Federal Court of Australia

Saffari v Australian Information Commissioner [2023] FCAFC 127

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of the appeal, to be assessed 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    Mr Saffari appeals from an order of this Court dismissing his application for judicial review of a Decision of the Australian Information Commissioner under s 39B of the Judiciary Act 1903 (Cth) and ss 5(1)(e) and (f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

2    By her Decision, the Commissioner found in favour of Mr Saffari in respect of a complaint he had made about an interference with his privacy by Amazon Commercial Services Pty Ltd and/or Amazon Services Inc contrary to the Privacy Act 1988 (Cth) and, in particular, contrary to Australian Privacy Principle 6 (APP 6). The Decision followed a Preliminary View, conducted by the Deputy Commissioner which, as its title suggests, indicated the preliminary findings and recommendations proposed to be made by the Commissioner and invited Mr Saffari and Amazon to provide comment in response. Mr Saffari did this by letters dated 19 July 2021 (July Submission) and 16 August 2021 (August Submission).

3    It was uncontroversial that Amazon had disclosed Mr Saffari’s identity to a third party as the anonymous author of a book he had self-published using a service provided by Amazon. In detailed reasons published on 30 August 2021 (Commissioner’s Reasons), the Commissioner ordered Amazon to pay Mr Saffari compensation of $3000 for proven non-economic damages for hurt feelings, including stress, humiliation, and feelings of anxiety, and attendance at counselling.

The appeal

4    By his Notice of Appeal filed on 9 September 2022, Mr Saffari raises 8 grounds of appeal. The gravamen of his appeal is threefold: first, by grounds 1, 2, 7 and 8, he contends the primary judge erred in failing to find that the Commissioner had omitted to consider a “submission of substance” concerning the issue of an apology as made in the August Submission; secondly, by grounds 4, 5 and 6, he contends the primary judge erred in failing to find that the Commissioner ought to have ordered Amazon to apologise; and thirdly, by ground 3, he contends the primary judge erred in failing to find the Commissioner had erred in her characterisation of Mr Saffari’s harm as “hurt feelings”.

5    On the hearing of the appeal, Mr Saffari handed up, without objection, a list of “Appellant’s Issues in the Appeal” and a “List of relevant OAIC decisions and Table of Quantum of Damages”. Mr Saffari identified the following as the relevant issues:

1.    The Commissioner failed to take into account the 16 August Submission.

2.    Alternatively, a vague reference to the Submission did not satisfy the “sufficient weight” test.

3.    The Submission was Mandatory Relevant Consideration.

4.    The Commissioner made errors in making the decision or her conduct related to making decision.

4.1    The Commissioner did not have the discretionary power to consider Mr Bezos’ wealth and social status and Amazon’s interest in making a Privacy decision.

4.2    The Commissioner erred as per 4.1 overruling the Deputy Commissioner and preventing Amazon’s apology.

(Emphasis in the original.)

6    In his written submissions, Mr Saffari purported to raise an allegation of bias based on the Commissioner’s use of the expression “hurt feelings”, and an unsubstantiated allegation that the Commissioner “has shown a trend of always awarding damages to female complainants and certainly the most damages to female complainants”. No ground of bias, whether apprehended or actual, was raised before the primary judge. Leave is required to advance it on appeal. In circumstances where such a ground is not raised in the Notice of Appeal, where leave has not been sought, and where no factual basis has been established that might sustain any such allegation, this Court will not entertain the purported ground of bias.

7    Similarly, the Court rejects Mr Saffari’s various allegations of corruption in respect of the Commissioner. No evidence was put before the primary judge, let alone tested, that would be sufficient to support such serious allegations. There is no basis for attempting to perpetuate them on appeal.

The Privacy Act complaints scheme

8    As was recorded by the primary judge (at PJ[6]), the centrepiece of the Privacy Act is a set of 13 principles which form the Australian Privacy Principles (APP) as set out in Sch 1. They range from principles concerning the open and transparent management of personal information (APP 1) through to the correction of personal information (APP 13). APP 6 deals with the use or disclosure of personal information.

9    Relevant to this appeal, the Privacy Act provides:

(a)    in s 36(1), that a person may complain to the Commissioner about an “act or practice that may be an interference with” their privacy;

(b)    in s 40(1):

Subject to subsection (1A), the Commissioner shall investigate an act or practice if:

(a)    the act or practice may be an interference with the privacy of an individual; and

(b)    a complaint about the act or practice has been made under section 36;

(c)    in s 40A(1), that if a complaint is made about an act or practice under s 36 and the Commissioner considers it is “reasonably possible that the complaint may be conciliated successfully”, the Commissioner must make “a reasonable attempt to conciliate the complaint”;

(d)    in s 52(1), that after investigating a complaint, the Commissioner may, inter alia, in accordance with sub-s (b)(i), make a declaration that a respondent “has engaged in conduct constituting an interference with the privacy of an individual and must not repeat or continue such conduct”, and in accordance with sub-s (b)(ii), make a declaration that the respondent “must perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant”.

