Papoutsakis v Australian Information Commissioner

Link copied
Case Copied 26 min read

FEDERAL COURT OF AUSTRALIA

Papoutsakis v Australian Information Commissioner [2024] FCA 75  

File number: NSD 878 of 2023
Judgment of: STEWART J
Date of judgment: 13 February 2024
Catchwords: HUMAN RIGHTS – privacy – application for judicial review of the decision of a delegate of the Australian Information Commissioner not to further investigate a breach of privacy complaint – where the delegate relied on s 41(1)(da) of the Privacy Act 1988 (Cth) to decide that an investigation was not warranted – whether the delegate took into account irrelevant considerations – whether the delegate failed to take into account relevant considerations – whether the delegate made a decision so unreasonable that no reasonable person could have made it
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5

Privacy Act 1988 (Cth) ss 6(1), 6C(1), 13, 14(1), 36, 36(1), 40, 40A(1), 41, 42, 43, 43A, 44, 45, 46, 47, 52, Sch 1, subcl 6.1
Cases cited:

Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; 270 FCR 335

Goodwin v Commissioner of Police [2020] FCA 950

Madzikanda v Australian Information Commissioner [2023] FCA 1445

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24

Rana v Australian Information Commissioner [2022] FCA 817

Simjanovska v Department of Human Services [2019] FCA 499
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 64
Date of hearing: 7 February 2024
Counsel for the Applicant: The Applicant appeared in person
Solicitor for the Respondent: S Sangha of Mills Oakley Lawyers

ORDERS

NSD 878 of 2023
BETWEEN:

ANTONIOS PAPOUTSAKIS

Applicant
AND:

AUSTRALIAN INFORMATION COMMISSIONER

Respondent

ORDER MADE BY:

STEWART J

DATE OF ORDER:

13 FEBRUARY 2024

THE COURT ORDERS THAT:

1.The proceeding be dismissed with costs.

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


REASONS FOR JUDGMENT

STEWART J:

Introduction

  1. The self-represented applicant in this case, Antonios Papoutsakis, is a bankrupt. He complains that his bankruptcy and associated hardship can be traced back to a breach of his privacy by QT Investment Management Pty Ltd (QTIM) in August and September 2016.

  2. Mr Papoutsakis complains that, without his consent, QTIM provided details of three loans he had from QTIM, including the details of three properties over which the loans were secured, the terms of the loans and the amounts outstanding, to a different prospective lender, Prime Capital. Against Mr Papoutsakis’s instructions, Prime Capital then sought to include those properties as securities by way of second mortgages in the documents for the new loan whereas Mr Papoutsakis says that his instructions had always been that the new loan would be secured only by a mortgage on a fourth property. The inclusion of the other properties in the documents caused Mr Papoutsakis to withdraw from the new loan before there had been any drawdown. When Prime Capital invoiced him $26,606 for its wasted expenses and liquidated damages, Mr Papoutsakis refused…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Papoutsakis v Australian Information Commissioner and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2024] FCA 75
Decision Date

CaseChat Overview and Summary

The applicant, Mr Papoutsakis, sought judicial review of a decision by the delegate of the Australian Information Commissioner not to investigate a complaint about a breach of privacy. The dispute arose from an alleged disclosure of Mr Papoutsakis’s financial information by QTIM, a wholly-owned entity of Spirit Super, to Prime Capital. Mr Papoutsakis argued that he had not consented to this disclosure, and that it constituted an interference with his privacy. The Federal Court was tasked with reviewing the delegate’s decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

The court examined whether the delegate took into account irrelevant considerations or failed to take into account relevant ones, and whether the decision was legally unreasonable. The court found that the delegate had considered Mr Papoutsakis’s claim that he did not consent to the disclosure of his information. Additionally, the court concluded that there were no mandatory considerations that the delegate was required to take into account. The court also found that the decision was not legally unreasonable because the delegate had considered the conflicting evidence and made a decision that a reasonable person could have made.

