McGinn v Australian Information Commissioner

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FEDERAL COURT OF AUSTRALIA

McGinn v Australian Information Commissioner [2024] FCA 1185

File number: NSD 1070 of 2024
Judgment of: YATES J
Date of judgment: 14 October 2024
Catchwords:

PRACTICE AND PROCEDURE – application for order suppressing applicant’s identity – where applicant seeks to be identified by a pseudonym

PRACTICE AND PROCEDURE –application for unilateral maximum costs order in respect of party and party costs recoverable against applicant

PRACTICE AND PROCEDURE – application for change of respondent’s name
Legislation:

Acts Interpretation Act 1901 (Cth) s 34AB

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Australian Information Commissioner Act 2010 (Cth) ss 3A, 14, 25, 35

Evidence Act 1995 (Cth)

Federal Court of Australia Act 1976 (Cth) Pt VAA, ss 37AF, 37AI

Privacy Act 1988 (Cth) ss 36, 41, Sch 1 (Australian Privacy Principles)

Public Governance, Performance and Accountability Act 2013 (Cth) s 8

Public Service Act 1999 (Cth)

Federal Court Rules 2011 (Cth) rr 5.02, 31.01, 40.51, Sch 1
Cases cited:

Giddings v Australian Information Commissioner [2017] FCA 677; 156 ALD 601

McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd (No 2) [2019] FCA 215; 135 ACSR 278

Shurat HaDin, Israel Law Center v Lynch (No 2) [2014] FCA 413
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 80
Date of last submissions: 8 October 2024
Counsel for the Applicant: Applicant was self-represented
Counsel for the Respondent: Mr H Rogers
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

NSD 1070 of 2024
BETWEEN:

SOPHIA MCGINN

Applicant
AND:

AUSTRALIAN INFORMATION COMMISSIONER

Respondent

ORDER MADE BY:

YATES J

DATE OF ORDER:

14 OCTOBER 2024

THE COURT ORDERS THAT:

1.The applicant’s interlocutory application for an order that she be identified in this proceeding by a pseudonym and not by her full name, be dismissed.

2.The applicant’s interlocutory application for an order that the maximum costs as between party and party that may be recovered from her be $0, be dismissed.

3.On the application of the respondent, the respondent’s name be changed to “Australian Information Commissioner”.

4.The applicant pay the respondent’s costs of, and incidental to, the applications referred to in Orders 1, 2, and 3.

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


REASONS FOR JUDGMENT

YATES J:

INTRODUCTION

  1. These reasons concern three questions before me for determination, specifically: 

    (a)Should the name of the respondent be changed?

    (b)Should the applicant’s identity as a party be suppressed?

    (c)Should a costs-capping order be made?

  2. Before dealing with each question, it is necessary for me to recount the following procedural history.

    BACKGROUND

  3. The proceeding was commenced by the filing of an originating application for judicial review (the originating application) under r 31.01 of the Federal Court Rules 2011 (Cth) (the Rules) on 8 August 2024 seeking relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) in respect of a decision: 

    (a)under s 41(1)(a) of…

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Details
Case
[2024] FCA 1185
Decision Date

CaseChat Overview and Summary

McGinn v Australian Information Commissioner was a case before the Federal Court of Australia, involving an application for judicial review of a decision made under the Privacy Act 1988. The applicant, McGinn, sought review of a decision by the Australian Information Commissioner that a complaint of privacy interference was unfounded and that an investigation was unwarranted. The core of the dispute was McGinn's contention that the Commissioner improperly accepted an opinion of the respondent, BMW North Shore, that a service record did not exist, rather than considering admissions made by BMW North Shore.

The court was tasked with deciding several legal issues, including whether McGinn's identity should be suppressed, whether costs should be capped, and whether the respondent's name should be changed from "Office of the Australian Information Commissioner" to "Australian Information Commissioner". Additionally, the court had to assess whether the applicant's submissions regarding the admissibility of evidence and the fairness of costs incurred by the respondent were valid.

The court dismissed the applicant's request for her identity to be suppressed, finding no basis for such an order. It also dismissed the applicant's application for a costs-capping order, as the applicant could not demonstrate that an important legal principle of public importance was at stake or that the respondent's costs were incurred unfairly. The court found that the applicant's submissions regarding the admissibility of evidence were misconceived and inapposite to the matter at hand. Furthermore, the court ruled that Rule 40.51 of the Federal Court Rules 2011 did not permit a unilateral costs-capping order, and such an order must apply to both parties.

The court granted the respondent's application to change its name to "Australian Information Commissioner" and ordered the applicant to pay the respondent's costs associated with the interlocutory applications.

Orders

Orders of the court

1. The applicant’s interlocutory application for an order that she be identified in this proceeding by a pseudonym and not by her full name, be dismissed.

2. The applicant’s interlocutory application for an order that the maximum costs as between party and party that may be recovered from her be $0, be dismissed.

