Saffari v Australian Information Commissioner

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FEDERAL COURT OF AUSTRALIA

Saffari v Australian Information Commissioner [2023] FCAFC 127   

Appeal from: Saffari v Australian Information Commissioner
[2022] FCA 1016
File number(s): NSD 741 of 2022
Judgment of: SARAH C DERRINGTON, STEWART AND ABRAHAM  JJ
Date of judgment: 10 August 2023
Catchwords: ADMINISTRATIVE LAW – privacy – appeal from dismissal of application for judicial review of decision of Australian Information Commissioner (AIC) – where AIC found in favour of appellant and awarded compensation – where appellant sought an order that CEO of Amazon apologise – whether AIC failed to consider appellant’s submission in respect of the apology sought – whether mandatory relevant consideration – whether AIC erroneously considered the effect of an apology on separate legal proceedings – whether AIC’s use of phrase “hurt feelings” legally unreasonable or illogical
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(e), 5(1)(f)

Judiciary Act 1903 (Cth) s 39B

Privacy Act 1988 (Cth) ss 36(1), 40(1), 40A(1), 52(1),
sch 1
Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593

DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146

Dranichnikov v Minister for Immigration and Multicultural Affairs[2003] HCA 26; 73 ALD 321

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

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497

Sordini v Wilcox [1983] FCA 57; 70 FLR 326
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 39
Date of hearing: 7 August 2023
Counsel for the Appellant: The Appellant appeared in person
Counsel for the Respondent: Mr C Hibbard
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

NSD 741 of 2022
BETWEEN:

SHAHRIAR SAFFARI

Appellant
AND:

AUSTRALIAN INFORMATION COMMISSIONER

Respondent

ORDER MADE BY:

SARAH C DERRINGTON, STEWART AND ABRAHAM JJ

DATE OF ORDER:

10 AUGUST 2023

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs of the appeal, to be assessed if not agreed.

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


REASONS FOR JUDGMENT

THE COURT:

  1. Mr Saffari appeals from an order of this Court dismissing his application for judicial review of a Decision of the Australian Information Commissioner under s 39B of the Judiciary Act 1903 (Cth) and ss 5(1)(e) and (f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

  2. By her Decision, the Commissioner found in favour of Mr Saffari in respect of a complaint he had made about an interference with his privacy by Amazon Commercial Services Pty Ltd and/or Amazon Services Inc contrary to the Privacy Act 1988 (Cth) and, in particular, contrary to Australian Privacy Principle 6 (APP 6). The Decision followed a Preliminary View, conducted by the Deputy Commissioner which, as its title suggests, indicated the preliminary findings and recommendations proposed to be made by the…

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Details
Case
[2023] FCAFC 127
Decision Date

CaseChat Overview and Summary

In this case, Mr Saffari sought judicial review of a decision made by the Australian Information Commissioner, who found in his favour and awarded him compensation for privacy infringement by Amazon. The appeal centred on three main issues: the Commissioner's consideration of Mr Saffari's request for an apology, the mandatory nature of this consideration, and the Commissioner's characterisation of Mr Saffari's harm as "hurt feelings". The appeal was dismissed, and Mr Saffari was ordered to pay the respondent's costs.

The primary legal issues before the court were whether the Commissioner failed to consider Mr Saffari's request for an apology, whether this consideration was mandatory, and whether the Commissioner's use of the phrase "hurt feelings" was legally unreasonable or illogical. Mr Saffari argued that the Commissioner did not sufficiently consider his request for an apology, that this consideration was mandatory, and that the Commissioner's use of the phrase "hurt feelings" was erroneous. The Commissioner, on the other hand, argued that she had adequately considered the issue of an apology, that it was not a mandatory consideration, and that her characterisation of Mr Saffari's harm was legally sound.

The court found that the Commissioner had indeed considered Mr Saffari's request for an apology, albeit briefly, and that this consideration was not mandatory. The court held that the Commissioner's use of the phrase "hurt feelings" was not legally unreasonable or illogical, and that it was an accurate description of Mr Saffari's non-economic damages. The court also found that the Commissioner had not erroneously considered the effect of an apology on separate legal proceedings, as Mr Saffari had argued. Therefore, the appeal was dismissed, and Mr Saffari was ordered to pay the respondent's costs.

In summary, the court found that the Commissioner had adequately considered Mr Saffari's request for an apology, that this consideration was not mandatory, and that her characterisation of Mr Saffari's harm as "hurt feelings" was legally sound. The appeal was dismissed, and Mr Saffari was ordered to pay the respondent's costs.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal, to be assessed if not agreed.

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

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Decision

Reasons for decision

Mr Saffari appeals from an order of this Court dismissing his application for judicial review of a Decision of the Australian Information Commissioner under s 39B of the Judiciary Act 1903 (Cth) and ss 5(1)(e) and (f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). By her Decision, the Commissioner found in favour of Mr Saffari in respect of a complaint he had made about an interference with his privacy by Amazon Commercial Services Pty Ltd and/or Amazon Services Inc contrary to the Privacy Act 1988 (Cth) and, in particular, contrary to Australian Privacy Principle 6 (APP 6). The Decision followed a Preliminary View, conducted by the Deputy Commissioner which, as its title suggests, indicated the preliminary findings and recommendations proposed to be made by the Commissioner and invited Mr Saffari and Amazon to provide comment in response. Mr Saffari did this by letters dated 19 July 2021 (July Submission) and 16 August 2021 (August Submission). It was uncontroversial that Amazon had disclosed Mr Saffari’s identity to a third party as the anonymous author of a book he had self-published using a service provided by Amazon. In detailed reasons published on 30 August 2021 (Commissioner’s Reasons), the Commissioner ordered Amazon to pay Mr Saffari compensation of $3000 for proven non-economic damages for hurt feelings, including stress, humiliation, and feelings of anxiety, and attendance at counselling.The appeal By his Notice of Appeal filed on 9 September 2022, Mr Saffari raises 8 grounds of appeal. The gravamen of his appeal is threefold: first, by grounds 1, 2, 7 and 8, he contends the primary judge erred in failing to find that the Commissioner had omitted to consider a “submission of substance” concerning the issue of an apology as made in the August Submission; secondly, by grounds 4, 5 and 6, he contends the primary judge erred in failing to find that the Commissioner ought to have ordered Amazon to apologise; and thirdly, by ground 3, he contends the primary judge erred in failing to find the Commissioner had erred in her characterisation of Mr Saffari’s harm as “hurt feelings”. On the hearing of the appeal, Mr Saffari handed up, without objection, a list of “Appellant’s Issues in the Appeal” and a “List of relevant OAIC decisions and Table of Quantum of Damages”. Mr Saffari identified the following as the relevant issues:1.The Commissioner failed to take into account the 16 August Submission.2.Alternatively, a vague reference to the Submission did not satisfy the “sufficient weight” test.3.The Submission was Mandatory Relevant Consideration.4.The Commissioner made errors in making the decision or her conduct related to making decision.4.1The Commissioner did not have the discretionary power to consider Mr Bezos’ wealth and social status and Amazon’s interest in making a Privacy decision.4.2The Commissioner erred as per 4.1 overruling the Deputy Commissioner and preventing Amazon’s apology.(Emphasis in the original.)

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.