Step 4: After OVIC – Litigating at VCAT

Key points

• If OVIC does not resolve your complaint through conciliation, you have a right to request OVIC to refer the complaint to the Victorian Civil and Administrative Tribunal (VCAT);
• VCAT cases can take a long time to reach the stage of final decision;
• It will be up to you to prove your case –you will need to be actively involved in gathering and giving evidence, arranging witnesses, and attending hearings;
• VCAT hearings and decisions are usually public unless VCAT decides otherwise for a good reason; and
• You should consider the risks and benefits of bringing your case to VCAT and think about whether resolving your complaint at OVIC offers a better, more efficient alternative.

How do you get your complaint referred to VCAT?

If your complaint cannot be resolved by OVIC, we will give you written notice that your complaint has been finalised.

You will then have 60 days to request that we refer your complaint to VCAT.

What is VCAT?

VCAT is a Tribunal which is independent of OVIC. Each party must present their case and a legally qualified VCAT member will make a decision based on the evidence they have heard. This will usually happen after a final hearing, but there are a number of steps before a case reaches this stage (see procedure below).

VCAT cases follow a more formal approach than the conciliation process at OVIC.

They run to a timeframe set by the VCAT member and involve:

• an exchange of documents between the parties;
• calling witnesses;
• cross examination; and
• questioning by the VCAT member.

What is the procedure for hearing complaints at VCAT?

1. OVIC referral to VCAT

VCAT only hears privacy complaints that are referred to it by OVIC. If you request OVIC to refer your complaint, we will send VCAT:

• a copy of your original complaint, or the Complaint Outline that we drafted on your behalf (this may include any attachments you provided with your complaint); and
• your contact details, as well as contact details for the organisation.

You cannot bring up any new allegations during the hearing that were not included in your complaint to OVIC.

2. Directions hearing

After your complaint has been referred, VCAT will contact you and the organisation to schedule a ‘directions hearing’. This is a short hearing where the VCAT member decides how the case should be managed and how much time it will take.

The VCAT member will consider:

• what the complaint is about;
• how many witnesses may be called and how much time the parties believe they will need to present their arguments; and
• a timeline including:
  • deadlines for the parties to send documents to each other; and
  • the date of any mediation or compulsory conference.

You can find out more about directions hearings on the VCAT website.

3. Mediation or Compulsory Conference

In most cases, VCAT will require the parties to attend either a mediation or compulsory conference before a full hearing. This gives the parties an opportunity to resolve the case without proceeding with the full hearing.

Mediations

Mediations are private meetings where parties come together to discuss ways to reach an agreement with the help of a mediator. Rather than making a decision on the case, the mediator facilitates a discussion between the parties with the aim of settling the matter without a VCAT hearing. The mediator might be a VCAT member or an accredited mediator appointed by VCAT.

Compulsory Conferences

Compulsory conferences are conducted by a VCAT member and are an opportunity for both parties to confidentially discuss ways to resolve the complaint without going to a final hearing. The VCAT member does not make a decision during a conference.

If the parties do not resolve the complaint at a mediation or compulsory conference, the next step will usually be to proceed to a final hearing.

You can find out more about mediations and compulsory conferences on the VCAT website.

4. Final Hearing

At a final hearing the parties present their case, ask questions, and provide evidence.

While hearings at VCAT are less formal than a traditional court, parties should still expect to:

• call or give evidence on oath or by affirmation;
• ask questions of witnesses and be asked questions themselves;
• present their own arguments; and
• answer questions put to them by a VCAT member.

You can find more information about preparing for final hearing on the VCAT website.

How does VCAT assess whether there has been an interference with privacy?

At the final hearing, it is the complainant who bears the ‘burden of proof’. This means it will be for you to give VCAT evidence to prove that the organisation interfered with your privacy and that it caused you the harm you claim.

For example, to prove that Information Privacy Principle (IPP) 2 – the Use and Disclosure principle – has been breached, a complainant will generally need to show that the use or disclosure occurred, and that it took place in a way not permitted by IPP 2.

In terms of the ‘standard of proof’ in civil cases in Australia, the standard is ‘the balance of probabilities’. This means that VCAT must be satisfied that it is more likely that the conditions required to establish the party’s case exist.

Under section 98(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998, VCAT ‘is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures.’ In practice, this can mean that VCAT may factor in the difficulty of producing definitive proof.

What can VCAT decide?

After the final hearing, VCAT will make a decision. It will usually issue its reasons in writing.

Possible outcomes of the hearing include:

• dismissal of all or part of the complaint – if it believes there has been no interference with privacy;
• finding that there has been an interference with privacy and:
  • taking no further action;
  • ordering the respondent to stop or not repeat the acts complained about;
  • ordering the respondent to take some action that will redress any loss or damage suffered by the complainant; or
  • ordering the respondent to pay the complainant compensation for loss or damage suffered by the complainant.

Can VCAT’s decision be appealed?

If any party disagrees with the VCAT decision they may appeal questions of law to the Supreme Court of Victoria.

Who are the parties to a complaint before VCAT?

The complainant and respondent are the parties to the complaint. Once a complaint has been referred to VCAT, OVIC will usually have no further direct involvement. OVIC will not provide any advice to either party in relation to VCAT proceedings.

In limited circumstances, OVIC may become an independent party to a proceeding before VCAT. This may occur if VCAT decides to join OVIC or if OVIC seeks to be joined.

OVIC will only seek to be a party when:

• the case involves a question of law under the PDP Act;
• the proceedings may have a significant impact upon the interpretation of the PDP Act; or
• when it is otherwise in the public interest.

Even in the rare circumstances where OVIC is a party to proceedings, OVIC will act as an independent and expert participant. OVIC may make submissions on questions of law, policy, and the public interest as they relate to privacy and the PDP Act but will not advocate for or assist either party.

In some cases before VCAT where it is not a party, OVIC may monitor proceedings. This may involve OVIC receiving relevant documents from VCAT including copies of Orders and Notices of Hearings. It may also involve OVIC staff attending to observe VCAT hearings.

Are there any costs involved?

There is no application fee for bringing a privacy complaint to VCAT.

For other costs, the general rule is that each party pay their own costs of the proceedings irrespective of the result. However, in some cases, VCAT may make an order that the unsuccessful party pay some, or all, of the legal costs of the successful party.

All costs and compensation awarded to a party shall be a debt due to that party and recoverable by legal action.

Is it necessary to be legally represented?

You do not need a lawyer to bring a case at VCAT – you can present your case yourself.

However, VCAT is a legal process and parties may prefer to seek legal assistance if that is possible. It is for the parties to decide themselves if they wish to be legally represented at VCAT.

OVIC cannot provide complainants with legal advice or other help at VCAT.

Can VCAT keep a complainant’s identity private?

The principle of open justice means that most VCAT files, hearings and decisions are open to the public and media unless VCAT orders otherwise.

Most decisions are also published online and may include information that the parties provided to VCAT during the case. VCAT cases usually names the parties, including the complainant.

You can apply for confidentiality if you want VCAT to conceal your identity or to impose a closed court order or a suppression order. You will be required to provide reasons for your application and VCAT will decide whether or not it agrees to your application.

Read more information about applying for confidentiality at VCAT.