Federal Court of Australia

Skiba v Australian Information Commissioner [2023] FCA 1467

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time is dismissed.

2.    The applicant is to pay the respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is a purported appeal from order 2 of orders made on 9 September 2022: Skiba v Australian Information Commissioner [2022] FCA 1171 (Skiba No 1). By order 1, a judge of this Court dismissed the applicant’s application for relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or alternatively, under s 39B of the Judiciary Act 1903 (Cth), against the Australian Information Commissioner. Order 2 provided that “[t]he applicant pay the respondent’s costs”.

2    The issues before me at this stage of the proceeding are as follows:

(1)     Does the applicant require an extension of time under r 36.05 of the Federal Court Rules 2011 (Cth) (FCR) within which to file the notice of appeal?

(2)    Does the applicant require leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act)?

(3)    If the answer to either of these questions is yes, should an extension of time and/or leave to appeal be granted?

3    Any appeal from the primary judge must be heard by a Full Court: s 25(1) of the FCA Act.

4    The parties agreed that the issues before me should proceed on the papers, without an oral hearing.

5    For the reasons set out below, I am satisfied that the applicant requires an extension of time but does not require leave to appeal. In those circumstances, the parties were content for me to treat the purported appeal as an application for an extension of time. That being so, the application for an extension of time should be dismissed.

2.    BACKGROUND

6    The background of this matter is uncontentious and is described in full by the primary judge. As such, the background relevant to this application may be briefly summarised as follows.

7    On 11 June 2020, the applicant requested that the Department of Education, Skills and Employment provide her with “access to all tax invoices that include my name and contain references to reimbursements received by [Serendipity (WA) Proprietary Limited trading as Advanced Personnel Management] from the Employment Fund General Account” (requested documents): Skiba No 1 at [2].

8    On 13 May 2021, a Departmental Privacy Officer emailed the applicant advising (Skiba No 1 at [20]):

There are no tax invoices related to reimbursements received by APM from the Employment Fund General Account that contain your personal information (that is there are no tax invoices that contain your name or any other information which would identify you). Consequently, you would not have received documents had I processed your request under the Privacy Act. However, I am providing you with administrative access to documents that contain references to reimbursements received by APM from the Employment Fund General Account that relate to you. Specifically, a tax invoice for a reimbursement received by APM from the Employment Fund General Account in relation to a service provided to you.

(Emphasis added.)

9    On 14 May 2021, the applicant wrote to the Department complaining that the Privacy Officer had refused to process her request under the Privacy Act 1988 (Cth): Skiba No 1 at [22]. On 21 May 2021, another officer of the Department’s legal team responded to the applicant’s email stating (Skiba No 1 at [23]):

4.     The department conducted searches for documents that fell within the scope of your request for access to “tax invoices that include [your] name …”. The department found no tax invoices that contained your name and contained references to reimbursements received by APM from the Employment Fund General Account. However, a tax invoice was found that contained references to reimbursements received by APM from the Employment Fund General Account. The tax invoice relates to you but does not contain your personal information. Consequently, the department was not under an obligation under APP 12 to provide you with access to that information.

5.     However, Privacy Officer Jacki made the discretionary decision to provide you with access to the document nonetheless in what is referred to as “administrative access”. This is an informal arrangement that the department can use to provide individuals with access to certain documents where the department is not otherwise prohibited from disclosing that information. Importantly, APP 12 operates alongside and does not replace other informal or legal procedures by which an individual can be provided access to information. In fact, the Office of Australian Information Commissioner (OAIC) has stated that providing access to personal information under an administrative arrangement will fulfil an agency’s obligation under APP 12 to provide access upon request, provided the arrangement meets the minimum access requirements in APP 12 (see paragraph 12.23 of the Australian Privacy Principles Guidelines).

(Emphasis in original.)

10    On 24 May 2021, the applicant lodged a complaint with the Commissioner in respect of the Department’s conduct: Skiba No 1 at [24]. On 4 March 2022, a delegate of the Commissioner emailed the applicant with their preliminary views and provided the applicant with an opportunity to address why the delegate should not make a decision under s 41(1)(a) of the Privacy Act not to investigate the complaint further: Skiba No 1 at [25]–‍[27]. On 27 March 2022, the applicant responded to the email and relevantly contended that the Department had failed to consider and process her request for documents under the Privacy Act, but rather had done so under an “administrative arrangement”: Skiba No 1 at [28]–‍[29].

