Federal Court of Australia

Rana v Australian Information Commissioner [2022] FCA 817

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the respondent's costs to be assessed by a registrar of this Court if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    Part V of the Privacy Act 1988 (Cth) deals with complaints and investigations about acts or practices that may interfere with a person's privacy. A person may complain to the Australian Information Commissioner (Commissioner) about an act or practice that may be an interference with their privacy (s 36), and if a complaint is made, the Commissioner is obliged to investigate it (s 40), except in certain circumstances (s 41). One of those circumstances is where the Commissioner is satisfied that an investigation, or further investigation, of the act or practice is not warranted having regard to all the circumstances (s 41(1)(da)).

2    In this case, the applicant, Mr Rana, made a complaint with the Commissioner relevantly about Yahoo!7 Pty Ltd (Yahoo) on 22 March 2017. Communications between Mr Rana and the office of the Commissioner proceeded for some years, during which time Mr Rana's complaint was augmented by the addition of another complaint about Yahoo.

3    On 29 March 2021 a delegate of the Commissioner declined to investigate the complaint, on the basis that she was satisfied that an investigation was not warranted, having regard to all the circumstances. Written reasons were provided.

4    Mr Rana seeks judicial review in this Court of the 29 March 2021 decision.

5    For the reasons that follow I have decided that Mr Rana's application must be dismissed.

Determined on the papers at Mr Rana's request

6    Mr Rana is self-represented. Over the course of several months, the Court corresponded with Mr Rana as to the manner in which his application might be heard. Initially it was listed for a hearing with submissions to be made by video link, having regard to COVID-19 directions that were in place at the time. Mr Rana sought an adjournment of that hearing and requested that the matter be determined on the papers. I indicated that the Court would ordinarily determine such an application after a hearing. However, Mr Rana continued to request that it be dealt with on the papers. The Commissioner was content to proceed on the basis that it be determined on the papers. In the circumstances, and having satisfied myself that Mr Rana had received every reasonable opportunity to participate in a hearing, I resolved to determine the application on the papers, and permitted both parties to provide supplementary submissions. I heard nothing further from Mr Rana on the question of a hearing between those communications and delivering these reasons.

The statutory context - s 41

7    Section 41 of the Privacy Act provides:

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

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

(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

(db)    the complainant has not responded, within the period specified by the Commissioner, to a request for information in relation to the complaint; or

(dc)    the act or practice is being dealt with by a recognised external dispute resolution scheme; or

(dd)    the act or practice would be more effectively or appropriately dealt with by a recognised external dispute resolution scheme; or

(e)    the act or practice is the subject of an application under another Commonwealth law, or a State or Territory law, and the subject-matter of the complaint has been, or is being, dealt with adequately under that law; or

(f)    another Commonwealth law, or a State or Territory law, provides a more appropriate remedy for the act or practice that is the subject of the complaint.

(1A)    The Commissioner must not investigate, or investigate further, an act or practice about which a complaint has been made under section 36 if the Commissioner is satisfied that the complainant has withdrawn the complaint.

(2)    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 the complainant has complained to the respondent about the act or practice and either:

(a)    the respondent has dealt, or is dealing, adequately with the complaint; or

(b)    the respondent has not yet had an adequate opportunity to deal with the complaint.

(3)    The Commissioner may defer the investigation or further investigation of an act or practice about which a complaint has been made under section 36 if:

(a)    an application has been made by the respondent for a determination under section 72 in relation to the act or practice; and

(b)    the Commissioner is satisfied that the interests of persons affected by the act or practice would not be unreasonably prejudiced if the investigation or further investigation were deferred until the application had been disposed of.

This Court's power of review

8    Mr Rana seeks a review of the decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). His application is said to be filed pursuant to r 31.01(1) of the Federal Court Rules 2011 (Cth), which refers to applications under the ADJR Act.

9    The ADJR Act applies to decisions 'of an administrative character made … under an enactment': s 3(1). It is not in issue that this Court has jurisdiction to review the decision.

10    Section 5 of the ADJR Act sets out the grounds on which a person who is aggrieved by a decision to which that Act applies may apply to the Court for an order of review. It relevantly provides:

Applications for review of decisions

(1)    A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the decision on any one or more of the following grounds:

(a)    that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)    that procedures that were required by law to be observed in connection with the making of the decision were not observed;

(c)    that the person who purported to make the decision did not have jurisdiction to make the decision;

(d)    that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(e)    that 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;

(f)    that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g)    that the decision was induced or affected by fraud;

(h)    that there was no evidence or other material to justify the making of the decision;

(j)    that the decision was otherwise contrary to law.

(2)    The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

(a)    taking an irrelevant consideration into account in the exercise of a power;

(b)    failing to take a relevant consideration into account in the exercise of a power;

(c)    an exercise of a power for a purpose other than a purpose for which the power is conferred;

(d)    an exercise of a discretionary power in bad faith;

(e)    an exercise of a personal discretionary power at the direction or behest of another person;

(f)    an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

(g)    an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

(h)    an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

(j)    any other exercise of a power in a way that constitutes abuse of the power.

11    Rule 31.01(3) of the Federal Court Rules provides that an application brought under the ADJR Act may be joined with an application for relief under s 39B of the Judiciary Act 1903 (Cth). Although Mr Rana's application does not refer to s 39B of the Judiciary Act, the Commissioner submitted that it had no difficulty with the review application proceeding as if Mr Rana also relies upon s 39B of the Judiciary Act. The judicial review jurisdiction conferred on the Federal Court by s 39B(1) of the Judiciary Act is, subject to presently immaterial exceptions, the same as that conferred on the High Court by s 75(v) of the Constitution. It is settled that, in the exercise of that jurisdiction, the High Court has a discretion as to whether or not to grant relief by way of a constitutional writ or ancillary remedy: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [5] (Gleeson CJ), [53]-[54] (Gaudron and Gummow JJ), [148] (Kirby J), [172] (Hayne J), [217] (Callinan J).

12    By his application Mr Rana seeks orders that the decision be set aside, and that the matter be referred back to the Commissioner for further consideration, together with a declaration as to his rights and any relevant orders necessary to do justice between the parties.

The events

13    It is necessary to set out the history of communications between the parties in some detail because, as will be seen, Mr Rana appears to raise an issue as to procedural fairness.

14    By email dated 22 March 2017, Mr Rana filed a complaint against Google, Bing and Yahoo with the Office of the Australian Information Commissioner (OAIC) under s 36 of the Privacy Act. Mr Rana alleged that their search engines breached his privacy by collecting and publishing his 'sensitive personal and health information'. In his complaint he listed eight URLs (web addresses) said to contain the relevant information.

