Federal Court of Australia

Sayed v Salvation Army Housing (No 2) [2023] FCA 1377

ORDERS

THE COURT ORDERS THAT:

1.    Leave to appeal be refused.

2.    The applicant pay the respondents’ costs.

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

REASONS FOR JUDGMENT

KATZMANN J:

1    This is an application for leave to appeal from a judgment and orders for summary dismissal of a proceeding. The proceeding in question arose out of action taken by Salvation Army Housing (Victoria) (SAHV) in response to a complaint made by Muhammad Ali Sayed about the condition of the premises in which he was living and which he rented from SAHV. For the following reasons the application must be dismissed.

Background facts

2    Shortly put, the background facts are these.

3    On 6 February 2020, SAHV, as agents for the Victorian Department of Health and Human Services, entered into a lease agreement with Mr Sayed to rent an apartment in suburban Melbourne (the premises). SAHV is a community housing organisation which provides homes for people who are homeless or at risk of homelessness, on low incomes or with specific support needs. The premises were provided for the express purpose of providing Mr Sayed with transitional housing while in a housing crisis. The agreement was for a period of 16 weeks, ending on 28 May 2020, or until terminated in accordance with the Residential Tenancies Act 1997 (Vic). Under the terms of the agreement Mr Sayed was required to keep the premises in a reasonably clean condition and not use, or allow them to be used, in “any such manner as to cause a nuisance”.

4    Two days earlier, Mr Sayed signed a form consenting to The Salvation Army using and disclosing his personal information for purposes related to the services it provides.

5    On 28 October 2022, Mr Sayed complained by email to Commissioner Robert Donaldson of The Salvation Army about the state of the premises and the lack of support he had been receiving from SAHV. One of his complaints was that he had been living in squalor for the previous two years and for over six weeks his caseworker had failed to organise “trauma cleaning”. He advised that he had developed “a skin condition and infection caused due to the rubbish at the property”. A number of photographs were attached to the email, including photographs of the state of the premises. Richard Grellman, Winsome Merrett, Winsome Mason, Stuart Glover and Kelvin Merrett were copied into the email. The evidence before the primary judge was that Ms Mason was a director of both Salvation Army Housing (SAH) and SAHV.

6    Three days later, on 31 October 2022, SAHV issued a notice to Mr Sayed indicating its intention to enter the premises under s 85 of the Residential Tenancies Act, which relevantly permits a residential rental provider or its agent to enter rental premises (with any other persons who are necessary to achieve the purpose of entry) without the consent of the tenant between 8 am and 6 pm on any day except a public holiday, provided 24 hours’ notice is given and the entry is for one of three purposes (the Notice): Residential Tenancies Act, s 85(b)(ii). The Notice was sent by registered post. One of the authorised purposes, set out in s 86(1)(e), is that “the residential rental provider or that person’s agent has reasonable grounds to believe that the renter has failed to comply with his or her duties under this Act or the residential rental agreement”. This was the purpose given in the Notice.

7    The inspection occurred on 9 November 2022 as foreshadowed in the Notice. The primary judge observed that photographs taken during the inspection depicted “conditions of squalor” (at [26]).

8    Soon after the inspection, Mr Sayed complained to the Victorian Minister for Housing that SAHV “officers” attended his premises unannounced, unlocked the front door, and entered the premises without his consent. The next day, Mr Sayed made similar complaints in an email to Commissioner Donaldson, copying in the Victorian Registrar for Housing Agencies.

9    On 11 November 2022, SAHV issued a notice to Mr Sayed to vacate the premises by 11 November 2022 under s 91AZ of the Residential Tenancies Act on the basis that, due to accumulation of rubbish and the failure to maintain the property, the premises were unfit for human habitation or had been destroyed totally or to such an extent as to be rendered unsafe.

10    On 19 December 2022, SAHV applied to the Victorian Civil and Administrative Tribunal (VCAT) for possession of the unit on the ground that the premises were unsafe and unfit for human habitation. On 9 January 2023, Mr Sayed applied for summary dismissal of the VCAT proceeding and on 3 February 2023, SAHV applied to VCAT to refer the VCAT proceeding to the Supreme Court of Victoria as a more appropriate forum. At the time of the hearing before the primary judge neither Mr Sayed’s summary dismissal application nor the referral application had been listed for hearing. I was informed that the application to transfer the proceeding to the Supreme Court would not be pursued.

The proceeding below

11    In the meantime, on 21 November 2022, Mr Sayed filed an originating application in this Court against SAH; SAHV; the Victorian Director of Housing, later renamed as Chief Executive Officer, Homes Victoria (CEO of Homes Victoria); the Registrar; and the Minister.

12    SAH provides the same kind of services as SAHV but in South Australia, Western Australia and Tasmania. Each of SAH and SAHV is a company limited by guarantee. They have the same directors.

13    The CEO of Homes Victoria and the Registrar are Victorian statutory officers. The Minister is a member of the Victorian Parliament.

14    As against SAH and SAHV Mr Sayed applied for:

(1)    damages and pecuniary penalties for breaches of various provisions of the Privacy Act 1988 (Cth) “by reason of unauthorised collection, use, and disclosure of [his] personal information” and for breach of s 142J of the Housing Act 1983 (Vic) by use or disclosure of his personal information for (an undisclosed) non-permitted purpose; and

(2)    “awards of civil liability” for engaging in conduct contrary to the Criminal Code Act 1995 (Cth) by using postal or carriage services to menace or harass him.

15    He also sought damages and pecuniary penalties against SAH for “offences” against ss 26 and 27 of the Healthcare Identifiers Act 2010 (Cth) “by reason of unauthorised use or disclosure of healthcare identifier of the applicant as a healthcare recipient under [that] Act” and against SAHV for “causing loss, distress and humiliation and breach of peace and quiet enjoyment of the [premises]” by acting in contravention of ss 85 and 88 of the Residential Tenancies Act.

