BJQ19 BY Their Litigation Guardian BJP19 v Australian Information Commissioner
[2019] FCCA 2303
•16 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BJQ19 BY THEIR LITIGATION GUARDIAN BJP19 v AUSTRALIAN INFORMATION COMMISSIONER | [2019] FCCA 2303 |
| Catchwords: MIGRATION – Ex tempore ruling on application for remittal to the Privacy Commission in circumstances where legal error conceded. |
| Legislation: Migration Act 1958 (Cth) Privacy Act 1988 (Cth) |
| Cases cited: Simjanovska v Department of Human Services [2019] FCA 499 Industry Research and Development Board v IMT Limited [2001] FCA 85 |
| Applicant: | BJQ19 BY THEIR LITIGATION GUARDIAN BJP19 |
| Respondent: | AUSTRALIAN INFORMATION COMMISSIONER |
| File Number: | MLG 1425 of 2019 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 15 August 2019 |
| Date of Last Submission: | 15 August 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 16 August 2019 |
REPRESENTATION
BJP19 appearing as Litigation Representative of the Applicant
| Counsel for the Respondent: | Mr Wood |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The name of the Respondent be amended to the Australian Information Commissioner.
The decision of the delegate of the Respondent (‘Delegate’) made on 4 February 2019 be set aside.
The matter be remitted to the Respondent for further consideration de novo with a direction that the Applicant’s complaint (or complaints) be considered by a different delegate.
The Respondent is to pay any filing fee imposed by the Court but otherwise there be no order as to costs.
Otherwise the application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1425 of 2019
| BJQ19 BY HER LITIGATION GUARDIAN BJP19 |
Applicant
And
| OFFICE OF THE AUSTRALIAN INFORMATION COMMISSIONER |
Respondent
REASONS FOR JUDGMENT
(ex tempore)
The court is facing a curious situation. Put broadly, the respondent seeks orders quashing a decision of a delegate of the Australian Information Commissioner and remittal for hearing de novo before a different delegate. This course is sought because of an admitted error by the delegate. The applicant mother, who sues on behalf of her child, also seeks quashing of the decision and remittal but opposes the course proposed by the respondent because she wants the court to make declarations additionally in respect of other alleged errors by the delegate.
Although the mother made submissions at some length, the essential point she made was that the concession made by the respondent as to one error does not determine the other errors she alleges, which may therefore be repeated if the matter is remitted without such determination by the court.
Counsel for the respondent made three points. The first is that the jurisdiction that the court is exercising is jurisdiction to review. It was submitted that the court should not and indeed cannot make the declarations sought by the mother.
The declarations are set out in the originating application at paragraphs 5 - 8 which I will read out.
5. A declaration that the Applicant’s assignments and assessments are the applicant’s personal information.
6. A declaration that the Applicant has property rights in her assignments and copyright in her assignments that are her original work.
7. A declaration that the Applicant’s property rights and copyright are not curtailed by her enrolment at the school.
8. A declaration of any interference with the Applicant’s privacy as the court sees fit.
In substance, of course, these are declarations that would bind the child’s school as well of course as the delegate. The school is not a party to this proceeding. Of itself that matter is an insuperable objection to the relief that the mother seeks. I have, however, also been referred to authority which, it is submitted, is directly on point. In the case of Simjanovska v Department of Human Services [2019] FCA 499, Perry J had relevant things to say. At paragraph [4], Perry J stated:
Among other things, the amended originating application seeks orders: setting aside the Assistant Commissioner’s decision and reasons; for the Commissioner to investigate the applicant’s complaints and to review current practices for the assessment and investigation of complaints under the Privacy Act; for review of the respondents’ conduct in accordance with the Pubic Service Act 1999 (Cth); and for the respondents to respect the applicant’s privacy. The applicant also seeks damaged suffered from the decisions and conduct of all three respondents.
At [92] Her Honour continued:
Insofar as the amended originating application for judicial review of the Assistant Commissioner’s decision under the Privacy Act seeks orders setting aside that decision and requiring it to be remade according to law, this Court plainly has jurisdiction to entertain the application under s 39B of the Judiciary Act 1903(Cth) and s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). That said, the court is limited on judicial review to considering only the legality of the Assistant Commissioner’s decision based upon the material before him.
At [108] the court observed:
First, in deciding whether the application has any reasonable prospects of success, it is important to emphasise the limited jurisdiction of the Federal Court on judicial review to interfere with the decision of the Assistant Commissioner. The discretion in s 41(1) of the Privacy Act is vested only in the Commissioner or a delegate and not the court. The jurisdiction of the Federal Court is confined to deciding whether the Assistant Commissioner’s decision was made lawfully under the Privacy Act, that is, whether the Commissioner’s decision is invalid by reasons of a jurisdictional error or tainted by a reviewable error specified in
s 5(1) of the ADJR Act.
At paragraph [109] the court continued:
As such, it is not for this Court to exercise the discretion in s 4(1) of the Privacy Act for itself so as to determine whether or not the Commissioner or the Assistant Commissioner should investigate the applicant’s complaint.
And at [110] the court concluded:
It follows that to the extent that the applicant seeks to invite this Court to determine afresh whether or not there has been an interference with her privacy in the context of her challenge to the Assistant Commissioner’s decision, the claim cannot succeed.
