FEDERAL COURT OF AUSTRALIA

Simjanovska v Department of Human Services [2019] FCA 499

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review is summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth) and rule 26.01 of the Federal Court Rules 2011 (Cth).

2.    The applicant is to pay the respondents’ costs as agreed or assessed.

THE COURT NOTES THAT:

3.    Order 1 means that all of the claims against the respondents have been dismissed and the proceeding is at an end, subject to any appeal.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    By an amended originating application for judicial review filed on 3 August 2017 (the amended originating application), the applicant, Ms Elka Simjanovska, seeks relief against the first, second and third respondents, the Department of Human Services (the Department), the Secretary of the Department (the Secretary) and the Australian Information Commissioner (the Commissioner) respectively.

2    The many grounds set out in the 22 pages comprising the amended originating application are, with respect, vague, conclusory, repetitive, and confusing. However, it is apparent that the relief sought against the Department and the Secretary primarily relates to:

(1)    the alleged systematic and continuous “handling” of the applicant’s complaints to the Department dated 3 January 2014 and 8 April 2014 under the Privacy Act 1988 (Cth) (the Privacy Act), including it would seem a letter from the Department to the applicant dated 21 July 2014 in response to her privacy complaints; and

(2)    the creation and disclosure of a document by the Secretary entitled an “Employment Pathway Plan Agreement” (EPP) apparently dated 30 December 2013 in the applicant’s name without her knowledge and consent.

3    The applicant also challenges a decision by a delegate of the Commissioner, Mr Andrew Solomon who is an Assistant Commissioner, made on 22 February 2017 to exercise the statutory discretion under s 41(1)(a) of the Privacy Act not to investigate the applicant’s complaint.

4    Among other things, the amended originating application seeks orders: setting aside the Assistant Commissioner’s decision and reasons; for the Commissioner to investigate the applicant’s complaints and to review current practices for the assessment and investigation of complaints under the Privacy Act; for review of the respondents’ conduct in accordance with the Public Service Act 1999 (Cth); and for the respondents to respect the applicant’s privacy. The applicant also seeks damages suffered from the decisions and conduct of all three respondents.

5    By an interlocutory application filed on 17 August 2017, the Department and the Secretary seek an order that the proceedings against them be summarily dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) and rule 26.01 of the Federal Court Rules 2011 (Cth) (FCR). Summary dismissal is sought on the basis that the claims against the Department and the Secretary have no reasonable prospects of success, are frivolous or vexatious, are an abuse of process and disclose no reasonable cause of action. On 17 August 2017, the Commissioner also filed an interlocutory application seeking summary judgment pursuant to rule 26.01 together with costs on the grounds that the claims against the Commissioner have no reasonable prospects of success, are frivolous or vexatious, and disclose no reasonable cause of action.

6    While the application states that the conduct of the three respondents sought to be reviewed “include[s] but is not limited to” the matters raised in pages 3 to 19 of the amended originating application, I agree with the respondents that the Court should determine the interlocutory application on the basis that the amended originating application sets out the “four corners” of the applicant’s claim. In this regard, I have taken into account among other things that the applicant has been afforded an opportunity to amend her originating application and has in fact done so.

7    For the reasons set out below, the application should be summarily dismissed pursuant to s 31A of the Federal Court Act and rule 26.01 of the FCR with costs. I note in this regard that while the first and second respondents initially sought an order for indemnity costs, this application was not pressed at the hearing.

2.    THE APPLICATIONS FOR AN ADJOURNMENT

8    The applicant applied on several occasions throughout the hearing for an adjournment. The applications were based upon a number of grounds. First, the applicant objected to being served with four substantial volumes of material on the Friday before the hearing, which was on the following Monday. Secondly, the applicant said that the respondents had raised matters in the oral submissions which were new. Thirdly, the applicant said that she would not have enough time within which to take the Court to all of the documents filed by her and on which she relied. Fourthly, the applicant said that the respondents had been given more time to address the Court orally. Finally, the applicant submitted that she should have the opportunity to put on further evidence so that the Court does not decide the interlocutory applications without the “whole documentation”.

9    I refused those applications at the hearing and, while I gave a broad indication of my reasons, I stated that I would give my reasons in my decision on the interlocutory applications themselves.

10    First, the applicant had known that the interlocutory applications were set down for hearing since 13 December 2017.

11    Secondly, the applicant was given detailed submissions by the respondents well in advance of the hearing which set out their submissions and cross-referenced the documents, authorities, and statutory provisions on which they relied.

12    Thirdly, the applicant filed detailed submissions in response before the hearing in line with orders made by me at the case management hearing on 13 December 2017. I also note that at that case management hearing, I emphasised to the applicant the need for her written submissions to refer to the particular passages in the evidence on which she relied in order to ensure that the hearing of the interlocutory applications was able to proceed expeditiously.

13    Fourthly, two of the four volumes filed by the respondents simply reproduced in a convenient indexed compilation all of the relevant evidence and other documents filed in the proceeding on which the respondents and the applicant relied on the interlocutory applications. They did not contain any new material which had not already been filed. The remaining two volumes contained the cases and legislation cited by the respondents in their written submissions. While the index to the volumes of authorities did not include pinpoint citations, the relevant passages were identified in the respondents’ written submissions. However, in order to address any possible prejudice that the applicant might suffer as a result of the provision of the folders of authorities so close to the hearing date, I made orders with the respondents’ consent for the respondents to file and serve a revised index to the folders of authorities which identified the specific passages within the cases on which they relied, together with the specific legislative provisions relied upon. I also made orders giving the applicant an opportunity to file and serve written submissions four weeks after receipt of that revised index in which she could make submissions about the authorities. In affording the applicant four weeks by this order, I gave her two weeks more than she in fact requested.

14    Furthermore, the respondents’ interlocutory applications were listed for only half a day, although I indicated to the parties at the time of listing that I would not list a further matter in the afternoon without first advising the parties in order to address concerns raised by the applicant that half a day may not afford sufficient time for the hearing. In the event, the hearing ran for the entirety of the day for extended hours (10:15 AM to 1 PM and 2:15 PM to 5 PM). This was necessary partly because a substantial amount of time at the hearing was taken up with various concerns raised by the applicant about such matters as: the fact that in some documents filed, the “Department of Human Services” was referred to as the “Department of Human Services, Legal Services” to which she objected; concerns that she had been incorrectly referred to on the court file as “Mrs” and not “Ms” (a matter raised by the appellant at the previous case management hearing and apparently resolved by Registry following that hearing); the fact that documents already filed in the proceeding were reproduced in the Court books (described by the applicant as “double sets of documents”); the alleged existence of so-called “shadow proceedings”; and other matters. All of these matters were irrelevant to the applications for summary dismissal before the Court. I also note that the applicant largely focused her attention on these irrelevant issues notwithstanding the fact that I indicated to the applicant that raising matters outside the parameters of the interlocutory applications could reduce the time available for the hearing of submissions by her on those applications.

15    I also took into account that the applicant’s concerns that she would not have enough time to make all of her submissions orally could be ameliorated by orders permitting her to file further submissions after the hearing identifying any additional matters which she had lacked time to address orally, together with affording the respondents the opportunity to reply to any such further submissions. Orders were made to that effect at the end of the hearing in accordance with that intimation. In this regard the applicant had indicated that part of her concern was that she could not take the Court to each and every document annexed to her affidavits. However, I do not consider that that was the purpose of the hearing. The documents annexed to her affidavits exceeded 600 pages and the applicant was asked instead to focus upon directing the Court to the most important of those documents, that is, to those which she wished to highlight for the Court’s attention. As I have also already mentioned, the applicant had already been afforded the opportunity to file written submissions in which respect I had emphasised the need for her written submissions to refer to the relevant evidence. The applicant also in fact filed written submissions of some 27 pages.

16    Finally, I took into account that the Court’s duty is not only to afford fairness to an unrepresented litigant, but also to the other parties (see further below at [21]), and the obligation of the Court and the parties under ss 37N and 37M of the Federal Court Act. In this regard, it is relevant that the proceedings have already been on foot for quite some time with significant expenditure of costs, including by the holding of a number of case management hearings and the respondents providing informal production of documents in response to requests by the applicant.

17    Accordingly, I refused the applicant’s applications for an adjournment.

3.    EVIDENCE

18    In support of their application for summary judgment, the Department and the Secretary relied upon the affidavit of Ashley Tsacalos, solicitor, sworn on 17 August 2017. In support of the Commissioner’s interlocutory application, the Commissioner relied upon the affidavit of Kim Thanh Nguyen affirmed on 17 August 2017.

19    At the hearing, the applicant objected to the affidavits of the respondents’ solicitors being read, and without prior notice, applied to cross-examine the solicitors who had deposed in affidavits as to the basis for the applications by the respondents for summary dismissal. The applicant argued that the affidavits should have been sworn by the clients and not the solicitors. I refused that application. As I explained at the hearing, affidavit evidence on information and belief, as opposed to direct or personal knowledge, can be relied upon in support of interlocutory relief and is admissible under s 172 of the Evidence Act 1995 (Cth). The affidavits in question were filed in accordance with FCR rule 17.01(1) which requires an interlocutory application to be accompanied by an affidavit in support “if appropriate”. Furthermore, no notice had been given of any intention to cross-examine: cf FCR rule 29.09. More fundamentally, no proper basis was identified for permitting the exceptional step to be taken of allowing a party’s solicitor to be cross-examined and, as the respondents submitted, the affidavits in question deposed only as to non-contentious matters being the historical background to the proceedings and the interlocutory applications, and identifying the grounds on which the interlocutory allocations were made.

20    The applicant relied in opposition to the applications for summary dismissal upon her affidavit sworn on 2 August 2017 in support of her amended originating application and her affidavit sworn on 13 October 2017. As I have mentioned, there were voluminous annexures annexed to both of her affidavits and cumulatively the affidavits and their annexures run to over 650 pages.

4.    RELEVANT PRINCIPLES

4.1    Preliminary observations regarding the duties to unrepresented litigants

21    It is helpful at the outset to explain the duties owed to an unrepresented litigant. These duties are only to ensure that the unrepresented litigant is aware of her or his rights in respect of court procedure and evidence. The judicial officer is not required to endeavour to place the unrepresented litigant in a better position than a represented litigant; indeed, such an approach would be inappropriate because all parties are entitled to procedural fairness. As the New South Wales Court of Appeal held in Hamod v New South Wales [2011] NSWCA 375 (Hamod):

309    Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. In MacPherson Mason J, at [31] 534, noted that:

“A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as ‘fair’.”

