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Tuesday, June 13, 2006

ADT privacy case: damages awarded for breach of disclosure principle

In the second case in which damages for a breach of privacy have been awarded, the NSWADT has ordered an agency to pay $4000 to an applicant who successfully claimed loss or damage as a result of a breach of privacy principles.

This decision NZ v Department of Housing (2006) NSWADT 173 followed an earlier finding that the Department had breached the disclosure principles in the Privacy and Personal Information Protection Act. The breach involved disclosure in a letter to NZ’s sister about the investigation of a complaint made against her. The letter acknowledged the sister’s explanation that the information had come from NZ, and that the officer concerned had discussed with the sister the possibility that NZ may be a vexatious complainant.

The Tribunal accepted evidence from a number of witnesses that NZ’s fragile health condition had been affected by the disclosure. It rejected arguments by the Department that the Civil Liability Act (2002 legislation concerning the award of damages for personal injury) was relevant to an assessment of appropriate compensation under PPIPA. Drawing principles from a Federal case involving an award of damages and published decisions of the Federal Privacy Commissioner, the Tribunal said that an assessment needed to be made of economic and non economic loss and whether exemplary or punitive damages were appropriate.

The ADT ordered a payment of $4000 for non economic loss and made other orders concerning the removal and secure holding of departmental records that contained the information in question. An appeal has already been lodged but it is not clear by whom.

The only other award of damages in the NSWADT to date was in RD v Department of Education and Training (2005) NSWADT 195 –$2000 for psychological harm arising from the disclosure of health information about the applicant by forwarding it to the wrong address.

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