Jaworski v Australian Information Commissioner

Link copied
Case Copied 72 min read

FEDERAL COURT OF AUSTRALIA

Jaworski v Australian Information Commissioner [2022] FCA 1400

File number(s): VID 603 of 2021
Judgment of: ROFE J
Date of judgment: 23 November 2022
Catchwords: ADMINISTRATIVE LAW – consideration of an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) concerning a decision of the delegate of the Commissioner in exercising a statutory discretion to cease further investigation of a complaint made by the applicant under the provisions of the Privacy Act 1988 (Cth)
Legislation:

Administrative Decision (Judicial Review) Act 1977 (Cth)  

Australian Information Commissioner Act 2010 (Cth)

Privacy Act 1988 (Cth)

Federal Court Rules 2011 (Cth)
Cases cited:

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Goodwin v Commissioner of Police [2020] FCA 950

Jones v Office of the Australian Information Commissioner [2014] FCA 285

Love v State of Victoria [2009] VSC 215

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Ranav Australian Information Commissioner [2022] FCA 817

Simjanovska v Department of Human Services [2019] FCA 499

Sunshine Coast Broadcasters Pty Ltd v The Australian Communications and Media Authority [2012] FCA 1205

Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 126
Date of hearing: Determined on the papers
Counsel for the Applicant: The applicant was self-represented
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 603 of 2021
BETWEEN:

GERALD JAWORSKI

Applicant
AND:

AUSTRALIAN INFORMATION COMMISSIONER

Respondent

ORDER MADE BY:

ROFE J

DATE OF ORDER:

23 NOVEMBER 2022

THE COURT ORDERS THAT:

1.The following decision of the Australian Information Commissioner be set aside:

(a)the decision dated 16 September 2021 declining to investigate the applicant’s complaint of a breach of privacy against Mr Gerald Jaworski under s 41(1) of the Privacy Act 1988 (Cth).

2.The application is otherwise dismissed.

3.There be no order as to costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

ROFE J:

INTRODUCTION

  1. By an originating application for judicial review under the Administrative Decision (Judicial Review) Act 1977 (Cth) (the ADJRAct), filed on 13 October 2021 (the originating application), the applicant, Mr Gerald Jaworski, seeks review of a decision of the delegate of the respondent, the Australian Information Commissioner (the Commissioner).

  2. Part V of the Privacy Act 1988 (Cth) (the Privacy Act) deals with complaints and investigations about acts or practices that may interfere with a person’s privacy. A person may complain to the Commissioner about an act or practice that may be an interference with their privacy (s 36), and if a complaint is made, the Commissioner is obliged to investigate it (s 40) except in certain circumstances (s 41). One of those circumstances…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Jaworski v Australian Information Commissioner and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2022] FCA 1400
Decision Date

CaseChat Overview and Summary

In the case of Jaworski v Australian Information Commissioner, the applicant, Gerald Jaworski, sought judicial review of a decision by the respondent, the Australian Information Commissioner, not to investigate a complaint made by the applicant regarding a breach of privacy under the Privacy Act 1988 (Cth). The applicant had raised concerns about the way the Chartered Accountants Australia and New Zealand (CA ANZ) had handled his request to put 38 special motions for consideration at an annual general meeting (AGM). CA ANZ had decided not to put the motions to the members at the AGM and instead to address the general themes of the motions at the AGM. The applicant alleged that CA ANZ had breached the privacy laws by using his personal information in a misleading way in the Notice of Meeting and Information Sheet published on the CA ANZ website.

The primary legal issue before the court was whether the delegate of the Commissioner had erred in the exercise of the discretionary power conferred under s 41(1)(a) of the Privacy Act in declining to investigate the applicant’s complaint of a breach of privacy. The court found that the delegate had indeed fallen into error in the exercise of the discretionary power. The court found that there may be an issue regarding the delegate’s characterisation of the applicant’s personal information that was used by CA ANZ in the alleged breach of the APPs, the subject of the applicant's complaint. The court noted that this issue had not been addressed specifically in the parties' submissions. The court also found that CA ANZ's portrayal of the applicant as a lone troublemaker by combining his personal information with false assertions was a breach of the privacy laws.

The court set aside the decision of the Australian Information Commissioner dated 16 September 2021 declining to investigate the applicant’s complaint of a breach of privacy against CA ANZ. The application was otherwise dismissed, and there was no order as to costs. The decision highlights the importance of correctly characterising personal information and the need for organisations to ensure that they do not use personal information in a misleading way that breaches the privacy laws.

