Federal Court of Australia

Remawi v Australian Information Commissioner [2024] FCA 1156

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

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    Before the Court is an application for judicial review of a decision made by a delegate of the Australian Information Commissioner (AIC) pursuant to s 41(1) of the Privacy Act 1988 (Cth) not to investigate the applicant’s complaint of an alleged privacy interference (the Decision).

2    By his originating application filed on 17 October 2023, the applicant seeks the following relief:

1.    Conduct an investigation into the matter and review the decision as employers’ privacy should always be considered.

2.    Mr Tom Reburn and Ms Alex Demovski to be held responsible for their action [sic]

3    The applicant appeared in person. The AIC appeared, quite properly, in accordance with the Hardiman principle: R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.

4    For the reasons that follow, the application is dismissed.

BACKGROUND

5    The applicant had been employed in the Pit Crew at Sydney Airport by Virgin Australia Airlines Pty Ltd until 8 December 2022 on which date his employment was terminated for misconduct. Thereafter, the applicant made complaints and applications to various regulatory and other bodies, including relevantly, to the Fair Work Commission (FWC) for a remedy for unfair dismissal and, specifically in relation to this matter, to the AIC in respect of a privacy complaint pursuant to s 36 of the Act.

6    The events about which the applicant complains in this matter arose in the context of his employment and he considers that they contributed to what he contended was unfair dismissal. For that reason, the proceedings before, and decision of, the FWC are relevant and provide useful background facts. The decision of the FWC, Remawi v Virgin Australia Airlines Pty Ltd [2023] FWC 1501 (FWC Decision), and the transcript of the proceedings were before the Court as exhibits to the affidavit of Mr Remawi filed on 2 January 2024.

7    In its decision, the FWC dealt at some length with the conduct of the applicant towards other Virgin employees including a female team member. It also dealt with actions taken by Mr Paul Daly, Ramp Manager for Virgin’s Sydney domestic ground handling operations in relation to the applicant. As well, relevant to this matter, the FWC noted that after he had been dismissed, the applicant “on 20 December 2022, reported Lillian Khan (Senior Legal Counsel) to Facebook, causing her personal Facebook account to be temporarily suspended”.

8    There were five reasons given for the applicant’s dismissal from Virgin, and they were put to him after internal investigations, in accordance with a process which the FWC found to be fair. Ultimately, the FWC, in its decision of 23 June 2023, relevantly concluded:

[186] Virgin Australia has established each of the five reasons it gave for the dismissal of Mr Remawi. Both separately and together, these were sound, defensible and well-founded reasons for dismissal. I am satisfied that Virgin Australia had valid reasons to dismiss Mr Remawi. This is despite deficiencies in the investigation of allegations pertaining to aspects of Reason 2 (specifically, Reports 4 and 5).

…

[220] There was a valid reason for the dismissal of Mr Remawi arising from his increasingly inappropriate conduct over the period from June 2021 to September 2022, and his subsequent lack of honesty when responding to the allegations made against him. The process undertaken by Virgin Australia to deal with those allegations was a fair one. Mr Remawi had appropriate support and a meaningful opportunity to respond.

9    The applicant lodged an appeal against the decision of the FWC, in respect of which permission to appeal was refused by a Full Bench of the FWC: Remawi v Virgin Australia Airlines Pty Ltd (t/as Virgin Australia) [2023] FWCFB 141. A copy of that decision is also annexed to Mr Remawi’s affidavit filed on 2 January 2023.

10    The applicant’s privacy complaint was made in or around January 2023. It alleged that Ms Alex Dimovski, an employee of Virgin, and former colleague, released the applicant’s personal information, that is messages he had sent to her, to Virgin and her friends without his consent. The privacy complaint nominated Mr Daly and Ms Dimovski as two individuals involved in the claimed breach of privacy. The complaint appears to be directly related to reason 4 for the applicant’s dismissal as set out in the FWC Decision at [22], namely:

…Mr Remawi sent multiple unwelcome and unsolicited Facebook messages to a female team member and continued to send friend requests after she requested that he stop.