The court dismissed Mr Papoutsakis’s application for judicial review and ordered that the proceeding be dismissed with costs. The decision underscores the high threshold for judicial review of administrative decisions, particularly in cases involving discretionary powers. The delegate’s decision to not investigate the complaint was deemed to be within the bounds of legal reasonableness, considering the evidence and arguments presented.

Orders

Orders of the court

1. The proceeding be dismissed with costs.

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

Before me is Mr Papoutsakis’s application for judicial review of the decision of the Commissioner’s delegate. The evidence before the delegate The court book tendered on the hearing of the application contains the totality of the information available to the delegate when she made her decision. In summary, it reveals the following. By letter dated 18 August 2022, the Motor Trades Association of Australia Superannuation Fund Pty Ltd as trustee of Spirit Super responded to Mr Papoutsakis’s complaint on the invitation of an investigations officer at the Office of the Commissioner. Relevantly, the response alleged the following:(1)Mr Papoutsakis and his company Papou Properties Pty Ltd were long-term clients of QTIM which operated a mortgage loans business trading as Tasplan. From 1 April 2021, QTIM became wholly-owned by Spirit Super. “As a wholly-owned entity, QTIM now falls within the Spirit Super group and [the] complaint is being responded to by Spirit Super on that basis.” (2)QTIM disclosed the following information regarding Mr Papoutsakis: (a)In 2016, details of Mr Papoutsakis’s borrowings were provided to Steven Tsiakis because “Mr Papoutsakis advised QTIM that Mr Tsiakis was acting as his broker and verbally consented QTIM to assist Mr Tsiakis” (sic).(b)On 1 September 2016, the loan balance, interest rate, maturity date and security in respect of each of the three loans secured by three different properties in Sandy Bay were disclosed to Gadens as solicitors for Capital Securities. (Capital Securities is apparently a related entity to or trading name for Prime Capital, or vice versa.) The information was said to have been provided in response to a request for consent to a second mortgage over each of the properties and a signed privacy consent form. Annexed to Spirit Super’s response were a number of documents. They included an email from Gadens on behalf of Capital Securities to Leigh Ford of Tasplan (ie QTIM) on 29 August 2016. The email referred to a discussion the previous week between its author and Mr Ford, and requested consent to the registration of mortgages over the three identified Sandy Bay properties. The email stated that “the client’s authority to disclose information” was attached. Attached to the email was a “Privacy Consent form – Prime Capital” signed by Mr Papoutsakis and his wife as “guarantors”, and also by Mr Papoutsakis on behalf of Papou as “borrower”. The consent form includes terms that gave Prime Capital consent to, amongst other things, “collect … personal and credit information” of the signatories. Also attached to the email from Gadens was a loan approval form for Papou as borrower apparently signed by Mr Papoutsakis on 1 August 2016. The form included the details of the three properties and the loans, including the amounts outstanding on each loan. That is to say, it was apparent that prior to Gadens making the request by email on 29 August 2016, Prime Capital / Capital Securities already had the information that Mr Papoutsakis complains was released to them without his consent. In any event, by letter dated 1 September 2016, Mr Ford, on the letterhead of Retirement Benefits Fund, furnished information about the loans including, in respect of each loan, the balance outstanding, the interest rate, the maturity date and the security.

