Federal Court of Australia

McEwan v Office of the Australian Information Commissioner [2022] FCA 955

File numbers:

QUD 181 of 2022

QUD 199 of 2022

Judgment of:

LOGAN J

Date of judgment:

5 July 2022

Catchwords:

PRACTICE AND PROCEDURE – judicial review of decision of Information Commissioner to decide not to investigate complaint under s 41(1)(a) of the Privacy Act 1988 (Cth) – application for miscellaneous interlocutory orders – where orders sought included orders for discovery, joinder, interrogatories and filing of a defence – where previous case management orders made in a related proceeding – where no basis for making orders sought – application dismissed

Legislation:

Privacy Act 1988 (Cth) s 41

Taxation Administration Act 1953 (Cth)

Cases cited:

Avon Downs v Commissioner of Taxation (1949) 78 CLR 353

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Division:

General Division

Registry:

Queensland

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

19

Date of hearing:

5 July 2022

Counsel for the Applicant:

The applicant appeared in person

Solicitor for the First Respondent:

Holding Redlich

Counsel for the Second Respondent

Mr S Walpole

Solicitor for the Second Respondent:

Australian Government Solicitor

ORDERS

QUD 181 of 2022

BETWEEN:

JULIE MCEWAN

Applicant

AND:

THE OFFICE OF THE AUSTRALIAN INFORMATION COMMISSIONER

First Respondent

THE COMMISSIONER OF TAXATION

Second Respondent

order made by:

LOGAN J

DATE OF ORDER:

5 JULY 2022

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the applicant on 30 June 2022 (Interlocutory Application) be dismissed.

2.    Pursuant to s 37P of the Federal Court of Australia Act 1976 (Cth), this proceeding be case managed and heard together with proceeding QUD199/2022.

3.    The applicant pay the respondents’ costs of and incidental to the Interlocutory Application.

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

ORDERS

QUD 199 of 2022

BETWEEN:

JULIE MCEWAN

Applicant

AND:

THE OFFICE OF THE AUSTRALIAN INFORMATION COMMISSIONER

First Respondent

THE COMMISSIONER OF TAXATION

Second Respondent

order made by:

logan j

DATE OF ORDER:

5 july 2022

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the applicant on 30 June 2022 (Interlocutory Application) be dismissed.

2.    Pursuant to s 37P of the Federal Court of Australia Act 1976 (Cth), this proceeding be case managed and heard together with proceeding QUD181/2022 (the related proceeding).

3.    The applicant pay the respondents’ costs of and incidental to the Interlocutory Application.

4.    By 21 July 2022, the applicant file and serve:

(a)    any amended originating application giving particulars of the grounds of review; and

(b)    any further affidavits upon which the applicant intends to rely at the hearing of the matter.

5.    There be a mediation before a Registrar on a date to be fixed by the Registry, with the mediation fee to be shared equally between the applicant and the second respondent and, as to that share, be that party’s costs in the proceeding. As to that mediation:

(a)    it is to be conducted by attendance in person, including as to the second respondent, by an officer with authority to compromise the proceeding, if so advised;

(b)    it is to be completed by 12 August 2022;

(c)    legal representation by a party be permitted; and

(d)    the first respondent may, but need not, attend if so advised.

6.    By 19 August 2022, the second respondent file and serve any affidavit upon which the second respondent seeks to rely at the hearing of the matter.

7.    By 2 September 2022, the applicant make any application for leave to issue subpoenas.

8.    By 2 September 2022, the first respondent file and serve an Application Book containing a bundle of relevant material.

9.    Other than the Application Book and any evidence by persons subpoenaed, all evidence relied upon by the parties must be presented by way of affidavit, and in the event that a party seeks to rely on evidence of the contents of any sound recording, the party must file a transcript verified by affidavit.

10.    Until further order, the respondents are excused from filing any defence to the statement of claim.

11.    The applicant file and serve an outline of submissions (not exceeding 10 pages) and a list of authorities not less than 14 days before the hearing.

