VID829/2023 – Kant – Notice to Admit (28 January 2024)

Details of Filing

Document Lodged: Notice to Admit – Form 41 – Rule 22.01
Court of Filing FEDERAL COURT OF AUSTRALIA (FCA)
Date of Lodgment: 28/01/2024 1:28:36 PM AEDT
Date Accepted for Filing: 29/01/2024 9:57:39 AM AEDT
File Number: VID829/2023
File Title: JAN MAREK KANT v THE AUSTRALIAN INFORMATION
COMMISSIONER
Registry: VICTORIA REGISTRY – FEDERAL COURT OF AUSTRALIA

Form 41
Rule 22.01

Notice to admit

No. VID829/2023
Federal Court of Australia

District Registry: Victoria
Division: General Division

JAN MAREK KANT
Applicant

THE AUSTRALIAN INFORMATION COMMISSIONER
Respondent

To the Respondent

The Applicant requires you to admit, for the purpose of the proceeding only, the truth of the following facts:

1. Matters arising under the Privacy Act 1988 by extension of paragraph 12B(2)(a) of that Act do not arise directly under treaty.
   
2. “Common law” is the common law in Australia as modified by the Constitution and statute law in force in the State of Victoria.
   
3. Insofar as these are not inconsistent with the law creating the tort, the general principles of criminal responsibility of Chapter 2 of the Criminal Code apply with necessary modification in torts of intentional and reckless mens rea.
   
4. The meaning of “act or practice” in the Privacy Act 1988 is the same as that of “conduct” in Chapter 2 of the Criminal Code.
   
5. The meaning of “obligation of confidence” in Part VII of the Privacy Act 1988 is not limited by anything given in the Public Service Regulations 2023 or Archives Act 1983.
   
6. There is a common law tort of “disprivacy’, committed when:
   a. A person has duty to refrain from particular procurement or use or disclosure of personal information; and,
   b. The person engages in conduct that constitutes such a procurement or use or disclosure of personal information, or that may result in such procurement or use or disclosure; and,
   c. The person intends to engage in the conduct; and,
   d. The person is reckless as to whether the conduct may result in procurement or use or disclosure of personal information; and,
   e. The person is reckless as to whether the intended procurement or use or disclosure of personal information is one from which the person has duty to refrain.
   
7. A person may claim in disprivacy:
   a. compensatory and aggravated damages for any harm suffered by result of the conduct, including injury to the person’s feelings or humiliation; and,
   b. exemplary damages, whether or not claiming to have suffered harm.
   
8. Insofar as rights to proceed may be otherwise lacking, paragraph 12B(2)(a) of the Privacy Act 1988 confers, by extension of Article 3 and Article 17 of the International Covenant on Civil and Political Rights, a right to proceed against the Commonwealth in disprivacy.

If you dispute the truth of any fact or the authenticity of any document specified in this notice, you may, within 14 days after service of this notice on you, serve on the Applicant a notice of dispute (Form 42).

If you do not serve a notice of dispute on the Applicant within 14 days, you will be taken to have admitted the truth of each fact or the authenticity of each document specified.

Date: 28 January 2024

Signed by Jan Marek Kant
Applicant

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