FEDERAL COURT OF AUSTRALIA

Poyton v Retailworld Resourcing Australia Limited Partnership [2016] FCA 494

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to seek leave to appeal is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LOGAN J:

1    On Wednesday, 18 November 2015 at 10.10 am Dr Curtis Poyton received an email with the subject heading “Updating Details!”. That email read:

Hi Curtis,

I hope you are well, I came across your details on our database and was just touching base to update our files.

We have several opportunities available currently across full-time, management and multi-site, so should you know of anyone that is looking that might be suitable please feel free to put me in contact with them.

We have a fantastic referral program so should the referred person be successful in gaining employment through us we offer a $200 cash reward.

Looking forward to hearing from you.

Regards,

Melanie Young.

2    This email is Annexure CNP1 to the affidavit of Dr Poyton filed in the Federal Circuit Court on 27 January 2016 (a reference by Dr Poyton to 29 January 2016 in his application to this Court is in error but nothing turns on that).

3    On its face, the email was apparently sent from “Retailworld Resourcing” by Ms Young in her capacity as an “Account Manager” using a business domain name. According to the response pleaded by Retailworld Resourcing Australia Limited Partnership (RRA), the respondent both in this Court and in the Federal Circuit Court, “Retailworld Resourcing” is a registered trade mark used by the members of that partnership as franchisor in a franchising business which that partnership conducts. Having regard to that response and the course of proceedings in the Federal Circuit Court, it seems that that partnership’s franchisees, rather than that partnership, conduct a recruitment business. As will emerge, it proved unnecessary for that court finally to resolve at trial the correctness of that asserted position or, for that matter, whether the email in question was sent on behalf of RRA or a franchisee. Neither is it necessary so to do for the purposes of this proceeding.

4    What is clear enough is that the email was sent because Dr Poyton had in the past sought employment in the retail industry via “Retailworld Resourcing”.

5    Dr Poyton took umbrage at the direction to him of this email. By an email dated 3 December 2015, directed to another addressee at that same domain name, he made a complaint “To whom it concerns” [sic]. In that complaint he sought details of whatever personal consent or permit or exception under the Privacy Act 1988 (Cth) (the Privacy Act) and the Spam Act 2003 (Cth) (the Spam Act) that had authorised the sending to him of Ms Young’s email. He indicated that a failure to comply with his request would constitute a complaint under the Privacy Act. A Mr Don Gunther responded on behalf of RRA to this complaint by a letter dated 12 January 2016 (Annexure CNP6 to the affidavit of Dr Poyton filed on 27 January 2016. Once again, the application erroneously assigns 29 January 2016 to this affidavit). The letter is a model of politeness. Its author expresses appreciation for Dr Poyton’s complaint and advises that it was his first knowledge of Dr Poyton’s “dissatisfaction at being contacted personally re employment opportunities”. He continues, “to ensure that you do not receive contact from our business in the future, I will remove your details from our system”. Having so advised, Mr Gunther concludes by advising that RRA will not be taking the matter any further and by wishing Dr Poyton well.

6    On 27 January 2016, Dr Poyton instituted proceedings against RRA in the Federal Circuit Court. In those proceedings, he alleged that RRA had:

(a)    sent to him:

(i)    an unsolicited commercial electronic message, within the meaning of s 16 of the Spam Act, in contravention of that section; and

(ii)    a commercial electronic message, within the meaning of s 6 of the Spam Act, that did not contain a functional unsubscribe facility, within the meaning of s 18 of that Act, in contravention of that section;

(b)    collected his personal information, within the meaning of s 6 of the Privacy Act, for a purpose that was not reasonably necessary for, or directly related to, the functions or activities of RRA, in contravention of s 3.2 of Sch 1 to that Act;

(c)    used his personal information within the meaning of s 6 of the Privacy Act, for a purpose:

(i)    to which he had not consented; and

(ii)    for which he did not expect RRA would use his personal information;

in contravention of ss 6.1– 6.2 of Sch 1 to that Act; and

(d)    contravened RRA’s Privacy Policy, in contravention of ss 4, 18, 29(g) and (m) and 34 of the Competition and Consumer Act 2010 (Cth) (the Competition and Consumer Act) and thereby committed an offence under ss 151(g), (m) and 156 of that Act.

