VID528/2024 – Federal Court of Australia – Reasons for Judgment (23 January 2025)
FEDERAL COURT OF AUSTRALIA
Kant v Australian Information Commissioner [2025] FCA 16
File number(s): VID 528 of 2024
Judgment of: O’CALLAGHAN J
Date of judgment: 23 January 2025
Catchwords: PRACTICE AND PROCEDURE — application for leave to appeal from interlocutory judgment pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) — leave to appeal refused
Legislation:
Federal Court of Australia Act 1976 (Cth) ss 24(1A), 35A, 37AG(1)(a), 37AI
Judiciary Act 1903 (Cth) ss 39B, 78B
Privacy Act 1988 (Cth) s 80W, sch 1
Regulatory Powers (Standard Provisions) Act 2014 (Cth) ss 121, 124
Federal Court Rules 2011 (Cth) r 35.12(2)(d)
Cases cited:
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
GPV18 v Minister for Home Affairs [2020] FCA 393
Kant v Australian Information Commissioner [2024] FCA 599
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 46
Date of last submission/s: 5 September 2024
Date of hearing: Determined on the papers
Counsel for the Applicant: The applicant appeared in person
Counsel for the Respondent: K McInnes
Solicitor for the Respondent: Australian Government Solicitor
ORDERS
VID 528 of 2024
BETWEEN:
JAN MAREK KANT
Applicant
AND:
THE AUSTRALIAN INFORMATION COMMISSIONER
Respondent
ORDER MADE BY: O’CALLAGHAN J
DATE OF ORDER: 23 JANUARY 2025
THE COURT ORDERS THAT:
- The applicant’s application for leave to appeal filed 14 June 2024 be dismissed.
- The applicant pay the respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Kant v Australian Information Commissioner [2025] FCA 16
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REASONS FOR JUDGMENT
O’CALLAGHAN J
Introduction
1 This is an application for leave to appeal from orders of the primary judge dated 11 June 2024 affirming the decision of a registrar to dismiss the applicant’s interlocutory application for injunctive relief. See Kant v Australian Information Commissioner [2024] FCA 599 (J).
2 By originating application filed 6 October 2023 in proceeding VID 829 of 2023 (and subsequently amended on 27 December 2023 and 25 January 2024), the applicant, Mr Jan Marek Kant, seeks the following final relief against the respondent, the Australian Information Commissioner, pursuant to s 39B of the Judiciary Act 1903 (Cth):
- Investigation by the Information Commissioner of the matter described in the applicant’s letter sent on 22 August 2023.
- Further action by the Information Commissioner as described in the applicant’s letter sent on 22 August 2023 …
- Orders commanding the Information Commissioner to refrain from taking action as in (1) or (2), unless and until the Applicant requests the information Commissioner to commence doing so.
- Damages, including exemplary damages, claimed against the Commonwealth in respect of tortious conduct of intentional nature in mens rea.
- Further damages in lieu of costs.
3 On 22 November 2023, the applicant filed an interlocutory application seeking the following relief:
The Applicant seeks an injunction under [s] 80W(1) of the Privacy Act 1988 and orders commanding the Respondent to produce to the Applicant all information about him as is reasonably accessible to the Office of the Australian Information Commissioner.
4 On 26 November 2023, the applicant filed a further interlocutory application seeking suppression of all documents and submissions filed in the proceeding pursuant to ss 37AG(1)(a) and 37AI of the Federal Court of Australia Act 1976 (Cth) (FCA Act).
5 At a case management hearing held on 20 December 2023, the registrar dismissed both interlocutory applications on the grounds that:
(a) the 22 November 2023 application was, in truth, an application for discovery and, in any case, comprised a “fishing expedition”; and
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(b) there were no matters disclosed in the relevant materials that justified making the suppression order sought in the 26 November 2023 application. See J at [3]–[5].
6 On 23 December 2023, the applicant filed an application for review of the registrar’s exercise
of power under s 35A of the FCA Act, seeking orders:
(a) affirming the registrar’s decision as to the 26 November 2023 application; and
(b) granting the relief sought in the 22 November 2023 application.
7 In his written submissions dated 16 April 2024, the applicant submitted to the primary judge
that “the Respondent and Applicant are in agreement that the dismissal of the 26 Nov 2023
interlocutory application should be affirmed.” The only question before the primary judge on
review was therefore whether the applicant should be granted the injunctive relief sought in the
22 November application.
8 The primary judge affirmed the registrar’s orders dismissing the application. His Honour held that on the current state of the evidence, there was no prima facie case for the injunctive relief sought by the applicant, and the balance of convenience did not favour granting the injunction in any event. See J at [26]. In summary, this was because:
(a) although the applicant asserted that he had a right to costs-free access to information about him under sch 1 of the Privacy Act 1988 (Cth) (Privacy Act), being the Australian Privacy Principles (APP), the Privacy Act in fact grants individuals a right to request information from an APP entity (as that term is defined in the Act ), which in turn imposes an obligation on the APP entity to deal with such requests in accordance with APP 12. See J at [19]–[23].
