FEDERAL COURT OF AUSTRALIA

Giddings v Australian Information Commissioner [2017] FCAFC 225

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the appeal of the Respondent.

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

REASONS FOR JUDGMENT

THE COURT:

1    The present appeal has its origins in a request for information made in October 2015 by the Appellant, Mr Toby Giddings, pursuant to the Freedom of Information Act 1982 (Cth). The request was made of the Australian Federal Police.

2    In December 2015 the Australian Federal Police determined that some documents were to be released in their entirety; some documents were to be partially released; and access to other documents was refused. In April 2016 Mr Giddings applied to the Office of the Australian Information Commissioner for review of those decisions pursuant to Part VII of the Freedom of Information Act. Further documents were released in August 2016 but access to a large number of remaining documents continued to be denied.

3    There was thereafter correspondence between Mr Giddings and persons within the Office of the Information Commissioner. In addition to seeking review, Mr Giddings was also urging upon the delegate of the Information Commissioner that the matter was private, that he did not wish for the Information Commissioner’s decision to be published and that he did not wish for his identity to be disclosed by any decision that may be made. The correspondence culminated in a communication in November 2016 whereby a delegate of the Information Commissioner notified Mr Giddings that a decision had been taken pursuant to s 54W(a)(ii) of the Freedom of Information Act not to continue to undertake the review. The delegate had decided that there had been a failure on the part of Mr Giddings to cooperate in progressing the review application.

4    Mr Giddings sought judicial review of the delegate’s decision. In June 2017 a Judge of this Court made a variety of orders including an order setting aside the delegate’s decision and remitting Mr Giddings’ application for review of the decision made by the Australian Federal Police to the Information Commissioner: Giddings v Australian Information Commissioner [2017] FCA 677.

5    Notwithstanding the order setting aside the delegate’s decision, Mr Giddings has appealed to this Court.

6    The Grounds of Appeal as set forth in the Notice of Appeal state (without alteration) as follows:

1.    Matters of law

2.    Matters of fact

3.    Unrecognised duress & costs

Annexed to the Notice of Appeal, however, is a further document introduced with the following words:

I want to appeal the judgement on multiple grounds.

There then follows 19 pages which expand upon the “multiple grounds” referred to.

7    Those Grounds of Appeal and the arguments sought to be advanced by Mr Giddings are directed to securing from this Court the following orders expressed (without alteration) in the Notice of Appeal as follows:

1.    Guidance order for the Inf. C. to take further care and precautions in decision.

2.    All costs, damages & pain & sufferment paid to applicant. Amount of $30000 restitution to be increased.

3.    Admonition for each employee that contributed to 2 (3 candidates) and office for lack of clarity & care of duty.

8    Clearly enough, the Notice of Appeal does not comply with the Federal Court Rules 2011(Cth). The Grounds of Appeal fail (inter alia) to “state … briefly but specifically, the grounds relied on in support of the appeal” as required by r 36.01(2)(c); and the Orders Sought are not orders that this Court would normally make. These criticisms directed to the manner in which the Notice of Appeal is drafted are not mere matters of form. However, although rules of Court are a necessary part of the administration of justice, adherence to those rules should not render them the master rather than the servant of the administration of justice: Fernance v Nominal Defendant (1989) 17 NSWLR 710 at 729 per Kirby P. Rules of Court “should never be allowed to be an instrument of tyranny”: Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 at 30 per Reynolds, Hutley and Bowen JJA.

9    The objective sought to be achieved by the rule of present relevance, namely r 36.01(2)(c), is self-evident. That Rule in particular serves to direct the attention of the Court and the Respondent to the appeal to alleged appellable errors said to have been committed by the primary Judge and to focus upon the issues sought to be pursued on appeal. The present Grounds of Appeal provide no real insight into the errors said to have been committed by the primary Judge and seem more directed to impermissibly seeking on appeal to re-litigate the issues otherwise canvassed and resolved at first instance.

10    Mr Giddings appeared before this Court unrepresented. The Respondent Information Commissioner appeared by Counsel.

11    At the outset of the hearing of the appeal, Mr Giddings foreshadowed that he had prepared a further 9 page document which he proposed to read to the Court to further identify his areas of complaint. Rather than requiring Mr Giddings to read out the contents of that further document, a short adjournment was granted in order to permit the photocopying of that document and for the Court and Counsel to read its content.