Here, of course, there has been a concession that legal error has been made. In Industry Research and Development Board v IMT Limited [2001] FCA 85, a decision of RD Nicholson J, the court said at [15] - [16]:
The grounds of appeal which reflect the questions of law previously set out, are as follows.
and it sets out the various grounds. And at [16]:
For the respondent there is a concession that the Tribunal made an error of law in terms of ground 4.3; that is, in failing to make an express finding as to whether or not the respondent’s activities were innovative or involved technical risk. There is therefore common ground that the appeal should be allowed for that reason.
At [17] the court continued:
The primary submission made for the applicant in opposing the respondent’s motion for remittal to the Tribunal is that the Court should deal with the entire appeal. The submission is that the Court should do this in order to identify to the Tribunal the errors in addition to the conceded error in terms of the questions of law raised by and the grounds in the notice of appeal. As a second limb to this argument it is said that the Court could only properly determine whether the matter should be remitted to the same or a differently constituted tribunal after having disposed of the other grounds of appeal. For that reasons it is said that for the Court to proceed to hear the appeal on the non-conceded grounds would not be an academic exercise.
At [21] and [22] the court relevantly said:
However, it is said additionally for the applicant that the Tribunal would be placed in an invidious position if it does not have the rulings of the Court on the non-conceded grounds of appeal. Specifically it is submitted that if the Court does not rule on whether the unorthodox matter in which the Tribunal has stated its findings in the tabular form satisfied s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth), the tribunal will not know how to express its conclusions on the questions of innovation or technical risk.
There are two principal answers to this further submission. The first is that it is a feature of the appellate system that if a court upholds on appeal on one ground of appeal it will not address other grounds of appeal unless there is some particular reason to do so. The alternative approach urged for the applicant would have the feature of adding to the duration and cost of the appellate process.
With respect, those remarks are clearly all apposite here. I further note that those remarks of RD Nicholson J were specifically approved by Katzmann J in Hollis v Comcare [2017] FCA 558 where Her Honour said at [4] and [6 ] respectfully:
Ms Hollis appealed. In her notice of appeal she alleged that the Tribunal made a number of legal errors. Following the publication of the judgment in Lim v Comcare – (citation omitted) – Comcare accepted that the Tribunal erred in one important respect, that the appeal must be allowed, and that the matter must be remitted to the Tribunal. Two matters remain in dispute: the scope of the remittal and the constitution of the Tribunal. Comcare submitted that there should be only a partial remittal. Ms Hollis submitted there should be no limit and that the Court should order that the matter be heard by a differently constituted tribunal.
Then at [6]:
Quite properly, neither party asked the court to determine the remaining grounds of appeal. As RD Nicholson J pointed out in Industry Research and Development Board v IMT Limited –(citation omitted) – unless there is a particular reason to do so, an appellate court which upholds an appeal on one ground will not address the remaining grounds.
Here, of course, there is no full consent between the parties. So even leaving aside the fact that the mother seeks, in substance, relief that would bind a non-party, the weight of authority in my view is clear. First, the court’s task is limited to determining legal error by the delegate, not to exercise the delegate’s discretion or task for itself. Second, if error is conceded, the court should not determine other alleged errors. And there is no valid reasons in my view why in this particular case there should be any exception to that general rule.
The next issue that arises, and it was the third one addressed by counsel for the respondent, is the nature of the concession. Is it, first, made out, and second, sufficiently clearly expressed? The mother says that it is not clear but I do not agree. If one looks at s 41(2)(a) of the Privacy Act, one sees that it prescribes that the commissioner may decide not to investigate or not to investigate further an act or practice about which a complaint has been made under s 36 if the commissioner is satisfied that the complainant has complained to the respondent about the act or practice and either (1) the respondent has dealt or (2) is dealing adequately with the complaint. That is the relevant part of the matter.
It is clear from the court book at page 1 that no such complaint had been made to the school. There is, of course, a possible exception pursuant to s 41A but the findings of the delegate at court book 81 and 84 make it clear, in my view, that the delegate did not form a state of satisfaction that the applicant had not – that is to say, the mother, had not complained to the school. This is clearly an error and I accept the respondent’s submission that it is not clear that this error did not affect the totality of the decision. In short, I think the error is clearly expressed and is accurately set out in the respondent’s proposed notation.
Finally, I shall deal with the mother’s application for an adjournment. She seeks an adjournment because of late service of the submissions and draft orders proposed by the respondent. Logically, the adjournment application would normally be dealt with first. In this particular instance I have left it till last. I make the following short points. First, the respondent’s position is unassailable. If nothing else, the non-party status of the school would be decisive in and of itself. Furthermore, the authorities are clear and the court should not do what the mother seeks that the court do.
Secondly, and this is less important, but it is not totally irrelevant, I note that the mother is a solicitor from her affidavit filed on 17 July 2019. She made careful and comprehensive oral submissions. Any surprise occasioned by the receipt of the respondent’s documentation would operate less on her than it would on an ordinary litigant appearing in person. The allocation of further court time for this matter is not in my view appropriate in these circumstances and not in the interests of the administration of justice.
The orders I propose to make are those proposed by the respondent in 1, 2 and 3, but in 3 it will be with the addition, and this was conceded, of the words “de novo” and will now read, the matter be remitted to the respondent for further consideration de novo, with a direction that the applicant’s complaint or complaints be considered by a different delegate.
The only other matter I do raise is the proposed order 4 that there be no order for costs. The respondent only adjusted its position, as I understand it, to concede the error somewhat late in the piece.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 27 August 2019
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