(b) in order to found his claim for relief under s 80W of the Privacy Act , the applicant needed to demonstrate “that the respondent [ had] done or [ was] doing something contrary to the [ APP]. Insofar as concerns access to information, that endeavour require[d] that he first establish that h e has made a request for information.” See J at [24].
(c) there was no evidence before the court that the applicant had made a valid request of the respondent for information pursuant to APP 12. As such, the respondent was under no obligation to deal with a request for information pursuant to APP cl 12.4 and had not done anything contrary to the APP. The jurisdiction to grant an injunction pursuant to s 80W of the Privacy Act was therefore not enlivened , and t o impose upon the
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respondent the burden of providing information in the absence of some statutory obligation would be an “undue imposition”. See J at [25]–[26].
(d) the 22 November application was, in substance, an application for discovery and would unambiguously constitute a fishing expedition if it were treated as such. See J at [27].
9 By an application filed in this proceeding on 14 June 2024, the applicant seeks leave pursuant to s 24(1A) of the FCA Act to appeal from the orders of the primary judge made in proceeding VID 829 of 2023 affirming the registrar’s decision, on the grounds that the primary judge did not consider submissions concerning:
(1) “orders sought on affirmation of dismissal of the 26 November 2023 interlocutory application”; and
(2) the “effects of ss. 121 & 124 [of the] Regulatory Powers (Standard Provisions) Act 2014”.
10 The applicant requested that his leave application be determined on the papers. In the absence of any objection from the respondent, I agreed to do so.
11 The applicant did not file a draft notice of appeal as required by r 35.12(2)(d) of the Federal Court Rules 2011 (Cth). However, in addition to the grounds articulated in the application for leave, the applicant proposed the following grounds of appeal in his written submissions filed on 8 August 2024:
a. Chapter III of the Constitution guarantees the rights and freedoms recognised in the International Covenant on Civil and Political Rights while Australia remains a State Party to it.
b. Australian Privacy Principle 12 extends a constitutional right to privacy.
c. Australian Privacy Principle 12 may be invoked to undertake a “fishing expedition”.
d. Enforcement of Australian Privacy Principle 12 with grant of injunction does not require a request for access to information be made before an injunction is sought.
e. Affirming dismissal of the application for suppression orders requires that declaratory orders are made.
12 The respondent filed written submissions in response on 29 August 2024, which were prepared by Ms K McInnes of counsel.
13 The applicant filed submissions in reply on 2 September 2024, which were amended (with leave) on 5 September 2024.
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Relevant principles
14 Section 24(1A) of the FCA Act confers on the court an unfettered and unqualified discretion to grant leave to appeal from an interlocutory judgment. In determining whether to grant or refuse leave, however, the court will generally consider whether the primary decision is attended with sufficient doubt to warrant reconsideration by the Full Court, and whether refusing leave would cause substantial injustice to the applicant, assuming the primary decision is wrong. See Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–400 (Sheppard, Burchett and Heerey JJ). The onus is on the person seeking leave to appeal to satisfy the court that it should be granted. See GPV18 v Minister for Home Affairs [2020] FCA 393 at [32] (Wigney J).
Primary decision is not attended with sufficient doubt
15 For the following reasons, I am of the view that none of the grounds of appeal proposed by the applicant has any merit, and none is sufficiently arguable to cast the necessary level of doubt on the primary decision so as to warrant reconsideration by the Full Court.
Ground 1: failure to consider submissions on 26 November 2023 application
16 The first ground relied upon by the applicant is that the primary judge did not consider submissions concerning “orders sought on affirmation of dismissal of the 26 November 2023 interlocutory application .” In his written submissions dated 8 August 2024, the applicant referred to the following submissions made before the primary judge in particular:
- The Applicant submitted on 12 Mar 2024:
[62] The Applicant presently seeks declaratory suppression orders; including, an interlocutory order under Federal Court of Australia Act 1976:
a. affirming dismissal of his 26 Nov 2023 application for suppression orders; and,
b. declaring no information or document given or produced in this proceeding can become subject to a suppression order or non-publication order (however described), except as necessary to protect safety of natural persons otherwise identifiable. - The Applicant submitted on 16 Apr 2024:
[28] Documents filed in this proceeding, including affidavits filed by the Applicant after 26 Nov 2023, are presently accessible to the public. It is to be expected (and the Applicant must assume) that prejudice to the Applicant’s interests, as may result from public disclosure of information about this proceeding, is already caused.
