Federal Court of Australia

Veteran Advocacy Australia v Secretary, Department of Veterans’ Affairs [2024] FCA 895

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth), judgment be entered in favour of the respondent in relation to the whole of the proceeding.

2.    The applicant pay the respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

MEAGHER J

introduction

1    By an interlocutory application filed on 30 January 2024, the Secretary of the Department of Veterans’ Affairs (respondent) seeks an order, pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth), that the proceeding be summarily dismissed. In the alternative, the respondent seeks that the applicant’s application for judicial review be struck out pursuant to r 16.21 of the Rules on the basis that the application contains frivolous or vexatious material, is likely to cause prejudice or embarrassment, or does not disclose a reasonable cause of action.

2    The substantive proceeding was commenced by an originating application filed on 14 November 2023 for declaratory and injunctive relief in relation to allegations of interference with the privacy of veterans, non-compliance with the Australian Privacy Principles (APP) as set out in the Privacy Act 1988 (Cth), and non-compliance with obligations in accordance with s 15(5)(b) of the Freedom of Information Act 1982 (Cth). The applicant, Veteran Advocacy Australia (applicant), also sought orders for the payment of restitution to veterans involved in the alleged privacy interference. As discussed below, a draft amended originating application was filed with the applicant’s submissions with respect to the summary dismissal application.

3     For the reasons that follow, the application for summary judgment is allowed.

background

4    Veteran Advocacy Australia, as the named applicant, is the registered business name for a discretionary investment trust by the name of “The Trustee for Davis Family Trust.” Mr Andrew Lewis Davis deposes that he is a representative of the applicant.

5    The substantive application relates to the Department of Veterans’ Affairs’ Medicine Advice and Therapeutics Education Services program (MATES program). The MATES program was a program aimed at improving the use of medicines and health services by veterans. The MATES program was facilitated by the University of South Australia, and as such it involved the Department disclosing veterans’ personal information to the University.

6    On 26 April 2023, the Australian Information Commissioner (Commissioner) made a decision that the respondent had interfered with the complainant’s privacy in relation to the MATES program: ‘ADJ’ and the Secretary to the Department of Veterans’ Affairs (Privacy) [2023] AICmr 29 (ADJ Decision).

7    On 29 August 2023, the Department issued a statement regarding the MATES program generally, including that the Department had ‘temporarily suspended provision of further data’ to the University. On 12 February 2024, the respondent released a statement announcing that the MATES program was to be closed down at the request of the Minister for Veterans’ Affairs.

8    On 19 February 2024, the Office of the Australian Information Commissioner (OAIC) notified the Department that the OAIC has received, and decided to accept, a representative complaint in relation to alleged privacy interferences arising from the MATES program.

the evidence

9    At the hearing, the respondent read the following material:

    The interlocutory application filed on 30 January 2024;

    Affidavit of Ms Centaine Alexandra Mumford filed on 30 January 2024 (Ms Mumford’s First Affidavit); and

    Affidavit of Ms Centaine Alexandra Mumford filed on 25 March 2024 (Ms Mumford’s Second Mumford).

10    The respondent sought leave to rely upon Ms Mumford’s Second Affidavit, which was filed after the date by which the respondent was to file their material and deposes to factual developments in the matter. The applicant took objection to leave being granted on the basis that the respondent had not complied with the Court’s orders. Given the fact that the affidavit related to pertinent factual developments in the matter, I granted leave for the respondent to rely upon that affidavit.

11    Leave was also granted to applicant to rely upon its submissions which were emailed to the Queensland Registry on 20 March 2024 and the second affidavit of Mr Davis emailed to the Queensland Registry on 20 March 2024 (Mr Davis’ Second Affidavit) and the third affidavit of Mr Davis filed on 9 April 2024 (Mr Davis’s Third Affidavit). The applicant’s submissions referred to and attached a draft amended originating application. Mr Davis’ Third Affidavit annexed correspondence he had exchanged with the Queensland Registry which showed that his second affidavit and written submissions had been rejected for filing on the basis that they had not been properly filed. As well as granting leave to rely on the aforementioned material, I ordered that the material be filed, subject to the exceptions discussed below.

