McEwan v Office of the Australian Information Commissioner

1. The interlocutory application filed by the applicant to "withdraw" the proceeding be deemed to be, and take effect for all purposes as if it were, a notice of discontinuance in Form 48.
2. The applicant's application for an order relieving her from the consequences of r 26.12(7) of the Federal Court Rules 2011 (Cth) be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 In proceeding QUD181 of 2022, the applicant, Ms Julie McEwan, has applied for the judicial review of a decision of the Australian Information Commissioner (Information Commissioner) under s 41(1) of the Privacy Act 1988 (Cth) to dismiss a complaint made by her, in respect of an alleged breach of privacy by the Commissioner of Taxation by a particular officer within the Australian Taxation Office. 2 Ms McEwan has applied to "withdraw" that proceeding by an interlocutory application, filed earlier this month. She has not filed a notice of discontinuance in accordance with Form 48. However, it is clear to the point of demonstration that, having regard to her interlocutory application, as well as an exchange with her, that by "withdraw" in her interlocutory application, she means discontinue. 3 There is no point in insisting upon Ms McEwan filing a notice in Form 48. It is quite sufficient to deem the interlocutory application filed by her to take affect as if it were a notice in Form 48. 4 It is Ms McEwan's perfect right to discontinue a proceeding. In my view, she does not need leave to do this. That is because, having regard to r 26.12(2)(a)(ii) of the Federal Court Rules 2011 (Cth), the proceeding being one continuing on pleadings (there is a statement of claim filed). Pleadings have not yet closed (there is no defence filed as yet). 5 The effect however of r 26.12(7) is: Unless the terms of consent or an order of the court provide otherwise, a party who files a notice of discontinuance under subrule (2) is liable to pay the costs of each other party in the proceeding in relation to the claim or part of the claim that is discontinued. 6 There is no consent and, moreover, it was made clear by the Information Commissioner and the Commissioner of Taxation this morning that each sought his costs. The question therefore is whether or not to relieve Ms McEwan from the consequence for which r 26.12(7), prima facie, provides? 7 As to that, Ms McEwan bears an onus of showing why the usual order as to costs should not be made: see Francis v Allen & Unwin (No 2) [2015] FCA 229, at [20]. The conduct of the parties in a matter and the reasons for discontinuance are always relevant in relation to whether or not, as a matter of judicial discretion, to relieve a party from the consequence for which the rules, prima facie, provide: see McKenzie v State of South Australia [2006] FCA 891, at [6]. 8 Ms McEwan's position is that, having ascertained that it was not a particular officer within the Taxation Office who made the disclosure of which she complained, but another officer, she was compelled to discontinue the proceeding. 9 One ought not, in my view, at least in the ordinary course, express any concluded view about the substantive merits of a discontinued judicial review application in the context of adjudicating a costs controversy relating to discontinuance. It is true, as Ms McEwan put it, that the Information Commissioner's decision, as a matter of administrative satisfaction, to dismiss her privacy complaint, was made against the background of a particular understanding of a particular disclosure by a particular taxation officer. To that extent, if there were truly a misunderstanding by the Information Commissioner as to the identity of a particular tax officer making a disclosure, then that might provide occasion, upon revelation of the officer who, in fact, made the disclosure, for a quite reasonable discontinuance. But it appears here that whoever it was that made that disclosure made it for particular purposes. Those purposes informed the Information Commissioner in reaching a view as to the true construction of s 355-50 within sch 1 to the Taxation Administration Act 1953 (Cth) (Taxation Administration Act). The Information Commissioner made his decision about the disclosure in the circumstances as the Information Commissioner understood them. It has not been vacated. 10 For her part, Ms McEwan challenges that construction of that provision of the Taxation Administration Act in the proceedings she has sought to discontinue. The resultant justiciable controversy remains: Edwards v Santos Limited (2011) 242 CLR 421. 11 As it happens, in proceeding separately before the Court, namely, QUD199 of 2022, Ms McEwan seeks the judicial review of a separate decision by the Information Commissioner in respect of a separate complaint made against a particular understanding by the Information Commissioner of a particular disclosure of information by a particular officer of the Australian Taxation Office. For all that, in proceeding QUD181 of 2022, it appears to me that the factual foundation against which the Information Commissioner made the decision to dismiss the complaint, even if it transpired that that was under an error as to the identity of the disclosing taxation officer, was nonetheless one which permitted an agitation of the metes and bounds of what was authorised by the Taxation Administration Act or not authorised. 12 In other words, the earlier proceeding was one which was not rendered completely without utility by Ms McEwan's ascertaining that another officer of the Taxation Office made the disclosure, the subject of her grievance. Proceeding QUD181 of 2022 could still have served as a vehicle for agitating, meaningfully, the statutory construction point. Understandably, Ms McEwan has felt disposed to air her grievance on statutory construction against a different set of facts. But those facts do not appear to me, as they were before the Information Commissioner, in the later case, so very different as to render the earlier proceeding without utility. It is just a matter of personal choice. 13 In those circumstances, I am not persuaded that there is any good reason to vary the position for which the rules, prima facie, provide in respect of the costs of discontinuance. As I see it, there is no need for any positive order for costs, because the rules will take effect unless the Court has otherwise ordered. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.