11    Over the next three months, the applicant sent several emails to the AIC, complaining of further matters including that Virgin had accessed his work email without his consent, a lawyer acting for Virgin, Mr Tom Reaburn of McCullough Robertson, had disclosed matters relating to the applicant’s FWC claim to a third-party lawyer in a separate matter in the Local Court, and that Ms Dimovski had disclosed his personal information to the Transport Workers’ Union.

12    On 28 April 2023, Virgin provided a response to the applicant’s complaint, which outlined Virgin’s position and included a detailed factual background to the matter (Virgin’s Response Letter).

13    It was Virgin’s position that its collection of the applicant’s personal information was “reasonably necessary for the purpose of investigating and appropriately dealing with an allegation of serious workplace misconduct and taking appropriate steps following substantiation of that allegation”.

14    On 20 June 2023, a delegate of the AIC advised of its preliminary view that there had not been an interference with the applicant’s privacy. The AIC invited the applicant to comment on its preliminary view and, in accordance with that invitation, the applicant sent numerous emails to the AIC.

15    On 4 September 2023, a delegate of the AIC advised the applicant that the AIC’s view that the conduct complained of was not an interference with the applicant’s privacy remained unchanged, despite the applicant’s further submissions. The applicant was again invited to comment on the AIC’s further preliminary view and exercised this right by sending further emails to the AIC.

16    On 6 October 2023, a delegate of the AIC made a final decision not to investigate the complaint pursuant to s 41(1)(a) of the Act, that is on the basis that the act or practice complained about is not an interference with the applicant’s privacy. The Decision included a summary of the email submissions sent by the applicant throughout the AIC’s investigations as follows:

In your email submissions of 20 June 2023, 21 June 2023, 23 June 2023, 26 June 2023, 27 June 2023, 30 June 2023, 1 July 2023, 2 July 2023, 3 July 2023, 4 July 2023, 5 July 2023, 6 July 2023, 9 July 2023, 10 July 2023, 12 July 2023, 13 July 2023, 17 July 2023, 7 August 2023, 29 August 2023, 5 September 2023 and 7 September 2023 in summary, you raise the following:

•    Virgin Airlines accessed your work email without your consent.

•    Virgin Airlines religiously discriminated against you.

•    Your concern with ‘Alex Dimovski’ providing your personal information to Virgin Airlines and the Transport Workers’ Union.

•    You would like access to your personal information held by Virgin Airlines. In particular, ‘Alex Dimovski’s’ complaint to Virgin Airlines.

•    You allege that Mr. Tom Reaburn from McCullough Robertson Lawyers, who represents Virgin Airlines, disclosed information related to your case with the Fair Work Commission to a third-party lawyer in a separate case being heard in the Local Court.

•    Your concern with disclosure of your personal information by ‘Mr Paul Daly’ from Virgin Airlines to other Virgin Airline staff members. Specifically, Michelle Mooyman and Merna Abdelaziz, who were Cc’d into an email chain by Mr Daly in error.

•    You also raise concern with ‘Mr Paul Daly’ collecting information from ‘Ms Alex Demovski’ to terminate your contract.

17    In summary, the delegate of the AIC found in the Decision that:

    The collection of the applicant’s personal information by Virgin was reasonably necessary for Virgin to investigate the allegation of workplace misconduct. As to the complaint regarding Mr Daly’s involvement in the collection of information, Mr Daly, as an employee of Virgin, did so in his capacity as an employee of Virgin.

    Virgin accessed the applicant’s work email in accordance with Virgin’s “Acceptable Technology Usage” policy which includes that “Virgin Australia reserves the right to monitor and review any data transmitted using its IT infrastructure and over its networks”. The handling of the applicant’s personal information was for the purpose of investigating the applicant’s conduct in relation to his dealings with Virgin’s confidential information and was therefore “directly related to [the applicant’s] employment relationship with Virgin Airlines”. The employee records exemption pursuant to s 7B(3) of the Act applies to the handling of the applicant’s personal information.