12.    Each respondent file and serve an outline of submissions (not exceeding 10 pages) and a list of authorities not less than 7 days before the hearing.

13.    The applicant file and serve any reply submissions (not exceeding 5 pages) not less than 2 days before the hearing.

14.    The evidence and submissions referred to in orders 6 to 13 above be filed in the related proceeding, with that evidence and submissions to address the issues in both the related proceeding and this proceeding.

15.    The application be listed for a one day hearing on 31 October 2022, to be heard concurrently with the related proceeding.

16.    There be liberty to the parties to apply on 3 days’ notice to the other parties.

17.    A pro bono referral certificate be issued in relation to the request of the provision of legal assistance pro bono to the applicant.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    Ms Julie McEwan has sought the judicial review of a decision made by the Information Commissioner, the first respondent, under s 41(1)(a) of the Privacy Act 1988 (Cth) (the Act) not to proceed with an investigation of a complaint made by her alleging a breach of that Act by the Commissioner of Taxation, the second respondent, in the course of the administration of various taxation laws, in particular, in the administration of the Taxation Administration Act 1953 (Cth) (Taxation Administration Act). Section 41(1)(a) of that Act provides:

41    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

2    As can be seen, the Information Commissioner’s power not to proceed with an investigation is conditioned upon a state of administrative satisfaction. Such satisfaction-based decisions are not unexaminable on judicial review, but such review must be conducted within the limits of judicial power and on the bases notably described by Dixon J in Avon Downs v Commissioner of Taxation (1949) 78 CLR 353. Reference might also usefully be made, with respect, to the gathering of case law in relation to the review of satisfaction based decisions by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.

3    Ms McEwan has now filed two judicial review proceedings, QUD181 of 2022 and QUD 199 of 2022, but the focus of each is upon the alleged failure by the Information Commissioner to pursue an investigation of her complaint concerning a breach of the Privacy Act by the Commissioner of Taxation.

4    The earlier filed QUD181 of 2022 is already the subject of interlocutory directions made by me on 21 June 2022. The end to which those directions is directed is, in the first instance, an endeavour to see if, by mediation by a registrar, that proceeding can be compromised. The further end, if that does not prove possible, is the hearing on 31 October 2022 of that judicial review application.

5    In respect of each of the proceedings, Ms McEwan has sought particular interlocutory orders or, strictly, in the case of QUD181 of 2022, further interlocutory orders. For that purpose, she has conveniently summarised the orders sought in the form of draft orders as contained in a document handed up by her today and circulated to the respondents. The orders which she seeks are as follows:

1.    By 8 July, 2022 the Second Respondent obtain a statement from Mr Rains of the ATO stating “the primary purpose” of why he obtained the protected information for both complaints 181/22 and 191/22, to include:-

1.1    what the primary purpose of the protected could be used for; and

1.2    on what authority (Act) was Mr Rains authorised to make the disclosure to Mr Hoult and Mr Mactaggart. If disclosure was obtained lawfully, provide the documents that were lodged with the ATO Information Disclosure Team and the approval obtained (ATO website - MOU manager listed in the MOUs Corporate Relations).

1.3    on what authority was Mr Rains authorised to make the disclosure to Ms Ivar. If disclosure was obtained lawfully, provide the documents that were lodged with the ATO Information Disclosure Team and the approval obtained (ATO website - MOU manager listed in the MOUs Corporate Relations).

2.    By 8 July, 2022 the Second Respondent obtain a statement from Mr Brett Challans of the ATO stating that Mr Rains was authorised to share the protected information “record of interview” and “interview notes” with Patricia Ivar.

Or in the alternative of Order 1 and 2:-

3.    Mr Rains and Mr Challans of the ATO be joined as respondents to the proceedings (no liability).

4.    By 8 July, 2022 the respondents file and serve their response to the questions to the interrogatories of the applicant.

