Federal Court of Australia

Medibank Private Limited v Australian Information Commissioner [2024] FCA 117

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s originating application be dismissed.

2.    The applicant pay the costs of the respondents of and incidental to the originating application.

3.    There be no order as to costs in favour of the intervening parties being the applicants in Federal Court proceeding VID 64 of 2023.

4.    Liberty to apply.

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

REASONS FOR JUDGMENT

BEACH J:

1    The genesis of the present proceeding arises out of a data breach involving the systems of Medibank Private Limited which arose no later than 25 October 2022.

2    Medibank seeks to restrain the Australian Information Commissioner (AIC) from making a determination under s 52(1) and/or s 52(1A) of the Privacy Act 1988 (Cth) (the Act) and enforcing any such determination under s 55A in respect of both a representative complaint lodged with the Office of the AIC (OAIC) against Medibank under ss 36 and 38 (the OAIC representative complaint) and the AIC’s own initiative investigation under s 40(2) (the AIC own initiative investigation).

3    Medibank says that any determination made or enforced by the AIC poses a real risk of interference with the administration of justice having regard to the issues raised in McClure v Medibank Private Limited, VID 64 of 2023 (the Federal Court representative proceeding).

4    The Federal Court representative proceeding, being a proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), was filed on 7 February 2023 and later consolidated with another proceeding. The present version of the consolidated statement of claim alleges, as it does in the OAIC representative complaint, that Medibank failed to comply with various Australian Privacy Principles (APPs); see ss 13, 14 and 15 of the Act and Schedule 1. There are also several other causes of action that have been raised in the Federal Court representative proceeding only.

5    Medibank says that there is a real risk of inconsistent factual and legal findings being made in respect of the same or overlapping questions in a determination by the AIC concerning the OAIC representative complaint and the AIC own initiative investigation on the one hand (collectively, the OAIC proceedings), and by this Court in the Federal Court representative proceeding on the other hand.

6    Further, Medibank says that if the AIC sought to enforce any such determination in this Court under s 55A, then there would be a real risk of inconsistent findings by this Court as between that enforcement proceeding and the Federal Court representative proceeding.

7    Further, in addition to seeking to restrain the making of any determination under the Act, Medibank also seeks to restrain the AIC from further investigating the OAIC representative complaint. But it does not seek to restrain the continuation of the AIC own initiative investigation. Whether or not this is an anomalous position for Medibank to take is something that I will return to later.

8    Now before me the applicants in the Federal Court representative proceeding support the relief sought by Medibank. The AIC and the OAIC representative complainant oppose the relief sought.

9    For the following reasons I would refuse the relief sought by Medibank. Although in large part I have accepted the exposition of the relevant legal principles advanced by Mr Neil Young KC for Medibank, in their application to the context before me such principles do not warrant the relief sought by Medibank.

Some factual background

10    As I have indicated, Medibank is facing multiple investigations and proceedings relating to a data breach notified by Medibank to the OAIC on 25 October 2022. As I have said, there is the AIC own initiative investigation, the OAIC representative complaint and the Federal Court representative proceeding. The following background explains the context for the relief sought by Medibank.

11    By 18 November 2022, the OAIC representative complaint made against Medibank had been lodged with the OAIC in relation to the data breach. It is convenient to note here that the OAIC representative complainant need only establish that there has been an interference with privacy within the meaning of s 13(1)(a) of the Act for the group members to enjoy success before the AIC.

12    On 1 December 2022, the AIC notified Medibank that she had commenced the AIC own initiative investigation against Medibank in relation to the data breach.

13    As I have indicated, on 7 February 2023, the Federal Court representative proceeding was commenced. Later it was consolidated with another competing proceeding. It is also convenient to note here that in contrast with the OAIC representative complaint, there are additional causes of action and issues raised in the Federal Court representative proceeding that are not raised by that complaint, including the existence and operation of the alleged “Medibank Privacy Term”, through which the statutory obligations under the Act are alleged to have been incorporated into the group members’ contracts of insurance, the compliance representations, which are relied upon by the applicants as the foundation for the misleading or deceptive conduct claims, the equitable breach of confidence claim and the breach of statutory duty claim; these are all denied by Medibank.

14    On 30 March 2023, the AIC expressed her preliminary view in relation to the OAIC representative complaint that she should exercise her power under ss 41(1)(da), (e) or (f) of the Act to decline to investigate it given the existence of the Federal Court representative proceeding.

15    On 11 May 2023, the AIC reversed her preliminary view to decline to investigate the OAIC representative complaint in light of the Federal Court representative proceeding. She also communicated to Medibank her intention that the OAIC representative complaint would be investigated concurrently with the AIC own initiative investigation. So, it was communicated that there would not be two separate investigations of the same acts and practices.

16    On 8 June 2023, Medibank made an application under s 38A of the Act that the OAIC representative complaint no longer continue as a representative complaint, or that it not be investigated under s 41.

17    On 22 August 2023, the AIC rejected Medibank’s application. Medibank has not formally challenged the AIC’s determination concerning either s 38A or s 41, but has proceeded with the present injunction application.

18    On 28 September 2023, the OAIC sent a letter to Maurice Blackburn stating that, having regard to s 38B(2)(b), the AIC would not commence an investigation in respect of the OAIC representative complaint until class members who had registered with Maurice Blackburn had been given the opportunity to withdraw from the OAIC representative complaint.

19    On 3 October 2023, the OAIC sent a letter to Medibank stating that under s 43(1) the OAIC representative complaint was to be investigated, but that the investigation would not commence until class members who had registered with Maurice Blackburn had been given the opportunity to withdraw. It was stated that the investigation would proceed concurrently, as a single investigatory process, with the AIC own initiative investigation. It was also stated that the OAIC intended to use relevant information obtained in the AIC own initiative investigation for the purposes of the OAIC representative complaint.

20    On 5 October 2023, the OAIC received a letter from Maurice Blackburn which responded to the OAIC’s letter dated 28 September 2023. That letter disclosed that whilst a number of persons had registered their interest in participating in a potential claim, with the exception of the OAIC representative complainant, none of them had consented to the lodgement of the OAIC representative complaint.

21    On 26 October 2023, the OAIC sent a letter to Medibank notifying it that the OAIC would commence its investigation into the OAIC representative complaint under s 40(1). The letter confirmed that this investigation would proceed concurrently, as a single investigatory process, with the AIC own initiative investigation which was already on foot.

22    On 26 October 2023, the OAIC also sent a letter to Maurice Blackburn stating, inter-alia, that the OAIC had considered various matters and had concluded that a withdrawal period prior to the commencement of the investigation was not required.

23    Consequently, the AIC own initiative investigation, the OAIC representative complaint and the Federal Court representative proceeding all remain on foot. Let me elaborate further as to the progress of the OAIC proceedings.

24    Since 1 December 2022 and concerning the AIC own initiative investigation into the data breach, over 170,000 documents have been obtained pursuant to various compulsory notices issued under s 44 of the Act. Many of those documents have been reviewed. The AIC has also conducted various statutory examinations of many individuals.

25    Further, on 24 November 2023, the AIC served an additional notice on Medibank pursuant to s 44. The November notice included 32 items of documents to be produced in three tranches.

26    On 4 December 2023, Medibank’s solicitors wrote to the solicitors for the OAIC in relation to the scope and timeframes set out in the November notice, explaining that item 32 of the November notice sought production of in excess of 380,000 documents, being families associated with already produced documents.

27    The AIC has also requested that Medibank produce additional raw data logs from a number of different software applications.

28    Now the AIC’s product from the AIC own initiative investigation can be and is to be used in the investigation of the OAIC representative complaint. So, in circumstances where the AIC has undertaken significant work on the AIC own initiative investigation since 1 December 2022, in substance it cannot be said that the OAIC representative complaint has been substantially affected by delay. Medibank made much of the fact that little had been done on the investigation concerning the OAIC representative complaint. But this is artificial as I have explained.

29    Let me make another point. As to how long the OAIC proceedings will take, there is evidence before me of how long previous investigations of a smaller magnitude have taken, but I do not have evidence as to recent changes in the structure and resourcing of the OAIC and how they may impact on the time frame for the underlying investigations or the making of any determination. In the circumstances, the evidence as to the timing of prior investigations is of little if any value.

30    But whatever the timing of the OAIC proceedings, including the making of any determination under s 52 or the bringing of any enforcement proceedings under s 55A, as the docket judge in the Federal Court representative proceeding I am able to bring about a result that ensures that the trial of the latter proceeds after any s 52 determination has been made or any s 55A enforcement proceeding filed.

Relevant provisions of the Privacy Act

31    It is convenient at this point to set out some of the relevant provisions of the Act.

32    Section 2A provides:

The objects of this Act are:

(a)     to promote the protection of the privacy of individuals; and

(b)     to recognise that the protection of the privacy of individuals is balanced with the interests of entities in carrying out their functions or activities; and

…

(g)     to provide a means for individuals to complain about an alleged interference with their privacy; and

…

33    I should note here that, as Ms Frances Gordon KC for the AIC submitted, the object in s 2A(g) suggests that a strong and tangible reason is necessary before one should entertain granting relief of the type sought by Medibank.

34    Section 13(1) provides:

APP entities

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

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

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

35    There is a definition of “interference with the privacy of an individual” in s 6(1) which provides that it has the meaning given by ss 13 to 13F.

36    Sections 14 and 15 provide:

14     Australian Privacy Principles

(1)     The Australian Privacy Principles are set out in the clauses of Schedule 1.

(2)     A reference in any Act to an Australian Privacy Principle by a number is a reference to the Australian Privacy Principle with that number.

15     APP entities must comply with Australian Privacy Principles

An APP entity must not do an act, or engage in a practice, that breaches an Australian Privacy Principle.

37    There is little doubt that Medibank is an APP entity; see the definition of “APP entity” in s 6(1) which refers to “an agency or organisation”. Medibank is an “organisation”; see the s 6(1) definition of organisation and s 6C(1) which I will not reproduce. It is not an “agency” as defined.