11    On 12 April 2022, the delegate decided not to investigate the complaint further under s 41(1)(a) of the Privacy Act on the basis that they were satisfied that the act or practice complained about was not an interference with the applicant’s privacy: Skiba No 1 at [30]–‍[33]. In summary, the delegate found that the Department had conducted a search for the requested documents and concluded that there were no such documents. In those circumstances, the Department did not have any obligations under Australian Privacy Principle (AAP) 12.1 and therefore the delegate was satisfied that the requirements of APP 12 had been met by the Department.

12    The applicant sought relief in respect of the delegate’s decision before the primary judge. On 9 September 2022, the primary judge heard the matter and delivered an ex tempore judgment. The orders of the primary judge were entered as being made on 9 September 2022.

13    On 30 September 2022, the Court provided the applicant with the primary judge’s certified orders and published reasons for judgment.

3.    ISSUE ONE: DOES THE APPLICANT REQUIRE AN EXTENSION OF TIME?

14    There is a dispute between the parties about whether the primary judge pronounced the order as to costs on 9 September 2022. If the primary judge did so, the applicant will require an extension of time.

3.1    Parties’ submissions

15    The applicant relies on her affidavit affirmed on 12 October 2022 which relevantly includes (at [3]):

At the end of the hearing His Honour made an order to dismiss the application and asked the parties whether they had other issues to raise. The Respondent’s Representative answered that the Respondent wanted her costs to be paid. His Honour asked whether I had objections. I answered: I can’t think of any now. His Honour left the courtroom. The order on costs was not pronounced at the hearing. I was notified of the order on 30 September 2022 by email from His Honour’s Associate.

16    In contrast, the Commissioner relies on the affidavit of their solicitor, Kim Thanh Nguyen, affirmed on 26 April 2023. Ms Nguyen’s affidavit annexes “an extract of the transcript of the hearing dated 9 September 2022 before His Honour Justice Rares”. The first page of the transcript includes the Aucript, a VIQ Solutions Company, header and the transcript includes the following extract:

[11.10am]

…

JUDGMENT DELIVERED

HIS HONOUR: Ms Nguyen, do you have any application?

MS NGUYEN: Yes, I seek an order for costs.

HIS HONOUR: Yes. Is there any reason I should not order you to pay the costs of the commissioner, Ms Skiba?

MS SKIBA: I can’t think any.

HIS HONOUR: Yes. Well, I order that:

(1) the application be dismissed;

(2) the applicant to pay the respondent’s costs.

I will obviously need to tidy up my oral reasons, and I will get them to you as soon as I can practically do so. So I will revise them, and I will rearrange the language and correct the language. I’m not going to correct the reasoning process but – yes. Thank you for your assistance. I will adjourn.

MATTER ADJOURNED at 12:30 pm INDEFINITELY

(Emphasis in original.)

17    The applicant challenges the credibility of the Commissioner’s evidence, and appears to submit that the evidence produced by the Commissioner was not a genuine or accurate transcript, and that her account of what occurred at the end of the trial should be accepted. The applicant makes that submission on the following bases:

(1)    Auscript is “not allowed to distribute Reasons or Judgments” and in correspondence with the applicant, Auscript advised that the last 20 minutes of the hearing was part of the judgment and refused to release the information to the applicant (applicant’s submissions at [7]). In support of this submission, the applicant relies on her affidavit affirmed on 23 May 2023 which annexes correspondence between the applicant and Auscript.

(2)    It would have been inconsistent for Auscript to erroneously disclose the text under “JUDGMENT DELIVERED”, in circumstances where Auscript did not otherwise disclose any other part of the judgment. Alternatively, if the text under “JUDGMENT DELIVERED” was not recognised as judgment, then the applicant questions why Auscript would “not recognised that part of the transcript as judgment” (applicant’s submissions at [9]).

(3)    The text under “JUDGMENT DELIVERED” does not account for the time gap between the parties’ submissions (11:10am) and the conclusion of the hearing (12:30pm), and the application made by the respondent “could have not been in the context shown in the transcript, because… there is a time gap between the “JUDGMENT DELIVERED” and the information preceding it” (applicant’s submissions at [10]).

3.2    Disposition of issue one

18    The applicant and Commissioner’s evidence is generally consistent save on the question of whether the primary judge pronounced orders at the end of the hearing. The Commissioner’s evidence is to be preferred to the applicant’s evidence for the following reasons.

