Orfali v Australian Information Commissioner

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FEDERAL COURT OF AUSTRALIA

Orfali v Australian Information Commissioner [2016] FCA 1386

File number: VID 1195 of 2016
Judge: MORTIMER J
Date of judgment: 21 November 2016
Catchwords:

HUMAN RIGHTS – privacy – complaints to the Australian Information Commissioner regarding alleged breaches of privacy by various entities – decision by delegate of the Commissioner not to investigate complaints on the ground they were lacking in substance – decision made pursuant to s 41(1)(d) of the Privacy Act 1988 (Cth)

PRACTICE AND PROCEDURE – application for an extension of time to file an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) – application for an extension of time refused

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 11(1)(c), 11(3)

Federal Court of Australia Act 1976 (Cth) s 43

Federal Court Rules 2011 (Cth) r 31.02

Privacy Act 1988 (Cth) ss 2A, 13, 36, 41(1)(d)
Cases cited:

Assal v Dept of Health, Housing & Community Services [1990] HREOCA 8

Charara v Commissioner of Taxation [2016] FCA 451

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337

Gao v Federal Privacy Commissioner [2001] FCA 1683

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; 3 FCR 344

Luck v Secretary, Department of Human Services [2014] FCA 1060

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
Date of hearing: 15 November 2016
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 56
Counsel for the Applicant: The Applicant appeared in person
Solicitor for the Respondent: Mr G Wrobel of Holding Redlich
Table of Corrections
22 November 2016 In the second sentence of paragraph 56, the word “Minister’s” has been changed to “Commissioner’s”.

ORDERS

VID 1195 of 2016
BETWEEN:

ELIAS ORFALI

Applicant
AND:

AUSTRALIAN INFORMATION COMMISSIONER

Respondent

JUDGE:

MORTIMER J

DATE OF ORDER:

21 NOVEMBER 2016

THE COURT ORDERS THAT:

1.The application for an extension of time is refused.

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


REASONS FOR JUDGMENT

MORTIMER J:

INTRODUCTION

  1. The applicant, Mr Orfali, applies for an extension of time within which to file an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act).

  2. Mr Orfali has filed:

    (1)an application for an extension of time within which to lodge an application for an order of review under s 11(1)(c) of the AD(JR) Act;

    (2)an affidavit affirmed on 4 October 2016 in support of the application for an extension of time;

    (3)a draft originating application for judicial review, in which Mr Orfali seeks review of a decision of a delegate of the Australian Information Commissioner dated 22 August 2016, made pursuant to s 41(1)(d) of the Privacy Act 1988 (Cth), not to investigate eight privacy complaints made by Mr Orfali under s 36 of the Privacy Act in emails dated 23 and 30 June 2016;

    (4)a copy of the…

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Details
Case
[2016] FCA 1386
Decision Date

CaseChat Overview and Summary

Mr Orfali brought an application for an extension of time to file an application for judicial review of a decision of the Australian Information Commissioner. The decision concerned complaints Mr Orfali made to the Commissioner about alleged breaches of his privacy by various entities, including media companies, government departments and ministers. The Commissioner's delegate decided not to investigate the complaints on the ground they were lacking in substance. Mr Orfali sought an extension of time to file an application for judicial review of this decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The primary issue before the court was whether Mr Orfali's application for an extension of time should be granted. The court found that Mr Orfali's application was 18 days out of time and there were no exceptional circumstances to warrant an extension of time. The court held that it would not grant an extension of time to Mr Orfali. The court found that there were no exceptional circumstances to justify an extension of time, and that Mr Orfali had not demonstrated any grounds for the court to exercise its discretion in favour of an extension of time. The court noted that Mr Orfali's complaints were complex and involved a large volume of material, but this did not amount to exceptional circumstances. The court also noted that Mr Orfali had not provided any explanation for the delay in filing his application. The court held that the application for an extension of time was refused.

