Guide to the handling of complaints
under the Privacy and Data Protection Act 2014 by the Victorian Civil and Administrative Tribunal (VCAT)

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If the Victorian Information Commissioner (‘the Commissioner’) decides that: 

  • • a complaint should be declined under section 62(1) of the Privacy and Data Protection Act;
  • • conciliation is not possible or is otherwise inappropriate; or
  • • conciliation has been attempted, but has failed to result in an agreement

the complainant (person making the complaint) and respondent (organisation that is the subject of the complaint) will be given notice of that decision in writing.

A complainant has the right to require the Commissioner to refer his or her complaint to the Victorian Civil and Administrative Tribunal (VCAT) for a determination. This right must be exercised within 60 days of the complainant receiving notice of the Commissioner’s decision.

What is VCAT?
  • VCAT combines a number of tribunals to form one body to hear and decide disputes about a range of issues including information privacy. VCAT is independent of the Office of Victorian Information Commissioner (‘OVIC’). A President who is a Supreme Court judge heads VCAT.

    Information privacy complaints are heard in a section of VCAT referred to as the ‘Human Rights List’. A VCAT member who is legally qualified hears privacy complaints. 

Who are the parties to a complaint before VCAT?

  • The complainant and respondent are the parties to the complaint. The Commissioner may be a party if VCAT decides to join the Commissioner, or the Commissioner seeks to be joined. 

What is the procedure for hearing complaints in VCAT?
  • Following a complainant’s written request to the Commissioner for his or her complaint to be referred, the Commissioner will send to VCAT a copy of the original complaint form or written letter of complaint, together with any particulars of the complaint prepared by the Commissioner’s staff.

    VCAT will open a case file for the complaint. VCAT will also give notice to the parties of a ‘directions hearing’. This is not the full hearing for the complaint. It is a short hearing at which matters such as 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, will be discussed.

    The member will fix a date and time for the full hearing. Parties may also be asked whether they believe mediation at VCAT may resolve the complaint. If a party needs to travel from interstate or a rural area, VCAT can arrange for the directions hearing to proceed by way of teleconference (a telephone link---up between VCAT and that party). 

What can VCAT do?

Mediation

Where appropriate, VCAT can arrange mediation for the parties to help resolve privacy concerns. A VCAT member conducts mediation. There is no charge. If mediation fails, the member who conducts the mediation will not hear the complaint.

 

Hearings

While hearings at VCAT are less formal than a traditional court setting 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.

It is possible for parties to put their case directly to VCAT themselves without legal representation.

After the hearing, VCAT will make a decision. Possible outcomes of the hearing include:

  • • dismissal of all or part of the complaint;
  • • uphold the complaint but take no further action;
  • • order the respondent to stop or not repeat the acts complained of;
  • • order the respondent to take some action that will redress any loss or damage suffered by the complainant; and
  • • order the respondent to pay the complainant compensation of up to $100,000 for loss or damage suffered by the complainant.

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

Are there any costs involved?

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.

Further information

Victorian Civil and Administrative Tribunal
55 King Street
Melbourne VIC 3000
Telephone: 1300 01 8228 (1300 01 VCAT)
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Website: www.vcat.vic.gov.au
VCAT’s office hours are 9:00 am – 4:30 pm weekdays.

 

Office of the Victorian Information Commissioner
PO Box 24014
Melbourne Victoria 3001
Telephone: 1300 666 444 (local call)
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Web: www.cpdp.vic.gov.au 

 

 

Publication date: Oct 2017

Please note that the contents of this information sheet are for general information purposes only, and should not be relied upon as legal advice. OVIC/Privacy and Data Protection does not guarantee or accept legal liability whatsoever arising from, or connected to the accuracy and reliability of the contents of this document. We encourage your organisation to obtain independent legal advice as necessary.