12    The respondent did not object to the applicant relying upon and filing the material referred to in paragraph 11 above, other than in respect of Mr Davis’ Second Affidavit. In that regard, the respondent objected to the receipt of two of the annexures on the basis of parliamentary privilege pursuant to s 16(3) of the Parliamentary Privileges Act 1987 (Cth). That objection was upheld and the relevant annexures were not received by the Court. Accordingly, the affidavit was placed on the Court file with the relevant annexures redacted.

13    Mr Davis had also filed an affidavit accompanying his originating application on 14 November 2023 (Mr Davis’ First Affidavit) which annexed correspondence sent by the applicant to the respondent seeking an opportunity to meet with someone from the Department to discuss the Department’s conduct with respect to veterans’ private information, as well as seeking answers to a number of queries. Thereafter, Mr Davis, on behalf of the applicant, sent an email by which he sought that the Department cease sharing personal and sensitive information with the University. Also annexed was the Department’s response to Mr Davis.

14    In Mr Davis’ Second Affidavit, he relevantly deposes as follows:

4. Veteran Advocacy Australia is a registered Australia business [sic].

5. Veteran Advocacy Australia was started by myself and wife Jane Elizabeth Davis with a primary purpose of helping Veterans.

6. Veteran Advocacy Australia holds valid insurances to conduct business.

7. Veteran Advocacy Australia is an Ex Service Organisation (ESO).

8. Veteran Advocacy Australia assists Veterans access Veteran entitlements.

9. Veteran Advocacy Australia has given away thousands of dollars to Veterans in need of support.

10. Veteran Advocacy Australia has written to Minister Veterans’ [sic] Affairs on behalf of Veterans.

11. Veteran Advocacy Australia has applied for grants to assist Veterans with social connection.

12. Veteran Advocacy Australia has released Media Statements with regard to Veteran matters and assistance.

13. Mr Geoffrey Shafran and Mr Robert Finke are Veterans whom Veteran Advocacy Australia support through information dissemination and advocacy.

14. I have personally been supporting numerous Veterans throughout the recent months whereby they have found out the Respondent shared their sensitive personal medical information with University of South Australia. This support has been via message, open chat, and or telephone.

15. I have personally found the interference with my privacy by the Respondent deeply offensive, it has caused me distress, sleepless nights, and increased heart rate.

15    Mr Davis’ Second Affidavit, annexes, amongst other things, a letter from the Department responding to a complaint raised by Mr Davis in relation to the ethics approval of the MATES program, as well as an email from the applicant to the Department’s media team seeking comment regarding the MATES program. That email has then seemingly been forwarded from the Department’s media team to a “Feedback” team in which it is stated that “Mr Davis has now reached out via his ESO email.”

16    Mr Davis Second Affidavit also annexed an extract of the applicant’s website which provides:

Veteran Advocacy Australia was established in 2020 to fill the void left by large organisations that are more interested in their own benefits than Veterans in need.

…

Veteran Advocacy Australia is run by Veterans and volunteers, for Veterans, and aims to engage Veteran providers wherever possible.

Veteran Advocacy Australia holds current Professional Indemnity and Public Liability Insurances.

17    Further extracts of the applicant’s website were annexed to Mr Davis’ Second Affidavit. They included a page setting out the applicant’s services, which are expressed to encompass advocacy, household services and “Veteran Connect.” With respect to advocacy services, the following appears:

Our Senior Advocate Andrew is one of the few Veterans in Australia to take the Department of Veterans’ Affairs, the Veteran’s Review Board, and the Military Rehabilitation and Compensation Commission to the Federal Court of Australia. Advocacy Services we provide include;

•    Non Liability White Card Applications

•    Initial Injury Claims

•    Appeals

•    Home Modifications

•    Household Services Claims

•    Travel Claims

•    Rehabilitation Equipment

•    General Questions

•    Representations to Government on Veteran matters

legal framework

18    Section 31A of the Act relevantly provides:

31A Summary judgment

…

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

…

19    Pursuant to r 26.01(1) of the Rules, a party may make an application seeking summary judgment:

26.01 Summary judgment

(1) A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)    the proceeding is frivolous or vexatious; or

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

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

(e)    the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

20    The power conferred by section 31A of the Act reflects a broadening of the Court’s power to deal with unmeritorious claims. In Spencer v The Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, Hayne, Crennan, Kiefel and Bell JJ considered the nature of the reasonable prospect of success test at [52]:

Second, effect must be given to the negative admonition in subs (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. It will be necessary to examine further the notion of “no reasonable prospect.” But before undertaking that task, it is important to begin by recognising that the combined effect of subs (2) and (3) is that the enquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.