310    However, the court’s duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]-[53].

311    Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. …

312    Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406; Clark v State of New South Wales (No 2) [2006] NSWSC 914.

313    The touchstone at all times remains that of fairness. …

(emphasis added)

22    This statement was approved, for example, by the Full Court of the Federal Court in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37] (Robertson J) (with whom Allsop CJ agreed at [47], and Mortimer J agreed at [56]) and in AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68; (2016) 241 FCR 30 at [39] (the Court).

4.2    Principles governing summary dismissal

23    Section 31A(2) of the Federal Court Act provides that the Court may summarily dismiss a proceeding or any part of a proceeding where it is satisfied that an applicant has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. For the purposes of s 31A, a proceeding or part of a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success: s 31A(3).

24    Rule 26.01 of the Rules relevantly provides:

(1)     A party may apply to the Court for an order that judgment be given against another party because:

(a)     the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

…

25    The test under r 26.01 is the same as that under s 31A: see e.g. Shammas v Canberra Institute of Technology [2014] FCA 71 at [13] (Foster J).

26    The relevant principles are well established and were summarised in Riva NSW Pty Limited v Official Trustee in Bankruptcy [2017] FCA 188 as follows:

45    First, the respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J).

46    Secondly, the intention behind the enactment of s 31A is “to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129-130 …”: White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 (White Industries) at 310 [54] (Lindgren J); see also Cassimatis at 271 [46] (Reeves J). In the cases to which Lindgren J referred in White Industries, the requirement had been expressed in such terms as “manifestly groundless” or “hopeless”. As Hayne, Crennan, Kiefel and Bell JJ held in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at 139 [52]-[53]:

52    … effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. … [I]t is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.

53    In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered.

47    Thirdly, the assessment required by s 31A of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at 408-409 [28] (the Court). That discretion includes whether to deal with the motion at once or at some later stage in the proceedings when the legal and factual issues have been more clearly defined: Butorac v WIN Corporation Pty Ltd [2009] FCA 1503 at [19] (Buchanan J); Cassimatis at 272 [50] (Reeves J).

48    In the fourth place, despite the threshold for summary dismissal having been lowered, the discretion must still be exercised with caution (Spencer at 131 [24] (French CJ and Gummow J) and 141 [60] (Hayne, Crennan, Kiefel and Bell JJ)). Consistently with this, the discretion is concerned “with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form”: White Industries at [50] (Lindgren J) (approved in Kowalski at 409 [30] (the Court); see also Spencer at [23] (French CJ and Gummow J)).

49    Finally, in his Honour’s helpful explanation of how these principles are to be applied, Reeves J in Cassimatis further explains at 271-272 [46] that:

… the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.

50    To illustrate the application of these principles, Reeves J explained at [47] that the moving party is more likely to succeed if she or he demonstrates that the applicant’s success relies on a question of fact that is fanciful, trifling, implausible, improbable, tenuous or contradicted by all the available documents or evidence. Conversely, his Honour explained that, as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter, in his Honour’s view, is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.

See also e.g. Takemoto v Moody’s Investors Service Pty Limited [2014] FCA 1081 (Takemoto) at [11]-[15] (Flick J) (recently approved by Markovic J in Tanioria v Commonwealth (No 2) [2017] FCA 1117 at [28]).

5.    BACKGROUND

5.1    The relationship between qualifying for a Newstart allowance and entering into a Newstart Employment Pathway Plan under the Social Security Act

27    The applicant’s central complaint is that the EPP and possibly also the documents attached to the EPP are false, were created without her knowledge or consent, and were unlawfully disseminated without her consent, contrary to the Privacy Act.

28    An EPP is a document created in order to meet the statutory requirements for a Newstart allowance under the Social Security Act 1991 (Cth) (the Social Security Act). Specifically, s 593 of that Act prescribes a number of criteria which a person must meet in order to be qualified for a Newstart allowance in respect of a period. These matters include “if the person is required by the Secretary to enter into a Newstart Employment Pathway Plan in relation to the period, the person enters into that plan” and further that “while the plan is in force, the person satisfies the Secretary that the person is complying with the requirements in the plan”: subss 593(1)(e) and (f) respectively.

29    Section 605(1) in turn provides that if a Newstart Employment Pathway Plan is not in force in relation to a person, the Secretary may require the person to enter into such a plan if the person is receiving or has made a claim for a Newstart allowance, or the Department is contacted by or on behalf of the person in relation to a claim for a Newstart allowance. The Secretary may also require a person to enter into another Newstart Employment Pathway Plan instead of an existing one under s 605(2). A Newstart Employment Pathway Plan must be in a form approved by the Secretary (s 605(4)). Furthermore a Newstart Employment Pathway Plan in force is required to contain terms with which the person is required to comply and which the Secretary regards as suitable for the person (s 606(1)).

5.2    The EPP created with respect to the applicant

30    The following matters are non-contentious and are taken from the annexures to Ms Simjanovska’s affidavit sworn 2 August 2017 in support of her amended originating application.

31    The EPP identifies Ms Simjanovska in typescript next to the word “Name” and appears to be dated 30 December 2013 (Court Book (CB) tab 2 at page 40). The Agreement concerns the period 29 November 2013 to 28 May 2014 and states that:

I agree to search for work by contacting 10 employers per fortnight between 29/11/2013 and 28/05/2014. I agree to report these job search contracts to Centrelink as required.

32    As noted in handwritten comments on the EPP in the Court Book (tab 2 at p. 40) made by Ms Simjanovska, she considered that the EPP contained false information created without her knowledge by Centrelink which in turn was disclosed to Local Employment and Training Solutions Sutherland (LETS) without her knowledge.

33    A number of documents appear to have been attached to the EPP, namely:

(1)    an undated and signed document entitled “Job Seeker’s Statement” (CB tab 2 at p. 50); and

(2)    an undated and unsigned document entitled “Centrelink Statement” (CB tab 2 at p. 51).

34    While the applicant seeks relief in relation to the EPP, her complaint to the Department is expressly premised upon the fact that she was receiving Newstart Allowance, as she stated in her letter of complaint under the Privacy Act to Centrelink dated 3 January 2014 (CB tab 2 at p. 38). It was common ground that the applicant did not sign the EPP but that she in fact received Newstart for the period covered by the EPP.

35    In a handwritten “Customer Statement” form dated 6 December 2013 (but stamped Centrelink Chatswood 10 January 2014) (CB tab 2 at p. 42), Ms Simjanovska stated that she had not claimed hardship from Centrelink in relation to her current claim for Newstart Allowance and sought to have the record related to hardship removed from the file.

36    By a letter dated 3 January 2014 to Centrelink, Ms Simjanovska claimed damages under the Privacy Act and requested that “some false information created by Centrelink in my name be corrected or deleted under the Privacy Act 1988”. She alleged among other things in the letter that the EPP had not been discussed with her and she had not been asked to sign it, and that this constituted a breach of the Privacy Act among other laws. She also alleged that the statement in the EPP that she had the goal of improving her capacity to work was false and sought its urgent removal.

37    Ms Simjanovska reiterated her complaints under the Privacy Act in a letter dated 8 April 2014 to Mr Tidwell who was a Deputy Secretary of the Department (CB tab 2 at p. 44).

38    On 1 July 2014, Ms Simjanovska wrote again to Centrelink enclosing an affidavit sworn by her on 1 July 2014 (CB tab 2 at p. 54) in which she deposed among other things that:

(1)    she registered her intention to claim Newstart allowance as a jobseeker for full-time employment at Centrelink Chatswood Service Centre on 13 November 2013 and later lodged a claim for Newstart allowance with Centrelink;

(2)    she was advised by an officer of the LETS employment agency in Sutherland on 19 December 2013 that Centrelink had granted LETS access to an EPP in her name;

(3)    she had not signed any EPP with Centrelink;

(4)    she had not been requested to sign any EPP; and

(5)    she has always had full capacity to work at all times since she registered her intention to claim Newstart allowance and had never agreed that her goal was to improve her capacity to work contrary to the statement in the EPP.

39    The Department responded to various complaints by Ms Simjanovska by a letter dated 21 July 2014. It advised that the Department had not identified an interference with her privacy under the Privacy Act and was therefore not in a position to offer compensation for her privacy complaints (CB tab 2 at p. 57). In particular, under the heading “Employment Pathway Plan”, it advised that:

You claim that:

•    the Department has falsely created an Employment Pathway Plan (EPP) and agreement on your record. You have advised the EPP was created without your knowledge and the Department did not obtain your signature.

•    The EPP contained an incorrect statement “to improve my capacity to work” in the “goal” section of this document. You have advised you were and continue to be actively looking for work.

•    The falsely created EPP was subsequently disclosed to your employment service provider, LETS Employment Services and this disclosure was a breach of your privacy and has reduced your prospects of gaining employment.

You have requested that the Department delete this EPP. You consider the creation of this EPP is a breach of your privacy.

Response

•    The Information Used to Generate the EPP (including the comment under the “goal” section) was collected during your New Start (NSA) claim interviews and is required by legislation in order to grant the payment. The pre-designed wording selected for you (including the comment under the “goal[”] section), was the most suitable based on the department’s assessment of your circumstances.

•    The department scheduled an appointment with you to review the contents of the EPP in which you declined to sign a new EPP. No corrections or deletions are required.

•    The department is authorised by law under section 202 the Social Security (Administration) Act 1999 (Admin Act) to disclose your EPP to the employment service provider.

•    The EPP cannot be deleted as the legislation required you to have an EPP.

The Department does not consider the collection, use and release of the information in this EPP to be an interference of IPP 8, IPP 9, IPP 10 or IPP 11. Therefore there has been no breach of your privacy.

(CB tab 2 at p. 179)

5.3    The decision by the Assistant Commissioner

40    On 19 December 2014, the applicant wrote a letter to the Office of the Australian Information Commissioner (OAIC) entitled “Amended Complaint under the Privacy Act 1988 against the Secretary of the Department of Human Services, and the Department of Human Services, Centrelink”. The letter stated that it had been amended on 20 December 2014 (CB tab 2 at p. 30).