16    As against the CEO of Homes Victoria, Mr Sayed sought:

(1)    the issue of a writ of mandamus to compel the CEO of Homes Victoria to complete the investigation of his complaints against SAHV and SAH;

(2)    an award of damages for failing to take all reasonable and necessary steps to limit the loss, harm and distress caused by “the unlawful conduct” of SAHV and SAH in the performance of “delegated functions, powers and authorities of Homes Victoria pursuant to s 35 of the [Housing Act]”; and

(3)    “a declaration of unlawfulness, and any associated relief including an injunction” for contravening s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) by failing to give proper consideration or otherwise acting incompatibly with his protected rights under ss 8, 10, 13 and 18 of the Charter.

17    As against the Registrar, Mr Sayed sought the same relief as in (1) and (3) above, save that the writ of mandamus in this case was to compel the Registrar to direct The Salvation Army Victoria Housing Trust Pty Ltd to provide “urgent trauma cleaning and disinfection of the premises” pursuant to powers and functions in Sch 6 cl 8 of the Housing Act.

18    As against the Minister, Mr Sayed sought the same declaration and associated relief in (3) above as well as a declaration “for breaching s 15 of the Privacy Act” by failing to obtain informed consent or taking reasonable steps to protect his sensitive information from unauthorised collection, use or disclosure contrary to Australian Privacy Principle (APP) 11 of that Act.

19    On 9 February 2023 at a case management conference, Senior National Registrar Priestley made the following orders (case management orders):

1.    The applicant be granted leave to file an amended Originating Application by 5 pm on 9 February 2023.

2.    By 2 March 2023 the respondents are to file and serve any application concerning:

•    This Court’s jurisdiction to hear the matters complained of; and/or

•    Whether any party [was] improperly or unnecessarily joined in the proceedings

3.    The respondents are to file and serve a coordinated set of submissions supporting their applications by 2 March 2023 …;

4.    The applicant is to provide a single response to the respondents’ submissions of no more than 10 pages by 16 March 2023.

5.    If required, the respondents may file any reply submissions of no more than 2 pages per each respondent group by 23 March 2023.

6.    The application referred to in Order (2) above be referred to the National Operations Registrar for referral to a docket judge for hearing on a date after 31 March 2023.

20    A perusal of the transcript of the case management conference indicates that Mr Sayed was agreeable to these orders.

21    Mr Sayed filed an amended originating application on 9 February 2023, another on 10 February 2023 and a third on 12 February 2023. The final amended originating application he filed was accepted for filing on 23 February 2023. Embedded within it was a statement of claim.

22    In the statement of claim Mr Sayed alleged, among other things, that SAH and the SAHV (through their employees) breached ss 13–13G of the Privacy Act by entering the premises “for the purpose of collecting and using photos of the … premises” when it had failed to adequately inform him of those purposes or provided him with false and misleading information about those purposes or failed to obtain his consent to collect, use and/or disclose the photos in order to obtain possession of the premises; and collected personal information by unlawful means or failed to collect the information by fair means. He also alleged that the employees, directors and/or trustees of SAH engaged in acts and practices that breached ss 13 or 13G of the Privacy Act by making unauthorised disclosures of his complaint, that SAH committed an “offence” under ss 80W and 90 of the Privacy Act and breached their “obligation of confidence”. He further alleged that SAH interfered with his privacy when one of its employees “made unauthorised use and disclosures of [his] healthcare identifiers and other information” to an employee of Monash Community Health for a “non-primary purpose”. He pleaded that the use of this material was an “offence against” ss 26 and 27 of the Healthcare Identifiers Act and ss 13G, 15 and 80Q of the Privacy Act. No allegations were made against the other respondents.

23    Despite his apparent agreement to Registrar Priestley’s orders, on 14 February 2023 Mr Sayed filed an application for review of them, seeking orders that they all be set aside, that the Court declare that the Court’s jurisdiction had been properly invoked, and that a different timetable be fixed to enable his originating application to continue on the pleadings contained in the amended originating application, with provision for the respondents to file and serve their defence, for him to file and serve any reply, and for the matter to be listed for a further case management hearing. He also sought a listing date for an application he made for declaratory and injunctive relief to prevent VCAT from dealing with SAHV’s possession application.

24    On 2 March 2023, in accordance with Registrar Priestley’s orders, the respondents filed an application for summary judgment. The application was brought under subrr 26.01(1)(a), (b), (c) and (d) of the Federal Court Rules 2011 (Cth) and s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) on the grounds that the Court did not have jurisdiction; the proceeding disclosed no reasonable cause of action; and the proceeding was frivolous, vexatious or an abuse of process. The CEO of Homes Victoria, the Registrar and the Minister also applied to be removed from the proceeding pursuant to r 9.08 on the ground that they should never have been named and had been improperly or unnecessarily joined to the proceeding.

25    Section 31A(2) of the FCA Act confers a discretion on the Court to give judgment for a respondent in relation to the whole or part of a proceeding “if the Court is satisfied that the [applicant] has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding”. For this purpose, a proceeding or part of a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success: s 31A(3).

26    Rule 26.01 entitles a party to apply to the Court for summary judgment on various grounds including, relevantly that:

(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[.]

27    The respondents’ application was listed for hearing on 16 May 2023.

28    On 1 May 2023 Mr Sayed lodged an interlocutory application with the Court seeking leave to appear and give evidence “by way of audio-video link or other appropriate means” pursuant to ss 47A and 47B of the FCA Act. The following day he received an email from the Registry advising that the primary judge had already granted him leave to appear remotely and for that reason no application was required. Soon afterwards, the application was rejected for filing. Mr Sayed then sent an email to his Honour’s staff, copied to the respondents’ lawyers and the Registry, complaining about what had occurred, and asking for the primary judge to dismiss or vacate any current order, direct the Registry to file his application (by which I assume he meant accept his application for filing), allow the respondents to seek instructions and make any submissions on his application, and “make the appropriate order on paper”.

29    On 12 May 2023, the solicitor for the CEO and the Minister contacted the Court seeking clarification as to whether the application to review the case management orders would be heard on 16 May 2023. On 15 May 2023 a client service officer with the Registry notified the parties that the primary judge “will not hear any appeal of the case management orders dated 9 February 2023 at the hearing on 16 May 2023”. The officer also advised that:

The Court has not issued any orders other than the case management orders dated 9 February 2023. Absent extraordinary circumstances, the Court will not permit cross-examination in an application of this kind.

