FEDERAL COURT OF AUSTRALIA

Ogawa v Australian Information Commissioner [2013] FCA 866

THE COURT ORDERS THAT:

1.    The time for filing the application contemplated by Order 3 of the Orders of 25 July 2013, namely 22 August 2013, is extended to Monday, 2 September 2013.

2.    The costs of and incidental to the applicant’s interlocutory application are reserved.

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

REASONS FOR JUDGMENT

1    In the principal originating application, the applicant, Dr Megumi Ogawa, seeks review of decisions of the Australian Information Commissioner (the “Commissioner”) made under the provisions of the Privacy Act 1988 (Cth) made on 18 February 2011, 8 April 2011, 29 May 2013 and 14 June 2013. The applicant seeks review of those decisions under the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “ADJR Act”) and in the exercise of the Federal Court’s supervisory review jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) for the grant of the Constitutional writs on the footing of jurisdictional error on the part of the Commissioner in the purported exercise of powers under the Privacy Act.

2    Five grounds are identified in this way: the decisions involve error of law; were made taking an irrelevant consideration into account; were made failing to take a relevant consideration into account; no evidence or other material justified the making of the decision; and the applicant was not afforded procedural fairness in the making of the decisions.

3    The application filed on 26 June 2013 (so far as it relates to ADJR relief) is well beyond time in relation to the decisions of 18 February 2011 and 8 April 2011. Apart from some contended procedural irregularities, the application is filed within time in relation to the decisions of 29 May 2013 and 14 June 2013. The application came before the Court on 25 July 2013 for directions and review. By Order 3, the applicant was ordered to file and serve an application for an extension of time in relation to the matters said to be “decisions of the [Australian Information Commissioner] made on 18 February 2011 and 8 April 2011” together with an affidavit as required by the Federal Court Rules 2011 (Cth), in support of that application.

4    On 17 August 2013, the applicant formulated an application for an extension of time and caused affidavits in her name to be prepared dated 17 August 2013 and 21 August 2013. Each of those affidavits annexes a range of documents and sets out circumstances upon which the applicant would rely in support of the application for an extension of time. The affidavits are signed by the applicant but not sworn and thus the material has not been put in a proper final form as probative evidence of any matter the applicant relies upon. The material I have just mentioned was sent to the Australian Government Solicitor as the party on the record for the Commissioner. The material was sent to the Court but not accepted for filing as the affidavits are not sworn or attested.

5    Apart from that material, the applicant also sought to electronically file, on 25 August 2013, an interlocutory application supported by a further affidavit. The interlocutory application is dated 18 August 2013 and seeks an order that the time for filing and serving the applicant’s application for an extension of time for seeking an order of review of the two 2011 decisions, be extended until 27 September 2013 and that the principal proceeding be dealt with on the papers.

6    The affidavit in support of the interlocutory application for an extension of the time for filing the extension application itself, is dated 18 August 2013 and signed by the applicant. It is witnessed by the applicant’s General Practitioner, Dr Da Silva. In that affidavit, the applicant says that she has been suffering from a psychiatric disorder since 2006 and she is presently diagnosed as having an adjustment disorder. The applicant’s treating Psychiatrist is Professor Philip Morris. The applicant says that since 3 May 2013 she has been prescribed four anti-depressant drugs, an anti-anxiety drug and a mood stabilising drug under Professor Morris’s care, although these drugs have not been therapeutically very effective. The applicant says that she was told on 14 August 2013 by Professor Morris that she may be admitted to hospital if the present drug she is taking “does not work”. The applicant says that at the time of writing this affidavit, she is experiencing difficulty in working and handling stressful events. She says that she does not know when or whether she will recover. She says that she undertakes to the Court that she will swear this affidavit at the earliest possible opportunity.

7    The affidavit exhibits a letter from Professor Morris to a Clinical Psychologist, referring the applicant for psychological therapy in connection with her adjustment disorder in the form of 10 sessions.

8    On the basis of this material, the applicant seeks the extension to 27 September 2013 for the filing of the primary extension application concerning the two early decisions about which she seeks to review in the principal application itself.