38    The APPs are set out in Schedule 1 to the Act. Relevantly for present purposes, clauses 1.1, 1.2, 6.1, 6.2, 11.1 and 11.2 provide as follows:

1     Australian Privacy Principle 1 — open and transparent management of personal information

1.1     The object of this principle is to ensure that APP entities manage personal information in an open and transparent way.

Compliance with the Australian Privacy Principles etc

1.2     An APP entity must take such steps as are reasonable in the circumstances to implement practices, procedures and systems relating to the entity’s functions or activities that:

(a)     will ensure that the entity complies with the Australian Privacy Principles and a registered APP code (if any) that binds the entity; and

(b)     will enable the entity to deal with inquiries or complaints from individuals about the entity’s compliance with the Australian Privacy Principles or such a code.

…

6    Australian Privacy Principle 6 — use or disclosure of personal information

6.1    If an APP entity holds personal information about an individual that was collected for a particular purpose (the primary purpose), the entity must not use or disclose the information for another purpose (the secondary purpose) unless:

(a)     the individual has consented to the use or disclosure of the information; or

(b)     subclause 6.2 or 6.3 applies in relation to the use or disclosure of the information.

6.2    This subclause applies in relation to the use or disclosure of personal information about an individual if:

(a)     the individual would reasonably expect the APP entity to use or disclose the information for the secondary purpose and the secondary purpose is:

(i)     if the information is sensitive information — directly related to the primary purpose; or

(ii)     if the information is not sensitive information — related to the primary purpose; or

(b)     the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order; or

(c)     a permitted general situation exists in relation to the use or disclosure of the information by the APP entity; or

(d)     the APP entity is an organisation and a permitted health situation exists in relation to the use or disclosure of the information by the entity; or

(e)     the APP entity reasonably believes that the use or disclosure of the information is reasonably necessary for one or more enforcement related activities conducted by, or on behalf of, an enforcement body.

…

11    Australian Privacy Principle 11 — security of personal information

11.1     If an APP entity holds personal information, the entity must take such steps as are reasonable in the circumstances to protect the information:

(a)     from misuse, interference and loss; and

(b)     from unauthorised access, modification or disclosure.

11.2    If:

(a)     an APP entity holds personal information about an individual; and

(b)     the entity no longer needs the information for any purpose for which the information may be used or disclosed by the entity under this Schedule; and

(c)     the information is not contained in a Commonwealth record; and

(d)     the entity is not required by or under an Australian law, or a court/tribunal order, to retain the information;

the entity must take such steps as are reasonable in the circumstances to destroy the information or to ensure that the information is de‑identified.

39    Section 29 provides:

The Commissioner must have due regard to the objects of this Act in performing the Commissioner's functions, and exercising the Commissioner's powers, conferred by this Act.

40    Sections 36 and 38 provide:

36    Complaints

(1)    An individual may complain to the Commissioner about an act or practice that may be an interference with the privacy of the individual.

(2)     In the case of an act or practice that may be an interference with the privacy of 2 or more individuals, any one of those individuals may make a complaint under subsection (1) on behalf of all of the individuals.

(2A)     In the case of a representative complaint, this section has effect subject to section 38.

(3)     A complaint shall be in writing.

…

(5)     The complaint shall specify the respondent to the complaint.

…

(7)     In the case of a complaint about an act or practice of an organisation, the organisation is the respondent.

…

…

38    Conditions for making a representative complaint

(1)     A representative complaint may be lodged under section 36 only if:

(a)     the class members have complaints against the same person or entity; and

(b)     all the complaints are in respect of, or arise out of, the same, similar or related circumstances; and

(c)     all the complaints give rise to a substantial common issue of law or fact.

(2)     A representative complaint made under section 36 must:

(a)     describe or otherwise identify the class members; and

(b)     specify the nature of the complaints made on behalf of the class members; and

(c)     specify the nature of the relief sought; and

(d)     specify the questions of law or fact that are common to the complaints of the class members.

In describing or otherwise identifying the class members, it is not necessary to name them or specify how many there are.

(3)     A representative complaint may be lodged without the consent of class members.

41    Section 38A provides:

(1)     The Commissioner may, on application by the respondent or on his or her own initiative, determine that a complaint should no longer continue as a representative complaint.

(2)     The Commissioner may only make such a determination if the Commissioner is satisfied that it is in the interests of justice to do so for any of the following reasons:

(a)     the costs that would be incurred if the complaint were to continue as a representative complaint are likely to exceed the costs that would be incurred if each class member lodged a separate complaint;

(b)     the representative complaint will not provide an efficient and effective means of dealing with the complaints of the class members;

(c)     the complaint was not brought in good faith as a representative complaint;

(d)     it is otherwise inappropriate that the complaints be pursued by means of a representative complaint.

(3)     If the Commissioner makes such a determination:

(a)     the complaint may be continued as a complaint by the complainant on his or her own behalf against the respondent; and

(b)     on the application of a person who was a class member for the purposes of the former representative complaint, the Commissioner may join that person as a complainant to the complaint as continued under paragraph (a).

42    As I have indicated earlier in the chronology, the AIC has rejected Medibank’s s 38A application concerning the OAIC representative complaint. And that decision has not been challenged by Medibank.

43    Section 40 provides:

(1)     Subject to subsection (1A), the Commissioner shall investigate an act or practice if:

(a)     the act or practice may be an interference with the privacy of an individual; and

(b)     a complaint about the act or practice has been made under section 36.

…

(2)     The Commissioner may, on the Commissioner's own initiative, investigate an act or practice if:

(a)     the act or practice may be an interference with the privacy of an individual or a breach of Australian Privacy Principle 1; and

(b)     the Commissioner thinks it is desirable that the act or practice be investigated.

(3)     This section has effect subject to section 41.

44    It is not unimportant to note the mandatory nature of s 40 concerning investigation of the OAIC representative complaint. But s 40 is only permissively empowering concerning the AIC own initiative investigation. Interestingly, Medibank wants to restrain the former but not the latter.

45    Section 41 provides:

(1)     The Commissioner may decide not to investigate, or not to investigate further, an act or practice about which a complaint has been made under section 36 if the Commissioner is satisfied that:

(a)     the act or practice is not an interference with the privacy of an individual; or [There is no (b)]

(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.

…

46    As I have also indicated in the earlier chronology, the AIC has also rejected Medibank’s application seeking to invoke ss 41(1)(da), (e) and (f). There has been no formal judicial review of that decision, although by a side-wind Medibank is seeking to restrain the investigation of the OAIC representative complaint.

47    Section 43 provides:

(1)     Before commencing an investigation of a matter to which a complaint relates, the Commissioner shall inform the respondent that the matter is to be investigated.

(1AA) Before commencing an investigation of an act or practice of a person or entity under subsection 40(2), the Commissioner must inform the person or entity that the act or practice is to be investigated.

…

(2)     An investigation under this Division shall be conducted in such manner as the Commissioner thinks fit.

(3)     The Commissioner may, for the purposes of an investigation, obtain information from such persons, and make such inquiries, as he or she thinks fit.

(4)     The Commissioner may make a determination under section 52 in relation to an investigation under this Division without holding a hearing, if: …

…

48    Section 44 provides:

(1)     If the Commissioner has reason to believe that a person has information or a document relevant to an investigation under this Division, the Commissioner may give to the person a written notice requiring the person:

(a)     to give the information to the Commissioner in writing signed by the person or, in the case of a body corporate, by an officer of the body corporate; or

(b)     to produce the document to the Commissioner.

…

(3)    If the Commissioner has reason to believe that a person has information relevant to an investigation under this Division, the Commissioner may give to the person a written notice requiring the person to attend before the Commissioner at a time and place specified in the notice to answer questions relevant to the investigation.

…

49    As I have indicated in the chronology, the AIC has extensively exercised her statutory powers in this regard.

50    Section 52 provides:

(1)     After investigating a complaint, the Commissioner may:

(a)      make a determination dismissing the complaint; or

(b)     find the complaint substantiated and make a determination that includes one or more of the following:

(i) a declaration:

(A)     where the principal executive of an agency is the respondent—that the agency has engaged in conduct constituting an interference with the privacy of an individual and must not repeat or continue such conduct; or

(B)     in any other case—that the respondent has engaged in conduct constituting an interference with the privacy of an individual and must not repeat or continue such conduct;

(ia)     a declaration that the respondent must take specified steps within a specified period to ensure that such conduct is not repeated or continued;

(ii)     a declaration that the respondent must perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant;

(iia)     a declaration that the respondent must prepare and publish, or otherwise communicate, a statement about the conduct (see section 52A);

(iii)     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;

(iv)     a declaration that it would be inappropriate for any further action to be taken in the matter.

(1A)     After investigating an act or practice of a person or entity under subsection 40(2), the Commissioner may make a determination that includes one or more of the following:

(a)     a declaration that:

(i)     the act or practice is an interference with the privacy of one or more individuals; and

(ii)     the person or entity must not repeat or continue the act or practice;

(b)     a declaration that the person or entity must take specified steps within a specified period to ensure that the act or practice is not repeated or continued;

(ba)     a declaration that the respondent must prepare and publish, or otherwise communicate, a statement about the conduct (see section 52A);

(c)     a declaration that the person or entity must perform any reasonable act or course of conduct to redress any loss or damage suffered by one or more of those individuals;

(d)      a declaration that one or more of those individuals are entitled to a specified amount by way of compensation for any loss or damage suffered by reason of the act or practice;

(e)     a declaration that it would be inappropriate for any further action to be taken in the matter.

…

(1AB)     The loss or damage referred to in paragraph (1)(b) or subsection (1A) includes:

(a)     injury to the feelings of the complainant or individual; and

(b)     humiliation suffered by the complainant or individual.

(1B)     A determination of the Commissioner under subsection (1) or (1A) is not binding or conclusive between any of the parties to the determination.

(2)     The Commissioner shall, in a determination, state any findings of fact upon which the determination is based.

