FEDERAL COURT OF AUSTRALIA
Ogawa v Australian Information Commissioner [2015] FCA 152
Citation: Ogawa v Australian Information Commissioner [2015] FCA 152 Parties: MEGUMI OGAWA v AUSTRALIAN INFORMATION COMMISSIONER, TOOWONG PRIVATE HOSPITAL, MICHELE CALVIRD and COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS File number(s): QUD 363 of 2013 Judge(s): GREENWOOD J Date of judgment: 4 March 2015 Catchwords: ADMINISTRATIVE LAW – consideration of an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and/or s 39B of the Judiciary Act 1903 (Cth) concerning a decision of the Australian Information Commissioner in exercising the statutory discretion under s 41(1) of the Privacy Act 1988 (Cth) to cease further investigation of four complaints made by the applicant – consideration of the nature of the statutory discretion – consideration of the conditions upon which the discretion is to be exercised – consideration of the factors relevant to the way in which the discretion is exercised Legislation: Privacy Act 1988 (Cth), ss 6, 6A, 6C, 6D, 13A, 16B, 36, 40(1), 41(1); Sch 3, cls 2, 3
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Judiciary Act 1903 (Cth), s 39BCases cited: Esther Investment Pty Ltd v Makalinga Pty Ltd (1989) 2 WAR 196 – cited
Jones v Office of the Australian Information Commissioner [2014] FCA 285 – cited and quoted
Kioa v West (1985) 159 CLR 550 – cited
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 – citedDate of hearing: Determined on the papers Date of last submissions: 1 May 2014 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 119 Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Ms F Dempsey, Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 363 of 2013
BETWEEN: MEGUMI OGAWA
ApplicantAND: AUSTRALIAN INFORMATION COMMISSIONER
First RespondentTOOWONG PRIVATE HOSPITAL
Second RespondentMICHELE CALVIRD
Third RespondentCOMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Fourth Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
4 MARCH 2015
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The following decisions of the Australian Information Commissioner be set aside:
(a)the decision dated 18 February 2011 declining to investigate the applicant’s complaint of a breach of privacy against Dr Michele Calvird under s 41(1) of the Privacy Act 1988 (Cth); and
(b)the decision dated 8 April 2011 affirming the decision of 18 February 2011.
2.The application is otherwise dismissed.
3.The parties file written submissions as to costs within 14 days of the date of this order.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 363 of 2013
BETWEEN: MEGUMI OGAWA
ApplicantAND: AUSTRALIAN INFORMATION COMMISSIONER
First RespondentTOOWONG PRIVATE HOSPITAL
Second RespondentMICHELE CALVIRD
Third RespondentCOMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Fourth Respondent
JUDGE:
GREENWOOD J
DATE:
4 MARCH 2015
PLACE:
BRISBANE
REASONS FOR JUDGMENT
In this proceeding the applicant, Dr Ogawa, seeks…
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Details
- Case
- [2015] FCA 152
- Decision Date
CaseChat Overview and Summary
In the case of Ogawa v Australian Information Commissioner, the applicant, Dr Ogawa, challenged the decisions of the Australian Information Commissioner to cease further investigation of four complaints related to alleged breaches of privacy. The central issues before the court involved the Commissioner's exercise of statutory discretion under section 41(1) of the Privacy Act 1988 (Cth), particularly regarding the cessation of investigations into complaints about the disclosure of Dr Ogawa's health information. The court had to determine whether the Commissioner's decisions were lawful and whether there were any jurisdictional errors warranting a review.
The court examined the nature and conditions of the statutory discretion afforded to the Commissioner and evaluated the relevant factors that should guide the exercise of this discretion. It considered whether the Commissioner had correctly identified and applied the statutory criteria in reaching the decisions to cease investigations. The court also assessed the adequacy of the Commissioner's reasoning and the sufficiency of the evidence upon which the decisions were based.