Orders

Orders of the court

1. The application for an extension of time is refused.

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 that follow, the application for an extension of time must be refused.PROCEDURAL BACKGROUND AND RELEVANT STATUTORY PROVISIONS Section 11(1)(c) of the AD(JR) Act, read with s 11(3), provides that an application for judicial review must be made within 28 days after the decision is furnished to the person affected. Rule 31.02 of the Federal Court Rules 2011 (Cth) provides that a person who wants to apply for an extension of time within which to lodge an application for an order of review under s 11(1)(c) of the AD(JR) Act must file an application for an extension of time with a supporting affidavit and draft originating application. Section 2A of the Privacy Act sets out the objects of the Act:The objects of this Act are:(a) to promote the protection of the privacy of individuals; and(b)to recognise that the protection of the privacy of individuals is balanced with the interests of entities in carrying out their functions or activities; and(c)to provide the basis for nationally consistent regulation of privacy and the handling of personal information; and(d)to promote responsible and transparent handling of personal information by entities; and(e)to facilitate an efficient credit reporting system while ensuring that the privacy of individuals is respected; and(f)to facilitate the free flow of information across national borders while ensuring that the privacy of individuals is respected; and(g)to provide a means for individuals to complain about an alleged interference with their privacy; and(h) to implement Australia’s international obligation in relation to privacy. Under s 6 of the Privacy Act, “personal information” is defined as follows:personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:(a) whether the information or opinion is true or not; and(b) whether the information or opinion is recorded in a material form or not.Note:Section 187LA of the Telecommunications (Interception and Access) Act 1979 extends the meaning of personal information to cover information kept under Part 5‑1A of that Act. Section 13 of the Act sets out acts or practices that constitute interferences with privacy:Interferences with privacyAPP entities(1)An act or practice of an APP entity is an interference with the privacy of an individual if:(a)the act or practice breaches an Australian Privacy Principle in relation to personal information about the individual; or(b)the act or practice breaches a registered APP code that binds the entity in relation to personal information about the individual.Credit reporting(2)An act or practice of an entity is an interference with the privacy of an individual if:(a)the act or practice breaches a provision of Part IIIA in relation to personal information about the individual; or(b)the act or practice breaches the registered CR code in relation to personal information about the individual and the code binds the entity.Contracted service providers(3)An act or practice of an organisation is an interference with the privacy of an individual if:(a)the act or practice relates to personal information about the individual; and(b)the organisation is a contracted service provider for a Commonwealth contract (whether or not the organisation is a party to the contract); and(c) the act or practice does not breach:(i) an Australian Privacy Principle; or(ii) a registered APP code that binds the organisation;in relation to the personal information because of a provision of the contract that is inconsistent with the principle or code; and(d)the act is done, or the practice is engaged in, in a manner contrary to, or inconsistent with, that provision.Note:See subsections 6A(2) and 6B(2) for when an act or practice does not breach an Australian Privacy Principle or a registered APP code.Tax file numbers(4)An act or practice is an interference with the privacy of an individual if:(a)it is an act or practice of a file number recipient and the act or practice breaches a rule issued under section 17 in relation to tax file number information that relates to the individual; or(b)the act or practice involves an unauthorised requirement or request for disclosure of the tax file number of the individual.Other interferences with privacy(5)An act or practice is an interference with the privacy of an individual if the act or practice:(a)constitutes a breach of Part 2 of the Data‑matching Program (Assistance and Tax) Act 1990 or the rules issued under section 12 of that Act; or(b)constitutes a breach of the rules issued under section 135AA of the National Health Act 1953.Note:Other Acts may provide that an act or practice is an interference with the privacy of an individual. For example, see the Healthcare Identifiers Act 2010, the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 and the Personal Property Securities Act 2009.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Mr Orfali filed his application on 7 October 2016 (although it is dated 5 October 2016). It was therefore 18 days out of time.DECISION SOUGHT TO BE REVIEWED The course of events leading to the decision under review, and the nature of that decision, are set out in the affidavit of Ms Sainty, which was read by the respondent in the proceeding. By a letter dated 23 June 2016 Mr Orfali lodged his complaints with the Commissioner. Ms Sainty deposed and Mr Orfali did not contest that the Commissioner had delegated to Ms Sainty the conduct of his privacy complaints. Mr Orfali had something to say about Ms Sainty’s level of experience, and did not agree with the delegation, but he did not suggest there was anything unlawful about the delegation. Mr Orfali also sent several other letters, adding to the considerable bundle of material he had initially lodged. The material he lodged consisted of more than 600 pages. The entirety of that material was in evidence before me. It consists of lengthy documents composed by Mr Orfali setting out his concerns about which individuals, entities and agencies have what he considers to be unlawful access to information about him, and indeed to his own person. His complaint to the Commissioner also annexes to these documents extracts from publicly available material which Mr Orfali contended to the Commissioner contained references to him and insults and threats against him. The people and entities against whom the complaints were made were:(1)Nine Network Australia Pty Ltd(2)Australian Broadcasting Corporation(3)Minister for Education(4)Minister for Health(5)Department of Human Services(6)Attorney-General’s Department(7)Minister for Employment(8)Office of the Prime Minister Mr Orfali also described in these documents what he considered to be a long and wrongful history of conduct by various mental health authorities, and hospitals, in relation to him. Mr Orfali pieced together information from a number of sources to which he referred and, through this piecing together, sought to make out his allegations that he had suffered from what he described in his complaint variously as “serious compromise to my privacy by paparazzi operatives with links to certain affiliated conglomerate media companies as well as Social Media and collusion from the Federal and State Governments” and “secret wheeling and dealing conferred by politicians that sought to take advantage of breaches to my privacy and the dissemination of information to seize opportunities pertaining to innovative ideas that were conceptualized and initiated by me were convened in favour of the self-interests of large conglomerate companies”. In his complaint, Mr Orfali contended to the Commissioner that his privacy was breached by these individuals and entities in a broad range of ways, but one example was the following:These deals were convened whilst I was being subjected to gruelling taunting via frequency operated types of inconspicuous Taser devices that were implanted on me in hospital settings and boasted about to a flagrant degree in the Oct. 2 2010 edition of the New Scientist and other supporting sources of information subject to the knowledge of respective State and Federal Governments Ministers and agencies, and convened via the implementation of antiquated draconian homophobic laws that were overseen by the Mental Health system and certain branches of DHS, and are being arrogantly censored irrespective how much proof I have provided.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.