41    On 22 February 2017, the Assistant Commissioner found that he was authorised by a delegation from the Commissioner to make the decision and exercised his discretion under s 41(1)(a) of the Privacy Act not to investigate the applicant’s privacy complaint on the ground that the Department had not interfered with her privacy (CB tab 2 at p. 68). The Assistant Commissioner’s reasons for exercising his discretion not to investigate the applicant’s complaint can be summarised as follows.

(1)    As the applicant’s allegations concern the Department’s acts or practices before and after 12 March 2014, both the IPPs and APPs apply (CB tab 2 at p. 62).

(2)    The Department had not interfered with the applicant’s privacy in disclosing the EPP created in accordance with the requirements of s 605 of the Social Security Act to LETS, even though the applicant had not consented to the disclosure. This was because the Department had disclosed the personal information lawfully under s 202 of the Social Security (Administration) Act 1999 (Cth) for the purpose of delivering effective work-related services. As a result, IPP 11.1(d) applied which allowed for the disclosure of personal information where the disclosure is required or authorised by or under law (CB tab 2 at pp. 62-63). Equally and for the same reason, APP 6 would have permitted the Department to continue to use and disclose the applicant’s personal information as contained in the EPP, to the extent that that occurred (CB tab 2 at p. 63).

(3)    The obligation under IPP 8 and subsequently APP 10.2 requiring the Department to take reasonable steps to ensure that the information it holds is accurate and up-to-date had not been breached (CB tab 2 at pp. 64-65). In particular, the Department had taken reasonable steps to comply with these obligations in having collected information directly from the applicant during interviews about her Newstart allowance in November and December 2013 and selecting an on-screen system option that the interviewing officer considered most suited the applicant circumstances. This was so notwithstanding that the applicant did not agree with the option selected and considered that she had full capacity to work.

(4)    With respect to the applicant’s request for the OAIC to compel the Department to amend its records in accordance with what she considered to be the correct information, in circumstances where the Department had refused to do so, it was required by APP 13.4 to take reasonable steps to make any statement by the applicant apparent to users of the information. However, it remained open to the applicant to accept the Department’s indication that, if she wished it to do so, the Department would attach a statement to her personal information outlining that she did not consider the information is accurate, complete and up-to-date (CB tab 2 at pp. 65-66).

(5)    The information in the EPP was not collected by the Department in breach of IPP 1. This was because it was collected for a lawful purpose under the Social Security Act and was necessary for the Department’s functions or activities because, in order for the applicant to qualify for a Newstart allowance, the Department was required to create an EPP under s 605 of the Social Security Act which was deemed suitable for the applicant’s circumstances (CB tab 2 at p. 66). Furthermore, as the information was collected directly by the Department from the applicant, the collection does not appear to have been by unfair or unlawful means.

(6)    Given information available on Centrelink’s website in relation to the EPP when the applicant’s information was collected, the Department had provided sufficient notice about the purpose for which information was collected to satisfy the requirements of IPP 2 (CB tab 2 at p. 67).

(7)    The applicant’s request for the EPP to be deleted on the basis that it was inaccurate was not a matter regulated by the Privacy Act. The EPP is a Commonwealth record which the Department is not required to destroy and the period of retention of a Commonwealth record falls under the jurisdiction of the Archives Act 1983 (Cth) (CB tab 2 at p. 67).

5.4    The procedural history of the proceedings in the Federal Court

42    These proceedings were commenced by an originating application filed on 27 March 2017. On 20 April 2017, Farrell J (then docket judge) ordered that the applicant was to file and serve any amended originating application for judicial review by 16 May 2017, together with an affidavit in support. No amended originating application was filed or served pursuant to those orders.

43    On 21 June 2017, Farrell J made orders in relation to informal document production from the respondents and afforded the applicant a further opportunity to file and serve any amended originating application for judicial review and affidavit in support on or before 31 July 2017.

44    On 28 June 2017, the applicant filed and served separate lists of documents which she requested be produced by the Department, the Secretary and the Commissioner. The Commissioner responded on 4 July 2017 by filing and serving a list of documents not provided to the applicant accompanied by an explanation to the extent to which the Commissioner was unable or unwilling to provide the documents requested in the applicant’s list. That list also stated that the Commissioner had provided documents requested by the applicant. The Department and Secretary responded on 6 and 7 July 2017 respectively by each filing and serving a schedule identifying the documents provided to the applicant explaining to the extent to which they were unable or unwilling to provide the documents requested in the applicant’s list.

45    An amended originating application was ultimately filed on 3 August 2017, supported by an affidavit sworn by the applicant on the previous day.

46    Following the filing and service of their interlocutory applications for summary dismissal by the respondents, Farrell J made orders on 29 August 2017 including that the applicant was to file and serve any material in reply to the interlocutory applications by 14 September 2017. No further material was filed by the applicant pursuant to those orders or otherwise in response to the interlocutory applications. Written submissions were filed in advance of the hearing of the interlocutory applications by all parties.

47    From this point the matter developed a somewhat complex procedural history, which required extensive case management by chambers. This history necessitated the making of certain unusual orders regarding the management of the proceedings. To provide context to these orders, I have provided a broad summary of the matter’s procedural history below.

48    On 6 December 2017 the applicant requested an adjournment of her first case management hearing before me. The applicant did this by way of a 6 page letter, in which she raised various matters and included allegations that there had been “unprecedented attempts to prevent [the applicant] from filing the documents” in the nature of “criminal attacks” and that she had been “sedated through … food and drinks”. The applicant further suggested that there were “illegitimate ‘shadow’ proceedings” on foot. Allegations of this kind were to be raised repeatedly in correspondence from the applicant, and for this reason I have set them out in some detail.

49    The matter was listed for case management on 13 December 2017, and orders were made timetabling the interlocutory applications for hearing. Those orders set the matter down for a half day hearing on 26 February 2018. The applicant filed submissions in accordance with those orders on 30 January 2018. At the hearing of the interlocutory applications for summary dismissal, I made further orders providing the parties an opportunity to file further evidence and submissions to address Ms Simjanovska’s concerns that there had been “interference” with the evidence filed by her to date.

50    On 19 March 2018, Ms Simjanovska emailed the Registrar complaining that she had been “improperly” removed from the Federal Court Registry by Court Security on 2 March 2018. On 13 April 2018, Ms Simjanovska emailed the Registry and, in an annexure to that email, claimed that she had been “insulted, attacked and abused” in a separate incident in Registry, and that the court officer’s requests for assistance from security were in order to make “unlawful compensation claims in an organized way, and by unlawfully using customers’ personal information”. I consider these accusations to be scandalous and without foundation. However, this correspondence raised serious questions as to the Court’s work, health and safety responsibilities in respect of those court officers serving Ms Simjanovska. I was also informed by Registry staff that it had been necessary to call the police to provide Court Security with appropriate support.

51    On Friday, 23 March 2018, Ms Simjanovska requested access by email to the transcript of the interlocutory hearing to assist her in preparing this further evidence and submissions. On 26 March 2018, and in light of the preceding matters, I made orders that

1. Subject to leave of the Court, the parties are to file any further material either:

a. electronically; or

b. during business hours, in hard copy at the front desk located on the ground floor of the Law Courts Building at 184 Phillip Street, Sydney, NSW 2000 (Law Courts Building).

2. Subject to leave of the Court, the applicant is not to attend the Registry of the Federal Court of Australia (Registry) in person.

3. The applicant is to be provided temporarily with a copy of the transcript of the interlocutory hearing dated 26 February 2018, which is to be returned to the Registry in accordance with Orders 1 and 2, within 28 days of the matter being finalised, including any appeal or application for leave to appeal.

THE COURT NOTES THAT:

4. A copy of the transcript referred to in Order 3 above will be available for collection by the applicant from the front desk located on the ground floor of the Law Courts Building from 10 am on Tuesday, 27 March 2018.

52    An email from Registry to Ms Simjanovska attached the orders and conveyed that my reasons for making the orders were to ensure that “all Court staff are to be treated with courtesy and respect at all times … [and] to ensure there is no further behaviour towards Registry and Court staff which is unacceptable, while also ensuring that parties’ access to the Court for the purpose of filing documents in the proceedings is unimpeded.” Ms Simjanovska made a number of requests for extensions of time in which to file her further evidence and submissions, and was granted an extension of time until 13 April 2018.

53    On 13 April 2018, Ms Simjanovska sought that I recuse myself from these proceedings, stay the proceedings, vary and/or withdraw the orders I made on 26 March 2018, suppress the orders of 26 March 2018, and grant her a further extension of time. These orders were sought solely by correspondence, and no application or affidavit in support were filed by the applicant. On 16 April 2018 Ms Simjanovska was informed of my view that no basis had been identified by her for my recusal and, as her previous extension of time had expired and no material had been filed by her as envisaged at the interlocutory hearing, I would proceed to decide the matter.

54    Ms Simjanovska foreshadowed her intention to appeal against my orders of 26 March 2018 in correspondence on 17 April 2018. The Court received a number of extensive emails from Ms Simjanovska stating her intention to file a formal application for my recusal. On 16 May 2018 I informed Ms Simjanovska that I had granted leave for her to file the proposed interlocutory application on or before 4 pm on Friday, 25 May 2018, but that it was not appropriate for any affidavit evidence to be filed on an application of this kind (see further DOQ17 v Australian Financial Security Authority (No 2) [2018] FCA 1270 at [2]; Perry, M A, Disqualification of Judges: Practice and Procedure – Discussion Paper (2001, Australian Institute of Judicial Administration) at 20-21 and the authorities referred to therein). No interlocutory application was filed. On 25 May 2018, Ms Simjanovska requested an extension of time to file the proposed interlocutory application. I granted a brief extension of time until 28 May 2018. On 29 May 2018, Ms Simjanovska requested a further extension of time. I refused that request, and explained that I considered she had been given ample time within which to file any application of the kind foreshadowed in April. On 8 June 2018 and 13 June 2018 the applicant again requested an extension of time to file the interlocutory application. Registry sent an email to Ms Simjanovska explaining at my direction that a decision had already been made regarding her requests for a further extension of time, and that I would not entertain any further requests for an extension of time which were made on the same basis as those previously pursued.

6.    RELEVANT STATUTORY PROVISIONS

6.1    The Office of the Australian Information Commissioner

55    The Office of the Australian Information Commissioner (OAIC) is established by s 5 of the Australian Information Commissioner Act 2010 (Cth) (the AIC Act), and consists of the information officers and staff mentioned in Part 3 of the Act. Section 10(1) of the AIC Act states that the Commissioner has the following functions:

(a)    the information commissioner functions;

(b)    the freedom of information functions;

(c)    the privacy functions.

