Remawi v Australian Information Commissioner

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FEDERAL COURT OF AUSTRALIA

Remawi v Australian Information Commissioner [2024] FCA 1156  

File number(s): QUD 446 of 2023
Judgment of: MEAGHER J
Date of judgment: 2 October 2024
Catchwords: ADMINISTRATIVE LAW – application for judicial review of the decision of a delegate of the Australian Information Commission not to investigate a breach of privacy complaint – where the delegate relied on s 41(1)(a) of the Privacy Act 1988 (Cth) to decide not to investigate the complaint – whether the delegate failed to take into account relevant considerations – whether the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made – whether there was no evidence or other material to justify the making of the decision – whether there was an exercise of a power in such a way that the result of the exercise of the power is uncertain – whether there was a failure to make a decision – application dismissed
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 36, 40, 41

Privacy Act 1988 (Cth) ss 3(1), 3(5), 5, 6, 7, 16(3)
Cases cited:

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Australian Postal Corporation v D’Rozario (2014) 222 FCR 303; [2014] FCAFC 89

D’Amore v Independent Commission Against Corruption (2013) 303 ALR 242; [2013] NSWCA 187

Jones v Office of the Australian Information Commissioner [2014] FCA 285

Johns v Australian Securities Commission (1993) 178 CLR 408; [1993] HCA 56

Madzikanda v Australian Information Commissioner [2023] FCA 1445

Masi-Haini v Minister for Home Affairs (2023) 298 FCR 277

Metlife Insurance Ltd v Australian Financial Complaints Authority (No 3) [2022] FCA 849

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41

Ogawa v Australian Information Commissioner [2014] FCA 229

Papoutsakis v Australian Information Commission [2024] FCA 75

R v Australian Broadcasting Tribunal; Ex Parte Hardiman (1980) 141 CLR 13

Rana v Australian Information Commissioner [2022] FCA 817

Remawi v Virgin Australia Airlines Pty Ltd [2023] FWC 1501

Remawi v Virgin Australia Airlines Pty Ltd [2023] FWCFB 141

Simjanovska v Department of Human Services [2019] FCA 499

Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124
Division: General Division
Registry: Queensland
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 60
Date of hearing: 10 July 2024
Counsel for the Applicant: The Applicant was self-represented
Counsel for the Respondent: Mr MPA Maynard
Solicitor for the Respondent: Holding Redlich

ORDERS

QUD 446 of 2023
BETWEEN:

HAYTHAM REMAWI

Applicant
AND:

AUSTRALIAN INFORMATION COMMISSIONER

Respondent

ORDER MADE BY:

MEAGHER J

DATE OF ORDER:

2 OCTOBER 2024

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs as agreed or assessed.

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

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Details
Case
[2024] FCA 1156
Decision Date

CaseChat Overview and Summary

The applicant, Mr Remawi, sought judicial review of a decision by the Australian Information Commissioner (AIC) not to investigate a privacy complaint made by Mr Remawi under the Privacy Act 1988 (Cth). The applicant's complaint related to his dismissal from employment and alleged that his former employer, Virgin Australia, breached his privacy by disclosing personal messages he had sent to a former colleague without his consent. The court was tasked with determining whether the AIC's decision not to investigate the complaint was lawful and whether the AIC had failed to consider relevant matters or exercised its power improperly.

The court examined the relevant sections of the Privacy Act, particularly s 41(1)(a), which allows the AIC to decline to investigate a complaint if it considers the complaint is frivolous or vexatious. The court considered whether the AIC had correctly applied the statutory criteria and whether it had failed to take into account relevant considerations. The court noted that not every matter raised by the applicant must be considered by the AIC, and it is for the decision-maker to determine which matters are relevant and their importance. The court concluded that the AIC had appropriately exercised its discretion and had not failed to consider relevant matters or exercised its power improperly.

