Federal Court of Australia

Kant v University of Melbourne [2026] FCA 650

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)-(c) 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 dated 1 November 2024, the applicant sought an injunction requiring the respondent university to produce to him “all records of personal information about the [a]pplicant that are in the [r]espondent’s possession, custody or power” under s 121(2) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (RP Act), or alternatively s 80 of the Judiciary Act 1903 (Cth) (Judiciary Act).

2    On 28 February 2025, the respondent filed an interlocutory application seeking an order for summary judgment in the proceeding pursuant to r 26.01 of the Federal Court Rules 2011 (Cth) as well as its costs on the basis that:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding for the relief sought in the originating application: r 26.01(1)(a);

(b)    further, or in the alternative, the proceeding is frivolous: r 26.01(1)(b);

(c)    further, or in the alternative, no reasonable cause of action is disclosed: r 26.01(1)(c).

3    On 5 September 2025, a Registrar entered summary judgment for the respondent against the applicant and dismissed the proceeding. The Registrar concluded that the originating application was so obviously untenable that it could not succeed.

4    As the applicant is entitled to do, he now seeks a review of the Registrar’s decision under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (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.

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

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

(b)    an affidavit affirmed by him on 7 October 2025;

(c)    written submissions dated 7 November 2025; and

(d)    written submissions in reply to those filed by the respondent dated 1 December 2025.

6    In his written submissions dated 7 November 2025, the applicant refers to and repeats most of his written submissions dated 9 April 2025 before the Registrar. It would therefore seem that the applicant also relies upon the affidavits he affirmed on 1 November 2024, 5 February 2025 and 11 March 2025.

7    For completeness I observe that pursuant to orders made by the Registrar on 3 March 2025, the affidavit affirmed by the applicant on 5 February 2025 was not to be read until any application was made to rely on the contents of the affidavit by either party in relation to costs. An order in those terms was appropriate. No such application has been made and accordingly on this review application the court will not have regard to that material.

8    The respondent relies on:

(a)    the affidavits of Dr Nancy Elizabeth Huggett affirmed on 28 February 2025 and 4 April 2025;

(b)    the affidavits of Bridget Mary Shelton affirmed on 28 February 2025 and 4 April 2025;

(c)    written submissions before the Registrar dated 4 April 2025;

(d)    written submissions in reply to those filed by the applicant before the Registrar dated 28 April 2025;

(e)    written submissions in respect of the review application dated 28 November 2025.

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.

Relevant BACKGROUND

10    It is unnecessary for present purposes to describe at length the relevant background, this being sufficiently set out in the chronology provided at paragraphs [26] to [43] of the Registrar’s detailed and considered reasons. As the Registrar observed, these facts do not appear to be in dispute.

11    In summary, however, the applicant is a former employee and a former prospective student of the respondent. The applicant’s originating application relates to a freedom of information request made by the applicant to the respondent on 23 August 2024 pursuant to s 17 of the Freedom of Information Act 1982 (Vic) (Victorian FOI Act). In this request the applicant sought “[a]ll documents containing personal information about me, or information about personal information about me, excluding documents that are CCTV footage.” In email correspondence exchanged between the parties in September and October 2024, the applicant stated that he believed the respondent held incorrect records of his “personal information” because the respondent had notified the Australian Taxation Office (ATO) that it had paid him during the period 2023/2024 in circumstances where he had not done paid work for the respondent for many years. The respondent advised the applicant that he had previously been sent a communication on or about 16 November 2023 regarding back-payment in respect of his prior employment with the respondent, and that this may have been why he had received a notification from the ATO. Nonetheless, the applicant continued to press his freedom of information request with the respondent. The respondent expressed the view a number of times that the applicant’s request was not valid because it did not provide sufficient information to identify the documents he sought.

12    Following the filing of the applicant’s originating application the respondent undertook searches of its records relating to the applicant. On 16 December 2024 the respondent attempted to send to the applicant a letter by email which provided a OneDrive link to 34 documents recording the applicant’s prior employment and prospective enrolment with the respondent, including the November 2023 communication in relation to the back-payment. The applicant later advised that he did not receive this letter and a copy was resent to the applicant by the respondent’s lawyers on 22 January 2025.

SHOULD THERE BE SUMMARY JUDGMENt FOR THE RESPONDENT?

13    Turning then to the substance of the applicant’s application for a performance injunction to compel the production of documents, s 121(2) of the RP Act provides that a performance injunction is available on the application of an “authorised person” in circumstances where:

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

(b)    the refusal or failure was, is or would be a contravention of a provision enforceable under Pt 7 of the RP Act.

14    In order for there to be a performance injunction under s 121(2) of the RP Act, a provision of another Act or legislative instrument must be expressly stated to be enforceable under Pt 7 of the RP Act: RP Act ss 116, 117, 118. Further, the person seeking an injunction under the RP Act must also be specified through the other Act or legislative instrument to be an “authorised person” for the purposes of Pt 7 of the RP Act: RP Act s 119.

15    In his submissions before the Registrar, the applicant stated that his originating application “stems from a request” by him for:

access to documents containing his personal information made in accordance with IPP 6 and APP 12 and in a form compliant with 17(1) & 17(2) FOI Act.

16    The applicant refers to the Victorian FOI Act as the “FOI Act”, the Information Privacy Principles, which are contained in Sch 1 to the Privacy and Data Protection Act 2014 (Vic) (PDP Act), as the “IPPs”, and the Australian Privacy Principles, contained in Sch 1 of the Privacy Act 1988 (Cth) (Commonwealth Privacy Act), as the “APPs”. The applicant submits that the respondent is a “legal person”, a “body corporate”, an “unincorporated association”, a “body politic”, an “organisation”, an “agency”, an “APP entity”, and a “regulated entity” under the Commonwealth Privacy Act and is therefore an entity in respect of which provisions of the Commonwealth Privacy Act are enforceable under Pt 7 of the RP Act.

