Federal Court of Australia

Sayed v Salvation Army Housing [2023] FCA 526

ORDERS

THE COURT ORDERS THAT:

1.    The name of the third respondent be changed to Chief Executive Officer, Homes Victoria.

2.    The proceeding be dismissed.

3.    The applicant pay the respondents’ taxed costs.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1    The applicant relies on a proposed “amended originating application and statement of claim” dated 9 February 2023. It was lodged for filing on 12 February 2023 and accepted for filing on 23 February 2023. It is a single document containing both an application and a statement of claim, which I shall refer to as the statement of claim.

2    The respondents did not object to the applicant being given leave rely on it.

3    The statement of claim names five respondents – Salvation Army Housing (ACN 608 346 934) (SAH); Salvation Army Housing (Victoria) (ACN 133 724 651) (SAHV); the Chief Executive Officer, Homes Victoria; the (Victorian) Registrar of Housing Agencies; and the (Victorian) Minister for Housing (the Honourable Colin Brooks MP).

4    The respondents apply for summary judgment:

(1)    pursuant to r 26.01(1)(a) of the Federal Court Rules 2011 (Cth) and s 31A(2) of the Federal Court of Australia Act 1976 (Cth), because they contend that the applicant has no reasonable prospect of successfully prosecuting the proceeding, or any part of it, primarily because this court does not have jurisdiction to hear it.

(2)    pursuant to r 26.01(1)(c), because they contend the proceeding discloses no reasonable cause of action.

(3)    pursuant to rr 26.01(1)(b) and (d), because they contend that the proceeding is frivolous, vexatious or an abuse of process (for the same reasons) and also because the subject matter of the proceeding is presently before the Victorian Civil and Administrative Tribunal (VCAT) (the VCAT Proceeding) in the context of the second respondent seeking to enforce a notice to vacate against the applicant.

5    Further and in the alternative, SAH and the third, fourth and fifth respondents apply to be removed from the proceeding pursuant to r 9.08 on the ground that they ought not to have been named as respondents and have been improperly or unnecessarily joined to the proceeding.

6    Ms Phoebe Knowles of counsel appeared for SAH and SAHV. Mr Jayr Teng of counsel appeared for the third and fifth respondents. Ms Rachel Walsh of counsel appeared for the fourth respondent.

7    The applicant described himself as an Australian lawyer, although he said in the course of his submissions that he did not hold a practising certificate. He was self-represented and made oral submissions at the hearing, via telephone.

The facts

8    The respondents relied on two affidavits of Mr Benjamin Thrift, who is a partner of Thomson Geer, the solicitors for SAH and SAHV.

9    The applicant filed an unsworn affidavit, but it is not necessary to refer to anything in it because it did not say anything pertinent to this application.

10    The relevant facts are uncontroversial. The emails referred to below when identified as such are exhibited to the statement of claim.

11    SAH is a community housing organisation that provides homes for individuals and families who are homeless or at risk of homelessness, are on low incomes, or have specific support needs. It is a company limited by guarantee and operates in South Australia, Western Australia and Tasmania.

12    SAHV is a community housing organisation that provides homes for individuals and families who are homeless or at risk of homelessness, are on low incomes, or have specific support needs. It is a company limited by guarantee and operates in Victoria.

13    SAH and SAHV each have the same five directors: Mark Gray, Roslynne Hansen, Jeffrey Davey, Jenny Begent and Winsome Mason.

14    The third and fourth respondents (the Chief Executive Officer, Homes Victoria and the Registrar of Housing Agencies) are Victorian statutory officers, and the fifth respondent is a Victorian Minister and member of the Victorian Parliament.

15    SAHV provided housing services pursuant to a Service Agreement with the State of Victoria dated 1 January 2020. Clause 17 provided that SAHV is a Contracted Service Provider and agreed to be bound by the Privacy and Data Protection Act 2014 (Vic) (the PDP Act). SAHV performed its obligations under the Service Agreement on behalf of a State Department. That agreement was superseded by a Service Agreement dated 1 February 2021.

16    On 4 February 2020, the applicant signed a Privacy Notice and Consent Form. The form provided consent by the applicant to the Salvation Army using and disclosing his personal information for purposes related to the services it provides.

17    On 6 February 2020, SAHV entered into an agreement to lease premises to the applicant (Rental Agreement).

18    For the purposes of the Residential Tenancies Act 1997 (Vic) (the RTA), SAHV is a “residential rental provider” and the applicant is a “renter” of “rented premises”.

19    The Rental Agreement contained, inter alia, the following terms:

(a)    SAHV lets to the applicant the premises in Victoria (Premises) (clause 1);

(b)    the Premises are for the express purpose of providing transitional housing to the applicant whilst they are in housing crisis (clause 3);

(c)    the Rental Agreement shall be for a period of 16 weeks commencing on 6 February 2020 and ending on 28 May 2020 or until terminated in accordance with the RTA (clause 3);

(d)    the applicant shall keep the Premises in a reasonably clean condition during the period of the Rental Agreement (clause 6(b)); and

(e)    the applicant shall not use or allow the Premises to be used in any such manner as to cause a nuisance (clause 7(b)).

20    On 28 October 2022, the applicant sent an email addressed to Commissioner Robert Donaldson of the Salvation Army, complaining about the condition of his apartment. It was also sent to Ms Mason at her email address. (As noted at paragraph [13] above, Ms Mason is a director of SAHV). That email is annexure B to the statement of claim.

