Rahman v Ashpole

REASONS FOR JUDGMENT BUCHANAN J: 1 This judgment concerns a notice of motion seeking summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) ('the FC Act'). The notice of motion has been filed by the first and second respondents to the proceedings and is supported by the third respondent. 2 The proceedings were commenced by an 'application for an order of review' ('the application') under Order 54 of the Federal Court Rules. The application seeks to invoke the grounds of review set out in ss 5, 6 and 7 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act'). Indeed it seeks, indiscriminately and without any attempt at specificity, to invoke almost each and every possible ground of review provided in those provisions. 3 The decision with respect to which review is sought is contained in a letter dated 8 January 2007 written to the applicant, Mr Rahman, concerning a complaint which he made to the third respondent, the Privacy Commissioner, on 21 December 2006. The letter to Mr Rahman was signed by Ms Anna Dobkin, an Assistant Compliance Officer in the Compliance Section of the Office of the Privacy Commissioner. 4 Mr Rahman's complaint was that the Commonwealth Bank of Australia Limited ('CBA') (of which the first and second respondents are officers) had by the conduct of the first and second respondents disclosed his personal information to Centrelink. In her letter of 8 January 2007 Mr Dobkin informed Mr Rahman that it appeared his complaint did not constitute a breach of 'the privacy principles' and that she was therefore declining to investigate it. 5 In a letter dated 1 February 2007, sent to Mr Rahman before the application was filed (on 5 February 2007) Ms Dobkin reversed her earlier decision. She advised Mr Rahman, who had protested by letter faxed on 15 January 2007 against her earlier response, that she would make 'preliminary enquiries' into his allegations. 6 The term 'preliminary enquiries' comes from s 42 of the Privacy Act 1988 (Cth) ('the Privacy Act'). 7 Section 42 provides: '42 Preliminary inquiries Where a complaint has been made to the Commissioner, or the Commissioner accepts a complaint under subsection 40(1B), the Commissioner may, for the purpose of determining: (a) whether the Commissioner has power to investigate the matter to which the complaint relates; or (b) whether the Commissioner may, in his or her discretion, decide not to investigate the matter; make inquiries of the respondent.' 8 The inquiries to be made to decide whether there was power to investigate the matter, or it should not be investigated as a matter of discretion, were inquiries, in effect, of CBA. 9 In evidence before me on the notice of motion the first respondent, Ms Ashpole, deposed to the following: '6. On 12 August 2006, the Bank was served with a section 196 notice from Centrelink ("statutory notice"). The statutory notice required the production of statements for loan account number 253350500 ("account statements") held by Mr Rahman, from 1 August 2005 to date. A copy of that notice appears at pages 1 to 3 of exhibit LRA-1.' 10 The notice from Centrelink was in the following terms: 'Dear Sir,Madam, Account Information - Rahman - Loan Number 253350500 Your assistance is requested in providing information that is relevant to a person's entitlement to social security payments. Would you please provide the following information: • Statements showing the outstanding balance for the loan account 253350500 of Mr Mohammad Rahman of 15 Troopers Mews, Holsworthy NSW from 1 August 2005 onwards. Please return the information as soon as possible but within 14 days after the day on which this letter is given to you. This is a notice under section 196 of the Social Security (Administration) Act 1999. Sections 192 and 196 of the Act empower the Secretary or a delegate to require any person to give information relevant to Centrelink customers receiving their correct entitlement. Information given to us is strictly confidential. However, your answers may be supplied to Mr Mohammad Rahman if requested under the Freedom of Information Act. If you do not want your answers released to Mr Mohammad Rahman please attach a statement explaining your reasons. These will be taken into account if a request is made under the Freedom of Information Act. If you need to discuss this further please phone Hannelore Schuster on (02) 9244 6256. Thank you for your assistance in this matter.' (emphasis in original) 11 The information sought was provided to Centrelink on 23 August 2006. Mr Rahman was informed by letter the same day that this had occurred. It is apparent that this information was conveyed to Ms Dobkin. 12 Subsequent to her preliminary inquiries Ms Dobkin wrote again to Mr Rahman on 28 February 2007. That letter reads as follows: 'Dear Mr Rahman, PRIVACY COMPLAINT AGAINST COMMONWEALTH BANK OF AUSTRALIA LIMITED I refer to your correspondence received on 21 December 2006 in which you allege that Commonwealth Bank of Australia Limited (CBA) has interfered with your privacy by disclosing your personal information to Centrelink. As you are aware from my letter to you dated 8 January 2007, I have treated your letter as a complaint under section 36 of the Privacy Act 1988(Cth) (the Act). In this letter, I advised you that while the Act gives the Commissioner the power to investigate complaints about breaches of the Act, section 41(1)(a) gives her the discretion not to investigate a complaint if she is satisfied that the act or practice complained about is not an