Gunning, Patrick --- "Austen v Ansett Transport Industries (Operations) Pty Ltd" [1994] PrivLawPRpr 22; (1994) 1(2) Privacy Law & Policy Reporter 32

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Austen v Ansett Transport Industries (Operations) Pty Ltd

Federal Court of Australia - General Division (Burchett J) Decision 26 August 1993

Breach of confidence - waiver - medical information - employment application - consent to disclosure - damages under Pt VIII Privacy Act - Privacy Act 1988 (Cth), s90, 93

Defamation - defences - privilege - whether consent to publication is a complete defence

A, an airline pilot, returned to Australia from the UK in late 1989 and sought employment as a commercial pilot with Ansett. He was offered a job subject to passing a medical examination. As part of the examination, A signed a document authorising the Director of Aviation Medicine of the Civil Aviation Authority (CAA) ''to supply details of my medical history' to Ansett. The CAA's director of aviation medicine, Dr L, an officer appointed under the PublicService Act 1922 (Cth), was the brother of A's ex-wife. Dr L and A had both worked for the same company, albeit at different times, in the UK.

Ansett's director of medicine contacted Dr L in order to obtain a copy of A's medical file. In accordance with prevailing procedures, Dr L summarised the contents of the file and recommended that Ansett view its contents in full. In the course of a telephone conversation with Ansett's medical director, Dr L made a false statement concerning the circumstances of A's departure from the company for which they had both worked (''the oral communication'). This oral communication was not based on any matter contained within A's medical file, or any other file maintained by the CAA.

A brought an action against Ansett and sought damages from the CAA for defamation, breach of confidence under Pt VIII of the Privacy Act 1988 (Cth), breach of statutory duty and misfeasance of public office. The claim against Ansett was discontinued during the hearing.

Held, dismissing the claims:

1. The various matters recorded in the CAA's file were properly matters of ''medical history' notwithstanding the existence of details which had not been strictly proven. Accordingly, the CAA was authorised by A to supply the contents of the file to Ansett.
2. The authorisation extended to the taking of copies of documents in the file by Ansett (Downey v Pryor [1960] HCA 49; (1960) 103 CLR 353 applied).
3. Consent is a bar to recovery for defamation under the general principle of voluntary assumption of risk. Accordingly, by consenting to the release of his medical history, A could not make out an action for defamation against the CAA (Loveday v Sun Newspapers Ltd [1938] HCA 28; (1938) 59 CLR 503; Chapman v Lord Ellesmere [1932] 2 KB 431 followed).
4. Alternatively, the communication of information relating to the medical fitness of a pilot was a privileged occasion and the CAA could successfully rely on the defence of qualified privilege (Adam v Wood [1917] AC 309 applied).
5. The oral communication by Dr L was not made in the performance of an official function and was not, therefore, a statement on behalf of the CAA. Accordingly, slander was not established against the CAA.
6. The authorisation was a complete answer to any claim on the basis of a breach of obligation of confidence.
7. The regulations issued under the Public Service Act concerning the conduct of officers did not confer upon A a private cause of action against the CAA. Accordingly, there was no basis for a claim against the CAA for breach ofstatutory duty (Revesz v The Commonwealth (1951) 51 SR (NSW) 63 applied).
8. Neither the CAA nor Dr L acted maliciously or with the knowledge that what was done was an abuse of office Hence, there was no misfeasance of public office (Farrington v Thomson [1959] VicRp 49; [1959] VR 286 applied).

Obiter: No jurisdiction was conferred on the Federal Court by the Privacy Act 1988 (Cth) to award damages in respect of a breach of an obligation of confidence of the type with which Pt VIII of that Act is concerned.

Comment 1 - Jurisdiction under the Privacy Act

The two most noteworthy aspects of this decision relate to the jurisdiction of the Federal Court. Austen's claim for damages for breach of an obligation of confidence by the CAA was based on s93 of the Privacy Act, a provision found in Pt VIII of the Act. Part VIII is concerned with obligations of confidence owed by Commonwealth agencies or officers, the subject matter of which is personal information. As Burchett J pointed out, s93 is restricted by s90(1) to obligations of confidence ''in respect of a breach of which relief may be obtained (whether in the exercise of discretion or not) in legal proceedings.' Clearly in this case relief could not be obtained, for Mr Austen had waived any obligation by signing the authorisation. However, Burchett J made the obiter remark that the Federal Court would never have jurisdiction to award damages under s93. s94 provides that the ACT Supreme Court is to have jurisdiction under Pt VIII and that the jurisdiction of State and Territory courts is not to be deprived by this express conferral of jurisdiction. The Federal Court is not mentioned. His Honour said:

no jurisdiction is conferred on this court, and that the conferral of jurisdiction was deliberately limited is confirmed by a comparison with the breadth of the range of courts referred to in s96 and by the express conferral of jurisdiction upon this court for the different purposes of s98.