21    On 31 October 2022, SAHV issued a notice of inspection to the applicant, as the renter of rented premises. The notice was sent by registered post to the applicant at the premises and stated that SAHV wished to enter the premises on 9 November 2022 at 11:00am, pursuant to s 86(1)(e) of the RTA because the applicant had failed to comply with his duties under the RTA or the Rental Agreement. The notice was in this form (the applicant’s address is redacted):

22    The inspection in fact occurred at the stipulated date and time.

23    Pursuant to s 85 of the RTA, SAHV or its agents have a right to enter the applicant’s residence together with any persons who are necessary to achieve the purpose of entry. In exercising its rights under s 86(1)(e) of the RTA, SAHV is required to give the applicant 24 hours’ notice, which it did.

24    On 7 November 2022, Winsome Merrett wrote to the applicant in relation to his complaint of 28 October 2022, saying among other things, that the Salvation Army was “very willing to provide you with support to address your current housing issues and would be pleased to work with you to ensure that the current state of your dwelling receives the maintenance required”. She also asked that he contact his “ICMI case worker” who would “ensure that Salvo Housing are informed of the need to support you to ensure your current housing is safe and well-maintained …” That email is annexure C to the statement of claim.

25    On 8 November 2022, the applicant sent an email to the fourth respondent and others referring to the fact that he had made a “formal complaint against Salvation Army Housing services” via the Department of Treasury and Finance’s website, asking that the fourth respondent “take urgent action by investigating, the full extent of compliance failures” by SAHV and “Salvation Army Homelessness – East”. That email is annexure E to the statement of claim.

26    On 9 November 2022, in accordance with the notice, Stephen Milliken and Devon Cristian (representatives of SAHV) attended the premises for the purposes of conducting the inspection and inspected the premises and took photographs of the inside of the premises. The photographs were in evidence. It is fair to say that they depict conditions of squalor.

27    After the inspection, the applicant complained to Commissioner Donaldson and the fourth respondent (copied to various other representatives of SAHV) in an email dated 10 November 2022, including because Mr Milliken had entered the premises without his consent. That email is annexure F to the statement of claim.

28    The applicant also wrote an email to the then Minister of Housing on 9 November 2022, complaining, among other things, that “two officers from … [SAHV] attended my residence – unannounced, unlocked the front door and entered my apartment before proceeding to take photographs, without seeking my consent”. That email is annexure G to the statement of claim.

29    On or about 11 November 2022, SAHV issued the following “notice to vacate to renter of rented premises”, pursuant to s 91ZL of the RTA on the basis that the premises were unfit for human habitation:

30    The applicant has a duty pursuant to s 89 of the RTA to allow SAHV to exercise its right of entry. It provides:

89    Renter has duty to permit entry

(1)    Subject to subsection (2), a renter has a duty to permit a person exercising a right of entry in accordance with this Division to enter the rented premises.

(2)    A renter may apply to the Tribunal for an order specifying or limiting when entry to the premises may occur by—

(a)    a residential rental provider or that person’s agent; and

(b)    an agent for the sale of the rented premises or other persons.

(3)    On an application under subsection (2), the Tribunal may make an order specifying or limiting the days, times and purposes for which entry to the rented premises is authorised for—

(a)    a residential rental provider or that person’s agent; and

(b)    an agent for the sale of the rented premises; and

(c)    any other person specified in the order.

Note

This section is a duty provision and a contravention of this section may be dealt with as a breach of a duty under Part 5 and other provisions of this Act.

31    On 11 November 2022, the applicant wrote to a “feedback” email address of the Department of Families, Fairness and Housing making a “formal complaint against consistent neglect and abuse directed towards myself by your delegated service provider – the Salvation Army – Eastcare (TSA)”, and complaining that Mr Liliken and Mr Christian had “barged into” the premises “unannounced”, and that they had taken photographs without his consent. That email is annexure H to the statement of claim.

32    On 14 November 2022, the applicant again wrote to the then Minister for Housing and to Departmental representatives about “repeated failures and malfeasance by the community housing and homelessness service providers”. That email is part of annexure I to the statement of claim.

33    On 17 November 2022, “The Housing Registrar Team” emailed the applicant saying, among other things, that the Housing Registrar would “consider the matters you have raised as part of its ongoing assessment of SAHV’s performance against Performance Standards”. It was also suggested that the applicant contact Tenants Victoria or Justice Connect “to seek further advice or support regarding your situation”. That email is annexure J to the statement of claim.

34    On 19 December 2022, SAHV made an application to the VCAT residential tenancies list for orders that SAHV have possession of the premises.

35    The application was made pursuant to ss 91ZL and 322(1) of the RTA on the ground that the premises were unsafe and not fit for human habitation.

36    On 9 January 2023, the applicant made an application for summary dismissal of the VCAT Proceeding pursuant to s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act).

37    On 12 January 2023, orders were made at a hearing before a member of VCAT that SAHV file any application to refer the VCAT Proceeding to a more appropriate forum pursuant to s 77 of the VCAT Act by 3 February 2023.

38    On 3 February 2023, SAHV made an application pursuant to s 77 of the VCAT Act to refer the VCAT Proceeding to the Supreme Court of Victoria.