10    Notably, s 52 of the Privacy Act does not oblige the Commissioner to give reasons for a determination; all that is required is that the Commissioner state any findings of fact on which the decision is based. The Privacy Act does not expressly specify any considerations that the Commissioner must take into account in determining which sort of declaration she should make, nor the content of any such declaration. Nevertheless, it is uncontroversial that the Commissioner is obliged to consider “claims” or “issues” or a “submission of substance” that was clearly articulated during an investigation: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 at [24]. As Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 45:

It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.

Did the Commissioner fail to consider the August Submission?

11    The issues Mr Saffari has identified in Issues in the Appeal as 1 to 3 are directed to this question and relates to Notice of Appeal grounds 1, 2, 7, and 8. The August Submission is a letter dated 16 August 2021. The date at the top of the first page had the month “July” in error, but the conclusion had the August date beneath Mr Saffari’s signature, and it was attached to an email sent by him on 16 August 2021. That letter said:

[12]    Amazon has accepted “the importance of apologies as potentially assisting in rectifying a complainant’s feelings of embarrassment and distress”. That, in this case, is understated.

[13]    Amazon is also trying to build on the Preliminary View that “anyone” at Amazon can apologize to me, by asking OAIC to further water down the apology while dictating its contents verbatim.

a)    That I may use the apology in any future legal action is irrelevant to this proceeding.

[14]    Therefore, I place on record that I will end all matters with the OAIC if one (1) of the following decisions is made, a Sincere Apology or Appropriate Compensation:

a)    An Official Admission of Guilt and Apology directly from Jeffrey Bezos (Amazon Chief Executive and the entity ultimately vicariously liable at relevant time).

Or

b)    Compensation in the amount of $9,000 for Pecuniary Loss, $45,000 for Non-Pecuniary Loss and $120,000 for Aggravated Damages.

[15]    Amazon’s dictated apology is as follows:

“Amazon acknowledges that in the course (sic) responding to a valid third party complaint in relation to your book [name redacted], Amazon provided your email address and name to the third party. Amazon regrets that this disclosure interfered with your expectation of privacy.”

[16]    My suggestion for an apology is as follows:

...... for myself and on behalf of Amazon please accept my apology.

Amazon acknowledges that in the course of responding to a third party complaint in relation to certain facts stated in your self-published Book sold by Amazon, Amazon provided your private information to the third party.

Amazon apologizes that this disclosure interfered with your privacy in contravention of the Australian Privacy Act 1988.

Jeffrey Preston Bezos

(Emphasis in the original.)

12    The August Submission responded to a letter from Amazon’s solicitors dated 10 August 2021 in response to the Preliminary View. As pertains to the issue of an apology, Amazon accepted that, as a general rule, apologies were important and may in some circumstances be restorative, but argued against that course in this case having regard to the contents of the book. The letter expressed the view that any apology may not necessarily achieve the objective of rectification and restoration, and that a written apology might be used by Mr Saffari for purposes other than rectification or restoration, referring to separate legal proceedings between him and Amazon.com, Inc, the Amazon parent company. Amazon’s letter concluded by stating:

[2.6]    Should the Preliminary View remain, notwithstanding the above, Amazon submits that such an apology be limited to the following wording:

Amazon acknowledges that in the course responding to a valid third party complaint in relation to your book [title redacted], Amazon provided your email address and name to the third party. Amazon regrets that this disclosure interfered with your expectation of privacy.

13    This paragraph made clear that Amazon remained unwilling to apologise but was willing to “express regret” that Mr Saffari’s “expectation of privacy” had been interfered with.

14    The primary judge held that the Commissioner did consider the August Submission (at PJ[21]-[22], [31]), and that, in any event, it was not a submission of substance that was capable of making any difference (at PJ[32]). The primary judge was correct to do so.

15    In her decision, the Commissioner said:

Reasonable act of redress – Apology

[142]    Under s 52(1)(b)(ii), I may make a declaration that the respondent must perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant.

[143]    The complainant initially asked for an apology. Where a complainant asks for an apology and the respondent is willing to give one, this can be a meaningful way to provide redress for the privacy breach. A declaration may assist in respect of the timing and means of an apology being provided.