30    The same day, the solicitors for SAH and SAHV sent two emails to Mr Sayed and the representatives of the other respondents. The emails advised that an eCourtBook and an eBook of authorities had been prepared and contained instructions about how to access them.

31    The application for summary judgment was heard over Mr Sayed’s objection on 16 May 2023. Mr Sayed appeared in person, that is to say, without legal representation, as he did at the hearing of this application.

The reasons of the primary judge

32    The primary judge held that the proceeding against SAHV was vexatious because the provisions of the Privacy Act relied on in the statement of claim had no application to it in its functions as a residential services provider (at [53]–[68]). His Honour held that the claim against SAH was vexatious because there was no discernible conduct pleaded against it (at [69]).

33    As for Mr Sayed’s allegations of breach of s 80Q of the Privacy Act, the primary judge held that the claim was bound to fail because s 80Q only applies to information disclosed during times of declared emergencies or disaster such that it had no conceivable application to circumstances of this case (at [70]–[74]). His Honour held that the alleged breaches of ss 80W and 93 of the Privacy Act and references to the Australian Privacy Principles did not assist Mr Sayed (at [75]).

34    In relation to the alleged breaches by SAH of ss 26 and 27 of the Healthcare Identifiers Act, his Honour said that the statement of claim did not articulate a coherent case as to how the circumstances covered by those sections applied in this case (at [76]–[78]).

35    The primary judge held that the allegation of breach of the Criminal Code Act by using a carriage service to menace or harass Mr Sayed by serving the notice to vacate was “self-evidently absurd” (at [79]).

36    His Honour held that the claims made in the statement of claim against SAH and SAHV under the Housing Act and the Residential Tenancies Act were not within the jurisdiction of the Court (at [80]).

37    His Honour also held that the claims against the remaining respondents were not within the jurisdiction of the Court because the CEO of Homes Victoria and the Registrar are Victorian statutory officers, the Minister is a Victorian Minister, and the matters alleged against them are “entirely and exclusively in connection with their powers and obligations under various Victorian statutes”(at [81]–[82], [85]). His Honour also held that the relief sought against them did not flow from the factual matters alleged, so that their claims would be bound to fail in any event (at [86]). In addition, his Honour accepted the Registrar’s submission that Mr Sayed failed to identify any relevant duty of care that could found a civil cause of action, let alone a breach of such a duty, and that the relief sought was “absolutely contradicted” by the material attached to his amended originating application (at [87]).

38    His Honour concluded that the case pleaded against each of the respondents was frivolous, vexatious and bound to fail. He noted that the subject matter of the proceeding was before VCAT and said that any claim under Victorian statutes should be advanced in VCAT or in the Victorian courts (at [102]–[104]).

General principles

39    Leave to appeal is required because the judgment of the primary judge is an interlocutory judgment (Federal Court of Australia Act 1976 (Cth), s 24(1D)(b)) and there is no right to appeal from an interlocutory judgment unless the Court or a judge grants leave to appeal (s 24(1)).

40    Although s 24(1) contains no express limits on the exercise of the power, like any power conferred by the FCA Act it must be exercised in the way that best promotes the overarching purpose of the civil procedure provisions, which is the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.

41    The well-established general principle is that an applicant who seeks leave to appeal must satisfy the Court that the decision in question is attended by sufficient doubt to warrant the grant of leave and that substantial injustice will result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–399 (Sheppard, Burchett and Heerey JJ); Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at [29] (McHugh, Kirby and Callinan JJ). In the case of an interlocutory judgment which has the practical effect of finally determining the rights of the parties, “a prima facie case exists for granting leave to appeal”: Ex parte Bucknell (1936) 56 CLR 221 at 225–6. Thus, as French J remarked in Johnson Tiles Pty v Esso Australia Pty Ltd (2000) 104 FCR 564 at [43] (Beaumont and Finkelstein agreeing), if a proceeding is summarily dismissed because it is frivolous or vexatious or no reasonable cause of action is disclosed, leave will usually be granted if there is any doubt about the correctness of the first instance judgment.

42    It follows that the questions for resolution on the application are first, whether the judgment of the primary judge was attended by sufficient doubt to warrant the grant of leave to appeal and second, whether substantial injustice will result if leave is refused.

The leave application

43    Mr Sayed relies on an amended application for leave to appeal filed on 4 July 2023 and a draft notice of appeal received by the Court on 5 June 2023.

44    The draft notice of appeal contains five grounds. In summary, by those grounds Mr Sayed wishes to argue that:

(1)    The primary judge erred by refusing to review the case management orders under s 35A(6) of the FCA Act in that, in doing so, his Honour:

(i)    failed to comply with constitutional requirements in s 71 of the Constitution which condition the validity of any exercise of delegated judicial power on a party’s ability to obtain de novo review;

(ii)    failed to “proceed on the correct principles” such that steps taken in compliance with the case management orders, including making orders for summary judgment, are without legal authority.

(2)    The primary judge erred by failing to provide Mr Sayed with a reasonable opportunity to participate in the hearing by:

(i)    failing to satisfy himself of the requirements in subss 47C(1)–(3) of the FCA Act before “making any order” for Mr Sayed to appear remotely;

(ii)    failing to ensure that requirements in s 47D of the FCA Act were satisfied so that Mr Sayed had access to the court book;

(iii)    failing to consider his application under ss 47A and 47B of the FCA Act by directing the Registrar to reject for filing his interlocutory application that sought leave to appear by audio-visual link.