(3)     In a determination under paragraph (1)(a) or (b) (other than a determination made on a representative complaint), the Commissioner may include a declaration that the complainant is entitled to a specified amount to reimburse the complainant for expenses reasonably incurred by the complainant in connection with the making of the complaint and the investigation of the complaint.

(3A)     A determination under paragraph (1)(b) or subsection (1A) may include any order that the Commissioner considers necessary or appropriate.

(4)     A determination by the Commissioner under subparagraph (1)(b)(iii) on a representative complaint:

(a)     may provide for payment of specified amounts or of amounts worked out in a manner specified by the Commissioner; and

(b)     if the Commissioner provides for payment in accordance with paragraph (a), must make provision for the payment of the money to the complainants concerned.

(5)     If the Commissioner makes a determination under subparagraph (1)(b)(iii) on a representative complaint, the Commissioner may give such directions (if any) as he or she thinks just in relation to:

(a)     the manner in which a class member is to establish his or her entitlement to the payment of an amount under the determination; and

(b)      the manner for determining any dispute regarding the entitlement of a class member to the payment.

(5A)     The Commissioner may publish a determination made under this section on the Commissioner's website.

(6)     In this section:

complainant, in relation to a representative complaint, means the class members.

51    Section 52A provides:

(1)     If a determination under section 52 includes a declaration mentioned in subparagraph 52(1)(b)(iia) or paragraph 52(1A)(ba), the respondent must, within 14 days after receiving the determination (or such longer period as the Commissioner allows):

(a)     prepare a statement, in consultation with the Commissioner, setting out:

(i)     the identity and contact details of the respondent or, if the respondent is the principal executive of an agency, the agency; and

(ii)     a description of the conduct engaged in by the respondent that constitutes the interference with the privacy of an individual; and

(iii)     the steps (if any) undertaken, or to be undertaken, by the respondent to ensure the conduct is not repeated or continued; and

(iv)     any other information required by the declaration to be included in the statement; and

(b)     if required by the declaration—give a copy of the statement to the complainant or, if the complaint is a representative complaint, to each class member identified as affected by the determination, in the manner specified by the declaration; and

(c)     if required by the declaration—publish, or otherwise communicate, the statement in the manner specified by the declaration; and

(d)     give the Commissioner, within 14 days after the end of the period specified in the declaration, evidence that the actions required by paragraphs (b) and (c) were taken in accordance with this section and the declaration.

(2)     The matters specified by the Commissioner for the purposes of subsection (1) must be reasonable and appropriate.

52    Division 3 of Part V deals with the enforcement of determinations but not as it involves agencies. As I have said, Medibank is not an “agency” (see the s 6(1) definition). Section 54 provides:

(1)     This Division applies to a determination made under section 52 after the commencement of this Division, except where the determination applies in relation to an agency or the principal executive of an agency.

(2)     In this section:

agency does not include an eligible hearing service provider.

53    Section 55 provides:

If the determination applies in relation to an organisation or small business operator, the organisation or operator:

(a)     must not repeat or continue conduct that is covered by a declaration included in the determination under sub-subparagraph 52(1)(b)(i)(B) or paragraph 52(1A)(a); and

(b)     must take the steps that are specified in a declaration included in the determination under subparagraph 52(1)(b)(ia) or paragraph 52(1A)(b) within the specified period; and

(c)     must perform the act or course of conduct that is covered by a declaration included in the determination under subparagraph 52(1)(b)(ii) or paragraph 52(1A)(c); and

(d)     must prepare and publish, or otherwise communicate, a statement in accordance with a declaration included in the determination under subparagraph 52(1)(b)(iia) or paragraph 52(1A)(ba) and section 52A.

54    Section 55A provides:

(1)     The following persons may commence proceedings in the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order to enforce a determination:

(a)     if the determination was made under subsection 52(1)—the complainant;

(b)     the Commissioner.

(2)     If the court is satisfied that the person or entity in relation to which the determination applies has engaged in conduct that constitutes an interference with the privacy of an individual, the court may make such orders (including a declaration of right) as it thinks fit.

(3)     The court may, if it thinks fit, grant an interim injunction pending the determination of the proceedings.

(4)     The court is not to require a person, as a condition of granting an interim injunction, to give an undertaking as to damages.

(5)     The court is to deal by way of a hearing de novo with the question whether the person or entity in relation to which the determination applies has engaged in conduct that constitutes an interference with the privacy of an individual.

(6)     Despite subsection (5), the court may receive any of the following as evidence in proceedings about a determination made by the Commissioner under section 52:

(a)     a copy of the Commissioner’s written reasons for the determination;

(b)     a copy of any document that was before the Commissioner;

(c)     a copy of a record (including any tape recording) of any hearing before the Commissioner (including any oral submissions made).

(7A)     In conducting a hearing and making an order under this section, the court is to have due regard to the objects of this Act,

(8)     In this section:

complainant, in relation to a representative complaint, means any of the class members.

55    Section 55B provides:

(1)     The Commissioner may issue a written certificate setting out the findings of fact upon which the Commissioner based his or her determination that:

(a)     a specified APP entity had breached an Australian Privacy Principle; or

(b)     a specified APP entity had breached a registered APP code that binds the entity. [There is no subsection (2)]

(3)     In any proceedings under section 55A, a certificate under subsection (1) of this section is prima facie evidence of the facts found by the Commissioner and set out in the certificate. However, the certificate is not prima facie evidence of a finding that:

(a)     a specified APP entity had breached an Australian Privacy Principle; or

(b)     a specified APP entity had breached a registered APP code that binds the entity.

(4)     A document purporting to be a certificate under subsection (1) must, unless the contrary is established, be taken to be a certificate and to have been properly given.

56    Division 4 of Part V deals with the enforcement of determinations involving Commonwealth agencies. I do not need to elaborate further concerning this Division or contrast it with Division 3.

57    Section 80E provides:

(1)     The Commissioner must keep a register of determinations made under Division 1 or 2.

(2)     The Commissioner may decide the form of the register and how it is to be kept.

(3)     The Commissioner must make the register available to the public in the way that the Commissioner determines.

…

58    Let me say something about Part VIB dealing with enforcement. Section 80U contains civil penalty provisions. Section 80UB deals with infringement notices. Section 80V deals with enforceable undertakings. Section 80W deals with injunctions.

59    Section 80W provides:

Enforceable provisions

(1)     The provisions of this Act are enforceable under Part 7 of the Regulatory Powers Act.

Authorised person

(2)     For the purposes of Part 7 of the Regulatory Powers Act, each of the following persons is an authorised person in relation to the provisions mentioned in subsection (1):

(a)     the Commissioner;

(b)     any other person.

Relevant court

(3)     For the purposes of Part 7 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions mentioned in subsection (1):

(a)     the Federal Court;

(b)     the Federal Circuit and Family Court of Australia (Division 2).

…

60    I will say something later about the other Commonwealth legislation referred to.

61    Finally, s 96 provides:

(1)    An application may be made to the Administrative Appeals Tribunal for review of the following decisions of the Commissioner:

…

(c)     a decision under subsection 52(1) or (1A) to make a determination;

…

…

62    For completeness, I should also note that there is nothing in the Australian Information Commissioner Act 2010 (Cth) that bears upon the issues that I am addressing.

Relevant principles

63    The Court has power to restrain conduct where that conduct would interfere with the administration of justice. There are various sources for such a power including the broad statutory power to make orders that the Court thinks appropriate under s 23 of the FCA Act. I do not need to linger on the question of the existence of power save to say that such powers are to be given a liberal ambit and should not be subject to any limitation which is not required by their language or the purpose for which they were conferred.

64    If interference with the administration of justice is the perceived concern, the applicant for an injunction must demonstrate that there is a real risk, as opposed to a remote possibility, that justice will be interfered with, and that the tendency to so interfere is a practical reality rather than a theoretical tendency; see Hammond v The Commonwealth of Australia (1982) 152 CLR 188 at 196 per Gibbs CJ; Australian Securities and Investments Commission v AGM Markets Pty Ltd (No 2) [2018] FCA 1470 at [53].

65    For there to be a contempt, there must be a real risk of interference with the administration of justice. It is necessary to establish “a real and definite tendency to prejudice or embarrass pending proceedings” or “a substantial risk of serious prejudice” (The State of Victoria v The Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 56 per Gibbs CJ, 95 per Mason J, 129 per Wilson J). The interference must be established with specificity.

66    Now a court’s power to prevent interference with the administration of justice authorises a court to restrain curial proceedings from continuing where there are parallel curial proceedings on foot which deal with the same issues; see CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345 at 391 and 392 per the majority. That principle extends not only to parallel proceedings in Australian courts, but also to proceedings as between Australian and foreign courts dealing with the same issues.

67    There is the potential for the judicial system to be brought into disrepute by the possibility of conflicting findings, which creates a risk of undermining confidence in the rule of law.

68    In AGM (No 2) I summarised CSR in the following terms at [29]:

In CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, the majority recognised two somewhat distinct bases for granting an anti-suit injunction (at 391 to 394). The first basis for granting such relief is the inherent or implied power to protect the integrity of the court’s processes once set in motion. So, the court may grant an injunction to restrain a person from commencing or continuing parallel proceedings in another forum if those proceedings interfere with, or have a tendency to interfere with, the proceedings pending in the court. Moreover, such an inherent or implied power to grant anti-suit injunctions is not restricted to defined and closed categories, save for the boundary condition that it may only be exercised when the administration of justice so demands and when necessary for the protection of the court’s own proceedings or processes. The second basis invokes equitable jurisdiction to restrain conduct where the bringing of another proceeding involves the unconscientious exercise of legal rights. So, one well established category of case in which an injunction may be granted in the exercise of that jurisdiction is that involving the commencement of parallel proceedings which are vexatious or oppressive. Relatedly, if a party has made an election as to the forum in which it will proceed, equity may intervene to prevent it pursuing proceedings in relation to the same subject matter in another. Generally, it has been said that the limits of the Court’s equitable jurisdiction are determined by the dictates of equity and good conscience.