[144]    The preliminary view expressed the view that an apology appeared to be appropriate and that the respondent may decide upon the most appropriate person from whom the apology may be provided. The complainant took issue with the latter aspect, but did not put forward an appropriate person or appropriate officer.85 The respondent has put forward submissions as to why it does not consider an apology appropriate.86

[145]    In these circumstances, I do not consider it appropriate to declare that the respondent provide the complainant with an apology.

85    C5.1 – Letter from the complainant to the OAIC dated 26 July 2021 pp 5-6 [16].

86    R2.1 – Letter from the respondent to the OAIC dated 10 August 2021 p 4 [2.1]-[2.5].

16    The letter from Mr Saffari, referred to at footnote 85 of the Decision dated 26 July 2021 above, was his initial response to the Preliminary View. In that letter he said:

[16]    Your Declaration that Amazon must apologies could have brought a degree of satisfaction, but you even manage to demean the apology by qualifying it; and also how will that forced apology undo the damage?

a)    Apologies need to be more than mere platitudes.

b)    In your recommendation you state "I am minded to allow the Respondent the discretion as to the appropriate person to give an apology”.

c)    You belittle the apology by giving Amazon the option to issue a meaningless apology by a front desk receptionist, or the night janitor.

(i)    Something is fundamentally wrong with OAIC culture and attitude.

(Errors in the original.)

17    As the primary judge observed (at PJ[20]), although the August Submission was not referred to expressly in the part of the Decision at [142]-[145] dealing with the issue of an apology, or in the footnotes to those paragraphs, it had been referred to earlier in the Decision:

[112]     The complainant seeks compensation in the amount of $9,000 for economic loss, $45,000 for non-economic loss and $120,000 for aggravated damages.

18    That sentence had a footnote “C6.1 p 3 [14]”. Mr Saffari submitted that such a “vague” reference to the August Submission was not sufficient to satisfy the “serious weight” test, relying on the decision in Sordini v Wilcox [1983] FCA 57; 70 FLR 326, a case concerned with a decision not to assign a murder case to private practitioners but to the Public Defender. The majority of the Court held, on the facts in that case, that the Review Committee had erred in giving very little or no weight to the unfamiliarity of the Public Defender with the appellant’s case, the fact that the trial was only 7 days away, and the seriousness of the charge and likely penalty. The facts are not analogous to those of the present case.

19    As reproduced above, [14(b)] of the August Submission states “Compensation in the amount of $9,000 for Pecuniary Loss, $45,000 for Non-Pecuniary Loss and $120,000 for Aggravated Damages”. Mr Saffari contends that the Commissioner’s use of the words “economic” and “non-economic” as used in the July Submission, rather than the words “pecuniary” and “non-pecuniary” as used in the August Submission leads to the conclusion that she did not read the August Submission. That contention cannot be accepted.

20    The primary judge noted that although Mr Saffari had referred to those same amounts in an earlier letter dated 19 July 2021, he was “comfortably satisfied” that the Commissioner was referring to the August Submission for three reasons. First, the paragraph reference was correct in respect of the later letter. Secondly, the 19 July 2021 letter was listed in Attachment to the Preliminary View as “C4”, being the last document before the 20 July 2021 date of the Preliminary View. It logically followed that a designation of “C6” to a document would necessarily be to one dated later than 19 July 2021 and so the footnote reference at [112] of the Decision to C6.1 was to the August Submission. Thirdly, the Preliminary View had used the headings “economic” and “non-economic loss”. It is a reasonable inference that the Commissioner simply adopted language consistent with the Preliminary View.

21    There is no basis for the appellant’s submission that the footnote reference to the August Submission was as a result of the Commissioner doing a word search to find a reference to a paragraph she had read referring to money, as opposed to the Commissioner actually considering the August Submission. Nor is there any merit in the appellant’s submission that the content of the paragraph referring to the August Submission is inconsistent with the Commissioner having done so.

22    In any event, for the reasons given by the primary judge, the August Submission was not capable of affecting the Commissioner’s decision because it was based on the conclusion that she was not willing to impose a requirement for an apology if Amazon was not willing to do so. As referred to above, the primary judge was correct to conclude it was not a submission of substance, the failure to refer to which would amount to jurisdictional error.

23    The failure of an administrative decision-maker to respond to a substantial, clearly articulated argument relying on established fact is a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 73 ALD 321 per Gummow and Callinan JJ at [24] and [32], per Kirby J at [88], and per Hayne J at [95]. The failure to consider an argument will only constitute a constructive, and thereby jurisdictional, error if the argument is substantial in the sense that it is capable of altering the decision. As the Full Court said in DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146 at [54], “[i]n that sense, the requirement of substantiality is equivalent to considering whether the failure is material to the outcome”.