Orders

Orders of the court

1. The following decision of the Australian Information Commissioner be set aside:

(a) the decision dated 16 September 2021 declining to investigate the applicant’s complaint of a breach of privacy against Mr Gerald Jaworski under s 41(1) of the Privacy Act 1988 (Cth).

2. The application is otherwise dismissed.

3. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Both parties provided short submissions in response. In his response, the applicant noted that CA ANZ had as at September 2022, removed the material the subject of his complaint from the CA ANZ website.BACKGROUND The applicant has been a member of the CA ANZ and its predecessor for over 30 years. On 23 September 2020, the applicant, together with nine other members, sought to requisition 38 special motions for consideration at the upcoming annual general meeting (AGM). The 38 motions related to a range of issues, including disclosure in CA ANZ’s financial accounts, governance structure, overseas travel costs and remuneration of senior executives. The CA ANZ Board considered that the proposed motions were not appropriate to be individually put to the members at the AGM and decided not to put the motions to the members at the AGM, and instead to address the general themes of the motions at the AGM.On 4 November 2020, after the decision to quash the proposed motions, CA ANZ published a Notice of Meeting and an accompanying Information Sheet. The Notice of Meeting and Information Sheet were published on the CA ANZ website in the lead up to the AGM. Despite the Board’s decision that the 38 proposed motions could not be validly put to members, the Notice of Meeting included the following statement:On 25 September 2020, CA ANZ received a notice from Mr Gerald Jaworski and 9 other members, seeking to requisition 38 special motions (Requisition) for consideration by members at the AGM. The motions will not be put to the AGM as they are not motions that can legally be proposed by members or are not in a form appropriate to put to the meeting. Further detail in respect of the Board’s response to the Requisition is set out in the Information Sheet. (Emphasis added) The Information Sheet included information as to how members could attend the AGM virtually, how they could ask questions at the AGM and what to do if they experienced technical difficulties. The Information Sheet also contained the following:Why did the Board decide not to put the Requisition to Members?The Requisition was lodged by Mr Gerald Jaworski and was supported by 9 other members.Mr Jaworski is a member with whom CA ANZ has always engaged in good faith for a period of 3 years by responding to a high volume of communications on numerous topics, from transparency and governance to the interpretation of new international accounting standards and the member benefits program.Despite CA ANZ’s significant efforts to share information and address his wide ranging concerns directed to staff across the organisation, Mr Jaworski has made unsolicited approaches to fellow members via email, community and social platforms, including in relation to matters that have been addressed by CA ANZ numerous times previously. Mr Jaworski has shared his views in a range of public contexts, including in approaches to the Governor General, politicians, journalists and leaders of the accountancy profession.The 38 special motions proposed by Mr Jaworski relate to a range of matters, including disclosure in CA ANZ’s financial statements, CA ANZ’s corporate governance structure and whether its post-merger structure is appropriate, its overseas offices, its overseas travel costs, its disclosure in relation to the remuneration of its CEO and senior executives and its ability to act as an advocate in the public good. Some of the motions proposed are more in the way of a comment or question; others traverse matters upon which Members have already been asked to vote, such as the amalgamation with NZICA in 2014. Others relate to matters that CA ANZ has already actioned, such as enhanced executive remuneration disclosure. A copy of the 38 special motions is available on our website.In addition to satisfying the procedural requirements set out in the By-Laws, proposed motions must also satisfy certain legal principles. CA ANZ has thoroughly tested whether the special motions are of a kind that can be validly put to members in light of these principles and has determined that they were not motions that members could legally propose or were not in a form appropriate to put to the meeting.Nevertheless, the Board believes that it is important to address issues raised by Members. The Chair of the Board and the President will therefore spend time at the AGM addressing some of the themes raised by the proposed motions and Members will be able to ask questions. (Emphasis added)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant seeks judicial review in this Court of the 16 September 2021 decision (the decision). For the reasons which follow, I find the respondent fell into error in the exercise of the discretionary power conferred under s 41(1)(a) of the Privacy Act.Determined on the papers The applicant is self-represented. I ordered that the applicant’s originating application proceed and be heard and determined on the papers. I made directions for the filing of any further documents, and submissions in chief, response and reply by the applicant and the Commissioner. There was no challenge to the validity of the delegation of the Commissioner’s powers to the delegate for the purposes of making the decision. The originating application seeks orders that: (a)the Commissioner revisit the decision and reasons; and(b)the Court issue a cost capping order to limit the costs for each party to nil. The applicant filed a number of documents in support of his application. He relies on the following documents:(a)Concise statement dated 14 October 2014;(b)A case document with attachments, including the correspondence set out in a table in the applicant’s genuine steps statement dated 14 October 2021, the CA ANZ’s Notice of Meeting, an accompanying Information Sheet and the proposed special motions sought;(c)Submissions dated 16 March 2022; and(d)Comments on the respondent’s outline dated 18 April 2022. The respondent filed a number of relevant documents including a copy of the decision and the correspondence of the Commissioner’s Office with the applicant and the CA ANZ which preceded the decision. The respondent filed submissions on 13 April 2022. The applicant filed further submissions on 18 April 2022. On 25 May 2022, the respondent filed submissions in reply. Upon reading the submissions and materials filed with the Court it appeared to me that there may be an issue regarding the delegate’s characterisation of the applicant’s personal information that was used by the CA ANZ in the alleged breach of the APPs, the subject of his Complaint. This issue had not been addressed specifically in the parties’ submissions. I invited both parties to submit further submissions (limited to 5 pages) within two weeks. Both parties provided short submissions in response. In his response, the applicant noted that CA ANZ had as at September 2022, removed the material the subject of his complaint from the CA ANZ website.BACKGROUND The applicant has been a member of the CA ANZ and its predecessor for over 30 years. On 23 September 2020, the applicant, together with nine other members, sought to requisition 38 special motions for consideration at the upcoming annual general meeting (AGM). The 38 motions related to a range of issues, including disclosure in CA ANZ’s financial accounts, governance structure, overseas travel costs and remuneration of senior executives. The CA ANZ Board considered that the proposed motions were not appropriate to be individually put to the members at the AGM and decided not to put the motions to the members at the AGM, and instead to address the general themes of the motions at the AGM.On 4 November 2020, after the decision to quash the proposed motions, CA ANZ published a Notice of Meeting and an accompanying Information Sheet. The Notice of Meeting and Information Sheet were published on the CA ANZ website in the lead up to the AGM.

