Budd v Privacy Commissioner

[2006] FCA 1131

FEDERAL COURT OF AUSTRALIA

Budd v Privacy Commissioner [2006] FCA 1131

PAMELA JOAN BUDD v PRIVACY COMMISSIONER
NSD 143 OF 2006

ALLSOP J
30 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 143 OF 2006

BETWEEN:	PAMELA JOAN BUDD Applicant
AND:	PRIVACY COMMISSIONER Respondent

JUDGE:	ALLSOP J
DATE OF ORDER:	30 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

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 143 OF 2006

BETWEEN:	PAMELA JOAN BUDD Applicant
AND:	PRIVACY COMMISSIONER Respondent

JUDGE:	ALLSOP J
DATE:	30 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks an order for judicial review of a decision made by the Privacy Commissioner (the respondent) declining to investigate the applicant’s complaint under s 41(1)(d) of the Privacy Act 1988 (Cth).

2. The application lacks any coherent basis of complaint.  That said, the applicant feels strongly that she has had her privacy infringed by Centrelink.

3. At the time of commencing the proceeding, the applicant informed the Court that she suffers from agoraphobia and was unable to come to Court.  A regime for the filing of evidence was arranged to overcome this.

4. Voluminous, repetitive and ill-organised material was filed by the applicant.  It supported no coherent ground of complaint about the conduct of the respondent.  The transcript of the hearing reflects the attempts made to organise the various bundles of material that the applicant wished to put forward.  All documents that the applicant said at the hearing she wished to be before the Court were submitted into evidence.

5. It would be entirely unproductive to attempt to summarise this mass of documents and information put forward by the applicant.  The respondent filed a clear and comprehensive affidavit of the effective decision-maker, Ms Clare Vinecombe describing the course of events and the contents of the file.  The following description of the relevant facts revealed by that affidavit is unaffected by the voluminous paper produced by the applicant for the proceeding.  A recitation of the facts and an appreciation of the content of the affidavit of Ms Vinecombe reveals that there is no basis to criticise, legally or otherwise, the respondent’s conduct.

6. On or about 28 February 2005 the office of the respondent received an allegation of the breach of Ms Budd’s privacy by Centrelink. The allegation appeared to concern what was said to have been Centrelink’s breach of privacy by allowing other clients to act under her name leading to the affectation of her pension. On 15 March 2005, the delegate (Ms Vinecombe) sent a letter to the applicant informing her that she had decided to decline to investigate her complaint under s 41(1)(d) of the Act on the basis that the complaint was lacking in substance. The letter contained a paragraph which informed the applicant that from the information that had been provided the delegate was not able to determine the substance of the complaint. Having examined the material which was apparently before the delegate at this point I can only agree with her evaluation of it. In the same letter, that of 15 March 2005, the delegate also invited the applicant to provide additional information which might clarify her complaint. It was also noted by the delegate that it did not appear that the applicant had complained directly to Centrelink, and by virtue of s 40(1A) of the Act the Commissioner was not ordinarily able to investigate a complaint unless the complainant had already complained directly to the agency in question.

7. On 19 August 2005, the office of the respondent in Castlereagh Street received two pages sent by facsimile from the applicant.  One of the pages was the first page of a letter of complaint to Centrelink dated 16 December 2004 and the other was a request for further investigation of the applicant's complaint.

8. Shortly thereafter, on 23 August 2005, the delegate wrote to the applicant once again informing here that she was declining to investigate the applicant’s complaint under s 41(1)(d) as she was still not able to determine the substance of the complaint from the information provided. It appears from this letter that the delegate had given careful attention to all material that had been placed before her by the applicant. Once again the applicant was invited to provide additional information that might clarify her complaint.

9. On 4 September 2005 the respondent’s Castlereagh Street office received two further facsimiles from the applicant comprising a total of nine pages providing more detail of her complaint and referring to various documents, statements and letters, copies of which were not provided as part of the facsimile and at this point had not yet been sent to the delegate. 

10. On 20 September 2005 the delegate once again wrote to the applicant informing her that she was declining to investigate her complaint under s 41(1)(a) of the Act.  In this letter, which once again reveals a close attention by the delegate to such matters as the applicant was putting before her, the following appeared:

    Unfortunately, while you have referred to various circumstances, I am not able to understand how this shows that Centrelink has breached your privacy.  I have carefully considered all the information you have provided, however, I do not consider that the circumstances you describe indicate that Centrelink has breached the Act.

    While the Act gives the Commissioner the power to investigate complaints about breaches of the Act, section 41(1)(a) givers her the discretion not to investigate a complaint if she is satisfied that the act or practice complained about is not an interference with privacy, as defined in the Act.

    It appears that you are complaining that Centrelink incorrectly recorded your assets as being worth $69,999 in September 2001, but you state that the property was sold in 2000.  You indicate that Centrelink asked you about this change after they recorded this information, and you claim that they should have asked you before they recorded this information.  You indicate that your pension continues to be paid and it is assessed against your assets and means.