(3)    The primary judge erred in holding that the Court lacked jurisdiction to grant any of the claims sought against the respondents by:

(i)    failing to apply, or misconstruing, the legal test for engaging original federal jurisdiction pursuant to s 39B(1A)(c) of the Judiciary Act 1903 (Cth);

(ii)    failing to apply, or misconstruing, the jurisdiction of the Court under s 80W of the Privacy Act, “which enables any affected person to (directly) apply for injunctive relief to prevent a contravention of the Act”;

(iii)    failing to apply established principles whereby this Court has jurisdiction to prevent use or disclosure of private information and photographs contained in Mr Sayed’s complaints to Commissioner Donaldson in circumstances where: the information was disclosed in “strict confidence”; The Salvation Army “assumed responsibility to use the information for the purpose of investigating allegations of neglect and staff misconduct”, and officers of The Salvation Army acted “in breach of their duty of confidence” by using or disclosing the information to Mr Sayed’s detriment;

(iv)    failing to apply the correct principles whereby once a federal claim is made, “even if it is hopeless or bound to fail, or one that is abandoned, or later struck out by the Court”, the proceeding in which that claim is made remains a federal proceeding;

(v)    failing to apply the correct principles from Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, wherein “any historical considerations or extrinsic material cannot be relied on to displace an otherwise clear meaning of the text”.

(4)    The primary judge erred in law by granting summary judgment, by:

(i)    failing to consider, or do so properly, if on account of the “express representations” contained in various policies, a “legitimate expectation” arose that SAH and SAHV were required to comply with their “obligations under the Privacy Act”;

(ii)    failing to consider whether the alleged privacy breaches also amounted to a breach of contract and/or a breach of express public representations;

(iii)    failing to consider whether on account of such representations, SAH and SAHV were precluded from raising a “defence” that the Privacy Act did not apply to their respective activities when delivering contracted services;

(iv)    failing to consider, or acting on the wrong principles in relation to, whether the primary proceeding gave rise to an underlying cause of action, including breach of confidence in equity which Mr Sayed “might successfully prosecute at the trial”;

(v)    failing to consider, properly or at all, that once Mr Sayed pointed to a specific factual or evidentiary dispute, without a “clear basis for concluding that the alleged facts are extremely fanciful or entirely without substance”, a trial was necessary;

(5)    The primary judge erred in holding that the Court lacked jurisdiction to hear claims against the CEO of Homes Victoria, the Registrar and the Minister under the Housing Act and the Residential Tenancy Act by:

(i)    failing to exercise jurisdiction and apply the correct principles, whereby once the Court’s jurisdiction is engaged with respect to a federal matter, “there is no longer any legal distinction between federal and state matters”;

(ii)    failing to apply correct principles and failing to question whether on the material before the Court, Mr Sayed had “any reasonable prospect … of successfully prosecuting a cause of action on the alleged material facts”;

(iii)    failing to act on the correct principles by purporting to rule in respect to the relief sought by Mr Sayed in his statement of claim.

45    In his amended leave application Mr Sayed alleged, in effect, that by reason of the matters contained in his draft notice of appeal, the judgment of the primary judge was attended by sufficient doubt. Mr Sayed claimed that substantial injustice would be caused if leave to appeal were refused because he was denied the right to a review of the case management orders; the summary judgment was obtained as a result of the Court being led into error by the respondents’ legal representatives; and as a result he has been ordered to pay their costs.

46    Mr Sayed also asserted that the prospective appeal involves important questions of privacy and legal immunity available to contracted service providers especially since the judgment:

i.    contains seriously adverse precedent, undermining the national framework of privacy protections intended to be provided by the Privacy Act and if left to stand, spells an end to individual right to seek injunctive relief and/or damages under s 80W of the Act; and

ii.    [h]as seriously adverse potential for the individual users of essential public and welfare services in terms of exempting all State authorities and any associated service providers from the Privacy Act, notwithstanding the specific provisions introduced in the Privacy Act 1988 (Cth), to establish a national framework for the protection and enforcement of Australia’s treaty obligations to safeguard and promote the fundamental individual right to privacy.

47    Finally, Mr Sayed alleged that the judgment has “seriously adverse implications” for the ability of self-represented litigants to access “a fair and transparent judicial process”, especially where the opposite party is represented by a legal practitioner. He claimed the primary judge had allowed hearsay evidence, namely the notice of inspection, despite the fact that he disputed the authenticity of that evidence, failed to draw an adverse inference because of the absence of evidence from the author of the notice or any of the officers who carried out the inspection, and refused to allow cross-examination of the practitioner in relation to allegations of abuse of process made against him concerning the pending proceeding before VCAT.

48    Four affidavits were filed in support of the application, the first on 5 June 2023, the second on 6 July 2023, the third on 14 July 2023 and the fourth on 11 August 2023 – five days before the hearing. The respondents objected to all four affidavits on the basis that they included “fresh evidence”, which will only be admitted in special circumstances and there are no such circumstances here. I propose to have regard to the annexures in those affidavits to the extent that they are said to support the matters raised in the leave application and as the power of the Court to admit evidence on an appeal is not limited to “fresh evidence” (see FCA Act, s 27), although if the evidence is not “fresh” the Court may well decide not to admit it in the exercise of its discretion. I will treat as submissions any statements made in the affidavit which are matters of opinion, rather than fact.

49    The respondents relied on an affidavit of Benjamin Robert Thrift, a partner of Thomson Geer, the solicitors for SAH and SAHV.

Consideration

Proposed grounds 3 and 5: alleged error in holding that the Court lacked jurisdiction

50    It is convenient and appropriate to deal first with the questions raised by these grounds.

51    Contrary to Mr Sayed’s allegation, the primary judge did not decide that this Court had no jurisdiction to entertain any of the claims. It is implicit, if not explicit, that his Honour accepted that the Privacy Act and other federal claims brought against SAH and SAHV were within federal jurisdiction. Rather, he held that those claims were vexatious or bound to fail.

52    But his Honour did hold that the claims made under the Victorian Housing Act and the Residential Tenancies Act were not within jurisdiction and that the claims against the other three respondents were outside federal jurisdiction. I was initially concerned about these conclusions in circumstances where the originating application also raised claims under three federal statutes: see, for example, Moorgate Tobacco Co Ltd v Phillip Morris Ltd (1980) 145 CLR 457 and Fencott v Muller (1983) 152 CLR 570 at 606–607 (Mason, Murphy, Brennan and Deane JJ). Where federal and non-federal claims comprise the same justiciable controversy, a court exercising federal jurisdiction has jurisdiction to resolve the entire matter in the exercise of federal jurisdiction: Rana v Google Inc (2017) 254 FCR 1 at [17] (Allsop CJ, Besanko and White JJ). It is at least arguable that some of the non-federal claims were part of the same controversy as Mr Sayed’s admittedly federal claims. The exception is where the federal claim is colourable. But the primary judge did not expressly hold that the claims made under the Privacy Act or the other federal statutes were colourable.