    There was no evidence to establish that Mr Reaburn accessed the applicant’s work email. However, if he did, he did so in his capacity as a representative of Virgin.

    While it was accepted that Ms Dimovski initially engaged with the applicant in a personal capacity as a private citizen, her handling of the applicant’s personal information was done so in her capacity as an employee of Virgin. In that regard, the relevant conduct is a collection of the applicant’s information by Virgin, rather than a disclosure on Ms Dimovski’s part.

    Section 7B(1) of the Act provides an exemption to the handling of personal information by individuals acting in their own personal capacity. Therefore, even if Ms Dimovski did disclose the applicant’s personal information in her capacity as a private citizen, s 7B(1) of the Act would apply. Similarly, Ms Dimovski’s disclosure of the applicant’s personal information to the Transport Workers’ Union is caught by s 7B(1) and is therefore exempt from the Act.

    As to the allegation that Mr Reaburn disclosed the applicant’s personal information to a third-party lawyer in a separate case in the Local Court, this was denied by Mr Bill Morrissey, General Counsel for McCullough Robertson and there was no evidence provided to establish that such disclosure occurred.

    The applicant is required to raise directly with Virgin any requests regarding access to his personal information that is held by it. However, s 7B(3) of the Act may apply to the access request.

    The disclosure of the applicant’s personal information by Mr Daly, whereby he inadvertently copied in two other Virgin employees to an internal email, falls within the employee records exemption under s 7B(3) of the Act.

    The applicant’s complaint regarding religious discrimination is not dealt with under the Act.

statutory framework

Privacy Act 1988 (Cth)

18    Pursuant to s 36 of the Act, a person may complain to the AIC about an act or practice that may be an inference with their privacy. Section 40(1) of the Act prescribes that the AIC shall investigate the act or practice if the act or practice may be an inference with the person’s privacy and a complaint is made under s 36.

19    However, s 41(1) of the Act relevantly 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;

20    Section 41(1) of the Act enables the Commissioner to make the administrative decision not to investigate certain complaints, “thereby ensuring that public funds and resources are directed towards resolving potentially meritorious complaints”: Simjanovska v Department of Human Services [2019] FCA 499 at [122]. In that regard, the AIC’s role has been described as “an administrative gatekeeper of complaints”: Madzikanda v Australian Information Commissioner [2023] FCA 1445 at [50].

21    The exercise of the AIC’s discretion not to investigate a complaint pursuant to s 41(1) of the Act is enlivened upon there being a subjective satisfaction that no interference with the person’s privacy has occurred, rather than an objective determination: Simjanovska at [110].

22    As to the principles relevant to the judicial review of the administrative discretion exercised pursuant to s 41(1)(a), I refer to, and respectfully adopt, the statements of Greenwood J in Jones v Office of the Australian Information Commissioner [2014] FCA 285 at [19] – [21]:

As to the s 41(1)(a) discretion, every statutory discretion, or discretionary power, is confined by the subject matter, scope and purpose of the legislation under which it is conferred (FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 368 per Mason J; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355) and every statutory discretion has to be exercised according to “the rules of reason” (R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189 per Kitto J; Minister for Immigration & Citizenship v Li (“Li”) [2013] HCA 18; 297 ALR 225; (2013) 87 ALJR 618 at [23] and [24] per French CJ). The rationality required by “the rules of reason” is an essential element in the lawfulness or legality of administrative decision-making (Li, per French CJ at [26]). The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36; Kruger v Commonwealth (1997) 190 CLR 1 at 36; Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; 259 ALR 429; 83 ALJR 1123 at [15]; Li, per Hayne, Kiefel and Bell JJ at [63]).

