Federal Court of Australia

Knowles v Secretary, Department of Defence [2021] FCAFC 215

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of and incidental to the appeal, including those relating to the appellant’s applications for the adoption of a pseudonym and leave to adduce further evidence and the respondent’s notice of contention, to be fixed by a registrar if not agreed.

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

REASONS FOR JUDGMENT

THE COURT:

1    This month will mark the fifth anniversary of a request which the appellant, Mr Kieran Knowles, made of the respondent Secretary of the Department of Defence, by an email dated 25 November 2016, to access personal information held by that Department concerning him. In support of his request, Mr Knowles invoked Australian Privacy Principles (APP) 12 of the privacy principles, set out in Sch 1 to the Privacy Act 1988 (Cth) (Privacy Act), in accordance with s 14 of that Act.

2    Within the Department, the task of dealing with Mr Knowles’ request fell to the then Assistant Director Administrative Review, Complaints and Resolution, HR Services Branch, Defence People Group, Mr Ian Heldon. Mr Heldon responded to Mr Knowles’ access request in the week following its receipt by the Department. By 22 December 2016, Mr Heldon had caused the Department in part to satisfy Mr Knowles’ request. Access to the balance of the personal information held by the Department was provided to Mr Knowles by early February 2017.

3    A request by Mr Knowles pursuant to APP 13 for correction of departmental records followed.

4    Exchanges between Mr Knowles and Mr Heldon concerning both the original access request and its sequel are noteworthy for two things: intemperate and, at times, foul, ungentlemanly and unwarranted abuse of Mr Heldon by Mr Knowles and polite restraint, even empathetic understanding, on the part of Mr Heldon in his responses to Mr Knowles.

5    However that may be, five years later and notwithstanding that he long ago was granted access and the Department made some record correction upon his consequential request, Mr Knowles continues to harbour a sense of grievance. The latest manifestation of that grievance is the present appeal.

6    A detailed account of the background facts is to be found in the reasons for judgment of the learned primary judge: Knowles v Secretary, Department of Defence [2020] FCA 1328. The correctness of that account is not controversial. Having regard to the issues raised in this appeal, the following summary will suffice.

7    In all, Mr Knowles made, or at least claims he made, three applications of the Department under the Privacy Act.

The 25 November APP 12 Request

8    As mentioned, on 25 November 2016, Mr Knowles sought access to personal information the Department held about him. This application was made pursuant to APP 12.1. This request was a sequel to an earlier application made of the Department by Mr Knowles under the Freedom of Information Act 1982 (Cth).

9    APP 12.1, 12.2 and 12.4 provide:

12    Australian Privacy Principle 12—access to personal information

Access

12.1    If an APP entity holds personal information about an individual, the entity must, on request by the individual, give the individual access to the information.

Exception to access—agency

12.2    If:

(a)    the APP entity is an agency; and

(b)    the entity is required or authorised to refuse to give the individual access to the personal information by or under:

(i)    the Freedom of Information Act; or

(ii)    any other Act of the Commonwealth, or a law in force in an external Territory, that provides for access by persons to documents;

then, despite subclause 12.1, the entity is not required to give access to the extent that the entity is required or authorised to refuse to give access.

…

Dealing with requests for access

12.4    The APP entity must:

(a)    respond to the request for access to the personal information:

(i)    if the entity is an agency—within 30 days after the request is made; or

(ii)    if the entity is an organisation—within a reasonable period after the request is made; and

(b)    give access to the information in the manner requested by the individual, if it is reasonable and practicable to do so.

10    On 30 January 2017, Mr Knowles complained to Mr Heldon and also lodged a complaint with the Office of the Australian Information Commissioner (OAIC) on the basis that the Department had not responded within 30 days as required, he contended, by APP 12.4(a)(i).

The 2 March APP 13 Request

11    On 2 March 2017, Mr Knowles made an application pursuant to APP 13 – correction of personal information, on the basis that disclosure from another Commonwealth department (the Other Department), to the Department about Mr Knowles was subject to a successful determination by the OAIC.

12    APP 13 provides:

Australian Privacy Principles 13 – correction of personal information

Correction

13.1    If:

(a)    an APP entity holds personal information about an individual; and

(b)    either:

(i)    the entity is satisfied that, having regard to a purpose for which the information is held, the information is inaccurate, out-of-date, incomplete, irrelevant or misleading; or

(ii)    the individual requests the entity to correct the information;

the entity must take such steps (if any) as are reasonable in the circumstances to correct that information to ensure that, having regard to the purpose for which it is held, the information is accurate, up-to-date, complete, relevant and not misleading.