69    The same power exists where the possibility of inconsistent findings on overlapping facts arises from parallel curial and arbitral proceedings; see Recyclers of Australia Pty Ltd v Hettinga Equipment Inc (2000) 100 FCR 420 at [66] per Merkel J and Kraft Foods Group Brands LLC v Bega Cheese Limited (2018) 358 ALR 1 at [108] per O’Callaghan J.

70    Of course in the present context I am not concerned with the second basis discussed in CSR concerning the unconscientious exercise of legal rights or the question of vexation or oppression caused to Medibank. Its case before me has concerned a permutation of the first basis albeit that I am more concerned with the BLF, Hammond and analogous line of authority.

71    Now of course every case turns on its own facts and context, but neither Hammond nor BLF provide much comfort to Medibank.

72    In Hammond an injunction had been sought restraining the Royal Commissioner from further inquiring into or reporting on matters touching and concerning a criminal charge laid against Hammond. An injunction was also sought restraining the Commissioner from compulsorily examining Hammond about that charge. The latter injunction was granted but not the former.

73    As to the refusal of the former injunction, Gibbs CJ said (at 199):

However, in my opinion, no case has been made out for an injunction restraining the defendants from inquiring into or reporting on matters touching and concerning the charge against the plaintiff. In the circumstances, where no further inquiry is contemplated, other than by examination of the plaintiff himself, it is the reporting that is sought to be restrained. There is no suggestion that the Commissioner will report directly on the question whether the plaintiff is guilty of the offence charged. It is a mere speculative possibility that anything in his report will affect the plaintiff's trial. Since it has not been established that there is a real risk that the report will interfere with the administration of justice, the application for order (b) must fail. It would very seriously impede the conduct of executive inquiries into matters of public importance if no report could be made on a matter which touched and concerned a pending criminal charge. If a report could not be made in such a case, it is difficult to see any reason why the position would be different if the charge was merely contemplated and not pending. However, as I have said, the theoretical possibility that the trial of an accused person may be prejudiced cannot justify the courts in stultifying proper inquiries into matters of public interest simply because they relate in some way to the subject of a charge. In assessing the likelihood of prejudice, the court should be entitled to assume that the executive will exercise a sound discretion in making a decision whether any part of the report that might be prejudicial will be made public while criminal proceedings are pending.

74    Now Deane J in dissent on this aspect would have gone further. He would have restrained the delivery of the report. But even his observations are explained by the context and do not assist.

75    He said (at 206):

The mere fact that proceedings are pending in a court of law does not mean that any parallel or related administrative inquiry, conducted for proper administrative purposes, constitutes an interference with the due administration of justice in that court. For example, the existence of civil proceedings, in respect of certain alleged actions, will not ordinarily preclude proper administrative inquiries as to whether penal proceedings should be instituted in respect of those alleged actions. Thus, neither police inquiries nor committal proceedings constitute, in themselves, an improper interference with the proceedings of a court hearing a civil claim based on the subject matter of such inquiries.

On the other hand, it is fundamental to the administration of criminal justice that a person who is the subject of pending criminal proceedings in a court of law should not be subjected to having his part in the matters involved in those criminal proceedings made the subject of a parallel inquisitorial inquiry by an administrative tribunal with powers to compel the giving of evidence and the production of documents which largely correspond (and, to some extent, exceed) the powers of the criminal court. Such an extra-curial inquisitorial investigation of the involvement of a person who has been committed for trial in the matters which form the basis of the criminal proceedings against him constitutes, in my view, an improper interference with the due administration of justice in the proceedings against him in the criminal court and contempt of court. …

76    He then said (at 208 and 209):

… It seems to me that ordinary considerations of justice and fairness require that the Commissioner be restrained from reporting to the Governments his findings or views as to the plaintiff's involvement in the relevant events, until the criminal proceedings against the plaintiff have been concluded. To hold otherwise would be to hold that, while the conduct of the inquiry in so far as it related to that involvement constituted an improper interference with the due administration of justice, the results of that inquiry should be made available, against the plaintiff's wishes, to the Commonwealth and Victorian Governments in circumstances where it has not been suggested that there is any effective way of ensuring that any prejudicial findings and views are not made public before the pending criminal proceedings have been concluded.

77    But these observations do not really assist Medibank. Deane J made it clear that the mere overlap did not carry the day. Moreover, his observations were explained by the criminal context and potentially the jury context. Further, the question of potential inconsistency in any findings between the two processes was not what was of concern.

78    The BLF decision also does not greatly assist Medibank either. It did not turn on the question of potential inconsistency in any findings. The suggestion was made that the proceedings before the Royal Commission would interfere with the administration of justice in proceedings before the Federal Court seeking to de-register the BLF. There was “some common ground between the matters the subject of inquiry and those relating to the proceedings in the Federal Court” (Gibbs CJ at 55). But the Royal Commission’s terms of reference did not involve a report into the very matters in issue in the Federal Court proceedings. Rather than any potential inconsistency in any findings, other matters were said to be of concern in terms of a risk of interference with the administration of justice.

79    Gibbs CJ said (at 57):

The learned judges of the Federal Court took the view that the proceedings of the Commission in public would amount to a contempt for a number of reasons — that they would be calculated to prejudice or bias the public mind, that they would be liable to have an undesirable effect on prospective witnesses, and that they might, albeit subconsciously, bring pressure on the judges who eventually dealt with the proceedings in the Federal Court. There is no direct evidence to support any of these conclusions, which rest on inferences drawn by the court from the nature of the proceedings and from the sort of publicity that the inquiry has already attracted.

80    He then said (at 58 and 59):

… It is the everyday task of a judge to put out of his mind evidence of the most prejudicial kind that he has heard and rejected as inadmissible. It is not uncommon for a judge to try a case which was the subject of emotional public discussion before the proceedings commenced. I find it quite impossible to believe that any judge of the Federal Court who may ultimately deal with the proceedings in that court will be influenced in his decision by anything he may have read or heard of the evidence given or statements made at the inquiry.

If there is a real risk that the conduct of the inquiry in public will deter witnesses from coming forward to give evidence in the Federal Court, or will influence the evidence that the witnesses will give, there will be reasonable ground to apprehend that the conduct of the inquiry will amount to a contempt of court. Deane J. did not consider that witnesses would be deterred from giving evidence; on the contrary he said that he thought that publicity during the course of the Commission's proceedings would be likely to lead to new witnesses coming forward and new re1evant material being disclosed. However, he considered that a widespread public awareness of allegations that illicit benefits were sought or obtained by officers of the Federation as the price of industrial harmony would be likely to result in witnesses before the Federal Court being subjected to pressures unconnected with the judicial proceedings, and that the continued public proceedings were liable to have an undesirable effect on prospective witnesses in those proceedings. The nature of those pressures, or of the undesirable effect on the witnesses, is not explained. With all respect, I consider that it is no more than speculation to say that the continuance of the inquiry in public will influence witnesses in the Federal Court. It is important to remember that the inquiry and the proceedings in the Federal Court are directed to very different issues; for that reason, the inquiry cannot pre-judge the merits of the proceedings in the Federal Court and it cannot be made the vehicle for criticism of the Federation or its officers in relation to the alleged conduct that forms the ground of the application in the Federal Court. If the allegations made at the inquiry are [true], and are relevant to the issues arising in the Federal Court, an honest witness, called to give evidence in that court, and aware of the facts, will give evidence in support of those allegations; if they are false, an honest witness, if aware of the falsity, will say so. …

81    Further, he said (at 60):

… The resulting principle requires that the court be satisfied that there is a real risk that the material alleged to be a contempt will interfere with the administration of justice in pending proceedings before it can hold that a contempt has been committed or is threatened. The discretion of the court lies in dealing with a contempt, not in deciding whether a contempt has been committed. The jurisdiction to punish as a contempt something otherwise lawful is exceptional and drastic and must be exercised with great care. The court must, if possible, be even more cautious in granting an injunction to restrain an apprehended contempt. In my opinion it has not been shown that there is a real risk that the conduct of the inquiry by Mr. Winneke in public would interfere in any way with the administration of justice in the proceedings in the Federal Court. …

82    Further, Aickin J said (at 119):

… It is at the present stage impossible for this Court to predict either how long the Royal Commissioner will continue to sit and hear evidence and how long it will take for the parties to the deregistration proceedings to be ready for trial, or to predict which of those two events will first occur.

In these circumstances the risk of contempt of the Federal Court is in my opinion both slight and remote in time and by no means sufficient to warrant any restriction upon the conduct of the Royal Commissioner in accordance with his two Commissions. …

83    Let me deal with another topic that excited the parties’ attention before me.

84    There is a difference between an injunction to restrain the performance of a statutory duty or the exercise of a statutory power, and an injunction to restrain the commencement or carrying on curial or arbitral proceedings.

85    A court cannot by final injunction prevent the lawful exercise of a statutory power. As was observed in Reid v Howard (1995) 184 CLR 1 at 16 per Toohey, Gaudron, McHugh and Gummow JJ, when discussing the inherent power of the NSW Supreme Court and s 23 of the Supreme Court Act 1970 (NSW):

… Neither the inherent power nor the completely general terms of s 23 can authorise the making of orders excusing compliance with obligations or preventing the exercise of authority deriving from statute. …

86    Likewise neither this Court’s implied power nor the power under s 23 of the FCA Act confers authority for granting an injunction where there is otherwise no case for injunctive relief either under the general law or by statute.

87    Now to restrain by final injunction conduct that is done in performance of a statutory duty or the exercise of a statutory power, it is necessary to establish that the conduct is not authorised by the statute, which question turns on the proper construction of the statutory duty or power.

88    Where the statutory duty or power potentially interacts with pending court proceedings, the ordinary limitation as a matter of statutory construction is found in the law of contempt. Subject to any express statement or necessary implication to the contrary in the relevant statute, a generally expressed statutory power or duty will not be construed as authorising conduct that would amount to a contempt of court.

