FEDERAL COURT OF AUSTRALIA

Papoutsakis v Australian Information Commissioner [2024] FCA 75

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed with costs.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    The self-represented applicant in this case, Antonios Papoutsakis, is a bankrupt. He complains that his bankruptcy and associated hardship can be traced back to a breach of his privacy by QT Investment Management Pty Ltd (QTIM) in August and September 2016.

2    Mr Papoutsakis complains that, without his consent, QTIM provided details of three loans he had from QTIM, including the details of three properties over which the loans were secured, the terms of the loans and the amounts outstanding, to a different prospective lender, Prime Capital. Against Mr Papoutsakis’s instructions, Prime Capital then sought to include those properties as securities by way of second mortgages in the documents for the new loan whereas Mr Papoutsakis says that his instructions had always been that the new loan would be secured only by a mortgage on a fourth property. The inclusion of the other properties in the documents caused Mr Papoutsakis to withdraw from the new loan before there had been any drawdown. When Prime Capital invoiced him $26,606 for its wasted expenses and liquidated damages, Mr Papoutsakis refused to pay. That refusal in turn led to a bankruptcy notice followed by a creditor’s petition, the sequestration of his estate and the loss to him of all four properties. He claims an entitlement to compensation of $15 million.

3    Mr Papoutsakis made his complaint of breach of privacy to the Australian Information Commissioner, the respondent, in November 2021. After limited investigation, to which I will return, on 9 June 2023 a delegate of the Commissioner published a preliminary intention to close the complaint without (further) investigation under s 41(1)(a) of the Privacy Act 1988 (Cth). Mr Papoutsakis was given the opportunity to comment on the preliminary decision. After he did so, the delegate published a final decision on 19 July 2023. That decision was that, in reliance on s 41(1)(da) of the Privacy Act, the complaint should not be (further) investigated.

4    Before me is Mr Papoutsakis’s application for judicial review of the decision of the Commissioner’s delegate.

The evidence before the delegate

5    The court book tendered on the hearing of the application contains the totality of the information available to the delegate when she made her decision. In summary, it reveals the following.

6    By letter dated 18 August 2022, the Motor Trades Association of Australia Superannuation Fund Pty Ltd as trustee of Spirit Super responded to Mr Papoutsakis’s complaint on the invitation of an investigations officer at the Office of the Commissioner. Relevantly, the response alleged the following:

(1)    Mr Papoutsakis and his company Papou Properties Pty Ltd were long-term clients of QTIM which operated a mortgage loans business trading as Tasplan. From 1 April 2021, QTIM became wholly-owned by Spirit Super. “As a wholly-owned entity, QTIM now falls within the Spirit Super group and [the] complaint is being responded to by Spirit Super on that basis.”

(2)    QTIM disclosed the following information regarding Mr Papoutsakis:

(a)    In 2016, details of Mr Papoutsakis’s borrowings were provided to Steven Tsiakis because “Mr Papoutsakis advised QTIM that Mr Tsiakis was acting as his broker and verbally consented QTIM to assist Mr Tsiakis” (sic).

(b)    On 1 September 2016, the loan balance, interest rate, maturity date and security in respect of each of the three loans secured by three different properties in Sandy Bay were disclosed to Gadens as solicitors for Capital Securities. (Capital Securities is apparently a related entity to or trading name for Prime Capital, or vice versa.) The information was said to have been provided in response to a request for consent to a second mortgage over each of the properties and a signed privacy consent form.

7    Annexed to Spirit Super’s response were a number of documents. They included an email from Gadens on behalf of Capital Securities to Leigh Ford of Tasplan (ie QTIM) on 29 August 2016. The email referred to a discussion the previous week between its author and Mr Ford, and requested consent to the registration of mortgages over the three identified Sandy Bay properties. The email stated that “the client’s authority to disclose information” was attached. Attached to the email was a “Privacy Consent form – Prime Capital” signed by Mr Papoutsakis and his wife as “guarantors”, and also by Mr Papoutsakis on behalf of Papou as “borrower”. The consent form includes terms that gave Prime Capital consent to, amongst other things, “collect … personal and credit information” of the signatories.