12    Rather than striking out the appeal for the many deficiencies in the form of the Notice of Appeal as filed, the course pursued has been to attempt to give content to Mr Giddings’ Grounds of Appeal by reference to his 19 page exposition and the further 9 page summary.

13    Although the request for access to information may have been the origins of the present dispute, that request seems to have receded in importance into the background. That which thereafter has assumed importance was the manner in which the request for review made of the Information Commissioner was progressed. Notwithstanding what Mr Giddings repeatedly submitted was – and remains – a “massively strong case”, that which has assumed present prominence was the conduct of the delegate and other employees of the Office of the Australian Information Commissioner. At the heart of Mr Giddings’ present claims is a contention that the delegate (and others) intentionally set out to cause him harm and to act contrary to law. For that conduct of the delegate (and others), Mr Giddings maintains that each should be “admonished” and “held to account”.

The Freedom of Information Act

14    Although the original request for access to information seems to have assumed the role of a backdrop to Mr Giddings present concerns, it was ultimately only two provisions of the Freedom of Information Act which assumed any prominence. It is prudent to at least note these provisions at the outset.

15    First, it was s 54W(a)(ii) which was relied upon by the delegate of the Information Commissioner to discontinue the review which Mr Giddings had sought of the decisions made by the Australian Federal Police. Section 54W in its entirety provides as follows:

Decision to review—discretion not to review

The Information Commissioner may decide not to undertake an IC review, or not to continue to undertake an IC review, if:

(a)    the Information Commissioner is satisfied of any of the following:

(i)    the IC review application is frivolous, vexatious, misconceived, lacking in substance or not made in good faith;

(ii)    the IC review applicant has failed to cooperate in progressing the IC review application, or the IC review, without reasonable excuse;

(iii)    the Information Commissioner cannot contact the IC review applicant after making reasonable attempts; or

(b)    the Information Commissioner is satisfied that the interests of the administration of this Act make it desirable that the IC reviewable decision be considered by the Tribunal; or

(c)    the IC review applicant fails to comply with a direction of the Information Commissioner.

16    Second, a provision which assumed importance to Mr Giddings’ claim that his right to privacy should be respected such that no decision published by the Information Commissioner should identify him was s 55K of the Freedom of Information Act. Section 55K(1) and (8) provide as follows:

Decision on IC review—decision of Information Commissioner

(1)    After undertaking an IC review, the Information Commissioner must make a decision in writing:

(a)    affirming the IC reviewable decision; or

(b)    varying the IC reviewable decision; or

(c)    setting aside the IC reviewable decision and making a decision in substitution for that decision.

…

Publication requirement

(8)    The Information Commissioner must publish a decision on an IC review to members of the public generally.

The request for anonymity

17    Although not expressly referred to in the Grounds of Appeal, a recurring issue in Mr Giddings’ 19 page annexure to the Notice of Appeal is the failure on the part of the Commissioner and the primary Judge to preserve his anonymity.

18    Mr Giddings has from the outset pressed a claim that there should be no publication of either his identity or information that could serve to identify him. He has relied throughout on a claimed “rights to privacy”. Mr Giddings has from the outset sought “de-identification”.

19    It is nevertheless unclear whether Mr Giddings’ present complaint is focussed upon the conduct of:

    the Information Commissioner; or

    the primary Judge.

It is the decision of the primary Judge which assumes present importance since it is the identification of Mr Giddings in the published judgment which has identified him to all that follow and read the decisions of this Court. Such publication is a publication to the world at large.

20    Before the primary Judge, Mr Giddings advanced a submission that the Commissioner had erred in respect to the extent of the power conferred by s 55K(8) and, in particular, the interpretation of the phrase “must publish a decision … to members of the public generally”. The primary Judge was correct in rejecting the submission then advanced: [2017] FCA 677 at [25].

21    But any such argument seems to have been overtaken by the fact that there has now been publication of the identity of Mr Giddings by reason of the rejection by the primary Judge of an interpolated application that the hearing be conducted in camera and a request that numerous documents in evidence be suppressed. In rejecting that request, the primary Judge “was not satisfied that the hearing of the application in open Court would be contrary to the interests of justice” and was not “satisfied that any of the grounds for the making of suppression or non-publication orders under Part VAA of [the Federal Court of Australia Act 1976 (Cth)] had been established”: [2017] FCA 677 at [19].