The reference in the originating application to “ss 4, 18, 29(g) and (m) and 34 of the Competition and Consumer Act 2010 (Cth)” should be understood as a reference not to the main body of that Act, but rather to the Australian Consumer Law, which comprises Sch 2 to that Act. Dr Poyton sought the following relief:

(1)    An order declaring that RRA had contravened the Competition and Consumer Act, the Privacy Act and the Spam Act.

(2)    An order requiring RRA to pay to him damages by way of compensation for the non-economic damage suffered because of the conduct of RRA.

(3)    An order requiring RRA to provide him an apology.

(4)    An order that RRA pay his costs in the proceedings.

(5)    Any other order that the Court considered appropriate.

7    In response, RRA, as indicated above, raised an issue as to whether it was the correct respondent. That aside, it denied each and every of the alleged contraventions. It also brought an application under r 13.10 of the Federal Circuit Court Rules 2001 (Cth) (the Federal Circuit Court Rules) seeking the dismissal of the proceeding on the basis that Dr Poyton had no reasonable prospect of prosecuting the proceeding or alternatively that the proceeding was an abuse of process.

8    RRA’s interlocutory application was heard by the Federal Circuit Court (Vasta FCJ) on 18 April 2016. For reasons which his Honour delivered ex tempore that day, his Honour ordered:

(1)    That pursuant to r 13.10(a) of the Federal Circuit Court Rules 2001, the Application in a Case filed 29 March 2016 be dismissed and the Application filed 27 January 2016 be summarily dismissed.

(2)    That The Applicant pay the Respondent’s costs of and incidental to these proceedings:

(a)    From 27 January 2016 to 7 March 2016 on a standard basis; and

(b)    From 8 March 2016 to today on an indemnity basis.

9    His Honour concluded that neither the Privacy Act nor the Spam Act conferred on Dr Poyton a cause of action which permitted him to institute the proceedings. As his Honour’s reasons for judgment recite, it transpired in the course of his hearing the interlocutory application that Dr Poyton’s grievance in relation to the Competition and Consumer Act related not to the sending of Ms Young’s email but rather to an alleged breach of RRA’s published privacy policy constituted by an alleged failure to comply with a representation in that policy as to future action. His Honour concluded that Dr Poyton had no reasonable prospect of succeeding and therefore that dismissal under r 13.10(a) of the Federal Circuit Court Rules was appropriate. His Honour’s choice as to 7 March 2016 as the point of differentiation in respect of the basis for taxation of costs coincides with the period up to and including the first directions hearing in that court and thereafter.

10    Rule 13.10(a) of the Federal Circuit Court Rules gives expression to the basis specified in s 17A(1)(a) of the Federal Circuit Court of Australia Act 1999 (Cth) (the Federal Circuit Court of Australia Act) upon which the Federal Circuit Court is empowered to grant summary judgment. By s 24(1D)(ca) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court of Australia Act), such a judgment is taken to be an interlocutory judgment. Accordingly, an appeal against it lies only by leave: s 24(1A) of the Federal Court of Australia Act.

11    The effect of this is that, procedurally, any application for a grant of leave to appeal ought to have been filed by Dr Poyton within 14 days of the date when the Federal Circuit Court orders were pronounced: r 35.13(a) of the Federal Court Rules 2011 (Cth) (the Federal Court Rules). And those orders were pronounced orally immediately following but on the same day on which the ex tempore reasons for judgment were delivered. Dr Poyton did not file his leave to appeal application until 25 May 2016. There is a discretion to grant an extension of time within which to seek leave to appeal: r 35.13(a) of the Federal Court Rules. Recognising this, Dr Poyton sought such an extension in conjunction with his application for leave to appeal.