21    The prospect of success must be “real” as opposed to “fanciful” or “merely arguable;” White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298; [2007] FCA 511 at [59]. In determining whether a proceeding ought to be summarily dismissed, the Court is to have regard to matters of substance, rather than pleading points and form: Shumack v Commonwealth of Australia [2009] FCA 775 at [14]. Such applications are not intended to act as a “mini-trial on the documents” but ought to dispose of the cases which “are not fit for trial at all”: Spencer at [21] (per French CJ and Gummow J), citing Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 at [95].

22    In Pathmanathan v Healthscope Operations Pty Ltd [2020] FCA 65 at [8], Steward J helpfully summarised the principles relating to summary judgment:

(1) the legislative purpose of s 31A is to strengthen “the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases”: Second Reading Speech of the Migration Litigation Reform Bill 2005 (Cth);

(2) the moving party bears the onus of persuading the court that the opponent has no reasonable prospect of success: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 at 271 [46] per Reeves J.; Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328 at 333 per Burchett, Ryan and Marshall JJ;

(3) assessment of whether a proceeding or a part of a proceeding has no reasonable prospect of success will necessarily require: (i) identification of the cause of action pleaded; (ii) identification of the pleaded facts said to give rise to that cause of action; (iii) a review of the evidence (if any) tendered in support of the claim for judgment; (iv) identification of the defence pleaded; (v) identification of any facts pleaded which are said to give rise to the defence; and (vi) a review of the evidence (if any) tendered in defence of the claim: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 at 406 –407 [126] per Gordon J.;

(4) once a moving party has established a prima facie case that the opponent has no reasonable prospect of success, the opposing party must respond by pointing to specific factual or evidentiary disputes that make a trial necessary; general or non-particularised denials will be insufficient to defeat the motion; Jefferson Ford Pty Ltd at 407 [127] per Gordon J. citing Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [22] per French J. (as his Honour then was);

(5) summary disposition of a proceeding is authorised on a variety of bases. It will, for example and without limitation, be appropriate in a case: (i) in which the pleadings disclose no reasonable cause of action and their deficiency is incurable; (ii) in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and in any case which might be propounded by permissible amendment; or (iii) that is “frivolous or vexatious or an abuse of process”: Spencer v Commonwealth (2010) 241 CLR 118 at 131 [22] per French CJ and Gummow J.;

(6) the determination of a summary dismissal application does not require a mini-trial based upon incomplete evidence to decide whether a proceeding is likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial: Cassimatis at 271 [46] per Reeves J.; and

(7) an application for summary dismissal is likely to succeed if the moving party is able to demonstrate that the applicant’s success in the proceeding relies upon a question of fact that can be truly described as “fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials”: Cassimatis at 272 [47] per Reeves J.

consideration

Standing

23    The respondent argued that the applicant has no standing to bring the application. To that end, the respondent contended that a trust is not a juristic person with a separate legal personality. Further, the respondent noted that the Privacy Act is concerned with interferences with the privacy of a natural person and therefore, the applicant, as a trust, does not have an interest in the proceeding. The respondent also contended that there is no independent evidence before the Court that the trustee, suing on behalf of the trust, is acting in another capacity to represent affected veterans generally nor does the trustee appear to be a representative body with a ‘special interest’ in the proceeding: Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53 at 513. The respondent argued that the fact that the applicant corresponded with the Department regarding the MATES program is not sufficient to make it a representative body and that ultimately, the onus is on the applicant to establish standing, which has not occurred.

24    The respondent submitted that the Court ought to take a multifactorial approach when determining whether the applicant has standing. To that end, the respondent took the Court to Animals’ Angels e.V. v Secretary, Department of Agriculture (2014) 228 FCR 35; [2014] FCAFC 173 in which the standing of the applicant in that matter, an animal protection organisation, was considered. At [120], Kenny and Robertson JJ found:

Considering in turn each of the matters on which the primary judge relied for his conclusion in relation to the appellant’s standing: in our opinion the appellant does have sufficient presence in Australia; it has been recognised in Australia by the relevant department of the Commonwealth; it has devoted financial resources to animal welfare in Australia sufficient to found the activities to which we have referred; not a great weight attaches to the appellant’s status or standing with respect to other bodies concerned with animal welfare; the broader and global nature of the appellant’s objects or purposes do not derogate from the appellant’s engagement in Australia; the appellant’s Australian activities do intersect with the appellant’s objects or purposes; and the nature of the decision sought to be reviewed directly impacts on animal welfare, which is at the centre of the appellant’s objects or purposes.