15    On 22 April 2017 the lawyers for Yahoo! Inc and Yahoo, Johnson Winter & Slattery (JWS), wrote to Mr Rana, relevantly informing him that:

(a)    neither Yahoo! Inc or Yahoo control what is displayed on the website bing.com;

(b)    none of the websites accessible by the URLs that Mr Rana had referred to in correspondence with JWS (and apparently being those listed in the complaint) were owned or operated by Yahoo! Inc or Yahoo;

(c)    the websites accessible by six of the eight URLs did not appear to have any content at all, and that was also the position as at 31 March 2017; and

(d)    Yahoo could not take any further action because Mr Rana had not provided sufficient details of the specific material the subject of his correspondence, the action he wanted Yahoo to take or the legal basis upon which he sought removal of material.

16    Mr Rana replied to the JWS letter on 23 April 2017, noting relevantly that some of the issues about which he complained related to Google rather than Yahoo, but adding additional URLs to his list the subject of his complaint. He alleged the websites accessible by the URLs contained material that is defamatory and an interference with his privacy.

17    Mr Rana provided a copy of the JWS letter and his response to Ms Ji-Beom Jang, an Investigations Officer with the OAIC, on 22 and 23 April 2017 respectively.

18    On 17 May 2017 JWS sent a further letter to Mr Rana, stating that the scope of Mr Rana's earlier request remained unclear but in the interests of resolving the matter, and without admission, Yahoo would take steps to block the appearance of search results of ten URLs on https://au.yahoo.com. JWS also informed Mr Rana that despite the content of his communications, its clients did not accept that they were required to perform searches using terms that Mr Rana might identify, or to investigate any issues that might arise from such searches.

19    On the same day, Mr Rana emailed JWS asking that it also block a particular website (Janice Duffy blog or URL 1). JWS replied on 18 May 2017, informing Mr Rana that a complaint with respect to a specific website should be directed to its author, rather than Yahoo! Inc or Yahoo.

20    Also on 18 May 2017 Mr Rana emailed Ms Jang with the subject line 'yahoo has done good job and I am satisfied with the outcome'. The content of the email was 'Please see the attached file. Hope Google and Bing also could be more reasonable'.

21    In response, Ms Jang asked Mr Rana if she could close the complaint about Yahoo. Mr Rana replied by email dated 19 May 2017, saying 'Not yet as it has to do the same with Janice Duffy blog'.

22    On 21 May 2017 Mr Rana wrote to the Commissioner stating in effect that he was satisfied with the responses from Yahoo except in regard to the Janice Duffy blog, and repeating that accordingly he wished the complaint to remain open.

23    The relevant communications re-commence in August 2018. Tania Strathearn, an Investigations Officer with the OAIC, wrote to Mr Rana about a number of his complaints that were on foot, including the claim against Yahoo, indicating that inquiries were continuing and an update on the complaints would be provided in due course.

24    On 28 August 2018 Ms Strathearn sought additional clarification from Mr Rana about which online material he asserted remained in issue, and what was said to comprise 'sensitive personal information'.

25    Mr Rana replied on both 29 and 30 August 2018 (five emails in total), providing a long list of URLs and indicating that he wished search engines (presumably including Yahoo) 'to have them removed'.

26    Ms Strathearn replied by email on 31 August 2018, informing Mr Rana that even if the various search engines (including Yahoo) were to remove personally identifiable information from web searches, they have no control over the underlying websites.

27    Ms Strathearn also stated that as she understood Mr Rana's complaints, the privacy issues being considered by the OAIC were:

1.    Whether these respective entities are responsible for collecting your personal and sensitive information when indexing information from the web about you (Google, Bing & Yahoo), or accepting third party posts about you (Facebook, Instagram and Twitter), and if so:

a.    are they authorised to collect this information under Australian Privacy Principle (APP) 3 or APP 4, and

b.    have they taken reasonable steps to ensure that the personal information collected about you is accurate, up‐to‐date and complete, under APP 10.

2.    Whether these entities ‘hold' your personal information, and if so:

a.    are they authorised to use and disclose your personal information for the purpose of displaying search results (Google, Bing & Yahoo) or third party posts on social media platforms (Facebook, Instagram & Twitter), and

b.    have they taken reasonable steps to ensure that the personal information used and disclosed about you is accurate, up to date and complete, under APP 10.

In order to resolve your complaints, I understand that you would like Google, Bing & Yahoo to block these webpage URLs from appearing in their respective search results, and for Facebook, Twitter & Instagram to remove the third party posts from their respective social media platforms.

If you disagree with the relevant issues we are considering, or the outcomes you are seeking, please let me know. Otherwise I will be progressing my inquiries on this basis, and will endeavour to resolve your complaints by achieving these outcomes.

28    Ms Strathearn attached a table that listed all of the URLs referred to by Mr Rana in his various emails to her, and she asked him to provide a comment next to each URL explaining the information said to be sensitive as defined in s 6 of the Privacy Act.

29    On 11 September 2018 Ms Strathearn sent a follow up email, noting that Yahoo had previously blocked URLs that Mr Rana was said to be concerned about, and confirming that with respect to Yahoo it was only the Janice Duffy blog that remained in issue. Mr Rana replied on the same day, saying 'Yes, I confirm'. Ms Strathearn again checked by reply email, stating 'I will advise Yahoo that it is only that one remaining website URL that you wish to have blocked from its search results'. Again, Mr Rana replied, saying 'Ok, thanks'.

30    Ms Strathearn then wrote to Yahoo about Mr Rana's privacy complaint. Her letter informed Yahoo that to resolve the complaint, Mr Rana would like the Janice Duffy blog blocked from appearing in Yahoo search results. She informed Yahoo that if the matter could be resolved on that basis, it should let her know before providing further information that was requested, information that related to whether Yahoo considered it had 'collected' Mr Rana's sensitive information and if so, how the collection was necessary for one or more of Yahoo's functions.

31    Yahoo replied to the letter on 10 October 2018, indicating that Mr Rana should contact it direct with respect to any allegedly defamatory search results, including as to the Janice Duffy blog, noting Mr Rana had done so in the past. As to the privacy complaint, Yahoo said that it did not collect any personal information in relation to Yahoo search results. It said that it does not maintain its own search index, as results are provided to Yahoo by Google under a services agreement.

32    On 16 November 2018 Ms Strathearn emailed Mr Rana about a number of complaints, including the complaint directed at Yahoo, and said there would be an update in the following few weeks.

33    On 3 December 2018 Ms Strathearn wrote again to Yahoo but to a particular email address (legal director) that she had been informed by Yahoo was to be used for website removal requests. She repeated that Mr Rana was willing to resolve his complaint against Yahoo on the basis that the Janice Duffy blog website was removed from Yahoo searches.