56    The “privacy functions” are those set out in s 27 of Division 2 of Part IV of the Privacy Act (see the definition of “privacy functions” in s 9, AIC Act) and include the functions conferred on the Commissioner by or under the Privacy Act.

6.2    The Privacy Act: an overview

57    As the Commissioner explained in his written submissions, the Privacy Act regulates the way in which most Australian government agencies including the Department of Human Services, and certain organisations must handle personal information.

58    By amendments to the Privacy Act commencing on 12 March 2014 (the 2014 amendments), the Information Privacy Principles (IPPs) were replaced with the Australian Privacy Principles (APPs) for Australian Government agencies and organisations covered by the Privacy Act (collectively the APP entities). The APPs now regulate the use, storage and communication of personal information by government agencies. The amendments are relevant because the applicant’s allegations relate to acts or practices of the Department occurring both before and after 12 March 2014, as the Assistant Commissioner found. I note, however, that the first and second respondents submitted that it is unclear whether any of the allegations made by the applicant concern a breach of duties prior to 12 March 2014, and that nothing in the pre-March 2014 law would assist the applicant’s case for relief.

59    The objects of the Privacy Act are set out in s 2A which was inserted by the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) with force and effect on 12 March 2014. Section 2A provides that:

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.

(emphasis added)

60    As these objects make plain, therefore, the Privacy Act does not provide absolute protection to personal information. Rather, subs 2A(b) in particular recognises that a balance must be struck between protecting individuals’ privacy, on the one hand, and the discharge by governmental entities of their statutory functions, on the other hand. This is reflected in particular in statutory exemptions from the prohibition in s 15 upon governmental entities breaching an APP, as I next explain.

61    Section 15 provides that “[a]n APP entity must not do an act, or engage in a practice, that breaches an Australian Privacy Principle.” It was not in issue that the Department and Secretary are APP entities: see the definition of “APP entity” and “agency” in s 6(1) of the Privacy Act. The circumstances in which an Australian Privacy Principle may be breached are set out in s 6A(1) which provides that:

For the purposes of this Act, an act or practice breaches an Australian Privacy Principle if, and only if, it is contrary to, or inconsistent with, that principle.

(emphasis added)

62    It is apparent from the phrase “if, and only if” that s 6A(1) is intended to set out exhaustively the circumstances in which an act or practice may breach an Australian Privacy Principle.

63    In turn, s 13 deals with interferences with privacy and relevantly provides that:

(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.

64    “Personal information” is defined in s 6(1) of the Privacy Act after the 2014 amendments to mean:

… 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.

65    Before the 2014 amendments:

(1)    s 13(a) of the Privacy Act provided that an act or practice was an interference with the privacy of an individual if the act or practice breached an IPP in relation to “personal information” relating to the individual; and

(2)    “personal information” meant information or opinion (including forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

66    It was not in dispute that the information at issue in these proceedings is not “sensitive information” as defined for the purposes of the Privacy Act. However, it is accepted that the information is “personal information” for the purposes of the Act both before and after the 2014 amendments.

6.3    The Australian Privacy Principles in Sched 1, Privacy Act, and their predecessor principles

67    The Australian Privacy Principles are set out in Schedule 1 to the Act: see s 14(1), Privacy Act. The collection of personal information is covered by APP 3. Relevantly, APP 3.1 provides that:

If an APP entity is an agency, the entity must not collect personal information (other than sensitive information) unless the information is reasonably necessary for, or directly related to, one or more of the entity’s functions or activities.

68    As the Department and Secretary submit, the Australian Privacy Principles do not prohibit the use of personal information for the purpose for which it was collected (the primary purpose). However, the use and disclosure of personal information for a purpose other than the purpose for which it was collected (i.e. a secondary purpose) is governed by APP 6. Clause 6.1 of APP 6 proscribes the use of personal information about an individual for a secondary purpose save where the individual has consented to use or disclosure of the information, or clause 6.2 or 6.3 apply. Relevantly, clause 6.2 applies in relation to the use or disclosure of personal information about an individual if:

(a)    the individual would reasonably expect the APP entity to use or disclose the information for the secondary purpose and the secondary purpose is:

(i)    if the information is sensitive information—directly related to the primary purpose; or

(ii)    if the information is not sensitive information—related to the primary purpose; or

(b)    the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order; or

…

69    In addition, clause 10.1 of APP 10 requires an APP entity to “take such steps (if any) as are reasonable in the circumstances to ensure that the personal information that the entity collects is accurate, up-to-date and complete.” APP 11 also requires an APP entity holding personal information to take such steps as are reasonable in the circumstances to protect the information from misuse, interference and loss, and from unauthorised access, modification, or disclosure.

6.4    Complaints under the Privacy Act

70    An individual may make a complaint in writing to the Commissioner about an act or practice that may be an interference with privacy of the individual (s 36(1), Privacy Act). The complaint must specify the respondent to the complaint (s 36(5)). Subject to exceptions not presently relevant, s 40(1) of the Privacy Act provides that:

(1)    … 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.

(emphasis added)

71    However, under s 41(1), the Commissioner is not required to investigate complaints in certain circumstances but has a discretion where satisfied of certain matters:

(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:

(a)    the act or practice is not an interference with the privacy of an individual; or

(c)    the complaint was made more than 12 months after the complainant became aware of the act or practice; or

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

(da)    an investigation, or further investigation, of the act or practice is not warranted having regard to all the circumstances; or

…

(emphasis added)

72    As the Commissioner submitted, “[t]he scheme of the Privacy Act is such that the Commissioner is obliged to investigate a complaint made in accordance with section 36, unless the Commissioner reaches a state of satisfaction relevantly, as to the section 41(1)(a) matter.”

73    In this case, as I have already explained the delegate decided that he was satisfied that the acts complained of were not an interference with the privacy of Ms Simjanovska. As such, the jurisdictional precondition was ostensibly met and the discretion not to investigate, enlivened.

7.    CONSIDERATION

7.1    Overview

74    It is helpful briefly to outline the issues and the order in which they will be addressed, particularly given the confusing and prolix nature of the amended originating application upon which it has been necessary to endeavour to impose a comprehensible structure.

75    First, I address certain misconceptions apparent from the applicant’s submissions as to the nature of the interlocutory applications and the Court’s task in determining those applications. Secondly, I explain why the allegations of fraud, bad faith and similar serious allegations made as against the three respondents must be summarily dismissed. Thirdly, I consider whether the application for judicial review of the Assistant Commissioner’s decision has any reasonable prospects of success. My conclusions in this regard are that certain claims for relief are misconceived in law, and the allegation that the power in s 41(1) of the Privacy Act was not lawfully delegated to the Assistant Commissioner and remaining grounds of judicial review also have no reasonable prospects of success. Fourthly, I hold that none of the claims against the Department and the Secretary, including the apparent challenge to the Department’s letter of 21 July 2014, have any prospects of success. Finally, for the reasons then given, I find that the applicant should not be afforded a further opportunity to re-plead her claims.

7.2    Preliminary issues raised by the applicant’s submissions as to the nature of the interlocutory applications for summary dismissal and task of the Court in determining such applications

76    The applicant submitted that the respondents’ interlocutory applications for summary dismissal should be dismissed on a range of grounds. It is convenient to deal at the outset with a number of issues raised by the applicant relating to the nature of the interlocutory applications and the Court’s task in determining those applications. Relevantly in this regard the applicant submitted as follows.

(1)    The respondents’ interlocutory applications are unsubstantiated, have no reasonable prospects of success, are frivolous and vexatious, are intended to prevent a public hearing of her claims and her evidence, are unsupported by any proper grounds or reasons, and are not supported by any credible or “solid” evidence.

(2)    The interlocutory applications to dismiss her application “without a public hearing and without any evidence being tabled and determined at a public hearing before the Court [are] a gross and flagrant abuse of the judicial process and the judicial system of this country, it’s also unjust and unfair towards me as a self-represented applicant”.

(3)    There are still disputed issues about the evidence and, while the respondents produced some of the requested documents, they did not produce all of them, and the applicant reserves her rights to lodge an application for leave to issue subpoenas or notice to the respondents to produce.

(4)    Section 31A of the Federal Court Act and FCR rule 26.01(a) do not apply to her amended originating application.

77    These submissions, with respect, demonstrate a misconception about the nature of the respondents’ interlocutory application.

78    First, the respondents are entitled to bring an interlocutory application for summary dismissal under s 31A of the Federal Court Act and FCR rule 26.01(1)(a). No reason is given or is apparent as to why those provisions do not apply to this proceeding or to the amended originating application.

79    Secondly, as I explained at the hearing and in line with the principles earlier explained, the hearing of the interlocutory applications by the respondents is not a trial. To the contrary, an application for “summary” dismissal is an application for dismissal without a trial. In essence, the respondents contend that it is not in the interests of justice for the matter to proceed to a trial because the applicant’s application for substantive relief could not reasonably succeed. As such, contrary to the applicant’s submissions, it is in the nature of an interlocutory application for summary dismissal that the application is determined on an incomplete body of evidence and submissions: see Riva NSW Pty Limited v Official Trustee in Bankruptcy [2017] FCA 188 at [47], cited above at [26]. The very purpose of such an application is to avoid unnecessary expense and wasted resources, including those of the Court, in hearing a full trial of a proceeding which has no reasonable prospects of success and thereby to further the overarching purpose of the civil practice and procedure provisions in s 37M(1) of the Federal Court Act, namely:

… to facilitate the just resolution of disputes:

(a)    according to law; and

(b)    as quickly, inexpensively and efficiently as possible.

80    This includes, as s 37M(2) makes clear:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner;

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

81    Thirdly, for the reasons which I have earlier given, the test is not whether the interlocutory applications have any reasonable prospects of success but whether the applicant’s substantive application has any reasonable prospects of success. Nor can it be said that the interlocutory applications are frivolous and vexatious. To the contrary, they are properly made and indeed, for the reasons which I give, must be upheld.

82    Fourthly, while not a trial, applications for summary dismissal are ordinarily, and in fact in this case were, held in open court, i.e. the proceedings were open to the public.