89    In Lee v New South Wales Crime Commission (2013) 251 CLR 196, it was said by Gageler and Keane JJ (at [319] and [320]):

Separate, but overlapping with the right of a person charged with a criminal offence to a fair trial and available to protect that right, is the power that inheres in a court to restrain as a contempt conduct giving rise to a real risk of interference with the administration of justice. There is a corresponding principle, itself an application of same general principle of statutory construction, that “[a] statute expressed in general terms should not be construed so as to authorise the doing of any act which amounts to a contempt of court”.

It is important to recognise, however, that a contempt of court of the relevant kind occurs “only when there is an actual interference with the administration of justice” or “a real risk, as opposed to a remote possibility” of such an interference and that the “essence” of contempt of that kind is a “real and definite tendency to prejudice or embarrass pending proceedings” involving “as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case”. The finding of such a real risk or definite tendency necessarily requires more than abstract assertion: it requires the finding at least of some logical connection between the action that is impugned and some feared impediment to the conduct of the proceedings that are pending, which impediment can properly be characterised as an interference with the administration of justice or, more specifically in a particular case, as unfairness to an accused.

(citations omitted)

90    In the context of the particular legislative scheme and statutory power that they were dealing with, Gageler and Keane JJ went on to say (at [335] and [340]):

The power conferred by s 31D(1)(a) does not authorise the making or implementation of an examination order where to do so would give rise to a real risk of interference with the administration of justice including by interfering with the right of the person to be examined (or any other person) to a fair trial. For reasons already given, however, the making of such an order does not give rise to a real risk of interference with the administration of justice by reason only that the subject matter of the examination will overlap with the subject matter of criminal proceedings that have commenced but that have not been completed.

…

The additional factor alone gives rise to no more than a possibility that the implementation of the examination order might give rise to an interference with the administration of justice. That is the significance of the ability of the Supreme Court, or officer of the Supreme Court before whom the examination is conducted, to control the course of questioning and to make suppression or non-publication orders limiting the timing and scope of any use or dissemination by the Commission of answers given or documents produced. When it is appreciated that the conduct of the examination remains at all times subject to the supervision and protection of the Supreme Court, the possibility that the implementation of the examination order might give rise to an interference with the administration of justice does not rise to the level of a real risk merely because the subject matter of the examination will overlap with the subject matter of pending criminal proceedings against the person to be examined.

91    In the case of an investigation under s 40(1) or a determination under s 52, there is nothing in the Act to support a limitation on the AIC’s duty to investigate which is any broader than the established principle that the AIC is not authorised to commit a contempt of court.

92    Section 40(1) obliges the AIC to investigate a complaint including a representative complaint about an act or practice that may be an interference with the privacy of an individual. Section 40(2) empowers the AIC to conduct an own initiative investigation.

93    To construe s 40, it is necessary to have regard to s 41(1). Section 41(1) provides that the AIC may decide not to investigate a complaint if the AIC is satisfied of any of the nine circumstances in s 41(1)(a) to s 41(1)(f). These include three classes of circumstances.

94    First, procedural circumstances such as that the complaint was made more than 12 months after the complainant became aware of the act or practice (s 41(1)(c)) or the complainant has not responded to a request for information from the AIC (s 41(1)(db)).

95    Second, there is a broad discretion of the AIC not to investigate where the AIC is satisfied that in all the circumstances an investigation is not warranted (s 41(1)(da)).

96    Third, there are circumstances in which there is another dispute resolution process on foot or other suitable legislative regimes for dealing with the relevant act or practice or appropriate remedies (ss 41(1)(dc) to 41(1)(f)).

97    Now I should note that of the nine matters, none deals directly with the overlap between an investigation under the Act and court proceedings, although s 41(1)(e) is tantalisingly close.

98    In my view it would be inconsistent with the highly qualified nature of the s 40(1) duty, by reason of s 41(1), to construe s 40(1) as not also being subject to an implied qualification on the AIC’s duty to investigate a complaint where that investigation gives rise to a real risk of interference with the administration of justice. Likewise, the discretionary power in s 40(2) should be construed as subject to the same implied qualification.

99    Further, if the Parliament had intended to depart in s 40(1) or s 40(2) from the general system of law, which includes the principle that the Court may issue an injunction to minimise or reduce the possibility or prospect of different courts reaching different decisions in relation to the same dispute to avoid undermining confidence in the rule of law, it would have so stated.

100    Any legislative intention to depart from the general system of law must be expressed with “irresistible clearness”. So, for example, in X7 v Australian Crime Commission (2013) 248 CLR 92, it was said by Hayne and Bell JJ at [86] and [87]:

The question of statutory construction which arises in this case requires the consideration and application of a well-established rule. That rule, often since applied, was stated by O’Connor J in Potter v Minahan by quoting Maxwell’s On the Interpretation of Statutes:

“It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.”

(Emphasis added.)

This rule of construction has found most frequent application in this Court with respect to legislation which may affect rights. In that context, it has come to be referred to as a “principle of legality”. But the rule is not confined to legislation which may affect rights. It is engaged in the present case because of the effects which the asserted construction of the ACC Act provisions authorising compulsory examination would have not only on the rights, privileges and immunities of a person charged with an indictable Commonwealth offence, but also on a defining characteristic of the criminal justice system. In particular, it would alter to a marked degree the accusatorial nature of the criminal justice system. To hold that the general words of the relevant provisions of the ACC Act authorise compulsory examination of a person charged with an indictable Commonwealth offence about the subject matter of the offence charged would thus depart in a marked degree from the “general system of law”.

(citations omitted)

101    There is no “irresistible clearness” which rules out the implied qualification that I have discussed. And if there were, it may be constitutionally infirm in any event, although fortunately I do not need to flirt further with such a hypothetical.

102    There is one other general matter. There are aspects of the AIC’s task and processes that may be said to mimic the exercise of judicial power, such as considering, ruling upon and making a determination concerning a controversy as between the OAIC representative complainant and Medibank involving rights and duties based upon existing facts and the law under the Act; see by analogy the discussion in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 269 per Deane, Dawson, Gaudron and McHugh JJ. But the infringing Chapter III vice through the registration device in Brandy is not present in the Act given, inter-alia, s 55A. So, the AIC’s function, powers and processes cannot be aligned with judicial power.

The application of the principles to the present context

103    Medibank contends that there is a real risk of inconsistent factual findings and legal conclusions as between the OAIC proceedings (the AIC own initiative investigation and the OAIC representative complaint) and the Federal Court representative proceeding, and also corresponding inconsistencies between any enforcement proceedings in respect of AIC determinations in the Federal Court and the Federal Court representative proceeding. It is this risk and the consequent perceived undermining of confidence in the rule of law that Medibank says justifies the injunctions sought.

104    Medibank points out, correctly in my view, that the OAIC proceedings and the Federal Court representative proceeding require the decision-maker to determine the foundational legal question of whether, in the circumstances of the data breach, Medibank failed to comply with the relevant APPs, and whether there should be compensation for loss and damage and/or injunctive or analogous relief as a consequence.

105    First, the notice of investigation issued by the AIC in respect of the AIC own initiative investigation stated that the AIC investigation will focus on the acts or practices of Medibank in relation to the data breach, and whether they constitute an interference with privacy or a breach of the APPs, and whether Medibank complied with APPs 1.2, 11.1 and 11.2. The notice also stated that that investigation may result in a determination under s 52(1A).

106    Second, the OAIC representative complaint stated that the complaint was made on behalf of any individual whose personal information was exposed as a consequence of the data breach (the class members). The complaint alleged that given the circumstances of the data breach, Medibank breached APP 11 and interfered with the privacy of all class members. The complaint sought compensation for loss and damage arising from Medibank’s interference with the privacy of class members. And the complaint raised questions of law and fact common to all class members as to whether the data breach constitutes a breach of APP 11, and whether class members were entitled to compensation by reason of Medibank’s interference with privacy.

107    Third, the Federal Court representative proceeding has been brought on behalf of the same class members as the OAIC representative complaint. The current version of the consolidated statement of claim in the Federal Court representative proceeding alleges that Medibank represented that it would comply with, and had and would maintain systems for ensuring compliance with, various APPs, but did not have reasonable grounds for making those representations and therefore breached ss 18 and 29 of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)). It alleges that in the circumstances of the data breach, Medibank breached APPs 1.2, 6.1, 6.2, 11.1 and 11.2 and so breached s 15 of the Act. And it seeks loss and damage arising from the alleged breaches.

108    Now as Medibank also correctly points out, an important distinction between the OAIC proceedings and the Federal Court representative proceeding is that the former is inquisitorial whilst the latter is adversarial.

109    The OAIC proceedings involve the AIC conducting two investigations involving the AIC own initiative investigation and the OAIC representative complaint. In aid of such investigations, the AIC has extensive compulsory powers under the Act to secure evidence. She can compel persons to provide information and documents, examine witnesses and direct persons to attend compulsory conferences. And in conducting her investigations, reviewing that evidence and making determinations, the AIC is not bound by the rules of evidence or court associated formalities. And after investigating, the AIC may relevantly make a determination under s 52 that includes a declaration that the conduct investigated is an interference with the privacy of an individual, a declaration requiring Medibank to take certain steps and a declaration that persons affected are entitled to compensation for loss and damage.

110    Contrastingly, in the Federal Court representative proceeding the applicants bear the onus of proof, and the parties define the issues and lead the evidence bound by the rules of evidence. The matter proceeds in accordance with standard court procedures. At the conclusion of the trial the Court is required to make findings of fact and law, including in relation to whether Medibank breached various APPs and whether the applicants and class members suffered any loss.

111    Now given these differences as between the OAIC proceedings and the Federal Court representative proceeding, Medibank says that there is a real prospect that there will be different evidentiary foundations as between the different proceedings.

112    In such circumstances, Medibank says that there is a real prospect that the OAIC proceedings and the Federal Court representative proceeding will produce inconsistent findings and potentially different legal conclusions in respect of the same legal questions. It says that inconsistent findings may be made in relation to the facts going to the foundational question of breaches of the Act, and inconsistent legal conclusions may be drawn about the effect of those facts. Further, it is said that if both the AIC and the Court conclude that there were breaches of the Act, inconsistent conclusions may also be reached in relation to the appropriate compensation for any breaches of the Act.

