A v Australian Information Commissioner
[2011] FCA 520
•18 May 2011
FEDERAL COURT OF AUSTRALIA
A v Australian Information Commissioner [2011] FCA 520
Citation: A v Australian Information Commissioner [2011] FCA 520 Parties: A v AUSTRALIAN INFORMATION COMMISSIONER File number: VID 988 of 2010 Judge: KENNY J Date of judgment: 18 May 2011 Catchwords: ADMINISTRATIVE LAW – Application to review decision of Australian Information Commissioner not to investigate complaint – applicant had failed to contact respondent directly as required under s 40(1A) Privacy Act 1988 – no error of law shown – application for review dismissed Legislation: Privacy Act 1988 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Date of hearing: 13 May 2011 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 35 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Ms E Arduca Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 988 of 2010
BETWEEN: A
ApplicantAND: AUSTRALIAN INFORMATION COMMISSIONER
Respondent
JUDGE:
KENNY J
DATE OF ORDER:
18 MAY 2011
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application for an extension of time pursuant to s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) be refused.
2.The application filed on 18 November 2010 be dismissed as incompetent.
3.Any reference to the name of the applicant in the transcript of proceedings or the reasons for judgment be replaced with the name “A”.
4.There be no order as to costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 988 of 2010
BETWEEN: A
ApplicantAND: AUSTRALIAN INFORMATION COMMISSIONER
Respondent
JUDGE:
KENNY J
DATE:
16 MAY 2011
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
INTRODUCTION
The applicant seeks judicial review of a decision made by a delegate of the respondent, the Australian Information Commissioner, in which the Commissioner declined to investigate his complaint pursuant to s 40(1A) of the Privacy Act 1988 (Cth) (‘the Act’). The applicant is self-represented. The Commissioner was represented by his solicitor, Ms E Arduca.
The Commissioner has filed a notice of objection to competency, alleging that the applicant’s judicial review application is out of time. At a directions hearing on 18 February 2011, the Commissioner indicated that the Commissioner desired to advance the notice of objection to competency at the hearing of the substantial application. At the hearing on 13 May 2011, the Court was therefore concerned with the substantial application and the notice of objection to competency. For the reasons stated, I would dismiss the applicant’s substantial application as incompetent.
BACKGROUND
The applicant filed a Form 56 Application for an Order of review on 18 November 2010 (‘the application’), in which he sought an order “for Privacy Commissioner to investigate [my former employer]”. Form 56 is the form provided under the Federal Court Rules for making a judicial review application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”): see O 54 r 2. The application stated that the applicant was aggrieved by the decision because:
A serious privacy complaint was not taken seriously.
Respondent did not apply discretion to investigate as an exception and asked me to contact [my former employer].
The grounds of the application were stated as follows
1.Intricate details of my harassment and breach of privacy was given but respondent wants me to contact [my former employer].
2.As per respondent’s instructions when [my former employer] was contacted, HR Manager responded with false complaints to Glen Waverley Police Station.
The application was accompanied by the applicant’s affidavit of 18 November 2010, in which he deposed:
1.I made a very serious breach of privacy claim to the Privacy Commissioner (refer exhibit 1)
2.The claim was not taken seriously, and I was asked to contact the perpetrator, who responded by filing false complaints to the Glen Waverley Police when I contacted them as instructed by the Privacy Commissioner (exhibit 2). The letter by the respondent was received by me on 20th October 2010.
A copy of the Privacy Act Complaint Form (exhibit 1) completed and lodged by the applicant with the Commissioner’s office accompanied the 18 November 2010 affidavit. In this form, the applicant detailed his complaints about his former employer and a number of individuals. Amongst other things, the applicant stated that his former employer had invaded his privacy in many ways, including by “clandestine surveillance activities” involving GPS tracking of his motor vehicle and surveillance of “electronic communication, including [his] social media”. The applicant also alleged that his former employer was involved in his being “tricked to visiting [a] psychiatrist who … came up with a false diagnosis” of mental illness and in having his “legal manoeuvres” sabotaged and his prospects of employment ended.
The Privacy Act Complaint Form also included the following:
The Privacy Commissioner requires that, as an initial step, you raise your complaint in writing with the Respondent and allow it 30 days to respond. Have you done this?
