Kant – Submissions (20 October 2024)

Details of Filing

Document Lodged: Submissions
Court of Filing FEDERAL COURT OF AUSTRALIA (FCA)
Date of Lodgment: 20/10/2024 5:37:46 PM AEDT
Date Accepted for Filing: 21/10/2024 11:00:31 AM AEDT
File Number: VID829/2023
File Title: JAN MAREK KANT v THE AUSTRALIAN INFORMATION COMMISSIONER
Registry: VICTORIA REGISTRY – FEDERAL COURT OF AUSTRALIA

No. VID829/2023

Federal Court of Australia
District Registry: Victoria
Division: General

JAN MAREK KANT
Applicant

THE AUSTRALIAN INFORMATION COMMISSIONER
Respondent

Date: 20 October 2024

Applicant’s Submissions in Reply
(in the 18 Jul 2024 amended interlocutory application)

Errors

  1. The Respondent’s 18 Oct 2024 submissions are his complete submissions in the 18 Jul 2024 (amended) interlocutory application, not an “outline ” of his submissions.
  2. The 27 Dec 2023 Application to Review a Registrar’s Decision was the Applicant’s third interlocutory application in this proceeding.
  3. The Court has already ordered the 18 Jul 2024 (amended) interlocutory application be determined.
  4. The background set out in submissions filed 12 Apr 2024 has material omissions and errors.
  5. The writ of mandamus is only part of the final relief sought by the Applicant in this proceeding.
  6. Any kind of investigation by the Respondent is presently of no value to the Applicant.

Investigation

  1. It is to be expected the OAIC will not be substantially less ineffectual before the Court reaches a final determination on the issuance of a writ of mandamus ; proposed order 3 is therefore necessary.

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  1. Proposed orders 2 and 3 are not separable. Together, these orders would require the Respondent action the Applicant’s original request with necessary modification.
  2. Proposed order 2 would require the Respondent find and hold onto relevant information; applications for discovery would come later. Making the information “discoverable” necessarily requires its discovery won’t be impermissible.
  3. Information found pursuant to proposed order 2 is not intended for use in this proceeding only.
    Discovery will assist in resolving claims to damages after recommencement of the proceeding pursuant to the proposed order 4(b).

Proposed order 4(a)

  1. 21(1) Federal Court of Australia Act 1976 allows the Court to make the proposed order 4(a) absent any application for joinder by any party.

Conspiracy

  1. The deponent was at all times compellable to give further evidence about facts disclosed in his affidavits.
  2. By necessary implication of 41(3) Evidence Act 1995, the truthfulness of a deponent or accuracy of any information given by him in a proceeding can be challenged. The Respondent has not sought to cross-examine the deponent; there can be no doubt (in this proceeding, at least) about the truth of his evidence.
  3. The Respondent gave no evidence inconsistent with evidence given by the Applicant, nor has the Respondent challenged any of the evidence given by the Applicant. No balancing of probabilities is required in this matter; the Court must find the case of the Applicant proved.

Legal Services Directions

  1. The Respondent is a non-corporate Commonwealth entity in meaning of Public Governance, Performance and Accountability Act 2013 and Legal Services Directions 2017.
  2. 4.2 Legal Services Directions 2017 is conditioned on 4.1 Legal Services Directions 2017 with reference to “the entity”.
  3. 4.2 Legal Services Directions 2017 requires the Respondent to conduct litigation in accordance with Appendix B of Legal Services Directions 2017.
  4. The Respondent conducting litigation inconsistently with Appendix B of Legal Services Directions 2017 is unlawful (whether or not obligations therein are enforceable on application by the Respondent’s boss or otherwise); and,

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  1. 37N(1) Federal Court of Australia Act 1976 requires parties to a civil proceeding before the Court conduct the proceeding in a way that facilitates the just resolution of disputes according to the law; therefore,
  2. The Respondent conducting litigation inconsistently with Appendix B of Legal Services Directions 2017 is failure to comply with a duty imposed by 37N(1) Federal Court of Australia Act 1976 and the Court must take account of it in exercising the discretion to award costs; and,
  3. 55ZG(2) Judiciary Act 1903 must be read to exclude enforcement by the award of costs in civil proceedings.
  4. Item 2 of Appendix B of Legal Services Directions 2017 requires the Commonwealth pay costs of a test case in the public interest. The “Commonwealth” that is required to pay costs in this matter is either the Respondent or the Federal Court.

Prepared by: Jan Marek Kant, Applicant

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