113    Now Medibank accepts that the application of the relevant principles concerning potentially inconsistent findings in parallel proceedings concerning curial and administrative proceedings is a novel context. But Medibank contends that as in the case of parallel curial and arbitral proceedings, there is no reason in principle why the same considerations do not apply as between curial and administrative proceedings. Indeed, it is said that in circumstances where the OAIC proceedings will result in a public s 52 determination, which can be compared and contrasted with a private arbitral decision, the risk of the administration of justice being brought into disrepute by the possibility of conflicting findings and legal conclusions is all the greater.

114    Now it is convenient to note here that the AIC contends that Medibank’s innovative extension is not appropriate because a determination made by the AIC under s 52 is not binding. Contrastingly, the desirability of avoiding conflicting findings is a reflection of the binding nature of the conclusions of courts, arbitral panels, tribunals and the like. But I agree with Medibank that the AIC’s approach is too blinkered.

115    As Bell P explained in Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419 at [81], the “high desirability of minimising the possibility or prospect of different courts reaching different decisions (whether as to the facts or the law or both) in relation to the same dispute” is justified by the fact that that “consequence [is] apt to undermine confidence in the rule of law were it to materialise”. Now once it is appreciated that this is the rationale for the concern, the fact that the AIC determination is not binding does not render the extension of the principle necessarily inappropriate.

116    I should say now that I have no difficulty with Mr Young KC’s novel extrapolation of the relevant principles. Rather, the difficulty for him, which I will come to, is in their application.

117    Further, Medibank says that the circumstances of the present case are distinct from cases where there are, in respect of the same subject matter, court proceedings and a parallel administrative inquiry which does not result in the making of determinations, such as a royal commission. I agree.

118    Medibank draws a distinction between a royal commission, which makes recommendations but does not make determinations, and the AIC, who makes determinations of a kind that may have immediate legal consequences as set out in ss 52A and 55 that I will discuss later, and that would mimic the exercise of judicial power save for the fact that they are not enforceable, but which enforceability can be perfected by the Court under s 55A. Medibank says that this distinguishes the circumstances of this case from the circumstances in the BLF case. Again, I largely agree with Medibank on these aspects.

119    Whilst royal commissions conduct inquiries, the practice is for royal commissions to make recommendations rather than determinations. Moreover, at most a royal commissioner’s expression of opinion, stripped of the finery or trappings of his setting, is just that, namely, the opinion of a servant of the Crown. Such a servant has a purely inquisitorial capacity, gives no judgment, enters no conviction, imposes no sentence, makes no findings which can found any judgment of any description, has no parties properly described as such before him, and where no finding of his is determinative of any right or issue nor binding on any person no matter how grandiloquently it is expressed. I have paraphrased the modest and self-effacing observations of Townley J in Royal Commission into Certain Crown Leaseholds (No 2) [1956] St R Qd 239 at 249.

120    Contrastingly, the AIC has the power to make determinations including an award of compensation which, save for the fact that they are not of themselves binding or conclusive as s 52(1B) states, could be characterised as a determination which mimics a judicial form. Such determinations can then be enforced in this Court.

121    Moreover, Medibank says that there is a real risk of inconsistent findings and legal conclusions between differently constituted courts if the AIC or the representative complainant decides to seek to enforce any determination under s 55A.

122    Now I accept that notwithstanding that the Court is to deal with the application for enforcement as a hearing de novo as s 55A(5) provides, it is entitled under s 55A(6) to receive as evidence in the proceeding a copy of the AIC’s written reasons for the determination and any document or record that was before the AIC. And although there is no presumption in favour of the correctness of the AIC’s determination, the Court is entitled to give the AIC’s determination the weight of a determination made by a skilled and experienced person. Contrastingly, there is no basis for the Court to take the AIC determination into account in the Federal Court representative proceeding.

123    Now one answer to this is that because s 55A(6) is expressed in permissive terms, the Court can choose not to receive such material. But Medibank says that the manifest intention of the provision is that such material should be available to the Court if it decides that that material is relevant to the question to be determined by it. It says that it would be inconsistent with that legislative intent to expect the Court to perform the enforcement function without access to such material if the Court decided that it was relevant. I tend to agree with Medibank on this point.

124    So, Medibank says that in the event of an enforcement application, there is a real prospect that the Court would be put in the position of trying the same issue on different evidence, and a substantial risk of inconsistent findings and legal conclusions between differently constituted courts. In such a context, it is said that the principles about inconsistent findings and conclusions between parallel curial proceedings apply. I agree that, generally speaking, such principles may apply.

125    Further, Medibank says that it is no answer to propose that any enforcement proceedings could be allocated to the same judge as the Federal Court representative proceeding. This may give rise to the risk of a recusal application on the grounds of apprehended pre-judgment. It is said that the prospect of two proceedings in the same court concerning the same legal question generates numerous procedural problems which are not readily resolved. Medibank says that the better course in the present context is to grant the relief sought by Medibank. Now on these aspects I part company with Medibank and I will return to these considerations later.

126    Further, Medibank says that the s 55A application is unlikely to be brought within the Federal Court representative proceeding in any event. It is said that the likelihood is that the Federal Court representative proceeding will be substantially progressed if not determined or resolved by the time of any enforcement application. I disagree and will return to this.

127    Finally, Medibank also contends that the investigation under the OAIC representative complaint should be enjoined because where the AIC cannot make a determination under s 52, assuming that Medibank succeeds on that part of its application, there can be no proper statutory basis for the AIC to conduct such an investigation.

128    It is convenient at this point to address Medibank’s points in more detail.

Inconsistencies in findings

129    In my view the fact that the AIC’s opinion about matters of fact or law might be different from the Court’s findings and conclusions in respect of the same subject matter does not embarrass or prejudice the Federal Court representative proceeding in any way. Even though a power of inquiry and determination may be conferred on an administrative body which can encompass the formation and expression of an opinion about an existing legal right or obligation, the mere possibility of a difference of opinion between an administrative or executive body and a Court is insufficient to give rise to a contempt.

130    Further, the desirability of avoiding conflicting findings between two courts, or between a court and an arbitral tribunal, is a reflection of the binding nature of the conclusions of courts and arbitral tribunals.

131    But a determination under s 52 is expressly not binding or conclusive on anyone (s 52(1B)). A determination under s 52 is subject to merits review in the AAT (s 96(1)(c)). And the opinions expressed in any determination by the AIC about legal and factual issues are only her opinions.

132    Now s 52 does give rise to the possibility of future curial proceedings to be instituted under s 55A(1) directly for an interference with privacy. Section 55A(1) confers a cause of action on the AIC and the complainant, which includes all class members of a representative complaint. In those proceedings, the Court must deal by way of hearing de novo with whether there was an interference with privacy and the Court may grant such relief as it thinks fit. But the fact that a determination under s 52 may lead to future curial proceedings does not establish that the determination itself embarrasses or prejudices the Federal Court representative proceeding.

133    Now Medibank says that there is a risk of inconsistent findings between either the AIC’s investigation, whether under the AIC own initiative investigation or under the OAIC representative complaint, and the Federal Court representative proceeding or as between any enforcement proceedings in respect of the AIC’s investigation and the Federal Court representative proceeding.

134    But the posited real risk of inconsistent findings is not strong. As the OAIC representative complainant submitted, that can be seen when one appreciates the steps that may need to transpire before any risk of so called inconsistent findings could crystallize.

135    First, the AIC would need to conclude her investigation of the AIC own initiative investigation and the OAIC representative complaint and make a determination under s 52 that the OAIC representative complaint is substantiated because APP 11 and ss 13 and 15 of the Act have been contravened by Medibank.

136    Second, it must also be assumed that the Federal Court representative proceeding goes to a final hearing. Relatedly, it must be assumed that at such a hearing the Court dismisses the claims for relief in that proceeding. That dismissal must turn not on the Court’s rejection of the argument that the APPs are incorporated into group members’ insurance policies. Rather, it must be assumed that the Court has both found that the APPs are incorporated into the group members’ contracts, and that the Court has also gone on to conclude that there has in fact been no contravention by Medibank of those APPs.

137    Third, it must also be assumed that Medibank will also refuse or decline to act in accordance with any determination made by the AIC which is favourable to the OAIC representative complainant. Relatedly, it must also be assumed that the OAIC representative complainant or the AIC decides to commence a proceeding under s 55A in this Court, in order to enforce the AIC’s determination.

138    Fourth, assuming a s 55A enforcement proceeding is commenced, this Court will then be required under s 55A(2) to consider whether Medibank has engaged in conduct that constitutes an interference with privacy. As s 55A(5) stipulates, that assessment is undertaken as a de novo hearing at which the AIC’s written reasons for the determination under s 52 may be received as evidence as s 55A(6)(a) provides. The AIC may also under s 55B(1)(a) issue a written certificate setting out the findings of fact upon which the AIC based her determination.

139    Now in order for the inconsistent findings scenario posited by Medibank to crystallise, it must also be assumed that the Court, presumably differently constituted than with respect to the trial of the Federal Court representative proceeding, concludes in the enforcement application on the basis of the same or similar evidence as that adduced in the Federal Court representative proceeding that Medibank has breached APP 11 and contravened ss 13 and 15, notwithstanding that the Court has reached the opposite conclusion on that same or similar evidence in the Federal Court representative proceeding. Of course, if the Court dealt with both matters at the same time, the risk of inconsistent findings may be reduced although not entirely eliminated.

140    The above sequence of events is speculative. But in any event, the question of the risk of inconsistent findings is only a relevant factor to consider in terms of the risk of an interference with the administration of justice. It is not a determinative factor on the latter question as Ms Rachel Doyle SC for the OAIC representative complainant quite correctly submitted.

141    Let me say something more concerning s 55A.

142    In my view there is little basis to suggest that any future possible proceeding commenced under s 55A(1) will interfere with the integrity or subject matter of the Federal Court representative proceeding such that it is now necessary to foreclose the possibility of any proceedings under s 55A being advanced.