Notification of correction to third parties

13.2    If:

(a)    the APP entity corrects personal information about an individual that the entity previously disclosed to another APP entity; and

(b)    the individual requests the entity to notify the other APP entity of the correction;

the entity must take such steps (if any) as are reasonable in the circumstances to give that notification unless it is impracticable or unlawful to do so.

Refusal to correct information

13.3    If the APP entity refuses to correct the personal information as requested by the individual, the entity must give the individual a written notice that sets out:

(a)    the reasons for the refusal except to the extent that it would be unreasonable to do so; and

(b)    the mechanisms available to complain about the refusal; and

(c)    any other matter prescribed by the regulations.

Request to associate a statement

13.4    If:

(a)    the APP entity refuses to correct the personal information as requested by the individual; and

(b)    the individual requests the entity to associate with the information a statement that the information is inaccurate, out-of-date, incomplete, irrelevant or misleading;

the entity must take such steps as are reasonable in the circumstances to associate the statement in such a way that will make the statement apparent to users of the information.

Dealing with requests

13.5    If a request is made under subclause 13.1 or 13.4, the APP entity:

(a)    must respond to the request:

(i)    if the entity is an agency—within 30 days after the request is made; or

(ii)    if the entity is an organisation—within a reasonable period after the request is made; and

(b)    must not charge the individual for the making of the request, for correcting the personal information or for associating the statement with the personal information (as the case may be).

The 3 March Demand Email

13    Immediately following the APP 13 requests, there was a number of emails exchanged between Mr Knowles and Mr Heldon.

14    At one point in this exchange, Mr Heldon made the following remark in an email to Mr Knowles:

I understand that I am currently the focal point of your frustrations with Defence and you hold me personally responsible for Defence's responses to date - I assume your expletives and threats are only a reflection of this frustration and do not imply a serious or imminent threat to my health or safety.

15    Mr Knowles considered those statements to be defamatory, and relevantly, in what the learned primary judge termed (and we also term) the “3 March Demand Email”, stated in the midst of a discursive, abusive reply:

Under APP13 I require you to destroy these defamatory claims from Defence records about threatening behaviour you just made (note [the Other Department] tried the same stunt and lost, so try your luck dickhead), such comments are opinions about me that constitute personal information about me, and therefore fall within the scope of the Privacy Act. Furthermore they are defamatory and any distribution or repetition make you personally liable.

16    Mr Knowles considered this to be a request to remove or delete the comments made by Mr Heldon from the Department’s files.

17    The Department, on 9 April 2017, confirmed in respect of the 2 March APP 13 Request that the Joint Health Command and the Service Police had made annotations in respect of the first APP 13 request, the Australian Government Security Vetting Agency did not have any relevant personal information about Mr Knowles, and the Royal Australian Air Force was still working through the request.

18    Late in 2017, Mr Knowles commenced proceedings against the Australian Information Commissioner in this Court, but those proceedings became the subject of a successful application for summary dismissal: Knowles v Australian Information Commissioner [2018] FCA 1212.

19    The OAIC later exercised its discretion under s 41(2)(a) of the Privacy Act to not investigate Mr Knowles’ complaint to it.

Original jurisdiction submissions and outcome

The 25 November APP 12 Request

20    Before the primary judge, Mr Knowles submitted that the Department had failed to respond within the 30 days required by APP 12, and that there had been bad faith on the part of Mr Heldon in his dealings with Mr Knowles. Mr Knowles sought corresponding relief.

21    The primary judge addressed these submission on a number of bases.

22    His Honour noted, at [58], that Mr Knowles had not precisely formulated the declaratory relief he sought. Based on his submissions, his Honour assumed that it was that he had a right to be given access within 30 days of the receipt of his request and without bad faith on the part of the Department and its officers. His Honour concluded, at [62], that, as the granting of declaratory relief was discretionary, there was no utility in granting the declaratory relief sought; Mr Knowles had already received all he was entitled to receive pursuant to APP 12.

23    His Honour also concluded, at [67], that, as a matter of construction, APP 12, by [12.4], did not mandate that a request be actioned and completed within 30 days, only that a response be made within 30 days.

24    As to the allegation of bad faith, his Honour adverted to the need for bad faith to be proved on a sufficient basis. His Honour recognised that there had been a delay between Mr Heldon’s communicating receipt of the request and sending his own request to other parts of the Department, but found that the delay may also have been the result of an innocent explanation. Further and in any event, his Honour found that there was no evidence as to what occurred between 25 November 2016 and 23 December 2016, and therefore nothing to indicate that no inquiries had been made. His Honour concluded that bad faith had not been proved by Mr Knowles: see [70] – [71].

