FEDERAL COURT OF AUSTRALIA

Orfali v Australian Information Commissioner [2016] FCA 1386

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time is refused.

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

REASONS FOR JUDGMENT

MORTIMER J:

INTRODUCTION

1    The applicant, Mr Orfali, applies for an extension of time within which to file an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act).

2    Mr Orfali has filed:

(1)    an application for an extension of time within which to lodge an application for an order of review under s 11(1)(c) of the AD(JR) Act;

(2)    an affidavit affirmed on 4 October 2016 in support of the application for an extension of time;

(3)    a draft originating application for judicial review, in which Mr Orfali seeks review of a decision of a delegate of the Australian Information Commissioner dated 22 August 2016, made pursuant to s 41(1)(d) of the Privacy Act 1988 (Cth), not to investigate eight privacy complaints made by Mr Orfali under s 36 of the Privacy Act in emails dated 23 and 30 June 2016;

(4)    a copy of the reasons given by the delegate for her decision; and

(5)    an outline of written submissions in support of the application for an extension of time.

3    The respondent, the Commissioner, opposes the application for an extension of time and has filed an outline of submissions and an affidavit annexing correspondence between Mr Orfali and the Office of the Commissioner and documents provided to the Commissioner by Mr Orfali. The deponent of the affidavit is Ms Shannon Sainty, the delegate of the Commissioner who made the decision under s 41(1)(d) of the Privacy Act in relation to Mr Orfali’s complaint.

4    For the reasons that follow, the application for an extension of time must be refused.

PROCEDURAL BACKGROUND and relevant statutory provisions

5    Section 11(1)(c) of the AD(JR) Act, read with s 11(3), provides that an application for judicial review must be made within 28 days after the decision is furnished to the person affected.

6    Rule 31.02 of the Federal Court Rules 2011 (Cth) provides that a person who wants to apply for an extension of time within which to lodge an application for an order of review under s 11(1)(c) of the AD(JR) Act must file an application for an extension of time with a supporting affidavit and draft originating application.

7    Section 2A of the Privacy Act sets out the objects of the Act:

The objects of this Act are:

(a)    to promote the protection of the privacy of individuals; and

(b)    to recognise that the protection of the privacy of individuals is balanced with the interests of entities in carrying out their functions or activities; and

(c)    to provide the basis for nationally consistent regulation of privacy and the handling of personal information; and

(d)    to promote responsible and transparent handling of personal information by entities; and

(e)    to facilitate an efficient credit reporting system while ensuring that the privacy of individuals is respected; and

(f)    to facilitate the free flow of information across national borders while ensuring that the privacy of individuals is respected; and

(g)    to provide a means for individuals to complain about an alleged interference with their privacy; and

(h)    to implement Australia’s international obligation in relation to privacy.

8    Under s 6 of the Privacy Act, “personal information” is defined as follows:

personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:

(a)    whether the information or opinion is true or not; and

(b)    whether the information or opinion is recorded in a material form or not.

Note:    Section 187LA of the Telecommunications (Interception and Access) Act 1979 extends the meaning of personal information to cover information kept under Part 5‑1A of that Act.

9    Section 13 of the Act sets out acts or practices that constitute interferences with privacy:

Interferences with privacy

APP entities

(1)    An act or practice of an APP entity is an interference with the privacy of an individual if:

(a)    the act or practice breaches an Australian Privacy Principle in relation to personal information about the individual; or

(b)    the act or practice breaches a registered APP code that binds the entity in relation to personal information about the individual.

Credit reporting

(2)    An act or practice of an entity is an interference with the privacy of an individual if:

(a)    the act or practice breaches a provision of Part IIIA in relation to personal information about the individual; or

(b)    the act or practice breaches the registered CR code in relation to personal information about the individual and the code binds the entity.