8    Also attached to the email from Gadens was a loan approval form for Papou as borrower apparently signed by Mr Papoutsakis on 1 August 2016. The form included the details of the three properties and the loans, including the amounts outstanding on each loan. That is to say, it was apparent that prior to Gadens making the request by email on 29 August 2016, Prime Capital / Capital Securities already had the information that Mr Papoutsakis complains was released to them without his consent. In any event, by letter dated 1 September 2016, Mr Ford, on the letterhead of Retirement Benefits Fund, furnished information about the loans including, in respect of each loan, the balance outstanding, the interest rate, the maturity date and the security.

9    Mr Papoutsakis disputed Spirit Super’s response to the investigations officer. In particular, he stated that he never authorised Spirit Super, whether orally or in writing, to release information about the properties or the loan balances.

10    Mr Papoutsakis provided to the investigations officer an affidavit apparently deposed to by Mr Tsiakis which states that on behalf of Papou, Mr Papoutsakis had engaged Mr Tsiakis of MBA Finance Pty Ltd to assist to raise funds. Prime Capital had presented an offer to Mr Papoutsakis which required all four of the properties as security. Mr Papoutsakis did not agree to having all of the properties mortgaged for the single loan and therefore rejected the offer. That was relayed to Prime Capital “many times”. Notably, the affidavit does not say that Mr Tsiakis was not authorised by Mr Papoutsakis, in the task of assisting to raise the relevant loan, to collect the details of the other loans and pass those on to the prospective lender, Prime Capital.

11    Mr Papoutsakis also provided a statutory declaration of Mr Tsiakis dated 11 November 2019 to the investigations officer. The statutory declaration declared that MBA Finance was engaged by Papou to arrange funds from a suitable lender for working capital. It stated that it was never agreed “to mortgage all properties for the securing of funds as the valuation on property to be mortgaged was only 30% of the funds required” (sic). Again, notably, the statutory declaration does not state that Mr Tsiakis did not have authority to collect information about the borrower’s or guarantors’ other liabilities and pass that on to the prospective lender for its assessment of creditworthiness.

12    Spirit Super provided to the investigations officer a “diary note” dated 30 August 2022 prepared and signed by Mr Ford. The note records that Mr Ford was unable to provide any (contemporaneous) client notes of his interactions with Mr Papoutsakis regarding discussions with Mr Papoutsakis’s broker, Mr Tsiakis. That is to say, the note records Mr Ford’s memory in 2022 of the interactions in 2016 and is not a contemporaneous record. The note states that Mr Papoutsakis discussed with Mr Ford that Mr Papoutsakis was working with Mr Tsiakis and that it was agreed that Mr Ford would assist Mr Tsiakis “in his efforts to help [Mr Papoutsakis]”. Mr Tsiakis was looking for finance of about $500,000 to help Mr Papoutsakis.

13    Mr Papoutsakis repeatedly stated in emails to the investigations officer that he did not consent to the provision of financial information by or on behalf of QTIM to Prime Capital. On one occasion, Mr Papoutsakis stated that Mr Tsiakis’s statutory declaration proves that he was never authorised by Mr Papoutsakis when acting as a broker “to seek financials from Spirit Super”.

The delegate’s decisions

14    Mr Papoutsakis’s complaint was referred to a conciliation meeting in October 2022, but conciliation failed.

15    As mentioned, on 9 June 2023 the delegate gave notice that she intended to rely on s 41(1)(a) of the Privacy Act to close Mr Papoutsakis’s complaint without an investigation. That was on the basis that the delegate did not consider that QTIM’s act in disclosing the relevant information constitutes an interference with Mr Papoutsakis’s privacy. It was not explained whether that was because there was consent to the disclosure or because even without consent the disclosure was not an interference.

16    Thereafter Mr Papoutsakis made further representations to the delegate. He reiterated his position that there was no consent given by him to QTIM or Mr Tsiakis for the disclosure.