[29] Limiting the dissemination of any information about this proceeding, to
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the benefit of the Commonwealth or any other person, after whatever prejudice may befall the Applicant is already caused, would be an injustice.
17 It is not apparent what the applicant meant by “declaratory suppression orders”. But in any event, as counsel for the respondent submitted, the primary judge’s role was to review the registrar’s decision to dismiss the applicant’s 26 November 2023 suppression order application. Both parties agreed that that decision should be affirmed, and this is what the primary judge did.
18 The applicant did not make any application for “declaratory suppression orders” before the registrar, nor was any such application determined. The primary judge was accordingly not required to determine whether declaratory suppression orders should be made, or to consider any submissions advanced in support of them.
Ground 2: failure to consider submissions concerning ss 121 and 124 of the Regulatory Powers Act
19 The second ground relied upon by the applicant is that the primary judge failed to consider submissions concerning the effects of ss 121 and 124 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (Regulatory Powers Act).
20 In particular, the applicant submitted that the primary judge omitted to consider:
(a) the effect of ss 124(1)(a), 124(1)(b), 124(2)(a) and 124(2)(b) of the Regulatory Powers Act “with respect to prima facie case requirements”;
(b) the effect of ss 124(1)(c) and 124(2)(c) of the Regulatory Powers Act on the balance of convenience;
(c) that the injunction is not sought to preserve a status quo; and
(d) that the application for the injunction is in itself a request for access to personal information, made via the “intermediary” of the Federal Court and in accordance with APP 12.
21 As to the matters set out in 20 and (b), s 80W(1) of the Privacy Act provides that the provisions of that Act are enforceable under Part 7 of the Regulatory Powers Act, which creates a framework for using injunctions to enforce provisions.
22 Section 121 of the Regulatory Powers Act provides:
121 Grant of injunctions
Restraining injunctions
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(1) If a person has engaged, is engaging or is proposing to engage, in conduct in contravention of a provision enforceable under this Part, a relevant court may, on application by an authorised person, grant an injunction:
(a) restraining the person from engaging in the conduct; and
(b) if, in the court’s opinion, it is desirable to do so—requiring the person to do a thing.
Performance injunctions
(2) If:
(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 this Part;
the court may, on application by an authorised person, grant an injunction requiring the person to do that thing.
23 Section 124 of the Regulatory Powers Act is as follows:
124 Certain limits on granting injunctions not to apply
Restraining injunctions
(1) The power of a relevant court under this Part to grant an injunction restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the person has previously engaged in conduct of that kind; and
(c) whether or not there is an imminent danger of substantial damage to any other person if the person engages in conduct of that kind.
Performance injunctions
(2) The power of a relevant court under this Part to grant an injunction requiring a person to do a thing may be exercised:
(a) whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that thing; and
(b) whether or not the person has previously refused or failed to do that thing; and
(c) whether or not there is an imminent danger of substantial damage to any other person if the person engages in conduct of that kind.
24 The primary judge was not satisfied that the applicant had made out a prima facie case that the respondent was either engaging in conduct, or refusing to do a thing, in contravention of a provision enforceable under the Regulatory Powers Act, as required by s 121 of that Act.
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25 As counsel for the respondent submitted, whether or not the respondent intended to “continue” to engage in that conduct (s 124(1)(a)), had previously engaged in that conduct (s 124(1)(b)), intended to “continue to refuse” to do a thing (s 124(2)(a)), or had previously refused to do that thing (s 124(2)(b)), was of no relevance. This is because, on the primary judge’s finding, the applicant had not established the necessary precondition for the grant of an injunction under s 121, namely that the respondent had engaged in conduct or refused to do a thing in contravention of a provision enforceable under the Regulatory Powers Act. In light of that finding, s 124 had no bearing upon whether a prima facie case was made out or upon the balance of convenience consideration.
26 As to 20, nothing in the primary judge’s reasons suggests that his Honour misunderstood the nature of the proposed injunction or considered that it was sought by the applicant to “preserve a status quo”. To the contrary, at J [26] the primary judge found that to grant the injunction would impose an “undue imposition” on the respondent by requiring it to provide information to the applicant in the absence of any statutory obligation to do so.
27 Finally, as to s 20, the primary judge, found at J [25] that there was “no evidence before the court that Mr Kant [had] made a valid request of the Respondent for information pursuant to [APP] 12” . That finding was sufficient to dispose of the applicant’s submission that his application for the injunction was a request for information under APP 12.
28 Even if the primary judge did fail to consider the applicant’s submission that his injunction application was a request for the purposes of APP 12, as counsel for the respondent submitted, that submission was without merit. The injunction application was not a request under APP 12 because it was not a request made to the respondent for information “held” by the respondent about the applicant. Instead, it was for information “reasonably accessible” to the Office of the Australian Information Commissioner (OAIC), which, at best, is a request for a different category of information held by a different APP entity and thus did not engage the criteria of APP 12.1.
