Saffari v Latitude Financial Services Australia Holdings Pty Ltd

The current proceedings

1. On 2 July 2024 Mr Saffari filed an interlocutory application for an extension of time and leave to appeal. That application was supported by an affidavit from Mr Saffari which explained the delay and annexed a draft notice of appeal. In short, Mr Saffari's explanation was that he had filed a notice of appeal within the time prescribed by the Rules (28 days) but the notice of appeal was rejected for filing because the judgment of the primary judge was interlocutory and he required leave to appeal. On 23 August 2024 he filed an interlocutory application seeking orders that the judgment "be deemed to have been [f]inal [j]udgment"; that "leave is not required for the [a]ppeal"; and that the notice of appeal he lodged on 18 June 2024 be accepted for filing.
2. By consent, orders were made to facilitate a determination of both interlocutory applications without an oral hearing. For the reasons that follow, both applications should be dismissed.

The primary judge's reasons

1. The primary judge dealt first with the application for leave to amend and to file an amended originating application. Her Honour dismissed the applications on the grounds that Mr Saffari had failed to articulate an arguable claim that would entitle him to any of the forms of relief he sought and the proposed statement of claim was confusing, lacked sufficient clarity, and was "legally flawed" (J[21]). She concluded that Mr Saffari's case had no reasonable prospects of success (J[55]). She then held that the joinder application had to be refused with costs on the basis that no reasonable cause of action was pleaded against any of the proposed respondents (J[56]).
2. Her Honour said that the claims in negligence were untenable because, as a matter of law, no claim in negligence can succeed unless an applicant has suffered actual damage and Mr Saffari did not claim to have suffered any actual loss or damage, merely a risk of loss or damage (J[24]). Her Honour considered the references to Parts 2 and 3 of the Civil Liability Act 2002 (NSW) were irrelevant as they relate to claims for personal injury and Pt 3 to a claim for damages for mental harm resulting from negligence and Mr Saffari did not allege that he had suffered personal injury or mental harm (J[26]). In these circumstances her Honour said it was unnecessary to consider "the other manifest deficiencies in the proposed pleadings", including Mr Saffari's failure to articulate the factual basis for his claim that the respondent and the prospective respondents owed him a duty of care or breached such a duty.
3. The primary judge then turned to the claims in contract, finding that "no arguable contractual claim" had been articulated against the respondent (J[30]) or LFA (J[31]). While Mr Saffari claimed that LFA was under a contractual obligation not to cause him harm, he did not identify any contractual document or other communication in which an obligation in those terms had been agreed.
4. Her Honour held that the claims under the Privacy Act 1988 (Cth) were misconceived and untenable because the statutory criteria for the relief claimed were not alleged and could not be satisfied (J[32]-[38]) and because breaches of an Australian Privacy Principle are not directly actionable in the Court (J[39]-[40]).
5. Her Honour also identified numerous problems with the pleading of the claims under the Corporations Act 2001 (Cth) and the Australian Consumer Law (contained in Sch 2 to the Competition and Consumer Act 2010 (Cth)) in the proposed statement of claim (J[48]-[54]) and numerous other deficiencies (J[55]).
6. With respect to the application for default judgment, the primary judge observed that it was not in issue that that the originating application seeks damages and no statement of claim (or concise statement) was filed with the originating application or thereafter, despite her Honour having explained the importance of filing the statement of claim and what it should address at the first case management hearing months earlier (J[60]).
7. Her Honour acknowledged that Mr Saffari had attempted to file a statement of claim but noted that it had not been accepted for filing (J[61]). Her Honour went on to say(at J[61]-[62]): Those attempts also occurred in circumstances where the fundamental problems with Mr Saffari's claim against the respondent have been explained clearly to him in correspondence from the respondent's solicitors on no fewer than four occasions, as I have earlier held, which were not remedied by the proposed pleadings. Further, the open letter of 8 February 2024 from the respondent's solicitors to Mr Saffari sought his agreement to discontinue the proceedings with no order as to costs and unequivocally stated that the respondent would apply to have the proceedings summarily dismissed if he did not do so. However, rather than addressing the legitimate difficulties raised by the respondent in its correspondence, Mr Saffari has proposed now three different versions of the statement of claim, none of which has even identified any actual loss or damage despite claiming a substantial amount in compensation. Mr Saffari has also sought to join three new respondents. Moreover, there have already been three case management hearings in the proceeding with associated costs for the respondent and utilisation of the resources of this Court but no progress in terms of Mr Saffari addressing the problems with his claims.
8. In these circumstances, the primary judge accepted the respondent's submission that Mr Saffari's default had placed a disproportionate burden on the resources of the Court, the respondent and the prospective respondents, such that to give Mr Saffari "yet another opportunity" to try and articulate an arguable cause of action would not be consistent with the overarching purpose of s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

