Riediger, Mario v Privacy Commissioner

[1998] FCA 1742

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 774 of 1998

BETWEEN:	MARIO RIEDIGER APPLICANT
AND:	PRIVACY COMMISSIONER RESPONDENT

JUDGE:	THE HON JUSTICE MARCUS EINFELD
DATE:	23 SEPTEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

On 30 July 1998, the applicant, Mario Riediger, filed this application seeking a review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the Judicial Review Act) of the Privacy Commissioner’s decisions to dismiss his complaint about the conduct of Avco Finance Ltd (AVCO), Optus Communications Pty Ltd (OPTUS) and the Credit Reference Association of Australia (CRAA).

The grounds of the application were stated as being:

That Avco and the CRAA and Optus acted in bad faith and broke laws by disclosing my information, and it [sic] the Commissioner’s job to make sure they follow the rules and the Commissioner did not make sure they followed the rules when Avco acted in bad faith and the CRAA and Optus acted in bad faith / broke 18E(8)(c) knowingly and recklessly.

The essence of Mr Riediger’s complaint, as revealed by the supporting affidavit, was that both AVCO and OPTUS listed him with the CRAA, allegedly without giving him the required notice under the Privacy Act 1988.

On 27 February 1998, the applicant lodged a complaint against OPTUS with the Commissioner, who concluded after an investigation that on the available information OPTUS had not interfered with the applicant’s privacy. In accordance with section 41(1) of the Privacy Act, he then decided to cease further investigation.  This decision was notified to the applicant by letter dated 4 June 1998.  On 24 March 1998, the applicant lodged a written complaint with the Commissioner against AVCO.  The Commissioner commenced an investigation and, after receiving AVCO’s written response to the complaint, decided not to continue the investigation.  He notified the applicant accordingly in a letter dated 16 July 1998. 

On 19 July 1998  the applicant applied for a review of these decisions to the President of the Human Rights & Equal Opportunity Commission who notified the applicant by letter dated 23 July 1998 that she had no jurisdiction to review decisions of the Commissioner.

On 30 July 1998, the applicant filed this application seeking judicial review of the Commissioner’s decisions.  The matter first came before me on 8 September 1998.  The applicant gave a complex explanation of his case, so I invited him to put his submissions in writing.  He then informed me that what he had already filed was everything he wanted to say about the matter.  I directed that both AVCO and OPTUS be served with a copy of the application and supporting affidavit and that the matter be listed for further directions today when both OPTUS and AVCO appeared and, together with the Commissioner, were able to provide assistance in outlining the long historical background to the dispute.  After hearing from all parties including the applicant who repeated what he had said previously, I determined that there was absolutely no substance to the applicant’s arguments and no point in allowing the matter to take further time.  As the applicant said that he had nothing further to add to what he had said and written before, the directions hearing was cancelled and the matter listed for hearing immediately.  I then dismissed the application.  These reasons explain that decision.

The history of both complaints is long and convoluted, involving hearings before the Consumer Claims Tribunal, applications to the Telecommunications Ombudsman and the proceedings before the Commissioner, as well as the lengthy dealings between the parties in an effort to resolve the disputes using each company’s internal review processes.

Nevertheless, the application as filed by the applicant raises the relatively straightforward issue of whether the Commissioner’s decisions manifested judicially reviewable error as prescribed by the Judicial Review Act. On both occasions that the matter was before the Court, efforts were made to explain this to the applicant, apparently with little success. Mr Riediger had some considerable difficulty in coming to grips with the concept that the Federal Court’s jurisdiction in these matters is limited to the review of any error of law made by the Commissioner in the course of his decision on the substantive complaint. He seemed to labour under the misapprehension that in order to review the Commissioner’s decisions, the Court was in fact requiring the applicant to show that the Commissioner had breached the substantive privacy laws about which the applicant was complaining in the first place. This is self-evidently not the case. I attempted to explain that the error which an application of this kind must reveal must be an error related to the making of the decision itself, for example, a denial of natural justice, manifest unreasonableness, the taking into account of irrelevant considerations, and so forth. In reviewing decisions of the Commissioner, the Court simply cannot revisit the merits of the applicant’s complaints against either AVCO or OPTUS.

Ultimately, the applicant was not able to show that there were any conceivable grounds on which this application could succeed.  There was absolutely no evidence that could taint either the procedures followed or the decisions made by the Commissioner, who in my opinion, dealt comprehensively with the complaints of the applicant.  Essentially, the applicant believed that OPTUS and AVCO had breached the provisions of the Privacy Act and that, because the Commissioner had obviously not seen the blinding logic and clarity in his case, the Federal Court should redress this perceived injustice.  Unfortunately for the applicant, and despite the fact that on reading the Commissioner’s decisions it seems that the applicant’s complaints are completely unfounded, the Court’s jurisdiction does not extend to such matters.  The  application was dismissed on the basis that no possible grounds for its success had been revealed.

The parties were invited to make any submissions on costs in writing.  The Commissioner advised that he did not seek his costs of the application.  Neither AVCO nor OPTUS were parties to the matter and neither made any submissions on costs.  Obviously the applicant, who appeared in person, could not have an order for costs.  Therefore there will be no order as to costs.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld

Associate:

Dated:             23 September 1998

The Applicant appeared in person.
Solicitor for the Respondent:		Adele Connor, of the Human Rights & Equal Opportunity Commission
Date of Hearing:		23 September 1998
Date of Judgment:		23 September 1998