39    VCAT is yet to list for hearing the summary dismissal application or the referral application.

The pleaded case

40    The applicant seeks the following orders:

1.    An award of damages and pecuniary penalties against the first and second respondents for breach of trust, distress and humiliation caused from offences against ss. 13 and 13G, 15, 80Q, 80W and 93, and Schedule 1, AAPs 3 - 6 and 11 of the Privacy Act 1988 (Cth) (Privacy Act), by reason of unauthorised collection, use and disclosure of personal information by aforementioned respondents —

(i)    employees,

(ii)    agents,

(iii)    directors,

(iv)    trustees, and

(v)    representatives.

2.    An award for damages and pecuniary penalties against the first and second respondents for breaching s. 142J of the Housing Act 1983 (Vic) (Housing Act) by use or disclosure of the applicant’s personal information for a non-permitted purpose.

3.    An award of damages and pecuniary penalties against the first respondent for committing offences against ss. 26 and 27 of the Healthcare Identifiers Act 2010 (Cth) (Healthcare Act), by reason of unauthorised use or disclosure of healthcare identifier of the applicant as a healthcare recipient under the Healthcare Act.

4.    An award of damages and pecuniary penalties against the second respondent for causing loss, distress and humiliation and breach of peace and quiet enjoyment of the premiss by acting in contravention of ss 85 and 88 of the Residential Tenancy Act 1997 (Vic) (RTA).

5.    An award of civil liability against the first respondent for engaging in conduct that is contrary to s. 474.17 of the Criminal Code Act 1995 (Cth) (Code) by use of carriage services to menace or harass the applicant.

6.    An award of civil liability against the second respondent for engaging in conduct that is contrary to s. 417.12 [sic, 471.12] of the Code by use of postal or other services to menace or harass the applicant.

7.    An award of damages and civil liability against the fourth respondent for failure to investigate applicant’s complaints or otherwise failing to give reasonable directions to the first and second respondents to comply with the performance standards pursuant s. 95 of the Housing Act.

8.    An order for issuance of a writ of mandamus compelling the fourth respondent to direct the The Salvation Army Victoria Housing Trust Pty Ltd (Trustee) of the second respondent for provision of urgent trauma cleaning and disinfection of the premises of the applicant pursuant to powers and functions provided under cl. 8 of Schedule 6 of the Housing Act.

9.    A declaration of unlawfulness, and any associated relief including an injunction, against the fourth respondent for contravening s. 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) by failing to give proper consideration or otherwise acting incompatibly with the applicant’s protected rights under ss. 8,10, 13 and 18 of the Charter.

10.    An order for issuance a writ of mandamus against the third respondent to complete the pending investigating of applicant’s complaints against first and second respondents in relation to alleged unlawful conduct engaged in their exercise of delegated functions, powers and authorities of Homes Victoria pursuant to s. 35 of the Housing Act.

11.    An award of damages against the third respondent for failure to take all reasonable and necessary steps to limit the loss, harm and distress caused to the applicant by the unlawful conduct of the first and second respondents in performance of delegated functions, powers and authorities of Homes Victoria pursuant to s. 35 of the Housing Act.

12.    A declaration directed at the fifth respondent, for breaching s. 15 of the Privacy Act by failing get applicant’s informed consent or otherwise take reasonable steps to protect sensitive information of the applicant from unauthorised collection, use or disclosure (contrary to the APP 11 of the Privacy Act).

13.    A declaration of unlawfulness, and any associated relief including an injunction, against the third and fifth respondents for contravening s. 38(1) of the Charter by failing to give proper consideration or otherwise acting incompatibly with the applicant’s protected rights under ss. 8,10, 13 and 18 of the Charter.

(Errors and emphasis in original.)

41    The respondents’ counsel filed consolidated submissions which, if I may say so with respect, fairly put the applicant’s various allegations contained in that part of the pleading headed “statement of claim” at their highest, as follows:

(a)    In relation to the First and Second Respondent, the state of the Applicant’s rented premises, the manner in which the Second Respondent entered the Applicant’s residence and, on that entry, whether the Second Respondent lawfully took photos of the Applicant’s residence, and whether communication with Monash Health constituted a breach of privacy. The Applicant also alleges breaches of the Criminal Code Act 1995 (Cth) and Healthcare Identifiers Act 2010 (Cth).

(b)    In relation to the Third Respondent, whether it completed the “pending investigating of applicant’s complaints against first and second respondents in relation to alleged unlawful conduct engaged in their exercise of delegated functions, powers and authorities of Homes Victoria” pursuant to s 35 of the Housing Act 1983 (Vic) (Housing Act) and otherwise acted in accordance with the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter).

(c)    In relation to the Fourth Respondent, (i) whether it was required to and, if so, failed to, investigate the Applicant’s complaints; (ii) whether it could give, and, if so, ought to have given, certain directions to the First and Second Respondents under the Housing Act; (iii) whether the Applicant had certain nominated rights under the Charter and, if so, whether the Fourth Respondent was required to give consideration to, or act compatibly with, those rights at the relevant time, and, if so, whether it complied with that requirement; and (iv) whether any of those matters gives rise to a justiciable error of law.

(d)    In relation to the Fifth Respondent, whether it “by failing [to] get applicant’s informed consent or otherwise take reasonable steps to protect sensitive information of the applicant from unauthorised collection, use or disclosure (contrary to the APP 11 of the Privacy Act 1988 (Cth))” and otherwise acted in accordance with the Charter.