19    First, I accept that the Commissioner’s evidence is a genuine transcript prepared by Auscript. Such evidence will generally be considered more reliable than the parties’ recollections at a later date of what was or was not said at the hearing.

20    Secondly, contrary to the applicant’s submissions, the text under “JUDGMENT DELIVERED” is plainly not part of the primary judge’s reasons for judgment. Rather, that text records an oral application for costs by the Commissioner’s legal representative, an invitation by the primary judge for the applicant to make submissions on the application, and the pronouncement of orders by the primary judge including the order as to costs. For a hearing to proceed in that way is entirely orthodox.

21    Thirdly, I accept that there is some inconsistency with how Auscript processed the requests from the applicant and Commissioner. It may be that this inconsistency arose because the Commissioner requested a full copy of the transcript whereas the applicant sought only the last 20 minutes of the hearing. The Commissioner was provided with a copy of the transcript excluding the ex tempore reasons whereas the majority of the transcript requested by the applicant would have been the ex tempore reasons only. While Auscript should have provided the applicant with so much of the last 20 minutes of the transcript as did not include the ex tempore reasons, I do not consider that its failure to do so provides any logical basis on which to discredit the accuracy of that part of the transcript which Auscript provided to the Commissioner.

22    Fourthly, I do not accept the applicant’s submission that the sequence of events recorded in the transcript is implausible. The time gap is accounted for by the giving of ex tempore (i.e. contemporaneous oral) reasons which were excluded from the transcript as is the practice where, as here, the judgment was a final judgment with the reasons to be published in writing subsequently: DQA16 v Minister for Immigration and Border Protection [2018] FCA 2086 at [55] (Wigney J). Further, it is not unusual for a judge to deliver their reasons and then inquire with the parties about any further applications, such as an application as to costs, before making final orders.

23    I am, therefore, satisfied that the primary judge pronounced the order as to costs at the hearing on 9 September 2022 in the presence of both parties, and that the applicant therefore requires an extension of time within which to appeal from the order as to costs.

4.    ISSUE TWO: DOES THE APPLICANT REQUIRE LEAVE TO APPEAL?

24    The Commissioner raises the issue of whether a costs order is interlocutory in nature and therefore the applicant requires leave of the Court to appeal from the order under s 24(1A) of the FCA Act. The Commissioner cites the following authorities but does not seek to take a position on the issue: Tukala v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2023] FCA 75 at [14] (Katzmann J) and Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants [2023] FCA 217 at [2] (Halley J).

25    The term “interlocutory judgment” is not defined in s 24 of the FCA Act. However, as the High Court stated in Re Luck [2003] HCA 70; (2003) 203 ALR 1, the “usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them”: at [4] (the Court). In applying this test, a Court must “have regard to the legal rather than the practical effect of the judgment”: Carr v Finance Corporation of Australia (No 1) [1981] HCA 20; 147 CLR 246 at 248 (Gibbs CJ); see also Luck at [4]; Licul v Corney [1976] HCA 6; (1976) 180 CLR 213 at 225 (Gibbs J); Fuller v Toms [2012] FCAFC 155 at [14] (the Court).

26    In Kyriackou v Australian Securities and Investments Commission (ASIC) [2010] FCA 253, Ryan J at [12] considered:

It may be true that the costs order, from a practical point of view, disposed of the real remaining dispute between the parties. In this case, that does not entail that the proceedings have been finally resolved by the costs order. In my view, the issues which have to be resolved for an order to be final are those disclosed by the pleadings or other documents defining the matters in controversy between the parties. By contrast, his Honour’s orders here were incapable of giving rise to an issue estoppel in the sense explained in Port of Melbourne Authority v Anshun Pty Ltd (No 2) (1981) 147 CLR 589; consequently, it is hardly open to characterise those orders as final.

27    Ultimately, Ryan J found that it was “unnecessary for present purposes to engage in a more far-‍reaching analysis of the distinction between an interlocutory judgment and a final judgment” because the order for costs in that proceeding related to an interlocutory judgment: at [13]. The Court has readily accepted that a costs order related to an interlocutory judgment is also interlocutory: see, eg, Winn v Leigh [2014] FCA 518 at [4] (Rangiah J) (in relation to an adjournment application); Ejueyitsi v Bond University [2014] FCA 587 at [1] (Rangiah J) (in relation to summary dismissal); Barodawala v Giasoumi [2015] FCA 608 at [1] (Gleeson J) (in relation to an interim application); and Patial at [2] (Halley J) (in relation to orders striking out a statement of claim).