Proposed grounds of appeal (a)–(c): constitutional issues do not really and substantively arise
29 Following filing of the applicant’s submissions on 8 August 2024, the respondent’s legal representatives sent correspondence to my chambers, copied to the applicant, on 14 August 2024 which relevantly stated:
The applicant’s submissions raise significant constitutional issues and he is required to
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give notice to the Attorneys-General of the Commonwealth and of the States under s 78B of the Judiciary Act 1903.
We note that s 78B of the Judiciary Act 1903 provides that where a matter in a federal court involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys -General, of the question of intervention in the proceedings or removal of the cause to the High Court.
To allow for this process to take place, and to provide the respondent with time to consider and address the constitutional issues, the respondent respectfully requests an extension of time for the respondent to file its submissions of at least 4 weeks.
30 Having reviewed the applicant’s submissions, I formed the view that they did not really and substantively raise any matter arising under the Constitution and for that reason they did not attract the operation of s 78B of the Judiciary Act 1903 (Cth). My chambers advised the parties accordingly on 19 August 2024 and directed that the respondent file its submissions in accordance with the current timetable.
31 Later that day, the respondent sent the following correspondence seeking a short extension for the filing of its submissions (which I granted) as follows (omitting formal parts):
Thank you for the indication from his Honour that s 78B notices are not required.
The respondent nonetheless is required to address the constitutional issues raised and is liaising with the Constitutional Law Unit in that regard.
Accordingly, we would grateful if his Honour would grant the respondent a short extension to 30 August to file submissions.
32 Also that day, the applicant sent correspondence to my chambers copying the respondent which relevantly said:
Be advised I am not liaising with a Constitutional Law Unit, and I don’t intend to further address constitutional matters in this proceeding unless I am directed to do so.
33 In those circumstances, I can deal briefly with grounds of appeal (a), (b) and (c) proposed in the applicant’s submissions filed on 8 August 2024 (set out at [11] above).
34 Regardless of the merits of the applicant’s submission that the Constitution contains a right to privacy and guarantees the rights and freedoms recognised in the International Covenant on Civil and Political Rights, as I informed the parties, such constitutional questions do not really and substantively arise.
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35 The real issue before the primary judge w as whether the applicant had validly requested information from the respondent such that the respondent was in prima facie breach of its obligation under APP 12. The primary judge found that he did not do so. The relevance of any asserted constitutional right to privacy to that question is not apparent and was not explained by the applicant.
36 Nor was there any finding by the primary judge about the purpose for which a request for information under APP 12 may be made, given his Honour found that no such request had been issued in the first place. Whether APP 12 may be invoked to undertake a “fishing expedition” is simply not relevant.
Proposed ground of appeal (d)
37 APP 12.1 provides that “[i]f an APP entity holds personal information about an individual, the entity must, on request by the individual , give the individual access to the information” (emphasis added).
38 As counsel for the respondent submitted, t he text of APP 12 does not support the applicant’s contention that an enforceable obligation arises from APP 12 absent a request from the applicant. The applicant’s proposed ground of appeal (d), that “enforcement of [APP 12] with grant of injunction does not require a request for access to information be made before an injunction is sought”, is without merit.
Proposed ground of appeal (e)
39 The applicant’s proposed ground of appeal (e) is that “affirming dismissal of the application for suppression orders requires that declaratory orders are made”.
40 For the reasons I have explained above at [16] to [18], this proposed ground of appeal is misconceived.
41 Similarly, given that no application for the suppression of information related to proceeding VID 829 of 2023 is on foot , there is no occasion to consider the applicant’s submissions regarding the constitutional validity of legislation permitting the making of suppression or non-publication orders.
No substantial injustice
42 The applicant has failed to establish that a refusal to grant leave to appeal will cause him substantial injustice. As counsel for the respondent submitted, he has not identified why he
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requires the information sought by the injunction to pursue his substantive application in this proceeding. Furthermore, the applicant remains entitled to request access to his personal information held by the OAIC by requesting it pursuant to APP 12.
The applicant does not have a right of appeal
43 I should also say something briefly about the applicant’s assertion in his written submissions that he has a right of appeal.
44 This is plainly incorrect in light of s 24(1A) of the FCA Act. Nor has the applicant outlined any cogent argument in support of his contention that s 73 of the Constitution (which deals with the appellate jurisdiction of the High Court) secures any such right of appeal in this Court or would render s 24(1A) of the FCA Act constitutionally invalid.
Disposition
45 For those reasons, it follows that the leave sought by the applicant to appeal from the orders of the primary judge dated 11 June 2024 should be refused.
46 Accordingly, I will make orders that the applicant’s application for leave be dismissed with costs.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O’Callaghan.
Associate:
Dated: 23 January 2025
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