34    Also on that date, Ms Strathearn wrote to the legal director of Yahoo seeking further information, including an explanation as to why it contended that it did not collect sensitive information in any record.

35    On 14 January 2019 Yahoo replied, informing Ms Strathearn that Yahoo and its related companies do not cache any search results and therefore it is unable to answer the questions further, as it does not operate the search engine itself.

36    Ms Strathearn then arranged and held a telephone call with Yahoo to discuss further. As a result, Yahoo provided some more detailed information. This was conveyed to Mr Rana by Ms Strathearn in an email of 11 February 2019:

Yahoo claims that it does not collect or hold any personal information through the operation of the Yahoo search engine, but rather that Google is responsible for this. Yahoo's response is below:

1.    The search function offered by Yahoo in Australia consists of search results provided by Google. Users can interact with the search function on Yahoo's Australian home page (please see box at top of the home page linked here: https://au.yahoo.com/).

2.    When a user enters a search term into the search box, Yahoo delivers the term directly to Google, which then provides the results to be displayed on Yahoo's search results pages. Google's search services are powered by its own proprietary search algorithm and use its own index, to which Yahoo has no access.

3.    Yahoo does not cache any of the search results or index any web pages relating to the searches conducted.

4.    Yahoo has a policy which addresses user requests to remove certain search results from searches and the policy is set out in the following link: [link included in original].

5.    Yahoo is able to access a list of web page addresses (URLs) which it has blocked from appearing in search results in relation to limited instances where Yahoo has been required to remove certain search results from searches on Yahoo's search function in accordance with the policy outlined in point 4 above. If Google has removed or blocked a web page address (URL) from its index, that URL will no longer be shown as part of any search results shown on Yahoo Search.

We will consider our preliminary view of this matter. In the meantime, if you wish to provide a response to this submission for our consideration, you are welcome to do so.

37    Mr Rana replied on 12 February 2019, stating 'My response is similar to Bing and Google, and I do not have anything new to add', and 'Ask me specific sites'.

38    During May 2019, and again in August 2019, Ms Strathearn contacted Mr Rana about his various complaints, indicating that the matters were still under consideration and thanking him for his patience.

39    On 18 October 2019 Ms Strathearn followed up with Yahoo as to whether Google still provided the search indexing function on behalf of Yahoo, and received the following response:

Please note that effective from 30 June 2019, Microsoft/Bing provides the search indexing function for the Yahoo Australia search engine at https://au.search.yahoo.com.

The mechanism for search (and the fact that we do not have access to the index) remains the same as before.

40    On 27 June 2020 Mr Rana submitted a further complaint about Yahoo in respect of a particular website, which I will refer to as the Nemesis Again website or URL 2. Mr Rana provided further information on 30 June 2020, stating that 'The publication below has my 'sensitive information', which has reference to my mental disability, criminal record, family court records and much more, and thus Yahoo must [remove] it'.

41    On 2 July 2020 Ms Strathearn informed Mr Rana that she would add the Nemesis Again website complaint to the Janice Duffy blog complaint against Yahoo.

42    On 3 July 2020 Mr Rana made a further complaint with the Commissioner about AOL, and informing Ms Strathearn that AOL 'a part of Yahoo' is impossible to contact. Ms Strathearn wrote to Mr Rana, telling him that the complaint had been added to his complaint about AOL (by that time known as 'Oath'). Ms Strathearn noted that although Oath is owned by the same organisation as Yahoo, it is a different entity and the AOL complaint would be considered separately to the Yahoo complaint.

43    On 10 December 2020 Carla Wolnizer, also an Investigations Officer with the OAIC, emailed Mr Rana relevantly stating:

I write to provide an update regarding your complaint about Yahoo (CP17/00630). The two specific posts you have complained about, as confirmed in your emails to the OAIC of 17 May 2017 and 30 June 2020, are listed below:

1.    [Janice Duffy blog URL reference]

2.    [Nemesis Again website URL reference]

On 21 May 2017, you stated that to resolve this matter, you would like URL 1 to be removed by Yahoo from appearing in its search results. From your correspondence dated 26 June 2020, it is unclear what outcome you are seeking in relation to URL 2.

On 21 October 2019, Yahoo advised:

Please note that effective from 30 June 2019, Microsoft/Bing provides the search indexing function for the Yahoo Australia search engine at https://au.search.yahoo.com.

The mechanism for search (and the fact that we do not have access to the index) remains the same as before.

…

… The OAIC has conducted searches using the Yahoo search engine, and note that these URLs no longer appear in Yahoo search results.

Further information sought and opportunity to withdraw - please respond by 17 December 2020

•    As URLs 1 and 2 no longer appear in Yahoo search results, please advise if you are comfortable that your complaint against Yahoo has been resolved, and wish to withdraw your complaint on that basis?

•    If this is not the outcome you were seeking in relation to URL 2, please provide further information as to the outcome you seek in relation to URL 2.

I would be grateful for a response to this email by 17 December 2020.

44    On 17 February 2021 a delegate of the Commissioner wrote to Mr Rana stating that it had considered his complaint against Yahoo relating to both URL 1 and URL 2 and had decided not to investigate it further because:

•    An investigation of the act or practice you have complained about is not warranted having regard to all the circumstances

•    You have not responded, within the period specified by the OAIC, to a request for information in relation to the complaint.

45    The letter included reasons for the decision. The letter also informed Mr Rana that he had an opportunity to comment before the delegate made a final decision.

46    Between 17 February 2021 and 25 February 2021, Mr Rana sent a number of communications to the OAIC. Their contents can be summarised as follows:

(a)    letter of 17 February 2021 to the OAIC, apparently in reply to its letter of that date, in which Mr Rana said that Yahoo had been acquired by Microsoft and that:

(b)    The bottom line was that Yahoo search linked Dr. Janice Duffy's article on me, and Darda's blogs on Automattic Inc owned and operated [blog] WordPress, and Google owned and operated blog platform blogspot, which was again on me. Therefore, your analysis of the facts are not supported by correct facts.