22    Those decisions of the primary Judge are clearly correct.

23    The primary Judge referred to s 17 of the Federal Court of Australia Act 1976 (Cth), which gives statutory force to the principle that justice must be administered publicly in open court and gives recognition of the weight of public interest which attaches to that principle: Australian Broadcasting Commission v Parish (1980) 43 FLR 129 at 132 per Bowen CJ. Indeed, an “essential characteristic of courts is that they sit in public”: Hogan v Hinch [2011] HCA 4 at [20], (2011) 243 CLR 506 at 530 per French CJ. The Chief Justice went on to further observe (at 531 to 532):

[21]    It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court’s inherent jurisdiction or an inferior court’s implied powers. That may be done where it is necessary to secure the proper administration of justice. …

[22]    It is a common law corollary of the open-court principle that, absent any restriction ordered by the court, anybody may publish a fair and accurate report of the proceedings, including the names of the parties and witnesses, and the evidence, testimonial, documentary or physical, that has been given in the proceedings.

(Footnotes omitted.)

Mr Giddings was unable to persuade the primary Judge that the Court should not sit in public and has been equally unable to persuade this Court that the primary Judge erred in the exercise of the discretion not to hold the hearing in camera: cf. House v The King (1936) 55 CLR 499 at 504 to 505 per Dixon, Evatt and McTiernan JJ.

24    The reference made by the primary Judge to Part VAA was a reference to that Part of the Federal Court of Australia Act. Within that Part, s 37AF(1) provides in relevant part as follows:

Power to make orders

(1)    The Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

(a)    information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or

…

Section 37AG provides in relevant part as follows:

Grounds for making an order

(1)    The Court may make a suppression order or non-publication order on one or more of the following grounds:

(a)    the order is necessary to prevent prejudice to the proper administration of justice;

…

25    The onus on the party seeking to persuade the court to make an order pursuant to s 37AF is a “very heavy one”: Computer Interchange Pty Ltd v Microsoft Corporation [1999] FCA 198 at [16], (1999) 88 FCR 438 at 442 per Madgwick J. So much is underscored by the term “necessary” in s 37AG(1)(a). When commenting upon the comparable provision to that now found in s 37AG, namely the now-repealed s 50 of the Federal Court of Australia Act, it has been recognised that the term “necessary” is a “strong word”: Hogan v Australian Crime Commission [2010] HCA 21 at [30], (2010) 240 CLR 651 at 664. French CJ, Gummow, Hayne, Heydon and Kiefell JJ there made the following comments in relation to s 50 (at 663 to 664):

The construction of s 50

[29]    It has been assumed, no doubt correctly, that an order made under s 50 of the Federal Court Act may be made until further order and, in any event, may be vacated if the continuation of the order no longer appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth. As a general proposition, a court remains in control of its interlocutory orders and a further order will be appropriate, for example, where new facts and circumstances appear or are discovered, which render unjust the enforcement of the existing order.

[30]    As it appears in s 50, “necessary” is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish [(1980) 43 FLR 129 at 133], that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth “suggests Parliament was not dealing with trivialities”. Further, as indicated earlier in these reasons: (a) s 50 is an example of a provision authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s 17(1); and (b) “the administration of justice” spoken of in s 50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest.

[31]    It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics.

[32]    If it appears to the Federal Court, on the one hand, to be necessary to make a particular order forbidding or restricting the publication of particular evidence or the name of a party or witness, in order to prevent either species of prejudice identified in s 50, or, on the other hand, that that necessity no longer supports the continuation of such an order, then the power of the Federal Court under s 50 is enlivened. The appearance of the requisite necessity (or supervening cessation of it) having been demonstrated, the Court is to implement its conclusion by making or vacating the order. The expression in s 50 “may … make such order” is to be understood in this sense.

[33]    It may tend to distract attention from the particular terms of s 50 to describe the Federal Court as embarking upon the exercise of a “discretion” when entertaining an application under s 50. Once the Court has reached the requisite stage of satisfaction, it would be a misreading of s 50 to treat it as empowering the Court nevertheless to refuse to make the order, or to leave in operation the now impugned order. It would, for example, be an odd construction of s 50 which supported the refusal of an order under s 50 notwithstanding that it appeared to the Court to be necessary to make an order to prevent prejudice to the security of the Commonwealth.

(Footnotes omitted.)