53    On reflection, however, I am not satisfied that there is sufficient doubt about his Honour’s conclusion to warrant a grant of leave on this basis and, even if there were, there would be no point in doing so unless there were merit in any of the other grounds, which there is not.

54    “[A] claim is colourable if it was ‘made for the improper purpose of fabricating jurisdiction’ such that it was not made bona fide” and in such a case federal jurisdiction is not attracted: Rana at [22], citing Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219.

55    The primary judge held that the claims against each respondent were vexatious (at [102]). Earlier in his reasons he had noted that, among other things that “a ‘vexatious’ proceeding is one without foundation, which cannot succeed, or is brought for an ulterior and collateral purpose” (at [49] in an extract from Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808). I accept the respondents’ submission that it is apparent that his Honour considered the proceeding colourable, although he did not expressly say so and for good reason.

56    SAHV issued its notice to vacate on 11 November 2022. The notice records that the expected delivery time was 18 November 2022. On 21 November 2022, Mr Sayed filed his proceeding in this Court. In his originating application, under the heading “urgent interlocutory orders sought”, he relevantly sought an:

[o]rder under s 95.10 Australian Charities and Not for Profit Commission Act 2012 for an interim injunction directing the second respondent [SAHV] not to proceed with an application for a possession order on the basis of Notice to Vacate dated 11 November 2022, and taken to be served on the applicant on 18 November 2022.

57    The application by SAHV to VCAT for possession of the premises was made on 19 December 2022. On 22 December 2022, Mr Sayed filed an interlocutory application seeking a declaration that VCAT lacked jurisdiction to entertain the application by SAHV and a writ of prohibition directing VCAT to take no further step in the proceeding. On 9 January 2023, he filed an application for summary dismissal of the VCAT proceedings claiming that “VCAT lacks jurisdiction over the matter because it is vested with state jurisdiction only” and the federal character of the dispute was evident from the claims he was making in the proceeding in this Court.

58    There is no doubt that his Honour was well aware of the legal principles relating to claims brought in federal jurisdiction. He made that clear during argument. It is fanciful to suppose that he forgot or overlooked them when he wrote his judgment, which was published only 10 days later. The irresistible inference from his Honour’s reasons is that his Honour concluded that the federal claims were devised for the ulterior purpose of frustrating the attempt by SAHV to obtain possession of the premises.

59    That inference is fortified by his Honour’s statements, which are unquestionably correct, that the provisions of the Privacy Act upon which Mr Sayed relied only apply to “APP entities” and neither SAH nor SAHV is an “APP entity”. The only other respondent against whom such a claim was made was the Minister who is said to have breached s 15 of the Privacy Act, which also only applies to an APP entity. It is crystal clear that the Minister is not an APP entity. “APP entity” is defined to mean an “agency or organisation”. The Minister is not an APP entity because the Minister is not an “organisation” within the meaning of s 6C because State and Territory Ministers are expressly excluded and, although “agency” includes “a Minister”, it only includes Commonwealth Ministers: see Acts Interpretation Act 1901 (Cth), s 2B.

60    As for Mr Sayed’s contention that the primary judge failed to apply the correct principles from Alcan, there is no arguable case of error. In interpreting a provision of any Act, a court is obliged to consider the purpose of the Act and to prefer the interpretation that would best achieve that purpose, regardless of whether the purpose is expressly stated: Acts Interpretation Act, s 15AA. Nothing in Alcan indicates otherwise. In Alcan at [47], Hayne, Heydon, Crennan and Kiefel JJ said :

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

61    The use of extrinsic materials such as a second reading speech is expressly sanctioned by s 15AB of the Acts Interpretation Act. It is not uncommon for courts, including the High Court, to refer to such materials in interpreting legislation. His Honour was entitled to refer to the second reading speech for the Bill that introduced s 6C into the Privacy Act in considering the meaning of the relevant statutory provisions in light of their context and purpose. To the extent that he did rely on it, he did not do so to displace the clear meaning of the text.

Proposed ground 1: alleged error in refusing to review the case management orders

62    Section 35A(5) of the FCA Act provides that a party to proceedings in which a registrar has exercised any of the powers of the Court may, within the time prescribed by the Rules or within such further time as allowed in accordance with the Rules, apply to the Court to review the exercise of that power. As Mr Sayed submitted, such a review is a hearing de novo: Harris v Caladine (1991) 172 CLR 84; Bechara v Bates (2021) 286 FCR 166 (Allsop CJ, Markovic and Colvin JJ).

63    Mr Sayed submitted that, having applied for a review of Registrar Priestley’s orders in February 2023, the primary judge was required to undertake that review before proceeding to hear the respondents’ application for summary judgment. He contended that once he lodged his application for review the case management orders “had no effect”. That contention is fundamentally flawed. The orders were valid and operative unless set aside on review. As the Full Court explained in Bechara v Bates at [3] (see also Robson v Body Corporate for Sanderling at Kings Beach CTS 2942 (2021) 286 FCR 494 at [24] per Allsop CJ):

[I]f a registrar exercises delegated judicial power within a formal structure that enables review by the Court, the order of the registrar takes effect as an exercise of judicial power by the judges of the Court, but the exercise of that delegated power depends for its validity upon the availability of review by the judges of the Court. The exercise of the delegated power is not deferred until there has been a review or confirmation of the order by a judge. Nor does the exercise of delegated judicial power operate in some provisional manner pending a review …

64    Ground 1 is therefore doomed to fail.

65    In oral argument Mr Sayed submitted that the “[primary] judge, having full knowledge of [his review] application” refused it. That submission devolves into a complaint about a matter of practice and procedure, namely a decision not to list the review application for hearing on 16 May 2023 before dealing with the respondents’ application for summary dismissal, and appellate courts are reluctant to interfere with decisions of this kind: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ).

66    In fact, the primary judge did not refuse the application for review. He merely advised that it would not be listed on the day fixed for the hearing of the respondents’ application.