17    Also as mentioned, on 19 July 2023 the delegate relied on s 41(1)(da) of the Privacy Act in deciding not to investigate the complaint. The reasons given for the decision include the following:

(1)    The delegate summarised Mr Papoutsakis’s claim, including that he did not consent to QTIM releasing information about his properties for the purposes of registering second mortgages. Also, he claimed that he did not authorise QTIM to engage with Mr Tsiakis. Nevertheless, QTIM disclosed details of the three properties to Prime Capital prior to 1 August 2016 which is evidenced by those details being included in the initial loan documents which were prepared for his signature.

(2)    The delegate stated that even if it were accepted that there was prima facie evidence that there had been a breach of the Privacy Act, an investigation was not warranted having regard to the following circumstances:

•    the events that give rise to your complaint occurred in 2016

•    the respondent does not appear to be the same corporate entity that it was in 2016

•    details of the properties included in your loan application, with the exception of the amounts outstanding on each loan, were publicly available

•    your complaint against the respondent appears to be ancillary to the issues you have raised about your mortgage lender and broker

•    an investigation will not result in you receiving the $15 million in compensation you have sought from the respondent

•    the matter was more appropriately addressed in the context of a conciliation, although regrettably, a resolution could not be reached.

The grounds of review

18    The originating application for judicial review does not identify any grounds of review. However, the Commissioner was content to deal with the case on the basis that the grounds of review are identifiable from Mr Papoutsakis’s written submissions (AS) on the assumption that the grounds are raised pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

19    The Court has jurisdiction to review a decision on one or more of the grounds set out in s 5 of the ADJR Act. Relevant for present purposes, those grounds include in s 5(1) the following:

(e)     that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

20    Section 5(2) provides that the reference in s 5(1)(e) to an improper exercise of power relevantly includes a reference to:

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

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

…

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

21    The Commissioner identifies two grounds apparent from the applicant’s submissions, namely:

(1)    Ground 1: the delegate failed to take a relevant consideration into account in the exercise of a power, being that Mr Papoutsakis had not provided consent for the release of his personal information by QTIM; and

(2)    Ground 2: the decision of the delegate was induced or affected by fraud.

22    In my view, Mr Papoutsakis’s submissions, fairly understood, reveal other possible grounds of review. In that regard, I am mindful that the judge’s obligation to ensure that a trial is fair requires the judge to give a self-represented litigant a reasonable opportunity to present evidence and make submissions in support of his or her case and to provide a fair hearing for each party while maintaining a position of neutrality: Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; 270 FCR 335 at [106].

23    Considering what he has said in writing and orally, and in particular his claims that the delegate “failed to acknowledge” various matters, it seems to me that Mr Papoutsakis’s grounds of review are best summarised as follows:

(1)    Taking irrelevant considerations into account (s 5(1)(e) read with s 5(2)(a)), namely:

(a)    That the alleged breach of privacy took place in 2016; [oral submissions]

(b)    That the respondent to the complaint (Spirit Super) is not the same corporate entity as the entity said to have breached Mr Papoutsakis’s privacy (QTIM); and [AS4]

(c)    That the balance payable on the loans was available publicly; [AS10]

(2)    Failing to take a relevant consideration into account (s 5(1)(e) read with s 5(2)(b)), namely:

(a)    That Mr Papoutsakis did not consent to the release of the information by QTIM; [AS5, 6]

(b)    That the consent form was signed after the information had already been released; and [AS8, 9]

(c)    That Mr Papoutsakis did not consent to Mr Tsiakis or Mr Ford collecting or releasing the information; [AS14, 15, 20]

(3)    Making a decision that is so unreasonable that no reasonable person could have made it (s 5(1)(e) read with s 5(2)(g)), arising from all of the above and other more generalised complaints about the adverse effect of the alleged breach of privacy.

24    Although Mr Papoutsakis makes several allegations of falsification of documents which would amount to fraud, those are all directed at Prime Capital and other players back in 2016. None is addressed at the delegate. That is to say, he does not allege that the delegate’s decision is vitiated by fraud. In those circumstances I do not consider that a s 5(1)(g) ground of review is alleged.

25    Mr Papoutsakis also makes a number of allegations with regard to how the details of the three properties were wrongly included in the loan documents, how and why he rejected the loan documents as a consequence and why he is not liable to Prime Capital for its invoice. Those allegations are not directed at the breach of privacy, so I do not consider that they give rise to grounds for the review of the delegate’s decision.