25    The respondent contended that the evidence put by the applicant was insufficient to demonstrate that it has standing. In that regard, the respondent argued that, notwithstanding Mr Davis deposing that the applicant is an Ex-Service Organisation (ESO), there is no evidence before the Court to substantiate that the applicant is a recognised ESO, noting that there is no evidence that the applicant appears on the Advocacy Register. Counsel for the respondent submitted that while no evidence has been adduced to show that the applicant does not appear on the Register, it is a matter in respect of which I could take judicial notice, noting that it is a publicly searchable register on which the applicant does not appear. In relation to the email annexed to Mr Davis’ Second Affidavit wherein it appears that a senior media officer referred to the applicant’s email as Mr Davis’ “ESO email,” the respondent argued that that this is not a recognition of the applicant’s ESO status, but rather a “use of a phrase by a departmental officer.”

26    The respondent also submitted that there is no evidence that the applicant was established to advocate for veterans’ rights in relation to privacy. It was further submitted by the respondent that there was nothing “really” to establish that the applicant has been set up as a peak body or non-government organisation, or as to the extent to which it is recognised as an ESO, nor does the Court have before it the applicant’s constitution. The respondent also argued that the applicant does not have members in the relevant sense. Further, the respondent submitted, there is no evidence before the Court that the applicant participates in departmental consultation with respect to matters affecting veterans. It is therefore, according to the respondent, an advocacy organisation only in the narrow sense.

27    In the respondent’s further submission, to the extent that the applicant is an advocacy body, the best evidence was that attached to the first and second affidavits referred to in paragraphs 11 to 13 above. They comprised emails between the applicant and the Department, as well as information as to the activities claimed to be undertaken by the applicant. The respondent also referred to the evidence of Mr Davis, contained in his Second affidavit, as to his belief that the applicant is an ESO, and as to the conversations he has had with veterans regarding breaches to their privacy, but noted that it was unclear as to the number of veterans involved in those conversations. This evidence was simply not enough, the respondent contended, to establish standing.

28    At the hearing, the applicant argued that there is no requirement for an organisation to register as an ESO with the Department and therefore appear on the Advocacy Register. Indeed, the applicant submitted that it took pride in not receiving any government funding, particularly as to do so might give rise to conflicts of interest. Further, according to the applicant, to be recognised by the Department in the way it was argued would assist in establishing standing did not in fact assist as ESOs of the type described by the respondent were unable to “question” the Department’s “narrative.” As such, the applicant argued, it was the first organisation to bring some issues forward and “stand up to the department.” The applicant also submitted that a presumption of standing in favour of the applicant exists unless the applicant’s case is “frivolous or hopeless,” relying on Davis v Commonwealth (1986) 61 ALJR 32; [1986] HCA 66. The applicant also contended that the ownership of the business via a discretionary trust is irrelevant. Further, the applicant distinguished Animal’s Angels, and environmental litigation generally, on the basis that environmental organisations do not represent natural persons as does the applicant.

29    As well, the applicant argued that, if the Court finds that the applicant has no standing, the application can be commenced by Mr Davis or the other two affected veterans identified in Mr Davis’ First Affidavit.

30    The relevant question is whether the applicant has a special interest in the subject matter of the action, that is, one which is distinct from that of an ordinary member of the public. In Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; [1981] HCA 50, Gibbs CJ summarised the principle of standing at 35 – 36 as follows:

A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action. The rule is obviously a flexible one since … the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation.