5.    By 12 July, 2022 an independent referral be received that answer one or more questions or issues arising in the proceeding of fact or law or both, and whether raised by pleadings. All respondents to have input into this process, and will aid in the response to the list of interrogatories if the Respondents are still not able to interpret the proper construction of the TAA 1953 Div 355 against the relevant annotated case law.

6.    By 15 July 2022, the applicant file and serve:

6.1.    any amended application giving particulars of the grounds of review; and

6.2.    any further affidavits upon which the applicant intends to rely at the hearing of the matter.

7.    By 5 August, 2022, the respondents file and serve their defence to the statement of claim.

8.    Mediation before the registrar on a date to be fixed, with the costs to be shared between the applicant and the first and second respondents.

9.    By 12 August 2022, the second respondent file and serve any affidavits upon which the Commissioner of Taxation seeks to rely at the hearing of the matter.

10.    By 26 August 2022, the applicant make any application for leave to issue subpoenas (not required if Order 1 and 2 are approved).

11.    By 26 August 2022, the first respondent file and serve an Application Book containing a bundle of relevant material.

12.    Other than the Application Book and any evidence by persons subpoenaed, all evidence relied upon by the parties must be presented by way of affidavit.

13.    The applicant file and serve an outline of submissions (not exceeding 10 pages) and a list of authorities not less than 14 days before the hearing.

14.    Each respondent file and serve an outline of submissions (not exceeding 10 pages) and a list of authorities not less than 7 days before the hearing.

15.    The applicant file and serve any reply submissions (not exceeding 5 pages) not less than 2 days before the hearing.

16.    The application be listed for a one day hearing on 31 October 2022, to be heard concurrently with QUD181/2022.

17.    There be liberty to the parties to apply on 3 days’ notice to the other parties.

18.    These orders if accepted by the Court be applied to 181/2022.

19.    Parties pay their own costs, or costs reserved. These proceedings could have been prevented, saving the Courts resources and time.

6    As to those orders, the conclusions which I have reached are as follows. The document referred to in proposed order 1, if it was before the delegate of the Information Commissioner at the time when the decision of 26 April 2022 was made, will be included in the application book. If not, it will not be included, because it would not be relevant in respect of judicial review, as the metadata would not be.

7    There is, therefore, no need separately to provide for the copy of the document referred to in proposed order 1. If that document were not before the decision-maker it would not be relevant on judicial review of a satisfaction-based decision. That conclusion is subject to this qualification. If there is a persistence in an allegation of bad faith, it may or may not be the case that the document concerned is relevant, but it would be an abuse of process on the material relied upon by Ms McEwan to countenance a fishing exercise through the records of the Information Commissioner to facilitate a case which is not readily apparent already.

8    As to proposed order 2, it may conveniently be dealt with at the same time as proposed order 3. Each of these orders might be apt under an inquisitorial system of justice, but neither is appropriate in relation to an exercise of judicial power as invoked by Ms McEwan in respect of the Information Commissioner’s decision of 26 April 2022. Whether or not it was lawful for the Information Commissioner to be satisfied that the case was not one for investigation of the complaint will or will not be apparent from the material which informed the state of administrative satisfaction, and that material is that which was before the Information Commissioner at the time the decision was made.

9    That is subject to this qualification, which is that if the state of satisfaction was informed by an incorrect understanding of the true meaning and effect of the Taxation Administration Act, then the Information Commissioner’s decision might be quashed on that basis, but no amount of statements from either Mr Rains nor Mr Challans would be in any way relevant to the construction of the Taxation Administration Act.

10    These same considerations inform why it is that it is neither necessary nor appropriate that Mr Rains or Mr Challans be joined as respondents to the proceedings. The decision under review is that of the Information Commissioner. The other public official affected by the decision is the person the subject of the complaint. The person the subject of the complaint is the person responsible for the general administration of the Taxation Administration Act, that is the Commissioner of Taxation, not Mr Rains or Mr Challans.