interference with privacy under the Act. I also advised you that Schedule 3 of the Act provides for the National Privacy Principles (NPPs) which regulate the management of personal information held by some private sector organisations, including many banks. Specifically, NPP 2.1 limits the circumstances in which personal information may be used or disclosed. Relevantly, NPP 2.1 (g) permits an organisation to disclose personal information where that disclosure is "required or authorised by or under law." In this letter I also advised you that Centrelink's exercise of its statutory powers to compel documents from CBA would be consistent with CBA being permitted by NPP 2.1 (g) to disclose documents to Centrelink. With this in mind, I advised that your complaint did not appear to constitute an interference with privacy under the Act, and that I was declining to investigate your complaint on this basis. Subsequent to further correspondence received from you on 15 January 2007, I advised you in my letter dated 1 February 2007 that this Office had reassessed your complaint and decided to make preliminary enquiries into your allegations. In the course of conducting preliminary enquiries, I obtained a copy of the Centrelink notice which was issued on 12 August 2006 and sent to CBA. It appears this notice was sent under section under section [sic] 196 of the Social Security (Administration) Act 1999 (Cth). It appears that this notice required CBA to provide Centrelink with the following information within 15 days of receipt: "Statements showing the outstanding balance for the loan account 253350500 of Mr Mohammad Rahman of 15 Troopers Mews, Holsworthy NSW from 1 August 2005 onwards." It appears that sections 192 and 196 of the Social Security (Administration) Act 1999 (Cth) set out Centrelink's powers to require CBA to produce such information. Therefore, it appears that in this instance NPP 2.1 (g) permits CBA to disclose the specified personal information to Centrelink. I therefore take the view that since the aforementioned disclosure was required by law, there does not appear to have been an interference with your privacy as defined by the Act. It is for this reason that I am declining to investigate your complaint against CBA under section 41(1)(a) of the Act. My file in this matter is now closed. If you consider that the process by which this Office made its decision was unfair you can submit an application to appeal the decision to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the AD(JR) Act). Appeals under the AD(JR) Act must be made within 28 days of the date of the final decision and may incur an application charge. Please contact the Federal Court registry in your State or Territory for more information or visit . You can also make a complaint to the Commonwealth Ombudsman about an unjust or unfair decision made by this Office, for which there is no charge. For more information contact the Commonwealth Ombudsman's Office on 1300 362 072 or visit . Thank you for bringing this matter to the attention of the Privacy Commissioner, and I am sorry that I am unable to assist you further. Yours sincerely Anna Dobkin Assistant Compliance Officer Compliance Section' 13 Section 3 of the ADJR Act defines 'decision to which this Act applies' to include the following: 'decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition): … (b) by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment.' It is accepted that the definition would extend to a relevant decision made by Ms Dobkin. 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. 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. 19 The 'National Privacy Principles' are set out in Schedule 3 to the Privacy Act. Principle 2 provides relevantly as follows: '2. Use and disclosure 2.1 An organisation must not use or disclose personal information about an individual for a purpose (the secondary purpose) other than the primary purpose of collection unless: … (g) the use or disclosure is required or authorised by or under law.' 20 The information provided by CBA to Centrelink was provided pursuant to a notice from Centrelink relying upon ss 192 and 196 of the Social Security (Administration) Act 1999 (Cth) (Social Security (Administration) Act). Section 192 provides: 'General power to obtain information The Secretary may require a person to give information, or produce a document that is in the person's custody or under the person's control, to the Department if the Secretary considers that the information or document may be relevant to one or more of the following: (a) the question whether a person who has made a claim for a social security payment is or was qualified for the payment; (b) the question whether a social security payment is payable to a person who is receiving the payment; (c) the question whether a social security payment was payable to a person who has received the payment; (d) the rate of social security payment that is or was applicable to a person; (da) the question whether a person who has made a claim under the Social Security (Fares Allowance) Rules 1998 was eligible for fares allowance; (e) the administration of an agreement between Australia and a foreign country on social security matters; (f) the question whether a person who has been granted a concession card is or was qualified for the card; (g) the question whether a person who has applied for financial supplement is eligible for the supplement; (h) the question whether a person who has obtained a financial supplement is or was eligible for the supplement; (i) the determination of the maximum amount of financial supplement that a person is eligible for; (j) the question whether an assurance of support given under Chapter 2C of the 1991 Act should be accepted or rejected.' 