The statutory scheme

26    Section 13 of the Privacy Act deals with interferences with privacy. Section 13(1)(a) provides, relevantly, that an act of an APP entity is an interference with the privacy of an individual if it breaches an Australian Privacy Principle in relation to personal information about the individual.

27    In s 6(1) of the Privacy Act, an “APP entity” is defined as “an agency or organisation”. Also by definition in that section, “agency” includes a corporation. By s 6C(1), “organisation” also includes a body corporate. There is no contest in this case that QTIM was an APP entity.

28    Section 14(1) provides that the Australian Privacy Principles are set out in the clauses of Sch 1. Those principles are referred to by number.

29    Australian Privacy Principle 6 in subcl 6.1 provides that if an APP entity holds personal information about an individual that was collected for a particular purpose, the entity must not use or disclose the information for another purpose unless “the individual has consented to the use or disclosure of the information”. I understand Mr Papoutsakis to complain that QTIM breached this provision.

30    Part V of the Privacy Act deals with complaints and investigations about acts or practices that may be an interference with the privacy of an individual. Section 36(1) provides that an individual may complain to the Commissioner about an act that may be an interference with the privacy of the individual. That is the provision that Mr Papoutsakis invoked in making his complaint back in November 2021.

31    Section 40 deals with investigations. The Commissioner “shall” investigate an act if it may be an interference with the privacy of an individual and a complaint about the act has been made under s 36: s 40(1). Section 40A(1) provides that if a complaint about an act is made under s 36 and the Commissioner considers it is reasonably possible that the complaint may be conciliated successfully, the Commissioner “must” make a reasonable attempt to conciliate the complaint. That is the power that was exercised in the Commissioner’s unsuccessful effort to conciliate Mr Papoutsakis’s complaint.

32    Section 41(1) provides that the Commissioner “may” decide not to investigate, or not to investigate further, an act about which a complaint has been made under s 36 if the Commissioner is satisfied that:

(a)     the act or practice is not an interference with the privacy of an individual; or

(c)     the complaint was made more than 12 months after the complainant became aware of the act or practice; or

(d)     the complaint is frivolous, vexatious, misconceived, lacking in substance or not made in good faith; or

(da)     an investigation, or further investigation, of the act or practice is not warranted having regard to all the circumstances; or

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

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

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

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

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

33    Section 42 provides for the Commissioner to make “preliminary inquiries” for the purpose of determining whether the Commissioner may, in their discretion, decide not to investigate the matter. The investigation officer’s dealing with Mr Papoutsakis’s complaint in the period between when it was made and when the delegate published her intention not to investigate the complaint must be understood as having been conducted under this provision.

34    Section 43 deals with the conduct of investigations. Further provisions provide for the possibility of a hearing (s 43A), powers to obtain information and documents and examine witnesses (ss 44 and 45) and for compulsory conferences (ss 46 and 47).

35    After the investigation of a complaint, the Commissioner may make a determination dismissing the complaint or finding the complaint substantiated (s 52(1)). In the latter event, the Commissioner may make a determination that includes a number of forms of declaration including a declaration that the complainant is entitled to a specified amount by way of compensation for any loss or damage suffered by reason of the act or practice the subject of the complaint (s 52(1)(b)(iii)). It is presumably this provision that Mr Papoutsakis intends relying on in seeking compensation in the event that his complaint is investigated and ultimately determined in his favour.

36    Needless to say, the critical provision in the present case is s 41(1)(da). The lawful exercise of the discretion given by that provision rests on the Commissioner being “satisfied” that an investigation “is not warranted having regard to all the circumstances”. What matters must be considered are not prescribed: Rana v Australian Information Commissioner [2022] FCA 817 at [58] per Banks-Smith J. The apparent purpose of s 41(1) is to empower the Commissioner to decide not to investigate a complaint or to terminate a complaint at any stage when they reach the requisite state of satisfaction, thereby ensuring that public funds and resources are directed towards resolving potentially meritorious complaints: Simjanovska v Department of Human Services [2019] FCA 499 at [122] per Perry J.