24    The application of the principle was explained by the Full Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]-[47]:

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason…

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

(Emphasis added.)

25    Nothing in the August Submission countered the finding reached by the Commissioner (Commissioner’s Reasons at [144]) that Amazon was unwilling to give an apology that went beyond an “expression of regret” should the Commissioner decide to adopt the recommendation in the Preliminary View. The August Submission did not raise an issue based on evidence that could have been dispositive of the issue as to whether the Commissioner should have ordered Amazon to apologise.

26    The appellant has not established any error in the reasoning by the primary judge.

27    Grounds 1, 2, 7, and 8 cannot succeed.

Did the Commissioner take into account separate legal proceedings?

28    Issue 4 of the Issues in the Appeal is directed to this question and relates to Notice of Appeal grounds 4, 5 and 6. Despite the reasons given by the Commissioner for not ordering that Amazon apologise, Mr Saffari contends the primary judge erred in failing to find that Amazon’s willingness to provide an apology was irrelevant and that the Commissioner’s decision had in fact turned on Amazon’s interest in separate legal proceedings, coupled with the Commissioner’s consideration of the “wealth and social status” of Mr Bezos.

29    This submission cannot be accepted. First, the Commissioner’s Reasons at [142]-[145], as set out above, are clear as to the reasoning behind her decision not to order an apology. Secondly, as made clear by the primary judge (at PJ[36]), there is no more than a bare statement in the Commissioner’s Reasons, at [144], that “[t]he respondent has put forward submissions as to why it does not consider an apology appropriate”. Thirdly, nowhere in the Commissioner’s Reasons can one discern any suggestion that Mr Bezos’ wealth and social status had been considered by the Commissioner. It appears that Mr Saffari may have been misled by the respondent’s written submissions before the primary judge in which it was submitted:

[51]    …the applicant nominated Mr Bezos – notoriously one of the world’s richest and most prominent men – to give an apology to him personally. It is not inconsistent with that nomination for the Commissioner to have concluded that the applicant had failed to put forward an “appropriate person or appropriate officer”.

30    Self-evidently, that submission post-dated the Decision and was merely speculative. Nothing in the Commissioner’s Reasons suggests that anything other than Amazon’s unwillingness to issue an apology was considered. There is no basis for Mr Saffari’s contention that the primary judge erred by deciding that it was within the discretionary power of the Commissioner to take into account the celebrity status and wealth of Mr Bezos. The Commissioner did not do so, and the primary judge made no such finding.

31    Similarly, there is no basis for Mr Saffari’s contention that the Commissioner “prevented” Amazon from giving an apology. The Commissioner’s refusal to order Amazon to apologise in no way prevented Amazon from apologising to Mr Saffari of its own free will.

32    Grounds 4, 5, and 6 cannot succeed.

Was the use of the phrase “hurt feelings” legally unreasonable or illogical?

33    Mr Saffari’s third Issue in the Appeal stems from the Commissioner’s use of the phrase “hurt feelings” to describe the psychological harm he sustained and relates to Notice of Appeal ground 3. Mr Saffari characterised it as having been legally unreasonable for the Commissioner to have described his claim in this way and criticises the primary judge for not having so found.

34    The Commissioner’s Reasons record:

[123]    On the information before me, I am satisfied that the privacy breach, namely, the disclosure of the complainant’s personal information to the third party, has caused the complainant non-economic loss in the form of hurt feelings and that it has caused them to seek counselling.

…

[127]    Having regard to the non-economic damage the complainant has established, namely, hurt feelings, including stress, humiliation and feelings of anxiety with attendance at counselling, I consider this matter warrants an award of $3,000.

35    This conclusion was reached after the Commissioner’s Reasons at [118] that “none of the evidence provided by the complainant sets out any psychological harm or any diagnosis”. In particular, the Commissioner referred to a letter from Mr Saffari’s treating psychotherapist which simply confirmed he was a current client and noted, at [120], that the letter “does not provide any insight into the treating psychologist’s view of how the privacy breach affected [Mr Saffari]”.

36    There is no basis for sustaining Mr Saffari’s contention that the Commissioner’s reference to his “hurt feelings” was illogical or unreasonable. Not only is it clear that the Commissioner was alive to Mr Saffari’s stress, humiliation, and anxiety and was simply using a short-hand expression to encompass those factors, but there was no evidence before the Commissioner to support any findings of psychological injury. In any event, Mr Saffari did not challenge the quantum of damages awarded.

37    There is no substance to Ground 3.

Disposition

38    For these reasons, the appeal must fail. There is no reason why Mr Saffari should not pay the respondent’s costs of the appeal.

Associate:

Dated:    10 August 2023