21 Section 196 provides: 'Written notice of requirement (1) A requirement under this Division must be made by written notice given to the person of whom the requirement is made. (2) The notice: (a) may be given personally or by post or in any other manner approved by the Secretary; and (b) must specify: (i) how the person is to give the information or produce the document to which the requirement relates; and (ii) the period within which the person is to give the information or produce the document to the Department; and (iii) the officer (if any) to whom the information is to be given or the document is to be produced; and (iv) that the notice is given under this section. (3) The period specified under subparagraph (2)(b)(ii) must not end earlier than 14 days after the notice is given. (4) The notice may require the person to give the information by appearing before a specified officer to answer questions. (5) If the notice requires the person to appear before an officer, the notice must specify a time and place at which the person is to appear. The time must be at least 14 days after the notice is given.' 22 Mr Rahman's only answer to this statutory scheme, as I understood the submissions which he made both in writing and orally, was to argue that the only 'person' compellable under s 192 to provide information or documents was a person identified in any of paragraphs (a) to (j) of the section - i.e. a person who had made a claim or application, was receiving payment, had been granted a concession card, had obtained a financial supplement, etc. 23 In my view there is no foundation for this suggested limitation, which would deprive s 192 of its utility in many circumstances. Section 22 of the Acts Interpretation Act 1901 (Cth) provides (in s 22(1)(a)): '(1) In any Act, unless the contrary intention appears: (a) expressions used to denote persons generally (such as "person", "party", "someone", "anyone", "no-one", "one", "another" and "whoever"), include a body politic or corporate as well as an individual.' 24 This meaning yields to a contrary intention but none appears in s 192 or s 196 of the Social Security (Administration) Act. If, as I accept, it was within the power granted by s 192 to require CBA to provide to Centrelink the information specified in the s 192 notice served on 12 August 2006, any challenge to Ms Dobkin's decision, that the matter should not be further investigated because there had been no interference with Mr Rahman's privacy, is untenable. Even if he were to amend the application there would be no reasonable prospect that the application could succeed against the third respondent. 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. 26 Each of the respondents sought their costs. There is no reason why some order for costs should not be made in their favour. 27 Counsel for the first and second respondents, however, made an application for their costs on an indemnity basis. There is no reason to think that either of them will have to bear the costs of their representation personally. They were each represented in the proceedings by Mr O'Sullivan, General Counsel for CBA who briefed counsel on their behalf. However the fact that CBA, and not Ms Ashpole and Mr Barker, will meet their costs is no reason to deny an application for indemnity costs if it is otherwise justified. 28 The jurisdiction of the Court to order costs is conferred by s 43 of the FC Act. The discretion is a general one. The Court takes special care when asked to make an order for indemnity costs against an unrepresented litigant but there is no bar to such an order (see Bhagat v Global Custodians Ltd [2002] FCA 223 at [55] - [60] and Wu v Avin Operations Pty Ltd (No 2) [2006] FCA 792 at [41] - [46]). 29 Reference is frequently made, when indemnity costs are sought, to the judgment of Sheppard J in Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 and to the principles distilled by his Honour at 232 - 234. These principles remain a reliable guide. 30 More recently a Full Court said in Hamod v New South Wales (2002) 188 ALR 659 at [20]: 'Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs.' 31 This statement of principle was recently cited and followed by Finn J in Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179. Finn J said at [6], inter alia, 'the application was a hopeless one and ought never have been brought in the form it was'. I think that observation applies equally to the case with which I am dealing in this judgment. I can see no basis for the application whether in an unamended or an amended form. Mr Rahman's insistence on pursuing it in an unamended form rendered it, if this was possible, even more hopeless than otherwise. I think that the first and second respondents are entitled to be protected so far as possible, if they seek it, against the unnecessary expenditure of costs which Mr Rahman's application has caused. 32 As indemnity costs have been sought by the first and second respondents and as that application falls within well accepted principles in my view it would be an appropriate exercise of discretion to award them. 33 Accordingly I will award indemnity costs to the first and second respondents and party/party costs to the third respondent. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan J.