28    The question whether a costs order is interlocutory in nature when it relates to orders that are otherwise final was raised by the Minister before Katzmann J in Tukala: at [14]. In that proceeding, the Minister raised this as a potential issue but informed the Court that even if leave were required, the Minister did not oppose the grant of leave. In those circumstances, Katzmann J left open the question of whether an order as to costs in relation to a final judgment is interlocutory in nature and proceeded on the basis that “[i]f leave is required and the case for an extension of time to appeal is made out, I will grant leave. If not, I will refuse it”: at [14]. The question was also left open by the Full Court in Aldi Foods Pty Ltd v Transport Workers Union of Australia [2020] FCAFC 231; (2020) 282 FCR 179 at [69]–[71] (the Court).

29    In my view, costs orders have a chameleon-‍like character in that they take on the character of the judgment or orders to which they relate. An interlocutory costs order does not “entail that the proceedings have been finally resolved”, because the legal effect of those orders is not to finally resolved the matters in controversy between the parties: Kyriackou at [12]. By contrast, in a final judgment, a costs order is part of the orders which finally determines the rights of the parties and disposes of the controversy. Orders made in relation to a final judgment stipulate the final rights of the parties for the purposes of the proceeding, including with respect to costs orders the final rights of the parties with respect to costs. As the Full Court held in Les Laboratoires Servier v Apotex Pty Ltd [2016] FCAFC 27; (2016) 247 FCR 61 at [291]:

In this case, the costs orders were made as part of the final orders determining the rights of the parties in each of the proceedings concerning applications for revocation and amendment. Leave to appeal is not required.

(Approving Probiotec Ltd v University of Melbourne [2008] FCAFC 5; (2008) 166 FCR 30 at [79] (Rares J (Finn and Besanko JJ agreeing).)

30    This view is also supported by the fact that deferral of the date on which the final order as to costs is made has the effect of deferring the commencement of the period within which an appeal from the substantive orders may be instituted: Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [26], cited with approval in CQX18 v Minister for Home Affairs [2019] FCAFC 142; (2019) 372 ALR 137 at [11](2).

31    In any event, even if leave to appeal was required, I would not grant leave for the same reasons that I have decided to dismiss the application for an extension of time.

5.    ISSUE THREE: SHOULD THE APPLICATION FOR AN EXTENSION OF TIME BE GRANTED?

5.1    Relevant legal principles

32    The discretion to extend time under r 36.05 of the FCR is not confined by express criteria, as Finn J pointed out in Peczalski v Comcare [1999] FCA 366; (1999) 58 ALD 697 at [19]. However, an extension of time will not be granted unless the Court is positively satisfied that it is in the interests of justice to do so. In assessing where the interests of justice lie, there are a range of considerations which can appropriately be taken into account in the exercise of discretion. These are of varying weight depending on the particular case and include:

(1)    the length of the delay;

(2)    whether the applicant has shown an acceptable explanation for the delay;

(3)    whether the respondent would suffer prejudice in the event that the extension of time were granted; and

(4)    the merits of the proposed substantive appeal.

See, eg, Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348–‍349 (Wilcox J) and Bechara v Bates [2018] FCA 460 at [17] (Perry J).

33    With respect to the last of these factors, it will generally be the case that the merits of the proposed appeal should be approached in a reasonably impressionist manner. Thus, in Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 178 ALD 573, Kiefel CJ, Gageler, Keane and Gleeson JJ explained at [17] that:

[I]t may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) [of the Migration Act 1958 (Cth)] (or s 477(2)) [powers to extend time], it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.

(Citations omitted.)

5.2    Disposition of the application

34    The delay in filing the notice of appeal was 6 days only. I consider that this is a relatively short delay. The applicant’s explanation for the delay was that “[d]ue to the difference between the dates of making and delivering the order on costs, my time for preparing the notice of appeal was reduced to 7 days. The time was not sufficient for me”: applicant’s affidavit affirmed on 12 October 2022 at [4]. The Commissioner submits the applicant has not provided an acceptable or reasonable explanation for the delay in circumstances where the applicant was aware that the primary judge’s order was pronounced at the hearing on 9 September 2023. I accept that the applicant would have been aware of the primary judge’s order from 9 September 2023. However, in circumstances where the primary judge’s orders and written reasons were provided to the applicant only on 30 September 2023, I accept that the applicant has provided a reasonable explanation for the delay.