Ultimately, the court found that the Commissioner had not adequately considered certain factors relevant to the exercise of discretion, leading to jurisdictional errors. Consequently, the court set aside the decisions of 18 February 2011 and 8 April 2011, which declined to investigate the applicant's complaints of a breach of privacy against Dr Michele Calvird. The other decisions were dismissed as the application in respect of them was out of time. The court directed the parties to file written submissions on costs within 14 days of the date of the order.
The court examined the nature and conditions of the statutory discretion afforded to the Commissioner and evaluated the relevant factors that should guide the exercise of this discretion. It considered whether the Commissioner had correctly identified and applied the statutory criteria in reaching the decisions to cease investigations. The court also assessed the adequacy of the Commissioner's reasoning and the sufficiency of the evidence upon which the decisions were based.
Ultimately, the court found that the Commissioner had not adequately considered certain factors relevant to the exercise of discretion, leading to jurisdictional errors. Consequently, the court set aside the decisions of 18 February 2011 and 8 April 2011, which declined to investigate the applicant's complaints of a breach of privacy against Dr Michele Calvird. The other decisions were dismissed as the application in respect of them was out of time. The court directed the parties to file written submissions on costs within 14 days of the date of the order.
Orders
Orders of the court
1. The following decisions of the Australian Information Commissioner be set aside:
(a) the decision dated 18 February 2011 declining to investigate the applicant’s complaint of a breach of privacy against Dr Michele Calvird under s 41(1) of the Privacy Act 1988 (Cth); and
(b) the decision dated 8 April 2011 affirming the decision of 18 February 2011.
2. The application is otherwise dismissed.
3. The parties file written submissions as to costs within 14 days of the date of this order.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons set out in Ogawa v Australian Information Commissioner [2014] FCA 229 (including especially the fact that Dr Ogawa might not have been able, due to her health, to appear personally in the proceedings at any stage), I ordered that Dr Ogawa’s originating application proceed and be heard and determined on the papers. I made directions for the filing of submissions in chief, response and reply by Dr Ogawa and the Commissioner.FACTUAL BACKGROUND Dr Ogawa was charged in the District Court of Queensland with particular Commonwealth criminal offences in respect of conduct in April and May 2006. On 13 November 2008, Dr Ogawa was granted bail in relation to the charges. The bail undertakings she gave included undertakings in relation to psychiatric treatment to be undertaken by her. The undertakings relevant to the current proceeding were in these terms:5.On 18/12/2008 I shall attend the clinic of Dr Calvird, at Toowong Private Hospital, for assessment andi)thereafter take all medication and undertake all treatment prescribed or recommended by Dr Calvird;ii) thereafter attend all further appointments for treatment by Dr Calvird.…7.I shall provide a written authorisation for [Dr Calvird and other named health professionals] to notify the Commonwealth Director of Public Prosecutions of any failure by her [sic: me] to comply with the obligations in paragraph 4, 5 & 6 above.[emphasis added] On 13 November 2008, Dr Ogawa signed an authority directed to Dr Calvird in these terms:I hereby authorise Doctor Calvird to notify the Commonwealth Director of Public Prosecutions of any failure by me to comply with the following obligations:(a)On 18 December 2008, attend the clinic of Dr Calvird, at Toowong Private Hospital for assessment;(b)thereafter take all medication and undertake all treatment prescribed or recommended by Dr Calvird;(c) thereafter attend all further appointments for treatment by Dr Calvird.