Rahman v Ashpole

31 As indicated in paragraph 13 of the primary judge's reasons for judgment, it is accepted that the definition of 'decision to which this Act applies' would extend to a relevant decision made by Ms Dobkin. 32 In arguing the application for leave to appeal, the applicant cited paragraph 15 of the primary judge's reasons for judgment as containing the 'main issue'. It is appropriate to set out the terms of paragraphs 14 to 18 inclusive of the primary judge's reasons and the primary judge's summary at paragraph 25, which were as follows: '14 However, on every occasion that the matter has been before the Court Mr Rahman has insisted that his application is brought only against the letter from Ms Dobkin dated 8 January 2007. With this in mind initially, the conclusion seems to be inevitable that the proceedings against the Privacy Commissioner have no prospect of success. 15 In my view the decision conveyed to Mr Rahman on 8 January 2007 was revoked by letter dated 1 February 2007, before the proceedings were commenced. As a result the application filed by him is moot. As he has insisted that the proceedings should go forward without amendment it is inevitable that I should conclude that they have no reasonable prospect of succeeding against the third respondent. [I should add that the applicant confirms that he so insisted when the matter was before the primary judge.] 16 They have no reasonable prospect of succeeding either against the first or second respondents. There are a number of reasons for this conclusion. In the first place, there is no basis to think that either of them made a decision to which the ADJR Act applied. Moreover, s 8 of the Privacy Act renders their conduct, if it were otherwise actionable, conduct of CBA. The obligations owed by CBA as an "organisation" identified in s 6C of the Privacy Act to comply with the "National Privacy Principles" (see s 16A of the Privacy Act) do not appear to me to extend to the first and second respondents independently of CBA. In my view their joinder individually to the proceedings is quite misconceived. However the matter is viewed, there is no reasonable prospect that the application could succeed against them and they are entitled to summary judgment also. 17 Even had Mr Rahman amended the proceedings to focus attention upon Ms Dobkin's letter of 28 February 2007 the application would nevertheless have no reasonable prospects of succeeding against any of the respondents. 18 So far as the first and second respondents are concerned that is for the reasons which I have already expressed. So far as the third respondent is concerned it is for the reason that Ms Dobkin appears to have correctly identified the legal position. … 25 In my view Mr Rahman's contentions and his application, wherever they are, or might be, directed are misconceived and without any foundation. It is inevitable that the application be dismissed for that reason and I will so order.' 33 It is demonstrably clear that the applicant has no reasonable prospect of successfully prosecuting his case for review under ss 5, 6 and/or 7 of the AD(JR) Act. Nothing has been said in the applicant's submissions suggesting that the decision of the primary judge was attended with sufficient doubt to warrant its reconsideration in the circumstances. Accordingly, the application for leave to appeal should be dismissed in relation to the substance of the applicant's case. 34 This leaves for consideration the orders for costs which were made by the primary judge. The applicant urges that his Honour fell into error in ordering that the costs of the first and second respondents be paid on an indemnity basis. 35 The relevant principles to be observed in respect of costs are conveniently summarised in the judgment of Sheppard J in Colgate-Palmolive Company v Cussons Pty Limited [1993] 46 FCR 225 at 230-234. The ordinary rule is that where the Court orders that the costs of one party to litigation be paid by another party the order is for payment of those costs on the party and party basis. In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court departing from the usual course. The existence of particular facts and circumstances capable of warranting the making of an order for payment of costs on the indemnity basis does not mean that judges are necessarily obliged to exercise their discretion to make such an order. 36 Costs are always at the discretion of the primary judge. Provided that the discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case, its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice. 37 It was plainly open to the primary judge in the present case to treat the applicant's case as a hopeless one. In Gersten v Minister for Immigration & Multicultural Affairs [2001] FCA 260 at [19] a Full Court consisting of Lee, Carr and Sackville JJ said: 'If an action is commenced when proper advice would indicate that the proceeding has no prospect of success, a discretion to award indemnity costs is ordinarily enlivened.' 38 In the circumstances of the present case the discretion to order that the applicant pay the costs of the first and second respondents on an indemnity basis was clearly enlivened. 39 In my opinion no manifest error or injustice is apparent in the manner in which the discretion was exercised by the primary judge. In the circumstances there is no warrant for a grant of leave to appeal in respect of the basis on which costs were awarded by the primary judge. 40 As the applicant's proceeding had no prospect of success, it follows that a like order for costs should be made in respect of the dismissal of the application for leave to appeal as was made in respect of the application for summary judgment under s 31A(2) of the Federal Court of Australia Act. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate: Dated: 20 July 2007 The applicant appeared in person.

Counsel for the First and Second Respondents: D A McLure

Solicitor for the First and Second Respondents: J K O'Sullivan

Solicitor for the Third Respondent: A Markus of Australian Government Solicitor

Date of Hearing: 16 July 2007

Date of Judgment: 16 July 2007