42    The applicant also seeks damages, penalties, declarations and orders in the nature of mandamus against various of the respondents.

The applicable principles

43    Section 31A of the Federal Court of Australia Act relevantly provides:

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

(4)    This section does not limit any powers that the Court has apart from this section.

44    Rule 26.01 of the Federal Court Rules relevantly provides:

26.01    Summary judgment

(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

(b)    the proceeding is frivolous or vexatious; or

(c)    no reasonable cause of action is disclosed; or

(d)    the proceeding is an abuse of the process of the Court; or

…

45    The essential requirement for an order under s 31A or r 26.01 is that the court be satisfied that the applicant has no reasonable prospect of successfully prosecuting the claim: Spencer v Commonwealth (2010) 241 CLR 118 at 131-32 [24]-[25] (French CJ and Gummow J) and 141 [60] (Hayne, Crennan, Kiefel and Bell JJ). As Spencer makes clear, this is a lower standard than the “General Steel test” of “hopeless” or “bound to fail” (see Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125). In Sop and Sop Pty Ltd v Commissioner of Taxation [2019] FCA 102 at [14]-[15], Kenny J said that “when well-established propositions of law deny the prospect of success” summary judgment is available. Although, as her Honour said, summary dismissal is a “serious step taken only with great care and if it is possible to conclude with confidence that there is no reasonable prospect of success”, quoting Danthanarayana v Commonwealth [2016] FCAFC 114 at [4] (Jagot, Bromberg and Murphy JJ).

46    Proceedings dismissed pursuant to r 26.01(1)(c) of the Federal Court Rules for not disclosing a reasonable cause of action include:

(a)    where the originating application is not accompanied by pleadings, affidavits or submissions, and simply makes ‘bare demands’ without articulating the legal bases for the claims: Sullivan v North West Crewing Pty Ltd [2016] FCA 1130 at [33]-[34] (McKerracher J); and

(b)    where pleadings consist of “scandalous, conclusory allegations, with no attempt to plead any material facts upon which the allegations are made and which raise no reasonable cause of action”: Kimber v Owners Strata Plan No 48216 [2016] FCA 1090 at [72] (Perry J).

47    As to abuse of process, in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507, French CJ, Bell, Gageler and Keane JJ said at 518-19 [25] that “abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute”.

48    An abuse of process may arise in circumstances including where the proceedings can be clearly seen to be foredoomed to fail or where the court in which the proceedings are instituted is, in all the circumstances, clearly an inappropriate forum. See Walton v Gardiner (1993) 177 CLR 378 at 393 (Mason CJ, Deane and Dawson JJ).

49    As McKerracher J said in Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [35]-[38]:

The expressions ‘scandalous’, ‘vexatious’ and ‘frivolous’ can be used either separately, or in conjunction, or interchangeably, with the expression ‘abuse of process of the court’: Crocker v Toys ‘R’ Us (Australia) Pty Ltd (No 3) [2015] FCA 728 per Reeves J (at [9]).

A matter is ‘frivolous and vexatious’ where the ‘cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide, and contend that he had a grievance which he was entitled to bring before the court’: Geneva Laboratories Ltd v Nguyen (2014) 110 IPR 295 per Gleeson J (at [56]), quoting Norman v Matthews (1916) 85 LJKB 857 (at 859).

In relation to the term ‘frivolous’:

(a)    a matter that is ‘frivolous’ may be described as one that is ‘without substance or groundless or fanciful’: Crocker per Reeves J (at [9]), citing Pickering v Centrelink [2008] FCA 561 per McKerracher J (at [27]); MCG Quarries Pty Ltd v Beach [2017] FCA 1601 per Davies J (at [4]);

(b)    a proceeding will be ‘frivolous’ where, despite whatever attempts are made to discern a cause of action in the case, it is still not arguable: Pickering per McKerracher J (at [27]), referring to NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 119; (2005) 143 FCR 434 (at [16]-[22]); and

(c)    ‘frivolous’ may also describe a situation where a party is trifling with the Court or wasting the Court’s time: Crocker per Reeves J (at [9]), citing Chaffers v Goldsmid [1894] 1 QB 186.

In relation to the term ‘vexatious’:

(a)    a ‘vexatious’ proceeding is one without foundation, which cannot succeed, or is brought for an ulterior and collateral purpose. ‘Vexatious’ might also describe proceedings that are seriously and unfairly burdensome, prejudicial or damaging: Crocker per Reeves J (at [9]);

(b)    proceedings may also be described as ‘vexatious’ where they impose on a respondent party an unnecessary injustice in the form of a burden other than, and additional to, the burden necessarily imposed on a party to litigation instituted on reasonable grounds for the purpose of obtaining relief within the scope of the available remedy: Dowling v John Fairfax Publications Pty Ltd (2007) 169 IR 201 per Cameron FM (at [83]);

(c)    a proceeding is to be regarded as ‘vexatious’ where:

(i)    it is instituted with the intention of annoying or embarrassing the person against whom the proceeding is brought; or

(ii)    it is brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which it gives rise; or

(iii)    irrespective of the motive of the litigant, the proceeding is so obviously untenable or manifestly groundless as to be utterly hopeless: Singh v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 833; (2011) 282 ALR 56 per Bromberg J (at [14]-[15]), applying Von Reisner v Commonwealth [2009] FCAFC 97; (2009) 177 FCR 531 per Siopis, Cowdroy and Reeves JJ (at [27]); and

(d)    ‘vexatiousness’ is a quality of the proceeding rather than a litigant’s intention, so that the question is not whether the proceedings have been instituted vexatiously but whether the legal proceedings are in fact vexatious: Rana v Commonwealth [2013] FCA 189 per Mansfield J (at [43]).