The 2 March APP 13 Request

25    Mr Knowles sought relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), the Judiciary Act 1903 (Cth) (Judiciary Act) and the Regulatory Powers (Standard Provisions) Act 2014 (Cth), for correction of information of an OAIC Determination, and declaratory relief for an alleged failure to respond within 30 days as requested.

26    The primary judge reiterated his Honour’s views as to the suitability of discretionary relief for the APP 12 request, but also, at [87] – [88], found that Mr Knowles had not availed himself of any of the alternative, merits review remedies for which the Privacy Act, in particular Pt V, provided for. His Honour found that there was no utility in granting relief as the OAIC Determination upon which Mr Knowles placed reliance had already been set aside by the Administrative Appeals Tribunal, with a subsequent appeal to the Full Court having been dismissed.

27    As to whether the request was in any event valid, his Honour accepted that Mr Knowles did not receive a response from the Department within 30 days as he should have. However, his Honour also found, at [92], that all that APP 13 required was the correction of the records, not correction in a manner prescribed by the applicant as submitted by Mr Knowles, and that the Department had done this by annexing the OAIC Determination to its records in respect of Mr Knowles. His Honour found that there was nothing to suggest the Department had failed to carry out its statutory duty by so doing.

The 3 March Demand Email

28    The primary judge accepted, at [108], that the statement made by Mr Heldon, extracted above, amounted to personal information of Mr Knowles capable of being subject to APP 13. However, his Honour concluded, at [111], that the 3 March Demand Email did not constitute a request for “correction”, under APP 13.

29    Further and in any event, his Honour declined to grant relief on discretionary grounds, in that it would be without utility and Mr Knowles had failed to engage in any other processes for which the Privacy Act provided to have his complaint dealt with.

GROUNDS FOR APPEAL

30    As they came to be amended, Mr Knowles’ grounds of appeal were as follows:

Ground One – APP 13 Correction includes deletion of personal information

1.    The primary judge erred in concluding as he did at J [111-112] of his reasons that “The 3 March Demand Email did not request the correction of anything” and in dismissing the proceeding on that basis so far as it concerned APP 13 (in erroneously concluding no APP 13 correction application had been made, and that no legal basis for granting relief existed).

2.    Under a proper construction of the provisions of Clause 13 of Schedule 1 of the Privacy Act 1988 (Cth) (Act), the primary judge ought to have held that the 3 March 2017 APP 13 correction request email satisfied the requirements of Clause 13.1 of Schedule 1 of the Act, in that a request for deletion or removal of personal information held by the Respondent was within the scope of “correction” of that clause of the Act.

Ground Two – APP 12.4(a)(i) not “bifurcation” and is timeframe on dealing by giving decision

3.    The primary judge erred in concluding as he did at J [66-67] of his reasons that Clause 12.4(a)(i) of Schedule 1 of the Privacy Act 1988 (Cth) (Act) only applied to giving acknowledgment of an APP 12 request (not a decision on access) and in dismissing the proceeding on that basis so far as it concerned APP 12 (erroneously concluding APP 12.4(a)(i) imposed no timeframe within which a decision on access must be made).

4.    Under a proper construction of the provision of Clause 12.4(a)(i) of Schedule 1 of the Act, the primary judge ought to have held that the 25 November 2016 APP 12 access request was required by virtue of Clause 12.4(a)(i) of Schedule 1 of the Act to have been decided on within 30 days after the request had been received by the Respondent.

Ground Three – Bad Faith cannot be dismissed on hypotheticals contrary to face of documents

5.    The primary judge erred in concluding as he did at J [70] of his reasons that the dishonest representation made to the Applicant at 6:48pm on 22 December 2016 (revealed by Ian Heldon's internal email of 1:43pm 23 December 2016) was displaced by the primary judge’s hypothetical that there “may be any number of innocent explanations for such a failure”, and in dismissing the proceeding on that basis so far as it concerned the bad faith claim (when no documentary or testimonial evidence supported the primary judge’s hypothetical, and when the timing of the relevant e-mails was uncontested).

6.    The Respondent, in accordance with Orders dated 17 July 2017 (Tracey J), filed and served all relevant documents it held that related to the APP applications on 31 July 2017 with the Court. The Respondent was also aware of the bad faith claim since it was first served in the proceedings. The primary judge accepted that intentional non-performance was “possible”, and “would be consistent with the tone of the. Emails”, based on the e- mails of 6:48pm 22 December 2016 and 1:43pm 23 December 2016, and in the absence of evidence to the contrary, should not have relied on a hypothetical of his own creation to displace the relevant documentary evidence tendered by the Respondent.