Contracted service providers

(3)    An act or practice of an organisation is an interference with the privacy of an individual if:

(a)    the act or practice relates to personal information about the individual; and

(b)    the organisation is a contracted service provider for a Commonwealth contract (whether or not the organisation is a party to the contract); and

(c)    the act or practice does not breach:

(i)    an Australian Privacy Principle; or

(ii)    a registered APP code that binds the organisation;

in relation to the personal information because of a provision of the contract that is inconsistent with the principle or code; and

(d)    the act is done, or the practice is engaged in, in a manner contrary to, or inconsistent with, that provision.

Note:    See subsections 6A(2) and 6B(2) for when an act or practice does not breach an Australian Privacy Principle or a registered APP code.

Tax file numbers

(4)    An act or practice is an interference with the privacy of an individual if:

(a)    it is an act or practice of a file number recipient and the act or practice breaches a rule issued under section 17 in relation to tax file number information that relates to the individual; or

(b)    the act or practice involves an unauthorised requirement or request for disclosure of the tax file number of the individual.

Other interferences with privacy

(5)    An act or practice is an interference with the privacy of an individual if the act or practice:

(a)    constitutes a breach of Part 2 of the Data‑matching Program (Assistance and Tax) Act 1990 or the rules issued under section 12 of that Act; or

(b)    constitutes a breach of the rules issued under section 135AA of the National Health Act 1953.

Note:    Other Acts may provide that an act or practice is an interference with the privacy of an individual. For example, see the Healthcare Identifiers Act 2010, the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 and the Personal Property Securities Act 2009.

10    Section 36 of the Privacy Act provides for complaints to the Commissioner about potential interferences with privacy:

Complaints

(1)    An individual may complain to the Commissioner about an act or practice that may be an interference with the privacy of the individual.

(2)    In the case of an act or practice that may be an interference with the privacy of 2 or more individuals, any one of those individuals may make a complaint under subsection (1) on behalf of all of the individuals.

…

(3)    A complaint shall be in writing.

(4)    It is the duty of:

(a)    members of the staff of the Commissioner; and

(b)    members of the staff of the Ombudsman who have had powers of the Commissioner delegated to them under section 99;

to provide appropriate assistance to a person who wishes to make a complaint and requires assistance to formulate the complaint.

(5)    The complaint shall specify the respondent to the complaint.

(6)    In the case of a complaint about an act or practice of an agency:

(a)    if the agency is an individual or a body corporate, the agency shall be the respondent; and

(b)    if the agency is an unincorporated body, the principal executive of the agency shall be the respondent.

(7)    In the case of a complaint about an act or practice of an organisation, the organisation is the respondent.

…

11    Section 41(1)(d) of the Privacy Act provides for certain grounds on which the Commissioner may decide not to investigate an act or practice about which a complaint has been made:

Commissioner may or must decide not to investigate etc. in certain circumstances

(1)    The Commissioner may decide not to investigate, or not to investigate further, an act or practice about which a complaint has been made under section 36 if the Commissioner is satisfied that:

…

(d)    the complaint is frivolous, vexatious, misconceived, lacking in substance or not made in good faith; …

12    Ms Sainty’s decision was made on 22 August 2016 and furnished to Mr Orfali by email on that day. He was also informed of the decision by telephone on that day.

13    Twenty-eight days after this day expired on 19 September 2016.

14    Mr Orfali filed his application on 7 October 2016 (although it is dated 5 October 2016). It was therefore 18 days out of time.

DECISION SOUGHT TO BE REVIEWED

15    The course of events leading to the decision under review, and the nature of that decision, are set out in the affidavit of Ms Sainty, which was read by the respondent in the proceeding.

16    By a letter dated 23 June 2016 Mr Orfali lodged his complaints with the Commissioner. Ms Sainty deposed and Mr Orfali did not contest that the Commissioner had delegated to Ms Sainty the conduct of his privacy complaints. Mr Orfali had something to say about Ms Sainty’s level of experience, and did not agree with the delegation, but he did not suggest there was anything unlawful about the delegation. Mr Orfali also sent several other letters, adding to the considerable bundle of material he had initially lodged. The material he lodged consisted of more than 600 pages.

