"No confidentiality established"

[Mike Love]

Hi,
I'm a mortgage broker.
Last year I emailed my industry body to complain about an issue with a bank. The response I received was weak, so I worte back to him and suggested that he take real action and we boycott the banks that are participating in dodgy practises etc.
The director of the industry body didn't like my letter, and forwarded his response and my email chain to the directors of my aggregator (the company who I hold a mortgage broking licence through) and the directors then cancelled my contract with them. (They are allowed to as per our contract)

So I sent the director of my industry body a "letter of demand" to ask for lost income for the month while I changed over to a new aggregator.
I believe that he had a "breach of confidentiality" as he forwarded our email to my aggregator without permission.

So instead of giving me the $4k I asked for, he employed his lawyer to argue that there was no confidentiality established.. See letter below..

Your Complaint against the Finance Brokers Association of Australia Limited (FBAA) We act for the FBAA and have to hand your complaint dated 7 February 2022 relating to an exchange that occurred with XXXX XXXX of FBAA in April 2021.
We understand that you have engaged a legal representative. Please provide this letter to them.
Your complaint alleges a breach of confidence. Yet, it fails to establish what information was purportedly confidential, the relationship between you and our client which would connote confidentiality, or that the information was provided in circumstances in which all contents of the communications could be presumed to be confidential. We also observe that your aggregator terminated your agreement with it for convenience and, on 28 May 2021, issued you with a separation letter which identified no misconduct. Accordingly, there was no impediment to you seeking engagement with another aggregator immediately after the expiration of your agreement with XXXXXX and the issue of that certificate. In those circumstances your demand is without merit.

A few questions:
The FBAA has a "privacy" policy on their website and state that info would not be shared etc.
How do I argue that confidentiality was expected?
Can I legally post this legal letter to social media without getting myself into trouble?
If I keep on replying to the lawyers, the other parties legal bill will increase. Can they somehow make me pay that bill?

Thanks so much for your help!

 

[Rod]

Typical stalling letter when the other side think their case is weak.

Look at your rules of membership and the Disciplinary Rules of FBAA, and see what the documents say about confidentiality. You have an arguable case but without seeing your complaint it is hard to know. Even with seeing it, the answer may lie in the 'grey area' of law.

If the loss of income is significant then it might be worth paying for some advice.

 

[Nighthelyn]

Dear Mike Love,

Adding to what Rod says,

How do I argue that confidentiality was expected?

Hard to say without looking at the whole case. It is unclear from your description if you have a case or not - what are the conditions to the privacy policy, do you have a contract or tortious relationship with them and is there any terms in such a relationship that is favorable or unfavorable to you.

Can I legally post this legal letter to social media without getting myself into trouble?

Not recommended. Probably no legal trouble, but it may hurt your claim if you lodge one, and if you omit part of your letter when you put it to the social media e.g. blackout anything private or sensitive to you the other party may have an opportunity to show the rest.

If I keep on replying to the lawyers, the other parties legal bill will increase. Can they somehow make me pay that bill?

The general principle in a dispute is cost follow the cause - in other words, whoever wins get to impose their cost to the loser to the dispute. If you put the matter as a claim in court, and you lose or you act in a way the court is unhappy with, you may be liable for part of or all of the legal cost. Discuss further with your lawyer if you find one.

Good luck!
-Nighthelyn

 

[Mike Love]

Dear Mike Love,

Adding to what Rod says,

How do I argue that confidentiality was expected?

Hard to say without looking at the whole case. It is unclear from your description if you have a case or not - what are the conditions to the privacy policy, do you have a contract or tortious relationship with them and is there any terms in such a relationship that is favorable or unfavorable to you.

Can I legally post this legal letter to social media without getting myself into trouble?

Not recommended. Probably no legal trouble, but it may hurt your claim if you lodge one, and if you omit part of your letter when you put it to the social media e.g. blackout anything private or sensitive to you the other party may have an opportunity to show the rest.

If I keep on replying to the lawyers, the other parties legal bill will increase. Can they somehow make me pay that bill?

The general principle in a dispute is cost follow the cause - in other words, whoever wins get to impose their cost to the loser to the dispute. If you put the matter as a claim in court, and you lose or you act in a way the court is unhappy with, you may be liable for part of or all of the legal cost. Discuss further with your lawyer if you find one.

Good luck!
-Nighthelyn

Thanks for the reply.
Our relationship is just that I pay $450 a year to his industry body, and he is supposed to represent me and support me! Not cause trouble for me!

I was meaning, if I just send back a heap of arguements and replies via email to their lawyers, and they keep on replying denying any liability - eventually their legal bill will be substantial. If I never actually take them to court, is there any way they can make me pay their legal bill?

 

[Nighthelyn]

Dear Mike Love,

The other side lawyer may demand you pay them, they may even send you an invoice, but if you do not pay, then they will need a court order before they can force you to pay. It is unlikely but definitely possible, and is one of the risk you need to clarify with your private solicitor before you decide if you wish to take the next steps. In any case, the usual practice at least is do not in writing or verbally admit you are liable or willing to pay.

Good luck!
-Nighthelyn

 

[Mike Love]

So I wrote back to the lawyers myself, via email, and quoted the FBAA's own privacy policy and what they will do with the information they collect etc.

And silence...

Can the lawyers just ignore me because I'm a normal person and not a solicitor?

 

[Tim W]

...is there any way they can make me pay their legal bill?

Yes.
In the normal course of events, in a civil matter, the default position is
that the loser will be required to pay the defendant's costs as their own.

 

[Mike Love]

Your email has failed to address the deficiencies we identified in our letter dated 15 February 2022.
Our client’s position remains as expressed at that time.

“Using your information
We may use your information to perform our Core Functions (outlined above) or any
activities that are related (or in the case of sensitive information, directly related) to the
performance of our Core Functions. We may do these things without your prior consent
where the law allows us to do so, including where it is impracticable for us to obtain your
consent…”

We also observe your position appears to be that our client’s privacy policy is legally binding on the parties in respect of the email in question, and such a position would have the effect that you consented to our client disclosing the email in the manner which has occurred (as such disclosure was permitted by our client’s privacy policy). Accordingly, even if you were to overcome the deficiencies identified in our letter dated 15 February 2022, your consent to the disclosure of the email by virtue of the privacy policy would be a complete defence to your alleged breach of confidence.

Our client’s reserves its rights including to tender this letter on any issue as to costs.

MY QUESTION IS:

How practicable would it be for the FBAA to pursue costs against me, when they are in QLD and I am in Victoria?

What can I do to protect myself against having to pay these bastards anything?

Thanks!

 

[Tim W]

How practicable would it be for the FBAA to pursue costs against me, when they are in QLD and I am in Victoria?

Eminently practical.

What can I do to protect myself against having to pay these bastards anything?

Either win, or settle (with a term of the settlement that you each pay your own costs)