Ground Four – Costs – Public Interest

7.    In the alternative, the primary judge erred in not exercising discretion in awarding costs given this was an administrative law case that had a public interest element, in that it prompted a clarification of pervasively important principles of practice and procedure in and in relation to Clause 12 and Clause 13 of Schedule 1 of the Privacy Act 1988 (Cth) (Act), in proceedings that did not exceed a one day hearing.

8.    As His Honour, Logan J, stated in Knowles v Falk on 17 August 2020 in respect of the Privacy Act 1988 (Cth) (Act), it is “hideously complicated... [and] parliament in its wisdom has decided to create this labyrinth which makes it very difficult for honest civil servants in good faith to administer it". Given the Act is beneficial legislation, the proceedings have clarified the Act in wider interests than that of the Applicant, and that it is essential to good administration that administrative decisions be open to accessible review, the discretion given to the primary judge by the Federal Court of Australia Act 1967 (Cth) should not have been automatically exercised as adversely as it was to the losing party.

[sic]

31    Mr Knowles adopted a form of notice of appeal apt for a statutory appeal to the Court from the Administrative Appeals Tribunal, rather than from orders made in the Court’s original jurisdiction. Accordingly, he identified in his notice a number of questions of law. Most of these are taken up in the grounds set out above. However, he also raised as a question of law the following:

1.    Whether the primary judge erred in law in holding at J [86] – [88] that the existence of a merits review avenue (via s 36(1) of the [Privacy Act]) … should preclude discretion to grant relief directly on questions of law to the Federal Court.

It is in the interests of justice to treat this as a ground of appeal alleging that discretionary relief ought not to have been refused as a matter of discretion, because of the existence of alternative remedies.

32    Apart from the allowing of his appeal and the setting aside of the orders made by the primary judge, Mr Knowles also sought an order that the matter be remitted to the original jurisdiction for hearing as to the relief to be granted, including the terms of declarations to be made.

33    The Secretary filed a notice of contention by which he contended that it was reasonable in the circumstances for the Department not to take any steps to correct personal information in the 3 March 2020 email from Mr Heldon to Mr Knowles (the subject record), as demanded in the 3 March Demand Email, as the information in the subject record was accurate (as found by the learned primary judge, at [108]), up to date, complete, relevant and not misleading, having regard to the purpose for which it was held.

34    In addition, the Secretary sought summary judgment. As consideration of the latter would have entailed traversing, albeit to a different end, essentially the same submissions made by the parties in respect of the substantive merits and saved nothing in terms of court time, we determined that the interests of justice were better served by dealing with the appeal on its substantive merits.

Mr Knowles’ submissions

Ground 1

35    Mr Knowles submitted that APP 13.1(b)(ii) clearly allowed for the deletion of personal information, and therefore his 3 March Demand Email ought to have been considered a request pursuant to the APP. He further submitted, if the Department formed the view that it was not required to make the change as requested, that needed to be communicated to him pursuant to APP 13.5(a)(i). He noted that the agreed statement of facts tendered to the primary judge stated that the 3 March Demand Email was considered an APP 13 request but that this position was later changed in submissions by the Secretary.

36    As to utility, Mr Knowles submitted that, if a declaration as to the character of his request were granted, he would be entitled to receive a statement of reasons from the Secretary as to why his APP 13 application had been denied.

Ground 1(A)

37    Mr Knowles put that, while the OAIC guidelines on the APP stated that the association of a statement may be considered a correction, those guidelines are not legally binding. He submitted that the association of a statement does not actually “correct” the information as reasonably understood, and therefore a correction was not actually made. He reiterated his submission that he had a statutory right to receive a decision on his APP 13 claim by the Department, and that the Department had failed to do this.

Ground 3 and Ground 2

38    Mr Knowles submitted that the delay caused by Mr Heldon was, in all circumstances, motivated by bad faith, and a failure of Mr Heldon to swear an affidavit only reinforced that conclusion.

39    As to delay, Mr Knowles submitted that “Dealing with requests for access” is not limited to a response, but rather a conclusion, to the request. He relied on the Australian Government Companion Guide to the Australian Privacy Principles which states “[APP] 12 … imposing timeframes within which decisions must be made”.