    It also appears that you are complaining that Centrelink has sought statements from your family members in relation to investigations into their benefits.  It appears that some of these investigations have been pursued in court.

    While I can understand that you are stating that these matters had nothing to do with you, if your family member mentioned your name in their statement, or any opinion that they hold about you, and that statement was provided to Centrelink in connection with these investigations, then it is unlikely to be a breach of the Act if Centrelink maintains an accurate record of that statement, including your name or that opinion.

    Opinions by nature are subjective, and as long as Centrelink accurately records those opinions, whether they are true or not, then keeping that record will not breach the Act.  In certain circumstances, Centrelink will also be allowed to use or disclose that statement, which may include your name or a statement about you, for instance in connection with court proceedings against the individual who made the statement.

    As your complaint does not appear to constitute a breach of the Act, I am declining to investigate your complaint under section 41(1)(a) of the Act.

11. From the material which was apparently before the respondent at this point, I see no basis for complaint about these conclusions. 

12. On the same day, 20 September 2005, the applicant sent a two page facsimile to the respondent at the Castlereagh Street office which included reference to a letter of 9 September 2005 from another person at the respondent’s office.

13. On 23 September 2005, the delegate wrote to the applicant advising her that the delegate had become aware of documents which had been provided by the applicant to the office of the respondent but which had been returned.  The applicant was advised that if she wished to resubmit the documents they would be reviewed and a decision would be made whether they warranted a reconsideration of the previous decision.

14. On 11 October 2005 two envelopes were received from the applicant containing a seven page letter from the applicant dated 2 October 2005 and numerous other documents of over 170 pages.

15. On 8 December 2005, the delegate, having examined all this material wrote to the applicant once again.  Once again, the delegate declined to investigate the complaint.  In the letter the delegate stated as follows:

    This letter is to advise that I have now reviewed the documents you provided.  Unfortunately, I do not consider that the documents you provided have substantiated any complaint against Centrelink regarding a breach of your privacy.  I have provided further detail below.  Given this assessment, I consider that the decision in my letter dated 20 September 2005 to decline to investigate your complaint was correct, and I will not be re-opening your file.

    You provided numerous documents, which were dated from 1998-2005.  I note that many of the documents that your provided were only partial copies, and it is clear that pages were missing.  Despite this, I have reviewed all the documents.

    The documents related to various issues including your Mobility Allowance lump sum payment, the termination of your Disability Support Pension, your efforts to transfer to Newstart Allowance, your financial difficulties in paying rent after your Centrelink payments were suspended, and your eviction from you home as a result of these difficulties.  You also provided a number of certificates and reports by doctors confirming your psychological condition.

    While these documents support your claim that you are severely limited in your ability to leave your home to attend doctor’s appointments, Centrelink interviews, or tribunal hearings, these factors do not indicate that there has been any breach of your privacy by Centrelink.

    I note that in your letter to Centrelink dated 16 December 2004 you describe at length your distress at your family members “trading” under your name.  You ultimately request that Centrelink remove your name from Brian Budd’s illegal claims and false statements, and Monique’s false statements.  Your letter to Centrelink dated 23 December 2004 repeats those requests.

    As already explained to you in my letter of 20 September 2005, if a person, including a family member, has mentioned your name in their statement, or any opinion that they hold about you, and that statement was provided to Centrelink, then it is unlikely to be a breach of the Act if Centrelink maintains an accurate record of that statement, including your name or that opinion.

    Information privacy Principle (IPP) 8 requires that Centrelink must take such steps (if any) as are reasonable to ensure that information it uses is accurate, up to date and complete.  You mentioned in your letter that Centrelink recorded assets against you of $69,999 in 2001, following information that you had sold a property.  You advise that your payments were suspended as a result of this information.  You claim that at that time you had only $8 in the bank, and that Centrelink failed to check the information with you prior to recording it. You believe that Centrelink should have checked this information with you.

    As stated above, IPP 8 does not specifically require that Centrelink check information with you prior to recording it.  The obligation on Centrelink is to take such steps, as any, as are reasonable to ensure that the information is accurate.  You also state that Centrelink checked this information with you after recording it, and that once you had verified the assets that you held, our payments recommenced and that you received back-pay for the period that they were suspended.  I do no consider that the circumstances you have described indicate that Centrelink has breached your privacy.

    As stated above, I do not consider that you have substantiated a claim of a breach of your privacy that could be investigated by this office, and so I will not be re-opening your file.

16. There is no single document which sets out in any convenient form the applicant’s complaints and the background to those complaints.  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.

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.

24. I see no basis why an order for costs should not be made.  It is a matter for the respondent as to whether it wishes to enforce it.

25. I do not see any basis to deny the respondent an order for costs.

26. The orders of the Courts will be:

    1.The application be dismissed.

    2.The applicant pay the respondent’s costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:
Dated:       30 August 2006

Applicant appeared in person by telephone
Counsel for the Respondent:	Mr A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 July 2006
Date of Judgment:	30 August 2006