Commentary
- This decision illustrates that VCAT can only award an interim injunction under s 77 of the Privacy and Data Protection Act 2014 (Vic.) (PDP Act) Act before a privacy complaint is referred to VCAT and not after.
- Where a privacy complaint has already been referred to VCAT, VCAT can still award interim injunctions, but this is based on its powers under s 123 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic.) (VCAT Act) which has three elements:
- there is a serious question to be tried;
- damages will not be an adequate remedy; and
- the balance of convenience favours granting the injunction.
Facts and decision
- All schools referred to in this case note were operated by the Department of Education (Department).
- In 2022, HCF was expelled from a secondary school (first school) and enrolled at a new secondary school (second school).
- In 2023, HCF made a complaint to the Office of the Victorian Information Commissioner (OVIC) alleging that the Vice Principal of the first school disclosed information about their expulsion to the Principal of the second school in contravention of IPP 2.1.
- OVIC referred HCF’s complaint to VCAT. After this time, HCF attempted to enrol in a third school but was rejected as the third school was at capacity.
- Whilst waiting for a hearing at VCAT, HCF sought an interim injunction to compel the Department to enrol HCF at the third school.
Interim injunction
Submissions
- HCF contended that an interim injunction should be granted under either s 123 of the VCAT Act or s 72 of the PDP Act because:
- they were subject to severe bullying and exclusion at the second school as a result of the alleged unauthorised disclosure; and
- facilitating their enrolment at the third school was a reasonable action to mitigate the ongoing harm caused by the alleged breach.
- The Department contended that an interim injunction should not be granted because:
- there was no fair probability of HCF being able to succeed in establishing a contravention of IPP 2.1;
- there was no causal link between the alleged breach and the loss HCF claimed to have suffered; and
- it was not just and convenient to order an interim injunction because the third school was at capacity and the decision to reject HCF’s enrolment was based upon processes set out in the Education Training and Reform Act 2006 (Vic.) (ETR Act).
Decision
- VCAT rejected granting an interim injunction for several reasons:
- VCAT was not satisfied that it had the power to make an interim injunction after a privacy complaint was referred to VCAT under the PDP Act. S 72 of the PDP Act granted VCAT the power to order interim injunctions at any time before a complaint was referred to VCAT, and not after. In this case, HCF was seeking an interim injunction after their privacy complaint had been referred to VCAT by OVIC and not prior.
- VCAT was not satisfied that granting an interim injunction under s 123 of the VCAT Act was appropriate because:
- Causation – it was unlikely that HCF would be able to demonstrate that the loss or damage they were suffering (bullying and exclusion) was as a result of the alleged unauthorised disclosure.
- Unjust and not convenient – the Department did not have the capacity to enrol HCF in accordance with regulatory criteria set out under the ETR Act.