Federal Court of Australia

Garvey v Australian Information Commissioner [2026] FCA 614

ORDERS

THE COURT ORDERS THAT:

1.    The originating application dated 2 October 2024 is dismissed.

2.    The Applicant pay the Respondents’ costs of the proceeding to be assessed if not agreed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The originating application dated 4 February 2025 is dismissed.

2.    The Applicant pay the First Respondent’s costs of the proceeding to be assessed if not agreed.

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

REASONS FOR JUDGMENT

LONGBOTTOM J:

overview

1    The Applicant is a former PhD candidate at the Australian National University (ANU). He believes that his records and personal information were targeted in a 2018 cyber-attack by which a “sophisticated actor” gained access to, and exfiltrated files from, part of the ANU network housing its human resources, financial management, student administration and enterprise e-forms systems.

2    The Applicant believes that documents held by the ANU will say or prove that he was experimented upon without consent, his academic freedom was infringed, and his email account was hacked, and emails were sent in his name. The Applicant also believes his personal information was used to blackmail the ANU Vice Chancellor in 2018. The Applicant wants to initiate legal action for the infringement of his rights and privacy and considers that these documents are necessary to do so.

3    In pursuit of those beliefs, in 2019 and 2023, the Applicant made requests under the Freedom of Information Act 1982 (Cth) (FOI Act) for access to documents held by the ANU (respectively, the 2019 FOI request and the 2023 FOI request). In these proceedings, the Applicant seeks review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) of a decision of the Administrative Review Tribunal made on 9 January 2025 relating to the 2019 FOI request (QUD61/2025) (ART decision) and a decision of the Australian Information Commissioner made on 9 September 2024 relating to the 2023 FOI request (QUD587/2024) (Second IC decision).

4    The ANU is a respondent in both QUD61/2025 and QUD587/2024. The ANU contends that the originating application in each proceeding should be dismissed because the Applicant’s pleaded grounds of review are bare assertions unsupported by particulars or submissions. The ANU submits that, in substance, the Applicant is impermissibly asking the Court to engage in a merits review of the ART decision and the Second IC decision, and seeks to compel the ANU to produce the documents sought by the 2019 and 2023 FOI requests. The ANU also seeks an order for its costs in each proceeding as does the Information Commissioner, who is a respondent in QUD587/2024.

5    In May 2025, the Applicant sought leave in QUD61/2025 to issue three subpoenas addressed to the ANU for the production of documents (subpoena requests). I refused leave to issue the subpoenas because, for the reasons outlined below, I was not satisfied they had a legitimate forensic purpose. Having regard to that refusal, and while the Applicant subsequently filed written submissions and appeared at the hearing, he contended that the proceedings were “futile” and seeks an order that his costs be capped at $0.

6    The originating application in each of QUD61/2025 and QUD587/2024 will be dismissed with costs. That is because, for the reasons which follow, neither decision is affected by administrative error and I am not satisfied that either decision was induced or affected by fraud as the Applicant contends. In each proceeding, I am persuaded that the Applicant seeks an impermissible merits review and, further, that there is no reason to depart from the ordinary rule with respect to costs.

art decision (qud61/2025)

What did the Tribunal decide?

7    The ART decision affirmed the decision of the Information Commissioner made on 2 April 2024, by which she set aside and substituted her own decision from that made by the ANU in response to the 2019 FOI request (First IC decision). The 2019 FOI request was for access to the following documents:

… any email, file, text document, sound recording, image or video written, composed or held by the office of the vice chancellor – including anything written or composed by Professor Brian P Schmidt – that concerns me, my conduct, my scholarship or a necessity to infringe my academic freedom.

8    The ANU identified 31 documents in response to the 2019 FOI request. The First IC decision concerned 28 of those documents: being documents that the ANU had decided either not to release (one) or release in part (27) with redactions of personal information the ANU deemed to be conditionally exempt or information that the ANU deemed irrelevant: cf, FOI Act, s 22 and s 47F.

9    The Tribunal proceeded on the basis there were two issues before it. First, whether the First IC decision with respect to the 28 documents was wrong: ART decision at [29]-[58]. Second, whether documents related to the Applicant and his academic freedom had been withheld by the ANU in responding to the 2019 FOI request: ART decision at [59]-[68]. Of particular relevance to this proceeding, the Applicant contended before the Tribunal with respect to the second issue, that relevant documents had been withheld and sought access to the following key documents:

1.    The published film of me in the streets of Hong Kong in November 2017 purportedly showing my participation in and/or approval of an entrapment exercise which i[n] fact was a doctored, edited and/or deep-faked film of my undergoing human experimentation without consent and which caused my traumatisation. (The multiple unlawful purposes of the filming of human-experimentation-without-consent included defamation, blackmail, traumatisation to achieve trauma-based mind control, and involuntary initiation into an anti-China cult.)