37    As observed by Wheelahan J in Madzikanda v Australian Information Commissioner [2023] FCA 1445 at [50]-[51], the role of the Commissioner is “as an administrative gatekeeper of complaints about interferences with privacy”. The factors that the Commissioner may rely on in reaching the necessary state of satisfaction are wide, and the weight to be ascribed to them is a matter for the Commissioner. His Honour identified that the broad wording in s 41(1)(da) of “having regard to all the circumstances” would entitle the Commissioner to take into account:

(1)    the strength of the evidence advanced by the applicant in the complaint;

(2)    the weight to be given to any legal arguments;

(3)    the practical utility of pursuing an investigation; and

(4)    the efficient allocation of the Commissioner’s resources and powers.

38    His Honour also observed (at [52]) that it is important to recognise that the delegate is not obliged to make findings of fact at the pre-investigation stage because they are not engaged in a process that involves the adjudication of rights, but only an administrative decision whether to continue to investigate. Also, it is important not to read too much complexity into the delegate’s reasons for deciding not to continue the investigation, and not to scrutinise the delegate’s reasons in an over-zealous manner with an eye keenly attuned to the detection of error.

39    Against that background, one can turn to the grounds of review.

Irrelevant considerations

40    As mentioned, the delegate can have regard to “all the circumstances”. There are no matters which are prohibited from being considered, and any matter with even marginal relevance can be considered.

41    It cannot have been proscribed for the delegate to take into consideration that the alleged breach of privacy took place in 2016. Not only is the passage of time a relevant consideration when one has regard to s 41(1)(c), but it is also clearly relevant to the likelihood of any investigation being able to properly get to the bottom of what actually occurred. That is especially so in the circumstances of the present case which turns, in essence, on the conflicting oral versions of Mr Papoutsakis on the one hand and Messrs Ford and Tsiakis on the other.

42    For similar reasons, it cannot be irrelevant to consider that the relevant corporate entity, QTIM, is no longer on the scene. Although Spirit Super apparently accepts responsibility to respond to the complaint against QTIM, it is not obvious that Spirit Super can have any liability for the conduct of QTIM following any determination in due course.

43    Mr Papoutsakis’s complaint that the delegate is wrong in saying that the balance owing on the relevant loans was available publicly is mistaken. The delegate said exactly the opposite – see [17(2)] above. The later disclosure of the interest rate on and the maturity date of each loan, which in each case was recorded as “N/A – Variable rate loan”, was not included in the Prime Capital loan documentation and therefore does not appear to give rise to any complaint of loss.

44    In the circumstances, none of the identifiable complaints by Mr Papoutsakis with regard to the delegate taking into account irrelevant considerations is made out.

Mandatory considerations

45    There are no mandatory considerations in the sense described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40. It is necessary to focus on the construction of the statute conferring the discretion in determining whether any particular considerations are mandatory. Justice Mason noted that where the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless such an implication is to be found in the subject-matter, scope and purpose of the Act. Also, even if the decision-maker fails to take into account a consideration binding upon them, not every failure to do so would justify the court setting aside the impugned decision, particularly when that failure could not have materially affected the decision in question.

46    In any event, the delegate expressly took into account that Mr Papoutsakis claims that he did not consent to the release of information to QTIM (see [17(1)] above).

47    Similarly, the delegate expressly referenced that QTIM disclosed details of the three properties to Prime Capital for their inclusion in the documents to be given to Mr Papoutsakis for his signature (see [17(1)] above). Inherent in that is a recognition that he signed the consent form after the details had been disclosed. That turns attention to the prior disclosure to Mr Tsiakis who was Mr Papoutsakis’s broker for the purposes of organising the loan. In that regard, Spirit Super does not rely on the written consent, but the oral consent apparently given to Mr Ford.

48    The oral consent given to Mr Ford relates to the final matter that Mr Papoutsakis complains the delegate did not take into account, ie that she failed to take into account that Mr Papoutsakis did not consent to Mr Tsiakis or Mr Ford collecting or releasing the information. As mentioned, the delegate was obviously aware that Mr Papoutsakis claims that he did not consent to the collection or release of the information. So, even if this was a matter that had to be taken into account, there is no error here.