(c)    email from Mr Rana to Verizon Media, copied to the OAIC dated 18 February 2021. The email is addressed to Verizon Media and does not relate to URL 1 or URL 2 which are the subject of the Yahoo complaint;

(d)    email from Mr Rana to the OAIC dated 18 February 2021 attaching screenshots of Yahoo search results for the search terms 'Ranjit Rana and Darda Gregurev' and Mr Rana's letter to the OAIC dated 17 February 2021. This correspondence appears to be in response to the OAIC's letter of 17 February 2021;

(e)    email to Microsoft Customer Support and the OAIC dated 23 February 2021, including various URLs that Mr Rana stated are 'specifically from the screen shots I send you earlier via Yahoo engine (search)', and included URL 1;

(f)    email to the OAIC and to Microsoft Customer Support dated 25 February 2021, forwarding undated screenshots of Yahoo search results for the search terms 'Ranjt Rana and Darda Gregurev', 'Ranjt Rana and Dr Janice Duffy' [the apparent misspelling of the applicant's name is in the source document search term] and a copy of a purported statement of claim naming respondents Google Inc, Automattic Inc, Dr Janice Duffy, Darda Gregurev and Nina Gregurev. The statement of claim did not extend to Yahoo. The screenshots provided displayed URLs including URL 1 and URL 2;

(g)    email to Microsoft Customer Support and the OAIC dated 25 February 2021 attaching undated screenshots of Yahoo search results for the search terms 'Ranjit Rana and Darda Gregurev', 'Ranjit Rana and Dr Janice Duffy' and the statement of claim. The screenshots provided displayed URLs including URL 1 and URL 2.

47    On 29 March 2021 the delegate wrote to Mr Rana referring to her letter of 17 February 2021 and Mr Rana's subsequent communications. The delegate said she took those communications into account, but determined not to investigate the complaint against Yahoo any further under s 41(1)(da) of the Privacy Act.

The decision and reasons

48    The delegate described Mr Rana's privacy complaint against Yahoo as follows:

You allege that Yahoo has interfered with your privacy by:

•    collecting your personal and sensitive information, appearing in a third party blog located at website [URL 1], without your consent

•    unlawfully using and disclosing this personal information about you, and

•    failing to take reasonable steps to ensure that the personal information it collected, used and disclosed about you, in this blog, was accurate.

49    The delegate also set out the steps that Mr Rana had indicated he wanted carried out in order to resolve the complaint:

To resolve your complaint, you advised that you would like Yahoo to block URL 1 from appearing in Yahoo search results.

You further allege that Yahoo has interfered with your privacy by:

•    collecting your personal and sensitive information, appearing on a third party blog located at website [URL 2], without your consent, and

•    unlawfully using and disclosing this personal information about you.

To resolve your complaint, you advised that you would like this 'publication' to be 'removed' by Yahoo.

50    The delegate noted that it had conducted preliminary inquiries into the complaint, and that it had also contacted Yahoo and had provided copies of Yahoo's responses to Mr Rana. The delegate set out that process as follows:

In its response dated 8 February 2019, Yahoo submitted that:

•    Yahoo does not collect any personal information following a Yahoo search request, but rather it utilises a third party to provide Yahoo search results.

•    When a user enters a search term into the Yahoo search box, Yahoo delivers the term directly to the third party, and the third party provides the results to be displayed on Yahoo's search results pages.

•    Yahoo has no access to the index used by the third party.

A copy of Yahoo's response was provided to you on 12 February 2019.

On 21 October 2019, Yahoo advised the OAIC that:

•    Effective from 30 June 2019, Microsoft/Bing provides the search indexing function for the Yahoo Australia search engine at https://au.search.yahoo.com.

•    The mechanism for search (and the fact that Yahoo does not have access to the index) remains the same as before.

A copy of Yahoo's response was provided to you on 10 December 2020 and 17 February 2021.

51    The delegate then set out her decision ('investigation not warranted having regard to all the circumstances'), and provided reasons as follows:

According to Yahoo's submissions (outlined above), Microsoft/Bing provides the search indexing function for the Yahoo Australia search engine, and Yahoo does not have access to the search index.

The OAIC has confirmed that your complaint against Microsoft (CP17/00631), which has been resolved, included both URL 1 and URL 2 from your complaint against Yahoo.

As of today's date, the OAIC has conducted searches using the Yahoo search engine, and notes that URL 1 and URL 2 do not appear in Yahoo search results.

URL 1

I note that:

•    In your email of 23 February 2021, you referred to a link to URL 1.

•    In your emails of 25 February 2021, you provided a screenshot of Yahoo search results for 'Ranjit Rana and Dr Janice Duffy,' which includes URL 1 in the search results.

However, as mentioned above, the OAIC has today confirmed that URL 1 does not appear in Yahoo search results.

Accordingly, in my view you have obtained the outcome you seek in relation to URL l.

URL2

In respect of URL 2, you stated that you would like this 'publication' to be 'removed' by Yahoo.

As previously advised by the OAIC, the outcome you seek in relation to URL 2 is unclear. Your correspondence following the OAIC's letter dated 17 February 2021, including your letter dated 17 February 2021, did not respond to the OAIC's request for clarification.

In your emails of 25 February 2021, you provided a screenshot of Yahoo search results for 'Ranjit Rana and Darda Gregurev,' which included URL 2 in the search results. However, as mentioned above, the OAIC has today confirmed that URL 2 does not appear in Yahoo search results.

On that basis, if you were requesting that Yahoo take down URL 2 from Yahoo search results, then I consider that this outcome has been achieved.

If you were requesting that Yahoo take down the publication accessible through URL 2, then I note that the publication accessible through URL 2 is held on a blogging platform, Wordpress, which is owned and hosted by a private company, Automattic. There is no evidence that Yahoo owns or operates the Wordpress blogging platform, or that it should be responsible for the collection, use or disclosure of personal information appearing in that blog.

Other URLs and screenshots in your correspondence since the OAIC's letter dated 17 February 2021.

The OAIC has reviewed your correspondence since the OAIC's letter dated 17 February 2021. In this correspondence, you provided several URLs and screenshots showing Yahoo search results.

As stated above, and in the OAIC's correspondence to you dated 10 December 2020 and 17 February 2021, this complaint pertains to your allegations in relation to URL 1 and URL 2 only. The other URLs referred to in your correspondence, including in the screenshots of Yahoo search results you provided, are outside the scope of this complaint.

Accordingly, I have not considered these other URLs in finalising this complaint. I suggest that you first complain to Yahoo in relation to these other URLs.

52    The reasons include attachments A and B. Attachment A lists relevant correspondence between 10 December 2020 and 25 February 2021. Attachment B provides more detailed comment as to the correspondence and attachments referred to at [46(b) to (f)] above.