26    There is no error exposed in the conclusion of the primary Judge refusing to make an order suppressing the name of Mr Giddings.

27    Further, even had any error been exposed in respect to this part of the primary Judge’s reasons, a further difficulty confronts Mr Giddings. The simple fact is that his name has now been published. The utility in now seeking to undo that which has already been done is open to question. This also applies to Mr Giddings’ request for “deidentification” in the present appeal.

Delegation – and the substitution of parties

28    A further issue pursued by Mr Giddings on appeal which again is not expressly identified in the Grounds of Appeal, or for that matter in the Order sought on appeal, is the decision made by the primary Judge to substitute the statutory office holder as Respondent rather than the Respondent initially identified by Mr Giddings, namely the delegate.

29    The primary Judge expressed his reasons for making that order at the very outset of his reasons for decision as follows:

[2]    … the decision was made by a delegate of the Commissioner. The delegate was originally named personally as the respondent to the proceeding. On the application of the Commissioner, I ordered that the delegate be removed as the respondent and replaced by the Commissioner. Mr Giddings opposed this application.

[3]    It has been said that, where a decision-maker is exercising delegated power, he or she may validly exercise that power in his or her own name. The delegate could, therefore, be an appropriate respondent.

[4]    However, s 34AB(1)(c) of the Acts Interpretation Act 1901 (Cth) (“the AI Act”) provides that, where an Act confers a power on a person to delegate a function to another person, that function, “when performed or exercised by the delegate, shall, for the purposes of the Act, be deemed to have been performed or exercised by the [delegator]”. An evident effect of this provision is to prevent an unsuccessful applicant from making a fresh application to the delegator under the empowering Act. …

[5]    In the context of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”), the appropriate respondent to an application for judicial review is, prima facie, the decision-maker under the relevant enactment. As s 34AB(1)(c) of the AI Act deems, for the purposes of the enabling enactment, a decision of a delegate to be a decision of the delegator, that section provides a basis for the naming of the delegator as the respondent in this proceeding.

[6]    There otherwise appears to be no reason why the delegator (in this case the Commissioner) should not be the respondent. …

[7]    In my view, it is better that the statutory office holder be named as the respondent in such circumstances. This renders less personal the litigation. … It also facilitates the easier recognition, from the title of the case, of the general class of case to which the litigation relates. The applicant is in no way disadvantaged by this course being adopted.

(Citations omitted.)

30    There is no error exposed in these reasons or the order made by the primary Judge.

The Commissioner’s decision – s 54W

31    The Originating Application for Judicial Review sought that the Court (inter alia and without alteration):

Review the decision of the IC delegate, Rocelle Ago, that used the 54W(a)(ii) wrongly and with malfeasance to cease my IC application.

Review the conduct of the above delegate, if appropriate, in that decision and malfeasance is plausible.

Review the failure of the above delegate to read my correspondence accurately and with honesty about the nature of my legal arguments and concerns, then act in favour of the correspondence and my IC application.

The claims of “malfeasance” and the review sought of “the conduct of the … delegate” and “the failure of the … delegate to read my correspondence” may for present purposes be placed to one side.

32    If attention is focussed upon the first claim for relief and “the decision of the … delegate [to use] 54W(a)(ii)”, that claim is rather curious simply by reason of the fact that the reliance placed by the delegate upon s 54W(a)(ii) of the Freedom of Information Act was the very basis upon which Mr Giddings met with success before the primary Judge. The primary Judge thus relevantly concluded in part as follows:

[30]    This brings me to the delegate’s impugned decision. Her reasons do not explain how Mr Giddings’ objections to what might or might not appear in the Commissioner’s reasons prevented him from progressing Mr Giddings’ review application any further. All the material necessary for the making of a decision had been assembled. There was no legal reason why the Commissioner could not have proceeded to make a decision. Mr Giddings had no right of veto over what might or might not appear in the published reasons for any ultimate decision.

[31]    It is also difficult to comprehend how the delegate could have considered that s 54W(a)(ii) was engaged. This provision allows the Commissioner to discontinue an investigation if the applicant “has failed to cooperate in progressing the … review application, or the [Information Commissioner] review, without reasonable excuse”. The raising, by Mr Giddings, of objections to the contents of reasons which had yet to be provided or published constituted no impediment to the processing of his application or to the progression of the review. As already noted, there was no legal obstacle to the Commissioner proceeding to make his decision.

