Budd v Federal Privacy Commissioner
[2007] FCAFC 24
•23 February 2007
FEDERAL COURT OF AUSTRALIA
Budd v Federal Privacy Commissioner [2007] FCAFC 24
PAMELA JOAN BUDD v FEDERAL PRIVACY COMMISSIONER
NSD 1826 OF 2006SPENDER, KIEFEL AND RARES JJ
23 FEBRUARY 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1826 OF 2006
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
PAMELA JOAN BUDD
AppellantAND:
FEDERAL PRIVACY COMMISSIONER
Respondent
JUDGES:
SPENDER, KIEFEL AND RARES JJ
DATE OF ORDER:
23 FEBRUARY 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs of the appeal, to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1826 OF 2006
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
PAMELA JOAN BUDD
AppellantAND:
FEDERAL PRIVACY COMMISSIONER
Respondent
JUDGES:
SPENDER, KIEFEL AND RARES JJ
DATE:
23 FEBRUARY 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
SPENDER J
This is an appeal from a judgment of Allsop J (‘the primary judge’) given on 30 August 2006 dismissing an application by Pamela Joan Budd, (‘the appellant’), for judicial review of a decision of the Privacy Commissioner made under s 41(1)(a) of the Privacy Act 1988 (Cth) (‘the Act’) declining to investigate a complaint of an alleged breach of privacy by Centrelink.
The amended notice of appeal filed by the appellant pursuant to orders made by Branson J on 25 October 2006 provides as follows:
‘1.I suffer from Agoraphobia and Social Phobia – due to my condition, I’m unable to do a normal Court hearing which means I need special consideration for a ‘phone link’ and to be heard on the papers.
2.I have not had the opportunity to have all my actual documents from ‘A – F’ of the exhibits reviewed in the original decision.
3.The presiding Judge – Judge Allsop, I feel erred in his original decision as he failed to grant me a proper opportunity to have all the documents reviewed. This caused an incorrect review which denied me my own natural rights to justice. Under the grounds of this appeal some of the documents that should have been reviewed have a relevance to the matter of privacy infringements – such documents that should have been reviewed eg: a) Centrelink Letter 5th November 2002 [Restoration of Pension]; b) I’m presenting professional Psychiatric evidence. Tabled at the original review, obtained from Dr Klug (Macquarie Street) and Dr Jungfer (Burwood). These are supported by Dr Lillian Goodman (Bellevue Hill) family doctor. Dr Joan Lunz (Bondi). Dr Christopher Alexandria (Maroubra), Dr Evette Hall (Maroubra), Dr Eri Blass (Coogee), Dr Rodrigues (Fairfield) and other medical practitioners. Also a document from the SSAT (16th October 2002). Also for consideration would be letters from Hon Bob Carr (Premier of NSW); Hon John Faulkner – Senator Public Administration and Home Affairs; Hon Andrew Refshauge MP – Minister for Housing and Solicitor Mr Alan Crompton. Letter 20 September 2001 – also my exhibits ‘A’ and ‘B’ I have with affidavit.’
In relation to that amended notice of appeal, the appellant concluded by saying:
‘1.I seek full compensation for Psychological disorders, harm and emotional and physical distress.
2.I also seek my legal and medical costs and out of pocket expenses and any economic loss applicable.
3.To stop interference with my personal privacy, pension and my good name (reputation) and home of twenty years. To have the three false Centrelink AVO’s removed and stop this agency from access/storing or disclosing my personal information by using my good name/details in dealings with other clients without my knowledge or consent.’
While the voluminous material before this Court, including what is contained in a 14‑page document entitled ‘Emergency Appeal’ dated 30 September 2006 and forwarded to the Court by facsimile on that day, traverses much ground, there appears to be only one ground of complaint advanced by the appellant which asserts appellable error by the primary judge. This complaint appears many times in the appellant’s submissions, both written and oral.
The nature of the complaint appears from page 10 of the first part of the appellant’s written submissions where Ms Budd says:
‘The Respondent contradicts his argument lacks logic, as he said that the Judge reviewed “ALL MY EVIDENCE” but when your closer see his decision at (5) that clearly shows Mr Markus went wrong, as it states: IT WOULD BE ENTIERLY “UNPRODUCTIVE TO ATTEMPT TO SUMMARISE THIS “MASS OF DOCUMENTS” AND INFORMATION PUT FORWARD BY THE APPLICANT” So, that proves the Judge never reviewed it all and it shows Mr Markus made untrue claims as such, s I am denied my rights t natural justice.’
And later at paragraph 21 the statement is made:
‘… the Judge did not take into account all the actual evidence it was too much for him to do on his own so see at (5) on page 8 of 10.’
At page 11 of her written submissions Ms Budd says:
‘What counts for this matter is to hear it on the actual merit …’
At page 12:
‘I seek the Court to hear it on the actual merit as my illness disadvantage me in initial hearing.’
The proceedings below were commenced on 31 January 2006 by way of an application for an Order of Review. The application referred to O 54 of the Federal Court Rules and appears to have sought to invoke the Court’s jurisdiction under the AdministrativeDecisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’) and perhaps s 39B of the Judiciary Act 1903 (Cth).
