FEDERAL COURT OF AUSTRALIA
Papoutsakis v Australian Information Commissioner [2025] FCAFC 10
Appeal from: Papoutsakis v Australian Information Commissioner [2024] FCA 75 File number(s): NSD 229 of 2024 Judgment of: O'SULLIVAN, KENNETT AND NEEDHAM JJ Date of judgment: 13 February 2025 Catchwords: HUMAN RIGHTS – Privacy – appeal from decision of primary judge to dismiss application for judicial review of a decision of a delegate of the Australian Information Commissioner not to investigate a breach of privacy complaint under s 41(1)(da) of the Privacy Act 1988 (Cth) – whether primary judge erred and denied procedural fairness in admitting file note – whether primary judge erred by failing to consider legal and procedural requirements for consent to release information and for a valid loan application – whether decision was legally unreasonable Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 16
Evidence Act 1995 (Cth) s 56
Judiciary Act 1903 (Cth) s 39B
Privacy Act 1988 (Cth) ss 36, 40, 41
Cases cited: Jones v Office of the Australian Information Commissioner [2014] FCA 285
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Papoutsakis v Australian Information Commissioner [2024] FCA 75
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 44 Date of hearing: 4 November 2024 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondent: Ms N Gollan Solicitor for the Respondent: Mills Oakley ORDERS
NSD 229 of 2024 BETWEEN: ANTONIO PAPOUTSAKIS
Appellant
AND: AUSTRALIAN INFORMATION COMMISSIONER
Respondent
ORDER MADE BY:
O'SULLIVAN, KENNETT AND NEEDHAM JJ
DATE OF ORDER:
13 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
This is an appeal from the decision of the primary judge in Papoutsakis v Australian Information Commissioner [2024] FCA 75 (primary judgment).
At the opening of the hearing, the Court granted the appellant, with the consent of the respondent, leave to file an Amended Notice of Appeal to reflect the matters raised in his submissions under the heading “Grounds of Appeal”. He filed the Amended Notice of Appeal in accordance with directions on 8 November 2024.
The appeal arises out of a privacy complaint made by the appellant against Motor Trades Association of Australia Superannuation Fund Pty Ltd, as trustee for Spirit Super. The appellant and his company Papou Properties Pty Ltd were clients of QT Investment Management Pty Ltd (QTIM) trading as Taplan Commercial Lending (a mortgage loans business operated by QTIM). In 2021, QTIM became wholly owned by Spirit Super. Spirit Super was the active respondent to the complaint. The facts are not generally in contest, and are set out by the primary judge at [2] and [3] of the primary judgment:-
Mr Papoutsakis complains that, without his consent,…
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- Case
- [2025] FCAFC 10
- Decision Date
CaseChat Overview and Summary
The Court examined whether the primary judge had erred in admitting a redacted file note into evidence and whether this affected the outcome of the case. The file note, dated several years after the events in question, suggested that Mr Papoutsakis had consented to the release of information. The Court found that the admission of the file note did not constitute an error warranting a re-trial, as the primary judge did not rely on the substance of the file note in reaching his conclusion. The Court further noted that the appellant did not object to the file note being part of the Court Book or challenge its inclusion during the hearing. The Court concluded that the admission of the file note did not result in a failure to take into account a relevant consideration or an error of law, and the issue of whether the file note was compliant with financial regulatory requirements was beyond the scope of the judicial review.
The appeal was dismissed with costs, as agreed or taxed. The Court ruled that the decision of the primary judge was correct and did not contain any procedural errors or legal flaws that would warrant a re-trial. The Court found no basis to interfere with the decision of the Commissioner's delegate not to investigate the privacy complaint further.
Orders
Orders of the court
1. The appeal be dismissed with costs, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The respondent filed a Notice of Contention. Essentially the respondent contended that if the primary judge erred in admitting the file note into evidence, then that error does not constitute an appealable error warranting the grant of a re-trial, essentially on the basis that the exclusion of the file note would not “realistically have resulted” in the primary judge reaching a different decision.Submissions and considerationThe admission of the redacted file note As provided in Ground 3 of the Amended Notice of Appeal above, the appellant sought that the matter be re-heard without the file note being part of the evidence. The file note is dated 30 August 2022 and was provided by Spirit Super to the investigations officer at the Office of the Commissioner. The author is Mr Ford, who was QTIM’s Commercial Lending Manager at the time. There is one sentence redacted in the copy which was part of the Court Book before the primary judge and before the Full Court. The appellant took issue with that part of the file note which suggests that he consented to the release of information, and the fact that the file note is dated some six years after the relevant events, and some time after the complaint was made to the Commissioner. The respondent noted that the document was provided to the respondent by Spirit Super in its redacted form. The respondent submitted that the file note was before the delegate of the Commissioner at the time of his decision and would therefore be admissible as a relevant document under s 56 of the Evidence Act 1995 (Cth). Further, the appellant did not raise any objection to the Court Book being tendered ([J61]), and did not challenge the inclusion of the file note in the Court Book. In fact, the file note was discussed during the hearing and the appellant raised his issues with its contents and the use to be made of it during the hearing before the primary judge. The respondent submitted that even if the document were admitted in error, this would not have produced a different outcome as the primary judge did not rely on the substance of the file note in reaching his conclusion, but merely noted that the document demonstrated that a conflict of evidence existed between the appellant and the file note, which was not relevant to the issues to be considered by the primary judge. We accept the respondent's submissions. The admission of the file note was relevant because it was part of the material before the delegate of the respondent, who, like the primary judge, did not make a finding of fact based on the two competing accounts of the question of consent. Given that the appellant did not object to the admission of the file note even after being taken to it by the primary judge, it is difficult to see how the redaction of the file note was an irrelevant consideration taken into account, a failure to take account of a relevant consideration, or otherwise an error of law. Likewise, the issue of whether the file note was compliant with financial regulatory requirements was not a matter within the scope of the judicial review.The use of the redacted file note