2.    The letter or document written and/or signed by the former vice chancellor of the ANU, Brian Schmidt, that caused and/or induced and/or compelled the infringement of my academic freedom and condoned of, or approved, the research misconduct by Dr. Mark Harrison. (Schmidt was blackmailed into writing and/or signing the letter with the “dirt” of the film.)

3.    Emails, purportedly sent to me by Ms. Robyn Elliot, that were in fact sent by the former vice chancellor, Brian Schmidt, after he hacked into my email account. (Schmidt’s commission of the crimes of hacking and criminal fabrication of official records was for the purpose of creating the illusion that I approved of and/or participated in the entrapment exercise and/or was not traumatised by the witnessing of the entrapment exercise.)

10    The Tribunal found that there was an absence of “documentary evidence, independent of the Applicant’s own supposition or inference, which would support the drawing of a conclusion” that those key documents “exist, that [the ANU] could reasonably be expected to have access to such documents if they did exist, and ought to produce them”: ART decision at [64].

11    The Applicant requested that the Tribunal issue summonses to Mitchell Downes (a solicitor he had consulted who had provided him with written advice and then advised the Applicant that he could not continue to act for him) and Professor the Hon Gareth Evans AC KC (the former chancellor of the ANU). The Applicant sought those summonses on the basis that Mr Downes and Professor the Hon Evans AC KC could give evidence that would support the inference that the documents exist. The Tribunal refused to issue the summonses characterising that submission as “pure speculation by the Applicant, unsupported by any evidence before it, other than evidence from the Applicant” himself: ART decision at [68].

12    It followed that the Tribunal declined to compel the ANU to provide access to the key documents. The Tribunal also reviewed the 28 documents the subject of the First IC decision in their unredacted form and made findings as to whether they were irrelevant to the 2019 FOI request or conditionally exempt: cf, FOI Act, s 22 and s 47F. The Tribunal concluded in that regard that the correct or preferable decision on the material was that the First IC decision be affirmed.

Should the originating application be dismissed because relief is available under the Administrative Review Tribunal Act 2024 (Cth)?

13    The Applicant seeks review of the ART decision under the ADJR Act. The Applicant had a right of appeal on a question of law from the ART decision under s 172(1) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), but has not exercised that right. The ANU accepts that the ART decision falls within the terms of the ADJR Act and that the originating application is not rendered “incompetent” by reason of its “unorthodox nature” as a judicial review application rather than an appeal against the ART decision: ADJR Act, s 3 and s 5; see also, Australian Postal Corporation v Sellick [2008] FCA 236; (2008) 245 ALR 561 at [99]-[104] (Bennett J).

14    I have a discretion to dismiss the originating application because the Applicant has a right of appeal under the ART Act: ADJR Act, s 10(2)(b)(ii). The ANU has not asked me to exercise that discretion as they seek the just resolution of the dispute as quickly, inexpensively and efficiently as possible: Federal Court of Australia Act 1976 (Cth), s 37M(1)(b). Given the ANU’s position, and consistent with the objects stated in s 37M of the Federal Court Act, I am prepared to proceed in this way: cf, Rana v Australian Federal Police [2006] FCA 890 at [2] (Besanko J).

Does the Applicant have standing to bring the originating application?

15    The Applicant says he is aggrieved by the ART decision because it was made after the ANU “had deliberately withheld the relevant documents”. The ANU does not accept this assertion, but is nonetheless prepared to accept that the Applicant is aggrieved by the ART decision because it affirmed the First IC decision, contrary to the Applicant’s request that it be set aside: cf, ADJR Act, s 5.

Why does the Applicant contend that the ART decision should be set aside?

16    The originating application seeks review of the ART decision on the following grounds: the ART decision was not authorised by the FOI Act, was an improper exercise of the power conferred by the FOI Act (on each of the grounds in s 5(2)(a) to (d) and s 5(2)(g) to (j) of the ADJR Act); involved an error of law; was induced or affected by fraud because the ANU deliberately failed to disclose the key documents to the Tribunal and was otherwise contrary to law: cf, ADJR Act, ss 5(1)(d), 5(1)(e), 5(1)(f), 5(1)(g) and 5(1)(j).

17    By the originating application, the Applicant seeks the following relief:

1.    An order that the Australian National University take all reasonable steps to identity the documents captured by the FOI request.

2.    An order that the Australian National University provide to the court the documents captured by the FOI request that were not disclosed to the ART.

3.    An order that the Australian National University provide to the court the document written by Schmidt that was the product of his blackmailing that authorised the violation of the Applicant’s academic freedom and condoned the research misconduct of Dr. Mark Harrison of the University of Tasmania.

4.    An order that the Australian National University provide to the court the documents that are the two positive evaluations of the Applicant’s scholarship, written by Drs. Luigi Tomba and Benjamin Penny, if the ANU has copies of them. (These documents were the target of the “diamond heist” 2018 hacking of the ANU.)

