Federal Court of Australia

Kant v Commissioner of Taxation [2026] FCA 649

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), there be summary judgment for the respondent in the proceeding.

2.    The applicant’s interlocutory application dated 8 September 2025 be dismissed.

3.    The applicant pay the respondent’s costs of the proceeding, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

MCEVOY J:

1    By an originating application accepted for filing on 31 October 2024, the applicant sought the following final relief against the respondent Commissioner:

(a)    damages under s 25(1) of the Privacy Act 1988 (Cth) (Privacy Act) or s 80 of the Judiciary Act 1903 (Cth) (Judiciary Act);

(b)    exemplary damages in an amount “equal to sum tax revenue of the Commonwealth in the year ending 30 June 2024” under s 25(1) or s 25A(2) of the Privacy Act, or s 80 of the Judiciary Act; and

(c)    a civil penalty order “if necessary” under s 82(3) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (Regulatory Powers Act).

2    On 11 April 2025 the Commissioner filed an interlocutory application seeking an order for summary judgment in the proceeding pursuant to s 31A(2) of Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01 of the Federal Court Rules 2011 (Cth) (Rules); alternatively that the applicant’s originating application and his statement of claim accepted for filing on 11 March 2025 be struck out pursuant to r 16.21 of the Rules on the grounds that the applicant did not have reasonable prospects of successfully prosecuting the proceeding, and that leave to file any amended statement of claim be refused.

3    On 5 September 2025, a Registrar entered summary judgment for the Commissioner against the applicant and dismissed the proceeding. The Registrar determined that the applicant had no reasonable prospect of successfully prosecuting any aspect of the proceeding.

4    It is unnecessary for present purposes to describe at length the relevant background, this being sufficiently set out in the Registrar’s detailed and considered reasons. In essence, however, the applicant has become aggrieved by what he regards as the impermissible use of his mobile telephone number by officers of the Commissioner to contact him in the course of processing a request made by the applicant to amend certain documents. These documents had been the subject of a freedom of information request which the applicant had made to the Australian Taxation Office. The applicant claims that this conduct was contrary to the Privacy (Tax File Number) Rule 2015 (Cth) and that the Commissioner contravened s 8WB(1) of the Taxation Administration Act 1953 (Cth). It is also said that the Commissioner is guilty of conduct “criminalised” by ss 12B(2)(a) and 24(2) of the Privacy Act, and that the Commissioner’s requirement that the applicant provide further information for the purposes of the Commissioner processing his request was made “under false pretences” and “by unfair means”.

5    As the applicant is entitled to do, he now seeks a review of the Registrar’s decision under s 35A(5) of the FCA Act. That review is a hearing de novo. The court has ordered by consent that the applicant’s interlocutory application for review be determined on the papers.

6    In support of the review application the applicant has filed the following material:

(a)    an affidavit affirmed by him on 30 September 2025;

(b)    written submissions dated 5 October 2025; and

(c)    written submissions in reply to those filed by the Commissioner dated 10 November 2025.

7    In his written submissions dated 5 October 2025, the applicant states that he refers to and repeats his written submissions dated 28 April 2025. It is therefore apparent that the applicant also relies upon the following material which was before the Registrar:

(a)    a statement of claim dated 7 March 2025; and

(b)    the affidavits affirmed by him and accepted for filing on 31 October 2024, 7 November 2024 and 29 April 2025, respectively.

8    The Commissioner relies on:

(a)    the affidavit of Mr Jordan Patrick Sullivan affirmed on 11 April 2025;

(b)    the affidavit of Mr Michael Lawrence Wright affirmed on 11 April 2025;

(c)    written submissions dated 11 April 2025 which were before the Registrar;

(d)    written submissions dated 7 November 2025, which substantially reproduce the Commissioner’s submissions before the Registrar.

9    For the reasons that follow the Registrar was correct to give summary judgment against the applicant and dismiss his claim. The application for review should be dismissed.

10    The Commissioner’s submissions on the review accurately and helpfully summarise the applicant’s submissions in support of his interlocutory application as:

(a)    referring to and repeating the applicant’s earlier submissions before the Registrar;

(b)    challenging the constitutional validity of the delegation to, and exercise by, a Registrar of the Court of the power to give summary judgment pursuant to s 31A(2) of the FCA Act and r 26.01 of the Rules;

(c)    contending that summary dismissal would not be appropriate;

(d)    critiquing the reasons given by the Registrar for the orders she made;

(e)    contending that either statutory or common law must provide a remedy for the alleged interferences with the applicant’s privacy by the Commissioner; and

(f)    characterising the proceedings as a “test case” and a “public interest case”, and contending that this means that the applicant should not be ordered to pay the Commissioner’s costs.

11    The Commissioner submits, and I accept, that there are several reasons why the court should dismiss the applicant’s review application. The first of these is that the applicant’s claims for damages and purported application for a civil penalty order are untenable. As the Commissioner submits, and as the Registrar found, the applicant claims damages – including exemplary damages – based on erroneous propositions concerning ss 25 and 25A of the Privacy Act, s 80 of the Judiciary Act and the common law. The statutory provisions relied upon do not permit an award of damages against the Commissioner. The statutory criteria for an award of compensation under ss 25(1) and 25A(2) of the Privacy Act have not been met insofar as the Commissioner is concerned and, by operation of the Privacy Act, there is no requisite “gap” in the applicable law to enliven s 80 of the Judiciary Act. To the extent that the applicant submits that s 12B of the Privacy Act has the effect of altering this position, including “causing there [to] exist” remedies that would not otherwise be available in this proceeding, this submission is rejected. The common law does not otherwise provide for such a remedy in the present circumstances, it being well settled that the common law of Australia does not presently recognise a tort of invasion of privacy: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199 at [132] (Gummow and Hayne JJ). To the extent that the applicant accepts this but submits that a remedy must be available at common law and the court should recognise what he refers to as “a tort of disprivacy”, I reject these submissions.