143    To the extent that multiple proceedings are, in future, on foot that create the possibility of inconsistent findings, the Court can consider the appropriate procedural course to take. There is no necessary difficulty in a proceeding under s 55A being commenced. And there is no justification for the grant of an injunction preventing that from occurring.

144    If the AIC were to make a determination under s 52 in respect of the OAIC representative complaint adverse to Medibank, then every member of the representative class, which overlaps with the group member definition in the Federal Court representative proceeding, would have a “claim” within the meaning of s 33C of the FCA Act. But unlike the claims currently advanced in the Federal Court representative proceeding, the group members’ claims under s 55A(1) would turn solely on whether Medibank interfered with group members’ privacy within the meaning of the Act. And the likelihood is that proceedings under s 55A(1) would be brought as a representative proceeding under Part IVA of the FCA Act, either by a structural change to the existing Federal Court representative proceeding or in separate Part IVA proceedings.

145    If brought in the existing Federal Court representative proceeding, the fact that the AIC’s reasons would be admissible in relation to the s 55A cause of action for interference with privacy would create no difficulty. It is commonplace for judges to receive evidence that is only admissible in one context and not another.

146    Further, there would be no difficulty if there were separate Part IVA proceedings. The proceedings could be heard together with evidence (save for possible exceptions) in one proceeding being evidence in the other. Alternatively, the Court could exercise its various powers under Part IVA to deal with the overlap of issues.

147    Let me say something more. On the assumption that a s 55A proceeding is commenced concerning any determination by the AIC, such a scenario is contingent on the AIC making a determination against Medibank or in essence in favour of the OAIC representative complainant. If it was not in favour, then there would be nothing in all likelihood to meaningfully enforce. But as to whether there would be such a favourable determination is speculative at this point.

148    Further, assuming such a scenario, it is also speculative as to whether or not enforcement proceedings would be taken. Perhaps the matter might settle with Medibank without the need for enforcement proceedings. But let it be assumed that there is such enforcement proceedings. Would there be any clash with the Federal Court representative proceeding or findings made thereunder? As I have indicated, this is a matter of speculation.

149    There are various variables to consider. Let me deal with the question of timing. As to this I will make the assumption that an AIC determination will be made before the Federal Court representative proceeding is listed for trial or, at the latest, will be made three months before that trial commences. This is a valid assumption to make because, as the docket judge, I can ensure its validity. Moreover, in all likelihood and in any event, a trial is 18 months to 2 years away and in my view the AIC is likely to make a determination within this time frame.

150    So, let it be assumed that any enforcement proceedings are instituted before a trial of the Federal Court representative proceeding. And indeed, let it be assumed that this is also in the form of a Part IVA representative proceeding. I see no reason why the same judge cannot deal with both, including having a joint hearing of both.

151    Now does s 55A or s 55B create any difficulty for such a joint hearing? I do not think so.

152    First, s 55A(5) would facilitate such a process as it requires a hearing de novo. And on that aspect, in terms of the over-lapping issues there is likely to be a very similar evidentiary foundation.

153    Second, s 55A(6) admittedly allows the receipt of other material concerning the enforcement proceeding. But the Court does have a discretion whether to receive and admit it. But even if it was received as evidence in the enforcement proceeding but not the Federal Court representative proceeding, so what? A judge in the one hearing is well used to evidentiary segmentation in terms of issues, parties or the context. Further, it is most unlikely that on over-lapping issues this could drive a different result as between the Federal Court representative proceeding and the enforcement proceeding. But if it did, this would all be explained in any later judgment. Confidence in the administration of justice and the rule of law is hardly likely to be shattered by that explained and transparent differentiation.

154    Third, the window-dressing in s 55A(7) is also a possible source of potential differentiation, although in reality this is unlikely to change the landscape if the one judge is dealing with both matters.

155    Fourth, the evidentiary certificate provision of s 55B is another difference. But would it be operable? The AIC may not issue a certificate. But if she did, would it count for very much at a joint hearing involving the over-lapping issues? Unlikely. If a matter is contentious then evidence will be led and the certificate will count for little against the background and weight of the substantial evidence. If the matter is not contentious, then whether a certificate is tendered or not in the enforcement proceeding but not the Federal Court representative proceeding is of little moment.

156    But let it be assumed against what I have said that the s 55A and s 55B differences are such that the one judge cannot have a joint hearing of both the Federal Court representative proceeding and the enforcement proceeding. Where does any of this go? One judge will hear and decide one of the cases. Then another judge will hear and decide the other case. There is then a potential risk of inconsistent findings. But this is all a theoretical rather than a real risk. And it is not an immediate risk but a remote risk. Further, any such risk of inconsistent findings, if it exists, is not and cannot be determinative of the question of whether there may be an interference with the administration of justice.

157    I do not see anything which warrants granting an injunction at this stage on these various contingent and compounding possibilities. As Gibbs CJ said in Hammond at 196, a theoretical tendency to interfere with the course of justice is not enough. The tendency must be a practical reality. The context before me is nowhere near that end of the spectrum. Whether it moves closer to that end at some later stage I cannot say at the present time. Medibank is not foreclosed from making a later application if there are relevant changed circumstances.

158    Now during this discussion I have made some assumptions. Let me flip one of them.

159    Assume that by the time of trial or judgment in the Federal Court representative proceeding there is no AIC determination or enforcement proceedings. This is most unlikely. If there is to be such a determination or enforcement proceedings, this is likely to come before. But if it comes after, then a different judge than the one dealing with the Federal Court representative proceeding will need to deal with the matter. Potential inconsistency may arise. But I do not see any warrant for the grant of an injunction now.

160    Let me turn to a different topic.

The question of direct enforceability

161    Medibank submitted that should a determination by the AIC made under s 52(1)(b) include one or more of the matters referred to in s 52A or s 55 of the Act, that determination would be directly enforceable as against Medibank. I am inclined to agree.

162    In that context, Medibank drew attention to The Queen v Trade Practices Tribunal; ex parte Tasmanian Breweries Proprietary Limited (1970) 123 CLR 361 and Attorney-General for the Commonwealth v Breckler (1999) 197 CLR 83. Let me say a little more about these two cases.

163    Tasmanian Breweries concerned the effect of a determination of the then Trade Practices Tribunal. The Tribunal after conducting an inquiry could make a determination in accordance with s 49(1)(b) of the Trade Practices Act 1965-1968 (Cth) that an examinable agreement or practice was contrary to the public interest. Such a determination itself had no operative effect but constituted the “factum by reference to which the Act operate[d] to alter the law in relation to the particular case” (at 378 per Kitto J).

164    The enforceable nature of a determination did not rely upon the making of the determination per se. Rather, s 52 authorised the Tribunal to make orders restraining the parties from giving effect to the agreement which had been found in the Tribunal’s opinion to be contrary to the public interest. Further, s 52(7) expressly provided that “Subject to section 57 of this Act, orders of the Tribunal have the force of law”.

165    The injunction which operated upon the factum was one which issued under s 52 without the need for any application to a court for enforcement. And disobedience to an order of the Tribunal was punishable by the Commonwealth Industrial Court as if it were a contempt of that court.

166    Further, s 102(1) provided that “the validity of a determination or order of the Tribunal shall not be challenged, reviewed or called into question in any proceedings, include proceedings under Part VII…”. But s 102(2) provided that s 102(1) did not limit the exercise of the High Court’s jurisdiction to issue a prerogative writ or an injunction.

167    In Breckler the question was whether s 37 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) was invalid for Chapter III reasons as an impermissible purported conferral of the judicial power of the Commonwealth on an administrative tribunal. Section 37 permitted the Superannuation Complaints Tribunal to substitute its determination for a decision of a superannuation trustee. A determination and any related orders under s 37(3) were deemed by s 41(3) to be a binding decision of the original decision maker, namely, the trustee, for all purposes. Section 315(3) of the Superannuation Industry (Supervision) Act 1993 (Cth) empowered the Court, on application by the Commissioner or any persons whose interests were affected, to grant an injunction on such terms as the Court thought appropriate, requiring the trustee to give effect to the determination; see the definition of “do an act or thing” in s 315(12). The legislative regime took the existence of a determination by the Tribunal as a “criterion by reference to which legal norms are imposed and remedies provided for their enforcement” (at [45] per Gleeson CJ et al). Those remedies were to be found in express provisions in those legislative instruments, and not otherwise. Section 34 made it an offence to fail to comply with a determination; the section made it an offence to fail to comply with “prescribed standards”, one of which under the relevant subordinate instrument was a determination of the Tribunal.

168    So, the determination of the Tribunal itself had no operative effect. But the relevant legislation took the existence of a determination by the Tribunal as a criterion or factum by reference to which legal norms were imposed and remedies provided, such as ss 34 and 315 of the Supervision Act that I have mentioned.

169    The statutory schemes at issue in those cases, and in particular the statutory effect given to the factums in each case, may be contrasted with the provisions of Divs 2 and 3 of Part V of the Act.

170    Let me now turn to s 80W of the Act.

171    Now as to injunctions to enforce statutory obligations, McHugh JA in King v Goussetis (1986) 5 NSWLR 89 at 93 said:

The true basis of an individual's right to obtain an injunction to enforce a statutory obligation is no longer a matter of any doubt. In some cases the statute itself either expressly or by necessary inference may confer a private right on the individual to enforce the statutory obligation: Duchess of Argyll v Duke of Argyll [1967] Ch 302 at 341; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 66-68. With respect, however, the question whether the statute confers a private right of action is not to be answered, as Ungoed-Thomas J indicated in Duchess of Argyll v Duke of Argyll (at 341) by asking whether the enactment is for the protection of the public at large or for the benefit of a class of persons of which the plaintiff is a member: see the discussion by Brennan J in Onus v Alcoa of Australia Ltd (at 67-68). The grant of a private right by the statute does not depend on whether the statute is for the benefit of a class: O'Connor v SP Bray Ltd (1937) 56 CLR 464 at 477-478, 486-487; Onus v Alcoa of Australia Ltd (at 68). The answer to the question whether a statute confers a private right depends on “the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation”: Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405 per Kitto J.