5.    An order that the Australian National University provide to the court the documents that were emails purportedly sent by the Applicant to Ms. Robyn Elliot that in fact were sent by the former vice chancellor, Brian Schmidt, to Ms. Robyn Elliot after Schmidt criminally hacked into my personal email account.

6.    An order that the Australian National University provide to the court the document (the film) that was used to blackmail the former vice chancellor that is proof of the Applicant’s human-experimentation-without-consent-form torture, ritual abuse, involuntary initiation into an anti-China cult and defamation.

(Footnotes omitted)

18    At the hearing, the Applicant proposed alternative orders. Of present relevance, they included an order for a stay of the proceeding QUD61/2025 pending reconsideration of the subpoena requests.

Why was leave to issue the subpoenas refused?

19    The subpoena requests sought to require the ANU to produce copies of the following:

1.    The film or video of the Applicant that purportedly depicts his participation in an entrapment exercise or “sting operation” on the streets of Hong Kong, received by the ANU in 2018, however it was received by the ANU and from whomever it was received.

2.    The document or documents produced and/or written and/or signed by the former vice chancellor Brian Schmidt that was placed before and/or considered by the three-person ANU tribunal that convened on 18 December 2018 to consider evaluations of the Applicant’s research, including any document that authorised and/or compelled and/or encouraged the tribunal to approve the infringement of the Applicant’s academic freedom and/or authorised and/or compelled and/or encouraged the approval and/or condoning of [redacted] research misconduct.

3.    The documents that are emails purportedly sent by the Applicant … to Ms. Robyn Elliot … in the period 09 April 2019 to 18 April 2019 that was the period that encompassed the period of time a hacker at the ANU had access to the Applicant’s email account.

4.    The two positive applications of the Applicant’s PhD research written by Luigi Tomba and Benjamin Penny.

5.    The document or documents that are a record of information provided to the Australian National University by Mr. Mitchell Downes, the Brisbane-based former solicitor of the applicant, including any document that contains information that directly or indirectly relates to the Applicant.

(Requests in the original; paragraphs renumbered)

20    The subpoena requests stated that the documents at [19(1)]-[19(2)] were sought because they should have been provided to the Tribunal, but were withheld. The Applicant stated that the documents at [19(3)]-[19(5)] were sought because they provide the context in which the significance of the other documents may be understood, despite not being themselves captured by the 2019 FOI request.

21    As r 24.01 of the Federal Court Rules 2011 (Cth) contemplates, I considered the Applicant’s requests for leave to issue the subpoenas ex parte and in chambers: Spencer v Commonwealth of Australia [2014] FCA 1234 at [11] (Mortimer J); see also, Dunstan v Orr [2022] FCA 1006 at [31] (Wigney J).

22    I declined leave to issue the subpoenas because I was not satisfied that they had a “legitimate forensic purpose”: McIlwain v Ramsey Food Packaging Pty Ltd; [2005] FCA 1233; (2005) 221 ALR 785 at [35(h] (Greenwood J), citing Trade Practices Commission v Arnotts Limited (No 2) [1989] FCA 340; (1989) 21 FCR 306 (Beaumont J); see also, Spencer at [15]-[16], relevantly citing Wong v Sklavos [2014] FCAFC 120 at [12] (Jacobson, White and Gleeson JJ).

23    A subpoena will have a “legitimate forensic purpose” when the documents sought have “apparent relevance” to the issues in the proceeding in that, viewed realistically, they have a bearing on an issue which is not unreal, fanciful or speculative: Wong at [12] and the authorities there cited.

24    I was not persuaded that the documents sought satisfied that criteria for two reasons. First, insofar as it concerned the allegations that the ART decision is affected by administrative error the subpoenas were not directed to that issue. They variously sought production of documents the Tribunal found do not exist or documents that provide a “context” for the significance of those key documents, it can be inferred, in support of the contention that they ought to be produced. It is not the role of the Court in this proceeding to review the merits of the ART decision by deciding those questions of fact afresh: cf, Hamden v Campbell (No 2) [2012] FCA 460 at [33] (Lander J); Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 36 (Brennan J). Nor is it the role of the Court to, in effect, subvert the application for judicial review of the ART decision, by issuing subpoenas for the production of documents the subject of the 2019 FOI request.

25    Second, to the extent to which the subpoenas were directed to the contention in the originating application that the ART decision was induced or affected by fraud because the “ANU deliberately failed to disclose the key documents” to the Tribunal, in my assessment, they constituted a “fishing expedition” without a legitimate purpose: cf, McIlwain at [35(e)] and the authorities there cited. That is because there was no evidence, and beyond the Applicant’s assertions, no reason to suppose that the key documents exist: Lowery v Insurance Australia Ltd [2015] NSWCA 303; (2015) 90 NSWLR 320 at [42] (Emmett JA, with whom Basten JA agreed at [6]).

26    Nothing emerged during the course of the hearing that alters the conclusion I reached with respect to the subpoena requests. Proceeding on the basis that the Applicant makes the subpoena requests afresh, I refuse leave under r 24.01 of the Rules for the reasons outlined above and decline to grant a stay of QUD61/2025.