12    Though pronounced orally, the order of the Federal Circuit Court took time to be perfected in writing. In this lies an explanation for Dr Poyton’s delay in filing his application for leave to appeal.

13    Recognising that the delay was relatively short and that there was an explanation which might well explain why the leave application was not filed in time, the solicitors for RRA did not resist a grant of leave and related extension of time on this basis. Instead, they submitted that Dr Poyton’s application ought to be refused on the basis that the proposed appeal did not enjoy a sufficient prospect of success to warrant a grant of leave. With respect, that is an apt way to approach dealing with Dr Poyton’s application. In the circumstances, if the case were one in which I was otherwise disposed to grant leave to appeal, I should readily grant the requisite extension of time.

14    The principles which attend whether or not to grant leave to appeal are not in doubt. Those principles may be summarised as whether the judgment below is attended with sufficient doubt to warrant it being reconsidered by the Court in the exercise of appellate jurisdiction and whether substantial injustice would result if leave were refused, supposing the judgment below to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399

15    Dr Poyton appeared on his own behalf on the hearing of the leave application, albeit at his request and with my permission, with the assistance of a “McKenzie’s friend” (q.v. McKenzie v McKenzie [1971] P 33) at the Bar table. To my direct observation, the gentleman who undertook that role offered assistance to Dr Poyton and thus to the administration of justice in the hearing of the application.

16    The proposed grounds of appeal are prolix. They are:

1.    There exists a reasonable apprehension of bias in relation to the Trial Judge’s conducting of the hearing by reason of pre-judgment and other conduct towards the Applicant.

2.    The Trial Judge did err in law by failing to conduct a hearing appropriate to the circumstances as the Applicant held the legitimate expectation that the Respondent be required to discharge its burden of proof to demonstrate that the proceeding brought by the Applicant had no reasonable prospect of success as a matter of law.

3.    The Trial Judge did err in law by finding that the relief sought by the Applicant in relation to the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth) could not be granted by the Court.

4.    The Trial Judge did err in law by finding that the email sworn as CNP1 to the affidavit of Curtis Nicholas Poyton dated 29 January 2016 did not constitute a commercial electronic message, within the meaning of the Spam Act 2003 (Cth) s 6.

5.    The Trial Judge did err in law by finding that the letter sworn as CNP6 to the affidavit of Curtis Nicholas Poyton dated 29 January 2016 was not sent by the Respondent.

6.    The Trial Judge did err in law by finding that the Respondent did not collect the personal information of the Applicant, within the meaning of the Privacy Act 1988 (Cth) s 6, for a purpose that was not reasonably necessary for, or directly related to, the functions or activities of the Respondent, in contravention of the Privacy Act 1988 (Cth) Sch 1 s 3.2.

7.    The Trial Judge did err in law by finding that the Respondent did not use the personal information of the Applicant, within the meaning of the Privacy Act 1988 (Cth) s 6, for a purpose:

(a)    to which the Applicant had not consented; and

(b)    for which the Applicant did not expect the Respondent would use personal information of the Applicant, within the meaning of the Privacy Act 1988 (Cth) s 6;

17    Dr Poyton has no prospect of success in respect of proposed appeal Grounds 1 and 2. These grounds are inter-related. Within the limits of its assigned jurisdiction, the Federal Circuit Court exercises the judicial power of the Commonwealth. It is axiomatic that the exercise of this power by any judicial officer must be attended with procedural fairness to the parties to the proceeding in question. Procedural fairness includes conducting a hearing in a way which does not give rise to a reasonable apprehension of bias. As to this, the relevant test in Australia is whether a fair-minded lay observer might reasonably apprehend that the judge had not brought an impartial and unprejudiced mind to the resolution of the question the judge was required to decide: Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at 437, [31] per Gummow ACJ, Hayne, Crennan and Bell JJ (Michael Wilson & Partners v Nicholls) and also the earlier authorities cited by their Honours at footnote 5. The test is an objective one. To conclude that the hearing was conducted in a way which gives rise to a reasonable apprehension of bias just because one side lost would be to succumb to a “fallacious argument”: Michael Wilson & Partners v Nicholls, at 446, [67] per Gummow ACJ, Hayne, Crennan and Bell JJ.