…

DISPOSITION

[33]    Mr Giddings did not specifically opt to seek judicial review under either or both of s 39B of the Judiciary Act 1903 (Cth) or under s 5 of the ADJR Act. He did, however, make his application on the form prescribed for use in ADJR Act applications. He would have been entitled to succeed under either or both of these provisions.

[34]    The delegate’s decision was not authorised by s 54W(a) of the [Freedom Of Information Act] or any other provision of that Act. It was based on an irrelevant consideration, namely Mr Giddings’ concerns as to the potential content of any published decision.

33    Given the decision and order of the primary Judge setting aside the delegate’s decision made pursuant to s 54W(a)(ii), the first claim for relief on appeal is misconceived. On that issue, Mr Giddings has already succeeded.

34    That nevertheless leaves for consideration the claims made in respect to “malfeasance” and the alleged “failure of the … delegate to read my correspondence accurately and with honesty”. Those claims have been construed as interrelated claims seeking damages for the manner in which the delegate discharged the functions leading to the discontinuance of the review in November 2016.

Malfeasance

35    The claim for damages or, perhaps more specifically expressed, the claim for damages for “malfeasance” also confronts a number of difficulties.

36    The reference to “malfeasance”, it may be noted, has been assumed to be a reference to misfeasance in public office. But nothing turns upon that.

37    Also left to one side at the outset is that the Originating Application as filed and as resolved by the primary Judge was a claim limited to “the decision of the IC delegate, Rocelle Ago”. That Originating Application when addressing “conduct” – as opposed to the decision made – also identified that “conduct” as “the conduct of the above delegate”. Notwithstanding that constraint, the submissions advanced by Mr Giddings on appeal also extended to a criticism of the conduct of two other persons within the Office of the Information Commissioner – namely, Mr Kirkwood and Ms Napper.

38    There remained two even more fundamental obstacles in the path to a successful claim for damages.

39    First, no general cause of action exists under which public authorities which exceed their jurisdiction are liable in damages for the consequences which they thereby occasion: Macksville & District Hospital v Mayze (1987) 10 NSWLR 708 at 724 per Kirby P. Soon thereafter, in Park Oh Ho v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 104 at 126, Morling J concluded:

The remedies to which an applicant for an order of review may be entitled are referred to in s 16(1) of the [Administrative Decisions (Judicial Review) Act 1977 (Cth)]. Those remedies do not include the making of an award of damages. It was submitted that s 16(1)(d) which gives the court power to make “an order directing any of the parties to do … any act or thing the doing … of which the Court considers necessary to do justice between the parties” is a sufficient source of power for the making of an award of damages in a case such as the present. I do not agree. If the appellants had been found to be unlawfully kept in custody at the time the proceedings came before the court, s 16(1)(d) would have authorised the making of an order directing the Minister to release them from custody. Such an order would have been necessary to do justice between the parties to the proceedings. It is justice in relation to the actual decision under review, and not in relation to common law claims which might arise out of the decision and which are not pleaded in the proceedings which is referred to in s 16(1)(d).

The award of damages has never been held to be a remedy available in proceedings brought by way of judicial review…

The decision of the Full Court was reversed on appeal: Park Oh Ho v Minister of State for Immigration and Ethnic Affairs (1989) 167 CLR 637. But that was on a basis separate from the claimed entitlement to relief in the form of damages. On this aspect of the case, Mason CJ, Deane, Toohey, Gaudron and McHugh JJ held, again in the context of considering the scope of the relief permitted by s 16(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), that (at 644 to 645):

The scope of the powers to make orders which the sub-section confers should not, in the context of that legislative purpose, be constricted by undue technicality. In particular, the phrase “any matter to which the decision relates” in s. 16(1)(c) should be construed as encompassing any matter which is so related to, in the sense of connected with, the impugned decision that it is appropriate that it be dealt with by the grant of declaratory relief in judicial proceedings for the review of the propriety of that decision. In a case such as the present where the impugned decision is a deportation order which has been found to have been null and void ab initio, the lawfulness of a period of forced imprisonment which was based solely on the void order could, depending on the circumstances, be such a matter. If the applicant in such a case is still held in custody by persons under the control of the respondent decision-maker, an injunctive order that the respondent do whatever be necessary to procure the applicant’s release could be properly considered as “necessary to do justice between the parties”. In that regard, it is relevant to mention that both declaratory and injunctive orders, as distinct from an order for damages, can readily be seen as appropriate remedies of judicial “review” of administrative decisions and actions.