The procedural history of the appellant’s complaint to the Office of the Privacy Commissioner of an alleged breach of her privacy by Centrelink is set out in the affidavit of Ms Vinecombe, filed on 23 March 2006.
As the respondent’s submissions to this Court note, there is no single document that sets out in a convenient form the appellant’s complaints and the background to those complaints other than the judgment of the primary judge, the subject of the present appeal. The primary judge summarised the matters as follows:
’16. … The applicant appears to have been suffering from various medical conditions for some time. There are medical reports in the documents forwarded by her to the respondent and to the Court which suggests that she is presently suffering from various psychological conditions including agoraphobia, social phobia and panic attacks.
17.The applicant lives in a Housing Commission apartment in South Coogee which she has not been able to leave because of her medical condition. The applicant appears to have been in receipt of various forms of benefits since 1985. The applicant has a number of brothers and sisters and it appears that there has been discord and dispute between various members of the family. Some of this dispute would appear to be related to issues concerning properties previously owned by the applicant’s mother who died in 1997. The applicant appears to claim that money and income from the sale of these properties had gone to some of her siblings who originally led her to believe that her mother had no assets at the time of her death.
18.The applicant also appears to claim that she has been the subject of vexatious allegations of fraud concerning alleged non-declaration of assets and income. The applicant suspects some of her siblings and other of her neighbours to be the source of these allegations. As a result of these allegations the Department of Housing cancelled the applicant’s housing subsidy and began charging her full rent which she was unable to pay. She was served with an eviction notice in September 2002. She brought proceedings in the Consumer Trade and Tenancy Tribunal and eventually succeeded in having the decision overturned. At about the same time the applicant’s disability support pension was suspended and later cancelled. The applicant claims that in September 2001 Centrelink put false assets of $69,000 on her statement when in fact she only had $8 in the bank. The applicant appears to assert that some of her relatives who are also clients of Centrelink have been “using” and “acting under” her name and have made false declarations to Centrelink during 2001, 2002, 2003 and 2004.
19.During the same period of the applicant’s complaints against her siblings and neighbours, they have accused her of being a vexatious complainant. Apprehended Violence Orders were sought in 2003 against her. In the various documents provided to the respondent and to the Court there is no express identification of any particular Information Privacy Principle that the applicant claims was breached by Centrelink. I agree with the submissions of the Respondent that the substance of the applicant’s complaints in respect of Centrelink, its staff and others appears to be that the agency had kept records of false statements made about her without advising her of these statements.’
Next, whilst the affidavit filed on behalf of the respondent exhibited the documents before the Delegate, the appellant on her application to the Federal Court was permitted to file extensive additional material that she considered relevant to her application. The appellant filed six bundles of documents comprising over 1100 pages. She requested that the primary judge review this material and submitted that her case would be apparent and would be made out on the face of this evidence.
All of these documents which she sought to introduce into evidence were admitted into evidence and were marked exhibits A to F respectively. The primary judge in his Honour’s reasons for judgment at par 20 said:
‘20.Having reviewed the whole of the delegate’s file which was exhibited to Ms Vinecombe’s affidavit and understood the reasons for the delegate’s actions, I see no basis whatsoever for any allegation that any ground of review exists under the Administrative Decisions (Judicial Review) Act 1977 (Cth), or s 39B of the Judiciary Act 1903 (Cth).
21.None of the material provided by the applicant whether by way of evidence or submission grounds any coherent claim. The application itself gives no basis under the Act. The respondent has, perfectly properly, not taken any procedural point in relation to the application. Rather, it has sought to have the matter litigated on its merits.
22.Taking into account all the evidence that the applicant has placed before the Court, I see no basis for any complaint that the respondent approached the matter in any way other than lawfully and I see no ground under any Commonwealth law for complaint about the approach of the respondent.
23. For these reasons the application should be dismissed.’
I want to emphasise that his Honour in par 21 referred to ‘the material provided by the applicant whether by way of evidence or submission’ and in par 22 his Honour indicated that he took into account all the evidence that the applicant had placed before the Court.
The principal complaint and, in fact, the only ground of appeal is that the appellant was denied natural justice by the primary judge, in that he failed to grant to the appellant ‘a proper opportunity to have all the documents reviewed’. That ground is not made out, as the above parts of the reasons for judgment of the primary judge demonstrate.
Since this is the only ground properly raised on the voluminous material on this appeal, in my judgment the appeal should be dismissed.
KIEFEL J
I agree with his Honour the presiding judge.
RARES J
I also agree.
SPENDER J
I would propose that the appellant pay the respondent’s costs of the appeal to be taxed if not agreed.
KIEFEL J
I agree.
RARES J
I agree.
SPENDER J
The orders of the Court are: the appeal is dismissed, and the appellant pay the respondent’s costs of the appeal, to be taxed if not agreed.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Kiefel and Rares. Associate:
Dated: 6 March 2007
The Appellant appeared via telephone Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 23 February 2007 Date of Judgment: 23 February 2007
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