Pullen v Joiner a Trustee of the Property of Kevin Michael Pullen a Bankrupt
[2013] FMCA 172
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PULLEN v JOINER A TRUSTEE OF THE PROPERTY OF KEVIN MICHAEL PULLEN A BANKRUPT & ANOR | [2013] FMCA 172 |
| BANKRUPTCY – Request for access to trustees’ file – information about his property or affairs – request sufficiently narrow – application granted. PRIVACY – Access to files maintained by applicant’s trustees in bankruptcy –request was for personal information. |
| Bankruptcy Act 1966, s.178 National Privacy Principles, p.6.1(d) Privacy Act 1988, s.6(1) |
| Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 Department of Education and Training v PN (GD) [2006] NSWADTAP 66 Director General, Department of Education and Training v MT [2006] NSWCA 270 J v Utility Company & IG [2006] PrivCmrA 9 Own Motion Investigation v Bankruptcy Firm [2007] PrivCmrA 5 (1 April 2007) Pullen v Joiner a Trustee of the property of Kevin Michael Pullen (a Bankrupt) & Ors [2012] FMCA 641 Q and Financial Institution [2011] AICmrCN 11 (22 December 2011) |
| Applicant: | KEVIN MICHAEL PULLEN |
| First Respondent: | MATTHEW JOINER A TRUSTEE OF THE PROPERTY OF KEVIN MICHAEL PULLEN A BANKRUPT |
| Second Respondent: | GERALD COLLINS A TRUSTEE OF THE PROPERTY OF KEVIN MICHAEL PULLEN A BANKRUPT |
| File Number: | BRG 1139 of 2012 |
| Judgment of: | Jarrett FM |
| Hearing date: | 11 February 2013 |
| Date of Last Submission: | 11 February 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 27 February 2013 |
REPRESENTATION
| The applicant appeared on his own behalf |
| Solicitor for the Respondent: | Mr Muller |
| Solicitors for the Respondent: | Rodgers Barnes & Green Lawyers |
ORDERS
The First and Second Respondents deliver any document in their possession containing personal information about the Applicant to the Applicant within 28 days.
For any category of documents on the Respondents’ file in relation to the administration of the Applicant’s bankruptcy that the Respondents do not provide to the Applicant, the Respondents are to identify that category of documents and state the basis why those documents are either:
(a)Not personal information; or
(b)Otherwise not required to be provided to the Applicant.
The Respondents pay the Applicants costs of an incidental to the Application fixed in the sum of $100.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 1139 of 2012
| KEVIN MICHAEL PULLEN |
Applicant
And
| MATTHEW JOINER A TRUSTEE OF THE PROPERTY OF KEVIN MICHAEL PULLEN A BANKRUPT |
Respondent
REASONS FOR JUDGMENT
Mr Pullen is an undischarged bankrupt. Mr Joiner and Mr Collins are the trustees in bankruptcy of Mr Pullen’s estate.
By his application filed on 24 December, 2012 Mr Pullen seeks that the Court review a decision of his trustees in bankruptcy to refuse to provide him access to certain documents and other information held by them for the purposes of the administration of his bankrupt estate. His application is made pursuant to s.178 of the Bankruptcy Act 1966.
On 8 August, 2012 Mr Pullen wrote to Mr Joiner requesting access to certain information and documents held by Mr Joiner. The terms of the request are as follows:
“Dear Mr Joiner
As Authorised Agent for the BANKRUPT KEVIN MICHAEL PULLEN, I hereby request, under the provisions of the PRIVACY ACT 1988, access to any information on file from which the identity of Kevin Michael Pullen or any colourable imitation thereof is apparent, or can reasonably be ascertained from that information in connection with BANKRUPT ESTATE NO. QLD 176/07/03, except to the extent that you are required or authorised to refuse to give that information under the applicable provisions of any law of the Commonwealth that provides for access by persons to documents.
