Rahman v Ashpole

FEDERAL COURT OF AUSTRALIA

Rahman v Ashpole [2007] FCA 1067

MOHAMMAD TABIBAR RAHMAN v LIN ASHPOLE, MARTIN BARKER AND PRIVACY COMMISSIONER
NSD 1196 OF 2007

GRAHAM J
16 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1196 OF 2007

BETWEEN:

MOHAMMAD TABIBAR RAHMAN
Applicant

AND:

LIN ASHPOLE
First Respondent

MARTIN BARKER
Second Respondent

PRIVACY COMMISSIONER
Third Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	16 JULY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal filed 27 June 2007 be dismissed.

2.The applicant pay the costs of the first and second respondents on an indemnity basis.

3.The applicant pay the costs of the third respondent on a party and party basis.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1196 OF 2007

BETWEEN:

MOHAMMAD TABIBAR RAHMAN
Applicant

AND:

LIN ASHPOLE
First Respondent

MARTIN BARKER
Second Respondent

PRIVACY COMMISSIONER
Third Respondent

JUDGE:	GRAHAM J
DATE:	16 JULY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Section 31A(2) and (3) of the Federal Court of Australia Act 1976 (Cth) (the ‘Federal Court of Australia Act’) relevantly provided as follows:

   ‘31A(2)The Court may give judgment for one party against another in relation to the whole…of a proceeding if:

   (a)the first party is defending the proceeding …; and

   (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding….

   (3)     For the purposes of this section … a proceeding … need not be:

   (a) hopeless; or

   (b) bound to fail;

   for it to have no reasonable prospect of success.’

2. On 5 February 2007, the applicant commenced proceeding NSD 148 of 2007 seeking relief under ss 5, 6 and 7 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ‘AD(JR) Act’). The gravamen of the applicant’s complaint was that a decision of Anna Dobkin, Assistant Compliance Officer, Compliance Section of the Office of the Privacy Commissioner of 8 January 2007 warranted review under the AD(JR) Act. The applicant pointed out that at the time of the making of his application on 5 February 2007, he was unaware of a further decision of Ms Dobkin of 1 February 2007 and of another decision of Ms Dobkin of 28 February 2007, which was communicated to the applicant on 28 February 2007 and also to a Mr Marshall at ‘Commonwealth Bank of Australia Limited’ (sic).

3. The respondents named by the applicant in his Application filed 5 February 2007 were two officers of Commonwealth Bank of Australia (the ‘Commonwealth Bank’) and the Privacy Commissioner. 

4. By a Notice of Motion filed 26 March 2007, the first and second respondents applied to have the Application struck out or summarily dismissed. On 27 April 2007, the first and second respondents amended their Notice of Motion to also seek summary judgment under s 31A(2) of the Federal Court of Australia Act and to…