17    The entirety of that material was in evidence before me. It consists of lengthy documents composed by Mr Orfali setting out his concerns about which individuals, entities and agencies have what he considers to be unlawful access to information about him, and indeed to his own person. His complaint to the Commissioner also annexes to these documents extracts from publicly available material which Mr Orfali contended to the Commissioner contained references to him and insults and threats against him. The people and entities against whom the complaints were made were:

(1)    Nine Network Australia Pty Ltd

(2)    Australian Broadcasting Corporation

(3)    Minister for Education

(4)    Minister for Health

(5)    Department of Human Services

(6)    Attorney-General’s Department

(7)    Minister for Employment

(8)    Office of the Prime Minister

18    Mr Orfali also described in these documents what he considered to be a long and wrongful history of conduct by various mental health authorities, and hospitals, in relation to him. Mr Orfali pieced together information from a number of sources to which he referred and, through this piecing together, sought to make out his allegations that he had suffered from what he described in his complaint variously as “serious compromise to my privacy by paparazzi operatives with links to certain affiliated conglomerate media companies as well as Social Media and collusion from the Federal and State Governments” and “secret wheeling and dealing conferred by politicians that sought to take advantage of breaches to my privacy and the dissemination of information to seize opportunities pertaining to innovative ideas that were conceptualized and initiated by me were convened in favour of the self-interests of large conglomerate companies”.

19    In his complaint, Mr Orfali contended to the Commissioner that his privacy was breached by these individuals and entities in a broad range of ways, but one example was the following:

These deals were convened whilst I was being subjected to gruelling taunting via frequency operated types of inconspicuous Taser devices that were implanted on me in hospital settings and boasted about to a flagrant degree in the Oct. 2 2010 edition of the New Scientist and other supporting sources of information subject to the knowledge of respective State and Federal Governments Ministers and agencies, and convened via the implementation of antiquated draconian homophobic laws that were overseen by the Mental Health system and certain branches of DHS, and are being arrogantly censored irrespective how much proof I have provided.

20    The implanting of a device to which Mr Orfali refers appears to be related to medical procedures he underwent in June and July 2008. His references to the 2 October 2010 edition of New Scientist appear regularly throughout his material.

21    Some email correspondence occurred between Mr Orfali and Ms Sainty after he lodged his complaint, the details of which need not be set out. On 18 July 2016, Ms Sainty sent Mr Orfali an email attaching a letter from her about his privacy complaints. In substance this letter set out her then views about his complaints and indicated that she was inclined to decide not to investigate his complaints as she had formed the view they were lacking in substance. She invited Mr Orfali to respond to her then views in writing by 1 August 2016.

22    Mr Orfali did respond by the date given. His capacity to respond within the time Ms Sainty stipulated is not without significance to the present application for an extension of time. Indeed, Mr Orfali was able to submit an extra almost 200 pages of material with his response on 1 August 2016. However, he did ask for extra time to formulate a better presentation and thereafter Ms Sainty twice extended the time for his response. After he informed Ms Sainty and her superiors that his computer was broken, Mr Orfali was given a further extension. Finally, on 17 August 2016 Mr Orfali, in a series of emails, submitted another more than 50 pages of materials. On the evidence before me, the additional material he submitted was of the same kind and character as his original material.

23    Ms Sainty then deposes to what happened when she made her decision:

On 22 August 2016, I telephoned the Applicant and we had a conversation with words said to the following effect:

Me:    “I am calling to advise that OAIC has made a decision and we have not changed our view. Accordingly, we will be closing our files.”

Applicant:    “This is the wrong decision. I will be exercising my review rights.”

Me:        “Okay.”

Applicant:    “Why are the review rights external?

Me:        “Having an external review right allows for impartial review.”

On 22 August 2016, I sent an email to the Applicant, attaching a letter from OAIC addressed to the Applicant regarding his privacy complaints.