Has the Applicant established that the ART decision is affected by administrative error?

27    The Applicant bears the legal onus of establishing his grounds of review: Northern Disability Services Pty Ltd v National Disability Insurance Agency [2024] FCA 892 at [115] (Horan J). The Applicant has filed written submissions, but they do not address the grounds of review pleaded in the originating application. Rather, they refer to the subpoena requests, various studies with respect to organised ritual abuse, the psychiatric profession and methods of brainwashing or mind control, as well as a statement attributed to the United Nations that access to justice is a form of rehabilitation for torture victims. The written submissions also refer to an exchange before the Tribunal wherein the Applicant asked counsel for the ANU whether counsel denied that the documents exist.

28    During the hearing, I asked the Applicant whether there were any submissions he sought to advance as to why the ART decision was affected by administrative error, bearing in mind that it was not the function of the Court on a judicial review to revisit the factual findings made by the Tribunal.

29    There then occurred the following exchange:

[APPLICANT]:    Well, I’m sure you’re aware of the principle of legality. And that’s a matter of law, I think you would agree, your Honour.

HER HONOUR:    And, …, are there any other – so you’ve identified in your originating application five grounds – you’ve identified a number of grounds of review. Is there anything else you want to say to me – I’m just focusing on the ART decision – about why you say those grounds of review are made out, and why the decision should be set aside?

[APPLICANT]:    Well, I think the grounds speak for themselves.

HER HONOUR:    There are no other submissions you seek to make?

[APPLICANT]:    Well, as I said in my proposed orders, I feel that once you made the decision not to issue the subpoenas, this proceeding became futile and/or meaningless and meant I had no chance to succeed.

30    The Applicant also made reference to [29] of the ART decision where the Tribunal refers to receiving an affidavit annexing 28 documents provided by the ANU in their unredacted form for the purpose of deciding whether access ought to be provided to the redacted parts of those documents. The Applicant contended that the redactions “may have been relevant” to the 2019 FOI request, and appeared dissatisfied with the Tribunal’s findings with respect to the 28 documents the subject of the ART decision. The Applicant did not, however, articulate why the decision made by the Tribunal with respect to those documents was susceptible to judicial review.

31    The Applicant is not legally represented. The Court has a duty to ensure that its processes are fair, which requires that a litigant does not suffer a disadvantage from exercising their right to be self-represented: Zaghloul v Woodside Energy Limited (No 9) [2019] FCA 1718 at [17] (Colvin J). But while it is common for the courts to take a lenient view of the rules and the law in aid of such litigants, that leniency should not go so far as to conferring an advantage on the person who acts on their own behalf: Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79 at [21] (Collier ACJ, Goodman and Meagher JJ) and the authorities there cited.

32    The Applicant has been given the opportunity both orally and in writing to make submissions as to why the ART decision is affected by administrative error. The matters the Applicant raised, as detailed above, neither support the pleaded grounds of review nor provide a discernible basis for judicial review of the ART decision. Indeed, as appears from the orders in the originating application and his submissions, including with respect to the subpoena requests, the Applicant is asking the Court to do what it cannot on an application for judicial review – that is, review the merits of the ART decision by deciding afresh whether the ANU holds additional documents within the scope of the 2019 FOI request that it has not identified and whether the 28 documents identified, but not provided (in whole or part), are irrelevant to the 2019 FOI request or conditionally exempt as found by the Tribunal: cf, Hamden at [33]; Quin at p 36.

33    Insofar as the Applicant relies on the “principle of legality”, as Ms Slack for the ANU highlighted, it operates where constructional choices are available with reference to legislation. The principle governs the relationship between parliament, the executive and the courts and relevantly requires that courts not impute to the legislature an intention to interfere with fundamental rights: Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; (2004) 221 CLR 309 at [20] and [21] (Gleeson CJ), citing Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at p 437 (Mason CJ, Brennan, Gaudron and McHugh JJ). The principle is not material to the disposition of the application for judicial review of the ART decision because the Applicant has not identified any issues as to the construction of the FOI Act, including insofar as it affects his rights.

34    Insofar as the Applicant contends there has been some illegality or criminality connected with the response to the 2019 FOI request that may have affected or induced the ART decision, I am not satisfied that bare assertion, without more, provides a basis to discharge the burden of proof with respect to such a serious allegation: cf, ADJR Act, s 5(1)(g); Ayan v Minister for Immigration & Multicultural Affairs [2002] FCA 470 at [8] (Emmett J); see generally, SZFDE & Ors v Minister for Immigration and Citizenship & Anor [2007] HCA 35; (2007) 232 CLR 189 (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ).

35    It follows that I am not satisfied that the Applicant has discharged his burden of establishing the grounds of review in QUD61/2025. The originating application will, therefore, be dismissed.