83    Fifthly, it is not incumbent on the respondents to lead evidence to demonstrate that the applicant’s claims must fail on an interlocutory application of this kind even though some evidence on certain issues is relied upon by the respondents and may be taken into account in line with the principles earlier outlined. As I earlier explained, the applications for summary dismissal must be determined by undertaking a critical examination of the available materials and the law in order to determine whether the claims for relief in the amended originating application raise a real question of law or fact that should be determined at trial.

84    In the sixth place, the applicant alleged that she has reason to believe that “an illegitimate double, ‘shadow’ proceeding is possibly running with this proceeding”. The allegation is, with respect, incomprehensible and does not provide a reason as to why the Court should dismiss the interlocutory applications for summary dismissal.

7.3    Do the claims as against the respondents that the decision of the Assistant Commissioner was induced or affected by fraud have any reasonable prospects of success?

7.3.1    The allegations in the amended originating application

85    In the amended originating application, the applicant makes various allegations of bias, fraud and abuse of power as against the respondents. By way of example, the applicant alleges that:

(1)    the conduct of the Commissioner was “improper not just procedurally, but in law, also extremely biased, providing unjustified benefit to the First and Second respondent” (paragraph 2, amended originating application at page 4);

(2)    the decision by the Commissioner is “biased and provides improper and unjustified benefit to the First respondent and the Second respondent” (paragraph 3A, amended originating application at page 5);

(3)    the Commissioner exercised a discretionary power in bad faith (paragraph 4B, amended originating application at page 12); and

(4)    the Commissioner in making the decision has supported fraudulent activities (page 15, amended originating application).

86    Similarly, under the heading “Grounds of application”, the applicant alleges fraud against the respondents in the following terms.

(1)    Ground 9B(i) claims that the decision the subject of the proceeding, which appears to be a reference to the decision of the Assistant Commissioner, was induced or affected by fraud for the following reasons:

On the bases [sic] of all available evidence to me, as well as considering some of my previous experience with the First respondent, also other claims for breaches of the Privacy Act 1988, I claim that the EPP agreement was created in my name without any discussion with me and without my knowledge and my consent, also in a way that I consider was obviously pre-meditated, in order to be used for other improper and unlawful purposes, including for obtaining unlawful financial benefits by using my personal information without my knowledge. The EPP was created during the period when I was frequently visiting the offices of the First respondent to submit documents or fill [in] some other forms. I was in fact in the office of the First respondent on the day the EPP agreement has been created. However no one has told me anything about the EPP agreement and I was never requested to consider or sign any EPP agreement. However, false records have been created that the EPP has been discussed with me and that I have agreed with the EPP agreement, and that a copy has been given to me and that I made a Job seeker’s statement, when noting [sic] of these has actually happened. I wasn’t even informed that an EPP has been created in my name, or that I have to sign an EPP, or that information has been collected and used for this purpose. I consider that these are breaches not just of the Privacy Act 1988, but of the criminal law as well. However, it seems that the Third respondent has supported these activities with the decision given on 22 February 2017.

(2)    Ground 9B(ii) also alleges that every government employee is aware that these activities were unlawful and that they were undertaken at the time that a large number of other similar unlawful activities were undertaken with the applicant’s personal information by the first respondent. Grounds 9B(iii)-(vi) appear to describe factual background including allegations about correspondence with former Prime Ministers, other ministers, and judicial and other officers of the Court about the applicant’s complaints. Ground 9B(vii) asserts that the applicant has received evidence and some information indicating that the Department has “a double (shadow) administration that has been created for improper and unlawful purposes, which has also been used to interfere with customers [sic] privacy and create false records and claims for welfare benefits in customers’ names without the knowledge of the customers.” She also alleges that she has “reasons to believe that this double administration might have had a reflection or presence in the office of the Third respondent as well, and that this has had an impact on the decision that has been made by the Third respondent and is the subject of this originating application for judicial review.”

7.3.2    The allegations are without merit and vexatious

87    As is apparent, the allegations allege improper conduct of a most serious kind against the respondents, essentially reducing to fraud, bias, pre-meditated conduct intended to confer unlawful financial benefits on others, the creation of false records, bad faith, unspecified breaches of the criminal law, and the creation of a “shadow” administration for improper purposes.

88    Despite their seriousness, none of these allegations has been pleaded in accordance with the strictures applying to the pleading of fraud and similar allegations of misconduct: Banque Commerciale SA (en liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 285 (Mason CJ and Gaudron J). Yet such allegations are not lightly to be made. It is well established that a court is careful not to find fraud, bias, bad faith or other forms of misconduct unless they are distinctly pleaded and proved: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [15] (the Court); see also FCR rule 16.42, and Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486 at [26] (French CJ, Gummow, Hayne and Kiefel JJ). Thus, it is not sufficient to allege facts from which fraud, for example, might be inferred but which are also consistent with innocence: Davy v Garrett [1877] 7 Ch D 473 at 489 (Thesiger LJ).

89    These principles apply equally where, as in Bhagat v Global Custodians Ltd [2002] FCAFC 331 (Bhagat) and here, the litigant is unrepresented. As the Full Court explained in Bhagat:

13. … An allegation of fraud is a serious matter and must be particularised in a precise and clear manner: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538. It is quite inappropriate and unacceptable to make an allegation of fraud without proper particulars of the conduct relied upon. In the present case Mr Bhagat has used the expressions “fraud” and “fraudulent” indiscriminately, seemingly without regard to the consequences of what is conveyed by the use of those words

90    The observations in Bhagat are equally apt to describe the use of terms such as fraud in the amended originating application and in the applicant’s submissions. The amended application fails to give any particulars of the allegations including identifying the person or persons said to have acted unlawfully, their precise state of mind, whether they knew that the conduct was in breach of the law or were reckless, and providing any particulars from which that state of mind is to be inferred. The applicant also fails to identify the financial benefits said to have been obtained and the causal chain between the alleged unlawful state of mind and those unidentified benefits. Furthermore, beyond the mere assertion of unlawful financial benefits, the basis on which the allegation of actual or apprehended bias is alleged is not disclosed. In the circumstances, the allegations are scandalous and were inappropriately made.

91    In short, the bald and conclusory allegations in the amended originating application of fraud, bias, and other misconduct are made without any apparent basis, are vexatious, and do not disclose any reasonable cause of action.

7.4    Does the application for judicial review of the Assistant Commissioner’s decision have any reasonable prospects of success?

7.4.1    Jurisdiction to grant the relief sought against the Commissioner

92    Insofar as the amended originating application for judicial review of the Assistant Commissioner’s decision under the Privacy Act seeks orders setting aside that decision and requiring it to be re-made according to law, this Court plainly has jurisdiction to entertain the application under s 39B of the Judiciary Act 1903 (Cth) and s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). That said, the Court is limited on judicial review to considering only the legality of the Assistant Commissioner’s decision based upon the material before him: see further below at [108].

93    However, as the Commissioner submits, the Court has no jurisdiction under those provisions or the Privacy Act to make orders also sought as against the Commissioner to require him to undertake a review of current practices for the assessment and investigation of complaints under the Privacy Act and to establish practices reflecting the objects and requirements of the Privacy Act. This Court is vested only with jurisdiction with respect to “matters” and therefore in which there is some “immediate right, duty or liability to be established and determined by the court”: Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ).

94    Equally, an application for judicial review, even if successful in establishing a jurisdictional error or error of law, does not of itself entitle the person affected to damages as against the administrative decision-maker. Relief will lie under s 39B(1) against a Commonwealth officer, where a jurisdictional error is made, in the form of a writ of mandamus or prohibition or an injunction and associated orders in the nature of certiorari to quash the decision and declaratory relief. Nor do the ADJR Act or the Privacy Act confer power on the Court to make orders awarding damages in the event that a decision of an officer of the Commonwealth, such as the Assistant Commissioner, is set aside.

95    Finally, for the reasons set out at [137]-[139] below, the prayer for orders that the Assistant Commissioner (and other respondents) “respect [the applicant’s] rights on privacy” and for review of the Assistant Commissioner’s (and other respondents’) conduct “in accordance with the Public Service Act 1999” cannot succeed.

96    As such, the claim for orders generally relating to the Commissioner’s practices with respect to complaints and for damages have no reasonable prospects of success.

7.4.2    Does the allegation that there was no delegation of power by the Commissioner to Mr Solomon to consider the complaint have any merit?

97    Turning then to the application for judicial review, the applicant alleges first that the Assistant Commissioner lacked delegated power to consider and determine a complaint under the Privacy Act. The applicant also alleged that any such delegation was inconsistent with the requirements of the AIC Act. As such, the applicant contended that the Assistant Commissioner’s decision in relation to her complaint was invalid: see the amended originating application at pages 11-12, [3B].

98    The applicant expanded upon these allegations in her written submissions with respect to the first and second respondents and the third respondent filed on 30 January 2018 (CB tab 13 and 14 at pp. 820 and 833 respectively). In particular, the applicant alleged in her “Submissions in support of the applicant’s reply to the third respondent’s interlocutory application and in reply to the third respondent’s submissions” that:

(1)    “In the first instance during the period Mr Solomon was considering my complaint was a Director in the OAIC, and he was appointed as Assisting Commissioner only before the decision was given in relation to my complaint. However, I believe that all considerations and determinations of my complaint were done during the time Mr Solomon was a Director”.

(2)    When the applicant made enquiries about the delegation, she was informed that information about how the power was delegated was included on the OAIC website. The applicant alleged that this information “was just a general delegations [sic] of power which was referring to all employees of the OAIC, and it was written in a way that is inconsistent with the sections of the [AIC Act] which requires delegation of power to be given with specific information, including the timeframe for which the delegation of power is given. Mr Solomon didn’t have this kind of delegation of power from the Third Respondent, (the Commissioner)”.

(3)    The delegation of power on the Commissioner’s website was given by Mr McMillan, the previous Commissioner, and not the current Commissioner.

99    The alleged lack of delegated power was also raised by the applicant before the Assistant Commissioner. In his reasons for decision, the Assistant Commissioner found that he was authorised by delegation from the Commissioner to make the decision. While the applicant requested that the Commissioner personally review and assess her submissions, the Assistant Commissioner explained in his reasons that the Commissioner had seen no reason why the Assistant Commissioner could not decide the matter in the ordinary course, and using the usual procedures, of the OAIC’s privacy complaints handling process (CB tab 2 at p. 60).