50    In Victoria International Container Terminal Ltd v Lunt (2021) 271 CLR 132, Kiefel CJ, Gageler, Keane and Gordon JJ (with whom Edelman J agreed) said at [18]:

The fundamental responsibility of a court is to do justice between the parties to the matters that come before it. In the performance of that function, the doing of justice may require the court to protect the due administration of justice by protecting itself from abuse of its processes. The power to stay, or summarily dismiss, proceedings because one party has abused the processes of the court is concerned to prevent injustice, and that power is properly exercised where the conduct of the moving party is such that the abuse of process on its part may prevent or stultify the fair and just determination of a matter.

(Footnotes omitted.)

The claims against the first and second respondents

51    SAHV submitted that the proceeding against it is vexatious because the Commonwealth enactments pleaded against it do not apply to it in its functions as a residential services provider.

52    SAH submitted that the proceeding against it is vexatious because the statement of claim contains no allegations of discernible conduct by it. That is unsurprising because it does not operate in Victoria.

53    The applicant alleges that SAH and SAHV contravened several Commonwealth (and Victorian) enactments.

54    The applicant alleges breaches of ss 13, 13G, 15, 80Q, 80W and 93 and Schedule 1, Australian Privacy Principles 3-6 and 11 of the Privacy Act 1988 (Cth) (Cth Privacy Act), by SAH disclosing to SAHV an email sent by the applicant to Commissioner Donaldson and various other persons employed by the Salvation Army (see paragraph [20] above) and by the second respondent entering the applicant’s premises on 9 November 2022 and taking photographs of the premises.

55    Sections 13, 13G and 15 create obligations on “APP entities” and “entities”, for example, in their collection, use of disclosure of personal information. For example, s 13(1) provides:

13    Interferences with privacy

APP entities

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

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

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

56    SAH and SAHV are not “APP entities”. Sections 13, 13G and 15 do not apply to the alleged conduct. That is so for these definitional reasons.

57    Sub-section 6(1) defines “APP entity” to mean an “agency or organisation”.

58    Sub-section 6(1) in turn defines “agency” to mean:

(a)    a Minister; or

(b)    a Department; or

(c)    a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a Commonwealth law, not being:

(i)    an incorporated company, society or association; or

(ii)    an organisation that is registered under the Fair Work (Registered Organisations) Act 2009 or a branch of such an organisation; or

(ca)    a body (whether incorporated or not), or a tribunal, established for a public purpose by or under a law (other than a law providing for the incorporation of companies, societies or associations) of a State or Territory as in force in an external Territory, other than a body exempted by the Minister under subsection (5A); or

(d)    a body established or appointed by the Governor-General, or by a Minister, otherwise than by or under a Commonwealth law; or

(e)    a person holding or performing the duties of an office established by or under, or an appointment made under, a Commonwealth law, other than a person who, by virtue of holding that office, is the Secretary of a Department; or

(ea)    a person holding or performing the duties of an office established by or under, or an appointment made under, a law of a State or Territory as in force in an external Territory, other than an office or appointment exempted by the Minister under subsection (5A); or

(f)    a person holding or performing the duties of an appointment, being an appointment made by the Governor-General, or by a Minister, otherwise than under a Commonwealth law; or

(g)    a federal court; or

(h)    the Australian Federal Police; or

(ha)    a court of Norfolk Island; or

(k)    an eligible hearing service provider; or

(l)    the service operator under the Healthcare Identifiers Act 2010.

59    Self-evidently, SAH and SAHV are not any such bodies, persons or entities.

60    Sub-section 6(1) provides that “organisation has the meaning given by section 6C”.

61    Sub-section 6C(1) relevantly defines organisation to mean “… (b) a body corporate … that is not … a State or Territory authority”. (Emphasis added).

62    Sub-section 6C(3) in turn defines “State or Territory authority” to mean:

(a)    a State or Territory Minister; or

(b)    a Department of State of a State or Territory; or

(c)    a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a law of a State or Territory, other than:

(i)    an incorporated company, society or association; or

(ii)    an association of employers or employees that is registered or recognised under a law of a State or Territory dealing with the resolution of industrial disputes; or

(d)    a body established or appointed, otherwise than by or under a law of a State or Territory, by:

(i)    a Governor of a State; or    

(ii)    the Australian Capital Territory Executive; or

(iii)    the Administrator of the Northern Territory; or

(v)    a State or Territory Minister; or

(e)    a person holding or performing the duties of an office established by or under, or an appointment made under, a law of a State or Territory, other than the office of head of a State or Territory Department (however described); or

(f)    a person holding or performing the duties of an appointment made, otherwise than under a law of a State or Territory, by:

(i)    a Governor of a State; or

(ii)    the Australian Capital Territory Executive; or

(iii)    the Administrator of the Northern Territory; or

(v)    a State or Territory Minister; or

(g)    a State or Territory court.