12    Further, the applicant purports to apply for a civil penalty order against the Commissioner for a breach of Pt IIIA of the Privacy Act. As the Commissioner submits, and as the Registrar found, the applicant lacks the power to bring such an application.

13    The second reason the review application should be dismissed is that, as the Commissioner submits, there is no utility in permitting the applicant to have an opportunity to replead. The applicant submits that if laws other than those referred to in his originating application provide relief against the Commissioner, then he should be granted leave to replead his claim. In this regard the applicant refers to the observations of French CJ and Gummow J in Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [23] (Spencer), which address the distinction between the power of the court to strike out pleadings as compared to the power of the court to dismiss a proceeding.

14    As Spencer makes clear, the essential requirement for an order under s 31A of the FCA Act or r 26.01 of the Rules is that the court be satisfied that the applicant has no reasonable prospect of successfully prosecuting the claim: at [24]–[25] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ); see also Sayed v Salvation Army Housing [2023] FCA 526 at [45] (O’Callaghan J); Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; 203 FCR 293 at [17] (Kenny J). I accept, as the Commissioner submits, that the evidence is sufficiently clear for the court to conclude that the Commissioner did not interfere with the applicant’s privacy, and that the allegations that his officers did so is untenable. I also accept, as the Commissioner submits, that defects in the applicant’s claims are incapable of being cured by repleading. This is because, as has been mentioned, there is no tort of invasion of privacy recognised at common law and, contrary to the applicant’s submission, conduct which results in “injury to feelings” is not actionable at common law. The Commissioner submits, and I accept, that there is nothing in the materials before the court to suggest that there is any cause of action at common law capable of being brought against the Commissioner in respect of the material facts pleaded. For these reasons, I am satisfied that the Commissioner has demonstrated that the applicant does not have reasonable prospects of successfully prosecuting the proceeding.

15    The third reason that the application should be dismissed is that, as the Commissioner submits, the constitutional questions sought to be raised by the applicant, in so far as they are intelligible, do not need to be determined by the court as part of this proceeding. The court is conducting a de novo review, so the delegation issue falls away. Nor is it necessary to determine what the Commissioner characterises as “the implied freedom issue”. It is not germane to whether the applicant has any reasonable prospect of successfully prosecuting any part of the proceeding. Finally, to the extent that what the Commissioner characterises as the “logic and order issue” is comprehensible, it is without foundation. There is no constitutional requirement of the kind the applicant alleges, and I accept the Commissioner’s submission that the applicant’s submissions on this subject are manifestly hopeless.

16    In his submissions before the Registrar and on the review, the applicant maintained that the Commissioner’s summary judgment application is oppressive, an abuse of process, amounts to a breach of statutory duties and is “incompatible with a human right of “fair hearing” and therefore unlawful by effect of [s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic)]”. I do not accept any of this on the basis of the material before me.

17    Further, the applicant submits that his allegations in relation to certain conduct by the Commissioner’s lawyer at the case management hearing on 3 March 2025, which are set out in his statement of claim and otherwise referred to in his submissions, are actionable under the Privacy Act or as a claim of misfeasance in public office or a breach of statutory duty, and are “joined” to this proceeding. The Commissioner submits, relying on the affidavit of Mr Wright, that the allegations raised by the applicant in this respect are misconceived and without foundation. I accept that this is so, noting the Registrar’s observations at [69] of her reasons that the contents of these paragraphs are “scandalous and irrelevant”. No application to join these claims has otherwise been made by the applicant for determination in this proceeding.

18    Finally, the applicant submits that “the public interest in protecting privacy and other (Constitutionally protected) human rights requires [that] the [c]ourt not dismiss or strike out the proceeding.” In this regard the applicant refers generally to Spencer. I reject this submission. As the Registrar observed, Spencer is not authority for this proposition and, in contradistinction to this proceeding, Spencer was a case which “involved important questions of public and constitutional law and potentially complex questions of fact”: Spencer at [27] (French CJ and Gummow J).

19    To the extent that any of the applicant’s residual submissions have not been addressed in these reasons, I consider that they do not, so far as they are comprehensible, grapple with issues that arise for determination on the review application and that it is therefore unnecessary to address them.

20    Insofar as the issue of costs is concerned, the applicant seeks costs on “punitive/exemplary bases” and submits that costs should not be awarded against him because the proceeding is both a “test case” and a “public interest case”. I do not accept that either of these characterisations are correct and they do not provide, in the present circumstances, a proper basis not to make a costs order against the applicant. The applicant’s references to the Legal Services Directions 2017 (Cth) (repealed) (LSD) and the Australian Human Rights Commission Amendment (Costs Protection) Act 2024 (Cth) (Costs Protection Act) in support of his submission that the Commissioner pay the costs of the interlocutory application “irrespective of its outcome” do not assist him. As the Registrar correctly observed, the LSD is not justiciable in this court and the Costs Protection Act has no application in this proceeding.

21    For these reasons, therefore, the applicant’s review application should be dismissed. There should be summary judgment in the proceeding for the Commissioner and the applicant should pay the Commissioner’s costs of the proceeding to be taxed if not agreed.

Associate:

Dated:    26 May 2026