The exercise of an administrative discretion by the Information Commissioner, not to further investigate a complaint, conditioned on the Information Commissioner’s state of satisfaction (that the complained of act is not an interference with the privacy of the individual on the footing that he or she is satisfied that a relevant organisation reasonably believed that disclosure was reasonably necessary for the investigation of a criminal offence by an enforcement body), requires the Information Commissioner to be satisfied, according to the rules of reason, that the “specific requirements” of the “express statutory conditions” are established by the material upon which he or she relies. A decision made that fails to reflect a state of satisfaction taking the express statutory conditions into account, according to the rules of reason, is beyond power because it “falls outside the framework of rationality provided by the statute” (Li, per French CJ at [26]).

Importantly, however, a requirement of legality in decision-making that a decision be reached according to the rules of reason or, put another way for present purposes, reached reasonably, or not unreasonably reached, is not a vehicle for challenging a decision made in contended error of law and beyond power simply because “disagreement” is found with the “evaluative judgment” of the administrative decision-maker. Challenging an administrative decision-maker’s reasoning as illogical or unreasonable may simply be an emphatic way of expressing disagreement with the decision or the merits, and such emphatic disagreement may have “no particular legal consequence” (Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J).

(Emphasis in original.)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

23    For present purposes, it is also useful to set out the relevant provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). Particularly, the applicant relies on s 5 of the ADJR Act as follows:

5 Applications for review of decisions

(1)    A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the decision on any one or more of the following grounds:

…

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

…

(h) that there was no evidence or other material to justify the making of the decision;

…

(2)    The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

…

(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

24    Further, with respect to review of conduct related to decision-making, s 6 of the ADJR Act relevantly provides:

6 Applications for review of conduct related to making of decisions

(1)    Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the conduct on any one or more of the following grounds:

…

(e) that the making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made;

…

(2)    The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

…

(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

25    The applicant also relies upon s 7(1) of the ADJR Act, which provides as follows:

7 Applications in respect of failures to make decisions

(1)    Where:

(a) a person has a duty to make a decision to which this Act applies;

(b) there is no law that prescribes a period within which the person is required to make that decision; and

(c) the person has failed to make that decision;

a person who is aggrieved by the failure of the first‑mentioned person to make the decision may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision.

26    As a fundamental principle, the Court, on a judicial review application, is to review the legality of administrative decisions, rather than to conduct an adjudication of its merits. Particularly, judicial review does not ordinarily extend to findings of fact: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 340 – 341.

application for judicial review

27    By his originating application, the applicant sets out the following grounds:

1. Under (s 39B(1A)(c) of the Judiciary Act 1903 (Cth)) and Administrative Decisions (Judicial Review) Act 1977 (Cth) sections 3(1), 3(5), 5(1)(e), 5(2)(h), 6(1)(e), 6(2)(h), 7(1) and 16(3) as the applicant disagree with the decision made by the OAIC.

2. Mr. Tom Reaburn from McCullough Robertson Lawyers accessed Haytham MJ Remawi work email without any legal documentation such as court, tribunal and federal police order or at least a consent of Dr Haytham MJ Remawi although there is no evidence Mr Remawi violated any privacy agreement with Virgin Australia as Virgin Australia fail to provide any evidence. Virgin Australia Electric Usage policy identifies the need for such clearance.

3. Mr. Tom Reaburn from McCullough Robertson Lawyers, who represents Virgin Airlines, disclosing false misleading information which created defamation to Mr Remawi in relation to falsifying Medical Records and Employment with Inthink information related to Fair Work Commission in which Mr Tom Reaburn got no evidence and this for the purpose to create defamation only to Mr Remawi.

4. Ms Alex Demovski Ms Alex Demovski [sic] disclosing Mr Remawi personal information to the Transport Workers union who for unknow [sic] reasons which created defamation although she accepted to be part of the working group member of Mr Remawi under Facebook Privacy policy which give her the option to leave the group any time.

