The Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth) do not
give rise to personal actions for damages flowing from a
contravention of the provisions of those Acts. What they do provide
is for an aggrieved person to lodge a complaint with a government
body that can investigate the complaints, and in some instances
seek compensation for the complainant.
This proposition was recently confirmed by Judge Vasta in the
Federal Circuit Court of Australia in Curtis Poyton v Retailworld
Resourcing Australia Partnership Limited (Case No. BRG73/2016) and
later by Justice Logan in the Federal Court of Australia in Poyton
v Retailworld Resourcing Australia Limited Partnership  FCA
That matter was a novel one. Retailworld Resourcing Australia
Partnership Limited Retailworld Resourcing) carries on business as
a franchisor of an employment recruiting chain. Dr Curtis Poyton,
despite having limited experience in working in a retail
environment applied for a number of positions in the nature of
assistant store manager. Those applications were made to one of the
franchisees within the Retailworld franchise chain Dr Poyton'
was unsuccessful with those job applications.
The franchisee emailed Dr Poyton (using the email that Poyton
had nominated on his job applications) to enquire whether or not he
knew of anyone else that was looking for jobs in the retail sector
and that the franchisee offered an incentive for successful
Dr Poyton responded by email to the franchisee alleging that it
had, by sending Dr Poyton the email, infringed the Privacy Act and
the Spam Act. The franchisee rang to speak to him about his email,
but Dr Poyton did not accept the phone calls but did take screen
shots to evidence that the franchisee had attempted to call
Dr Poyton then sent a five-page letter to the franchisee
demanding, amongst other things, $4,500 as compensation for
breaches of the Privacy Act and Spam Act. The claimed compensation
was not paid and Dr Poyton commenced proceedings in the Federal
Circuit Court of Australia, not against the franchisee but against
the franchisor, claiming damages (which seemed in the nature of a
personal injuries claim, flowing from a claimed exacerbation of a
pre-existing medical condition, namely agoraphobia).
Retailworld Resourcing engaged Broadley Rees Hogan to assist
with the proceedings. A summary disposal application was filed
shortly thereafter, and at that hearing Judge Vasta found:
Dr Poyton had commenced proceedings against the wrong party, as
the franchisee was not the agent of and could not bind Retailworld
The sending of the email to him by the franchisee did not
infringe the Privacy Act or Spam Act; and
Even if there had been a breach of those acts, the proceedings
were doomed to fail as there was no statutory cause of action
(right to sue) created in those Acts and the apposite thing would
have been for Dr Poyton to lodge a complaint with the relevant
Dr Poyton's application was disposed of summarily, Dr Poyton
then filed an application in the Federal Court of Australia seeking
an extension of time within which to appeal the decision of Judge
Vasta. Justice Logan dismissed that application and in doing so
held that that application the application for leave to appeal,
even if made in time, was always one which was without any
reasonable prospect of success at all.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
2016 was an important year for the development of class action jurisprudence in Australia. The year brought at least 25 new class action lawsuits and substantial settlements that will impact litigation moving forward.
Considering costs issues early in the process of seeking injunctive relief can facilitate more efficient recovery.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).