The applicant indicated that he had not done so. In answer to the question, “is there any reason you cannot do so?”, the applicant wrote:
The company has been involved in major criminal activity on behalf of itself and others in the recruitment industry, with respect to privacy, defamation and immigration laws in the past 4 years. The directors are involved in swindling shareholders funds and this was the main reason I was initially surveillanced. The directors are acting contrary to Australian Corporate laws, taxation laws, elements of criminal law and civil law. It is doing this in a sophisticated manner, with heavy legal and investigative support. I have been prevented from finding a job in Melbourne in the last 30 months because of intense lobbying by [my former employer] and some recruitment firms in Melbourne.
A photocopy of the Commissioner’s letter to the applicant also accompanied the 18 November 2010 affidavit. Omitting formal parts, the letter stated:
Your complaint against [your former employer]
I refer to your letter received on 7 October 2010 alleging that [your former employer] interfered with your privacy by placing you under surveillance and arranging an embargo against your employment in Brisbane. I have treated your letter as a complaint under section 36 of the Privacy Act 1988 (Cth) (the Act).
Section 40(1A) of the Act requires that, unless inappropriate, the Privacy Commissioner must not investigate your complaint if you have not complained directly to the organisation. From your letter, it does not appear that you have raised this issue with [your former employer].
Therefore, in accordance with section 40(1A), I am declining to investigate your complaint. My file is now closed.
For this Office to investigate your complaint, you will first need to write to [your former employer] about the issues you have complained about and allow it at least thirty days to respond.
If you have already written to [your former employer] and are either dissatisfied with its reply or you have not received a reply after 30 days, I would be happy to reconsider your complaint. In that case, you should provide this Office with a copy of your letter of complaint to [your former employer] and a copy of its response, if any, as well as provide evidence of [your former employer’s] alleged breach of your privacy.
If you are dissatisfied with the process used to make this decision
If you consider that the process which this Office used to make its decision was unfair you can either:
· Submit an application to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the AD (JR) Act) or
· Make a complaint to the Commonwealth Ombudsman (Ombudsman).
Appeals under the AD (JR) Act must be made within 28 days of the date of our final decision and usually incur an application charge. Please contact the Federal Court registry in your State or Territory for more information or visit ombudsman’s services are free, and you can contact his office on 1300 362 072 or visit am sorry that I am unable to assist you at this stage.
The photocopied letter exhibited to the applicant’s first affidavit showed the date “October 2010” at its end, without any indication as to the precise day.
The Commissioner’s notice of objection to competency stated:
The Respondent objects to the competency of this application for an order under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) on the grounds that:
1.The application has not been made within the time period allowed pursuant to subsection 11(3) of the ADJR Act.
The Commissioner has since submitted that the applicant’s application was filed two days outside the 28 day period for filing an application stipulated by s 11(3) of the ADJR Act. In making this submission, the Commissioner relied on an affidavit of Mr Mark Hummerston affirmed on 18 April 2011. Mr Hummerston is Assistant Commissioner Compliance in the Office of the Commissioner. Another photocopy of the letter from the Commissioner’s delegate to the applicant (see [7] above) exhibited to his affidavit shows the full date of the letter as 19 October 2010. As noted above, the applicant’s application was filed on 18 November 2010.
THE APPLICANT’S CASE
On 31 March 2011, in response to the Commissioner’s notice of objection to competency and Mr Hummerston’s affidavit, the applicant filed a document headed “Statement of Claim: Applicant’s Statement of Facts and Contentions” (“the applicant’s original submissions”) and a second affidavit. In this second affidavit, the applicant said:
1.My reason for filing the case 2 days late against the Respondent was due to a misunderstanding of the number of days allowed as being 30 days instead of the actual 28 days allowed under the Administrative Decisions (Judicial Review) Act 1977, due to the norms of my profession, being an accountant substantial cycles of processes being most frequently of 30 days. No disrespect was intended to the court, and this was the first time I have dealt with any court process in the Federal Court or any court in Australia.
2.Further to the above reason, there was some element of mental confusion and stress due to the activities complained of in the application to the Respondent, namely the lack of complete freedom and the sense of being under surveillance as a result of continual privacy infringements over a substantial period of time.
