PALMER v Child Support Registrar
[2003] FMCA 394
•19 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PALMER v CHILD SUPPORT REGISTRAR & ANOR | [2003] FMCA 394 |
| PRIVACY – Jurisdiction of Court not properly founded – no earlier complaint to Commissioner – application dismissed with costs. |
| Applicant: | WILLIAM PALMER |
| First Respondent: | CHILD SUPPORT REGISTRAR |
| Second Respondent: | SUZANNE CREAK |
| File No: | BZ 405 of 2003 |
| Delivered on: | 19 August 2003 |
| Delivered at: | Brisbane |
| Hearing Date: | 19 August 2003 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Applicant: | Self represented |
| Solicitor for the First Respondent: | Mr Anderson, Australian Government Solicitor |
| Solicitor for the Second Respondent: | Mr Ryan |
ORDERS
That the application be dismissed for want of prosecution.
That the applicant shall pay the first respondent’s costs of and incidental to these proceedings (including reserved costs) fixed in the sum of $1665.
That there be no order as to costs in respect of the second respondent.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BZ405 of 2003
| WILLIAM PALMER |
Applicant
And
| CHILD SUPPORT REGISTRAR |
First Respondent
And
| SUZANNE CREAK |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant WILLIAM PALMER filed an application in this court on 21 July 2004 seeking an order that the
“respondents be found to have contravened the Privacy Act 1988”
The first Respondent is named as the CHILD SUPPORT REGISTRAR (“the Registrar”) and the second Respondent is named as SUZANNE CREAK. Ms Creak is a solicitor in private practice who had acted for the Applicant’s wife Kerry Ann Palmer.
Issue
I am asked to find that the Registrar has breached
a)Information Privacy Principle 1 under section 14 of the Privacy Act 1988 (“the Privacy Act”) by including and publishing in a notice of assessment prepared under s76 of the Child Support (Assessment) Act 1989 (“the Assessment Act”) the Applicant’s taxable income for the 1997/98 financial year and forwarding that notice to the Applicant’s former wife;
b)Information Privacy Principle 11 under the Privacy Act by providing to Mrs Palmer’s legal representative, the second Respondent, a copy of a child support agreement registered with the Registrar under the Assessment Act.
The Registrar raised, as a discrete preliminary legal issue, whether this Court had jurisdiction to hear the Application.
Jurisdictional Issue
Section 36 of the Privacy Act provides that an individual may complain to the Privacy Commissioner (the Commissioner) about an act or practice that may be an interference with the privacy of the individual.
If a complaint is lodged under section 36 with the Commissioner the Commissioner shall investigate the complaint (section 40) or may decide not to investigate , or not to investigate further a complaint under section 36 if the Commissioner is satisfied that:
a)the act or practice is not an interference with the privacy of an individual;
b)the complaint was made more than 12 months after the complainant became aware of the act of practice;
c)the complain is frivolous, vexatious, misconceived or lacking in substance;
d)the act or practice is the subject of an application under another Commonwealth law, or a State or Territory law, and the subject-matter of the complaint has been, or is being dealt with adequately under that law; or
e)another Commonwealth law, or State or Territory law, provides a more appropriate remedy for the act or practice that is the subject of the complaint (section 41(1)).
If the Commissioner investigates the complaint the Commissioner is required to make a decision under section 52 of the Privacy Act.
The Applicant concedes that he has made no complaint to the Commissioner under the Privacy Act. As a result, no determination has been made by the Commissioner.
Section 55A of the Privacy Act gives the Federal Magistrates Court jurisdiction to grant an order for the enforcement of a determination made by the Commissioner under section 52 where that order is sought by the complainant, the Commissioner, (if the determination was made under section 52 Privacy Act), or an adjudicator for the approved privacy code under which the determination was made (if it was made under an approved privacy code). The hearing is by way of hearing de novo (section 55A(5)).
As there has been no determination by the Commissioner under section 52 of the Privacy Act then by operation of the Privacy Act the Court does no have jurisdiction to investigate this complaint.
For these reasons the Application is fatally flawed. It is not necessary, in this matter, to consider whether the concerns raised by the Applicant do constitute a breach of the said Information Privacy Principles or whether, as the Registrar asserts, the actions of the Registrar were for a lawful and authorised purpose and therefore protected by the operation of Privacy Principles 1, 11(3) and 11(b).
The Respondent seeks costs. The Applicant was on notice, not only from the Registrar but also from myself at the directions hearing, that he was at risk as to costs if he did not seriously consider the submissions of the Registrar. I even directed that the first Respondent deliver those written submissions before any were required from the Applicant.
Despite that invitation to properly consider the jurisdictional issue, the Applicant resolved to continue with the Application, indicating in his written submissions that:-
“The response by the Second Respondent (herein “the CSA”) argues that an applicant seeking relief under the PAct must first apply to the Privacy Commissioner. The CSA quotes certain section of the PAct contained within Part IV and the consequential enforcement procedures in Part V. However that pertains only to a person who chooses to take the free advisory path via the Commissioner as a first step to enforcement. In this case I have chosen to bypass that process (because I am sure of my grounds) and cut to the chase by going straight to court.”
The Applicant is not entitled to “bypass” the first step created for obviously sensible public policy reasons.
Costs should therefore follow the event. I will order that:-
a)The Application be dismissed for want of jurisdiction
b)The Applicant shall pay the First Respondent’s costs of and incidental to these proceedings (including reserved costs) fixed in the sum of $1665.
c)There by no order as to costs in respect of the Second Respondent.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
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