[emphasis added] On 20 February 2009, Ms Roberta Devereaux, the solicitor employed by the CDPP with carriage of the District Court criminal proceedings against Dr Ogawa, swore an affidavit which was filed in those proceedings. A copy of the affidavit was served on Dr Ogawa by email the same day. In her affidavit, Ms Devereaux said this:5.On the 5 February 2009 I received a telephone call from Dr Calvird, she told me and I verily believe the following:a)Dr Calvird asked me if Ms Ogawa had been remanded in custody. She said that Ms Ogawa had cancelled her last appointment on the 29 January as she had court and had not made another one. Dr Calvird said that she was conscious of the bail condition and wanted to know if the reason that she had not heard from her was because she was in custody. I told Dr Calvird that Ms Ogawa had not been remanded in custody.b)Dr Calvird said that she would chase Ms Ogawa up and check if she was going to continue treatment.6.On 10 February I telephoned Dr Calvird, she told me and I verily believe the following:a)I asked if she had made contact with the Ms Ogawa. She advised that she would check on Thursday if she had received any emails from Ms Ogawa and let me know if she did not make another appointment.b)Dr Calvird said that she was aware that Ms Ogawa was moving to Lismore and that she would be reducing the frequency of her appointments and that she would let me know what was happening.7.On 16 February I received a telephone message from Dr Calvird, she advised that Ms Ogawa had not rebooked an appointment with her and that she intended to email Ms Ogawa.8.On 17 February I telephoned Dr Calvird and she told me and I verily believe the following:a)an email had been sent yesterday and that no response had been received;b)Ms Ogawa has a mobile phone on which you cannot record messages;c)the last time she had seen Ms Ogawa was on 22 January 2009.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Fourth, a decision dated 14 June 2013 declining to investigate Dr Ogawa’s complaint of a breach of privacy against the Commonwealth Director of Public Prosecutions (the “CDPP”), pursuant to s 41(1)(c), on the basis that it had been more than 12 months since the alleged interference with Dr Ogawa’s privacy (the “fourth decision”). I have set out aspects of the procedural history of this matter in Ogawa v Australian Information Commissioner [2013] FCA 866 and in Ogawa v Australian Information Commissioner [2014] FCA 229. Dr Ogawa’s originating application was filed on 26 June 2013. So far as it related to relief under the AD(JR) Act, the application was filed out of time in relation to the decisions of 18 February 2011 and 8 April 2011. On 13 March 2014, I granted Dr Ogawa an extension of time for the filing of the originating application in respect of the four decisions the subject of the application up to and including the date of filing of the originating application. I also granted the first respondent leave to withdraw a notice of objection to competency which it had filed, and I dismissed a series of interlocutory applications filed by Dr Ogawa and by the first respondent. For the reasons set out in Ogawa v Australian Information Commissioner [2014] FCA 229 (including especially the fact that Dr Ogawa might not have been able, due to her health, to appear personally in the proceedings at any stage), I ordered that Dr Ogawa’s originating application proceed and be heard and determined on the papers. I made directions for the filing of submissions in chief, response and reply by Dr Ogawa and the Commissioner.FACTUAL BACKGROUND Dr Ogawa was charged in the District Court of Queensland with particular Commonwealth criminal offences in respect of conduct in April and May 2006. On 13 November 2008, Dr Ogawa was granted bail in relation to the charges. The bail undertakings she gave included undertakings in relation to psychiatric treatment to be undertaken by her. The undertakings relevant to the current proceeding were in these terms:5.On 18/12/2008 I shall attend the clinic of Dr Calvird, at Toowong Private Hospital, for assessment andi)thereafter take all medication and undertake all treatment prescribed or recommended by Dr Calvird;ii) thereafter attend all further appointments for treatment by Dr Calvird.…7.I shall provide a written authorisation for [Dr Calvird and other named health professionals] to notify the Commonwealth Director of Public Prosecutions of any failure by her [sic: me] to comply with the obligations in paragraph 4, 5 & 6 above.[emphasis added] On 13 November 2008, Dr Ogawa signed an authority directed to Dr Calvird in these terms:I hereby authorise Doctor Calvird to notify the Commonwealth Director of Public Prosecutions of any failure by me to comply with the following obligations:(a)On 18 December 2008, attend the clinic of Dr Calvird, at Toowong Private Hospital for assessment;(b)thereafter take all medication and undertake all treatment prescribed or recommended by Dr Calvird;(c) thereafter attend all further appointments for treatment by Dr Calvird.[emphasis added]
Ratio Decidendi
Legal Principle Established
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