3.In further support of the reason for my delay I assert that it is in the public interest that such a fundamental violation of a basic right of a citizen or resident of Australia, as set out in the particulars of my submission to the court, should not go without investigation due to an honest mistake and basic error of technicality on my part in filing a case just 2 days late.
In the applicant’s original submissions, the applicant stated that he had been employed as his former employer’s finance controller from February until December 2006. The applicant went on to detail the ways in which his former employer had allegedly violated his privacy. These allegations are wide-ranging and cover the period August 2006 until mid 2010, by which time the applicant had moved cities. I refer to them without repeating them here. I would specifically note, however, that the applicant said:
In these circumstances … the applicant contends that it is highly biased, prejudicial and unfair for the Respondent to insist that the applicant contact [my former employer] directly. …
Let it be also noted that in any event, the applicant contacted [my former employer] on 28th October 2010 in connection with privacy as per the preferences of the Respondent, as per his letter dated 18 October 2010 to the applicant, concerning an intimidatory incident by one of its agents and/or agents of the said recruitment companies on 26th October 2010, whereupon the Human Resources Manager of [my former employer] instigated 2 separate false complaints to the Glen Waverley Police Station on the same day within the hour.
Also in these submissions, the applicant sought various orders, including an order setting aside the Commissioner’s decision.
On 6 May 2011, after the Commissioner had filed his written submission referred to below, the applicant filed a “Statement of Reply” (“Reply”) and a third affidavit, in which (amongst other things) he deposed to his employment, the circumstances in which he was asked to sign a bill of lading, his false implication in bookkeeping irregularities, and his subsequent surveillance. In his Reply, the applicant gave further details of his dealings with his former employer, the recruitment industry, and alleged invasions of his privacy. He referred to the principles governing applications for extensions of time and also as to the disposition of costs. He drew the court’s attention to his lack of legal representation and the significance of the public interest. The applicant also submitted:
In the applicant’s capacity as a member of the public, there will be great concern by civil society that the Government allowed … misuse [of] the Mental Health Act 1986 (Victoria) for business purposes. The massive ongoing privacy violation allowed interested parties to arrange for mental health diagnoses. …
Further, in his Reply, the applicant stated that he relied on s 5(1)(e) of the ADJR Act and identified the particular grounds upon which he relied as being s 5(2)(b) (failure to have regard to a relevant consideration), s 5(2)(d) (exercise of a discretionary power in bad faith), s 5(2)(f) (application of rule or policy without regard to the merits), and s 5(2)(g) (unreasonable exercise of power) of the ADJR Act. In support of each of these grounds, he wrote:
In refusing to exercise discretion in investigating prior to a complaint, the respondent has not taken the following relevant considerations into account as per s 5(2)(b).
15.1
Given that [my former employer] in conjunction with the … recruitment industry, put in place both legal surveillance and illegal surveillance consisting mainly of university students …, inquiring about privacy is futile.15.2
[The former employer] has purposely implicated the applicant in one or more instances of mismanagement, denied the applicant the basic rights and freedom to resign when faced with a moral dilemma by means of instituting a campaign of vengeance in conjunction with the recruitment industry.15.3
The privacy infringement is continuing for 4 years without legal action – an unreasonable length of time placing the applicant’s life on hold; and this has resulted in both direct and indirect obstruction of justice resulting in the applicant being unable to engage a lawyer for this and associated cases. Please see attachment 1.15.4
The applicant actually contacted [the former employer] whereupon the Human Resources Manager … made 2 false complaints of threatening behaviour to the Glen Waverley Police Station. This alone shows the bad faith of [the former employer], and brings into question the rule of the power of the law. The vindictive actions of [the former employer] and the unlawful interaction with recruitment agencies in this whole saga has led to a potential loss of reputation of government entities and agencies including law enforcement agencies.15.5
The relative disparity of the power of [the former employer], the parent company … (a multinational conglomerate giant) against the applicant, presently unemployed.15.6
The fact that the privacy infringement directly led to an involuntary admission of the applicant to The Alfred Hospital, and the applicant alleges he was purposely misdiagnosed and antipsychotics were forcibly administered, leading to deterioration of the applicant’s physical health. In any event even if the applicant’s allegations against The Alfred are not yet proven the fact of involuntary admission due to the actions of [the former employer] is the single most relevant consideration.15.7
The role of the recruitment industry companies … in the continued privacy violation consciously disregarding core principles of trust, privacy and confidentiality under which Australia society licences them to conduct business. It is possible other people, both accountants and other professionals may be subject to human rights abuses by recruitment companies acting in concert with their clients, the employers in the future unless what has happened was corrected.16.