53    In particular, the delegate noted that:

(a)    as to the 18 February 2021 email, the email was to Verizon and was not relevant to the complaint against Yahoo;

(b)    as to the 18 February 2021 email attaching undated Yahoo screenshots, the search terms 'Ranjit Rana and Darda Gregurev' had been utilised (rather than URL 1 and URL 2) and the correspondence also referred to different URLs, as addressed in the body of the reasons and that were outside the scope of the complaint;

(c)    as to the 23 February 2021 email to Microsoft Customer Support, there was a reference to URL 1, but that was addressed in the reasons (which noted URL 1 did not appear in searches of Yahoo as at the date of the decision and further, the complaint against Microsoft had been resolved, including by addressing URL 1 and URL 2);

(d)    as to the 25 February 2021 email forwarding documents to the OAIC and Microsoft Customer Support with undated screenshots and a statement of claim, again the searches were of terms not the subject of the complaint, and the statement of claim did not relate to Yahoo and so was not considered relevant, but were addressed in the reasons (which noted that neither URL 1 nor URL 2 appeared in the searches undertaken by the OAIC as at the date of the decision);

(e)    as to the 25 February 2021 email to Microsoft Customer Support and attached undated screenshots, again the searches were of terms not the subject of the complaint, and the statement of claim did not relate to Yahoo and so was not considered relevant, and were addressed in the reasons (which noted that neither URL 1 nor URL 2 appeared in the searches undertaken by the OAIC).

54    It can be said, therefore, that the delegate in considering the complaint against Yahoo distinguished between complaints against other entities, and also distinguished between searches of URL 1 and URL 2 and searches by way of other URLs and search terms. The delegate also took into account the undated screenshots that had been provided and accepted that some of those included references to URL 1 and URL 2, but observed that current searches by the OAIC using the Yahoo search engine did not reveal those URLs in the searches.

55    Importantly, therefore, the delegate reasoned on the materials before her at the date of the decision that Mr Rana had achieved the objective of his complaint, being to stop Yahoo searches of URL 1 and URL 2. The delegate also noted that Yahoo could not address some of Mr Rana's remaining concerns - for example, it was for the owners of the blogging platform website that was accessible via URL 2 to remove its content. Yahoo could not achieve that outcome.

56    These were the essential matters upon which the delegate's decision was based.

Principles

Where decision maker must be satisfied

57    Pursuant to s 41(1)(da), it was open to the delegate, as the decision maker, to decide not to investigate, or not to investigate further, the act or practice the subject of Mr Rana's complaint if she was satisfied that an investigation, or further investigation, of the act or practice was not warranted having regard to all the circumstances.

58    The statute does not purport to prescribe the matters to which the decision maker must have regard in assessing whether the state of satisfaction is reached. The reference to 'all the circumstances' indicates the breadth of the matters which a decision maker may take into account. The question whether the decision maker is required to take specific considerations into account is determined by implication from the subject matter, scope and purpose of the Act. However, if there are errors in the process by which a state of satisfaction is reached, such as by considering extraneous or irrelevant considerations or by excluding relevant considerations, it may be that the state of mind has not been reached in the manner required by the statute. The requisite state of mind should be one which has been formed logically and rationally upon findings of fact. Further, even if it cannot be detected that an error has occurred in the application of law or consideration of the relevant matters, if the conclusion is one which is wholly unreasonable, it can, nevertheless, be inferred that error has occurred. Such principles are well recognised: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (Mason J); and Avon Downs Pty Ltd v Commissioner of Taxation (1949) 78 CLR 353 at 360 (Dixon J).

Failure to take into account 'relevant consideration'

59    Having regard to the nature of some of Mr Rana's grounds in this review application (particularly ground 1(a)), in addition to Peko-Wallsend can usefully be added the observations of McColl JA in Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 at [138] (Emmett AJA to similar effect and Macfarlan JA agreeing):

[138]    … [T]he fact that failure to take a relevant consideration into account in the exercise of a power is a ground of judicial review, does not, however, mean 'that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account.' 'The fact that [a party] chooses to refer to particular matters does not convert them into relevant considerations in the administrative law sense from which other consequences might flow. That is determined by reference to the statute.'

[139]    That does not mean parties may not point to matters they contend were required to be taken into consideration. Nevertheless, even taking such submissions into account, where relevant considerations are not specified, 'it is largely for the decision maker … to determine which matters the decision maker regards as relevant and the comparative importance to be accorded to such matters.'

(citations omitted)

Grounds of review

60    Mr Rana by his originating application relies upon two grounds of review, which can be paraphrased as follows:

(1) That the decision of the delegate of the Commissioner was an improper exercise of power because the delegate:

(a)    failed to take into account the 'relevant consideration' of the applicant's complaint about the Bing search engine;

(b)    failed to take into account the 'relevant consideration' of an agreement between Mr Rana and Microsoft made in July 2020 that involved the 'delisting' of certain websites;

(c)    failed to take into account the 'relevant consideration' of the improper implementation of 'the [Microsoft] agreement according to law'; and

(d)    exercised power in a way that the result of the exercise of power was uncertain, as URL 1 and URL 2 still appear in Yahoo, MSN and Bing search engines.

(2) That there was no evidence or other material that justified the making of the delegate's decision to decline further investigation into Mr Rana's complaint, that Mr Rana had not 'been properly informed [regarding] the developments between Yahoo and Bing', and that some websites remained active.

Some preliminary observations

61    Before embarking on a consideration of each of the grounds, it is important to observe that the delegate was relevantly tasked with determining the particular complaint before her relating to Yahoo. So much is apparent from s 36(5) of the Privacy Act which obliges a complainant to specify the respondent to the complaint.

62    To the extent Mr Rana had made complaints to the Commissioner about other entities, such as Bing or Microsoft, the 29 March 2021 decision relating to Yahoo did not purport to determine such complaints. It is readily apparent that although Mr Rana may have initially complained about Google, Bing and Yahoo in his email of 22 March 2017 ([14] above), the Commissioner proceeded to treat the complaints against the other entities as separate complaints, in accordance with the intent of s 36(5) of the Privacy Act.

63    For example, the evidence indicates that complaints against the other entities were given separate complaint numbers to that allocated to the complaint against Yahoo. The complaint against Yahoo was allocated number CP17/00630, whereas the complaint against Microsoft/Bing was allocated number CP17/00631. The evidence discloses resolution of the complaint against Microsoft by way of a separate conciliation agreement made on or about 16 July 2020 under which Microsoft agreed to block specified URLs from Bing search results in Australia. Mr Rana annexed the agreement to an affidavit filed in this application. Relevantly, the list of agreed URLs included URL 1 (item 10 in the list) and URL 2 (item 31 in the list).

64    Further, Mr Rana annexed to his affidavit of 6 April 2021 a separate letter from a delegate of the Commissioner dated 3 March 2021 that listed 26 separate complaints naming 26 different entities, and explained why it had been assessed that each complaint should be declined or closed. The letter also explained to Mr Rana why a browser may save content that might appear in searches until caches are cleared, even though Google and Microsoft have taken steps to remove or block the content. The delegate stated that the OAIC had been unable to replicate the searches that Mr Rana contended he had undertaken for AOL. The letter also comprised a decision with respect to Automattic Inc (referred to in the delegate's reasons relating to Yahoo and correctly noted as being a separate claim). The delegate explained that Automattic Inc is a metasearch provider that only gathers information by sending queries to other search engines in response to a single search query from a user; it does not create the content of web pages; it cannot remove the content unless the content is removed from the underlying web or blog page; and even if authors remove content from a web page they might publish the same content at a later date. Mr Rana was therefore clearly on notice prior to the 29 March 2021 decision relating to Yahoo of the manner in which the OAIC was separately addressing his many complaints against respondents and he was on notice of some of the difficulties he faced in procuring a solution to some of his grievances.