63    Section 6C was introduced into the Cth Privacy Act by the Privacy Amendment (Private Sector) Act 2000 (Cth). The second reading speech states as follows:

The bill is not intended to cover state and territory public sector agencies, as this is a matter for the states and territories themselves. The bill recognises that state and territory government business enterprises, or GBEs, take many forms and that the dividing line between the public and private sectors is not always clear. In order to ensure certainty, the bill provides that GBEs that are incorporated under the Corporations Law will automatically be covered by the bill unless they are prescribed otherwise by regulation. Those GBEs not incorporated under the Corporations Law, such as statutory corporations, will not be covered by the bill.

To meet the varying requirements of state and territory governments, however, the bill also provides a flexible opt-in opt-out mechanism for prescribing state or territory instrumentalities. This will be achieved by regulation and will be done only at the request of the state or territory government. The policy behind this mechanism is to ensure that state and territory government functions can continue unaffected by the bill, whilst ensuring that state and territory GBEs that are performing substantially commercial functions will be treated on a level playing field with other private sector organisations.

See Commonwealth, Parliamentary Debates, House of Representatives, 12 April 2000, 15751 (Daryl Williams, Attorney-General).

64    An “organisation” to which the Cth Privacy Act may apply, by s 6C(1), does not pick up a State or Territory authority. By s 6C(3)(e), a “State or Territory authority” is defined to include “a person holding or performing the duties of an office established by or under, or an appointment made under, a law of a State or Territory, other than the office of head of a State or Territory Department (however described)”. Compare Minister for Home Affairs v Hunt (2019) 269 FCR 292 at 299 [34] (McKerracher, Perry and Banks-Smith JJ).

65    Mr Thrift in his second affidavit affirmed on 23 March 2023 exhibited as Exhibit BT-14 the Service Agreement applicable to SAHV at the time it entered into the Rental Agreement with the applicant. It is between “The State of Victoria as represented by the Department of Health and Human Services and the Director of Housing, Victoria [now the Chief Executive Officer, Homes Victoria]” and SAHV, and provides, among other things, that SAHV will deliver “the Services [as defined] in accordance with this Agreement to the reasonable satisfaction of the Department [which is defined as ‘The State of Victoria as represented by the Department of Health and Human Services and the Director of Housing, Victoria [now the Chief Executive Officer, Homes Victoria]’]”.

66    SAHV is not an “organisation” within the meaning of the Cth Privacy Act because it performs the duties of the office of the Department of Health and Human Services, alternatively, of the office of the Chief Executive Officer, Homes Victoria. It performs those duties pursuant to the Agreement and it performs the duties ‘of an office established under … a law of a State’. See Cth Privacy Act s 6C(3)(e).

67    I should also note cl 17 of the Service Agreement, which is headed “Privacy, Data Protection and Protected Disclosures”. Clauses 17.1 and 17.2 provide:

17.1    The Organisation acknowledges that it is a Contracted Service Provider and/or an ‘organisation’ within the meaning of the HR Act and irrespective of whether a federal privacy code applies to the Organisation under the Commonwealth Privacy Act, it agrees to be bound by:

(a)    the Information Privacy Principles contained in the PDP Act;

(b)    the Health Privacy Principles contained in the HR Act; and

(c)    any applicable code of practice made under the PDP Act or the HR Act,

when performing its obligations under this Agreement in the same way and to the same extent that the Department would be bound if the Department were to perform the Organisation’s obligations under this Agreement.

17.2    Without limiting clause 17.1 and subject to clause 17.4, the Organisation agrees, in delivering the Services or fulfilling its obligations pursuant to this Agreement, to be bound by:

(a)    any applicable standards issued by the Information Commissioner under Part 4 of the PDP Act as if it were a Public Sector Agency;

(b)    any provision of a Protective Data Security Plan developed for the Department under the PDP Act that applies to the Organisation or to any Public Sector Data, Personal Information and Health Information; and

(c)    any provision of the Commonwealth Privacy Act which applies to:

(i)    the Organisation; or

(ii)    the Department, in the same way and to the same extent that the Department would be bound if the Department were to perform the Organisation’s obligations under this Agreement.

68    I accordingly accept the submission made by SAHV that the proceeding against it is vexatious because the provisions of the Cth Privacy Act relied upon in the statement of claim have no application to it.

69    As for SAH, the claim against it is vexatious because, as counsel put it in her written submissions, there is no discernible conduct pleaded against it.

70    The applicant also alleges breaches of s 80Q. It is contained in Part IVA of the Cth Privacy Act, which is headed “Dealing with personal information in emergencies and disasters”.

71    Section 80F is headed “Object” and provides that “[t]he object of [Part IVA] is to make special provision for the collection, use and disclosure of personal information in emergencies and disasters”.

72    Section 80Q provides as follows:

80Q    Disclosure of information—offence

(1)    A person (the first person) commits an offence if:

(a)    personal information that relates to an individual is disclosed to the first person because of the operation of this Part; and

(b)    the first person subsequently discloses the personal information; and

(c)    the first person is not a responsible person for the individual.

Penalty:    60 penalty units or imprisonment for 1 year, or both.

(2)    Subsection (1) does not apply to the following disclosures:

(a)    if the first person is an APP entity—a disclosure permitted under an Australian Privacy Principle or a registered APP code that binds the person;

(c)    a disclosure permitted under section 80P;

(d)    a disclosure made with the consent of the individual to whom the personal information relates;

(e)    a disclosure to the individual to whom the personal information relates;

(f)    a disclosure to a court;

(g)    a disclosure prescribed by the regulations.