5. Ms Alex Demovski created defamation to Mr Remawi by providing incorrect information that Mr Remawi sent to her multiple friend request which did not happen although at the Fair Work Commission, Ms Demovski stated clearly that she never asked Mr Remawi to stop. Mr Paul Daly mentioned a request on the 14 September which was never happened [sic].

28    The applicant read his originating application filed on 17 October 2023, his outline of submissions filed on 29 February 2024, his outline of submissions in reply filed on 21 March 2024, as well as his affidavits filed on 17 October 2023, 6 November 2023, 13 November 2023, 4 December 2023, 18 December 2023, 2 January 2024 (both affidavits filed on that day), 15 January 2024 and 20 May 2024. The applicant was also granted leave to rely upon his affidavit filed on 8 July 2024.

29    The applicant’s main ground of review (ground 1) is that he disagrees with the decision of the AIC not to investigate the complaint. Although the applicant’s submissions were repetitive, as well as somewhat confused and discursive, it would appear that grounds 2, 3, 4 and 5 are what the applicant regarded as the primary exemplars of why he thought the decision was wrong.

30    As to the applicant’s reliance upon ss 3(1) and (5) of the ADJR Act, as was correctly submitted by the AIC, they are interpretation provisions and could not form grounds for the applicant’s application. In any case, his submissions in that regard were seemingly directed at matters which the applicant alleges the AIC failed to consider. Specifically, the applicant submitted that the AIC failed to consider that Virgin provided contradictory information regarding the statements of Ms Dimovski, and that the show cause letter to the applicant, signed by Mr Daly on behalf of Virgin, referred to the applicant sending a Facebook friend request to Ms Dimovski on 14 September 2022, yet that date was not referred to in Ms Dimovski’s statement.

31    The applicant also appeared to submit that the AIC failed to consider the applicant’s evidence which included that there was a “relationship” between Ms Demovski and Mr Daly, and that Ms Dimovski had provided a union representative with his personal information.

32    The applicant further submitted that the AIC did not consider the “false allegation by Ms Lillian Khan about [the] suspension of her Facebook account”, as well as the complaint regarding Mr Reaburn’s access to the applicant’s work email.

33    The applicant made the following additional submissions:

    Pursuant to ss 5(1)(e) and 6(1)(e) of the ADJR Act, the making of the decision was an improper exercise of power on the basis that the AIC did not exercise its power to “investigate and ask Virgin to provide evidence to the false allegation they provided”;

    Pursuant to s 5(1)(h) of the ADJR Act, there was no evidence or other material to justify the making of the decision on the basis that Virgin provided “contradicting and non-relevant information” and there was a “huge misuse of the regulation”;

    Pursuant to ss 5(2)(h) and 6(2)(h) of the ADJR Act, the AIC erred by deciding not to investigate the applicant’s complaint and not to require Virgin to provide evidence;

    Pursuant to s 7(1) of the ADJR Act, the AIC erred by failing to make a decision. The applicant also relied upon s 16(3) of the ADJR Act.

    The AIC failed to consider the seriousness of the applicant’s complaint and the damage caused to the applicant as a result of the mishandling of his personal information.

34    The AIC relied upon the court book, the outline of submissions filed on 15 March 2024 and a bundle of authorities filed on 5 April 2024.

consideration

35    It is appropriate to approach the applicant’s claims in two parts. First, I will consider the applicant’s claim that the AIC failed to take into account a number of relevant considerations, as this constituted a large part of the applicant’s submissions. I will then turn to the remainder of the grounds upon which the applicant relies.

Failure to take into account relevant considerations

36    In Rana v Australian Information Commissioner [2022] FCA 817 at [72], Banks-Smith J relevantly stated the following in respect of the applicant’s allegation that a delegate of the AIC failed to have regard to a certain matter:

… As the Commissioner submitted, consistent with the observations in Wattie, the fact that a complainant may raise a fact does not of itself make that fact relevant to the delegate’s consideration of the complaint. Otherwise, a delegate would be obliged to consider each and every matter that might be raised by a complainant, including those that have no logical connection to the task at hand or its resolution.