67    The Court does not have jurisdiction to hear an appeal from a decision about whether or not to list a matter for hearing on a particular day or before the hearing of another matter between the same parties. The Court’s appellate jurisdiction arises from s 24(1) of the FCA Act, which relevantly provides that, subject to that section, the Court has jurisdiction to hear and determine appeals from judgments of single judges exercising the original jurisdiction of the Court. Here, there was no judgment.

68    For these reasons the first proposed ground of appeal has no reasonable prospects of success.

Proposed ground 2: alleged failure to provide reasonable opportunity to participate in the hearing

69    Mr Sayed’s written submissions addressed grounds 1, 3–5 but not ground 2. While the respondents addressed ground 2 in their written and oral submissions, all Mr Sayed said in oral argument was that the primary judge engaged in “palm tree justice”, did not consider the relevant sections of the FCA Act, and did not give him an opportunity to make submissions on whether an order should be made for remote appearance. There is no merit in this ground.

70    As I mentioned earlier, Mr Sayed applied to the Court for an order to appear at the interlocutory hearing “by way of audio-video link or other appropriate means”. He did so by way of an interlocutory application but the primary judge effectively dispensed with the need for filing the application.

71    As the primary judge permitted Mr Sayed to appear remotely and he did so, his complaint is difficult to understand. Sections 47A and 47B of the FCA Act do not require a judge to make an order for remote appearance. They merely confer a discretion on the Court or a judge to direct or allow a person to testify, appear and/or make submissions “by way of video link, audio link or other appropriate means”, either on the application of a party or on the initiative of the Court or a judge. In the affidavit in support of his interlocutory application he stated that he “is an admitted lawyer and previously appeared remotely in court proceedings”, “most recently” in December 2022 after another judge of the Court permitted the parties to appear and make submissions by way of audio or video link. There is no reason to believe that the primary judge was not satisfied that the conditions for doing so in the present case were not met.

72    In his first affidavit Mr Sayed contended that he was unable to observe the Court or access the Court Book. But he chose to appear by phone. It appears from the transcript that at times he had difficulty hearing what was being said but when that occurred, he asked counsel to speak up and they apparently did for he then made no further complaint. The first of the two emails sent to Mr Sayed by the respondents’ solicitors on 15 May 2023 contained a link to the eCourtBook and instructions on how to access it. During the hearing Mr Sayed claimed to be unable to access it but informed the Court that he had access to the documents and the eCourtBook only contained documents that had been filed and served. Consequently, if he was unable to access the eCourtBook he was at no disadvantage.

73    Section 47D is concerned with ways in which a document can be “put to a person” during a hearing by video or audio link or other appropriate means and does not appear to be relevant since Mr Sayed did not give evidence at the interlocutory hearing. In any event, it merely gives the Court the power to direct or allow a copy of the document to be put to the person by transmitting it to the person at the place the person is located.

Proposed ground 4: alleged error of law by failing to consider various matters

74    By proposed ground 4 Mr Sayed wishes to argue that the primary judge erred by failing to consider (properly or at all):

(1)    whether express representations made in various policies gave rise to “a legitimate expectation” that SAHV and SAH were required to comply with the Privacy Act;

(2)    whether the alleged privacy breaches, also amounted to a breach of contract and/or a breach of express public representations;

(3)    whether on account of such representations, SAHV and SAH were precluded from raising a “defence” that the Privacy Act did not apply to their respective activities;

(4)    whether “the primary proceeding gave rise to an underlying cause of action, including breach of confidence in equity” which he might successfully prosecute at the trial; and

(5)    whether, once he had pointed to specific factual or evidentiary disputes, a trial was necessary, without a clear basis for concluding that the alleged facts were “extremely fanciful or entirely without substance”.

75    I will deal with each of these matters in order.

76    The first matter was not raised in the originating application or in argument below. That explains why his Honour did not consider the point. The mere mention of the policies is not enough. There can be no appealable error in failing to consider a point that is not raised.

77    Mr Sayed submitted that evidence in his affidavits in support of the leave application establish that:

(1)    The Salvation Army’s Privacy Policy and Complaint Handling Policy, along with the information published in the Annual Report 2022 of The Salvation Army Australia (Social Fund) (“TSA”), provides that both SAHV and SAH were at all relevant times subject to the privacy obligations under the Privacy Act; and

(2)    TSA and SAHV officers, employees and trustees have made express representations (which amount to admissions) to the effect that any personal information disclosed in relation to provision of housing and homelessness services was subject to the protections and obligations under the Privacy Act.

78    Mr Sayed pointed to several statements made in 2019, 2020 and 2021 that “The Salvation Army … is committed to upholding its obligations under the Privacy Act 1988” and an email from an SAHV Housing Coordinator in relation to a suspected data breach, “in accordance with the relevant section of our Privacy Policies and Procedures which implement the Notifiable Data Breach Scheme of the Privacy Act 1988 (Cth)”.

79    Statements of this nature cannot have any bearing on the question of whether the Privacy Act applies to the respondents or does so in relevant respects. Whether or not the Act applies is a matter of statutory construction. The statements to which Mr Sayed referred are therefore incapable of demonstrating error on the part of the primary judge.

80    As to the second and third matters, Mr Sayed did not allege that any of the respondents breached any contract they had with him or made representations that they were bound by the Privacy Act. Nor are such allegations discernible in the originating process. Again, there is no error in not considering an allegation that is not made.

81    In argument on the leave application, Mr Sayed submitted that, by signing the service agreement between the State of Victoria and SAHV, a copy of which was annexed to an affidavit of Mr Thrift filed and read in support of the application for summary dismissal, SAHV became subject to the Privacy Act, even if it is not an APP entity within the meaning of that Act. He criticised the respondents’ lawyers for failing to draw the attention of the primary judge to cl 17 of the agreement which, he submitted, demonstrated that, contrary to the arguments they had put below and maintained on the present application, the Privacy Act applies to SAHV. Mr Sayed referred to cl 17.2, which relevantly reads:

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:

…

(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.