100    In my view, the challenge to the Assistant Commissioner’s decision on the ground that he did not hold a delegation has no reasonable prospects of success.

101    First, s 25 of the AIC Act expressly empowers the Commissioner to delegate, in writing, all or any of his or her functions or powers to a member of staff of the OAIC, save for the functions listed in subss 25(a) to (l) inclusive, which have no application here.

102    Secondly, the uncontroverted evidence makes it plain that Mr Andrew Solomon had delegated power to consider and determine the applicant’s complaint. In this regard, the Commissioner relied upon the affidavit of Kim Thanh Nguyen affirmed on 17 August 2017 at [30]-[32] (CB tab 7 at p. 278) to establish that this claim could not possibly succeed. That evidence demonstrates that:

(1)    the instrument of delegation annexed to Ms Nguyen’s affidavit was made in writing by the then Australian Information Commissioner, Timothy Pilgrim, pursuant to s 25 of the AIC Act (CB tab 7 at p. 297);

(2)    that instrument delegated to Assistant Commissioner(s) certain functions under the Privacy Act including, relevantly, “Part V – Investigations, all functions and powers (except ss 52, 53B, 55B, 62, 66 and 68)” (CB tab 7 at p. 297-298);

(3)    at the time that he made the decision on 22 February 2017, Mr Solomon was an Assistant Commissioner, OAIC, in the Dispute Resolution Branch and he signed the decision in that capacity (CB tab 7 at p. 289);

(4)    the Assistant Commissioner’s decision was made under s 41 in Division 1 of Part V of the Privacy Act and therefore within the scope of the functions and powers delegated by the instrument.

103    Thirdly and contrary to the applicant’s submissions, the fact that “the delegation of power on the Commissioner’s website” may have been “given by Mr McMillan, the previous [C]ommissioner and not [Timothy Pilgrim], (the current Commissioner)” at the time that Mr Solomon made the decision cannot reasonably cast any doubt on the validity of his decision in circumstances where it is not alleged, and there is no evidence to suggest, that the instrument of delegation was not valid when made or that it had been revoked.

104    Finally, the question of how far in advance of making the decision Mr Solomon was appointed is irrelevant where there is no evidence to suggest that he did not hold a valid delegation at the time that he made the decision under s 41 of the Privacy Act.

7.4.3    Does the allegation that the Assistant Commissioner’s decision was otherwise tainted by error of law or jurisdictional error have any merit?

7.4.3.1    The remaining grounds on which the Assistant Commissioner’s decision is challenged

105    Multiple allegations are made in various forms in the amended originating application challenging the Assistant Commissioner’s decision. It suffices to illustrate the allegations by the following:

(1)    “I claim that this decision of the Third respondent [the Assistant Commissioner] is improper in law; also incorrect, inaccurate, misleading, and incomplete in facts. I objects [sic] to and I disagree with the decision of the Third respondent” (paragraph 1A, amended originating application at page 4);

(2)    the applicant strongly objects to and disagrees with a decision which was “not substantiated with any credible evidence” (paragraph 2A, amended originating application at page 5) and alleges that the Assistant Commissioner decided not to investigate the complaint despite the substantial evidence provided by her;

(3)    the decision is “unjust and unfair” (paragraph 5A, amended originating application at page 5);

(4)    the decision was based on incorrect, incomplete, invented, and fabricated facts provided in a form of submissions not signed by anyone on behalf of the Department (paragraph 6B, amended originating application at page 14);

(5)    the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made because the Assistant Commissioner:

(a)    took into account an irrelevant consideration;

(b)    failed to take into account a relevant consideration;

(c)    exercised a power for a purpose other than that for which it is conferred; and

(d)    exercised a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.

(paragraph 4B(a)-(c) and (e), amended originating application at page 12).

106    Finally, the applicant alleges that the third respondent exercised his powers unreasonably (paragraph 4B(f), amended originating application at page 12).

7.4.3.2    The grounds have no reasonable prospects of success

107    These remaining grounds of judicial review have no reasonable prospects of success for the following reasons.

108    First, in deciding whether the application has any reasonable prospects of success, it is important to emphasise the limited jurisdiction of the Federal Court on judicial review to interfere with the decision of the Assistant Commissioner. The discretion in s 41(1) of the Privacy Act is vested only in the Commissioner or a delegate and not the Court. The jurisdiction of the Federal Court is confined to deciding whether the Assistant Commissioner’s decision was made lawfully under the Privacy Act, that is, whether the Commissioner’s decision is invalid by reason of a jurisdictional error or tainted by a reviewable error specified in s 5(1) of the ADJR Act (noting that the latter substantially overlap with the former: Administrative Review Council, Federal Judicial Review in Australia (Report No 50, 2012) at p. 127 [7.7]). The Assistant Commissioner would make a jurisdictional error (and equally an error under s 5(1), ADJR Act) if, for example: he misunderstood the criteria by which to determine whether to exercise the discretion in s 41(1) of the Privacy Act not to investigate a complaint; his decision was legally unreasonable; he failed to take into account a relevant (mandatory) consideration in a way that affected the exercise of the statutory power; or he failed to hear and determine the applicant’s complaint in accordance with the requirements of procedural fairness (see e.g. Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 at 179 (the Court)). 

109    As such, is it not for this Court to exercise the discretion in s 41(1) of the Privacy Act for itself so as to determine whether or not the Commissioner or the Assistant Commissioner should investigate the applicant’s complaint: see by analogy Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). The question of whether or not this Court or the applicant agrees with the Assistant Commissioner’s decision is not a basis for finding that the decision is invalid or unlawful under the ADJR Act. It follows that the applicant’s strong disagreement with the Assistant Commissioner’s decision evident throughout the amended originating application and submissions is irrelevant. The only question for this Court is whether the discretion has been exercised by the Assistant Commissioner according to law.

110    Secondly and related to the first point, the discretion vested in the Commissioner by s 41(1) of the Privacy Act not to investigate a complaint is (relevantly) enlivened by the Commissioner subjectively being satisfied that the act or practice the subject of the complaint is not an interference with the privacy of an individual and not upon whether, objectively speaking, there is no such interference. In other words, it is a precondition to the making of a decision under s 41(1) not to investigate the complaint that the Commissioner reaches the required state of satisfaction: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ). In turn, where the power in question has been delegated (as here), the power may be exercised by the delegate upon the delegate reaching the required state of mind: see s 34A, Acts Interpretation Act 1901 (Cth). It follows that, to the extent that the applicant seeks to invite this Court to determine afresh whether or not there has been an interference with her privacy in the context of her challenge to the Assistant Commissioner’s decision, the claim cannot succeed.

111    Thirdly, the applicant contends that she had provided “substantial evidence related to [her] claims for continuous, frequent, systemic, also deliberate breaches of the Privacy Act 1988 …” by the first and second respondents, some of which is included in her complaint to the Commissioner dated 11 March 2015. To similar effect, the applicant also submits that the Assistant Commissioner had determined not to investigate her complaint dated 11 March 2015 “despite the large amount of solid evidence that is included in this complaint” which she alleges was ignored by the Assistant Commissioner. As earlier mentioned, she also contends that the Assistant Commissioner’s decision was unsubstantiated by evidence and that the Department and the Secretary provided only unsigned written submissions.

112    The Assistant Commissioner however, stated in his reasons that he considered all of the information which the applicant provided, including the additional information provided by her in response to further invitations by the OAIC made on 7 April 2016 and 31 August 2016: see the reasons of the Assistant Commissioner at pp. 1-2 (CB, tab 7 at p. 280). A reading of the Assistant Commissioner’s careful consideration of the material in his reasons bears out his statements in this regard.

113    Furthermore, insofar as the applicant contends that the Department’s response to the OAIC’s preliminary inquiries dated 8 May 2015 ought not to have been given any weight because they were unsigned as opposed to her submissions and affidavits, the Assistant Commissioner specifically addressed the applicant’s submissions and rejected it for the following reasons:

DHS’s response was provided under a covering email sent by DHS, and I accept that this constitutes DHS’s official response to the OAIC. Further, while the OAIC does not require signatures to be provided, DHS’s response was provided under the signature of Mr Mowbray-d’Arbela, irrespective of whether the signature precedes the attachment.

In addition, DHS has obligations under s 65(3) of the Privacy Act to “not furnish information or make a statement to the Commissioner knowing that it is false or misleading in a material particular.”

I do not have any reason to doubt the veracity of DHS’s response. In these circumstances I accept that it was provided in good faith in accordance with DHS’s obligations under the Privacy Act.

(Assistant Commissioner’s reasons at p. 10 (CB tab 7 at p. 282)).

114    In this regard, it must be stressed that the Assistant Commissioner was not bound by the rules of evidence in determining whether he was satisfied that there was no interference with the applicant’s privacy or otherwise in the exercise of the power: see e.g. by analogy Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 226 FCR 555 at [61], [96]-[97] (Flick and Perry JJ); Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [64] (Flick and Rangiah JJ).

115    It is clear from the passages quoted above that the Assistant Commissioner gave rational and logical reasons for rejecting the applicant’s submission that he should give the Department’s material no weight. There being no other error apparent in the Assistant Commissioner’s reasoning on this issue, an assessment of the weight to be given to the Department’s response was a matter entirely for the Assistant Commissioner to decide. It follows that the applicant’s disagreement with the decision in terms of the weight given to particular information is in truth a disagreement with the merits of the Assistant Commissioner’s decision, which this Court lacks power to consider on a judicial review application: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (Mason J); Federal Commissioner of Taxation v Primary Health Care Ltd [2017] FCAFC 131; (2017) 252 FCR 496 at [21] (the Court). .

116    Fourthly, the applicant alleges that the Assistant Commissioner’s decision is unreasonable. It is, of course, well established that the Parliament is taken to intend that a statutory discretion will be exercised reasonably: Jones v Office of the Australian Information Commissioner [2014] FCA 285 (Jones) at [19] (Greenwood J). However, as Greenwood J further explained in Jones by reference to binding authority of the High Court:

21. Importantly, however, a requirement of legality in decisionmaking that a decision be reached according to the rules of reason or, put another way for present purposes, reached reasonably, or not unreasonably reached, is not a vehicle for challenging a decision made in contended error of law and beyond power simply because “disagreement” is found with the “evaluative judgment” of the administrative decisionmaker. Challenging an administrative decisionmaker’s reasoning as illogical or unreasonable may simply be an emphatic way of expressing disagreement with the decision or the merits, and such emphatic disagreement may have “no particular legal consequence” (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J).

22. Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how the discretion should be exercised for that of the decisionmaker. …

23. The legal standard of reasonableness must be the standard indicated by the proper construction of the statute which identifies the express statutory conditions and specific requirements upon which the exercise of the discretion rests in determining whether the statutory power has been abused, as falling short of the statutory standard, as a matter of legality in decisionmaking ([Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li)] per Hayne, Kiefel and Bell JJ at [76]).

…

25. In this case, the decisionmaker was required to understand the obligation to have proper regard to the express statutory conditions upon which the exercise of the discretion rested. The more specific errors in decisionmaking to which Courts often have regard in the exercise of jurisdiction under, for example, the ADJR Act and the jurisdiction conferred on the Court by the Judiciary Act 1903 (Cth) are ultimately all encompassed by the notion of unreasonableness, measured and applied according to a legal standard indicated by the “true construction of the statute”, in determining whether the statutory power has been abused (Li, per Hayne, Kiefel and Bell JJ at [67] and [72]). Unreasonableness is a conclusion which may be applied to a decision “which lacks an evident and intelligible justification” (Li per Hayne, Kiefel and Bell JJ at [76]).

117    At a general level, it is evident that the applicant strongly disagrees with the Assistant Commissioner’s decision. However, as Greenwood J emphasises in these passages, the question is not whether the applicant or the Court disagrees, even strongly, with the decision under review but rather, whether having regard to the proper construction of the statute, the decision lacks an evident and intelligible justification.

118    More specifically, the applicant alleges that the Assistant Commissioner exercised his powers unreasonably in the following respect:

Considering valid an agreement between two parties, as the Third respondent has determined the EPP agreement in the decision given on 22 February 2017, where one of the parties has never heard of the agreement or has never seen the agreement; it has never discussed the agreement with the other party and has never considered and signed the agreement; and consequently it was never aware of the content of the agreement or the personal information included in the agreement; it’s something that no reasonable person can consider or determined as [a] valid agreement, or lawful agreement.

(Paragraph 4B(f), amended originating application at page 12).

119    The short point, however, is that the Assistant Commissioner was not seized with the task of determining whether the EPP constituted a valid or lawful agreement but relevantly with determining whether he was satisfied that there had been no interference with the applicant’s privacy. As such, the ground cannot succeed.

120    Otherwise, the applicant’s complaints, as best they can be discerned, disclose a misunderstanding of s 41(1) of the Privacy Act and, in particular, the evaluative judgment required to be undertaken by the Commissioner or his delegate in determining whether she or he is satisfied that there has been no interference with the applicant’s privacy as a precondition to the exercise of the discretion. As explained above, the question for the Commissioner is not whether, objectively speaking, there has been an interference with the applicant’s privacy. Rather, bearing in mind that the Act does not afford absolute protection to the privacy of individuals but “carves out” significant exceptions, the question was whether he was satisfied that there was no such interference for the purposes of the Privacy Act. It is clear from the explanation of the steps taken by the Assistant Commissioner which I summarised earlier at [41] above that he found that he was not so satisfied for rational, logical reasons based upon the information before him, applying the statutory framework under the Social Security Act pursuant to which the information was collected, used and disclosed by the Department. Those findings included, with respect to the applicant’s central complaints, that:

(1)    the Department had collected the information contained in the EPP for a lawful purpose because, in order for the applicant to qualify for the Newstart allowance for which she had applied, it was required to create an EPP under s 605 of the Social Security Act deemed suitable for her needs; and

(2)    despite the applicant having not consented to the disclosure, her personal information was lawfully disclosed by the Department under s 202 of the Social Security (Administration) Act 1999 (Cth) for the purpose of delivering effective work-related services.

121    As such, the Assistant Commissioner found that the collection, use and disclosure of the information was not in breach of the APPs and the precondition to the exercise of discretion in s 41(1) of the Privacy Act was enlivened.

122    Furthermore, there is no express limitation upon the stage at which the discretion in s 41(1) can be exercised. To the contrary, subject to the requirements of procedural fairness, the apparent purpose of s 41(1) is to empower the Commissioner to decide not to investigate a complaint or to terminate a complaint at any stage when she or he reaches the requisite state of satisfaction, thereby ensuring that public funds and resources are directed towards resolving potentially meritorious complaints. Thus, for example, there is no reason why it could not be exercised to dispose of a complaint without even calling upon the person the subject of the complaint to respond where the Commissioner is satisfied, for example, that the nature of the allegations are such that they cannot constitute an interference with an individual’s privacy and/or they are frivolous. That being so, it cannot be said to have been unreasonable for the Assistant Commissioner to have decided not to investigate the complaint at the time that he made his decision.

123    Fifthly, the applicant had requested that the Commissioner hold a hearing in relation to her matter under s 43A(1) of the Privacy Act. Section 43A(1) provides that an “interested party” as defined in the Act may request a hearing before the Commissioner makes a determination under s 52 of the Privacy Act in relation to the investigation. However, the Commissioner found that the applicant was not an interested party because no investigation had been opened into her allegations under s 40(1) of the Privacy Act. As such, the Commissioner correctly found that s 43A(1) did not apply and he was therefore not under any obligation to afford the applicant a hearing.

124    Finally the remaining grounds alleged against the Commissioner are unintelligible, unparticularised, and fail to specify the nature of the errors allegedly committed by the Commissioner. As the Commissioner submitted, they rise no higher than bare assertion. Nor were these grounds elaborated upon in oral or written submissions. In those circumstances, they must be dismissed: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J) (applying WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] (Judge Lucev) and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969 (Siopis J)). In this regard, it is important to emphasise that the onus would lie upon the applicant to demonstrate jurisdictional error if the matter were to proceed to trial: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [24] (French CJ, Bell, Keane and Gordon JJ). As such, the bare assertion of a reviewable error under the ADJR Act or jurisdictional error plainly cannot shift the onus to the respondents to disprove them.

7.5    Do the claims for relief against the Department and the Secretary have any reasonable prospects of success?

7.5.1    The apparent challenge to the Department’s letter dated 21 July 2014

125    Ground 7A on page 6 of the amended originating application under the heading “Details of claim” asserts that the “primary decision” of the Department under the Secretary’s supervision is “improper in law and in facts, also unjust and unfair, biased, encourage non-compliance with the privacy law, they are also contrary to the objects of the Privacy Act 1988.” Related to this, the amended originating application seeks an:

[o]rder of review in respect of the conduct of the [Department and Secretary] in … giving the primary decision on 21 July 2014, on the grounds provided by [the applicant] in this proceeding.

126    As such, the applicant appears to challenge the letter dated 21 July 2014 from the Department which responded to her complaints and is described at [39] above. Applying the principles earlier referred to, the applicant’s claims in this respect have no reasonable prospects of success.

127    First, the letter was not sent by or on behalf of the Secretary and as such, there is no apparent basis on which to seek relief against the Secretary.

128    Secondly, as the Department and Secretary submit, the preparation and sending of the 21 July 2014 letter was neither a “decision” made “under an enactment” for the purposes of ss 3(1) and 5(1) of the ADJR Act, nor conduct for the purpose of making such a decision for the purposes of s 6(1) of the ADJR Act. It was simply a letter responding to a complaint.

129    Equally and for the same reason, the letter itself did not affect any rights or interests. As such, it does not fall within the Court’s jurisdiction under s 39B of the Judiciary Act. In this regard, mere correspondence cannot of its nature be the subject of judicial review. Put another way, the impugning of correspondence does not give rise to a “matter” for the purposes of engaging the Court’s jurisdiction, as in such a case there is no “immediate right, duty or liability to be established and determined by the court”: Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265. Nor, where the letter had no legal operation or effect, could the letter be “invalid”. It therefore makes no sense to speak of reviewing the letter through the prism of an application for judicial review.

130    Thirdly and in any event, even if the letter embodied a decision or conduct for the purposes of the ADJR Act, any application under the ADJR Act for review of the “decision” would have been made substantially outside the 28 day period prescribed by s 11(1)(c) and (3) of the ADJR and no explanation has been given for the delay as required by rule 31.02(2)(a)(ii) of the Federal Court Rules.

131    Moreover, as the Department and Secretary also submit, the delay between the letter of 21 July 2014 and the commencement of this proceeding on 27 March 2017 is extreme. This delay, coupled with the lack of any explanation, would be a further factor telling strongly against the granting of any relief: see e.g. Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [52]-[57] (Gaudron and Gummow JJ) and DC v Secretary, Department of Family and Community Services [2017] NSWCA 225 at [123]-[134] (White JA (with whose reasons Beazley P agreed at [1])). As Latham CJ, Rich, Dixon, McTiernan and Webb JJ said in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 (Ozone Theatres) at 400 with respect to the writ of mandamus:

For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay … The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.

132    It follows therefore that on any view, the challenge to the letter of 21 July 2014 could not reasonably succeed.

7.5.2    The remaining claims as against the Department and the Secretary

133    The applicant seeks orders that the Department, Secretary and the Assistant Commissioner respect her rights of privacy and that their conduct be reviewed “in accordance with the Public Service Act”. The applicant also seeks damages against the Department and the Secretary, together with orders in the nature of injunctive relief that the EPP and associated documents be removed from the record and that the Department and Secretary review the practices and procedures for signing an EPP.

134    Under the heading “Details of Claim”, the applicant sets out the apparent basis on which these orders as sought as follows.

(1)    Grounds 3A and 4A allege that the Department has engaged in continuous and systemic breaches of the Privacy Act and has deliberately and unlawfully collected, used, and disclosed “a large amount of false, incorrect, misleading, also inaccurate and incomplete personal information”.

(2)    Ground 9A alleges that certain actions of the Department under the supervision of the Secretary constituted a large number of breaches of the Privacy Act “and other laws as well, including breache[s] of the criminal law”, namely:

(a)    the creation of the EPP in her name without her knowledge and consent and without collecting the information from her;

(b)    the disclosure of the document “to several third parties also without mu [sic] knowledge and my consent”;

(c)    the EPP’s inclusion of a document titled “Job Seeker’s statement” written by a person not known to her without her knowledge despite representing that it was written by her; and

(d)    a document titled “Centrelink statement” which falsely and incorrectly confirmed that the EPP had been negotiated with her and that a copy had been given to her.