(Emphasis in original.)

37    As referred to above in Rana, in Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 at [138] – [139], McColl JA (Macfarlan JA agreeing and Emmett AJA to similar effect) stated the following as to a decision-maker’s failure to consider a relevant consideration:

Fourthly, the fact that failure to take a relevant consideration into account in the exercise of a power is a ground of judicial review, does not, however, mean “that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account.” “The fact that [a party] chooses to refer to particular matters does not convert them into relevant considerations in the administrative law sense from which other consequences might flow. That is determined by reference to the statute.”

That does not mean parties may not point to matters they contend were required to be taken into consideration. Nevertheless, even taking such submissions into account, where relevant considerations are not specified, “it is largely for the decision-maker … to determine which matters the decision-maker regards as relevant and the comparative importance to be accorded to such matters.”

(Citations omitted)

38    The applicant appeared to submit that the AIC did not consider that Virgin relied upon contradictory evidence. At the hearing, the applicant took the Court to the show cause letter sent by Mr Daly on behalf of Virgin to the applicant in relation to his dismissal, in which the following was relevantly stated:

From 28 July 2022 onwards it is alleged that you sent unwelcome and unsolicited Facebook messages to Alex Dimovski, Pit Crew Operator.

•    From 3 September 2022 you sent multiple Facebook friend requests and then deleted the requests, in doing so, the request would have shown up as a new notification. The most recent request was made on 14 September 2022.

(Emphasis added.)

39    The applicant submitted that in Virgin’s Response Letter, no reference is made to a friend request made on 14 September 2022. The applicant contended that the evidence was “fabricated” and that this demonstrates that the AIC did not conduct the required investigation.

40    However, as the transcript of the FWC hearing discloses, Virgin conceded that the date as set out in the show cause letter was not correct. Further, and more importantly, the applicant did not put to the Court why this consideration was relevant to the AIC’s determination of the matter. The AIC did not refer to the 14 September 2022 date in its Decision, nor is there anything to suggest that it was of import in its determination not to investigate the matter.

41    As well, it appears that the applicant contends that there was no evidence to support Ms Khan’s allegations about the suspension of her Facebook account and the applicant’s involvement in that suspension. However, it is unclear what relevance this matter has to the Decision.

42    As to the applicant’s claim that the AIC failed to consider his submissions about Mr Reaburn’s access to his work email, this is plainly not the case. The AIC explicitly did take this matter into account and found that while there was no evidence that this occurred, if it did, any access Mr Reaburn may have had was in his capacity as a representative of Virgin.

43    The applicant did not take the Court to any basis upon which the AIC ought to have considered the other matters that he had raised, such as, for example, the “relationship” between Ms Demovski and Mr Daly, nor why those matters were relevant considerations. As stated in Rana, the AIC is not required to consider every matter raised by a complainant.

44    I am not satisfied that there has been any error made by the AIC in respect of its consideration, or lack of consideration, of any of the matters to which the applicant referred.

Remainder of the grounds relied upon

45    I do not consider that there is merit in the applicant’s claim that there was an improper exercise of power pursuant to ss 5(1)(e) and 6(1)(e) of the ADJR Act. Upon reaching the requisite state of satisfaction, the AIC was entitled to make a decision not to investigate the applicant’s complaint pursuant to s 41(1) of the Act. As to the applicant’s submission that the AIC did not require Virgin to provide evidence, it ought to be noted that the AIC is not limited to considering material which would constitute evidence in a judicial context: Masi-Haini v Minister for Home Affairs (2023) 298 FCR 277; [2023] FCAFC 126 at [37], referring to L & B Linings Pty Ltd v WorkCover Authority (NSW) [2012] NSWCA 15 at [33]-[34] Basten JA (with whom McColl and Whealy JJA agreed). The nature of permissible evidence will be considered in more detail below.