Such access is to include, but not be limited to, all relevant documents and all any other relevant media, including correspondence, memoranda, file or other notes, recorded and other electronic media, relating to communications, either in writing or verbally, between the TRUSTEE FOR BANKRUPT ESTATE No. QLD 1716/07/3, namely MATTHEW JOINER and GERALD COLLINS and/or their employees or representatives including JAMES WILSON and the following parties, either severally or jointly, (1) officers or representatives of the Insolvency and Trustee Service Australia (ITSA), (2) employees or representatives of SECURE FUNDING PTY LTD (including under its form name of LIBERTY FINANCIAL PTY LTD and any other related entities), (3) employees or representatives of the AUSTRALIAN TAXATION OFFICE, (4) offices of the Court having jurisdiction under the BANKRUPTCY ACT 1996 which considered matters related to BANKRUPT ESTATE NO. QLD 1716/07/03 and (5) any other officers or representatives of any other parties whom had occasion to be advised of matters in connection with BANKRUPT ESTATE NO. QLD 1716/07/03 and/or the BANKRUPT KEVIN MICHAEL PULLEN from which the identity of Kevin Michael Pullen or any colourable imitation thereof is apparent, or can reasonably be ascertained.
I await your advice as to when this information will be made available.
Honourably and Sincerely Yours
Kevin Michael Pullen,
Authorised Agent for the
‘KEVIN MICHAEL PULLEN’ Public Trust”
On 26 October, 2012 Mr Joiner responded to Mr Pullen’s request. Firstly, Mr Collins suggested that Mr Pullen was unable to make a further request for access to the relevant documents because I had previously determined that Mr Pullen was not entitled to a copy of those documents or to inspection of them: see Pullen v Joiner [2012] FMCA 641. Secondly, Mr Joiner contended that the National Privacy Principles which are promulgated under the Privacy Act 1988 have no application to Mr Collins or Mr Joiner as trustees in bankruptcy of Mr Pullen’s estate. Further, Mr Joiner contended that if the National Privacy Principles applied, then under National Privacy Principle 6.1(d) he was not obliged to provide access to the documents because the request was frivolous and vexatious.
Those arguments, however, were predicated on the basis that my previous decision now precludes Mr Pullen from pursuing a fresh request for access to the relevant documents.
Finally, Mr Joiner argued that the relevant documents was not “personal information” as defined in s.6(1) of the Privacy Act to which Mr Pullen was entitled.
On the hearing of this application, the solicitor who appeared for the respondents abandoned the assertion that the National Privacy Principles do not apply to the trustees of Mr Pullen’s estate. Further, he abandoned the assertion that by reason my previous decision Mr Pullen was now precluded from pursuing his second request. The focus of the trustees submissions was that the information sought by Mr Pullen was not “personal information” for the purposes of s.6(1) of the Privacy Act. Secondly, it was argued that the request was nonetheless frivolous and vexatious.
Personal Information
Section 6 of the Privacy Act provides that personal information for the purposes of the Act means, “information or an opinion (including information or an opinion forming part of a database), whether true or not, whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained from the information or opinion”.
For information or an opinion, whether true or recorded, to be personal information it must therefore:
a)be about an individual; and
b)that individual’s identity must be apparent or reasonably ascertainable from the information or opinion.
The respondents concede that most of the documents on their file identify Mr Pullen,[1] however, they submit that information contained in the file does not fall within the definition of personal information because it concerns debts owed by Mr Pullen’s estate or the realisation of property within his estate and as such is not ‘about’ Mr Pullen. Rather, it is ‘about’ the affairs of his estate.[2] The trustees draw a distinction between a bankrupt and that bankrupt’s estate.
[1] Submissions for the respondent filed 11 February 2013.
[2] Oral submissions of Mr Muller; Exhibit KMP(1)-4 of the Affidavit of Kevin Michael Pullen filed 24 December 2012.
The respondents draw attention to my previous decision of Pullen v Joiner a Trustee of the property of Kevin Michael Pullen (a Bankrupt) & Ors[3] in support of that proposition. In that decision, I determined that Mr Pullen’s trustees were under no obligation to permit inspection of documents and information held by them under the Privacy Act because the request made by Mr Pullen in that case was not a request made for the purposes of National Privacy Principle 6.1(d). His request was too wide and sought production and inspection of documents that went beyond those which might fall within the definition of personal information.