Ratio Decidendi

Legal Principle Established

On 3 September 2021, the applicant provided a substantial response to the delegate, repeating a number of the points he had made in previous correspondence:Proper consideration of Proposed AGM Motions I believe that it is common ground that the Proposed AGM Motions were quashed by CAANZ.The CAANZ position is therefore a non-sequitur, being that CAANZ went out of its way to deny members their right to properly consider the Proposed AGM Motions, yet simultaneously asserts to the OAIC that it wanted members to properly consider those Proposed Motions. Surely the CAANZ position is absurd. It is nonsensical for CAANZ to claim that publishing my personal information was justified through wanting members to be properly informed on matters not put to the members' meeting for their proper consideration.…In the context of your preliminary view, you treat the Proposed Motions as if they were motions which were properly put for members' consideration and vote. Since they were in fact quashed, they cannot be viewed in the same context as actual motions If the proposed motions were not quashed, I don't think I would have complained about the disclosures of my personal information since even though they are misleading, the context would have been very different and I have confidence that my fellow members would have seen through the CAANZ portrayal if they were allowed to properly consider the motions. The content of the Proposed Motions give the lie to the CAANZ portrayal.Even if it is pretended that the Proposed AGM Motions had not been quashed, CAANZ has failed to explain how my personal information could have any meaningful relevance to a proper consideration by members. CAANZ declined to show how my personal information could assist member consideration of any of the 38 issues ……It would be clear to a reasonable person in possession of the facts before you, that the arguments presented by CAANZ are merely a pretext to cover up an apparent purpose of weaponising my personal information in a self-serving attempt to distract from the issues exposed in the quashed Proposed Motions which are inconvenient to CAANZ. This is especially considering that CAANZ's self-serving positions directly conflict with a fundamental requirement in the accountant's ethical code for impartiality which CAANZ is responsible for enforcing.In short, the CAANZ tactic is an example of the "shoot-the-messenger" approach sometimes adopted to deny unwanted news and should be factored into any meaningful investigation of a privacy law breach if there are any doubts around the requirements of APP 6 not being satisfied.My reasonable expectation It would be perverse if the privacy laws were applied to deem that complainants should reasonably expect that their personal information would be used against them.The purpose of the privacy law is to prevent such weaponising of personal information, not to facilitate it.…In my case, if CAANZ merely published the fact that I was one of the proponents to the requisitions, it would still be a breach of the privacy laws, but such an assertion by itself would be true and not present a serious issue. The problem in this case is that CAANZ has inextricably combined my true personal information with its false assertions in order to falsely portray me as being a lone troublemaker. For Privacy Act purposes, personal information includes the opinions formed and disclosed by CAANZ. CAANZ can only succeed in its false portrayal if it is allowed to make a mockery of the privacy rules.…