Question of Law - Alternative Remedies

40    Mr Knowles characterised the primary judge’s conclusion as to the impact of the existence of alternative remedies on the discretion to grant declaratory relief as “automatic”, in that he had automatically denied the claim for relief on the basis there were alternative remedies, and that this was unjust.

Ground 4

41    Mr Knowles challenged the award for costs against him on the basis that the complexity of the Privacy Act and the need to clarify its provisions were indicative of the public interest in this case and should have led to no order as to costs.

Secretary’s Submissions

Grounds 2 and 3

42    The Secretary submitted that the conclusion of the primary judge, at [62], that there is no utility in granting the declaratory relief sought as all records under APP 12 have been provided, should be dispositive of all grounds related to APP 12.

43    As to the issue of whether the Department had to provide all documents within 30 days, the Secretary draws particular attention to APP 12.4. The Secretary submitted that, as a matter of construction, the 30 day time limit only related to “respond” in APP 12.4(a), not “give access” in APP 12.4(b).

44    As to the allegation of bad faith, the Secretary submitted that the primary judge’s findings that there was no evidence for Mr Knowles’ contention and that it was possible there were innocent explanations were correct. Further, the Secretary submitted there was evidence that Mr Heldon had acted promptly, and provided all documents that Mr Knowles was entitled to.

Ground 1(A) and Question of Law - Alternative Remedies

45    The Secretary submitted that there was no formal ground of appeal against the conclusion of the primary judge as to the lack of utility in the granting of declaratory relief, given the OAIC Determination had been set aside. It was this consideration which had motivated the Secretary’s summary dismissal application.

46    As to whether the Department complied with APP 13, the Secretary submitted that the annotation complied with Mr Knowles’ request and, further, there was nothing else the Department could do to “correct” the personal information, given that the OAIC Determination had not found the opinions expressed by the Other Department to be incorrect.

47    As to the issue of alternative relief pursuant to Pt V of the Privacy Act, the Secretary submitted that Mr Knowles was incorrect in reading the reasons of the primary judge as entailing a conclusion that relief was “automatically” declined on the basis he had not taken up an alternative remedy.

Ground 1

48    The Secretary submitted that the primary judge’s characterisation of the 3 March Demand Email as an attempt to bully and belittle Mr Heldon was apt, and that the email cannot be understood as an APP 13 request for a correction.

49    Further, and in any event, the Secretary submitted that APP 13.1 did not require the taking of corrective steps, and the Department was entitled to take none if it so chose.

Ground 4

50    The Secretary submitted that there was no real uncertainty as to the construction of the APP, and that the case concerned Mr Knowles’ private interests. He submitted that there was no error of principle in an exercise of the costs discretion by the primary judge, such that costs should follow the event.

Resolution

51    In AIT18 v Australian Information Commissioner (2018) 267 FCR 93, at [74], and following, the Full Court considered in detail the general approach to the construction of the Privacy Act. Suffice it to say, while the Privacy Act may be regarded as beneficial legislation, thus favouring a like construction in cases of any textual ambiguity, the general approach to statutory construction ordained by the High Court in cases such as Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, at [39], of beginning with the text of the statute and reading that in context (which may include reference to extrinsic materials), is applicable.

52    Regard to the text of both APP 12 and APP 13 discloses a dichotomy between responding to a request and consequentially actioning it. In APP 12, this is evident by comparing the text of APP 12.4(a) with APP 12.4(b). The position is less stark with APP 13. The primary judge also noted an absence of textual clarity. His Honour’s preferred construction, at [83], was that corrective action had to occur in 30 days. With respect, we consider that a comparison between the text of APP 13.5 with APP 13.1 or, as the case may be, APP 13.4 discloses the dichotomy mentioned. In each instance, the specified time limit is applicable only to a response. Further, that same comparison discloses that a response is different to consequential action. It would certainly be permissible to give such an indication in a response, but the 30 day period governs “response” not action under APP 13.1 or APP 13.4.

53    The absence of specification of a time limit in relation to consequential action does not mean that an “APP entity” (as defined by s 6 of the Privacy Act, the Department, as an “agency”, being such an entity) may, after response, consequentially action a request at its leisure. Rather, by necessary implication, an APP entity would have to take action within a reasonable time: Koon Wing Lau v Calwell (1949) 80 CLR 533, at 573 – 574; Re O’Reilly; Ex parte Australena Investments Pty Ltd (1983) 58 ALJR 36, at 36; 50 ALR 577, at 578; Shahi v Minister for Immigration and Citizenship (2011) 246 CLR 163, at 174, [28]. Whether or not an unreasonable time had passed could be determined on an application for a mandamus by reference to the circumstances of a given case: Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179, at [37]. This inherently fact specific quality means that, in some cases, where the corrective action needed was obvious and not extensive, a reasonable time for the taking of corrective action could conceivably be much less than even 30 days. In such cases, a response would also advise that particular corrective action had already been taken. A conclusion that the obligation to take action within a reasonable time had not been discharged by an APP entity is not one which would be lightly reached: Minister for Home Affairs v DUA16 (2020) 95 ALJR 54, at [26].

