Ibrahim v Wu

[2009] FCA 1083

FEDERAL COURT OF AUSTRALIA

Ibrahim v Wu [2009] FCA 1083

TAREK IBRAHIM v JINGSHAN WU and UNIVERSITY OF WESTERN AUSTRALIA

WAD 101 of 2009

SIOPIS J
24 SEPTEMBER 2009
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 101 of 2009

BETWEEN:

TAREK IBRAHIM
Applicant

AND:

JINGSHAN WU
First Respondent

UNIVERSITY OF WESTERN AUSTRALIA
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	24 SEPTEMBER 2009
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The applicant’s notice of motion filed on 3 August 2009 is dismissed.

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 eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 101 of 2009

BETWEEN:

TAREK IBRAHIM
Applicant

AND:

JINGSHAN WU
First Respondent

UNIVERSITY OF WESTERN AUSTRALIA
Second Respondent

JUDGE:	SIOPIS J
DATE:	24 SEPTEMBER 2009
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant filed an application in this Court on 23 June 2009.  The application refers to the “Privacy Act 1988 and 2001”.  The details set out in the applicant’s originating application are as follows:

   On the grounds stated in the accompanying statement of claim, the applicant claims:

   1-The first respondent is doing a postgraduate research and the applicant blood test was intended to be sent to her the applicant is unaware what medical record she collect about the applicant.

   2-The second respondent is the research institute where the first respondent is registered as a research student.

   3-The third respondent is the hospital where the research is carried out in its premises.

   4-The applicant approached the second and the third respondent and the supervision of the first respondent and asked them to stop any research in the material relating to the applicant but non [sic] of them gave the applicant a formal and confirmed grantee.

   5-The applicant health is computerised until the research stops.

   6-The three respondents pays a compensation of $50,000 to the applicant for invading his privacy.

   7-Any research material relating to the applicant and any benefit or gain out of that to be destroyed.

2. The applicant also claimed the following relief by way of interlocutory relief in the originating application:

   1.The immediate return of the original consent form signed by the applicant on the 31^st of March.

   2.The three respondents provide details about what medical records of the applicant was collected.

   3.The respondents destroy any research material and pay a compensation of $50,000 to the applicant for invading his privacy.

3. The first respondent is a medical doctor and a student enrolled in the Doctor of Philosophy program in medicine at the University of Western Australia.  She is involved in a clinical research program into multiple sclerosis conducted by the Australian Neuromuscular Research Institute.

4. The directions hearing in this matter was listed to be heard at the same time as the directions hearing in the related matter:  Tarek Ibrahim v William Macewan Carroll, WAD 97 of 2009, on 30 June 2009.

5. The first and second respondents were represented by the same counsel at the hearing and the third respondent (who was a party at the time) was represented by counsel.

6. During the course of the directions hearing, I made an inquiry from counsel for the first and second respondents as to whether the respondents had considered whether the Court had jurisdiction to deal with the applicant’s application.  I adjourned the directions hearing until 4 August 2009.

7. On 3 August 2009, the applicant filed a notice of motion which included an application for an order that the judge “disqualify him self from the case”.  On the same day, the applicant filed a motion seeking the same order in relation to application WAD 97 of 2009.  Both motions were heard at the same time on 18 September 2009.  I have recorded the submissions made by the applicant at the hearing of the motions at [11] of my reasons for judgment in Ibrahim v Carroll [2009] FCA 1082.

8. The transcript of the directions hearing of 30 June 2009 reveals the following exchange between myself and counsel for the first and second respondents:

   HIS HONOUR:  Yes.  Have you considered whether the court has got jurisdiction to deal with this?

   MR LIN:  To a limited extent, your Honour.  I think the position is or might be that if a party submits to the terms of the Privacy Act, even though they’re not bound by the statute, in its conduct it submits to the provisions that may then be bound.  Whether it follows from that that the court has jurisdiction, I’m not quite sure.

   HIS HONOUR:  Yes, because isn’t there a process that you’ve got to go through the Privacy Commissioner first?

   MR LIN:  I’m not sure that that’s obligatory, your Honour.

   HIS HONOUR:  Right.  All right, but in any event, you say that you’re prepared to give undertakings in respect of the questions of the research being done on the---

9. In her submissions, counsel for the third respondent referred to the question of jurisdiction in the following terms:

   MS COWLEY:  …We also do – in our view there is a jurisdictional issue, because State hospitals aren’t bound by the provisions of the Privacy Act in any event.  We will be looking further at the jurisdictional issues.

   Our understanding is that the Federal Court does have some jurisdiction in relation to providing injunctive relief under the Privacy Act, but there is certainly – would appear to be a jurisdictional issue as to whether the court can be seized of this matter if it hasn’t already gone through the Privacy Commissioner.

10. For the reasons which are set out in [14]-[22] of my reasons for judgment in Ibrahim v Carroll, the applicant’s application that I disqualify myself on the grounds of apprehended bias, is dismissed.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:
Dated:           24 September 2009

Counsel for the Applicant:	The Applicant appeared in person.
Counsel for the First and Second Respondents:	Mr J Lin
Solicitor for the First and Second Respondents:	Jackson McDonald

Date of Hearing:	18 September 2009
Date of Judgment:	24 September 2009