(Citations omitted)

31    In Australian Conservation Foundation, Gibbs J found that the applicant did not have a special interest in the preservation of the relevant environment notwithstanding the nature of the foundation’s objects, and the fact that it had sent a written communication when the draft environmental impact statement was made publicly available. At 531, his Honour stated:

…The fact that the Foundation is incorporated with particular objects does not strengthen its claim to standing. A natural person does not acquire standing simply by reason of the fact that he holds certain beliefs and wishes to translate them into action, and a body corporate formed to advance the same beliefs is in no stronger position. If it is the fact that some members of the Foundation have a special interest — and it is most unlikely that any would have a special interest to challenge the exchange control transaction — it would not follow that the Foundation has locus standi, for a corporation does not acquire standing because some of its members possess it …

The fact that the Foundation had sent written comments which Iwasaki was required to take into account in revising its draft environmental impact statement did not give the Foundation standing to bring the present action. A person who is concerned enough about proposed action to furnish his comments on it does not necessarily have any interest in the proposed action in the relevant sense. The fact that the Foundation sent the written comments, as permitted by the administrative procedures, is logically irrelevant to the question whether it has a special interest giving it standing. That fact would only have some significance in relation to this question if the administrative procedures revealed an intention that a person who sent written comments thereby acquired further rights. As I have endeavoured to show, that is not the case. …

32    In Lock the Gate Alliance Ltd v The Minister for Natural Resources and Mines [2018] QSC 21, as referred to by the respondent, Bowskill J (as her Honour then was) considered whether the applicant, an environmental organisation, had a special interest in relation to a decision giving indicative approval for the transfer of a mining lease relating to the Blair Athol coal mine. At [73] – [74], her Honour found:

The objects of Lock the Gate do not support a conclusion that it has such an interest. Nor do the various activities that it has undertaken, in relation to the Blair Athol mine, since Ms Flint became aware of the proposed transfer in a media report in February 2016. The effect of the evidence is that having become aware of that, and it seems a view formed by Ms Flint as to the financial viability of the proposed transferee company, Lock the Gate “developed concern that the rehabilitation obligations of the Blair Athol Mine would not be carried out and that the Queensland taxpayer would be at risk of having to pay for any outstanding rehabilitation.” Following this, Lock the Gate has taken it upon itself to do various things, including producing a report on the mine (in May 2016), organising a public meeting (in June 2016), attending a meeting with the Director for Coal Mining Operations and the Coal Assessment Manager, at the DNRM, to discuss Lock the Gate’s concerns (in June 2016), and arranging to meet with the Environment Minister to discuss its concerns (in July 2016), conducting a review of the mine’s “financial assurance calculation” (in July 2016) and meeting with the Deputy Directors General of DNRM and DEHP in relation to the proposed transfer of the mining lease (in September 2016).

These activities, undertaken since February 2016, do not support a conclusion that Lock the Gate has a special interest in, or a close connection with, the Blair Athol mine, such that it could, objectively, be said to be aggrieved by a decision concerning the proposed transfer of the mining lease. As Gibbs J said in Australian Conservation Foundation v Commonwealth, “[a] person who is concerned enough about proposed action to furnish his comments on it does not necessarily have any interest in the proposed action in the relevant sense” (at 531). And as Brennan J said in Onus v Alcoa , “[a] plaintiff does not acquire standing to sue for relief merely by proclaiming before he sues that he has an interest in obtaining relief;” “[a] litigant’s interest in obtaining the relief claimed is not by itself the interest which gives standing to sue” (at 74).

(Citations omitted)

33    I accept that a multifactorial approach to the determination of this question is appropriate in this instance. On that basis, I do not consider that the applicant has established standing to commence proceedings in this matter. The objects of the applicant, as can be surmised from the extracts of its website annexed to Mr Davis’ Second Affidavit, appear to be the provision of specific categories of assistance to individual veterans in relation to veterans’ entitlements. There is no evidence before the Court of the applicant’s constitution nor, as submitted by the respondent, that it appears on the Advocacy Register or is otherwise recognised by the government for its status: Animals’ Angels at [120]. While Mr Davis deposes that the applicant has applied for grants, there is no evidence that they have been granted. In any case, as set out above, in oral submissions, Mr Davis submitted that it was a matter of pride for him that the applicant received no government funding as to do so could give rise to conflicts of interest.

34    Further, the evidence regarding the extent of the applicant’s advocacy services is insufficient. The fact that the applicant has communicated with the Department regarding privacy issues raised by the MATES program does not necessarily support a finding that the applicant has a special interest: Australian Conservation Foundation at 531. Mr Davis deposes that he personally has been supporting “numerous” veterans in relation to the Department’s use of their sensitive and personal medical information with the University. The only evidence in that regard is contained in Mr Davis’ First Affidavit wherein he refers to alleged privacy interferences in relation to three individuals, including himself. However, nothing further is provided in relation to how many veterans were supported, the nature of the support provided nor the basis upon which they were supported.