46    While the applicant did not refer to this claim in his originating application, he made the submission that there was no evidence or other material to justify the making of the decision pursuant to s 5(1)(h) of the ADJR Act. It is convenient to consider the operation of that provision.

47    Section 5(3) of the ADJR Act provides that s 5(1)(h) shall not be taken to be made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

48    As submitted by the AIC, the phrase “no evidence” pertains to “not a skerrick of evidence”: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41 at [17] (Keane, Gordon, Edelman, Steward and Gleeson JJ). As stated by Jessup J in Australian Postal Corporation v D’Rozario (2014) 222 FCR 303; [2014] FCAFC 89 at [50], referring to the statement of Basten JA (Bathurst CJ agreeing) in D’Amore v Independent Commission Against Corruption (2013) 303 ALR 242; [2013] NSWCA 187 at [235], the term evidence encompasses any “material which could rationally affect the decision-maker’s assessment of the probability of the facts in issue”.

49    As to the nature of evidence which may be relied upon, I refer to the following statement of the Full Court in Masi-Haini at [37]:

It is important to bear in mind that, in administrative decision-making, the nature of the material that can be relied upon in reaching a decision is not as strict as in a proceeding before a court; and, indeed, inferences may be drawn from an absence of evidence. Relevantly in L & B Linings Pty Ltd v WorkCover Authority (NSW) [2012] NSWCA 15 (L & B Linings) at [33]-[34] Basten JA (with whom McColl and Whealy JJA agreed) said:

33 The respondent relied upon the discussion of the ‘no evidence’ ground, under the general law, in the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 356. Mason CJ noted that there was ‘no error of law simply in making a wrong finding of fact’ — referring to Waterford v The Commonwealth [1987] HCA 25; 163 CLR 54 at 77 (Brennan J); noting that ‘want of logic is not synonymous with error of law’, he continued:

So long as there is some basis for an inference — in other words, the particular inference is reasonably open — even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

34 Four points of caution should be made. First, this passage indicates that the ‘no evidence’ ground of judicial review depends not on the reasoning of the decision-maker, but on a comparison between the material available to the decision-maker and the conclusion reached. Secondly, care must be taken with the term ‘no evidence’, as an administrative decision-maker is usually entitled to take into account material which would not count as ‘evidence’ in a judicial context. In what is essentially an inquisitorial inquiry, that material is not necessarily limited to the material placed before the decision-maker by the applicant for review. Thirdly, it is important to bear in mind that the decision-maker may be entitled to seek support for a particular inference from the absence of material supportive of a contrary view. Fourthly, where an evaluative judgment is to be formed on the basis of conflicting indicators, it will be difficult if not impossible to establish a ‘no evidence’ ground of review.

50    The applicant submitted that Virgin provided “contradicting and non-relevant information”, however it is not clear what the applicant submits was the error in the Decision with respect to the evidence relied upon by the AIC. In this case, as contended by the AIC, there plainly was material before the AIC, including Virgin’s Response Letter. It therefore cannot be the case that there was no evidence or other material to justify the making of the decision. The applicant’s claim as to the purported failure by the AIC to take account of the “contradicting” evidence provided by Virgin has been considered at paragraph 40 above.

51    Further, the claim that the AIC exercised its power in such a way that the result of the exercise of power is uncertain, pursuant to ss 5(2)(h) and 6(2)(h) of the ADJR Act, must be rejected. The applicant submitted that the power exercised by the AIC was uncertain on the basis that it did not use its power to investigate his complaint. The AIC is empowered not to investigate a complaint pursuant to s 41(1) and it explicitly relied upon that provision to make its decision. It did so on the basis that the act or practice complained about does not constitute an interference with the applicant’s privacy. No error can be discerned from this.

