able to be quantified. We accept, as we believe the Tribunal did, that in principle a financial loss might take the form of a loss of opportunity – to use the words of Lord Evershed in Kitchen v Royal Air Force Association [1958] 1 WLR 563 at 575 – 'some right of value, some chose in action of reality and substance'. 16 WT's submissions criticise two of the Tribunal's statements at para [31] of its reasons. 17 The first of these statements is: 'Ultimately the value of the applicant's motor vehicle compensation claim can only be determined by agreement between the relevant parties or by a court. It is not a matter for determination by the tribunal. ' [emphasis added] 18 A disclosure in breach of privacy laws may have a very harmful impact on an individual's situation. A record subject may lose an employment opportunity because of a wrongful disclosure by a record keeper. It will be necessary for the tribunal enforcing the privacy law to make a calculation as to that loss. An early example of such a process in Australian privacy law is Re A and The Secretary, Department of Defence (1993), Determination by Federal Privacy Commissioner reported at Federal Privacy Handbook (CCH) [13-020]. In that case, the Department had wrongly disclosed an aspect of the former serviceman's discharge record, resulting in an employer withdrawing a job after the offer had been accepted. The Commissioner made an award that included an amount for economic loss (one month's wages). It is important that privacy laws be enforced in a way that compensates the record subject when third parties obtain an advantage from a breach of the law on the part of the record keeper. 19 So there may be circumstances, as the submissions point out, where this Tribunal could be called upon to assess the value of a legal claim had it not been diminished by a breach of the Privacy Act. This may mean that the court or tribunal may have to conduct a 'trial within a trial' (see Johnson v Perez per Brennan J at 371) to determine the value of the lost opportunity. 20 Insofar as the Tribunal's statement might suggest that it is improper for the Tribunal ever to engage in that task, it was in error. 21 The second statement in para [31] the subject of criticism is the one which characterised the nature of the lost opportunity as 'the payment of compensation for a sum of $185,000 [sic] … together with a payment to cover his solicitor's fees'. 22 We agree with the submissions that the value of the lost opportunity is better described as the difference between the amount of compensation that the appellant might have obtained in the absence of contravening conduct and the amount he can realistically expect to obtain following the contravening conduct. 23 In our view, reading the Tribunal's reasons overall, the Tribunal understood this to be the nature of the lost opportunity. It was, we think, at this point in its reasons simply giving a short-hand account of the claim. WT, as he reiterated before the Appeal Panel, believed his claim was rendered worthless by the disclosure. Therefore, he has been seeking the difference between a substantial sum and zero. Thus in this instance it is acceptable to describe the lost opportunity simply as the whole sum. 24 Though we think the Tribunal went too far in possibly suggesting that the Tribunal had no role to play in assessing the value of lost personal injury claims, for two reasons our view is that there should be no interference with its final order in this case. 25 Our first reason reflects concerns that clearly influenced the mind of the Tribunal. 26 This is a case where it remains open to the applicant to pursue his claim for damages through the courts. That process provides a mechanism for assessing the 'true value' of the claim and it is authoritative. We would not go so far as to suggest that this must occur, but clearly it would be preferable. Otherwise there is a real risk that a tribunal, by means of a 'trial within a trial' might come to one view, and a court fully seized of the matter as a personal injuries action might come to a different view. This could produce a situation that was embarrassing and unfair. The privacy proceedings have as their parties the record subject and the agency, whereas the personal injury proceedings have as their parties the victim and the alleged perpetrator. It may not be possible for the Tribunal in the privacy proceedings to inform itself as well as the court, as it does not have the perpetrator as a party in its proceedings. Accordingly, it seems to us that were a lost opportunity claim to be pressed in circumstances where a direct legal claim could be made going to the same subject matter, the Tribunal would need to have some guarantee that the aggrieved record subject was no longer pursuing proceedings in the other place. If the aggrieved record subject had such a right, it may well be that the tribunal hearing the privacy complaint would wish to adjourn its proceedings pending the determination of the other proceedings. 27 This is not like the situations in some of the cases relied on in the prepared submissions where the claim has become time-barred or struck out for want of prosecution, as is typically the background to the solicitors' negligence claims. 28 We have considered whether the financial loss claim should be remitted to the Tribunal to consider whether it should proceed instead to make a decision on the claim or stay it pending the occurrence of any personal injury proceedings on the claim. Were we to do this, the proceedings would probably be stayed, and remain with the Tribunal for some years to come. This is not a course lightly to be embarked upon. It leaves the matter unresolved for the applicant and unresolved for the agency, with the stresses that they may cause to both parties. 29 In the ultimate, we have concluded that we should not take that course, and there should be no interference with the Tribunal's order. This brings us to our second reason. 30 The difficulty this case presents, one which will often be present in disclosure cases, is that there may be mechanisms that the third party can access other than the one first chosen which will give rise to lawful disclosure. One of the exceptions to s 18's prohibition on disclosure is found in s 23(5): '(5) A public sector agency … is not required to comply with section 18 if the disclosure of the information concerned: … (c) is authorised or required by subpoena … .' 31 Had the Council refused the request, as it should have, that would not have prevented the solicitors from seeking the same records via subpoena in any subsequent litigation. In our view had the Council refused the records it is most unlikely that the insured's solicitors would have 'rolled over' and not continued to press for the records by other means. The solicitors could have asked WT for permission to peruse or uplift the records. He would, presumably, have refused. Practically that would have meant, in our view, that they would have waited for a writ to issue, and then issued a subpoena. If the records were relevant to WT's claim, then they would have been uplifted by the subpoena. They would then have been used in the case. 32 Accordingly, we do not think that we should interfere with the Tribunal's order on the basis of the principal ground of appeal. 33 There are two other points raised by the appeal, neither of which in our view have merit, with which we will deal briefly. They are not the subject, we note, of the professionally prepared submissions. 34 The first point concerns absence of representation. The Tribunal is obliged to conduct its proceedings in a manner which is fair to all parties (now known as the duty of procedural fairness, once called the right to natural justice). It has never been a component of these principles that the court or tribunal in civil proceedings must ensure that a party has legal representation. It is common for parties to present their own cases without legal representation. Sometimes those parties will have language difficulties. They may have an interpreter present. In these proceedings the record shows that WT had an interpreter. 35 The second point concerns fresh evidence. WT drew the Appeal Panel's attention to a medical report dated 10 December 2007 from consultant psychiatrist, Dr Alex Sharah. It was consistent with Dr Sharah's earlier report dated 8 January 2007 which had been before the Tribunal below. In our view the contents of the latest report are in line with those found in the earlier report. There is nothing in the later report which would involve any material alteration of the assessment for non-economic loss made by the Tribunal. Order Appeal dismissed.