Kant – Notice of Appeal (24 January 2025)

Form 122
Rules 36.01(1)(b); 36.01(1)(c)

Notice of appeal

No. of 20

Federal Court of Australia
District Registry: Victoria
Division: General

On appeal from the Federal Court

JAN MAREK KANT
Appellant

AUSTRALIAN INFORMATION COMISSIONER
Respondent

To the Respondent

The Appellant appeals from the judgment as set out in this notice of appeal.

Time and date for hearing:
Place:
Date:

Signed by an officer acting with the authority of the District Registrar

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The Appellant appeals from the whole of the judgment of the Federal Court given on 23 January 2025 at Melbourne.

Grounds of appeal

  1. The primary judge erred in finding:
    a. the only question before the primary judge in Kant v Australian Information Commissioner [2024] FCA 599 on review was whether the applicant should be granted injunctive relief; and,
    b. section 24(1A) of the FCA Act confers on the court an unfettered and unqualified discretion to grant leave to appeal from an interlocutory judgement; and,
    c. 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 in Kant v Australian Information Commissioner [2024] FCA 599 so as to warrant reconsideration by the Full Court; and,
    d. the primary judge was not required to determine whether declaratory suppression orders should be made; and,
    e. nothing in the reasons of the primary judge in Kant v Australian Information Commissioner [2024] FCA 599 suggested misunderstanding of the nature of the sought injunction; and,
    f. the injunction application was not a request for information pursuant to APP 12; and,
    g. the Australian Information Commissioner and Office of the Australian Information Commissioner are not the same entity in proceedings; and,
    h. the applicant failed to establish that refusal to grant leave would cause him substantial injustice; and,
    i. the applicant did not have a right of appeal.
  2. The primary judge erred in considering whether the applicant made an application for “declaratory suppression orders” before the registrar.
  3. The primary judge erred in not considering:

a. the ordinary meaning of the words of 124(1)(b) Regulatory Powers (Standard Provisions) Act 2014; and,

b. the ordinary meaning of the words of 124(2)(b) Regulatory Powers (Standard Provisions) Act 2014; and,

c. the ordinary meaning of the word “affirm”; and,

d. the effect of 35A(6) Federal Court of Australia Act 1976, and,

e. the meaning of “restrict” in 37AF(1) Federal Court of Australia Act 1976, and,

f. how the meaning of “reasonable accessible to” differs to that of “held by” for purposes of APP 12; and,

g. the admitted facts as stated in the Respondent’s Chapter B: Key concepts document; and,

h. whether the Respondent had acted unlawfully in the proceeding; and,

i. the necessary assumption that information about relevant proceedings will become subject of suppression orders or the like in absence of declaratory orders requiring its dissemination not be artificially limited; and,

j. the implied constitutional requirement that law must have logical order and form; and,

k. requirements imposed by the implied constitutional freedom of political communication in light of subject matter of VID829 of 2023; and,

l. requirements imposed by 39B(1A) Judiciary Act 1903 and 5(2) Federal Court of Australia Act 1976 in light of Chia Gee v. Martin [1905] HCA 70, Dietrich v The Queen [1992] HCA 5 and s.3 Australian Human Rights Commission Act 1988; and,

m. the law of Australian Coal and Shale Employees Federation v Commonwealth (1953) in light of concurrence of the parties that APP 12 can be invoked to undertake a “fishing expedition”.

  1. The primary judge erred in not considering, or not assigning sufficient weight to:

a. the importance of bringing national security in balance with other public interests, and need for judicial reasoning in that process; and,

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b. the “principle of open justice and free communication and disclosure of information”, and,
c. the common law requirement that courts of Federal jurisdiction exercise discretions subject to the statute law; and,
d. the constitutional requirement that laws made by the Parliament not be incompatible with treaties to which Australia is a party; and,
e. the public interest in legislation not being constitutionally invalid; and,
f. requirements imposed on the Court by 39B(1A)(b) Judiciary Act 1903; and,
g. the human right described in 8(3) Charter of Human Rights and Responsibilities Act 2006 (Vic.); and,
h. the human right described in s. 13 Charter of Human Rights and Responsibilities Act 2006 (Vic.); and,
i. the human right described in 15(2) Charter of Human Rights and Responsibilities Act 2006 (Vic.); and,
j. the human right described in 24(1) Charter of Human Rights and Responsibilities Act 2006 (Vic.).

  1. The primary judge erred by dealing too briefly with the proposed grounds of appeal.
  2. The proceeding was procedurally unfair to the Appellant.
  3. The Constitution guarantees right of appeal to appellate courts of Federal jurisdiction.
  4. The Court must adjudicate on questions of whether provisions of Commonwealth legislation are invalid as being in conflict with treaties.
  5. 28(1) Federal Court of Australia Act 1976 enables the Court to affirm a judgement appealed from otherwise than by repetition.
  6. 37AF(1) Federal Court of Australia Act 1976 empowers the Court to make suppression orders restricting the publication or other disclosure of information otherwise than by limiting its publication or other disclosure.
  7. Requesting information from a counterparty, for use in a proceeding, before the proceeding is commenced is an extraneous first step in the proceeding.

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  1. In exercising the discretion to award costs in a civil proceeding, the Court or a Judge must take account of any failure to comply with a duty to conduct a proceeding before the Court according to the law.
  2. It is in the public interest the Court determine the proposed appeal from orders of the primary judge in Kant v Australian Information Commissioner [2024] FCA 599.
  3. Insofar as it is possible to do so consistently with their purpose, Charter of Human Rights and Responsibilities Act 2006 (Vic.) requires all statutory provisions be interpreted in a way that is compatible with human rights.

Orders sought

  1. The appellant has leave to appeal from orders of the primary judge in Kant v Australian Information Commissioner [2024] FCA 599.
  2. The Respondent pay the costs of the proceeding in the court below.

Appellant’s address

The Appellant’s address for service is:
Place: 3/33 Bewdley Street, Ormond VIC 3204
Email: jmjarosz01@gmail.com
The Appellant’s address is 3/33 Bewdley Street, Ormond VIC 3204.

Service on the Respondent

It is intended to serve this application on the Respondent.

Date: 24 January 2025

Signed by Jan Marek Kant
Appellant