82    He also referred to cl 17.3(a) which reads:

In delivering the Services under the Agreement, the Organisation will:

(a)    collect, hold, use, manage, disclose, and transfer Public Sector Data, Personal Information and Health Information, only for this Agreement and in accordance with the [Privacy and Data Protection Act 2014 (Vic)], [Health Records Act 2001 (Vic)] and (to the extent applicable) the Commonwealth Privacy Act[.]

83    These clauses only held SAHV to obligations it may have under the Privacy Act. That is evident from the first line of cl 17.1(c) and the words in parentheses in cl 17.3(a). None of the provisions of the Privacy Act upon which Mr Sayed relied applied to SAHV. In the circumstances it would have been unsurprising if these clauses were not drawn to the attention of the primary judge. As it happens, however, contrary to Mr Sayed’s assertion, the respondents did draw them to his Honour’s attention as the transcript of the hearing below demonstrates. Indeed, his Honour referred to cl 17 in his reasons (at [67]). The long and the short of the matter, as Ms Knowles (counsel for SAH and SAHV) submitted on the present application, is that the service agreement created a contractual obligation to comply with the law. As I have already observed, whether or not the Privacy Act imposed obligations on SAHV was a question of statutory construction. As Mr Sayed was not a party to the service agreement, he had no legal rights arising from a breach of any of its terms.

84    I turn now to the fourth matter.

85    In oral argument before the primary judge, Mr Sayed identified his “first claim” as an equitable claim for breach of confidence (at T42), although he did not explain where it arose from his pleading. Earlier (at T37), he said this:

Now, last I remember, negligence of common law and lost equity is part of Federal law. Whilst section 93(1) does not give you an independent or new right to claim breach of confidence, that is a claim which exists independently in – within common law. And I will take you through ABC v Lenah, what the court said in relation to that, and then later judgments, which have granted significant damages for breach of confidence. One recently was up to $50,000 for emotional distress in equity. And then that is why it’s such a powerful claim, in equity, as opposed to some people who want to start a new tort or privacy based on the Privacy Act. But that’s a different discussion. 93(1) claim was made in the first originating application, in the amended application and the one that is currently before the court, because that is the principal claim. Privacy was breached. Okay?

I’ve – it was breached because of their own admission that information that was disclosed in relation to complaint policy or pursuant to their complaint – internal complaint policy to their directors. That was then used to have me evicted …

86    The only potentially relevant part of the originating process is para 37 of the statement of claim which reads:

In addition SAH committed an offence under ss. 80Q and 90 as well as breach[ed] their obligation of confidence by unauthorised disclosure of applicant’s complaint and contents therein, for an undisclosed purpose and without making any reasonable attempt to obtain informed and voluntary consent from the applicant.

(Emphasis added.)

87    No such claim was made against SAHV or any of the other respondents.

88    At [75] of the primary judge’s reasons, his Honour wrote:

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 [which, I interpolate, only apply to an “APP entity”] contained in Schedule 1 to the Act likewise do not assist the applicant.

89    His Honour did not refer to Mr Sayed’s oral submission that he was making a claim for breach of confidence in equity and it was common ground that he did not consider whether the primary proceeding gave rise to an underlying cause of action, including breach of confidence in equity. Mr Sayed alleged, in effect, that this was because his Honour applied the wrong test by determining, instead, whether a reasonable cause of action was available on his case as pleaded.

90    In Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [19]–[21] French J said:

The question which has to be answered in an application for judgment under s 31A is whether the party against whom the application is made has any “reasonable prospect” of successfully prosecuting or defending “the proceeding” or the “part of the proceeding” in issue. That question is not to be answered by a finding that a party’s statement of claim or defence fails to disclose a reasonable cause of action or defence. A pleading may be rectified by amendment so as to raise a reasonable cause of action or defence. It follows that a finding that a pleading should be struck out … does not mean there must be judgment against the party whose pleading it is. There may yet, by amendment, be a reasonable prospect of successfully prosecuting or defending that proceeding.

In order to secure judgment under s 31A it must be shown that the party prosecuting or defending the proceeding has no reasonable prospect of success. This judgment can be made, by reference to pleadings, where there is a defect in the pleadings which cannot be cured. Alternatively, it may be a judgment made by reference to evidence put on in support of an application under s 31A which reasonably excludes the possibility that facts essential to the success of the claim or defence will be able to be established. ...

Section 31A is not a vehicle for simply striking out parts of pleadings that are deficient. Section 31A allows for “judgment” or nothing. Alternative remedies with respect to deficient pleadings must be found in the rules of Court. ...

91    It is tolerably clear from the reasons of the primary judge that he did not summarily dismiss the proceeding merely because of a defect in the pleadings.

92    Mr Sayed submitted that the primary judge’s finding that SAH and SAHV are not APP entities did not address why his claim “for breach of confidence and resulting injunctive relief and damages sought under ss 80W and 93 of the Privacy Act 1988, ‘were of no assistance to the applicant’”. He submitted that the Privacy Act creates an entitlement to damages where there is an existing duty of confidence, whether sourced in general law or equity. He identified the confidential information as the information contained in his complaint on 28 October 2022 to Commissioner Donaldson of The Salvation Army. He submitted that the information was provided in confidence because “they are [his] case workers”, “they advocate for [him]”, and “they have a fiduciary duty”. He alleged that The Salvation Army and SAHV engaged in unauthorised use and disclosure of his complaint email and that this constituted a “clear breach of confidence and therefore presented a reasonable and winnable cause of action”. He appeared to identify the breach as the confidential information being “given to people specifically represented to [him] as trustees or … directors of the Salvation Army, separate from Salvation Army Housing”.

93    Mr Sayed went on submit:

If their claim is the trustee of the Salvation Army on the board of Salvation Army, who my complaint went to after lodged with the Salvation Army on their website, being the director of Salvation Army Housing Victoria, alerted the property people, and on that account, they sent out an inspection notice, then that is straight away breach of trust, breach of confidence. They’ve dug themselves in a hole.

94    If this was the basis of the claim that there had been an equitable breach of confidence, as I understood it to be, there are several problems with it.