65    Returning to the 29 March 2021 decision, nothing in that decision prevented or prevents Mr Rana from pursuing his complaints against other entities that to date might remain undetermined, or from pursuing a complaint against Yahoo in relation to different acts or conduct.

66    It was also appropriate that the delegate reach a decision with respect to the complaint against Yahoo having regard to any relevant confirmation or refinement of the complaint over time, and any conduct on the part of Yahoo that had been undertaken in response to the complaint.

67    For example, there is evidence that supports a conclusion that after Yahoo undertook certain steps to block URLs ([18] above), Mr Rana's complaint against Yahoo was limited to a complaint about only URL 1 and URL 2. So much is apparent from: Mr Rana's acknowledgment of the conduct undertaken by Yahoo ([20] above); his reference in his email of 19 May 2017 to only the Janice Duffy blog as a hurdle to the complaint being closed ([21] above); the clarification sought by Ms Strathearn and received from Mr Rana on 11 September 2018 ([29] above) that it was only the Janice Duffy blog that he wished to have blocked from Yahoo's search results; the addition of Mr Rana's complaint about the Nemesis Again website insofar as it related to the Yahoo complaint then being considered ([41] above); Ms Strathearn's conduct in informing Mr Rana that his complaint about AOL would not be dealt with as part of the Yahoo complaint but would be added to his complaint about AOL/Oath ([42] above); the statement in the letter of 10 December 2020 by Ms Wolnizer expressly confirming the ambit of the complaint about Yahoo and that it related to URL 1 and URL 2, noting that Mr Rana sought to have URL 1 removed by Yahoo from appearing in search results ([43] above); and the statement by Ms Wolnizer in that same letter that neither URL 1 nor URL 2 appeared in Yahoo search results undertaken by the OAIC at that time.

68    This identification of the scope of the complaint forms part of the circumstances that might properly be considered for the purpose of s 41(1)(da). Otherwise there would be no value in, or recognition of, steps voluntarily taken by a respondent to a complaint prior to any decision by the Commissioner or of any communications between the parties that clarify scope.

Ground 1(a)

69    By this ground Mr Rana alleges that the delegate failed to take into account that his complaint was about the Bing search engine.

70    The decision under review relates to Yahoo. As I have noted, the delegate by the 29 March 2021 decision did not purport to make a decision or a determination with respect to Mr Rana's complaint about Bing, the search engine owned by Microsoft. In some of his correspondence Mr Rana appeared to understand and acknowledge this (for example the correspondence referred to at [20] and [37] above).

71    The fact that Mr Rana asserted in correspondence to the delegate that Yahoo was owned by Microsoft ([46(a)] above) did not require the delegate to consolidate the complaints and address them collectively. It remained open to the delegate to continue to deal with the complaint on the basis that the named respondent was Yahoo, and to separately deal with any complaint against Microsoft or Bing that remained current. Another example of identification of the proper respondent is seen in the delegate's response to the AOL complaint ([42] above).

72    Mr Rana has not pointed to any basis upon which the delegate was obliged to consider the complaint about Bing as part of the complaint about Yahoo, in circumstances where the evidence from Yahoo before the delegate was that Yahoo had no control as to what is displayed on a Bing website. Nor has Mr Rana pointed to any basis upon which it can properly be said that the complaint against Bing was a relevant consideration in assessing the complaint against Yahoo. As the Commissioner submitted, consistent with the observations in Wattie, the fact that a complainant may raise a fact does not of itself make that fact relevant to the delegate's consideration of the complaint. Otherwise, a delegate would be obliged to consider each and every matter that might be raised by a complainant, including those that have no logical connection to the task at hand or its resolution.

73    I am not persuaded that the delegate was obliged to have regard to the complaint against Bing in considering the complaint against Yahoo, and accordingly I am not satisfied that the delegate erred in this regard.

Ground 1(b)

74    By this ground Mr Rana alleges that the delegate failed to take a relevant consideration into account, namely his conciliation agreement with Microsoft signed on 16 July 2020.

75    The delegate was aware of and had regard to the agreement reached between Mr Rana and Microsoft. So much is apparent from the delegate's statement in her reasons that:

The OAIC has confirmed that your complaint against Microsoft (CP17/00631), which has been resolved, included both URL 1 and URL 2 from your complaint against Yahoo.

76    The delegate was correct in stating that the agreement referred to URL 1 and URL 2.

77    The delegate referred to the Microsoft agreement in the context of Yahoo's submission that Microsoft provided the search indexing function. Importantly, the delegate also referred to the OAIC searches using URL 1 and URL 2 of the Yahoo search engine.

78    The complaint against Microsoft was addressed separately by the OAIC and resolved. On its face, this is not of any particular relevance to the complaint against Yahoo, although it may be that the response of Microsoft by way of its agreement with Mr Rana had the potential to reduce the prospect of URL 1 and URL 2 being revealed by Yahoo searches, and also gave rights to Mr Rana to pursue Microsoft should there be breaches of that agreement.

79    The reference to the agreement with Microsoft, whilst clearly considered, was not proffered by the delegate as the solution or part of the solution to the complaint against Yahoo. Rather, the reasons indicate the delegate was persuaded not to investigate the complaint against Yahoo further because, having considered the evidence before it as to the limitations on Yahoo's ability to limit searches, and the OAIC having conducted its own current searches, it appeared Mr Rana's objectives had been achieved with respect to Yahoo.

80    I do not consider the delegate failed to have regard to the agreement and so do not accept that ground 1(b) is made out by Mr Rana.

Ground 1(c)

81    By ground 1(c) Mr Rana alleges that the delegate failed to take a relevant consideration into account, that being Microsoft's alleged breach of the conciliation agreement reached with him. The above comments relating to ground 1(b) apply also to this ground. The existence of the agreement with Microsoft was not said by the delegate to be the reason for reaching her decision with respect to Yahoo. If that were the case, there might be substance to Mr Rana's claim that any breach of that agreement would also be relevant. But that is not the manner in which the delegate reasoned. As I have said, the reasons indicate that the delegate was persuaded not to further investigate the complaint against Yahoo because, having considered the evidence before her, including the undated screenshots, and the OAIC having conducted its own current searches, it appeared Mr Rana's objectives had been achieved with respect to Yahoo.