SECOND IC decision (qud587/2024)

What did the Second IC decision concern and what did the delegate of the Information Commissioner decide?

36    The Second IC decision concerned an application for a review of the decision made by the ANU on 29 March 2023 (ANU decision) to refuse access to the following documents sought by the 2023 FOI request:

Any document in my student file or otherwise held by the ANU that shows my privacy has been breached and/or that documents or files relating to me have been stolen or altered or otherwise interfered with, and/or that there has been a data breach concerning my personal information or student file.

Date range for the documents requested 1 November 2017 to 20 March 2023.

37    The ANU refused the 2023 FOI request under s 24A(1)(b)(ii) of the FOI Act because “the relevant areas of the University were contacted and a search conducted for documents relating to the scope of [the 2023 FOI request], but no relevant paper based or electronic documents could be located”.

38    While the ANU refused the 2023 FOI request, it provided the Applicant with an “incident report” in relation to the cyber-attack. The incident report recorded that a sophisticated actor gained unauthorised access in early 2018 and that their “dwell-time on the ANU network was approximately six weeks, with most malicious activity ending around mid-December 2018, although there were some further attempts after this time”. The ANU decision also included the following additional information provided by its Chief Information Security Officer about the cyber-attack:

While it is not possible to confirm what records were taken nor indeed which specific enterprise systems were affected [in the data breach], ANU can surmise a few things:

1.    ANU knows the threat actors continued to try, unsuccessfully, to access enterprise systems after they were cut off. From this we assess that they did not get what they wanted and what they did retrieve was most likely not in a usable format.

2.    ANU continues to watch the dark web and hacker sites for any instances of ANU data being traded or discussed and ANU is yet to find any mention of the data taken. If the actor was criminally motivated, they were not able to monetise or otherwise exploit the data.

3.    If the actor was not criminally motivated, ANU has not seen any indication of the data being used to direct further attacks against current or past staff and students. Nor has ANU been advised of that by government agencies.

Based on the above, the CISO assesses that there is a very low probability of any adverse impact to members our community.

Since 2020 ANU has strengthened our cyber security considerably. Among the many measures ANU has implemented, the CISO draws your attention to the dedicated workforce ANU has, which monitors for and responds to cyber threats. ANU has also taken steps to protect the data it holds on behalf of our community and intends to invest even more in the coming years.

What did the delegate of the Information Commissioner decide?

39    The Information Commissioner has a discretion under s 54W(a)(i) of the FOI Act to decide not to continue to undertake a review of a decision to refuse to give access to documents in accordance with an FOI request if satisfied that the review application is “lacking in substance”: see also, FOI Act, ss 53A(a), 54G and 54L(2)(a). In the context of the FOI Act, a review application will be “lacking in substance” where it is “readily apparent” that the review application is “hopeless or bound to fail”: Chopra v Department of Education and Training [2019] VSCA 298 at [134] (Tate, Whelan and Kyrou JJA) cited as “apposite” to s 54W of the FOI Act in Fidge v National Health Practitioner Privacy Commissioner [2024] VSC 415 at [36] (Watson J).

40    Given the reason for the ANU decision, the issue before the delegate of the Information Commissioner was whether the ANU had taken all reasonable steps to find documents within the scope of the 2023 FOI request.

41    The Applicant contended that the ANU’s searches were deficient because “they focused on an alleged data breach in 2019 but did address an alleged data breach in November 2018”. The Applicant also submitted that he “received an email with the subject heading referring to the data breach, but which contained no content and included an attached document that was entirely redacted”, but which subsequently went missing from his email account. The Applicant further relied upon the First IC decision (later affirmed by the ART decision) as demonstrating that documents relating to the 2023 FOI request had gone missing, been stolen or otherwise interfered with.

42    In making the Second IC decision, the delegate had regard to the Applicant’s submissions, as well as those made by the ANU and evidence of the searches conducted by the ANU in response to the 2023 FOI request. The delegate also took into account s 24A of the FOI Act, which permits an agency to refuse access to a document if all reasonable steps have been taken to find the document, and the agency is satisfied that the document cannot be found or does not exist.

43    Having considered that material, the delegate decided not to continue to undertake a review of the ANU decision. That was because the delegate was satisfied that the ANU had “taken all reasonable steps to find documents within the scope of the [2023 FOI] request as it was required to do by s 24A [of the FOI Act] and that relevant documents, if they existed, would have been found”. As such, the delegate was persuaded that the review application was lacking in substance.

Does the Applicant have standing to bring the originating application?

44    The Applicant says that he is aggrieved by the Second IC decision for two reasons. First, because it “approves and/or authorises and/or condones the unlawful and arbitrary interference with the privacy of, and attack on the reputation of the Applicant”. Second, because the Information Commissioner ought to, but failed to, inform the Applicant “that their personal information was the subject of a data breach at least in 2018 and probably in 2019 in the highly-publicised attacks of the [ANU], even as the executive branch of the Australian government later informed the Australian people that it knew which country was the culprit of the hacking of the [ANU]”.