The respondent has failed to take into account any of the merits of the case [as set out above] and the relevant public interest merit issues … as per s 5(2(f).17.
The respondent has failed to take into account basic human rights issues, separately classed as an important merit of the case as this has rarely if ever appeared in a case involving a major European multinational subsidiary operating in Australia. … The applicant was subject to a forcible depot injection of antipsychotics for several months, which he had to subsequently step down in stages with the aid of the applicant’s own private psychiatrists. This alone is regarded by the applicant and civil society as a substantial failure to take into account the merits of the case as per s 5 (2)(f).18.
Alternatively under s 5(2)(g), the applicant also contends that the respondent is acting in an unreasonable manner. There is no precedent in Australia or in any western democracy where an ex-employer in conjunction with a number of firms in an unrelated sector, the recruitment industry working to get an ex employee certified as psychotic. …19.
Alternatively under s 5(2)(d), the respondent is exercising discretionary power in bad faith. The applicant can show instances of various entities of Federal, State and Local government, including the Australian Health Practitioners Authority, the Stonington City Council, The Alfred Hospital, the Victorian Health Service Commissioner and the Victorian Sheriff (see Appendix 2 …) among others varying normal procedures, ignoring valid complaints, participating directly and indirectly in the obstruction of justice etc. … It could be construed that the respondent is influenced to not act and investigate [the former employer] and the associated recruitment companies in support of all of them, as the core reason common to all the complaints instituted by the applicant to all the above mentioned institutions are issues arising from infringement of privacy by [the former employer] and associated recruitment agents since February 2007 and running up to the present time, a period of more than 4 years.I have set out these parts of the applicant’s submissions because they formed the basis of his submissions at the hearing on 13 May: see below.
On 11 May 2011, the applicant filed an “Application for Extension of Time to File and Serve Notice of Appeal from Tribunal”. Leaving aside whether or not this document is appropriately described in this way, the applicant made it clear that he sought an extension of time for his initiating application. In this document, he stated:
An extension of time is required because a notice of appeal was not filed within the 28 days specified in the s 11 of the Administrative Decisions Judicial Review Act (1977)
The applicant’s application for an extension of time was supported by his further affidavit of 11 May 2011. In this affidavit the applicant deposed to the “grounds for extension of time”. I refer to them here without setting them forth. The applicant contended that any one of these grounds justified the extension of time and that together, his case was “overwhelming”.
At the hearing on 13 May 2011, I indicated to the parties that, given that the delay was slight, I would accept the applicant’s explanation, which was in substance that he made a mistake due to his unfamiliarity with the law. I also noted that the Commissioner did not maintain that he would be prejudiced by the delay if leave were granted. This was a factor also falling for consideration, even though the absence of such prejudice was not itself a reason to grant the extension of time. In these circumstances, I indicated to the parties that whether or not I would grant the extension of time sought by the applicant turned on my conclusion as to the merit of the applicant’s substantial application. I invited both parties to focus on this aspect.
As invited by me to do, the applicant developed his submission that the Commissioner had failed to have regard to relevant considerations in making the challenged decision. The applicant did this largely by reference to the written submissions set out at [13] above. Amongst other things, the applicant referred to: (1) the length of time that he had allegedly suffered infringement of his privacy – a period of four years until the present; (2) the disparity in resources between his former employer and himself; (3) that privacy infringement had allegedly led to his involuntary admission into hospital and forcible treatment with antipsychotic drugs; (4) the allegedly collaborative nature of the privacy invasions between his former employer and the recruitment industry; and (5) the allegedly bad faith conduct of other entities and organizations. There were a range of other matters to which the applicant also referred. I am mindful of them, even though I shall not set them out here.