Note:    A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

(3)    If a disclosure of personal information is covered by subsection (2), the disclosure is authorised by this section.

(4)    For the purposes of paragraph (2)(f), court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

73    Section 80Q has no conceivable application to the circumstances of this case, because it only applies to information disclosed during times of declared emergencies or disaster, where, for example, the use, collection or disclosure relates to that emergency or disaster.

74    It follows that the claim based on that provision against SAH and SAHV is bound to fail.

75    The applicant also alleges breaches of ss 80W and 93 of the Cth Privacy Act, but those provisions are of no assistance to the applicant. Section 80W confers power on this court and the Federal Circuit and Family Court of Australia (Division 2) to enforce provisions of the Act and s 93 permits a “confider” to recover damages from a confidant in respect of a breach of an obligation of confidence with respect to personal information. The references to the Australian Privacy Principles contained in Schedule 1 to the Act likewise do not assist the applicant.

76    The applicant also alleges breaches by SAH of ss 26 and 27 of the Healthcare Identifiers Act 2010 (Cth) (HI Act) “by reason of unauthorised use or disclosure of healthcare identifier of the applicant as a healthcare recipient under the Healthcare Act”. That is apparently a reference to the allegation in the particulars to [44] of the statement of claim, alleging that an employee of SAH provided such information to “Monash Community Health” without his consent.

77    The purpose of the HI Act is “to provide a way of ensuring that an entity that provides, or an individual who receives, healthcare is correctly matched to health information that is created when healthcare is provided”. That purpose is to be achieved by “assigning a unique identifying number to each healthcare provider and healthcare recipient”. See HI Act s 3.

78    Sections 26 and 27 of the HI Act apply to the use, disclosure and protection of information, and “healthcare identifiers”, in circumstances prescribed by the HI Act. The statement of claim does not articulate a coherent case as to how any of those circumstances apply in this case.

79    The applicant also alleges breaches by SAH and SAHV of s 471.12 the Criminal Code Act 1995 (Cth) by using a carriage service “to menace or harass the applicant”, by serving on the applicant the notice to vacate under the RTA set out at paragraph [29] above. That claim is self-evidently absurd. See Monis v The Queen (2013) 249 CLR 92 at 203 [310], where with particular reference to the offence of using a postal or similar service to menace, harass or cause offence in s 471.12 of the Criminal Code, Crennan, Kiefel and Bell JJ said: “The words ‘menacing’ and ‘harassing’ imply a serious potential effect upon an addressee, one which causes apprehension, if not a fear, for that person’s safety. For consistency, to be ‘offensive’, a communication must be likely to have a serious effect upon the emotional well-being of an addressee” (Footnotes references omitted).

80    Otherwise, the claims made in the statement of claim against SAH and SAHV under the Housing Act 1983 (Vic) (Housing Act) and the RTA are not within the jurisdiction of this court.

The claims against the third, fourth and fifth respondents

81    The third, fourth and fifth respondents submit that the applicant’s pleaded case against them, on its face, arises under the RTA in relation to the exercise of rights and powers of “a residential rental provider” and “a renter” and the Housing Act, and might also involve the PDP Act and the Charter of Human Rights and Responsibilities Act 2006 (Vic).

82    As noted above, the third and fourth respondents are Victorian statutory officers. The fifth respondent is a Victorian Minister and member of the Victorian Parliament. It was submitted that the matters alleged against them are entirely and exclusively in connection with their powers and obligations under various Victorian statutes.

83    It was submitted that “[t]here is no residual federal matter about which the Parliament of the Commonwealth has made laws. The rights the applicant asserts [against the third, fourth and fifth respondents], which are effectively in relation to his personal privacy and the quiet enjoyment of his tenancy, are rights which owe their existence entirely to Victorian statutes”.

84    It was further submitted:

Neither s 19(1) of the [Federal Court Act] nor s 39B(1A)(c) of the Judiciary Act 1903 (Cth) confer jurisdiction on the Court in respect of the [matters alleged in the statement of claim]. There is no right, duty or obligation at issue owing its existence to federal law or depending upon federal law for its enforcement. The rights, duties and obligations relevant to the Applicant’s claims, to the extent they are able to be discerned, all relate only to Victorian legislation. As a consequence, the proceeding has no reasonable prospect of success. Accordingly, the Court should give summary judgment against the Applicant.

85    I agree. This court has no jurisdiction to hear the claims made in the statement of claim against the third, fourth and fifth respondents, and that the proceeding against them should therefore be dismissed.

86    The third and fifth respondents also submitted that, in any event, the relief sought against them does not flow from the factual matters alleged and that the claims are bound to fail for that reason too. That submission must also be accepted.

87    The fourth respondent also submitted, among other things, that the applicant failed to “identify any relevant duty of care that would found a civil cause of action … let alone describe the breach of such duty”, and that the relief sought against it is “absolutely contradicted” by the material that the applicant attached to his statement of claim. Those submissions must also be accepted.

88    In those circumstances, it is unnecessary to burden these reasons with consideration of the submissions that the court should remove SAH and the third, fourth and fifth respondents as parties.

Two other matters

89    I should also mention two matters raised by Mr Sayed at the hearing, one concerning an application for cross-examination, the other service of the respondents’ interlocutory application. Taking each in turn.