172    But here, s 80W renders unnecessary further consideration of any independent jurisdiction of this Court to grant an injunction. Section 80W is given operative effect by ss 118 and 121 in Part 7 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (the RP Act). Section 80W(1) of the Act read with ss 116 to 125 of the RP Act confers on the AIC or any other person a general right to enforce the provisions of the Act by means of an injunction.

173    In my view, obligations under s 55 may be enforceable by way of injunction, including pursuant to s 80W of the Act.

174    Now of course there are complex questions of statutory construction. But in my view, the proposition that s 80W applies to s 55 can be reconciled with the specific scheme for enforcement of determinations applicable to private bodies in Div 3 of Part V, read against the contrasting scheme for determinations applicable to government agencies in Div 4 of Part V, which expressly provides in s 62 for the enforcement of the obligations in ss 58 and 59, being equivalent to the obligations in s 55.

175    And although a determination is non-binding as stated in s 52(1B), it is open to the legislature to attach statutory obligations to the fact of a determination. And in my view this is what has been done in ss 52A and 55 of the Act.

176    Section 80W provides that the provisions of the Act are enforceable under Part 7 of the RP Act and that the AIC or any other person is an authorised person for the purpose of the RP Act. Part 7 of the RP Act creates a framework for using injunctions to enforce provisions (see s 116).

177    Section 121 is the key provision for the purpose of injunctions. It provides that:

Restraining injunctions

(1)    If a person has engaged, is engaging or is proposing to engage, in conduct in contravention of a provision enforceable under this Part, a relevant court may, on application by an authorised person, grant an injunction:

(a)    restraining the person from engaging in the conduct; and

(b)    if, in the court’s opinion, it is desirable to do so—requiring the person to do a thing.

Performance injunctions

(2)    If:

(a)    a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do a thing; and

(b)    the refusal or failure was, is or would be a contravention of a provision enforceable under this Part;

the court may, on application by an authorised person, grant an injunction requiring the person to do that thing.

178    Section 80W of the Act, together with s 121 of the RP Act, can readily be relied upon to enforce the obligations in ss 52A or 55 by way of mandatory injunction without detracting from the non-binding nature of a determination. Sections 52A and 55 treat the fact of a determination as their criterion for operation, without rendering the determination itself enforceable; see also by a loose analogy Tasmanian Breweries and Breckler.

179    So, whilst determinations are non binding, the legislature has attached statutory consequences to the fact of a determination in ss 52A and 55. The enforceability of ss 52A and 55 can be reconciled with the non-enforceability of a determination. So, notwithstanding that a determination is non-binding, the making of a determination can nonetheless have directly enforceable consequences for Medibank which distinguishes a determination from a royal commission or other administrative report.

180    But accepting all of this in Medibank’s favour, where does any of this take it?

181    Even if s 80W might permit the OAIC representative complainant to apply to this Court to enforce compliance by Medibank with either ss 52A or 55, this would only arise in the hypothetical circumstance where Medibank has accepted the AIC’s determination that its conduct constitutes an interference with privacy, but nevertheless refuses to discharge any obligations imposed on it by ss 52A or 55, assuming that such obligations have been enlivened by the AIC’s declarations.

182    Further, I agree with the respondents that it requires that the following hypotheticals are reasonably likely to occur.

183    First, there is a determination on the OAIC representative complaint under s 52(1)(b) which includes one or more of the declarations enlivening the obligations under ss 52A or 55. But none of these have been sought by the OAIC representative complainant. So, they would therefore have to be made by the AIC of her own motion.

184    Second, Medibank then refuses to comply with the requirements of either ss 52A or 55, in reliance upon the express terms of s 52(1B) or upon some other basis, even where they have accepted some or all of the s 52(1)(b) determination.

185    Third, that the OAIC representative complainant, notwithstanding that this relief is not sought in the complaint, then for some reason applies for an injunction under s 80W of the Act, and also under s 121(2) of the RP Act, to enforce compliance with either or both of ss 52A or 55.

186    Fourth, the Court grants the injunction, notwithstanding that there has been no s 55A de novo hearing requiring compliance with one or more of the obligations in ss 52A or 55.

187    Fifth, the Court separately constituted determines to dismiss the application for injunctive relief in the Federal Court representative proceeding because the Court finds that there has been no contravention of the Act.

188    But this is not such a risk of inconsistent findings that can constitute a sufficient basis for the grant of injunctive relief to restrain an apprehended contempt.

189    In summary, even if certain classes of determinations made under s 52(1)(b) are by reason of s 52A and s 55 enforceable as against Medibank in the ordinary way or via some route in reliance upon s 80W such as the above hypotheticals, there still would not exist any risk of interference with the administration of justice arising from inconsistency such as to found the injunction sought by Medibank.

Other matters

190    Let me make five other points.

191    First, Medibank contended that the publication of a determination made under s 52 was obligatory by force of s 80E. But that section has no application to determinations made under s 52. Further, the discretion expressed in s 52(5A) is not to be understood simply as confirming the power to do something that is in fact mandated by s 80E. Section 80E applies only to particular kinds of determinations made by legislative instrument under “Division 1 or 2” of Part VI. Those are “public interest” determinations that, notwithstanding that an act or practice of an entity breaches an APP, the public interest in the entity doing the act, or engaging in the practice, outweighs the public interest in adhering to that APP (see ss 72 and 80A of the Act). Further, whilst I accept that it is the usual practice of the OAIC to publish s 52 determinations on the OAIC’s website, there is no evidence before me that would permit the inference that such practice will be adopted in all cases or in this particular case.

192    Second, whilst Medibank seeks an order to restrain the AIC from making a determination in both the OAIC representative complaint and the AIC own initiative investigation, the order to restrain the AIC’s investigation is only sought with respect to the OAIC representative complaint and not the AIC own initiative investigation.

193    Now Medibank says that the relevant distinction is that the AIC own initiative investigation could be directed to commencing penalty proceedings which would be a proper exercise of the power to investigate (Part VIB of the Act). But as for the OAIC representative complaint, Medibank says that it is appropriate that the real risk of inconsistent findings be addressed now by restraining any further investigation of it. And where the AIC is restrained from making any determination, there can be no proper basis for her to pursue that investigation pursuant to s 40.

194    But Medibank’s position creates anomalies.

195    The relief sought by Medibank’s application would leave the AIC free to investigate the AIC own initiative investigation, which she has said will involve largely the same steps as those she proposes to take in respect of the investigation of the OAIC representative complaint.

196    Moreover, having conducted that investigation, the AIC would be restrained from making any determination under s 52. This risks rendering the entire investigation, which the AIC is mandatorily obliged by s 40(1) to undertake, futile.

197    Third, Medibank did not put its argument for an injunction on the basis of any vexation or oppression to it based upon the duplicative or over-lapping processes before the AIC and in this Court or if it did put such an argument it was only faintly presented. But in any event there could be no substance to such a suggestion for the reason that any such vexation or oppression could be dealt with by me in terms of the case management of the Federal Court representative proceeding. Further and in this context, it is not irrelevant to note (as I have already noted) that Medibank has also not sought to formally challenge the AIC’s decision under s 41(1) that was made against Medibank. Further, the AIC own initiative investigation is going ahead in any event on any view of the matter given that Medibank has not sought to restrain this. And the work product of that investigation will be used and available for the investigation of the OAIC representative complaint. So it could not reasonably be said that any additional steps in the latter investigation could seriously cause vexation and oppression to Medibank.

198    Fourth, Medibank has not sought to argue that the use or continued use by the AIC of any coercive statutory power under the Act to obtain documents or examine witnesses after the commencement of and during the currency of the Federal Court representative proceeding amounts to a contempt or is an ultra vires purported exercise of statutory power under the Act.

199    Fifth, Medibank at one stage sought to argue, albeit responsively to an argument put by the OAIC representative complainant, that it was relevant to consider that the Federal Court representative proceeding and a potentially favourable outcome would be more favourable to class members than a successful determination by the AIC on the OAIC representative complaint with favourable enforcement proceedings, given that the former has broader scope in terms of the potential claims and remedies than the latter. I am prepared to so assume Medibank’s position, but the point goes nowhere. The primary question before me is not so much the competing merits or advantages of the different proceedings but rather whether there is an interference with the administration of justice in the Federal Court representative proceeding arising from the potentiality of inconsistent findings flowing from any determination made by the AIC.

Conclusion

200    For the foregoing reasons, a quia timet injunction is not necessary now to protect the Federal Court representative proceeding.

201    The suggestion that the AIC’s future processes will constitute a contempt by having a real and definite tendency to prejudice or embarrass the Federal Court representative proceeding is speculative.

202    Now Medibank says that the conditions that give rise to the risk of inconsistent findings and conclusions have fully crystallised. It says that there is no further event on which the parties are waiting which will determine whether the risk of inconsistent findings and conclusions will arise. And it is said that it is not in the interests of group members or the public interest more generally insofar as the resources of the AIC and the Federal Court are concerned for the injunction application to be deferred until a point in time where substantial resources have been expended. But I disagree.

203    Even if there was some substance to Medibank’s points, in my view it would be premature to grant an injunction. The relevant risk is not so immediate such as to justify an injunction now which for all practical purposes is likely to carry with it permanent consequences concerning the statutory processes under the Act; see the original notable work of Dr Spry (I C F Spry, Equitable Remedies (Law Book Co, 1971) at 340 et seq). When a determination would be made under s 52 by the AIC is uncertain. The content of such a determination is also uncertain. Further, whether and when there would be enforcement proceedings under s 55A is also uncertain. And the timing and disposition of the Federal Court representative proceeding is also uncertain. Generally, there is lacking the immediacy of any risk concerning inconsistent findings. But in any event, and as I have said, although that risk is important to the principal question it is not determinative as to whether there may be an interference with the administration of justice.

204    For the foregoing reasons, Medibank’s originating application will be dismissed with costs.

Associate:

Dated:    22 February 2024