Zhang v Australian Information Commissioner

FEDERAL COURT OF AUSTRALIA

Zhang v Australian Information Commissioner [2023] FCA 132   

File number:

VID 283 of 2021

Judgment of:

SNADEN J

Date of judgment:

27 February 2023

Catchwords:

ADMINISTRATIVE LAW – application for judicial review of decision of the Australian Information Commissioner (“Commissioner”) – where decision-maker exercised statutory discretion to not investigate complaint of interference with the applicant’s privacy – whether complaint made against a “small business operator” – whether applicant provided consent to collection or disclosure of personal information – where originating application incompetent – application dismissed

PRACTICE AND PROCEDURE – application for extension of time and leave to amend originating application – where application sought more than three years after relevant decision – adequacy of explanation for delay – whether proposed amendment to originating application is sufficiently meritorious – no reasonable prospects – application dismissed

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 11

Privacy Act 1988 (Cth) ss 6, 6C, 6D, 13, 36, 40, 41

Federal Court Rules 2011 (Cth) rr 31.01, 31.02, 31.05

Cases cited:

Griffith University v Tang (2005) 221 CLR 99

Division:

General Division

Registry:

Victoria

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

64

Date of hearing:

31 January 2023

Counsel for the Applicant:

The applicant appeared in person with the assistance of an interpreter

Counsel for the Respondent:

Ms K McInnes

Solicitor for the Respondent:

Australian Government Solicitor

ORDERS

VID 283 of 2021

BETWEEN:

JULLIE ZHANG

Applicant

AND:

AUSTRALIAN INFORMATION COMMISSIONER

Respondent

ORDER MADE BY:	SNADEN J
DATE OF ORDER:	27 FEBRUARY 2023

THE COURT ORDERS THAT:

1.The originating application dated 24 May 2021 be dismissed.

2.The applicant’s application for an extension of time dated 3 January 2023 be dismissed.

3.The applicant pay the respondent’s costs to be assessed in default of agreement in accordance with the court’s costs practice note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

1. By correspondence dated 30 July 2018, the applicant, Ms Zhang, petitioned the respondent (hereafter, the “Commissioner”) to investigate what she alleged had been an interference with her privacy contrary to the requirements of the Privacy Act1988 (Cth) (hereafter, the “Privacy Act”).  Her complaint focused upon some email correspondence that was sent by an organisation known as “CareerSeekers”.  Ms Zhang took issue with having been identified as a participant in a conference that formed part of the “New Australian Internship Program” that CareerSeekers was then organising.

2. On 15 January 2019—after liaising with Ms Zhang and with a representative of CareerSeekers—the Commissioner determined that she would not further investigate Ms Zhang’s complaint. That decision was purportedly made in reliance upon s 41(1)(da) of the Privacy Act. It rested substantially upon the Commissioner’s conclusion that CareerSeekers was a small business operator to which the Privacy Act did not apply.

3. In the weeks that followed, Ms Zhang exchanged a number of emails with the Commissioner’s office regarding her…