45    The ANU does not accept those assertions, but is nonetheless prepared to accept that the Applicant is aggrieved by the Second IC decision because it put an end to the 2023 FOI request: ADJR Act, s 5.

Why does the Applicant contend that the Second IC decision should be set aside?

46    The originating application seeks review of the Second IC decision on the following grounds: the Second IC decision was not authorised by the FOI Act; it was an improper exercise of power (on each of the grounds in s 5(2)(a) to (d) and s 5(2)(g) to (j) of the ADJR Act); there was an error of law; the Second IC decision was induced or affected by fraud (not just in the narrow sense that is in the realm of criminal law, but also in the sense of unconscionability within the jurisdiction of equity); and was otherwise contrary to law: cf, ADJR Act, ss 5(1)(d), 5(1)(e), 5(1)(f), 5(1)(g) and 5(1)(j).

47    By the originating application, the Applicant seeks the following relief:

1.    An order that the Australian Information Commissioner and/or the Australian National University inform the applicant that their personal information was the subject of the publicised hacking and data breaches of the Australian National University in 2018 and/or 2019. Or, if the Australian Information Commissioner and/or the Australian National University have decided that they are duty-bound not to inform the applicant that their personal information was the subject of the publicised hacking and data breaches of the Australian National University in 2018 and/or 2019, what section of what law authorises such a decision.

2.    A declaration of the law that an Australian citizen whose personal information held by the Australian National University that was the object of targeted hacking and/or data breach had the legal right to be informed of the hacking and/or data breach by the Australian National University and that the Australian National University had the immediate and/or urgent legal obligation to inform that citizen of the nature, scope and other details of the data breach.

48    At the hearing, the Applicant proposed alternative orders. Again, they included an order for a stay of the proceeding pending reconsideration of the subpoena requests the Applicant made in QUD61/2025, referred to above.

Should leave be granted to issue the subpoenas in QUD587/2024?

49    The Applicant has not requested leave to issue the subpoenas in QUD587/2024. To the extent to which the Applicant now presses the subpoena requests in this proceeding, I address them below.

50    I am not persuaded that the documents sought by the subpoena requests can reasonably be expected to “throw light” on whether the Second IC decision is affected by administrative error: cf, Arnotts (No 2) at p 103, as discussed in Cosco Holdings Pty Ltd v Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432 at p 439-441 (Spender J). By their terms, the subpoena requests do not relate to the Second IC decision, but instead, concern the ART decision and the Tribunal’s finding that the key documents relating to the Applicant’s 2019 FOI request do not exist.

51    Even accepting that the documents sought by the subpoena requests bear some relationship to the subject matter of the Second IC decision, I am not persuaded their protection would serve a “legitimate forensic purpose”. It is not the function of the Court in this judicial review to undertake a merits review of the Second IC decision by making findings of fact as to whether the ANU took all reasonable steps to find the documents the subject of the 2023 FOI request: cf, Hamden at [33] and Quin at p 36.

52    As outlined above, the Applicant contended before the Information Commissioner that the ART decision demonstrated that documents pertaining to the 2023 FOI request have gone missing, been stolen or otherwise interfered with. To the extent to which the Applicant presses the subpoena requests in support of a contention in QUD587/2024 that the Second IC decision was induced or affected by fraud, I am not satisfied they are sought for a “legitimate forensic purpose”. That is because, they constitute a “fishing expedition” as there is no evidence, and beyond the Applicant’s assertions, no reason to suppose that the documents sought exist: cf, Lowery at [42].

53    Thus, proceeding on the basis that the Applicant makes the subpoena requests in QUD587/2024, I decline to grant leave under r 24.01 of the Rules, for the reasons outlined above, and refuse to grant a stay of the proceeding.

Has the Applicant established that the Second IC decision is affected by administrative error?

54    The Applicant relies on the same written submissions in QUD61/2025, as he does in QUD587/2024. Again, those written submissions do not address the grounds of review pleaded in the originating application. They are, instead, concerned with the matters summarised at [27] above.

55    During the hearing, I asked the Applicant whether there were any submissions he sought to advance as to why the Second IC decision was affected by administrative error, bearing in mind that it was not the function of the Court on a judicial review to undertake a merits review of that decision.

56    There then occurred the following exchange:

HER HONOUR:    For my part, …, I do think it’s important for you to have a look at the copy of the decision, at least. Because that’s what I have to make – that’s what I am here to make findings about. And it’s important that you be given an opportunity to say what you would like to say about that decision. So - - -

[APPLICANT]:    Well, I think there has been some illegality, criminality – and I think it’s at a high level. Meaning if not the Crown itself, people, employees or officers of the Crown. And I think in those cases, they don’t actually submit to the law – they consider themselves above the law. And I’m sure there has been some type of documents destroyed, or – yes.