18    The evidence led by Dr Poyton on the present application included not just the transcript of the proceedings before Judge Vasta on 18 April 2016 but also of earlier interlocutory stages of the proceedings. I have perused the whole of these transcripts. Taken as a whole, they disclose a solicitous concern by his Honour both to understand the nature of Dr Poyton’s grievance and also to focus him on the issues which arose for determination. Dr Poyton alleged that his Honour had given RRA’s representative a more sympathetic reception and hearing. But the transcripts disclose that RRA’s representative was, as is to be expected from a legal practitioner, focused on the issues to hand and gave his Honour the assistance he was entitled to expect in outlining, fairly, those issues. Applying the relevant test, there is no arguable case for a reasonable apprehension of bias disclosed.

19    For completeness, because it did feature in the case for apprehended bias Dr Poyton sought to make, I should mention that one source of his complaint was that, at the hearing on 18 April 2016, Judge Vasta had, deliberately, elected not to address the applicant by the honorific, “Doctor”, instead using the honorific, “Mister”. My perusal of the transcripts included reading the exchange on this subject between his Honour and Dr Poyton. Dr Poyton has attained the degree of Doctor of Philosophy (in the subject area of pharmacology, so he informed me on the hearing of the present application). He appraised his Honour of this in explaining why he used the title, “Doctor”. In response, his Honour observed that, in court, he only addressed medical practitioners by that title and all others as “Mister”.

20    Though his Honour did not say so in so many words, I suspect, strongly, for his Honour had a lengthy career as a barrister prior to his appointment to judicial office, that he had in mind the longstanding rule of etiquette, observed by both Bench and Bar in the United Kingdom, Australia and elsewhere in the Commonwealth of Nations, that the honorific, Mr” (or “Mrs”, “Ms”, or “Miss”, as the case may be) is used for all advocates in court, irrespective of date of last call to the Bar and even where the advocate concerned has completed doctoral studies. In my experience, there are two exceptions to this rule. One, now no longer encountered in Australia, is where the advocate concerned has been honoured by the Sovereign with a knighthood, for example, Sir Maurice Byers or, locally in Queensland, Sir James Killen and Sir Arnold Bennett, in which case the advocate would be addressed as “Sir Maurice”, “Sir James” or “Sir Arnold”. Another is where the advocate has an earned doctorate in laws (Ll D), not a Ph D or equivalent, in recognition of the rare and singular distinction and learning entailed in qualifying for the conferral of that degree by a reputable university. An example of this usage is to be found in the reference by Sir Isaac Isaacs when Chief Justice to H V Evatt KC (as he then was) as “Dr Evatt” in his judgment in Munday v Gill (1930) 44 CLR 38 at 48. Dr Evatt KC had such an earned doctorate. The rationale for the rule of etiquette is that, admission to the Bar confers equality of standing, subject to any later appointment as Queen’s or Senior Counsel. For that same reason, it is traditionally considered inappropriate for barristers to display any framed academic degree certificates in chambers.

21    The legal profession apart, the honorific, “Dr” is afforded, as a matter of custom and courtesy, to medical practitioners and also now to dental surgeons and veterinarians, even if they have not attained any doctorate, although male surgeons traditionally use the honorific, “Mr”: Style Guide, Australian Government Publishing Service (2002), p 517. The honorific, “Dr” is also correctly afforded to all persons who have attained a doctoral degree: Style Guide, p 517. As to the latter, in my experience, sometimes, so as to distinguish such persons from medical practitioners, the particular academic attainment is added as a suffix, e.g. Dr J Smith Ph D.

22    Dr Poyton is not a member of the Bar. He was appearing on his own behalf in the Federal Circuit Court. He was entitled to be addressed as “Dr” when so appearing, there and elsewhere.

