Kant v Australian Information Commissioner

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FEDERAL COURT OF AUSTRALIA

Kant v Australian Information Commissioner [2025] FCA 16

File number(s): VID 528 of 2024
Judgment of: O’CALLAGHAN J
Date of judgment: 23 January 2025
Catchwords: PRACTICE AND PROCEDURE — application for leave to appeal from interlocutory judgment pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) — leave to appeal refused
Legislation:

Federal Court of Australia Act 1976 (Cth) ss 24(1A), 35A, 37AG(1)(a), 37AI

Judiciary Act 1903 (Cth) ss 39B, 78B

Privacy Act1988 (Cth) s 80W, sch 1

Regulatory Powers (Standard Provisions) Act 2014 (Cth) ss 121, 124

Federal Court Rules 2011 (Cth) r 35.12(2)(d)
Cases cited:

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

GPV18 v Minister for Home Affairs [2020] FCA 393

Kant v Australian Information Commissioner [2024] FCA 599
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 46
Date of last submission/s: 5 September 2024
Date of hearing: Determined on the papers
Counsel for the Applicant: The applicant appeared in person
Counsel for the Respondent: K McInnes
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 528 of 2024
BETWEEN:

JAN MAREK KANT

Applicant
AND:

THE AUSTRALIAN INFORMATION COMMISSIONER

Respondent

ORDER MADE BY:

O’CALLAGHAN J

DATE OF ORDER:

23 JANUARY 2025

THE COURT ORDERS THAT:

1.The applicant’s application for leave to appeal filed 14 June 2024 be dismissed.

2.The applicant pay the respondent’s costs of the application.

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


REASONS FOR JUDGMENT

O’CALLAGHAN J

Introduction

  1. This is an application for leave to appeal from orders of the primary judge dated 11 June 2024 affirming the decision of a registrar to dismiss the applicant’s interlocutory application for injunctive relief.  See Kant v Australian Information Commissioner [2024] FCA 599 (J).

  2. By originating application filed 6 October 2023 in proceeding VID 829 of 2023 (and subsequently amended on 27 December 2023 and 25 January 2024), the applicant, Mr Jan Marek Kant, seeks the following final relief against the respondent, the Australian Information Commissioner, pursuant to s 39B of the Judiciary Act 1903 (Cth):

    1.Investigation by the Information Commissioner of the matter described in the applicant’s letter sent on 22 August 2023.

    2.Further action by the Information Commissioner as described in the applicant’s letter sent on 22 August 2023 …

    3.Orders commanding the Information Commissioner to refrain from taking action as in (1) or (2), unless and until the Applicant requests the information Commissioner to commence doing so.

    4.Damages, including exemplary damages, claimed against the Commonwealth in respect of tortious conduct of intentional nature in mens rea.

    5.Further damages in lieu of costs.

  3. On 22 November 2023, the applicant filed an interlocutory application seeking the following relief:

    The Applicant seeks an injunction under [s] 80W(1) of the Privacy Act 1988 and orders commanding the Respondent to produce to the Applicant all information about him as is reasonably accessible to the

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Details
Case
[2025] FCA 16
Decision Date

CaseChat Overview and Summary

The applicant, Kant, sought leave to appeal an interlocutory judgment made by a judge of the Federal Court of Australia. The primary issue was whether Kant could appeal the interlocutory judgment of the court, which had dismissed an application for suppression orders. The application for leave to appeal was brought under section 24(1A) of the Federal Court of Australia Act 1976. The Federal Court held that the primary decision was not attended with sufficient doubt to warrant reconsideration by the Full Court, and therefore refused leave to appeal. The court found that the primary judge had correctly affirmed the registrar’s decision to dismiss the applicant’s suppression order application. The applicant’s submissions concerning “declaratory suppression orders” did not alter this outcome.