57    The Applicant went on to contend that the reason why the ANU decision stated that the documents could not be found is because “they’ve been hidden or given some special classification”. To the extent to which those allegations are relied upon to support the contention that the Second IC decision is induced or affected by fraud, I am not satisfied the Applicant’s bare assertions provide a proper basis to discharge the burden of proof with respect to such a serious allegation: cf, ADJR Act, s 5(1)(g); Ayan at [8].

58    The Applicant further submitted that the Second IC decision is affected by error because “the principle of legality doesn’t seem to apply when it comes to the ANU” and the Second IC decision is wrong because the delegate ought to have compelled the ANU to produce the documents sought by the FOI request. Again, for the reasons outlined above, the “principle of legality” is not material to QUD587/2024 because there are no issues as to the construction of the FOI Act, including insofar as the legislation affects the rights of the Applicant: cf, ADJR Act, s 5(1)(f); Electrolux Home at [20]-[21].

59    It follows that I am not satisfied that the Applicant has discharged his burden of establishing the grounds of review in QUD587/2024. As appears from the orders sought in the originating application, the Applicant, in effect, seeks by this proceeding to have the ANU or the Information Commissioner inform him that his personal information was the subject of the cyber-attack.

60    That is not relief the Court can grant. Indeed, it has no connection with either the ANU decision or the Second IC decision because they were concerned with the documents sought by the 2023 FOI request. It was not the role of the Information Commissioner to determine whether the Applicant’s personal information was the subject of the cyber-attack. Nor was it the role of the ANU in responding to the FOI request: FOI Act, s 11A(3). In any event, the ANU decision informed the Applicant that “it is not possible to confirm what records were taken or indeed which specific enterprise systems were affected” in the data breach resulting from the cyber-attack.

61    The delegate made the Second IC decision because he was satisfied that the ANU had taken all reasonable steps to find documents within the scope of the 2023 FOI request, and the documents could not be located: FOI Act, s 24A(1). Having made that finding, the delegate concluded that the application for a review of the ANU decision was “lacking in substance” and exercised the discretion under s 54W(a) of the FOI Act to not continue further with the application for a review.

62    Whether all reasonable steps have been taken, and whether documents exist, are questions of fact: Bienstein v Attorney-General (Cth) [2009] FCA 1501; (2009) 51 AAR 223 at [48] (Gray J). It is not the function of the Court, on an application for judicial review, to review the merits of the Second IC decision by determining those questions of fact afresh: cf, Hamden at [33] and Quin at p 36. Rather, the duty, and jurisdiction, of the Court is limited to “the declaration and enforcing of the law which determines the limits and governs the exercise” of the power conferred on the Information Commissioner under Pt VII of the FOI Act to review the ANU decision: Quin at p 36.

63    The Applicant has not identified any discernible basis upon which it may be concluded that the delegate exceeded the limits that governed the exercises of his discretion under the FOI Act to make the Second IC decision. The originating application in QUD587/2024 will, therefore, be dismissed.

SUPPRESSION order BY ALLOCATION OF A PSEUDONYM

64    The Applicant sought a suppression order protecting his name “given the futility of the application for judicial review” once I refused leave to issue the subpoenas. He asserted that such order was necessary to “protect [his] privacy and safety and to prevent undue and/or unnecessary distress and/or embarrassment”. At the hearing, the Applicant reiterated that he would be humiliated if the application for judicial review was dismissed and that would be compounded if his name was used in the judgment.

65    The Court has power under s 37AF of the Federal Court Act to make a suppression order by allocating a pseudonym to a party: Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 81 at [8]-[10] (McKerracher, White and Stewart JJ).

66    That power may, however, only be exercised when one of the grounds in s 37AG of the Federal Court Act is established. Of present relevance, those grounds include that an order is necessary to prevent prejudice to the proper administration of justice (s 37AG(1)(a)) or is necessary to protect the safety of any person (s 37AG(1)(c)). An order for a pseudonym may also be made to avoid causing undue distress or embarrassment to a party, but only in a criminal proceeding involving an act of a sexual nature (including an act of indecency): Federal Court Act, s 37AG(1)(d).

67    In deciding whether to make such an order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: Federal Court Act, s 37AE.

68    The threshold to be met by an applicant seeking a suppression order is high, given the word “necessary” as used in both s 37AG(1)(a) and s 37AG(1)(c) of the Federal Court Act: Swannick at [13] and [14], citing Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [30]-[33] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) and Oreb v Australian Securities and Investments Commission [2016] FCA 321 at [80] (Markovic J). Mere “embarrassment, inconvenience, annoyance or unreasonable or groundless fears will not suffice”: Swannick at [14], quoting Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607; (2015) 331 ALR 68 at [30] (Foster J); and Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649 at [11] (Griffiths J).