23    This digression into matters of etiquette may strike some as pedantic, perhaps even quaint, but the issue was raised by Dr Poyton, who is, to my direct observation, a serious-minded young man of obvious high intelligence and sensitivity. (The latter, to his misfortune, heightened by a medical condition it is unnecessary to detail). Moreover, his perception of an error in this regard was not, for the reasons given, misplaced. I have expressly taken this error into account in reaching my conclusion that he has no reasonable prospect of success in establishing on appeal an apprehended bias ground.

24    The granting of summary judgment under s 17A of the Federal Circuit Court of Australia Act, as with like relief under its analogue, s 31A of the Federal Circuit Court of Australia Act is always to be approached with caution, for it shuts out a party from a trial on the merits. Referring in Spencer v Commonwealth of Australia (2010) 241 CLR 118 to the provision applicable to such applications in this Court, French CJ and Gummow J stated, at 132, [25]:

Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

On the application made by RRA, the learned primary judge was required to make such a practical judgment of this kind in relation to the proceeding instituted by Dr Poyton.

25    In seeking leave to appeal against that judgment, Dr Poyton commenced his careful and concise oral submissions by referring to s 10(1) of the Federal Circuit Court of Australia Act and, via, that sub-section, to s 15C of the Acts Interpretation Act 1901 (Cth) (the Acts Interpretation Act). This was an appropriate starting point. Those provisions respectively state:

10    Original jurisdiction--general

(1)    The Federal Circuit Court of Australia has such original jurisdiction as is vested in it by laws made by the Parliament:

(a)    by express provision; or

(b)    by the application of section 15C of the Acts Interpretation Act 1901 to a provision that, whether expressly or by implication, authorises a civil proceeding to be instituted in the Federal Circuit Court of Australia in relation to a matter.

15C    Jurisdiction of courts

Where a provision of an Act, whether expressly or by implication, authorizes a civil or criminal proceeding to be instituted in a particular court in relation to a matter:

(a)    that provision shall be deemed to vest that court with jurisdiction in that matter;

(b)    the jurisdiction so vested is not limited by any limits to which any other jurisdiction of the court may be subject; and

(c)    in the case of a court of a Territory, that provision shall be construed as providing that the jurisdiction is vested so far only as the Constitution permits.

26    Dr Poyton also appropriately referred, in relation to jurisdiction, to s 18 of the Federal Circuit Court of Australia Act, viz:

18    Jurisdiction in associated matters

To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit Court of Australia in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit Court of Australia is invoked.

27    As Dr Poyton correctly conceded, neither the Privacy Act nor the Spam Act expressly confer jurisdiction on an individual to commence proceedings in the Federal Circuit Court seeking damages, declaratory and other relief in respect of a contravention of those Acts. The Competition and Consumer Act does confer jurisdiction on the Federal Circuit Court in relation to any matter arising under the Australian Consumer Law: s 138A of the Competition and Consumer Act. Though no sum is assigned in the originating application to the compensation sought by Dr Poyton, it is apparent from the transcript of the hearing of the summary judgment application before the Federal Circuit Court (which was in evidence before me) that the amount that Dr Poyton had in mind, to the extent he was disposed to seek monetary compensation at all, was very modest indeed.

28    Section 138A of the Competition and Consumer Act is therefore an example of what, for the purposes of s 10(1)(a) of the Federal Circuit Court of Australia Act, is an express provision which confers jurisdiction on the Federal Circuit Court.

29    The learned primary judge observed (reasons for judgment at [9]) that, because Dr Poyton’s grievance in relation to the Australian Consumer Law resulted from the way and manner in which his later complaint had been dealt with, rather than from the original email itself, that was not a matter for the Federal Circuit Court. Yet, for the reasons just given, that court did have jurisdiction to entertain a claim for damages for alleged contraventions of the Australian Consumer Law. To that extent, I respectfully disagree with his Honour’s observation. Even so, none of the proposed grounds of appeal directly raise an error in denying the existence of a jurisdiction under the Competition and Consumer Act.