As a result, the court dismissed Mr Remawi's application for judicial review. The court found that the AIC's decision was lawful and that the applicant had not demonstrated any error in the AIC's process or decision-making. The court also ordered that Mr Remawi pay the respondent's costs as agreed or assessed, in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs as agreed or assessed.

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

Background

Background to the litigation

For the reasons that follow, the application is dismissed.BACKGROUND The applicant had been employed in the Pit Crew at Sydney Airport by Virgin Australia Airlines Pty Ltd until 8 December 2022 on which date his employment was terminated for misconduct. Thereafter, the applicant made complaints and applications to various regulatory and other bodies, including relevantly, to the Fair Work Commission (FWC) for a remedy for unfair dismissal and, specifically in relation to this matter, to the AIC in respect of a privacy complaint pursuant to s 36 of the Act. The events about which the applicant complains in this matter arose in the context of his employment and he considers that they contributed to what he contended was unfair dismissal. For that reason, the proceedings before, and decision of, the FWC are relevant and provide useful background facts. The decision of the FWC, Remawi v Virgin Australia Airlines Pty Ltd [2023] FWC 1501 (FWC Decision), and the transcript of the proceedings were before the Court as exhibits to the affidavit of Mr Remawi filed on 2 January 2024. In its decision, the FWC dealt at some length with the conduct of the applicant towards other Virgin employees including a female team member. It also dealt with actions taken by Mr Paul Daly, Ramp Manager for Virgin’s Sydney domestic ground handling operations in relation to the applicant. As well, relevant to this matter, the FWC noted that after he had been dismissed, the applicant “on 20 December 2022, reported Lillian Khan (Senior Legal Counsel) to Facebook, causing her personal Facebook account to be temporarily suspended”. There were five reasons given for the applicant’s dismissal from Virgin, and they were put to him after internal investigations, in accordance with a process which the FWC found to be fair. Ultimately, the FWC, in its decision of 23 June 2023, relevantly concluded: [186] Virgin Australia has established each of the five reasons it gave for the dismissal of Mr Remawi. Both separately and together, these were sound, defensible and well-founded reasons for dismissal. I am satisfied that Virgin Australia had valid reasons to dismiss Mr Remawi. This is despite deficiencies in the investigation of allegations pertaining to aspects of Reason 2 (specifically, Reports 4 and 5).…[220] There was a valid reason for the dismissal of Mr Remawi arising from his increasingly inappropriate conduct over the period from June 2021 to September 2022, and his subsequent lack of honesty when responding to the allegations made against him. The process undertaken by Virgin Australia to deal with those allegations was a fair one. Mr Remawi had appropriate support and a meaningful opportunity to respond. The applicant lodged an appeal against the decision of the FWC, in respect of which permission to appeal was refused by a Full Bench of the FWC: Remawi v Virgin Australia Airlines Pty Ltd (t/as Virgin Australia) [2023] FWCFB 141. A copy of that decision is also annexed to Mr Remawi’s affidavit filed on 2 January 2023.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The events about which the applicant complains in this matter arose in the context of his employment and he considers that they contributed to what he contended was unfair dismissal. For that reason, the proceedings before, and decision of, the FWC are relevant and provide useful background facts. The decision of the FWC, Remawi v Virgin Australia Airlines Pty Ltd [2023] FWC 1501 (FWC Decision), and the transcript of the proceedings were before the Court as exhibits to the affidavit of Mr Remawi filed on 2 January 2024. In its decision, the FWC dealt at some length with the conduct of the applicant towards other Virgin employees including a female team member. It also dealt with actions taken by Mr Paul Daly, Ramp Manager for Virgin’s Sydney domestic ground handling operations in relation to the applicant. As well, relevant to this matter, the FWC noted that after he had been dismissed, the applicant “on 20 December 2022, reported Lillian Khan (Senior Legal Counsel) to Facebook, causing her personal Facebook account to be temporarily suspended”. There were five reasons given for the applicant’s dismissal from Virgin, and they were put to him after internal investigations, in accordance with a process which the FWC found to be fair. Ultimately, the FWC, in its decision of 23 June 2023, relevantly concluded: [186] Virgin Australia has established each of the five reasons it gave for the dismissal of Mr Remawi. Both separately and together, these were sound, defensible and well-founded reasons for dismissal. I am satisfied that Virgin Australia had valid reasons to dismiss Mr Remawi. This is despite deficiencies in the investigation of allegations pertaining to aspects of Reason 2 (specifically, Reports 4 and 5).…[220] There was a valid reason for the dismissal of Mr Remawi arising from his increasingly inappropriate conduct over the period from June 2021 to September 2022, and his subsequent lack of honesty when responding to the allegations made against him. The process undertaken by Virgin Australia to deal with those allegations was a fair one. Mr Remawi had appropriate support and a meaningful opportunity to respond. The applicant lodged an appeal against the decision of the FWC, in respect of which permission to appeal was refused by a Full Bench of the FWC: Remawi v Virgin Australia Airlines Pty Ltd (t/as Virgin Australia) [2023] FWCFB 141. A copy of that decision is also annexed to Mr Remawi’s affidavit filed on 2 January 2023. The applicant’s privacy complaint was made in or around January 2023. It alleged that Ms Alex Dimovski, an employee of Virgin, and former colleague, released the applicant’s personal information, that is messages he had sent to her, to Virgin and her friends without his consent. The privacy complaint nominated Mr Daly and Ms Dimovski as two individuals involved in the claimed breach of privacy. The complaint appears to be directly related to reason 4 for the applicant’s dismissal as set out in the FWC Decision at [22], namely: …Mr Remawi sent multiple unwelcome and unsolicited Facebook messages to a female team member and continued to send friend requests after she requested that he stop.