If the effect of this reasoning would be to require individuals wishing to bring an action under Pt VIII against a Commonwealth agency or officer in the Supreme Court of the ACT it would be clearly undesirable. However, despite Burchett J's conclusion, the Federal Court is most probably still entitled to award compensation for breach of an obligation of confidence of the type dealt with in Pt VIII. By s91 an obligation arising under the common law or in equity remains unaffected by Pt VIII and, as most recently discussed by Leo Tsaknis, damages are available for breach of such an obligation: (see ''The jurisdictional basis, elements, and remedies in the action for breach of confidence' [1993] BondLawRw 2; (1993) 5 Bond Law Review 18 at 45-47). Thus, as long as a claim attracts the jurisdiction of the Federal Court in some other way (for example by seeking an injection under s98 or relief in judicial review proceedings) damages may legitimately be awarded.

Comment 2 - Jurisdiction to determine the 'matter'

As can be seen, Burchett J decided this case under the common law and was of the opinion that the Federal Court had no jurisdiction to entertain the claims under the Privacy Act or the Public Service Act. What jurisdiction was Burchett J exercising?

The jurisdiction of the Federal Court is conferred by various Commonwealth laws enacted pursuant to s77(i) and (ii) of the Constitution. Judges of the court purporting to exercise jurisdiction that is not invested in it may be restrained by the High Court under s75(v) of the Constitution (R v Federal Court of Australia; Ex parte Western Australian National Football League (Incorp) [1979] HCA 6; (1979) 143 CLR 190). Given this, Federal Court judges are generally alert to the jurisdictional basis of their decisions. It has been said that where there is a question as to whether the court is being asked to exercise federal jurisdiction the issue ''should, if practicable, be determined summarily and without delay, not left as a question mark stamped on the proceedings for decision at some later stage' (McIntosh v National Australia Bank [1988] FCA 72; (1988) 17 FCR 482 at 484).

On the face of the judgment, no Commonwealth law appears to have given the court jurisdiction to determine the case against the CAA. Although the question is not addressed in the decision it seems that the key to the jurisdictional difficulties is to be found in the nature of the claims made, and subsequently discontinued, against Ansett. Federal Court staff advise that amongst the claims against Ansett was one for damages under the Trade Practices Act 1974 (Cth). If this is so, federal jurisdiction was attracted.

It is established that, once attracted, federal jurisdiction will not be lost because the claim which attracted it cannot be substantiated (Burgundy Royale Investments Pty Ltd v Westpac Banking Corp (1987) 18 FCR 212 at 219). So long as the other questions for determination constitute a single ''matter' in the constitutional sense the court would have ''associated' jurisdiction to determine the claims against the CAA (see s32(1) Federal Court of Australia Act 1976 and Allied Mills Pty Ltd v Trade Practices Commission (No 1) [1981] FCA 11; (1981) 55 FLR 125 at 136-140).

If issues arise from a ''common substratum of facts' they will answer the description of a single ''matter'; it is immaterial that more than two parties may be involved. The difficulty in this case is that Burchett J did not detail the basis of the claims against Ansett, so it is impossible to know whether the trade practices claim arose out of the communication between Ansett and the CAA. If the trade practices claim did not so arise the Federal Court would have neither associated nor accrued jurisdiction and it could only determine the case under the cross-vesting scheme which purports to invest it with State jurisdiction. The constitutionality of this scheme is unresolved doubting its validity see WA Psychiatric Nurses' Association v Australian Nursing Federation(1991) 30 FCR 120. If it is valid, Or 10A r5 of the Federal Court Rules is of relevance. That rule requires a party seeking to rely on cross-vested jurisdiction to alert the court and to seek urgent directions as to whether the proceedings should be transferred to a State court. Whether or not such a course should have been followed in this case is, regrettably, impossible to tell

Patrick Gunning

Next issue includes: The Herald and Weekly Times Ltd v Braun M (SC Vic); Data Protection Registrar v Griffin (High Court, UK); Inquiry re A request for access to Ministry of Social Services records (Information and Privacy Commissioner, BC, Canada); Innovations (Mail Order) Ltd v Data Protection Registrar (Data Protection Tribunal, UK).