[3] [2012] FMCA 641.
Mr Pullen submits that information about a bankrupt and information about their bankrupt estate are inextricably linked.[4] He further contends that the definition of personal information is broad and his request of 8 August, 2012 is sufficiently narrow to engage the National Privacy Principle 6.1(d). He points to a decision of the Privacy Commissioner as well as a number of New South Wales decisions[5] to support his case.
[4] Submissions of the applicant filed 11 February 2013.
[5] Submissions of the applicant filed 11 February 2013.
In a different context it has been held that disclosure of the name of a person is not necessarily the disclosure of information concerning the personal affairs of that person. Whether it does so will be a question of fact to be determined depending upon the circumstances of each particular case.[6]
[6] Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606.
The terms of s.6 of the Act draw a distinction between the notion that the relevant information or opinion is about a person and that person’s identity. That is to say, the mere identification of a person in or by information or an opinion is insufficient to engage the definition of personal information. The definition clearly requires more than mere identification – the information or opinion must be about that person. It is the content of the word about where it appears in the definition or personal information that is critical to a resolution of this application.
The Explanatory memorandum to the Privacy Bill 1988 provides guidance on the issue. It provides that “the range of information/opinion coming within the definition [of personal information] is infinite” and would include, amongst other things, information relating to the person’s residence and investments and property holdings.[7]
[7] Explanatory memorandum to the Privacy Bill 1988, para 35.
Decisions of the Information Commissioner and Privacy Commissioner suggest that information regarding the debts of an individual as well as information regarding the business of a sole trader fall within the definition of personal information.[8]
[8] Q and Financial Institution[2011] AICmrCN 11 (22 December 2011); J v Utility Company & IG [2006] PrivCmrA 9.
The respondent did not seek to advance any proposition that the information on the file is not ‘about’ Mr Pullen because:
a)the file contains information regarding property that is vested in them as trustees of his bankrupt estate; and
b)he has no formal rights in that property.
In my view, any such proposition would have been unfounded. In Own Motion Investigation v Bankruptcy Firm[9] the Privacy Commissioner determined that a trustee’s opinion about a bankrupt’s affairs and conduct fell within the definition of personal information for the purposes of the Privacy Act. Further the Privacy Act is beneficial legislation and as such should not be read down.[10]
[9] [2007] PrivCmrA 5 (1 April 2007)
[10] Director General, Department of Education and Training v MT [2006] NSWCA 270; Department of Education and Training v PN (GD) [2006] NSWADTAP 66.
In my view, the definition of personal information is broad and the material held by the trustees in bankruptcy of Mr Pullen’s estate might well hold documents and other information which comes within the description of personal information for the purposes of the Privacy Act. Information about his estate in bankruptcy, is information about Mr Pullen.
The response by the trustees thus far has been to refuse to comply with Mr Pullen’s request on grounds which they now largely abandon. Of the two remaining grounds of opposition identified above, the first fails.
Frivolous or vexatious
The respondents contend that Mr Pullen’s application is frivolous and vexatious as Mr Pullen is seeking further information in relation to complaints that have already been dealt with and that he is trying to circumvent the procedures established under the Bankruptcy Act 1966 to access such documents.[11]
[11] Submissions for the Respondent dated 11 February 2013.
Mr Pullen submits that the current request is not frivolous or vexatious as it differs in scope to the request that was subject to the initial proceedings, and moreover such initial proceedings are yet to be formally finalised.
I am not satisfied that the present request is frivolous or vexatious. Mr Pullen has narrowed the scope of the request. Moreover, I am not satisfied that Mr Pullen’s trustees in bankruptcy have turned their mind to whether any documents within their power, possession or control or any other information that they have falls within the definition of personal information for the purposes of the Privacy Act.
Relief
I will hear the parties as to the appropriate form of relief.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of FM Jarrett FM
Date: 27 February 2013
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