30    That said, insofar as the proposed grounds of appeal refer to the Privacy Act and to the Spam Act, one basis upon which Dr Poyton submitted that there existed jurisdiction to entertain claims under those Acts was that they were, for the purposes of s 18 of the Federal Circuit Court of Australia Act, associated with the matters under the Australian Consumer Law.

31    Assuming that the invocation of the Federal Circuit Court’s jurisdiction to entertain a claim in respect of the nominated provisions of the Australian Consumer Law was not colourable and that either or each the Privacy Act and the Spam Act admitted of a cause of action in respect of any of the relief claimed by Dr Poyton, it is not impossible that, via the operation of s 18 of the Federal Circuit Court of Australia Act, that court might have jurisdiction if all of the asserted causes of action arose out of the same “matter”. With respect, an apposite explanation of the position was offered by this Court’s present Chief Justice, Allsop CJ, writing extra-judicially and with respect to s 32 of the Federal Court of Australia Act, the analogue of s 18 of the Federal Circuit Court of Australia Act, in an article in the Australian Bar Review: J L B Allsop, “Federal jurisdiction and the jurisdiction of the Federal Court of Australia in 2002” (2002) 23 Australian Bar Review 29. In that article, at 48, his Honour opined:

[I]f there is conferral by Commonwealth statute X of some federal jurisdiction, and jurisdiction under topic Y could be conferred on the Federal Court (by reference to ss 75 and 76 of the Constitution) but has not been so conferred and it is associated with the matter conferred by statute X, s 32 confers jurisdiction on the court in respect of topic Y for the disposition [of] this controversy.

32    A “matter” is a justiciable controversy between the parties to it and comprised of the facts and claims representing the controversy between them: Fencott v Muller (1983) 152 CLR 570 at 608 (Fencott v Muller). As to the metes and bounds of such a controversy, it was stated in that case (at 608):

What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out.

Jurisdiction via the associated matter provision depends on the joinder of a non-severable and non-colourable federal matter itself within jurisdiction with a matter associated with that federal matter: see, in the High Court, Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Fencott v Muller; and Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 and, in this Court, Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563 at 564 - 565; New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 59 FCR 369 at 382 - 383; and Buck v Comcare (1996) 66 FCR 359 at 370 - 371.

33    A federal matter will only be colourable if, in effect, it is an abuse of process. Whether an associated matter is severable is a matter of practical judgment: Fencott v Muller, at 610. In this latter regard, practical judgment is not to be equated with discretion: Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 584 – 585.

34    In my view, Dr Poyton’s invocation of the jurisdiction conferred on the Federal Circuit Court by the Competition and Consumer Act was “colourable” in the sense just described. RRA’s Privacy Policy, which incorporates a Grievance Policy for the resolution of privacy complaints, was in evidence before the Federal Circuit Court at the time when that court heard and determined the summary judgment application (Annexure CNP 7 to Dr Poyton’s affidavit filed in the that court with his originating consumer protection application on 27 January 2016). Assuming in Dr Poyton’s favour that this policy constituted a standing representation as to how, in the future, it would deal with a privacy complaint, if made, no evidence was adduced before the court below by him which in any way raised a triable issue that he had ever sought to invoke that grievance policy after his receipt of the email of 18 November 2015, much less that there was anything misleading or deceptive about the policy. Dr Poyton could hardly be aggrieved by a representation in a policy he had not sought to invoke.

35    Section 4 of the Australian Consumer Law provides:

4    Misleading representations with respect to future matters

(1)    If:

(a)    a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act); and

(b)    the person does not have reasonable grounds for making the representation;

the representation is taken, for the purposes of this Schedule, to be misleading.

(2)    For the purposes of applying subsection (1) in relation to a proceeding concerning a representation made with respect to a future matter by:

(a)    a party to the proceeding; or

(b)    any other person;

the party or other person is taken not to have had reasonable grounds for making the representation, unless evidence is adduced to the contrary.

(3)    To avoid doubt, subsection (2) does not:

(a)    have the effect that, merely because such evidence to the contrary is adduced, the person who made the representation is taken to have had reasonable grounds for making the representation; or

(b)    have the effect of placing on any person an onus of proving that the person who made the representation had reasonable grounds for making the representation.