The court noted that section 24(1A) of the Federal Court of Australia Act 1976 confers on the court an unfettered and unqualified discretion to grant leave to appeal from an interlocutory judgment. However, in determining whether to grant or refuse leave, the court generally considers whether the primary decision is attended with sufficient doubt to warrant reconsideration by the Full Court, and whether refusing leave would cause substantial injustice to the applicant, assuming the primary decision is wrong. The onus is on the person seeking leave to appeal to satisfy the court that it should be granted. In this case, the court found that the primary decision was not attended with sufficient doubt to warrant reconsideration by the Full Court. The court also found that the primary decision did not cause substantial injustice to the applicant, assuming the primary decision was wrong.

The court found that the primary decision was not attended with sufficient doubt to warrant reconsideration by the Full Court. The applicant had argued that the primary judge had failed to consider submissions concerning “declaratory suppression orders”. However, the court found that the primary judge’s role was to review the registrar’s decision to dismiss the applicant’s suppression order application, and that both parties agreed that this decision should be affirmed. The court found that the primary judge had correctly affirmed the registrar’s decision, and that the applicant’s submissions concerning “declaratory suppression orders” did not alter this outcome. The court found that none of the grounds of appeal proposed by the applicant had any merit, and none was sufficiently arguable to cast the necessary level of doubt on the primary decision so as to warrant reconsideration by the Full Court.

The applicant’s application for leave to appeal was dismissed, and the applicant was ordered to pay the respondent’s costs of the application. The court noted that entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The applicant’s application for leave to appeal filed 14 June 2024 be dismissed.

2. The applicant pay the respondent’s costs of the application.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 24(1A) of the FCA Act confers on the court an unfettered and unqualified discretion to grant leave to appeal from an interlocutory judgment. In determining whether to grant or refuse leave, however, the court will generally consider whether the primary decision is attended with sufficient doubt to warrant reconsideration by the Full Court, and whether refusing leave would cause substantial injustice to the applicant, assuming the primary decision is wrong. See Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–400 (Sheppard, Burchett and Heerey JJ). The onus is on the person seeking leave to appeal to satisfy the court that it should be granted. See GPV18 v Minister for Home Affairs [2020] FCA 393 at [32] (Wigney J).Primary decision is not attended with sufficient doubt For the following reasons, I am of the view that none of the grounds of appeal proposed by the applicant has any merit, and none is sufficiently arguable to cast the necessary level of doubt on the primary decision so as to warrant reconsideration by the Full Court. Ground 1: failure to consider submissions on 26 November 2023 application The first ground relied upon by the applicant is that the primary judge did not consider submissions concerning “orders sought on affirmation of dismissal of the 26 November 2023 interlocutory application.” In his written submissions dated 8 August 2024, the applicant referred to the following submissions made before the primary judge in particular:11. The Applicant submitted on 12 Mar 2024:[62] The Applicant presently seeks declaratory suppression orders; including, an interlocutory order under Federal Court of Australia Act 1976:a. affirming dismissal of his 26 Nov 2023 application for suppression orders; and,b. declaring no information or document given or produced in this proceeding can become subject to a suppression order or non-publication order (however described), except as necessary to protect safety of natural persons otherwise identifiable.12. The Applicant submitted on 16 Apr 2024:[28] Documents filed in this proceeding, including affidavits filed by the Applicant after 26 Nov 2023, are presently accessible to the public. It is to be expected (and the Applicant must assume) that prejudice to the Applicant’s interests, as may result from public disclosure of information about this proceeding, is already caused.[29] Limiting the dissemination of any information about this proceeding, to the benefit of the Commonwealth or any other person, after whatever prejudice may befall the Applicant is already caused, would be an injustice. It is not apparent what the applicant meant by “declaratory suppression orders”. But in any event, as counsel for the respondent submitted, the primary judge’s role was to review the registrar’s decision to dismiss the applicant’s 26 November 2023 suppression order application. Both parties agreed that that decision should be affirmed, and this is what the primary judge did.

Ratio Decidendi

Legal Principle Established

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