Ratio Decidendi

Legal Principle Established

It is appropriate to approach the applicant’s claims in two parts. First, I will consider the applicant’s claim that the AIC failed to take into account a number of relevant considerations, as this constituted a large part of the applicant’s submissions. I will then turn to the remainder of the grounds upon which the applicant relies. Failure to take into account relevant considerations In Rana v Australian Information Commissioner [2022] FCA 817 at [72], Banks-Smith J relevantly stated the following in respect of the applicant’s allegation that a delegate of the AIC failed to have regard to a certain matter: … As the Commissioner submitted, consistent with the observations in Wattie, the fact that a complainant may raise a fact does not of itself make that fact relevant to the delegate’s consideration of the complaint. Otherwise, a delegate would be obliged to consider each and every matter that might be raised by a complainant, including those that have no logical connection to the task at hand or its resolution.(Emphasis in original.) As referred to above in Rana, in Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 at [138] – [139], McColl JA (Macfarlan JA agreeing and Emmett AJA to similar effect) stated the following as to a decision-maker’s failure to consider a relevant consideration: Fourthly, the fact that failure to take a relevant consideration into account in the exercise of a power is a ground of judicial review, does not, however, mean “that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account.” “The fact that [a party] chooses to refer to particular matters does not convert them into relevant considerations in the administrative law sense from which other consequences might flow. That is determined by reference to the statute.”That does not mean parties may not point to matters they contend were required to be taken into consideration. Nevertheless, even taking such submissions into account, where relevant considerations are not specified, “it is largely for the decision-maker … to determine which matters the decision-maker regards as relevant and the comparative importance to be accorded to such matters.”(Citations omitted) The applicant appeared to submit that the AIC did not consider that Virgin relied upon contradictory evidence. At the hearing, the applicant took the Court to the show cause letter sent by Mr Daly on behalf of Virgin to the applicant in relation to his dismissal, in which the following was relevantly stated: From 28 July 2022 onwards it is alleged that you sent unwelcome and unsolicited Facebook messages to Alex Dimovski, Pit Crew Operator.•From 3 September 2022 you sent multiple Facebook friend requests and then deleted the requests, in doing so, the request would have shown up as a new notification. The most recent request was made on 14 September 2022.(Emphasis added.)