Reasonable prospects of success

35    If I am wrong about standing, I do not, in any event, consider that the applicant’s application has any reasonable prospects of success.

36    By the applicant’s draft amended originating application as referred to in paragraph 11 above, the applicant seeks the following orders:

On the grounds stated in the statement of claim and affidavit, the Applicant applies for the following relief under section 39B of the Judiciary Act 1903 and section 21 of the Federal Court of Australia Act 1976;

2. A Declaration that the Respondent breached s13(1)(a) of the Privacy Act 1988.

3. A Declaration that the Respondent breached s13G(1)(b) of the Privacy Act 1988 when it repeatedly interfered with the privacy of the 3 individual Veterans named in the Affidavit of Mr Andrew Davis.

5. A Declaration that the Respondent did not comply with the Australian Privacy Principle 6, when it disclosed personal information of the veterans named in the affidavit for a secondary purpose, without the consent of the named veterans.

7. An order of mandamus the Respondent must cease disclosing the named Veterans personal information and sensitive information for any purpose without the expressed consent of the individual as required in Australian Privacy Principle 6.

8. An Order that costs be awarded to the Applicant.

37    Australian Privacy Principle 6 (APP 6), as contained in Schedule 1 of the Privacy Act, relevantly provides:

Use or disclosure

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.

Note: Australian Privacy Principle 8 sets out requirements for the disclosure of personal information to a person who is not in Australia or an external Territory.

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.

Note: For permitted general situation, see section 16A. For permitted health situation, see section 16B.

6.3 This subclause applies in relation to the disclosure of personal information about an individual by an APP entity that is an agency if:

(a)    the agency is not an enforcement body; and

(b)    the information is biometric information or biometric templates; and

(c)    the recipient of the information is an enforcement body; and

(d)    the disclosure is conducted in accordance with the guidelines made by the Commissioner for the purposes of this paragraph.

(Emphasis in original)

38    At the hearing, the respondent addressed each paragraph of relief sought, as amended and set out above at paragraph 36. The respondent’s submissions were as follows:

(1)    Amended paragraphs 2 and 5 both endeavour to circumvent the process available with the OIAC. The Court’s powers with respect to breaches of the Privacy Act are limited: Day v Lynn [2003] FCA 879 at [50]. The Court is therefore not the appropriate forum.

(2)    Amended paragraph 3 must fail as s 13G(1) of the Privacy Act is a civil penalty provision: s 13G(1A) of the Privacy Act. Only the Commissioner may seek such relief from this Court as the Commissioner is the authorised applicant in relation to the civil penalty provisions of the Privacy Act: s 80U(2) of the Privacy Act.

(3)    While amended paragraph 7 expressly seeks mandamus, what is in fact sought is an injunction to prevent the respondent from disclosing personal and sensitive information. The relief sought also seeks to prevent the respondent from disclosing information for any purpose without the expressed consent of the individual “as required in Australian Privacy Principle 6”. However, this misstates the requirements of APP 6. That principle allows for the disclosure of personal information for a number of reasons, including for the “primary purpose” for which it was collected, and where it is required or authorised by law. Accordingly, the order sought is one which could not be made.

(4)    Further, with respect to amended order 5, a more general but fundamental flaw is that the MATES program has been terminated and the applicant is, in effect, asking the respondent to act according to law. In that regard, the respondent referred to an earlier decision of mine in Davis v Military Rehabilitation and Compensation Commission [2024] FCA 322, in which I refused to make a vague declaration that the respondent act according to law: at [88].

39    In response, the applicant contended that it is not seeking a civil penalty pursuant to s 13G of the Privacy Act, only a declaration that there have been repeated breaches of the Privacy Act. The applicant also submitted that it is not bound to go to the Commissioner, noting that the Department did not cease its conduct until four months after the ADJ Decision. The applicant also submitted that the Court has the broad power to make any order it considers appropriate.

40    I accept the respondent’s submissions. It is evident that the Court ought not make orders in the form proposed in amended paragraphs 3 and 7. Even if, as proposed by the applicant, paragraph 7 was further amended to rectify any deficiencies in the drafting of the order sought, the Court ought not grant injunctive relief in circumstances where the MATES program has been terminated.