24    After this, the only substantive contact with the applicant was when he called the Commissioner’s enquiry line on 20 September 2016. He spoke to another officer, asking if the 28-day period within which to seek review of the decision was calendar or business days. This was after the 28-day period expired. He did not, in any event, file the application within 28 business days.

25    Ms Sainty gave comprehensive reasons for her decision under s 41(1)(d). Although lengthy, it is appropriate to set them out:

Your privacy complaints

You allege that your privacy has been interfered with by various entities. You have provided various documents that you consider support your claims, including the additional documents provided by you in your response to the OAIC’s preliminary view.

Some of the allegations you have made include:

•    that paparazzi with links to media companies such as ABC and Nine have compromised your privacy

•    that various State and Federal Government agencies and ministers have been involved in collecting and using or disclosing ideas that were conceptualised and initiated by you

•    that your physical privacy has been interefered [sic] with via implanted devices

•    that opinions regarding your sexuality, religion and race have been disseminated by various entities

•    that your privacy was compromised via social media with the Government’s knowledge

•    that your personal information and opinions about you have been disseminated via the medium of ‘New Scientist’ magazine by various entities

•    that a brochure for Superannuation contained threats against you.

Please note the above list is not intended to be an exhaustive summary of all your allegations.

Our view

Whilst I acknowledge that you consider you have provided clear and definitive evidence of the interferences with your privacy, I consider your complaints about the entities listed above, lack substance.

From the information you have provided, it appears your privacy concerns that fall within the OAIC’s jurisdiction primarily relate to the collection, use and disclosure of your personal information by the entities listed. However, I also acknowledge you state that this is ‘only partially true’ as you consider the scope of your complaints is much wider. I note you have referred to threats made against you, corruption and violation of your human rights, however these are not issues that fall within the OAIC’s jurisdiction.

I note you have provided numerous documents you consider support your claims. However, I do not consider these documents provide conclusive evidence that your personal information has been improperly collected, used or disclosed by the entities you have complained about, as you allege.

I note that section 6 of the Privacy Act states that:

Personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:

(a)    whether the information or opinion is true or not; and

(b)    whether the information or opinion is recorded in a material form or not.

The documents you have provided, such as copies of New Scientist articles, advertisements you have found in magazines, and the superannuation brochure of 2005, do not contain any information that reasonably identifies you.

The documents you have provided that do identify you do not demonstrate any interference with your privacy, as defined in the Privacy Act. Further, there is no information in your complaints or supporting documents to demonstrate a link between the events you allege have taken place, and the entities you allege are responsible.

I also note that much of your complaint relates to entities that would not be within the OAIC’s jurisdiction, or would fall under one of the exemptions in the Privacy Act. In relation to some specific allegations you have raised, I have outlined why the OAIC would not be able to assist below.

You have identified concerns regarding Nine and the ABC and various other media outlets. However, the Privacy Act exempts the actions of media organisations, when the act or practice is done in the course of journalism, as set out under section 7B(4). This means that the Australian Privacy Principles (the APPs) in the Privacy Act do not regulate the handling of personal information by media organisations, when it is done in the course of journalism. A media organisation can claim the exemption if it is publicly committed to observing published, written standards that deal with privacy in the context of the activities of a media organisation.

You have also identified concerns regarding various State bodies. I note the OAIC cannot deal with matters about State, Territory or local government bodies. This is because, with the exception of Norfolk Island, neither the Privacy Act or the Freedom of Information Act 1977 covers State and Territory government bodies, including local governments, public hospitals, public schools, public universities or state and local police. If your enquiry relates to a State or Territory government body, you will need to contact the relevant privacy or FOI regulator in your state.

You have raised concerns regarding the implanting of devices on/in your body. In the Privacy Act, the definition of ‘holds’ states that an entity only holds personal information if the entity has possession or control of a record that contains the personal information. As such, the OAIC cannot investigate interferences with your physical privacy.