90    On 15 May 2023 at 10:42pm, being the night before the hearing, Mr Sayed sent the following email to the Federal Court Registry (formal parts omitted and errors in original):

Mr Benjamin Thrift has filed 2 x affidavits on behalf of the second respondents that assert facts which are contested by the applicant.

It is therefore entirely inappropriate for the Court to admit any of the material by Mr Thrift without the applicant having an opportunity to question him.

In the event leave is withheld, applicant objects to any statement or material contained in Mr Thrift’s affidavit in relation to allegations of unlawful entry and inspection by first and second respondents of the applicant’s premises on 9thNovember 2023, in particular applicant disputes the authenticity of annexure‘BT-7’ — copy of Notice of Inspection accompanying Mr Thrift’s affidavit dated 2nd March 2023.

Secondly applicant require Mr Thrift to submit to examination in respect to earlier representations made in relation to the sufficiency of pleadings in the SOC filed on 21st November 2022 and admission that VCAT was no longer an appropriate forum for the eviction proceedings. To that extent applicant relies on statements made in the affidavit of Mr Thrift dated 3rd February 2023 (attached below) and filed on behalf of the second respondent in support of application to strike out the application for possession in VCAT.

91    I took that to be an application to cross-examine Mr Thrift.

92    At the hearing, Mr Sayed said that he wished to cross-examine Mr Thrift because the respondents’ application to dismiss the application was some kind of abuse because there is an application currently before VCAT. He also raised a vague issue about the veracity of submissions sought to be made by one or more of the respondents.

93    Section 27 of the Evidence Act 1995 (Cth) provides that “[a] party may question any witness, except as provided by this Act”. Section 29(1) provides that “[a] party may question a witness in any way the party thinks fit, except as provided by [Chapter 2 of the Evidence Act] or as directed by the court”.

94    In Wu v Avin Operations Pty Ltd (No 3) [2006] FCA 1321, a respondent sought to cross-examine the applicant. Justice Kenny observed as follows:

[18]    The Court has a discretion to permit or refuse an application made in an interlocutory proceeding to cross-examine a deponent on an affidavit that he or she has made, although the discretion to permit such cross-examination is exercised cautiously and, as Nicholson J said in Scanlon v American Cigarette Co (Overseas) Pty Ltd (No 1) [1987] VR 261 at 272, “normally” “somewhat sparingly”.

95    I was not satisfied that there was any sufficient justification for departing from the usual practice on interlocutory applications. I did not accept that the application made was a bona fide one, and I did not accept that any particular matter had been identified that would warrant permitting cross-examination. As Collier J said in National Mutual Life Association of Australasia Ltd v Tolfield Pty Ltd (No 2) [2011] FCA 1309 at [13]:

While the importance of parties being afforded a fair trial cannot be over-emphasised, it is also important to ensure that the time of the court is not wasted by cross-examination of witnesses which would be of no assistance to the court.

96    Accordingly, I refused the application for leave to cross-examine Mr Thrift.

97    With respect to service of the interlocutory application, Mr Sayed made the following submission:

… in relation to submissions made in support of the application for dismissal, I will also note that [the respondents] actually never served the actual application, filed application, as required pursuant to rule 26[.01]. What I was served was a non-filed copy on the 2nd and it only – I was only made aware of the fact that there is this document from the court book, which had an application filed and dated 7 October. So there is an issue with their ability to actually make an application when, in fact, the rules require that they must serve a proper filed copy of that application no less than 14 days prior to the hearing. I was served that application on Monday, a day before.

98    Rule 26.01 of the Federal Court Rules relevantly provides:

26.01    Summary judgment

…

(3)    The application and the accompanying affidavit must be served on the party against whom the order is sought at least 14 days before the hearing of the application.

99    Ms Knowles made the following responsive submission:

MS KNOWLES: Firstly, it has been put that the respondents haven’t complied with rule 26 in terms of providing the applicant with a copy of the documents. The applicant was sent by my instructor a copy of the application, the affidavit in support in compliance with rule 26.0[1] and the coordinated submissions and the individual submissions. Those four documents were all emailed to the applicant on 3 March 2023. The applicant … forwarded those documents to the Registrar by email on 5 March 2023, confirming that he had, in fact, received those documents. At that stage, those documents were unsealed. My instructor served …[on] the applicant a copy of the sealed documents just this past Sunday but the rule does not require service of sealed documents or otherwise. But that was a mistake that the service of the sealed documents was delayed. However, I don’t think it’s in question that the applicant has been on notice of the application for some time and has had all of the correct documents.

100    Rule 26.01(3) does not require sealed copies of the application and accompanying affidavit to be served on the opposing party. The applicant suffered no prejudice.

101    I am satisfied that the respondents complied with r 26.01(3).

Disposition

102    In my view, the case pleaded against each of the respondents is frivolous, vexatious and bound to fail, for the reasons I have given.

103    The subject matter of the proceeding is presently before VCAT, where SAHV seeks to enforce the notice to vacate against the applicant set out above at paragraph [29] above. To the extent that the applicant has any valid claim that he wishes to advance under Victorian statutes (about which I obviously express no view), that (or a state court) is the place to pursue it. Not the Federal Court.

104    I will accordingly order that the proceeding be dismissed, with costs.

Associate:

Dated:    26 May 2023

SCHEDULE OF PARTIES