35    As to the prejudice to the Commissioner, the Commissioner accepts that the grant of an extension of time would not cause the Commissioner any prejudice. However, that factor is essentially neutral given that a lack of prejudice to the respondent alone is not a sufficient reason to grant the extension of time: Hunter Valley Developments at 349 (Wilcox J).

36    Turning to the merits of the draft notice of appeal, the proposed grounds of appeal are as follows:

6.    Special circumstances exist in this case to depart from the rule that costs follow the event:

7.    [Ground one] The case raised a novel issue on the interpretation of the law. The concept that an entity fulfills it’s obligations under an enactment through actions performed under an administrative (informal) arrangement is new. Neither the Respondent nor His Honour was able to point out a case which interpreted the law in such a way. The judgment set a precedent for the application of the privacy law.

8.    [Ground two] The Respondent’s conduct contributed to bringing the matter to the Court. The Privacy Act has not changed but the interpretation of the Act changed, with no reasons provided. The Appellant’s argument that actions performed under an administrative arrangement should not be assessed against APP 12 was clearly defined. The Respondent omitted to address the argument in the reasons for a decision, and continued omitting it during the proceedings. The trial might not have been necessary, if the Respondent confronted the argument.

37    In order to succeed on any appeal, it would be necessary for the applicant to establish an error of the nature identified in House v R [1936] HCA 40; (1936) 55 CLR 499 in the exercise of the discretion as to costs by the primary judge. As Dixon, Evatt and McTiernan JJ held in House v R at 504–‍505:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.

38    In turn, the legal principles governing the discretion to award costs under s 43(2) of the FCA Act were relevantly summarised by the Full Court in Umoona Tjutagku Health Service Aboriginal Corp v Walsh [2019] FCAFC 32; (2019) 268 FCR 401 at [41]–‍[42] and [45]–‍[46] (White, Perry and Banks-Smith JJ) as follows:

The Court has a broad discretion under s 43(2) of the FCA Act when determining appropriate costs orders which must be exercised judicially, that is, not arbitrarily, capriciously, or so as to frustrate the legislative intent…

Thus, while the ordinary rule is that the successful party will receive her or his costs, that is not an absolute rule... As the Full Court explained in Queensland North Australia Pty Ltd v Takeovers Panel (No 2) [2015] FCAFC 128; (2015) 236 FCR 370 at [11], after referring to the decisions in Ruddock and Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174 with approval:

11.    These decisions treat the success or failure of the relevant party as being the starting point in consideration of the question of costs. However they contemplate at least three distinct categories of situation in which a successful party might be deprived of costs, or even ordered to pay the costs of the other side. One such category is where the applicant has been only partially successful in that it has not obtained all of the relief sought. The second category is where a party has succeeded in obtaining the relief sought, but has not succeeded on all bases (factual or legal) upon which it sought such relief. Of course, it is possible that a particular outcome will fall into both categories. A third category involves consideration of the successful party’s conduct of the case.

…

The breadth of the discretion as to costs is reflected among other things in s 43(3)(c) and (e) of the FCA Act which respectively permit the Court to make orders that the parties bear costs in specified proportions and to award costs in favour of or against a party irrespective of whether the party is successful in the proceeding… Thus, as the High Court held in Gray v Richards (No 2) [2014] HCA 47; (2014) 89 ALJR 113:

2.    The disposition of costs is within the general discretion of the Court. Ordinarily, that discretion will be exercised so that costs are awarded to the successful party, but other factors may have a significant claim on the discretion of the Court. The disposition which is ultimately to be made in any case where there are competing considerations will reflect a broad evaluative judgment of what justice requires.

(emphasis added; citations omitted)

The interests of justice include considerations of the cost-‍effectiveness of litigation. Thus a court may conclude that a departure from the general rule is warranted where substantial issues are raised by the successful party which unduly extend the time and expense of litigation: A, DC v Prince Alfred College Inc (No 2) [2016] SASCFC 27 at [6]–[11] (the Court). As counsel for Ms Walsh pointed out, the relevance of such considerations is highlighted by the obligation imposed upon a party and a party’s lawyer by subss 37N(1) and (2) respectively of the FCA Act to conduct proceedings in a way that is consistent with the overarching purpose in s 37M, namely, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

(Emphasis in original; citations omitted.)

39    Bearing these principles in mind, I do not consider that the draft grounds of appeal have sufficient prospects of success to justify the granting of an extension of time for the following reasons.