11    As to proposed order 5, Ms McEwan exhibited to one of the affidavits read on the interlocutory application proposed interrogatories. Each of those interrogatories addresses questions of law. That in itself provides occasion not to grant leave to deliver those interrogatories. Further, and in any event, and as already indicated, the status of satisfaction is that of the Information Commissioner formed on the material before the Information Commissioner at the time when the decision of 26 April 2022 was made. No amount of interrogation of any respondent can alter whether that material was capable reasonably of engendering the state of administrative satisfaction expressed in the letter of 26 April 2022.

12    Proposed order 6 seeks the referral of the determination of particular questions in the proceedings to a referee. Perhaps that might be theoretically possible, but there is no advantage to it. The question is one which calls for the exercise of judicial power and that, in my view, can be aptly done in one day if the case does not compromise at mediation. Far from, as was put, narrowing issues or having them earlier determined, all that referral to a referee might do is to elongate, not truncate, the length of the present proceedings.

13    There was also in the draft orders an endeavour to have the benefit before mediation of a defence by the respondents. I can, with respect, see some advantage in that course, but the disadvantage would be the expense entailed in the preparation of such formal pleading documents. Each of the respondents is an officer of the Commonwealth. The preparation of the pleadings would, therefore, necessary entail an expenditure of public moneys. Of course, one can be penny-wise and pound-foolish in relation to such expenditures. A tempering thought, particularly in relation to the Commissioner of Taxation, is that it is entirely possible administratively, depending on the good sense and judgement of the Commissioner of Taxation and those advising him, to set out in a summary way that Commissioner’s view before mediation of the true meaning and effect of the Taxation Administration Act. I do not consider it either necessary or appropriate to make a formal direction in that regard. Doubtless such a document would be of advantage to Ms McEwan and if she has the benefit of pro bono advice by a member of the Bar, that particular barrister, but all this can be achieved without formal Court order if thought necessary and appropriate as indicated.

14    Obviously enough, at the mediation it is only to be expected that the Commissioner of Taxation would give Ms McEwan in the context of mediation the benefit of his views as to the meaning and effect of the Taxation Administration Act. That, indeed, was one factor which was influential in my directing the case be sent early to mediation.

15    On balance, I consider it best to leave the position in relation to QUD181 of 2022 as it is and not in QUD199 of 2022 to make any different order with respect to the early filing before mediation of defences. Subject to these conclusions, the proposed orders do take up sentiments which are already apparent in the orders made in QUD181 of 2022. It is overwhelmingly desirable that QUD199 of 2022 be married up with and heard at the same time as QUD181 of 2022. Ms McEwan has, obviously, come, with respect, sensibly, to that view, as have the respondents.

16    The controversial interlocutory directions, therefore, are ones in relation to which Ms McEwan has not, for the reasons given, persuaded me are apt to be made.

17    Instead, I propose to make interlocutory directions in QUD199 of 2022 in accordance with the draft submitted by the Commissioner of Taxation, with which I note the Information Commissioner joined in commending to the Court. I also propose in QUD181 of 2022 to make orders in terms of the draft submitted by the Commissioner of Taxation.

18    In relation to costs, these have been sought by the Commissioner of Taxation. Ms McEwan put forward that she had sought these interlocutory orders, the interlocutory orders which proved controversial, in good faith. I do not for one moment doubt that they were sought in good faith. That, however, is not a basis upon which to refuse an order for costs to a successful party.

19    A litigant in person does not conduct litigation by reference to a different set of rules of court. Of course, one must approach the conduct of litigation by someone acting on their own behalf with a degree of understanding, but that does not mean that one fails to apply applicable rules of court or distorts rules of court to the ends which a litigation in person thinks in good faith they may serve, even though those rules of court serve no such end if properly understood. The case is not one where there should be any departure from the ordinary exercise of the costs discretion, which is that costs follow the event.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.

Associate:    

Dated:    16 August 2022