56EY

Actions for damages

In force

Right to bring an action for damages

(1)

A person who suffers loss or damage (within the meaning of subsection 25(1) of the Privacy Act 1988) by an act or omission:

(a)

of another person; and

(b)

that was in contravention of:

(i)

a provision of the privacy safeguards; or

(ii)

the consumer data rules to the extent that those rules relate to the privacy safeguards or to the privacy or confidentiality of CDR data;

may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.

Note:

Subsections 84(2) and (4) (about attributing conduct engaged in on behalf of a person) apply for the purposes of this section.

(2)

An action under subsection (1) may be commenced at any time within 6 years after the day on which the contravention happened or began.

Findings in related proceedings to be prima facie evidence

(3)

If a finding of any fact is made by a court in relation to a person, or an admission of any fact is made by a person, in proceedings:

(a)

under the Regulatory Powers Act (as that Act applies because of this Subdivision) in which the person is found to have contravened a provision of the privacy safeguards; or

(b)

under Part VI of this Act in which the person is found to:

(i)

have contravened; or

(ii)

have been involved in a contravention;

of the consumer data rules to the extent that those rules relate to the privacy safeguards or to the privacy or confidentiality of CDR data;

the finding or admission is prima facie evidence of that fact in any proceeding under subsection (1) against the person.

(4)

The finding or admission may be proved by production of:

(a)

in any case—a document under the seal of the court from which the finding or admission appears; or

(b)

in the case of an admission—a document from which the admission appears that is filed in the court.

Jurisdiction etc.

(5)

The following are conferred with jurisdiction to hear and determine actions under subsection (1):

(a)

the Federal Circuit and Family Court of Australia (Division 2);

(b)

subject to the Constitution, the several courts of the Territories.

This subsection does not enable an inferior court of a Territory to grant a remedy of a kind that the court is unable to grant under the law of that Territory.

Note:

State courts and the Federal Court also have jurisdiction for these actions (see subsection 39(2) and paragraph 39B(1A)(c) of the Judiciary Act 1903).

(6)

Section 86AA (about limits on jurisdiction) applies to proceedings under subsection (1) of this section in a corresponding way to the way that section applies to proceedings under section 82.

(7)

Section 86A (about transfer of matters) applies in relation to a proceeding under subsection (1) of this section as if paragraph 86A(1)(b) also referred to a matter for determination arising under:

(a)

a provision of the privacy safeguards; or

(b)

the consumer data rules to the extent that those rules relate to the privacy safeguards or to the privacy or confidentiality of CDR data.

Involved in a contravention

(8)

Subsection 75B(1) applies to a reference that:

(a)

is in this section; and

(b)

is to a person involved in a contravention covered by paragraph (1)(b) of this section;

in a corresponding way to the way that subsection 75B(1) applies to a reference in Part VI to a person involved in a contravention of section 56CD.

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