40    First, as the Commissioner submits, the issues raised in proposed grounds one and two were not raised before the primary judge and leave would therefore be required to raise them on the appeal.

41    Secondly, in relation to proposed ground one, I do not accept the applicant’s submission that the “case raised a novel issue” which justified departure from the ordinary rule of costs. The applicant relies on Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229. In that case, the Court departed from the usual rule that the successful party should be awarded its costs, holding instead that the appropriate order was that there be no order as to costs. However, this case is clearly distinguishable from Ruddock. In Ruddock, which was described as a “most unusual case”, the novel issues raised involved “divided judicial opinion”, “high public importance”, “questions concerning the liberty of individuals who were unable to take action on their own behalf to determine their rights” and “substantial public and, indeed, international controversy”: at [28]–‍[29] (Black CJ and French J). The same cannot be said for this case where the applicant brought the proceeding, not in the public interest, but in her own interests: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [48] (Gaudron and Gummow JJ).

42    Nor, properly understood, did Skiba No 1 create a novel precedent that an entity can fulfill its obligations under an enactment through an administrative arrangement. The primary judge found that the applicant’s submission seeking to characterise the Department’s conduct as being “‘under the Privacy Act’, ‘under APP 12.1’ or ‘under an administrative arrangement’ [as] involv[ing] an irrelevancy”: at [45]. The primary judge found that the Commissioner was correct in finding that the Department had complied with APP 12.1 because it conducted a search for the requested document and, after finding there were no documents which met the requested criteria, there was no further action required by the Department under the Privacy Act: at [43]–‍[47]. The Department’s decision to release other documents under an administrative arrangement was a separate process which was not the subject of the complaint before the Commissioner.

43    Thirdly, in relation to proposed ground two, I do not accept that the Commissioner’s conduct contributed to the applicant bringing the claim. The applicant relies on the decision of Tate v Rafin [2000] FCA 1582. I consider that Tate is readily distinguishable. In Tate, Wilcox J denied the successful respondent their costs under the Disability Discrimination Act 1992 (Cth). His Honour did so on the basis that “the respondents bear substantial responsibility for the fact that [the action] was commenced in the first place”: at [71]. That conclusion was reached for the reason, amongst others, that the respondent gave the applicant a “misleading impression” that the applicant was being denied access to Wollongong District Cricket Club Inc facilities because the full extent of his disabilities had been disclosed to the club: at [71]. In this case, however, the delegate of the Commissioner found simply that the Department had not located any documents which met the criteria for the requested documents: Skiba No 1 at [31]. In relation to the tax invoice that the Department located, the delegate explained that the Department was not required to provide that document to the applicant under the Privacy Act because it did not fall within the specific description of the requested documents: Skiba No 1 at [31]. I consider therefore that there are insufficient prospects that this proposed ground of review would succeed.

44    In the fourth place, in addition to the proposed grounds of appeal, the applicant submits that the primary judge automatically found that costs should follow the event without taking any other factors into account, citing Shelton v Repatriation Commission [1999] FCA 181; (1999) 85 FCR 587 at [590]. I do not accept that submission for the following reasons.

45    Based on both the transcript and the applicant’s account of the hearing in her affidavit affirmed on 12 October 2022, the primary judge invited the applicant to make submissions on why costs should not follow the event. The applicant made no such submissions and therefore proffered no reasons as to why the ordinary rule as to costs whereby the successful party is awarded their costs should not be made. In those circumstances, there is no error in the primary judge deciding to exercise the discretion by applying the ordinary rule as to costs.

46    In Shelton, the appellant had some success on appeal despite ultimately being unsuccessful on the appeal: at [10]–‍[11]. It was in those circumstances that the Court considered that it was appropriate for the parties to bear their own costs. Comparatively, the applicant in this case did not have any success in the proceeding at first instance.

47    Finally, it follows that there are no reasonable prospects that the applicant would be able to establish that the primary judge made an error of the type described in House v R at 505 (Dixon, Evatt and McTiernan JJ).

48    The proposed grounds of appeal do not therefore have sufficient prospects of success to warrant the grant of an extension of time. Accordingly, it would not be in the interests of justice to grant the extension of time and the application must be dismissed.

6.    CONCLUSION

49    In circumstances where the Commissioner has been successful in opposing the application for an extension of time, I am satisfied that costs should follow the event. The application for an extension of time is dismissed with costs.

Associate:

Dated:    24 November 2023