As the respondents submit, it would appear that the “Job Seeker’s statement” is the document annexed to the applicant’s first affidavit at page 26 (CB tab 2 at p. 50), while the “Centrelink statement” is the document at page 27 of her first affidavit (CB tab 2 at p. 51): see above at [33].

(3)    Ground 17A contends that:

… all three respondents failed in their duties towards me, towards the public and the public interest, when considering my complaint under the Privacy Act 1988 to the Third respondent, dated 19 December 2014 and amended on 20 December 2014, and my primary complaint under the Privacy Act 1988 to the First respondent …

(4)    Ground 20A asserts that the applicant has claimed more than 100 breaches of the Privacy Act by the Department and the Secretary and that this constitutes a “continuous, systemic and flagrant breach of the privacy law” by the first and second respondents.

135    Finally the applicant sought to rely upon alleged unidentified procedural irregularities and breaches of natural justice referred to in the amended originating application and her replies which she requested the Court to consider “as they might have impact to the final outcomes of this proceeding”. As these alleged irregularities were not identified in the amended originating application or in the submissions, they can have no bearing upon the outcome of the interlocutory applications.

7.5.3    The remaining claims against the Department and Secretary must be dismissed

136    In my view the claims against the Department and the Secretary are without any merit and should be summarily dismissed.

137    First, as the Department and Secretary submit, the Court does not have power to issue relief in terms that the respondents “respect” the applicant’s privacy as sought in the amended originating application at page 20 at [3] under the heading “Details of claim”. No statutory or common law right is identified as the basis on which the injunctive relief is sought. Nor has the applicant adduced any evidence capable of establishing a reasonable basis for apprehending that the Department and Secretary may not in the future respect the applicant’s rights to privacy. Furthermore, the injunctive relief is expressed in such vague and imprecise terms that granting the relief sought would create uncertainty and place the respondents in a position where they would not know with precision what was required of them. Importantly, in this regard, injunctions are enforceable by way of proceedings for contempt of court. As, for example, Lockhart J explained in ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 259 (Gummow J agreeing at 263, and French J at 268):

Plainly injunctions should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction. Contempt proceedings are not appropriate for the determination of questions of construction of the injunction or the aptness of the language in which they are framed …

(Approved e.g. in Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at [19] (French CJ)).

138    As such, there are multiple reasons as to why a Court would not grant this relief.

139    Secondly, the applicant seeks an order for review of the conduct of the Department, Secretary and Assistant Commissioner “in accordance with the Public Service Act 1999” (paragraph 7, amended originating application at page 21). The claim is untenable. The Public Service Act establishes the public service, provides a legal framework for the employment, management and leadership of Australian Public Service (APS) employees, defines the powers, functions and responsibilities of Agency Heads, and establishes the rights and obligations of APS employees: see s 3, Public Service Act. In furtherance of those objects, the Public Service Act requires APS employees to behave “in connection with APS employment” in accordance with the APS Code of Conduct (s 13, Public Service Act). Sanctions for breaches of the Code may be imposed by an Agency Head under s 15. Provision is also made for the APS Commissioner to inquire into, and determine whether, an APS employee (or former APS employee) has breached the Code of Conduct if the Agency Head or Prime Minister requests the Commissioner to do so and the Commissioner considers that that is appropriate (s 41B(1), Public Service Act). Furthermore, the Merit Protection Commissioner has power to inquire into alleged breaches of the Code of Conduct under s 50A if requested by the Agency Head, if the Merit Protection Commissioner considers it appropriate to do so, and if the APS employee (or former APS employee) agrees to the Merit Protection Commissioner doing so. However, nothing in the Public Service Act confers any power upon the Court to make an open-ended order for review. Nor does the applicant identify any obligation owed to her under the Public Service Act which is engaged, as opposed to duties owed to the Commonwealth as the employer of APS employees, and therefore she has not identified any basis on which she would have standing to seek any such order. Furthermore, the Public Service Act does not impose obligations upon the Department, but only upon individuals.

140    Thirdly, the applicant seeks an order that the Department and the Secretary “set aside and remove from the record the EPP agreement and all associated documents to the EPP agreement that has been created in breach of the Privacy Act 1988” (paragraph 3, amended originating application at page 20 under the heading “Details of claim”). It must be acknowledged (as do the Department and Secretary) that the applicant appears to contend that she did not enter into the EPP. As the Department and Secretary also accepted, this may raise a question as to whether the EPP was capable of satisfying s 593(1)(e) of the Social Security Act. That section, it will be recalled, provides that in order to qualify for the receipt of Newstart allowance, the person must enter into a plan if so required by the Secretary. As such, it may have been that the applicant could have instituted proceedings in 2014 denying that she qualified for Newstart based upon her failure to enter into the agreement. It is unnecessary however to decide this as, perhaps not surprisingly, the applicant did not seek any such relief then and does not seek it in this proceeding.

141    There is however no tenable basis on which to grant the relief which the applicant does seek to effectively set aside the documentary foundation for her entitlement to Newstart payments which she in fact received. Specifically:

(1)    I agree with the submissions of the Secretary and the Department the premise on which the relief is sought, namely that a class of documents has been created in breach of the Privacy Act, has no reasonable prospects of success. Rather, as the Secretary and Department submit:

No relevant Privacy Act prohibition on the creation of documents is identified. There can be no cogent argument that any relevant documents were, say, created in breach of APP 3 (and, therefore, s 15). APP 3 only concerns the collection of personal information that is not reasonably necessary for, or directly related to, an entity’s functions. That principle applies to the collection of personal information, not the creation of documents on the basis of that information.

(2)    Moreover there are compelling factors militating against the exercise of discretion to grant relief of the kind sought, even if the EPP could be in effect “quashed”. In this regard, it is not in issue that the applicant in fact received the Newstart allowance during the period to which the EPP related (i.e. 29 November 2013 to 28 May 2014). Yet, as I have mentioned, entry into an EPP was a necessary foundation for the applicant’s entitlement to the Newstart allowance. As such, as the Department and Secretary contend, there is an inconsistency in the applicant both asserting an entitlement to challenge the EPP while retaining the benefits received by virtue of the EPP. Nor is there any utility in obtaining the relief sought in respect of the EPP given that its legal effect is now spent and that no party disputes the applicant’s entitlement to the Newstart payments paid to her between 29 November 2013 to 28 May 2014. The applicant’s significant and unexplained delay would constitute an additional compelling reason for refusing relief in the exercise of discretion to the extent that this claim relies on s 39B of the Judiciary Act (see e.g. the authorities referred to at [131] above). By reason of the delay, the claim made also falls substantially outside the 28 day period prescribed by s 11(1)(c) and (3) of the ADJR Act.

142    In all of the circumstances, therefore, there is no reasonable prospect that the Court would make orders setting aside and removing the EPP and unidentified associated documents from the public record.

143    Fourthly, the applicant seeks an order that the Department and Secretary review the practices and procedures for signing an EPP and develop strict procedures for signing such agreements. This claim is again unsustainable. As the Department and Secretary submit, the relief is not grounded in any legal right known to the law. To the contrary, the Court lacks jurisdiction to entertain the claim because it does not seek to vindicate any immediate right, duty or liability in common with the claim for relief against the Commissioner to require him to undertake a review of current practices under the Privacy Act (see at [93] above). Such matters are for the executive to determine and are not properly the subject of judicial power. Nor in any event will the Court issue a mandatory injunction which would not give complete and final relief, but instead would effectively require the Court to supervise the review and development of intra-departmental procedures: see by analogy JC Williamson Ltd v Lukey (1931) 45 CLR 282 at 297-298 (Dixon J) with respect to the remedy of specific performance in contractual disputes.

144    In the fifth place, the amended originating application does not identify any cause of action known to the law which could give rise to the claim for damages said to arise from the Department’s and the Secretary’s conduct. In this regard, not only is misfeasance in public office not pleaded, I agree with the Department and the Secretary’s submission that there is not a skerrick of evidence capable of establishing the essential elements of this deliberate tort and in particular the existence of “an intention to cause harm or [that] the officer concerned knowingly act[ed] in excess of his or her power”: Northern Territory v Mengel (1995) 185 CLR 307 at 345 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ). Nor on any view could the Department, which is not a legal entity, be a public officer for the purposes of the tort.

145    Equally, there is no general right to damages under the Privacy Act for a breach of the IPP and subsequently the APP with respect to personal information. Rather, while s 93 of the Privacy Act confers a right on a “confider” to recover damages from a confidant in respect of a breach of an obligation of confidence with respect to personal information, the applicant does not assert any obligation of confidence with respect to the information in the EPP or attached documents. Nor is there any allegation made that could constitute a breach of confidence or any evidence before the Court that might substantiate damage arising from the alleged conduct.

146    Finally, many of the factual claims made by the applicant in the amended originating application are unsupported by any credible evidence and, as the Department and Secretary submit, are “unhinged from any legal right”. For example, the applicant asserts against the Department and Secretary a breach of duty in relation to the consideration of her privacy complaint but fails to identify any source of a duty to consider that complaint.

7.6    Should the applicant be afforded a further opportunity to re-plead her claims?

147    Finally in my view, this is a clear case where no opportunity ought to be afforded to the applicant to re-plead her claims. First, the applicant has already had an opportunity to file and serve an amended application for judicial review and in fact did so on 3 August 2017. Secondly, the amended originating application was filed and served after informal production of documents was given to the applicant by the respondents. Thirdly, the applicant has filed a very substantial volume of evidence (as earlier explained), none of which substantiates her complaints. In the fourth place, the amended originating application is replete with bare assertions unsupported by any attempt to plead the material facts, contains inappropriate, unparticularised and unsubstantiated claims of serious misconduct, in many respects fails to identify any cause of action known to the law and is vexatious, and misapprehends the nature of the Court’s function on an application for judicial review and more generally. Finally, despite the exchange of detailed written submissions in advance of the hearing, the applicant did not endeavour to meet the difficulties with her claims identified by the respondents.

148    Given these considerations, there would be no utility in affording the applicant a further opportunity to attempt to re-plead her claims. To do so would impose an unjustified burden upon the respondents and be contrary to the interests of justice.

8.    CONCLUSION

149    For these reasons the applicant’s application is summarily dismissed with costs under s 31A of the Federal Court Act and rule 26.01 of the FCR.

Associate:

Dated:    11 April 2019