The mere invalidity of an administrative decision ostensibly made pursuant to statutory authority, but which is found upon an application for judicial review to be without such authorisation, does not of itself confer any entitlement to damages: Northern Territory of Australia v Mengel (1995) 185 CLR 307.

40    Although there is no general cause of action for damages arising from a decision which is set aside for legal error or jurisdictional error, it remains potentially open for an applicant to seek in the one proceeding a claim for relief in the nature of judicial review and a claim for damages at common law by reason of (for example) trespass to goods or potentially for misfeasance in public office. The potential exists for the same substratum of facts to give rise to a claim seeking (inter alia) declaratory relief as to the invalidity of a decision and a claim for damages.

41    The Originating Application for Judicial Review as resolved by the primary Judge could have been so construed. The Orders sought included a claim for “damages of $5000 for the unnecessary stress and time that I’ve been costed”. Albeit not so expressed, that claim could be construed – on an interpretation very generous to Mr Giddings and an interpretation not supported by the words employed – as a claim for damages for misfeasance, albeit referred to as “malfeasance”.

42    Even had the Originating Application been so construed, a second (and insurmountable) difficulty would have confronted Mr Giddings. That difficulty would have been that the common law tort of misfeasance in public office is “closely confined” and the evidence would have fallen well short of making out any claim for damages for misfeasance: Northern Territory of Australia v Mengel (1995) 185 CLR 307. Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ there held (at 345):

It was recognised as recently as 1973 that the precise limits of the tort of misfeasance in public office were then undefined. In important respects, that is still true. However, the weight of authority here and in the United Kingdom is clearly to the effect that it is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power.

(Footnotes omitted.)

Their Honours there further observed (at 347):

The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or by principle. Policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability.

(Footnote omitted.)

43    Notwithstanding the fact that the elements necessary to establish the tort of misfeasance in public office remain perhaps a little unsettled, in Porter v OAMPS Ltd [2005] FCA 232, (2005) 215 ALR 327 at 352 Goldberg J summarised those elements as follows:

[103]    The elements of the tort of misfeasance in public office are:

•    there is a public officer;

•    who owes a public duty (including to the plaintiff as a member of the public);

•    which the public officer has breached;

•    the breach of duty has caused loss or damage to the plaintiff; and

•    the public officer breached the duty with the intention of causing harm to the plaintiff or with the knowledge that he or she was acting in excess of his or her powers.

See also: Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority [2009] FCA 1487 at [164], (2009) 263 ALR 93 at 129 per McKerracher J; Lock v Australian Securities and Investments Commission [2016] FCA 31 at [128] to [130], (2016) 248 FCR 547 at 577 to 578 per Gleeson J.

44    Importantly for present purposes, it is to be recalled that conduct causing loss which flows from “a breach of the law” is not necessarily sufficient on its own to attract liability: Beaudesert Shire Council v Smith (1966) 120 CLR 145 at 155 to 156 per Taylor, Menzies and Owen JJ.

45    It is the “intentional” element of the tort (cf. Sanders v Snell (1998) 196 CLR 329 at 346 to 347 per Gleeson CJ, Gaudron, Kirby and Hayne JJ) which presents the insurmountable difficulty for Mr Giddings in his path to seek relief in the form of damages. In Rush v Commissioner of Police [2006] FCA 12, (2006) 150 FCR 165 Finn J later expanded upon that which was required to make out “knowledge” on the part of a respondent that administrative conduct was in “excess of his or her powers” and summarised the position as follows (at 197 to 198):

[121]    … the tort can take two forms. In one form (that of “targeted malice”) it must be shown that the public officer in question has acted as such with an actual intent to cause injury to a person or persons. In its alternate form it must be shown either that the officer has actual knowledge both that his or her action was beyond power and would cause or be likely to cause injury or else that the officer has acted with reckless indifference both to the possibility his or her action was beyond power and to the possibility that that action would cause or be likely to cause injury …

46    On the facts of the present case, there was no evidence to make out any claim that the conduct of any of those involved in resolving Mr Giddings’ claim for access to documents pursuant to the Freedom of Information Act was pursued either with:

    the knowledge that such conduct was in excess of the powers being exercised or with any reckless indifference to whether such conduct was in excess of power; or

    any malice

47    It is understood that the manner in which Mr Giddings sought to make good his claim that persons within the Office of the Information Commissioner had been activated by – or motivated by – a desire or intent to cause him harm was by reference to a number of recurring themes in his submissions, including:

    the fact that he had been co-operating with those within the Office of the Information Commissioner with a view to progressing his claim to review;

    the fact that the decision of the delegate under s 54W(a)(ii) had been made and found to have been such that it should be set aside;

    the manner in which his claims for anonymity or “de-identification” had been dealt with; and

    the manner in which the litigation had been conducted before the primary Judge.