54    A construction which recognises an inherently case specific requirement for action within a reasonable time, rather than any rigid, “one size fits all” time limit for taking action, as contended for by Mr Knowles, also better accords with achieving the statutory purpose of applying privacy principles of general application in a myriad of different circumstances.

55    For these reasons, we reject Mr Knowles’ submission that his APP 12 request had to be actioned within 30 days. What was required within that time was a response to his request. That occurred.

56    Further, the learned primary judge correctly recognised that the granting of declaratory relief is discretionary.

57    The dispute between Mr Knowles and the Secretary arose in federal jurisdiction. It arose under the Privacy Act and concerned its interpretation. One relevant source of federal jurisdiction exercisable by this Court was therefore s 39B(1A)(c) of the Judiciary Act. It is also possible to conceive of other bases upon which the jurisdiction of this Court was validly invoked by Mr Knowles: the ADJR Act and s 80W of the Privacy Act. Jurisdiction having been validly invoked, the Court had power to grant declaratory relief as an adjunct or alternative to other relief, the source of that power being found in either or each of s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and s 16 of the ADJR Act, if not also the Court’s status as a superior court of record and one of law and equity. The jurisdiction to grant declaratory relief so as to declare the rights of parties in relation to a dispute is broad: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, at 437 – 438.

58    To overturn on appeal an exercise of a judicial discretion Mr Knowles must demonstrate that the exercise of that discretion by the primary judge entailed an error of principle of the kind described in House v The King (1936) 55 CLR 499. Such an error would not be found in a disposition to have exercised that discretion in a different way (even assuming we were so disposed).

59    One basis upon which, as a matter of discretion, declaratory relief might be refused is lack of utility: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, at 581 – 582. Another is the existence of an adequate alternative remedy: Tooth & Co Ltd v Parramatta City Council (1955) 97 CLR 492, at 498; see also, as to discretionary refusal of declaratory relief under the ADJR Act, s 10 of that Act.

60    As to the 25 November APP 12 Request and apart from Mr Knowles’ misconception as to the construction of that principle, as at the time when the primary judge gave judgment, Mr Knowles had long since been given access to the personal information held by the Secretary. In relation to that request, there was, as the primary judge recognised, no ongoing utility in the granting of any declaratory relief. Contrary to Mr Knowles’ submission, there was nothing “automatic” in his Honour’s consequential conclusion that he would in any event decline to grant declaratory relief, only an unremarkable exercise of discretion in the prevailing circumstances.

61    Also contrary to Mr Knowles’ submission, Seven Network (Operations) Ltd v Media Entertainment and Arts Alliance (2004) 148 FCR 145 (Seven Network v MEAA) does not stand for any contrary proposition. As the Secretary correctly submitted, what occurred in that case was a rejection by Gyles J of a submission that it was the then Privacy Commissioner who had the responsibility for the investigation of complaints about breaches of the privacy principles for which the Privacy Act provided and that such breaches were not directly actionable in the Court. As a reason for the rejection of that submission, his Honour pointed (at [39] – [40]) to the conferral on the Court by the then s 98 of that Act of a power to grant injunctive relief in respect of breaches. This conferral was no different in character to similar jurisdictions conferred on the Court under trade practices and corporations legislation. His Honour also observed that it was by no means uncommon in federal legislation for there to be provision for concurrent statutory remedies. All of this, with respect, may readily be accepted. Unlike in the present case, what was not put to the Court in Seven Network v MEAA was that there was to be found in one of those concurrent statutory remedies an adequate alternative in the circumstances of the particular case. No occasion thus arose for Gyles J to consider whether or not, as a matter of discretion, the power to grant relief should be exercised.

62    Also unremarkable was the conclusion of the primary judge that no bad faith had been proved in the Department’s responding to and acting upon the 25 November APP 12 Request.

63    The reference by the primary judge to the following observation of the Full Court in SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397, at [19], was apt:

An allegation of bad faith is a very serious one. Bad faith in this context implies a lack of an honest or genuine attempt to undertake the task and involves a personal attack on the honesty of the decision maker: NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 at [107] – [108].