(4)    Subsection (1) does not limit by implication the meaning of a reference in this Schedule to:

(a)    a misleading representation; or

(b)    a representation that is misleading in a material particular; or

(c)    conduct that is misleading or is likely or liable to mislead;

and, in particular, does not imply that a representation that a person makes with respect to any future matter is not misleading merely because the person has reasonable grounds for making the representation.

Also in evidence before the Federal Circuit Court at the time when the summary judgment application was heard was an affidavit made by one Trish Mclean in RRA’s interest in which she affirmed that the document which comprised Annexure CNP 7 was indeed RRA’s current privacy and grievance policy. Necessarily, that affirmed that RRA’s policy position in November and December 2015 and January 2016, remained in place. In effect, she affirmed that RRA still would, as a matter of policy, deal with a complaint made according to the terms of that policy. There was nothing adduced to contradict this. In effect, RRA demonstrated a continuum of a policy position in relation to its privacy and grievance policy and, as a matter of necessary inference from that continuum, a disposition from November 2015 onwards to adhere to that privacy and grievance policy. In that disposition lie reasonable grounds for making any representations in the policy as to how in the future, grievances would be dealt with. For the reasons given in this and the preceding paragraph, the assertion of causes of action under the Competition and Consumer Act was an abuse of process.

36    Further, as to the claims which Dr Poyton made in respect of causes of action allegedly arising under the Privacy Act and the Spam Act, these were, in my view, severable from the claim he made under the Competition and Consumer Act. The Privacy Act and Spam Act claims arose before the controversy which gave rise to the Competition and Consumer Act claim. Whether or not the email of 18 November 2015 violated the Privacy Act either at all or, if so, in a way which gave rise to any cause of action was a separate controversy to whether RRA’s Privacy Policy contained a representation as to a future position which was misleading.

37    The Spam Act does not separately confer by express provision any jurisdiction on the Federal Circuit Court to entertain a claim for damages and declaratory relief based on a contravention of a provision of that Act. By s 55A of the Privacy Act, that court and this Court have a concurrent jurisdiction to entertain an application for the enforcement of a determination of the Information Commissioner. One person who has standing to bring such an application is that commissioner, another is a person who has made a complaint to that commissioner and then received the benefit of a determination in response to that complaint. Dr Poyton is not such a person.

38    Dr Poyton recognised this absence of express provision; hence his reference to s 10(1)(b) of the Federal Circuit Court of Australia Act and s 15C of the Acts Interpretation Act.

39    In that reliance, it is incumbent on him to demonstrate not only that these statutes confer a correlative private right to institute proceedings for their breach but also that, by implication, such proceedings may be instituted in the Federal Circuit Court.

40    Whether a statute confers such a private right is a matter of construction. In O’Connor v S P Bray Ltd (1937) 56 CLR 464 at 478 (O’Connor), Dixon J stated:

In the absence of a contrary legislative intention, a duty imposed by statute to take measures for the safety of others seems to be regarded as involving a correlative private right, although the sanction is penal, because it protects an interest recognised by the general principles of the common law.

41    Later in time but to no different effect to this statement in O’Connor is the following observation made by Kitto J in Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 404:

In the case of an enactment ... prescribing conduct to be observed by described persons in the interests of others who, whether described or not, are indicated by the nature of a peril against which the prescribed conduct is calculated to protect them, the prima facie inference is generally considered to be that every person whose individual interests are thus protected is intended to have a personal right to due observance of the conduct, and consequently a personal right to sue for damages if he be injured by a contravention.

His Honour added, at 405:

[T]he question whether a contravention of a statutory requirement of the kind in question here is actionable at the suit of a person injured thereby is one of statutory interpretation. The intention that such a private right shall exist is not, as some observations made in the Supreme Court in this case may be thought to suggest, conjured up by judges to give effect to their own ideas of policy and then ‘imputed’ to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation.