In reply, the applicant submitted that there were numerous powerful public interest grounds that should also persuade me to grant the extension of time that he sought and to accede to his substantial application. Given my conclusion as to the merits of the substantial application, however, these suggested public interests grounds can have little bearing on the ultimate disposition of the case.
THE COMMISSIONER’S RESPONSE
Citing various authorities, including Hunter Valley Developments Pty v Cohen (1984) 3 FCR 344, the Commissioner contended in written submissions that, in considering whether or not to extend time, the Court was obliged to consider various factors, including any explanation for the delay, the prejudice to the Commissioner, and the merits of the substantial application. In these written submissions, the Commissioner also argued that the applicant’s explanation for the delay was not acceptable and that the substantial application did not have sufficient merit to warrant an extension of time.
At the hearing, the Commissioner focussed on the merits of the applicant’s substantial application as I invited him to do. The Commissioner argued that there was nothing before the Court that would support any of the grounds of review relied on by the applicant.
CONSIDERATION
The decision in question was made by the Commissioner’s delegate under s 40(1A) of the Act. Section 40(1A) provides as follows:
(1)Subject to subsection (1A), the Commissioner shall investigate an act or practice if:
(a)the act or practice may be an interference with the privacy of an individual; and
(b) a complaint about the act or practice has been made under s 36.
(1A)The Commissioner must not investigate a complaint if the complainant did not complain to the respondent before making the complaint to the Commissioner under s 36. However, the Commissioner may decide to investigate the complaint if he or she considers that it was not appropriate for the complainant to complain to the respondent.
The Commissioner treated the applicant’s complaint as a complaint made under s 36 of the Act. Since the applicant had not complained to his former employer before making his complaint to the Commissioner, s 40(1A) prevented the Commissioner from investigating the applicant’s complaint unless the Commissioner considered it was inappropriate for the applicant first to complain to his former employer. The Commissioner’s letter to the applicant indicated that the Commissioner did not consider that making such a complaint was inappropriate. The applicant challenged this determination not to investigate his complaint, claiming that there was no reason for him to make the complaint to his former employer as any such complaint would be “futile” and “a waste of time”.
It is common ground that the applicant sought to make a judicial review application under s 5(1) of the ADJR Act. The Commissioner’s challenge to competency was made only on the basis of time. Accordingly, for present purposes, I assume that the Commissioner’s decision not to investigate is a decision to which the ADJR Act applies.
The manner in which such an application is to be made is set out in s 11 of the ADJR Act. Section 11(1) relevantly provides that:
(1) An application to the Federal Court … for an order of review:
(a) shall be made in such manner as is prescribed …
(b)shall set out the grounds of the application; and
(c)shall be lodged with a Registry of the court concerned and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant … shall be so lodged within the prescribed period or within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows.
Section 11(3) set forth the prescribed period for different situations. In this case, the prescribed period was as provided for in s 11(3)(b)(iii) – that is a period ending 28 days after the day on which the Commissioner’s letter of 19 October 2010 was furnished to the applicant. As noted above, the applicant deposed that he received the letter on 20 October 2010. On this basis, the applicant was 2 days late in filing his application.
As s 11(1)(c) makes clear, however, the Court may grant an extension of time. The provision confers a discretion, the exercise of which has been the subject of judicial commentary. In this regard, reference is commonly made to the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, in which his Honour stated the main guiding principles, including that the applicant for a favourable exercise of discretion must provide an acceptable explanation for the delay. Other factors include the prejudice, if any, likely to be suffered by the respondent if time is extended and the merits of the substantial application.
In this case, the delay was slight; and, as indicated above, I accept the applicant’s explanation for it, which was in substance that he made a mistake due to his unfamiliarity with the law. Furthermore, as already noted, the Commissioner did not maintain that he would be prejudiced by the delay if leave were granted. This is a factor falling for consideration, even though the absence of such prejudice is not reason in itself to grant the extension of time.
If there were merit in the applicant’s substantial application, I would grant him the extension of time that he needs to overcome the Commissioner’s objection to competency. Having examined the material and heard the parties’ submissions, however, I do not consider that the applicant has a tenable case. For this reason, I would not grant the leave that he seeks.