69    Insofar as it concerns s 37AG(1)(c) of the Federal Court Act, the Court must be satisfied on the balance of probabilities that the order sought is necessary to protect the person’s safety: Roberts-Smith v Fairfax Media Publications Pty Limited [2019] FCA 36 at [16]-[17] (Besanko J). The necessity for such an order “will be informed by the nature, imminence and degree of the likelihood of harm occurring to the relevant person”, such that if “the prospective harm is very severe, it may be more readily concluded that the order is necessary even if the risk is a possibility as opposed to a probability”: D1 v P1 [2012] NSWCA 314 at [49] (Bathurst CJ with whom McColl JA and McClennan CJ agreed), as cited with approval in Roberts-Smith at [16].

70    I am not satisfied that the Applicant has met the threshold required by s 37AG(1)(a) or s 37AG(1)(c) of the Federal Court Act. I readily acknowledge that the Applicant may be humiliated by the outcome of the application. While his apprehension is understandable, in and of itself, that does not establish that a suppression order is necessary to prevent prejudice to the proper administration of justice. And while the Applicant has expressed concerns about his privacy, s 37AE of the Federal Court Act makes express that a primary objective of the administration of justice is to safeguard the public interest in open justice. Finally, while the Applicant has expressed concerns about his safety, those concerns are unparticularised and there is no material before the Court that establishes, on the balance of probabilities, that a pseudonym order is necessary on that ground.

71    It follows that I am not satisfied that there is a basis to make a suppression order by granting the pseudonym sought by the Applicant. The application for such an order as made by the Applicant at the hearing is refused.

costs

72    The ANU seeks an order for its costs in QUD61/2025 and QUD587/2024. The Information Commissioner was a party to QUD587/2024 and seeks an order for costs in that proceeding. The Information Commissioner took a confined role in QUD587/2024, consistent with the principles stated in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 (Gibbs, Stephens, Mason, Aickin, Wilson JJ). Nonetheless, the Information Commissioner appeared at the hearing and filed the Court Book in QUD587/2024.

73    The Applicant seeks an order pursuant to r 40.51 of the Rules specifying the maximum costs that may be recovered for the proceeding by either the ANU or the Information Commissioner is $0.

74    An award of costs is within the discretion of the Court: Federal Court Act, s 43. The discretion is very wide, but must be exercised judicially, bearing in mind that its function is not a punitive one, but rather, to indemnify or compensate: Hughes v Western Australia Cricket Association (Inc) [1986] FCA 382 at p 5 (Toohey J) and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2021] FCAFC 75 at [16] (McKerracher, Burley and O’Callaghan JJ). As such, ordinarily, costs should follow the event: Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 at [9]-[12] and [15] (Black CJ, Beaumont and French JJ).

75    The Court has power under r 40.51 of the Rules to make an order for the maximum costs that may be recovered for the proceeding. The factors to be taken into account in the exercise of the discretion relevantly include the timing of the application, the complexity of the factual or legal issues raised, whether the applicant’s claims are arguable and not frivolous or vexatious, the undesirability of forcing the applicant to abandon proceedings and whether there is a public interest element to the case: Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864 at [6] (Bennett J).

76    I am not satisfied that this is an appropriate case to depart from the ordinary position with respect to costs, or to make the specific order the Applicant seeks. The effect of such an order would not be to limit so much as to provide that no costs may be recovered in the proceedings. The only submissions advanced by the Applicant in support of his position is that the proceedings “became futile and/or meaningless” and that he “had no chance to succeed” once the subpoena requests were refused. The Applicant further asserted his costs should be capped because he is impecunious. They are not persuasive reasons to depart from the ordinary position with respect to costs or make an order under r 40.51 of the Rules.

77    The first submission underscores the problems attending at least the originating application in QUD61/2025 in that it makes evident that the objective of the subpoena requests was to subvert the judicial review of the ART decision to obtain the documents sought by the 2019 FOI request which, for the reasons outlined above, is not permissible on this judicial review. In any event, the Applicant did not seek leave to discontinue the proceedings under r 26.12 of the Rules following the refusal of leave to issue the subpoenas, but proceeded with the hearing some months later.

78    Insofar as it concerns the second submission, it may be accepted that the principal purpose of a cost-capping order under r 40.51 relevantly includes access to justice: Houston v New South Wales [2020] FCA 502 at [19] (Griffiths J) and the authority there cited. But the rule expressly “will not protect a litigant against liability for costs which are unreasonably incurred”: King v Virgin Australia Airlines Pty Ltd [2014] FCA 36 at [92] (Foster J). The conduct of the Applicant, including his failure to give particulars or advance meaningful submissions with respect to the pleaded grounds of review, is properly characterised as failing to conduct the proceedings in a manner to facilitate a just resolution as quickly, inexpensively and efficiently as possible, and another party has been caused to incur costs as a result: see also, Rules, r 40.51(2)(d). For those reasons, I decline to make the orders sought by the Applicant or depart from the ordinary rule as to costs.

conclusion

79    For all of the above reasons, the originating application in each of QUD61/2025 and QUD587/2024 will be dismissed with costs.

Associate:

Dated: 20 May 2026