41    With respect to amended paragraphs 2 and 5, I accept that the appropriate forum to consider such complaints and make such determinations is the OIAC. As correctly noted by the respondent, for the purposes of this proceeding, this Court is the relevant court in relation only to injunctive relief: s 80W of the Privacy Act. There is otherwise a clear mechanism for complaints to be made to the OAIC and for determinations to be made in respect of the complaint, including for compensation to be ordered: ss 36 and 52 of the Privacy Act. This position has been helpfully summarised by Stone J in Day v Lynn at [50] as follows:

The jurisdiction of this Court in relation to breaches of the Privacy Act is limited. The scheme of the Privacy Act is for complaints about such breaches to be made to the Privacy Commissioner who will investigate the complaint and make a determination; ss 36 and 52. Determinations of the Privacy Commissioner are not binding or conclusive between any of the parties to the determination; s 52(1B) but there is provision in s 55A for certain persons to seek to enforce a determination in this Court or in the Federal Magistrates Court. There is however no provision in the Privacy Act for a breach of the Privacy Principles to be directly actionable in this Court; Ibarcena v Templar [1999] FCA 900 at [8]- [9] per Finn J. See also Gao v Federal Privacy Commissioner [2001] FCA 1683, at [10] per Ryan J; upheld by the Full Court in Gao v Federal Privacy Commissioner [2002] FCAFC 128. The principles were also accepted by Goldberg J in Gao v Federal Privacy Commissioner [2002] FCA 823, at [22] - [23].

42    It is worthwhile to note that, as is deposed to in Ms Mumford’s Second Affidavit, consistent with the above approach, a representative action has since been commenced and received by the OAIC in relation to the MATES program. In these circumstances, on the evidence before me, it would appear that there is plainly a more convenient and satisfactory remedy which is available to the applicant: Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146; [2008] HCA 32 at [91] – [92], citing R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389; [1949] HCA 33 at 400.

43    To the extent that the applicant submits that the Court may grant any orders which it considers appropriate with the effect of curing the defects in his amended originating application, I refer to Davis wherein the following was stated at [92] – [93]:

While the Court is obliged to provide some level of assistance to a self-represented litigant, the distinction should be made that the Court is not to make out the litigant’s case. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438; [1999] FCA 85 at [28] – [29], the Full Court summarised the relevant principles relating to self-represented litigants:

The general principles governing the role of the Judge in civil proceedings involving an unrepresented litigant have been stated in Rajski v Scitec Corporation Pty Ltd, Butterworths unreported judgments, 16 June 1986, NSW CA. Samuels JA said this (at 14):

"In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent. ...At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement. ...An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent."

Mahoney JA made the following observation (at 27):

"Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done."

These comments have been referred to with approval in subsequent cases: see In the Marriage of Johnson (1997) 139 FLR 384 (Fam Ct/FC), at 406 (and cases cited there); Morton v Vouris (1996) 21 ACSR 497, at 513-514, per Sackville J. There is nothing in Neil v Nott inconsistent with what was said in Rajski v Scitec Corporation.

A trial Judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 (NSW CA), at 397, per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, 15 September 1997, S Ct Vic/Smith J), at 6.

(emphasis added)

In the context of a summary dismissal application, and in circumstances where the applicant is self-represented, the Court should ‘independently’ consider whether an arguable case exists based on the material which has been put forward (Chung v University of Sydney [2001] FMCA 94 at 14, upheld on appeal in Yo Han Chung v University of Sydney [2002] FCA 186).

(Emphasis in original)

44    In circumstances where the applicant was not represented by a lawyer, I have had regard to the material which has been put before the Court and, for the above reasons, do not consider that an arguable case exists.

45    Therefore, even if the applicant does have standing, in my view, the application does not have reasonable prospects of success.

46    The respondent sought that costs be awarded on the usual basis that costs ought to follow the event. The applicant sought that if it is ordered that any part of the originating application be struck out, the applicant be granted leave to file the amended originating application and that costs be awarded to the applicant on the basis that the respondent had, in ceasing the MATES Program and accepting the representative action since the filing of the originating application, led to the need for its amendment.

conclusion

47    For the above reasons, I do not consider that the applicant has standing to bring the application. However, even if the applicant did have standing, in my view, it does not enjoy reasonable prospects of success in prosecuting the proceedings. Judgment must be entered in favour of the respondent. Costs should follow the event.

Associate:

Dated: 12 August 2024