52    The same can be said for the applicant’s claim that the AIC failed to make a decision pursuant to s 7(1) of the ADJR Act. This provision refers to instances in which there is a duty to make a decision, there is no law that prescribes a period within which the person is required to make that decision and there has been a failure to make that decision: s 7(1) of the Act. In this case, the AIC made the decision not to investigate the complaint, which is a decision it may make subject to reaching the requisite state of satisfaction. Relatedly, the applicant also relied upon s 16(3) of the ADJR Act, which provides as follows:

(1)    On an application for an order of review in respect of a failure to make a decision, or in respect of a failure to make a decision within the period within which the decision was required to be made, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, in its discretion, make all or any of the following orders:

(a)    an order directing the making of the decision;

(b)    an order declaring the rights of the parties in relation to the making of the decision;

(c)    an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.

53    The AIC submitted that the powers under this s 16 of the ADJR Act are exercised upon there being a ground of review established, relying on Johns v Australian Securities Commission (1993) 178 CLR 408; [1993] HCA 56 at 433 (Brennan J); at 437 (Dawson J agreeing), at 458 (Toohey J); and at 459 – 460 (Gaudron J). While that case dealt with s 16(1)(d) of the ADJR Act, I consider that the principles are similarly applicable to s 16(3) in these circumstances. No ground of review has been established in this case and, with respect to s 16(3) of the Act, there has not been a finding that the AIC failed to make a decision. This claim cannot succeed.

costs

54    The AIC sought its costs on the standard basis if the application is refused. Despite taking a Hardiman position, the AIC contended that it is appropriate that it have its costs in circumstances where there was no active contradictor in this matter and it has provided substantive assistance to the Court. The AIC took the Court to Papoutsakis v Australian Information Commission [2024] FCA 75 at [64], in which the Court awarded costs to the AIC in similar circumstances.

55    The applicant submitted that he was not put on notice of the AIC’s position on costs and seemingly argued that the AIC did not sufficiently assist the Court as it did not provide information on its investigation processes or the policies of Facebook. It is difficult to accept the applicant’s submission that he was not put on notice as to the AIC’s position in relation to costs, which was set out in the AIC’s outline of submissions filed on 15 March 2024. It is also unclear why the applicant submits that the AIC should have taken the Court to its investigation processes or Facebook policies in response to this application.

56    Further, in his written submissions in reply, the applicant contended that he disagrees that there was no active contradictor in this proceeding as he has acted as “coordinator” and has provided the AIC and the Court with all the required information. The applicant’s submission is misconceived. With the AIC being named as the sole respondent, there is plainly no active contradictor in this proceeding.

57    It is appropriate to consider the principle established by the High Court in Hardiman, as stated at 35 – 36:

In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.

58    However, the application of the Hardiman principles requires “some adapted flexibility to the particular circumstances which present themselves to the Court for consideration”: Ogawa v Australian Information Commissioner [2014] FCA 229 at [23]; MetLife Insurance Ltd v Australian Financial Complaints Authority (No 3) [2022] FCA 849 at [12]. Further, as stated by Greenwood J in Ogawa at [25]:

The first respondent correctly identifies that the proceedings before the decision-maker in this case were not inter-parties proceedings and the Attorney-General has not elected to represent the public interest on the question of the legality of the first respondent’s decision-making. Since there is no person present before the court who can otherwise address the legality of the first respondent’s decision-making (in addressing the public interest in determining the legality of that decision-making) it is desirable that submissions be entertained from the first respondent in assisting the court to determine the legality of the decision-making under challenge (see Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666; Giniotis v Human Rights and Equal Opportunity Commission [2000] FCA 1954).

59    While the AIC appeared properly in accordance with the principles in Hardiman, it also made helpful submissions in circumstances where there was no active contradictor and the applicant had relied upon various grounds of review and a large volume of material. Therefore, in my view, the applicant should pay the AIC’s costs.

conclusion

60    For the aforementioned reasons, the application should be dismissed. The applicant ought to pay the AIC’s costs as agreed or assessed.

Associate:

Dated:    2 October 2024