82    I do not consider the delegate was obliged to take into account or refer to compliance by Microsoft with the agreement in determining the complaint with respect to Yahoo. It was not materially relevant to Yahoo's own conduct, and separately Mr Rana had courses open to him against Microsoft as a party to the Microsoft agreement in the event of non-compliance.

Ground 1(d)

83    By this ground Mr Rana alleges that the delegate's exercise of power was 'uncertain'. This ground references s 5(2)(h) of the ADJR Act, extracted at [10] above.

84    In my view there is no uncertainty about the effect of the decision under review. Its effect is that the Commissioner by the delegate decided not to investigate the complaint against Yahoo any further.

85    The Commissioner submitted that Mr Rana's true complaint seems to be that the applicant is concerned that even though the two URLs cannot be found via Yahoo's search engine, either the same material can still be retrieved by searching for something else or the same material is available on some other or related site. I agree that this encapsulates much of Mr Rana's complaint.

86    However, the fact that there may be other courses that reveal the relevant URLs in internet searches does not mean that the respondent's decision relating to Yahoo is relevantly uncertain. There is no uncertainty about the practical and legal consequences of the delegate's decision not to investigate the particular complaint against Yahoo further.

87    I would reject this ground of review.

Ground 2

88    To paraphrase, by this ground Mr Rana contends that there was 'no evidence or other material to justify the making of the decision'; that he 'has not been properly informed [regarding] the developments between Yahoo and Bing'; and that he had 'provided updates as some websites were alive despite [the fact] 41 of them were delisted per the agreement'.

89    As to the alleged absence of evidence justifying the decision, I have already addressed the manner in which the delegate reasoned and am not satisfied that there was an absence of relevant and probative evidence upon which the delegate could logically reach the requisite state of satisfaction.

90    As to the role of Microsoft/Bing, Yahoo had informed the OAIC that Microsoft/Bing provided the search engine function for Yahoo rather than Google from 30 June 2019 ([39] above). The delegate clearly knew of this matter. The delegate knew from the OAIC's earlier communications with Yahoo about the manner in which the Google search services were powered and had passed this information on to Mr Rana ([36] above). Further, it is apparent that the delegate knew about the resolution of the complaint with Microsoft (as noted at [75] above). Mr Rana knew about Microsoft's role because he was advised of this by (at least) Ms Wolnizer's email to him of 10 December 2020 ([43] above). Further, Mr Rana knew of Microsoft's role as evidenced by his separate complaint and his entry into the conciliation agreement with it.

91    Nor is there any evidence that suggests that the delegate was wrong to rely on searches undertaken by the OAIC as at 10 December 2020 ([43] above) and as at 29 March 2021 (the decision date) that revealed an absence of the URL 1 and URL 2 addresses in Yahoo search results, even if, as Mr Rana contended, other websites may have 'remained alive'. Although Mr Rana asserted that the URLs were still searchable via Yahoo, the screenshots before the delegate were undated and Mr Rana otherwise referred to other sites, search strings and search engines outside the parameters of the complaint against Yahoo, as refined over time.

92    It is difficult to distil from ground 2 the nature of the alleged jurisdictional error on the part of the delegate. Mr Rana's contention that he did not know about developments with Microsoft/Bing does not appear to fit with that part of the ground that refers to an absence of evidence. Rather, it perhaps suggests that Mr Rana's allegation is one of a denial of procedural fairness - but this would have no discernible foundation in circumstances where the OAIC and delegate expressly informed Mr Rana about the information it had received from Yahoo on those matters and in circumstances where Mr Rana had brought a separate claim against Microsoft.

93    Or, as the Commissioner submitted, perhaps the allegation that Mr Rana seeks to pursue is that the Commissioner failed to seek out further information about Yahoo and Bing.

94    The failure to seek out information on the part of a decision maker can, in some circumstances, give rise to jurisdictional error by a constructive failure to exercise jurisdiction. The principles were collected by Bennett J in SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 as follows:

[30]    SZIAI [Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429] stated that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could amount to a failure to review. A Tribunal's failure to inquire may ground a finding of jurisdictional error because the failure renders the ensuing decision manifestly unreasonable, but such circumstances are rare and exceptional (Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at [60] per Kenny J at [60]). The critical underlying question remains whether the decision is vitiated by jurisdictional error. The failure to inquire must constitute a failure to undertake the statutory duty of review or otherwise be so unreasonable as to support a finding that the Tribunal's decision was infected by jurisdictional error (SZIAI at [26]; see also Minister for Immigration and Citizenship v Dhanoa (2009) 180 FCR 510 at [46]-[51] per Jagot and Foster JJ and SZNBX v Minister of Immigration and Citizenship [2009] FCA 1403 at [30] per Bennett J). The fact that it may have been reasonable for the Tribunal to make a certain inquiry does not elevate the lack of such an inquiry into a jurisdictional error.

[31]    In SZIAI at [25] the High Court described the failure on the part of the Tribunal that could, in some circumstances, give rise to jurisdictional error by a constructive failure to exercise jurisdiction. For a failure to inquire to amount to a jurisdictional error, the appellant needs to show:

•    that the inquiry was an obvious inquiry;

•    that it concerned a critical fact the existence of which was easily ascertained; and

•    that it could supply a sufficient link to the outcome to constitute a failure to review.

[32]    The Tribunal has no general duty proactively to gather opinions, assessments and evaluations in weighing material that an applicant has chosen to put before it. The Tribunal is under no obligation to inquire or to seek information not presently available or not put before it by an applicant.

95    In this case it is apparent that the Commissioner, by the various investigating officers and delegate, made inquiries of Yahoo in response to Mr Rana's complaint, and was provided with information about both Yahoo's roles and that of Microsoft/Bing and (later) Google. The conduct of those entities was not the subject of the complaint against Yahoo, although their roles provided context to the more limited role of Yahoo. The critical facts related to Yahoo. Mr Rana had indicated the desirable result he sought to meet the grievance against Yahoo and, based on the evidence before the delegate, for all intents and purposes that result had been achieved as at the date of the decision. It is not apparent what other inquiries the delegate should have undertaken, having regard to the limited parameters of the complaint, that would have assisted the delegate or that were sufficiently relevant to the outcome of the Yahoo complaint. As discussed above, the delegate was not obliged by the statute to undertake any particular inquiries or act in any particular manner for the purpose of reaching the requisite satisfaction referred to in s 41(1)(da). The decision maker is accorded a broad discretion and may have regard to all of the circumstances.