64    Although the proceeding was civil rather than criminal in character, thus requiring proof only on the balance of probabilities (s 140(1), Evidence Act 1995 (Cth) (Evidence Act)), an allegation of bad faith was a grave one and the onus of proving it fell upon Mr Knowles. It was indeed a paradigm case to which s 140(2) of the Evidence Act and the observations made by Sir Owen Dixon in Briginshaw v Briginshaw (1938) 60 CLR 336 were applicable. As Heerey and Kiefel JJ observed in Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 (SBAN), at [8], “There is no such thing as deemed or constructive bad faith.” Deficiencies in public administration do not, without more, entitle a court to drawn an inference of bad faith on the part of a public servant. Rather, as Heerey and Kiefel JJ further observed in SBAN, at [8], “Such defects can be equally explicable as the result of obtuseness, overwork, forgetfulness, irritability or other human failings not inconsistent with an honest attempt to discharge the decision-maker’s duty.”; see also to like effect, Munday v Commonwealth (No 2) (2014) 226 FCR 199, at [99], per Katzmann J.

65    Mr Knowles’ perception of bad faith on the part of Mr Heldon in dealing with the 25 November APP 12 Request was, and remains, coloured by his misconception as to APP 12 entailing a 30 day time limit not just for response but also consequential action. Given that this request was in part satisfied before Christmas 2016 and fully by early February 2017, and especially recalling that the traditional Summer holiday period fell in between, merely to hold that there was nothing on the evidence which would reasonably support an inference of bad faith on the part of Mr Heldon may be to damn him with faint praise. If anything, the inference to draw, on the evidence, given that responses were necessary to be sought, obtained and co-ordinated within what is a large Department of State, is that the 25 November APP 12 Request was diligently actioned in good faith by Mr Heldon.

66    Mr Knowles’ challenge to the rejection by the primary judge of his bad faith claim must for these reasons fail.

67    Given that the 2 March APP 13 request and the 3 March Demand Email were each premised on the correctness of the OAIC Determination and that this determination was subsequently, as noted above, set aside, the occasion for a correction and Mr Knowles’ umbrage about the Department’s action has disappeared. The primary judge clearly recognised this. His Honour’s consequential conclusion as to there also being, in relation to the 2 March APP 13 request and the 3 March Demand email, an absence of utility in the granting of any declaratory relief is unremarkable and, seemingly, not challenged by Mr Knowles in his grounds of appeal.

68    Mr Knowles did, however, in his submissions, put that the primary judge had erred in taking into account events subsequent to the 2 March APP 13 request. But the primary judge took those events into account not for the purpose of determining the Department’s compliance with APP 13 but rather for the purpose of determining whether there was any utility in the claim for relief made by Mr Knowles. This he was entitled to do.

69    The primary judge also considered that, in relation to the 2 March APP 13 request, whatever grievance Mr Knowles had with respect to the adequacy or otherwise of the consequential action taken by the Department in annotating its record with a copy of the OAIC Determination could have been the subject of complaint to the OAIC under Pt V of the Privacy Act and, in the event of continuing dissatisfaction, review by the Administrative Appeals Tribunal pursuant to s 96 of that Act. This, in his Honour’s view, offered an adequate alternative remedy such that, in any event, as a matter of discretion, declaratory relief in respect of this request should be refused. For reasons already given, that was a basis upon which declaratory relief might be refused. Mr Knowles has not demonstrated any error of principle by the primary judge in the exercise of this discretion.

70    Further and in any event, APP 13.1 is prescriptive only to the extent of requiring that an APP entity “take such steps (if any) as are reasonable in the circumstances” to correct inaccurate, out-of-date, incomplete, irrelevant or misleading personal information. “Correct” could conceivably embrace deletion but that may not be the only reasonable way of achieving the end ordained by APP 13.1. For example, a record containing an inaccurate date of birth might reasonably be corrected by deleting the inaccurate date and inserting the accurate date. But there would be nothing unreasonable in an APP entity striking through the inaccurate date and inserting the accurate date beside it or by annotating the record containing the inaccurate date with a statement, “The [individual’s] correct date of birth is as shown on the attachment.” With respect, sensibly, the principle leaves it to the good sense and judgment of the APP entity concerned as to how best to meet the obligation it creates, if correction is necessary. The only touchstone is reasonableness. The measure adopted by the Department in relation to the OAIC Determination, annexure, has not been shown by Mr Knowles to be unreasonable.