49    But in any event, Mr Ford’s diary note says that Mr Papoutsakis asked him to assist Mr Tsiakis to raise the loan, which would ordinarily include the need to provide details of other liabilities to any prospective lender. The point is that there was a conflict of evidence, or claims, before the delegate. The delegate was deciding whether or not to investigate them further in order to decide which to accept. The fact that Mr Papoutsakis made the claim that he had not consented is no basis to fault the delegate in making that decision.

Legal unreasonableness

50    Perhaps Mr Papoutsakis’s underlying complaint is that the delegate’s decision is so unreasonable that no reasonable person could have made it. That is a high hurdle. For present purposes it is not necessary to identify the parameters of the unreasonableness inquiry with precision because on any view of them the decision in this case is not unreasonable. See Goodwin v Commissioner of Police [2020] FCA 950 at [38]-[41] per Bromberg J in relation to those parameters.

51    The difficulty for Mr Papoutsakis is that there are cogent reasons why it might not be unreasonable not to investigate the claim further, including the passage of time and the difficulty of deciding which of the conflicting oral versions to prefer in the absence of relevant contemporaneous documents. There is also the key consideration, mentioned by the delegate, that the real source of Mr Papoutsakis’s loss and hardship is not the disclosure of the information, but the way in which the loan documents were fraudulently dealt with by Prime Capital – at least on Mr Papoutsakis’s version of events. On that version, it is Prime Capital that is the true villain, including by way of fraud and deception, rather than QTIM.

52    The fact of Mr Papoutsakis’s ownership of the properties and the mortgages on them was publicly available information. That was enough information for Prime Capital to include those properties as additional securities on the loan documents. The private information that was disclosed, being the amounts outstanding on each loan, was not necessary. There is obviously a dispute between Mr Papoutsakis and Prime Capital about the circumstances in which the loan documents were prepared, Mr Papoutsakis’s withdrawal from the arrangements and whether or not he is liable for the invoice which led to his bankruptcy. The private information is marginal to that dispute. Moreover, it is hard to imagine a prospective lender not requiring details of the prospective borrower’s and guarantors’ other liabilities in order for it to assess creditworthiness. Mr Papoutsakis would have had to disclose those details to Prime Capital if it had asked for them. That shows that the disclosure of the information is not the nub of the problem, but rather the inclusion of those details in the loan documents for which QTIM cannot be responsible.

53    In those circumstances, the unreasonableness ground of review must also fail.

54    It is perhaps worth observing here that Mr Papoutsakis has a strong conviction that he was wronged by QTIM. His belief in the fact of QTIM having disclosed personal information to Prime Capital without his consent lies at the heart of his complaint about the delegate deciding not to investigate the matter any further. Indeed, underlying his arguments is the foundational assertion that he was wronged by QTIM and therefore the delegate is wrong to not investigate that. That approach adopts the wrong perspective. The correct perspective is that of the delegate – did the delegate have legal justification for not investigating whether the breach of privacy claim is true? Answering that question cannot proceed from the assumption that that claim is true.

A late complaint

55    Yesterday afternoon my associate notified the parties by email that judgment would be handed down this morning at 10.15 am. Mr Papoutsakis sent an email to my associate copied to the Commissioner’s lawyers shortly before 7.00 pm yesterday. The email is in the following terms (as written):

The purpose of this email is to let the court know that I have denied procedure fairness.

1)I was not given a copy of the court book until the day of the hearing .

2) As in the email from OAIC it confirms that no weight was given on the wrong done from Spirit Super and QTIM on the email dated 1/8/2022,page 13 of the court book .

3)The email from Spirit Super on the 18/8/2022 ,page 32 and 33 of the court book says (that the information released in the context of seeking QTIM consent to a second mortgage over properties owned by Mr Papoutsakis and securing loans provided to Mr Papoutsakis.As we understand it this would have been a required step for Mr Papoutsakis to obtain additional finance ) but according to their thinking they are not saying when they have released information to the other party.

4)It was never consented by anyway of form verbally or written.