Finally, I note that many of the incidents you have outlined in your complaints and supporting documents appear to have occurred more than 12 months ago. Section 41(1)(c) of the Privacy Act gives the Commissioner the discretion not to investigate a complaint if he is satisfied that the complaint was made more than 12 months after the complainant became aware of the act or practice. As such, even if there were substance to your complaints the OAIC would not investigate many of the allegations you have raised on the basis that they occurred a considerable time ago and you have been aware of them for more than 12 months.

I acknowledge your advice that you consider you have been pursuing your concerns consistently through other bodies and that you did raise concerns with the OAIC (at that time the Office of the Federal Privacy Commissioner) in 2003 and that, as such, s 41(1)(c) would not apply in your instance. However, I wish to clarify that the OAIC is not declining to investigate your complaint under s 41(1)(c) on this occasion. Rather the OAIC is alerting you to the fact that you would generally need to bring a complaint to our office within 12 months of been made aware that the act or practice has occurred.

Decision

I acknowledge that you consider the material you have provided to the OAIC contains information about you and threats directed at you that you find extremely distressing. However, based on the available information, I am unable to conclude that there has been an interference with your privacy under the Privacy Act.

Therefore, for the reasons set out above and in my letter of 18 July 2016, I have decided under section 41(1)(d) of the Privacy Act to decline to investigate your complaint on the grounds that it is lacking in substance.

THE PROPOSED JUDICIAL REVIEW APPLICATION AND MR ORFALI’S EVIDENCE

26    Mr Orfali contends his grounds of judicial review have merit. He also states that he “vehemently” disagrees with Ms Sainty’s decision. There is no doubt that is an accurate statement.

27    Despite the vehemence of his disagreement with Ms Sainty’s decision, Mr Orfali is confined under the AD(JR) Act to identifying errors of law, including errors relating to procedural fairness in the making of the decision. He is not able to challenge the outcome of Ms Sainty’s consideration simply on the basis that he disagrees with it. The draft application under the AD(JR) Act filed by Mr Orfali appears to identify three contentions which in my opinion can be characterised as grounds of judicial review.

28    The first is encapsulated in the following statement in the draft application:

I was pressured to present my case under duress and denied the proper opportunity to do that effectively and properly because of unjustifiably biased attitudes against me that the compromises to my privacy have caused.

29    This is a contention in the nature of a denial of procedural fairness.

30    The second is:

Proven disrespect and unjustified favouritism and nepotism.

31    The third is lengthy but is fairly encapsulated in the first part of what is otherwise a long series of contentions:

Prejudiced attitude enticed by biased opinion caused by the system that have unjustifiably allowed my privacy to be compromised in the biased way and to the intolerable degree …

32    As to the explanation for the delay in filing his application for judicial review, in his affidavit material and submissions (which I have considered together, since he is self-represented) Mr Orfali identifies the following explanations:

(1)    he wrongly assumed that he had 28 business days to file an application for judicial review;

(2)    he was “overwhelmed with the preparation of other things” he had discovered;

(3)    he is a self-represented litigant without legal advice;

(4)    the judicial review application was “taxing” on him;

(5)    he was stalked by what he described as “self-interest groups”, involving what he maintained were breaches of his online security and phone messaging;

(6)    he stated his computer’s anti-virus software had expired and his financial circumstances meant he could not upgrade that software; and

(7)    he asserted there had been obfuscation by the Department of Human Services which was “strategically schemed to deliberately restrict” him.

33    The respondent, after some correspondence from Mr Orfali, made some corrections and additions to the voluminous documents that formed exhibit SS1 to Ms Sainty’s affidavit, being the documents before the Commissioner as part of Mr Orfali’s complaint.