9    The respondents to the proceeding apart from the Commissioner, are the Toowong Private Hospital, Michele Calvird and the Commonwealth Director of Public Prosecutions. The “decisions” of the Commissioner sought to be challenged concern steps taken in relation to information about the applicant by each of the second, third and fourth respondents in the particular circumstances described in the correspondence relevant to the events leading up to the Commissioner’s letter dated 18 February 2011; the Commissioner’s letter dated 8 April 2011, the Commissioner’s letter dated 29 May 2013; and an email from Ms Grover to the applicant dated 14 June 2013.

10    The Commissioner contends that the applicant’s interlocutory application for an extension of time for the filing of the primary extension of time application ought to be refused because no proper explanation for the delay has been given; the applicant has failed to appear in support of the application; the applicant previously failed to appear on 25 July 2013; the application fails to demonstrate any arguable ground of review; the applicant has failed to put on any sworn affidavit evidence and the signed but unsworn affidavits ought to be disregarded for present purposes; and, the two decisions of 2011 are now two years old and ought to have been the subject of review applications filed within 28 days of receipt of the relevant “decision” document. In addition, the Commissioner has an objection to competency concerning the entire principal application. The Commissioner also asserts that there are procedural irregularities in relation to the principal application in any event.

11    It seems to me that the proper course is to grant a further two week extension to the applicant for the filing of an application to extend time for seeking an order of review in relation to the two decisions in 2011. Leaving aside for the moment, the objections to the competency of the principal proceeding, the two decisions in 2013 will be the subject of the proceeding. The two decisions of 2013 have some degree of relationship or interconnection with the two decisions in 2011. An examination of the factual matters going to the decisions in 2013 will very likely involve, in the main, the same or substantially similar factual questions going to the decisions in 2011. Since those factual questions will be examined in the proceeding, there seems to be some merit in dealing with the challenges to the two earlier decisions, if a proper ground for an extension of time can be demonstrated.

12    Secondly, the proceeding involves an application for relief under the ADJR Act but also an application reliant upon s 39B(1) of the Judiciary Act. The factual circumstances which are said to give rise to jurisdictional error, namely, a denial of procedural fairness, are likely to be the same factual circumstances which would be addressed in dealing with the ADJR challenges to the first two decisions, subject to seeing the way in which the applicant frames the content of the grounds of review and jurisdictional error which are presently recited only in a shorthand conclusionary way in the grounds of challenge. The actual content of those challenges is not at all clear from the present formulation.

13    Thirdly, this is not a case where the applicant has abandoned the application. The applicant attempted to file an application for an extension of time supported by two primary affidavits, prior to 22 August 2013. It seems clear enough that the applicant seeks to agitate issues in relation to the first two decisions and although the material is not sworn and not in a proper form, the interests of justice are best served by providing the applicant with a short further opportunity to put that material in a proper form. However, it is clear that the applicant is sufficiently engaged with these questions to be able to formulate an urgent interlocutory application for further time to file the application for an extension of time and is sufficiently engaged with her affairs to be able to formulate an affidavit in support of the interlocutory application and an application for an extension of time and affidavits in support of that application.

14    Although Ms Ogawa places emphasis upon the letter from Professor Morris of 3 May 2013 as indicative of her present circumstances concerning the implications of her adjustment disorder and the need for psychological therapy, the applicant is sufficiently engaged with her affairs to have been able to prepare the material in draft which I have mentioned.

15    Although the applicant says that she does not know when or whether she will recover from the affects of her adjustment disorder, it seems to me that the applicant has demonstrated a capacity to be able to deal with the formulation of an interlocutory application and the preparation of the substantive extension application. I am not persuaded that further time to 27 September 2013 ought to be given to the applicant, although a short reasonable period ought to be afforded to her. I propose to make orders that provide the applicant with a further two week period to file and serve the application together with properly sworn and properly formulated affidavit material, for an extension of time. Once that application is filed and served I will take steps to list the extension application and the objection to competency for hearing and determination.

16    The costs of the present application will be reserved.

Associate:

Dated:    27 August 2013