But one aspect of the last factor should, perhaps, be briefly mentioned as it was not at all self-evident what the conduct was that attracted the concern of Mr Giddings. This aspect was what was referred to by Mr Giddings as the “missing emails”. These emails, on Mr Giddings’ case, had not been placed in evidence before the primary Judge by the Information Commissioner and it was left to Mr Giddings to himself adduce this evidence. These emails turned out to be a series of emails between Mr Giddings and persons within the Office of the Information Commission, including Mr Kirkwood and Ms Napper. One of those emails was an email from Mr Giddings to Mr Kirkwood which read:

Hi Ben,

This is what was quoted from the laws to me by Mr Fleming: “does not…place any onus of proof upon an applicant”

“ Please note, in making a decision under s 54T the delegate is guided by the principles outlined in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176:

(a)    Although the section does not, in terms, place any onus of proof upon an applicant for extension”

And in that letter you said this:

“While these are relevant concerns you have not provided any information to support these claims. I am therefore unable to give weight to these concerns.”

I would like this part of the letter to be officially withdrawn and an amended letter to be created that supersedes this part of the judgement.

Thanks.

The point sought to be made by Mr Giddings was an asserted misrepresentation as to there being an absence of any onus and the subsequent decision which was made upon the basis that he had not “provided any information”.

48    But neither this particular email, the remaining “missing emails” or any other factor relied upon by Mr Giddings establishes any factual foundation for a finding that Ms Ago (or any other person within the Office of the Information Commissioner) had intentionally or maliciously set out to cause Mr Giddings any harm or loss or damage. Nor do they found any conclusion as to negligence.

49    The primary Judge was correct in rejecting any claim for damages.

The conduct of the primary Judge

50    The challenge founded upon a reasonable apprehension of bias in respect to the primary Judge is summarily rejected.

51    There can be no doubting the starting proposition that a judge should impartially consider the merits of the claim of any litigant: Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293 to 294. Mason, Murphy, Brennan, Deane and Dawson JJ there held that:

a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the questions involved in it.

More recently, in Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337 at 344 to 345 Gleeson CJ, McHugh, Gummow and Hayne JJ reiterated the fundamental importance of impartiality on the part of a judge as follows:

[6]    Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

(Footnotes omitted.)

52    There can equally be no doubt that a litigant should not be deterred from advancing for resolution a claim as to the lack of impartiality on the part of any Judge. “No litigant”, it has been said, “should be deterred from fearlessly advancing such arguments on appeal as can be responsibly and appropriately raised for resolution”: Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28 at [106]. Logan and Flick JJ there further observed that it “may only be expected that the more serious the allegations of judicial misconduct, the more reticent may be a litigant to raise such allegations”: at [107]. However, it was also there said that “where such allegations are irresponsibly advanced, an appellant can equally expect from this Court the swift condemnation that he deserves”: at [116].

53    The mere making of an unsubstantiated allegation is not sufficient. A claim that a reasonable bystander might reasonably apprehend that a judge has not brought an impartial mind to the resolution of a dispute must be “firmly established”: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352. Mason J there observed:

It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as [R v Watson; Ex parte Armstrong (1976) 136 CLR 248] and [Livesey v New South Wales Bar Association (1983) 151 CLR 288] has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [(1969) 122 CLR 546 at 553 to 554 per Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ]; [R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262 per Barwick CJ, Gibbs, Stephen and Mason JJ]; [R v Lusink; Ex parte Shaw (1980) 32 ALR 47 at 50 to 51 per Gibbs ACJ]. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

54    On the facts of the present case, Mr Giddings sought to establish a “protectionist bias” on the part of the primary Judge and relied upon a number of factors to “firmly establish” his claim that a reasonable bystander may reasonably apprehend a lack of impartiality. These factors included the following claims made against the primary Judge, namely that his Honour:

    “shield[ed] the respondent from being personally and financially responsible” – the submission being that he was publicly named and not “de-identified” in circumstances where the primary Judge considered the “less personal” approach appropriate for the government delegate in the judgment;

    questioned the integrity of his Application – the submission being (inter alia) that early in the hearing the primary Judge “declared that he might be considered to be malfeasant in a bizarre defensive statement, the purpose of which was to question the integrity of my completely legitimate application (if the logical chain here doesn’t make sense, that’s exactly why I’m bringing it up in this appeal, because it’s bizarre)”.

    described a submission as “scandalous” – the submission being that it is neither “lawful or ethical for a judge be a commentator on a case in the manner of a journalist, which is a profession more suited to that colourful, pejorative language”.

    was “vindictive”;

    failed to take into account that the respondent’s lawyer “submitted a lie about a very significant, material detail in [Mr Giddings’] email correspondence with the [Information Commissioner] … violating the Legal Profession (Solicitors) Conduct Rules 2015 made under the law as an instrument of Legal Profession Act 2006”; and

    “ignored” him “several times pointedly and rudely (in terms of action and response other than to deflect and pretend it’s ok), instead attacking me on a vexatious avenue (being spurious and irrelevant) in the Federal Court as if he’s on the side of the respondent’s solicitor defending him”.

Also included in those matters relied upon by Mr Giddings to “firmly establish” his claim as to a reasonable apprehension of bias on the part of the primary Judge were such further factors as:

    the language employed by the primary Judge in his reasons for decision, including (in particular) his Honour’s characterisation of a number of grounds advanced by Mr Giddings as “scandalous” ([2017] FCA 677 at [18]);

    the decision not to order that the proceeding be in camera ([2017] FCA 677 at [19]);

    the decision to not order the joinder of other persons as Respondents; and

    the rejection of the claim for damages.

55    The claim is rejected. None of the factors relied upon by Mr Giddings exposes anything other than, with respect, a Judge of this Court making such decisions as are considered to be warranted by the facts presented and by the application of accepted legal principles to those facts.

56    None of the conduct relied upon by Mr Giddings comes anywhere close to making out a case as to there being a reasonable apprehension of bias. The claim could not be responsibly maintained and it deserves “swift condemnation.”

CONCLUSIONS

57    Considerable latitude has been extended to Mr Giddings in his exposition of the issues sought to be pursued on appeal. Many of those issues trespassed well beyond any real attempt to identify appellable error on the part of the primary Judge.

58    The principal issues sought to be canvassed before this Court were, perhaps, inextricably linked to contentions that:

    the conduct of not only the delegate who made the November 2016 decision and/or the conduct of other persons within the Office of the Respondent Commissioner exposed the pursuit of conduct known to be unlawful or with an intent to cause harm to Mr Giddings; and

    the conduct and decision of the primary Judge was such as to give rise to a reasonable apprehension of bias such as to deprive Mr Giddings of a fair and impartial adjudication of his complaints.

These issues have been resolved adversely to Mr Giddings. It has not proved necessary to resolve many of the other issues raised in Mr Giddings’ 19 pages annexure to his Notice of Appeal, his written Submissions or his further 9 page outline handed up at the outset of the hearing. Each of those further issues, however, have been considered with a view to determining whether they could potentially lead to any meaningful form of relief being granted. But no such issues have been identified. Notwithstanding the submission advanced orally by Mr Giddings on a number of occasions that he had a “strong case”, all that has been exposed is an error of law in the delegate’s reliance upon s 54W(a)(ii) as identified by the primary Judge.

59    In the event that the appeal was dismissed, Mr Giddings opposed an order that he should pay the costs of the Respondent. He did so on two bases, namely:

    that the conduct of the Respondent throughout has been to not fully disclose the extent to which he had in fact co-operated with the Office of the Information Commissioner, as indeed evidenced by his success on this issue before the primary Judge, and it has been this lack of disclosure which has resulted in the litigation; and

    the conduct of the Respondent in not being willing to – or, indeed, even open to – the prospect that the proceeding could have been avoided by a willingness to settle outside of Court.

But neither reason, with respect, provides a reason why the normal rule should not apply such that the unsuccessful party should pay the costs of the party that succeeds.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the appeal of the Respondent.

Associate:    

Dated:    21 December 2017