34    Mr Orfali’s oral submissions, in summary, were:

(1)    he did contact the Court on 20 September 2016 by email, and attempted to lodge forms by email but was told by the Court he could not file the documents in that way. He handed up, and I marked as exhibits, a series of emails proving that on 20 and 23 September 2016 he attempted to lodge his AD(JR) application and extension of time application;

(2)    that a lot of money was involved, which he was owed through intellectual property claims in relation to books he has written and inventions he has made and what he considers to be the unlawful use of his ideas;

(3)    he is under some financial difficulties and that contributed to him being unable to fix his computer. He claimed his computer was being hacked and he was worried that, in sending emails and documents to the Court, his privacy might be interfered with;

(4)    he could not get to the city to file documents in person because he has to take two large suitcases with him everywhere, which contain all his records and documents that he does not feel comfortable leaving anywhere, or with anyone, including his elderly parents;

(5)    he has found Ms Sainty rude and he is at a loss to see how the Commissioner can say the interferences with his privacy were not obvious;

(6)    he complained of “duplicitous connotations” in Ms Sainty’s correspondence. He extended this complaint to the respondent’s written submissions, which he said contained innuendo of sex and religion;

(7)    he complained about Ms Sainty’s name as a religious insult to him; and

(8)    he gave as an example from his documents before Ms Sainty his application for a police check at pp 289-92 to exhibit SS1. He claimed there were innuendos as to sex and religion in this document from Victoria Police. There are no such innuendos so far as I can see. However, attempting to understand and verify claims of this kind by Mr Orfali provides a good example of the kind of exercise Ms Sainty had to undertake.

APPLICABLE PRINCIPLES

35    In Luck v Secretary, Department of Human Services [2014] FCA 1060 I said (at [56]-[57]):

The discretion conferred upon the Court to grant an extension of time is available in order to “do justice between the parties”: Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 at 480 per McHugh J.

In considering whether to extend the time in which a notice of appeal may be filed, the Court takes into account any explanation for the delay, any prejudice to the respondent or other parties which might be occasioned if the extension of time were granted and the prospects of success of the appeal if an extension of time were to be granted. These considerations were set out in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348-349 per Wilcox J and have been applied consistently in this Court. This list is not exhaustive: the Court has a broad discretion and in a given case there may be other factors specific to the circumstances of an individual party which should be considered.

36    Those principles are applicable in the present application. Although Luck concerned an extension of time in which to seek leave to appeal, Wilcox J’s decision in Hunter Valley itself was a decision about an extension of time in which to seek judicial review under the AD(JR) Act.

37    In order to succeed in his application for judicial review, Mr Orfali would need to show that Ms Sainty made a legal error in deciding that Mr Orfali’s complaints were “lacking in substance”. In Assal v Dept of Health, Housing & Community Services [1990] HREOCA 8, Sir Ronald Wilson observed that it is “probably unwise to attempt to define” that phrase, but that:

A claim which presents no more than a remote possibility of merit or which does no more than hint at a just claim would ordinarily, I think, be found to be lacking in substance.

38    I respectfully agree.

RESOLUTION

39    The respondent opposes the grant of an extension of time, contending there is no reasonable explanation for Mr Orfali not filing his application within time, that the proposed grounds of review have no reasonable prospects of success, and that there are no other discretionary factors weighing in favour of extending time. The respondent properly accepts there would be no prejudice to the Commissioner if time were extended.

40    The evidence about his dealings with the Office of the Commissioner shows that Mr Orfali is well aware of the importance of time limits. He sought extensions of time and, it would appear, when they were granted, sought to do his best to comply with them. I find Mr Orfali is not the kind of person who deliberately flouts, or is reckless about, time limits. Rather, he attempts to be compliant with processes and rules for those processes. That has been the way he has behaved in relation to the conduct of this proceeding to date.

41    I accept his evidence that he was somewhat overwhelmed by the task of compiling his application for judicial review. On the evidence, it is clear Mr Orfali puts a tremendous amount of personal effort and time into the documents he prepares. I accept the documents he submits to various agencies, tribunal and courts are extraordinarily time consuming for him to prepare, and emotionally taxing. I also accept the email evidence he provided showing the efforts he made to file judicial review documents on, or at least near, the 28-day deadline.