42    Adopting this approach, the Privacy Act does not confer an unqualified private right on an individual to institute proceedings in respect of an interference with that individual’s privacy. I have already highlighted the qualification present in s 55A of the Privacy Act. It would be inconsistent with the presence of that qualification to hold that Dr Poyton enjoys an unqualified private right to institute proceedings in respect of the interferences which he asserts.

43    As to the Spam Act, by s 26 a right is conferred on the Australian Communications Management Authority (ACMA) to institute civil penalty proceedings in this Court in respect of the contravention of a civil penalty provision in that Act. In such a proceeding, this Court is, by s 28 of that Act, empowered to order the contravener (termed “the perpetrator”) to pay compensation if the Court is satisfied that another person (termed, “the victim”) has suffered loss or damage as a result of any such contravention. Standing is separately conferred on ACMA and no other by s 32 of the Spam Act to seek injunctive relief in this Court where a person has engaged, is engaging or is proposing to engage, in any conduct in contravention of a civil penalty provision. It is also only ACMA which, by s 39 of the Spam Act has standing to seek relief in this Court against a person in respect of the breach by a person of an enforceable undertaking given by that person.

44    The presence in the Spam Act of this regime whereby standing is expressly confined to ACMA, including in respect of the making of compensatory orders in respect of a contravention of the Act, tells against a legislative intention that any individual enjoys a private right to institute proceedings for damages and other relief in respect of a contravention of that Act.

45    The express conferral of jurisdiction on this Court by the Spam Act in respect of the proceedings mentioned tells against there being any implication that the Federal Circuit Court enjoys any jurisdiction under the Spam Act (save, of course, to the presently immaterial circumstance of a transfer order made by this Court to the Federal Circuit Court under s 32AB of the Federal Court of Australia Act).

46    Even if, contrary to the views just expressed, either the Privacy Act or the Spam Act conferred any or any unqualified private right of action in respect of a breach of its terms on Dr Poyton, it does not follow that such a conferral would carry with it by implication a conferral of jurisdiction on the Federal Circuit Court. The absence of any reference at all to the Federal Circuit Court in the Spam Act tells against such a conclusion in respect of any claim based on a contravention of that Act. So, too, does the limited jurisdiction conferred on that court by express provision by the Privacy Act tell against there being any wider jurisdiction conferred by implication.

47    By s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (the Judiciary Act) and subject to exceptions unnecessary to detail, this Court has original jurisdiction in any matter, “arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter”. Were there any unqualified private right to institute a proceeding for damages and ancillary relief based on a contravention of either the Privacy Act or the Spam Act (and for the reasons given thence is not), this Court would, by virtue of this provision, have jurisdiction to entertain the proceeding. There is no such broad conferral of original federal civil jurisdiction on the Federal Circuit Court. Further, though their position has been much eroded by the Constitution of the Commonwealth and federal laws made thereunder, it remains the case that the Supreme Courts of the several States are, subject to such erosion, superior courts of general jurisdiction. If such an unqualified private right existed, they, too, would have jurisdiction to entertain such a proceeding via s 39(2) of the Judiciary Act.

48    For these reasons, I conclude that the learned primary judge incontestably correctly concluded that neither the Privacy Act nor the Spam Act conferred any of the asserted causes of action on Dr Poyton. Further, even if there were such a cause of action, the Federal Circuit Court did not, for the reasons given, have any jurisdiction to entertain it. His Honour was also correct in concluding that a mere breach (if there were one) of RRA’s Privacy Policy, was not actionable.

49    It necessarily follows that proposed appeal Ground 3 has no prospect of success.

50    To reach these conclusions, it is unnecessary to determine the propositions which Dr Poyton posits in proposed appeal Grounds 4, 5, 6 and 7. Instead, as did the learned primary judge, I assume them in his favour. So doing cannot alter the conclusions that there is neither a cause of action nor jurisdiction in the Federal Circuit Court.

51    For these reasons, the granting of an extension of time within which to seek leave to appeal would be futile. The application is dismissed.

Associate:

Dated:    8 July 2016