Decision

Reasons for decision

Mr Papoutsakis repeatedly stated in emails to the investigations officer that he did not consent to the provision of financial information by or on behalf of QTIM to Prime Capital. On one occasion, Mr Papoutsakis stated that Mr Tsiakis’s statutory declaration proves that he was never authorised by Mr Papoutsakis when acting as a broker “to seek financials from Spirit Super”. The delegate’s decisions Mr Papoutsakis’s complaint was referred to a conciliation meeting in October 2022, but conciliation failed. As mentioned, on 9 June 2023 the delegate gave notice that she intended to rely on s 41(1)(a) of the Privacy Act to close Mr Papoutsakis’s complaint without an investigation. That was on the basis that the delegate did not consider that QTIM’s act in disclosing the relevant information constitutes an interference with Mr Papoutsakis’s privacy. It was not explained whether that was because there was consent to the disclosure or because even without consent the disclosure was not an interference. Thereafter Mr Papoutsakis made further representations to the delegate. He reiterated his position that there was no consent given by him to QTIM or Mr Tsiakis for the disclosure. Also as mentioned, on 19 July 2023 the delegate relied on s 41(1)(da) of the Privacy Act in deciding not to investigate the complaint. The reasons given for the decision include the following: (1)The delegate summarised Mr Papoutsakis’s claim, including that he did not consent to QTIM releasing information about his properties for the purposes of registering second mortgages. Also, he claimed that he did not authorise QTIM to engage with Mr Tsiakis. Nevertheless, QTIM disclosed details of the three properties to Prime Capital prior to 1 August 2016 which is evidenced by those details being included in the initial loan documents which were prepared for his signature.(2)The delegate stated that even if it were accepted that there was prima facie evidence that there had been a breach of the Privacy Act, an investigation was not warranted having regard to the following circumstances:•the events that give rise to your complaint occurred in 2016•the respondent does not appear to be the same corporate entity that it was in 2016•details of the properties included in your loan application, with the exception of the amounts outstanding on each loan, were publicly available •your complaint against the respondent appears to be ancillary to the issues you have raised about your mortgage lender and broker •an investigation will not result in you receiving the $15 million in compensation you have sought from the respondent •the matter was more appropriately addressed in the context of a conciliation, although regrettably, a resolution could not be reached. The grounds of review The originating application for judicial review does not identify any grounds of review. However, the Commissioner was content to deal with the case on the basis that the grounds of review are identifiable from Mr Papoutsakis’s written submissions (AS) on the assumption that the grounds are raised pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

Ratio Decidendi

Legal Principle Established

In the circumstances, none of the identifiable complaints by Mr Papoutsakis with regard to the delegate taking into account irrelevant considerations is made out.Mandatory considerations There are no mandatory considerations in the sense described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40. It is necessary to focus on the construction of the statute conferring the discretion in determining whether any particular considerations are mandatory. Justice Mason noted that where the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless such an implication is to be found in the subject-matter, scope and purpose of the Act. Also, even if the decision-maker fails to take into account a consideration binding upon them, not every failure to do so would justify the court setting aside the impugned decision, particularly when that failure could not have materially affected the decision in question. In any event, the delegate expressly took into account that Mr Papoutsakis claims that he did not consent to the release of information to QTIM (see [17(1)] above). Similarly, the delegate expressly referenced that QTIM disclosed details of the three properties to Prime Capital for their inclusion in the documents to be given to Mr Papoutsakis for his signature (see [17(1)] above). Inherent in that is a recognition that he signed the consent form after the details had been disclosed. That turns attention to the prior disclosure to Mr Tsiakis who was Mr Papoutsakis’s broker for the purposes of organising the loan. In that regard, Spirit Super does not rely on the written consent, but the oral consent apparently given to Mr Ford. The oral consent given to Mr Ford relates to the final matter that Mr Papoutsakis complains the delegate did not take into account, ie that she failed to take into account that Mr Papoutsakis did not consent to Mr Tsiakis or Mr Ford collecting or releasing the information. As mentioned, the delegate was obviously aware that Mr Papoutsakis claims that he did not consent to the collection or release of the information. So, even if this was a matter that had to be taken into account, there is no error here. But in any event, Mr Ford’s diary note says that Mr Papoutsakis asked him to assist Mr Tsiakis to raise the loan, which would ordinarily include the need to provide details of other liabilities to any prospective lender. The point is that there was a conflict of evidence, or claims, before the delegate. The delegate was deciding whether or not to investigate them further in order to decide which to accept. The fact that Mr Papoutsakis made the claim that he had not consented is no basis to fault the delegate in making that decision.Legal unreasonableness Perhaps Mr Papoutsakis’s underlying complaint is that the delegate’s decision is so unreasonable that no reasonable person could have made it. That is a high hurdle. For present purposes it is not necessary to identify the parameters of the unreasonableness inquiry with precision because on any view of them the decision in this case is not unreasonable. See Goodwin v Commissioner of Police [2020] FCA 950 at [38]-[41] per Bromberg J in relation to those parameters.