42    If Mr Orfali had put forward any grounds of review which were reasonably arguable, and had some prospect of success, I would have been inclined to consider extending the time in which his application for judicial review could be brought. However, although I do not doubt the strength of his opposition to Mr Sainty’s decision, he has in my opinion not raised any arguable grounds of review. His prospects of success on judicial review are so low that I do not consider it is in the interests of the administration of justice to extend time, because on the material Mr Orfali has presented I am compelled to find his application will not be successful.

43    As to the first proposed ground of review (denial of procedural fairness), in my opinion Ms Sainty gave Mr Orfali more than a reasonable opportunity to be heard. In fact, she gave him a fulsome opportunity, in a sympathetic way. She was in correspondence and telephone contact with him, she allowed him to file additional documents on several occasions, and she (and then her superiors) granted several extensions of time. She also gave him notice, in writing, of what her current attitude to his complaint was and gave him a chance to deal with her preliminary approach. He availed himself of that opportunity and submitted another 200 pages of submissions and information.

44    The second and third proposed grounds of review can be dealt with together, because both complain of bias, in different language.

45    In Charara v Commissioner of Taxation [2016] FCA 451 Wigney J set out (at [112]-[115]) the applicable principles in assessing a claim of apprehended bias in relation to an administrative decision-maker. I respectfully agree with his Honour’s summary:

[T]he question is whether a fair minded lay-observer might infer from the Tribunal member’s conduct of the hearing that the Tribunal member might be predisposed against Mr Charara and not open to persuasion: that there was nothing Mr Charara could say or do to change the Tribunal member’s preconceived views: Re Refugee Review Tribunal; Ex parte H and Another [2001] HCA 28; (2001) 179 ALR 425 at 435[29]-435[31]; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531[71]; NADH of 2001 v Minister for Immigration and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 265 at 268[16]-269[19] (Allsop J, Moore and Tamberlin JJ agreeing); SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80.

Such an apprehension must be “firmly established”: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546. Allegations of apprehended bias must be “distinctly and clearly proved”: Jia Legeng at 531[69]; and should not be too readily acceded to lest parties are encouraged to have their applications heard and resolved by someone thought to be more likely to decide the case in their favour: JRL at 352.

The hypothetical reasonable lay-observer is integral to the objective test. The observer should not to be taken to be someone who is wholly uninformed and uninstructed about the matter to be decided: rather, they should be taken to be someone who had an understanding of the circumstances and nature of the proceeding: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [53] (Kirby J). They would be someone who was neither complacent, nor unduly sensitive or suspicious: British American Tobacco Services v Laurie [2011] HCA 2; (2011) 242 CLR 283 at 306[47] (French CJ); Johnson v Johnson at [53] (Kirby J).

In considering whether apprehended bias based on the conduct of a decision-maker in the course of a hearing has been made out, each case must be considered having regard to its own particular facts and circumstances. Observations and findings made in previous cases may be of some assistance. Care must be taken, however, not to transpose general statements or findings made in other cases to what may be quite different facts or circumstances in the matter under consideration.

46    A similar test applies for actual bias, although in that case what is examined is not the observations of a hypothetical observer, but the actual attitudes, circumstances and state of mind of the decision-maker. It is an allegation made less frequently, and rightly so. The key is, as the High Court said in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [7]-[8] (Gleeson CJ, McHugh, Gummow and Hayne JJ), the identification of what is said to be the matter or matters that might lead a person to decide the application other than on its factual and legal merits. This approach needs to be applied to allegations of both actual and apprehended bias.

47    In the present case, neither actual nor apprehended bias in making a decision on Mr Orfali’s complaint can be attributed to Ms Sainty.