5)QTIM Spirit Super have acted negligently they have accepted to release information.

a)Never consented for QTIM to accept Prime capital as a second mortgage over the 3 properties were under mortgage to QTIM.

b)Never consented or authorised verbally or written to assist any one for my financial matters under mortgage to QTIM.

c)The sign consent page was sign after QTIM had released information and we have cross out the 3 undisclosed properties being under QTIM mortgage, court book page 33.

5)In the page 34 of the court book in the( response to specific questions)QTIM says that,(APP6.1 allows the disclosure of personal information where an individual would expect such disclosure.

Given that Mr Papoutsakis requested assistance with his broker and provided a signed consent form ,it was reasonable for QTIM to determine that Mr Papoutsakis expected the disclosure in order to assist his finance application.

a)QTIM acted in their own accord diminishing their client to seek his personal consent in writing or verbally,I did not needed the assistance of QTIM ,the property at 28 Shepherd it did had enough equity ,according as well from the finance broker Steven Tsiakis statutory declaration.

6)The APP 6 say ,that an entity will generally use and disclose an individual personal information only in ways the individual would expect.

The individual has consented to a secondary use or disclosure.

APP6.1(a)permits an entity to use or disclosure personal information for a secondary purpose where the individual has consented to the use or disclosure.

Consent is defined in s 6(1) as express consent and is discussed in chapter B(key concepts) the four key elements of consent are ,

a)The individual is adequately informed before (giving) consent.

b)The individual gives consent voluntarily.

c)The consent is current and specific.

d)The individual has the capacity to understand and communicate their consent.

7) It is and was interference in my privacy.

8)The late add on is been made in good faith .

Yours faithfully

Antonio's Papoutsakis.

56    The only discernible new complaint in the email, at least to me, is that Mr Papoutsakis was denied procedural fairness in the hearing because he was not given a copy of the court book until the day of the hearing. Given the timing of this issue being raised, there has been no opportunity to investigate whether the court book was served on Mr Papoutsakis at an earlier time.

57    On 3 November 2023, I made orders that by 13 November 2023 the respondent file and serve a paginated and indexed electronic court book comprising all of the material that the respondent’s delegate relied on in making the decision under review. The court book was filed on that day.

58    Also, on 8 December 2023, the respondent filed an affidavit of Scott Crawford Moloney which had the court book annexed to it as “SCM1”. That is the day by which the respondent had been ordered to file and serve any affidavit upon which she proposed to rely.

59    Despite Mr Papoutsakis having knowledge of the orders that required the court book to be filed and served by 13 November 2023 and the respondent’s affidavit evidence to be filed and served by 8 December 2023, Mr Papoutsakis made no complaint about those orders not being complied with. That would suggest that they were complied with, and that the court book and the affidavit were served.

60    Be that as it may, the respondent’s submissions which were filed on 25 January 2024 refer to the court book, including to specific pages within the court book. From those references, Mr Papoutsakis would have been aware that the respondent was relying on the court book.

61    At the hearing of the review application on 7 February 2024, the respondent tendered the court book. No objection was taken by Mr Papoutsakis to that tender. When I explained the nature of the Court’s review jurisdiction to Mr Papoutsakis early in the hearing, I specifically referred him to pages of the court book and he made no complaint. Further, Mr Papoutsakis in his oral submissions referred to documents with reference to the court book.

62    In those circumstances, it is not apparent that Mr Papoutsakis suffered any unfairness in relation to when he received the court book. Moreover, he did not make any complaint of procedural fairness at the hearing when he had the opportunity to do so. Even if it was only thereafter, on having the opportunity to study the court book, that he came to appreciate that he was prejudiced by not having had the court book at an earlier time, he has not identified any matter arising from such study which has any new bearing on the case. Of course, his email which I have set out above raises a number of matters but they traverse ground already covered.

63    To the extent that Mr Papoutsakis’s email should be taken as an application to reopen the case after judgment was reserved, such application must be dismissed. No proper grounds have been identified, and I am not satisfied of any prejudice.

Disposition

64    For the reasons given above, Mr Papoutsakis’s application falls to be dismissed. There is no apparent reason why the costs should not follow the result.

Associate:

Dated:    13 February 2024