96    Mr Rana has not persuaded me that ground 2 reveals any relevant error on the part of the delegate.

Other matters raised by submissions and addressed by the Commissioner

97    The Commissioner, having regard to the fact that Mr Rana is unrepresented, quite properly identified that it might be appropriate for the Court to consider whether Mr Rana's real argument might be put as follows:

The applicant's concerns might be understood along these lines. The respondent acted under s 41(1) of the Privacy Act to not investigate his complaint against Yahoo any further because, at least in part, two specific URLs were no longer returned as results when searched using Yahoo. Yet the similar or the same content is still online, and similar or the same content can still be accessed via Yahoo if something different is searched. The respondent should be investigating those matters, so the applicant might say.

98    I have considered whether an argument expressed in that manner might reveal error. However, I also accept the Commissioner's submission that those concerns do not reveal any legal error warranting relief under the ADJR Act in respect of the decision under review (nor, I would add, under s 39B of the Judiciary Act). As I have observed above, it is entirely appropriate for a decision maker to consider a complaint by reference to the subject matter and scope of the complaint: in this case, the two particular URLs for which searches were carried out using Yahoo's search engine. The delegate needed to know what Mr Rana was complaining about so as to exercise the statutory powers accordingly. In this case the decision maker took efforts to confirm and clarify the scope of the complaint with Mr Rana before making a decision. In my view, no error in that clarification process or the resulting expression of the content of the complaint is established. No error in ascertaining and assessing the evidence relevant to the decision is established.

99    As the Commissioner submitted, if the applicant has concerns about other websites, other search terms or other search engines, the particular decision under s 41(1)(da) of the Privacy Act that is under review does not prevent him from raising them. Nor, I would add, does it prevent him from making a different complaint about Yahoo under s 36.

100    The Commissioner also queried whether Mr Rana's application might be seen as including an allegation of an absence of procedural fairness. In this regard there are four matters that were arguably raised by Mr Rana, having regard to his submissions: that he tried to have the Commissioner or the delegate take account of the conduct of Automattic Inc; that there was no hearing before the delegate; that the delegate's exercise of power was in some way dependent upon compliance by Microsoft with the agreement between it and Mr Rana; and that he was not aware of the basis upon which the decision was to be made prior to it being finally recorded on 29 March 2021.

101    Section 5(1)(b) of the ADJR Act provides a ground of review where procedures that were required by law to be observed in connection with the making of the decision were not observed.

102    As to each of the matters listed:

(a)    Automattic was not part of the complaint against Yahoo, and the matters at [62]-[64] above are repeated;

(b)    whether or not a hearing is required is a matter of statutory construction, and there was no requirement that the delegate conduct a hearing for the purpose of considering a complaint in the context of s 41(1)(da) of the Privacy Act;

(c)    compliance by Microsoft with its agreement with Mr Rana was not a pre-condition to the exercise of power under s 41(1)(da) of the Privacy Act - there is no statutory requirement that different complaints must be resolved by compromise or otherwise before a decision on a particular complaint is reached. Nor was it established on the facts that resolution of the Yahoo complaint was conditional upon the terms of the agreement with Microsoft; and

(d)    the OAIC and the delegate provided the applicant with ample opportunities to clarify his complaint against Yahoo. He had a reasonable opportunity to put his case. The 17 February 2021 letter to Mr Rana from the delegate foreshadowed her thinking and the result was expressly provided to Mr Rana with the opportunity to comment on the proposal not to investigate the complaint further under s 41 of the Privacy Act (which he did). In my view, the giving of that letter, viewed against the backdrop of the other communications with Mr Rana in which the OAIC officers sought to refine and define the Yahoo complaint with input from Mr Rana, accorded appropriate procedural fairness to him.

103    I do not consider that the evidence establishes any denial of procedural fairness or any failure to comply with procedures applicable to the exercise of the power actually exercised by the delegate.

Mr Rana's submissions generally

104    Before concluding, I will attempt to draw together some of the threads from the five sets of written submissions that Mr Rana filed for the purpose of this application and his two affidavits. In saying that, I do not mean to unduly criticise Mr Rana. Judicial review applications are neither simple nor straight forward, even for those who have legal assistance. However, Mr Rana's submissions tended to be repetitive and, at times, difficult to comprehend. He conflated his complaints about a number of entities by a scattergun approach. He repeatedly referred to alleged references to the relevant URLs by way of references to hyperlinks, HTML tags, embedded data and searches using different search terms, without returning to the nature of the particular complaint against Yahoo and acknowledging either the manner in which that complaint had been refined by correspondence with both Yahoo and with Mr Rana, or the manner in which Mr Rana's objectives of the complaint had been ascertained and described by the delegate for the purpose of the particular decision under review.

105    The themes that arise from Mr Rana's submissions and affidavits may be summarised and addressed as follows:

(a)    Mr Rana's submissions focussed on searches by key words or search terms rather than by the particular URLs, and often referred to different search engines;

(b)    Mr Rana alleged the Microsoft agreement did not cover the two URLs when on the face of the agreement it did;

(c)    Mr Rana alleged that many of the URLs in the Microsoft agreement had 'come alive again' - this contention did not descend into details of when they purportedly 'came alive', the evidence supporting such timing, the extent to which it occurred prior to the decision, what information was before the delegate or the particular position with respect to URL 1 and URL 2;

(d)    Mr Rana referred to embedded hyperlinks and HTML tags in broader and different searches, without disclosing whether or how he had specifically raised these matters with the Commissioner's delegates in a manner that disclosed such allegations were intended to form part of the particular complaint. Nor did he refer to any evidence that countered Yahoo's statements as to the limitations on its powers with respect to meeting Mr Rana's grievances, or with respect to searches of the particular URLs as undertaken by the OAIC on or about 10 December 2020 and 29 March 2021;

(e)    Mr Rana asserted that Microsoft permitted access to the URLs when searches were done by the search terms Ranjit Rana, Darda Gregurev and Janice Duffy, without connecting such allegation to the complaint against Yahoo;

(f)    Mr Rana asserted that the agreement with Microsoft is null and void and was 'a disaster', although the relevance of that contention and the legal basis for the assertion was not explained;

(g)    Mr Rana sought to rely on events that occurred and documents apparently created after the date of the decision, without addressing why this Court should have regard to such matters or on what basis, when they were not matters to which the delegate could have had regard; and

(h)    Mr Rana submitted that he was complaining about all of the search engines for the purpose of this application and that the Court should be 'practical and flexible' in taking them into account, thereby failing to have regard to the jurisdiction of this Court to review the particular decision in question, which in turn considered the particular complaint against Yahoo.

106    Mr Rana's submissions and affidavits, taking into account the matters already addressed with respect to the grounds of review and taking into account what I have said in the preceding paragraph, have not persuaded me that any of the errors alleged by the grounds of review have been established.

Conclusion

107    It follows that Mr Rana's application for judicial review of the decision of the delegate made 29 March 2021 is to be dismissed.

Associate:

Dated:    15 July 2022