48    There is no basis in the evidence to consider that Ms Sainty failed to bring an open mind to Mr Orfali’s complaint. It is clear from her reasons she spent an appropriate amount of time in understanding his complaint and trying to ensure she encompassed what he was concerned about. She then dealt with what he contended in a thorough way. Mr Orfali has not adduced any evidence which satisfied me Ms Sainty did not have a mind open to persuasion. Nor has he adduced any evidence to satisfy me that there was a reasonable apprehension of bias in respect of her decision-making process, in the sense described in the authorities.

49    Further, on the basis of the approach taken by Sir Ronald Wilson in Assal, it was open to Ms Sainty to consider there was nothing more than a “remote possibility of merit” in Mr Orfali’s complaint. I do not consider there is any arguable basis on which it could be said Ms Sainty’s decision was legally unreasonable in the sense described by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [63]-[76] (Hayne, Kiefel and Bell JJ).

50    It was open to Ms Sainty to determine that the kinds of disclosures relied on by Mr Orfali were not capable of constituting interferences with his privacy.

51    The respondent submitted, as examples:

30    In the present case, a review of the extensive materials which Mr Orfali provided in support of his privacy complaints shows that they contain broad and unsubstantiated allegations. The Commissioner does not propose to traverse each of the eight privacy complaints made by Mr Orfali, or the voluminous materials provided to the OAIC in support of the complaints, however two examples will suffice:

(a)    Mr Orfali alleges that a New Scientist magazine dated 2 October 2010, amongst other things, contains a plethora of untoward innuendos and messages of threats towards Mr Orfali, which are used to compromise Mr Orfali’s privacy. The New Scientist magazine does not contain any information that reasonably identifies Mr Orfali (directly or indirectly); and

(b)    Mr Orfali alleges that a 2005 superannuation fund brochure contains references to Mr Orfali’s religion, links to threats to kill Mr Orfali or other submissions posed by Mr Orfali. The brochure does not contain any information that reasonably identifies Mr Orfali (directly or indirectly).

52    I accept these are appropriate examples. Ms Sainty referred to the absence of any connection with the statutory concept of personal information in her reasons:

The documents you have provided, such as copies of New Scientist articles, advertisements you have found in magazines, and the superannuation brochure of 2005, do not contain any information that reasonably identifies you.

The documents you have provided that do identify you do not demonstrate any interference with your privacy, as defined in the Privacy Act. Further, there is no information in your complaints or supporting documents to demonstrate a link between the events you allege have taken place, and the entities you allege are responsible.

53    Ms Sainty also dealt with the limits on the Commissioner’s jurisdiction in relation to some of the matters above which Mr Orfali complained.

54    Finally, I do not accept Mr Orfali’s submissions that in her decision Ms Sainty made any offensive “innuendos” or “insults” of the kind he alleged, nor (as he contended) that any were made in the respondent’s submissions.

55    The application for an extension of time must be refused.

56    The Commissioner sought an order that Mr Orfali pay the Commissioner’s legal costs of the application, in the event it was refused. The Commissioner’s legal representative informed the Court the party/party costs to date were approximately $20,000. It is the case that costs would usually follow the event in an application such as this. However, the Court has a broad discretion under s 43 of the Federal Court of Australia Act 1976 (Cth). This was an interlocutory application for an extension of time, and the matter is being finally determined at an early stage. Mr Orfali has conducted the proceeding cooperatively and that assisted in securing an early hearing date. A costs order would represent a very large sum of money from Mr Orfali’s perspective. In the present case, I find that Mr Orfali’s apprehensions about the Commissioner’s decision, and the review function of this Court, are affected by his very personal views of the world around him and the threats and persecution he views himself as constantly subjected to. In circumstances where a person with those views of the world, and his place in it, seeks a remedy from a court in circumstances where there is clearly no legal basis for such a remedy, I do not consider it is in the interests of the administration of justice to place such a person under further pressure by the significant financial detriment of a costs order, which may then be enforced against him and cause him to suffer further harm. See also Ryan J in Gao v Federal Privacy Commissioner [2001] FCA 1683 at [11].

Associate:

Dated:    21 November 2016