95    First, no claim for equitable breach of confidence was made against SAHV; it was only made against SAH. Second, the claim appears to be based purely on speculation. Third, Mr Sayed did not explain how such a claim could possibly succeed and in oral argument conceded that he had sued the wrong respondent (for which he blamed the respondents).

96    Sections 90 and 93 of the Privacy Act appear in Pt VIII, entitled “Obligations of confidence”. They have a limited application as s 89 makes clear. Section 89 provides:

Obligations of confidence to which Part applies

Unless the contrary intention appears, a reference in this Part to an obligation of confidence is a reference to an obligation of confidence:

(a)    to which an agency or a Commonwealth officer is subject, however obligation arose; or

(b)    that arises under or by virtue of the law in force in the Australian Capital Territory; or

(c)    that arises under or by virtue of a law in force in an external Territory.

97    Mr Sayed did not argue that the contrary intention is apparent.

98    Obligations of confidence either SAH or SAHV may owe do not come within the scope of s 89. Mr Sayed contended that each was an “agency”. But “agency” is a defined term and the definition does not apply to SAH or SAHV.

99    “Agency” is defined in s 6. Mr Sayed relied on para (ca) of the definition:

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)[.]

100    When I asked Mr Sayed under what law or laws SAH and SAHV were established, he said they were incorporated under the Corporations Act, which is a law providing for the incorporation of companies and in any event is not a law of a State or Territory. Mr Sayed accepted that he should not have named SAH as a party. He wanted to substitute The Salvation Army, without explaining why The Salvation Army would satisfy the definition.

101    Mr Sayed argued that SAHV was “registered under the Housing Act”. That much was common ground. But registration is not establishment. Mr Sayed then asserted that SAHV “is specifically established for providing community housing” under the Housing Act but did not explain where or how. In any case, as I have already observed, his claim that there was an equitable breach of confidence was not made against SAHV, it was made against SAH.

102    Section 90 of the Privacy Act provides:

Application of Part

(1)    This Part applies where a person (in this Part called a confidant) is subject to an obligation of confidence to another person (in this Part called a confider) in respect of personal information, whether the information relates to the confider or to a third person, being an obligation in respect of a breach of which relief may be obtained (whether in the exercise of a discretion or not) in legal proceedings.

(2)    This Part does not apply where a criminal penalty only may be imposed in respect of the breach.

103    Section 93 provides:

Relief for breach etc. of certain obligations of confidence

(1)    A confider may recover damages from a confidant in respect of a breach of an obligation of confidence with respect to personal information.

(2)    Subsection (1) does not limit or restrict any other right that the confider has to relief in respect of the breach.

(3)    Where an obligation of confidence exists with respect to personal information about a person other than the confider, whether the obligation arose under a contract or otherwise, the person to whom the information relates has the same rights against the confidant in respect of a breach or threatened breach of the obligation as the confider has.

104    “Personal information” is defined in s 6 to mean:

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

a.    whether the information or opinion is true or not; and

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

105    While some of the material in his complaint would fall within the definition, Mr Sayed did not explain how his opinion about the state of the premises or the photographs proffered to support it would do so.

106    Even if relief under s 93 or in equity were available, his position would still be fraught.

107    There are four elements to a cause of action for an equitable breach of confidence. They are thatthe information in question must be identified with specificity; it must have the necessary quality of confidence; it must have been received in circumstances importing an obligation of confidence; and there must be an actual or threatened misuse of the information without consent: Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21; 265 ALR 281 (Finn, Sundberg, Jacobson JJ) at [39].

108    As between the various Salvation Army organisations, it seems to me that such a claim would be bound to fail not least because Mr Sayed authorised the use of the information for the purposes he alleges it was used. The consent form he signed just before he entered into the lease with SAHV relevantly stated:

We collect personal information we believe is reasonably necessary to provide you with the services we offer. This includes information you provide to us on this form, any additional information you provide to our staff verbally or otherwise, and any information we may need to collect about you from third parties on your behalf (if applicable).

By providing us with this personal information you also consent to our use or disclosure of this personal information for purposes related to the services we provide. Unless permitted or required by law, we will not use this information for any other purpose without your consent.

(Emphasis added.)

109    If the information in Mr Sayed’s 28 October 2022 email was used by SAHV for the purpose of inspecting the property, it was with Mr Sayed’s consent. By signing the consent form he expressly acknowledged that he read and understood the document; the reasons for the collection of his personal information and the ways in which it might be used and disclosed; and agreed to its use and disclosure.

110    As Ms Knowles submitted, where the breach said to have occurred is the use of photographs sent by a tenant to his landlord and the taking of photographs of a property in order to make decisions about that property and, where Mr Sayed sent his complaint and his photographs to a director of SAHV, it is difficult to see how an action for breach of confidence could possibly succeed. Moreover, as Mr Sayed acknowledged in an email sent to Winsome Merrett on 7 November 2022 (copying in various other Salvation Army personnel), which was annexed to his amended originating application and statement of claim, he had repeatedly requested caseworkers to advise SAHV about the state of the property and the need for “urgent trauma cleaning”.

111    In oral argument Mr Sayed contended that his “central complaint” was against The Salvation Army and the real culprit was his caseworker. But this was not the claim the subject of the proceeding.

112    As to the fifth matter, the primary judge effectively concluded that the applicant’s claims were “entirely without substance”, though he may not have used those very words.

Conclusion

113    I conclude that there is insufficient doubt to warrant a grant of leave.

114    In these circumstances it is unnecessary to decide whether substantial injustice would arise from a refusal of leave. It is enough to observe that where a court determines that it lacks jurisdiction to entertain an application, an order for summary dismissal does not extinguish rights: SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 at [23] (French J). Mr Sayed retains his rights in VCAT and, if he wishes to pursue a claim about interferences with his privacy, as the respondents submitted, he may still do so under the Privacy and Data Protection Act 2014 (Vic). This Court is neither the obvious nor the more appropriate forum. The allegedly important general questions do not arise for consideration. The primary judge did not make any finding that contracted service providers were subject to “legal immunity”. The allegations of misconduct levelled against the respondents’ lawyers were made without any proper foundation.

115    It follows that leave to appeal is refused. Costs should follow the event.

Associate:

Dated:    9 November 2023

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