71    As to the 3 March Demand email, there is, with respect, much force in the conclusion of the primary judge, at [111], that this did not contain a request for the correction of information. Buried in the intemperate prolixity of this email was a demand for the destruction of a record, the record being Mr Heldon’s earlier, measured response to him.

72    It may readily be accepted that what amounts to a request for correction of personal information held by an APP entity ought not to be approached in a narrow, pedantic way. To do that would be subversive of the beneficial purpose of the Privacy Act. Further, as we have already observed, correction might in some cases entail a deletion of information. But the limit of remit for correction is as found in APP 13. It is not part of that remit that, even if a record contains some inaccurate information, the necessary corrective action can only be deletion of the entire record. Once again, what is necessary is, in the first instance, left by APP 13 to the good sense and judgment of the APP entity as to what, if anything, is reasonable to achieve the end ordained by that principle.

73    We consider that the characterisation of the primary judge of the 3 March Demand email as a “carry over” of the 2 March APP 13 request, which did contain a request for correction, is apt. The Department did take corrective action in response to that request with respect to personal information. It annotated its record with the OAIC Determination. Beyond this, Mr Heldon’s statement, “I assume your expletives and threats are only a reflection of this frustration and do not imply a serious or imminent threat to my health or safety” did nothing more than communicate (in a non-defamatory way, contrary to Mr Knowles’ assertion) an assumption on his part, accurate in its characterisation of the language employed by Mr Knowles in correspondence. The 3 March Demand email should not be characterised as a request for the correction of any further personal information, because there was none.

74    It will be obvious from the foregoing that we agree with the point raised in the Secretary’s notice of contention as to the absence of any inaccuracy in Mr Heldon’s response. However, given the conclusion reached as to the correct characterisation of the 3 March Demand email, it is not necessary to consider whether the Department’s absence of correction required the communication of a refusal to Mr Knowles.

75    Further and in any event, for reasons already given, the learned primary judge was entitled, as a matter of discretion, to decline to grant any declaratory relief on the basis that there existed adequate alternative remedies under the Privacy Act. Yet further, in circumstances where there was neither inaccuracy nor defamation entailed in Mr Heldon’s response, an exercise of judicial power to vindicate a misplaced sense of grievance as to a violation of a privacy principle would have been, and remains, utterly unwarranted.

76    There remains Mr Knowles’ challenge to the order for costs made by his Honour. The power to award costs is found in s 43 of the FCA Act. It is discretionary. In a case of the present kind, that discretion is not expressly constrained. But the power must be exercised judicially. And the usual way in which that discretion is so exercised in relation to costs is by an order that costs follow the event: Oshlack v Richmond River Council (1998) 193 CLR 72, at 96, per McHugh J. The primary judge so exercised the costs discretion.

77    Mr Knowles submitted that no order for costs ought to have been made against him. Once again, to overturn on appeal, the exercise of a judicial discretion requires that Mr Knowles demonstrate some error of principle.

78    Mr Knowles put that a public interest was served by the case. He made reference to a number of cases in which, recognising this, the Court had, either in whole or in part, departed from the usual costs follow the event outcome in the exercise of a costs discretion: Singh v Minister for Immigration and Multicultural Affairs [1998] FCA 956, Shelton v Repatriation Commission (1999) 85 FCR 587 and Shafran v Repatriation Commission (No 2) [2020] FCA 1072. To these might be added, without in any way being exhaustive, Repatriation Commission v Braund (1991) 23 ALD 591 (Braund).

79    In some circumstances, and the complexity of legislative provision currently favoured by Parliament in relation to various veterans’ entitlements can offer these, a particular case can be seen to highlight an issue of pervasive importance in public administration concerning an ambiguously worded statutory provision, not just the mere application of legislation in a given case. In these circumstances and where the issue raised is truly moot, a departure from the usual costs outcome can be warranted. But something more than just a need to construe a federal statute must be entailed to warrant such a departure. In Braund, for example, the point at issue concerned a truly difficult point of the construction and application of veterans’ entitlement provisions concerning the special (or totally and permanently incapacitated) rate pension to a veteran beyond the usual retirement age in the general population. At the time, that issue had a pervasive importance to a generation of Second World War veterans then in just that situation. In these circumstances, Pincus J (then a member of this Court) declined to make an order for costs, even though the Repatriation Commission succeeded in the proceeding.

80    This case has none of those features. It concerns a purely private interest. There was no error of principle entailed in awarding costs in the usual way to the Secretary. These same considerations explain why it is that the usual order is appropriate in relation to the disposal of the appeal.

81    For these reasons, the appeal is dismissed, with costs.

Associate:    

Dated:    24 November 2021