3. On the application of the respondent, the respondent’s name be changed to “Australian Information Commissioner”.

4. The applicant pay the respondent’s costs of, and incidental to, the applications referred to in Orders 1, 2, and 3.

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

Background

Background to the litigation

Before dealing with each question, it is necessary for me to recount the following procedural history.BACKGROUND The proceeding was commenced by the filing of an originating application for judicial review (the originating application) under r 31.01 of the Federal Court Rules 2011 (Cth) (the Rules) on 8 August 2024 seeking relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) in respect of a decision: (a)under s 41(1)(a) of the Privacy Act 1988 (Cth) (the Privacy Act) that the act or practice about which the applicant had complained under s 36 thereof (the complaint) was not an interference with her privacy; and (b)under s 41(1)(da) of the Privacy Act that an investigation of the act or practice was not warranted having regard to all the circumstances. The applicant commenced this proceeding against the respondent named as “Office of the Australian Information Commissioner”. Prestige Motors (North Shore) Pty Ltd, trading as North Shore BMW (BMW North Shore) had, apparently, serviced the applicant’s motor vehicle for a few years. Her complaint under s 36 of the Privacy Act was that BMW North Shore had interfered with her privacy by failing to provide her with access to an original service record of 15 May 2017 (the service record). In coming to the decisions under review, the decision-maker accepted BMW North Shore’s claim that the service record does not exist. The proceeding was allocated to my docket on 13 August 2024. On 20 August 2024, I made an order that the proceeding be listed for a first case management hearing on 2 September 2024. At the first case management hearing, the respondent proposed a timetable for the filing of a court book, affidavits, written outlines of submissions, and lists of authorities. The respondent also sought a listing of the proceeding for a hearing on final relief. Finally, the respondent sought an order that the name “Office of the Australian Information Commissioner” be changed to “Australian Information Commissioner”. The applicant opposed the making of an order changing the name of the respondent. She also raised several preliminary matters. First, she sought an extension of time to file a genuine steps statement. Secondly, she sought an order that her identity be supressed and that she be identified only by a pseudonym. Thirdly, she sought an order that the costs of the proceeding be capped. Fourthly, she complained that the respondent had not filed a notice of address for service pursuant to r 5.02 of the Rules. The applicant addressed me briefly on why her identity should be suppressed after I had informed her that I could not see any basis for such an order. I was not prepared to make such an order based on the material then before me. I also had insufficient information to persuade me that a costs-capping order should be made. I therefore made the following orders: 1.By 4:00 pm on 16 September 2024, the applicant file and serve any interlocutory application seeking any order that:(a) her identity as a party to this proceeding be suppressed; and/or(b) costs in the proceeding be capped to a maximum amount,and any affidavit evidence in support of such relief, together with an outline of written submissions, limited to five pages.2.By 4:00 pm on 30 September 2024, the respondent file and serve any affidavit evidence in response, and any outline of written submissions in response (limited to five pages), to the affidavit evidence and written submissions referred to in Order 1.3.By 4:00 pm on 7 October 2024, the applicant file and serve any affidavit evidence in reply, and any written submissions in reply (limited to two pages), to the affidavit evidence and written submissions referred to in Order 2.4.The interlocutory application referred to in Order 1 be determined on the papers.5.By 4:00 pm on 9 September 2024, the respondent file short written submissions addressing the reason(s) why the respondent’s name should be changed to the Australian Information Commissioner.6.By 4:00 pm on 16 September 2024, the applicant file and serve any short written submissions in response to the written submissions referred to in Order 5.7.The issue referred to in Order 5 be determined on the papers.8.The matter be listed for a case management hearing on 14 October 2024 at 9:30 am.

Evidence

Evidence Before The Court

In her written submissions dated 16 September 2024 in support of this order, the applicant recites various elements of her claim. She disputes the decision-maker’s acceptance that the service record does not exist. The applicant submits that BMW North Shore: (a) made two admissions that the service record exists; and (b) expressed an opinion that the service record does not exist. The applicant says that the latter is an inadmissible opinion for the purposes of the Evidence Act 1995 (Cth) (the Evidence Act). She argues that the decision-maker relied on this “opinion” as the “best available evidence” notwithstanding the admissions that, on her case, were made. The applicant submits that this proceeding raises:… an important legal principle that (sic) of public importance: whether an opinion that is not admissible is the ‘best available evidence’. The applicant develops this submission by contending that the respondent did not give any reason to “justify” BMW North Shore’s “opinion” as “the best available evidence”. She then points to the definition of “costs as between party and party” in the Dictionary in Sch 1 to the Rules: costs as between party and party means only the costs that have been fairly and reasonably incurred by the party in the conduct of the litigation. The applicant appears to submit that, if the respondent succeeds in the proceeding, any costs it incurs from 18 July 2024 would be “unfair and unreasonable” because they would be costs “caused” by its own conduct. In her reply submissions, the applicant advances a variant of this argument. She contends that, should the respondent succeed for reasons it has not provided to her, then the respondent’s costs will have been incurred “unfairly and unreasonably”. I do not accept these submissions. They do not withstand scrutiny. First, the applicant’s case, as outlined by these submissions, does not raise an important legal principle of public importance. Secondly, if the respondent succeeds in this proceeding, it will be because the applicant has not established her case for judicial review. That being so, it cannot be that the respondent has “caused” its own costs burden. Thirdly, if the respondent succeeds in this proceeding on the basis of reasons it has not provided to the applicant then, to the extent that that matter is relevant to the consideration of costs, the applicant can advance it at the appropriate time. It is not a reason for making a costs-capping order. Fourthly, the fact that a respondent chooses to defend a proceeding does not, without more, mean that, in doing so, it will not incur costs fairly and reasonably in the conduct of the litigation. Fifthly, the applicant’s reliance on the opinion rule in the Evidence Act is misconceived and inapposite. There are other difficulties with the application for a costs-capping order. Rule 40.51 does not permit a “unilateral” costs-capping order, such as the applicant seeks. The order must apply in favour of both parties and cannot be made solely for the benefit of one party to the proceeding: Shurat HaDin, Israel Law Center v Lynch (No 2) [2014] FCA 413 at [10]; McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd (No 2) [2019] FCA 215; 135 ACSR 278 at [70].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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