17    The respondent disputes the applicant’s characterisation of his freedom of information request and submits that the applicant’s request was made under the Victorian FOI Act, and no other legislation. The respondent’s position is that the applicant has no reasonable prospect of successfully prosecuting his claim for the injunctive relief sought under s 121(2) of the RP Act and s 80 of the Judiciary Act, and that the claim is “frivolous, vexatious and without basis”.

18    The respondent submits that it is subject to and bound by the Victorian FOI Act as an “agency” and a “prescribed authority”, as defined under s 5 of that Act, as well as being subject to the PDP Act. The respondent submits, however, that the Victorian FOI Act does not contain any reference to the RP Act, nor does it refer to an “authorised person” for the purposes of Pt 7 of the RP Act. It is thus the respondent’s position that no relief in the form of a performance injunction under the RP Act may be obtained by the applicant in reliance on the Victorian FOI Act. I accept that the respondent is correct in this respect. As the Registrar observed, the PDP Act similarly does not contain any reference to the RP Act or “authorised person” for the purpose of Pt 7 of the RP Act.

19    The respondent contends further, and I accept, that even if the Victorian FOI Act was expressly enforceable under s 121(2) of the RP Act, there is no discretionary basis to make the order sought because the respondent has not refused or failed, nor is it refusing or failing, to provide information to the applicant.

20    It is also the respondent’s position that it is not subject to, nor bound by, either the Commonwealth Privacy Act or the Freedom of Information Act 1982 (Cth). I accept that this is so. The respondent submits, and the applicant does not dispute, that the respondent has not otherwise agreed to be contractually bound by the Commonwealth Privacy Act through any agreement with the applicant. I therefore accept, as the respondent contends, that the Commonwealth Privacy Act does not apply to the respondent with respect to the applicant.

21    As to the alternative basis advanced by the applicant for his originating application, which purports to rely on s 80 of the Judiciary Act, the Registrar was correct to observe that it is unclear from the applicant’s submissions how s 80 of the Judiciary Act enables him to prosecute his claim. To the extent that the applicant contends that s 80 of the Judiciary Act creates some sort of remedy at common law for the injunctive relief which he seeks against the respondent, this is plainly incorrect and I do not accept this submission. As the respondent submits, s 80 of the of the Judiciary Act (together with s 79) are choice of law provisions that aid the identification of relevant law that applies in a Commonwealth law area: see Grueff v Virgin Australia Airlines Pty Ltd [2021] FCA 501; 395 ALR 249 at [63]–[68] (Griffiths J).

22    For these reasons, as the respondent submits and as the Registrar found, I accept that the applicant’s originating application must fail.

23    It is also to be noted, for completeness, that the applicant asserts that the respondent has not provided him access to “all documents” requested by him through his freedom of information request, and that the respondent’s interlocutory application for summary judgment is “itself frivolous and vexatious”, as well as oppressive, an abuse of process, a “breach of duties imposed” by the Crimes Act 1914 (Cth) and the Crimes Act 1958 (Vic), and “attempt to deny [him a] fair hearing contrary to [s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic)]”. I do not accept that any of this is so on the basis of the material before me.

24    The applicant also submits that he has a “bona fide” and reasonable cause of action disclosed in his originating application. It is clear that the material filed by the applicant does not detail any recognised cause of action or basis for the injunctive relief sought under s 121(2) of the RP Act or s 80 of the Judiciary Act.

25    The applicant’s submissions do not otherwise grapple with the issues that arise for determination on the review. The applicant’s submissions in respect of the effect of s 12B of the Privacy Act are misconceived, and the constitutional questions which he seeks to raise, in so far as they are intelligible, do not need to be determined as part of this proceeding.

26    To the extent the applicant takes issue with the affidavit material filed by the respondent, including his contention that the respondent is required to tender a certificate under s 177 of the Evidence Act 1995 (Cth) in relation to certain evidence which he categorises as “opinion evidence”, I do not accept that this is so. I accept the respondent’s submission that the affidavits in question constitute evidence of relevant facts and circumstances based upon each deponent’s knowledge and experience which underpins the basis of the respondent’s interlocutory application for summary judgment.

27    I note, finally, that the applicant has foreshadowed the joinder of new claims to this proceeding, including for alleged breaches by the respondent of provisions of the Commonwealth Privacy Act, the PDP Act and the Taxation Administration Act 1953 (Cth), as well as the filing of an amended originating application to seek damages under s 80 of the Judiciary Act or “otherwise in tort” if the respondent’s interlocutory application is determined in its favour. The applicant has not made any application for the joinder of new claims or relief, nor has he filed an amended originating application on the review. These matters, such as they are, do not arise for determination in this review.

28    For these reasons, the applicant’s review application will be dismissed and there will be summary judgment in the proceeding for the respondent.

29    Insofar as the question of costs is concerned, the applicant seeks costs against the respondent “on punitive/exemplary bases, taking account of his conduct” and submits that costs should not be awarded against him because the proceeding is both a “public interest case and a test case”. I do not accept that any of this provides, in the present circumstances, a proper basis not to make a costs order against the applicant. As the Registrar found, the applicant’s concerns were answered by the provision of documents to him by the respondent on 22 January 2025 such that what remained of his grievance, as pressed by his application, was frivolous in the sense that it lacked substance. This proceeding has been an unpardonable waste of scarce public resources: the resources of the court, and the resources of the respondent university. The respondent should have its costs of the proceedings.

Associate:

Dated:    26 May 2026