The first ground on which the applicant relied was a failure to have regard to relevant considerations. This ground can only be established if it is shown that the decision-maker failed to take into account a consideration that the decision-maker was bound to take into account. A decision-maker is not bound to consider every factor that a complainant wants considered. A decision-maker is only bound to consider those factors that the relevant statute, properly construed, requires to be considered. Ordinarily, decision-makers are not required to consider material that is not before them when making their decisions.
In the present case, the delegate’s letter of 19 October 2010 specifically referred to the relevant provision of the Act (s 40(1A)) and to the applicant’s written complaint. The letter included a brief summary of the nature of the complaint and a reference to the fact that it did not appear from the applicant’s complaint that he had first raised the issue with his former employer. Thus, the delegate’s letter indicates that the delegate had taken into account the governing Act, the complaint and its contents. I observe that, in general terms, the factors cited by the applicant as the factors the delegate was bound to consider were in fact mentioned in the applicant’s written complaint to which the delegate specifically referred. Whether or not the delegate was bound as a matter of law to consider each of these factors, there is nothing to justify the proposition that the delegate did not in fact take them into account in determining not to investigate without the applicant first writing to his former employer. Moreover, as already indicated, the applicant cannot establish a relevant failure by pointing to documents or acts that came into existence after the delegate made her decision. The relevant considerations ground in s 5(2)(b) must therefore fail.
The applicant also alleged that the challenged decision involved a bad faith exercise of power. At the hearing, however, his submission was in large part to the effect that entities other than the Commissioner or his delegate had acted in bad faith. There is simply nothing in the material before the Court that could provide a basis for a bad faith ground such as the applicant alleges in this case. The s 5(2)(d) ground is untenable.
The applicant also alleged that the challenged decision was made in application of a rule or policy without regard to the merits. Reference to the delegate’s letter of 19 October 2010 shows, however, that the delegate was aware that s 40(1A) of the Act conferred a discretion. This is indicated by the delegate’s statement that s 40(1) “requires that, unless inappropriate, the … Commissioner must not investigate your complaint if you have not complained directly to the organisation”. Further, as already noted, it is clear from the delegate’s letter that she had read and considered the applicant’s written complaint. As previously noted (at [6] above) the written complaint form had specifically invited the applicant to state his reason for not first raising his complaint with his former employer and the applicant had in fact set out various matters. There is nothing that would tend to indicate that the delegate did not consider these matters and the circumstances disclosed in the complaint as a whole before declining to investigate the applicant’s complaint at that time. In other words, there is no evidence to justify the allegation that the decision was made other than in accordance with s 40(1A). The s 5(2)(f) ground is without merit.
The final ground relied on by the applicant was that the exercise of power by the delegate was so unreasonable that no reasonable person could have so exercised the power: see s 5(2)(g). For the reasons already stated, there is no basis shown in the material that could make out this ground. It may be borne in mind that the challenged decision did not in terms entirely preclude the applicant from having his complaint investigated by the Commissioner. By her letter, the delegate informed the applicant that, since he had not first written to his former employer setting out his complaint, the Commissioner declined to investigate the complaint. By her letter, however, the delegate also informed the applicant that this obstacle might be overcome if he wrote to his former employer “about the issues you have complained about and allow it at least thirty days to respond”. At the hearing, the applicant’s objection to this course was merely that it would be futile or a waste of time. In all the circumstances, the unreasonableness ground is untenable.
Accordingly, having considered the material, I would conclude that the applicant’s substantial application has insufficient merit to warrant the Court extending time for its lodgement under s 11(1)(c) of the ADJR Act. Accordingly, I would refuse the applicant’s application to extend time and dismiss his substantial application as incompetent.
COSTS
Ordinarily, costs follow the event: a successful party is entitled to his costs. Both parties made submissions as to costs at the hearing.
The applicant argued that he should not be obliged to pay costs if unsuccessful for a number of reasons, including the public interest, the disparity between his resources and those of the Commissioner, as well as other matters relating to his particular circumstances.
Prior to delivering judgment, the Commissioner advised that, if successful, the Commissioner would not seek a costs order against the applicant. In these circumstances, the appropriate order is that there is no order as to costs.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate:
Dated: 18 May 2011
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