The proposed appeal

1. By his draft notice of appeal, Mr Saffari contends that the primary judge erred in fact and law by dismissing his interlocutory applications, erred in law by dismissing the proceeding under r 5.23(1)(b) of the Rules; and erred in law by awarding costs to non-parties. The grounds of appeal read as follows (without alteration):
2. The Primary Judge made an error of fact that no Statement of Claim "has been subsequently filed" [in compliance with the Primary Judge's orders] contrary to the established facts and documents in evidence.
3. The Primary Judge made an error of fact that the filed SOC "…named as respondents, and pleaded allegations against, entities which were not parties" where the evidence is to the contrary.
4. The Primary Judge made errors of fact and law in finding that no reasonable cause of action is pleaded against "any proposed respondents" where the evidence is to the contrary.
5. The Primary Judge made errors of fact and law in finding that Latitude Finance Australia did not have any obligations to not cause harm to the Appellant under a contract or under any Australian law.
6. The Primary Judge made errors of law in finding that the Respondents are under no legal obligation to protect the Appellant's private information or owed the Appellant obligations of confidence under any Australian law.
7. The Primary Judge made errors of law in misusing "undefined" provisions of ss 31A, 37M and 37N of the Federal Court of Australia Act 1976 (Cth) in circumstances where the Cause of Action was admitted by Latitude from the outset at the first directions hearing as defined by s 191 of the Evidence Act 1995 (Cth).
8. The Primary Judge made errors of law in failing to apply the Common Law principle of loss or damage.
9. The Primary Judge made errors of law in finding that the pleadings do not meet the statutory criteria for claims under the Privacy Act 1988 (Cth), the Corporations Act 2001 (Cth), the Competition and Consumer Act 2010 (Cth) and the Common Law.

Is leave to appeal required?

1. Section 24(1)(a) of the FCA Act provides that the Court has jurisdiction to hear and determine "appeals from judgments of the Court constituted by a single judge exercising the original jurisdiction of the Court". "Judgment" is defined in s 4 to include a "judgment, decree or order, whether final or interlocutory …".
2. Section 24(1A) relevantly provides, however, that an appeal shall not be brought from a judgment of the Court referred to in s 24(1) that is an interlocutory judgment unless the Court or a judge gives leave to appeal. There is an exception for appeals from interlocutory judgments affecting the liberty of an individual or in proceedings relating to contempt of court (s 24(1C)), but this is not such a proceeding. Importantly for present purposes, s 24(1D) relevantly provides that: The following are taken to be interlocutory judgments for the purposes of subsections (1A) and (1C): … (b) a decision granting or refusing summary judgment under section 31A.
3. Mr Saffari either overlooked or turned a blind eye to s 24(1D). He relied on the Full Court's judgment in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited (2008) 167 FCR 372 in which the Full Court held that an order giving summary judgment in relation to some claims is interlocutory and an order giving summary judgment in relation to all claims is final. However Parliament can legislate to change the law. Since the amendments to the FCA Act, introduced by the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth), which commenced in 2010, the statement by the Full Court that an order giving summary judgment in relation to all claims is final is no longer the law. Since then, the law on this subject is as stated in s 24(1D)(b). Mr Saffari cited [88] of the Explanatory Memorandum to the Bill which referred to Jefferson. But he paid no regard to the last two sentences of the paragraph where, after referring to Jefferson, the Explanatory Memorandum reads: Decisions under section 31A will require leave to be appealed. The amendments are intended to provide clarity and avoid the difficult logic of Jefferson.
4. Put simply, the Explanatory Memorandum pointed out that one of the purposes of s 24(1D) was to override the Full Court's decision that an order giving summary judgment in relation to all claims is a final order.
5. Furthermore, for the purposes of s 24(1A), where multiple orders are made, some of which are final in nature and some interlocutory, all the orders are interlocutory: Anying Group Pty Ltd v Wang [2012] FCA 702 at [8] (Flick J). In Wang at [8] Flick J explained: When addressing a provision previously found in s 33 of the Federal Court of Australia Act providing for appeals to the High Court from a "final judgment", Gibbs CJ in Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767 concluded at 767-768: … What is plain is that the judgment of that court comprised two orders which, viewed by themselves and apart from the rest of the judgment, were final orders, and one order which was plainly interlocutory. The result of the judgment as a whole was that some of the questions in issue in the case were determined and others were not. The question then is whether a judgment of that kind is a final judgment within the meaning of s 33(4) of the Federal Court of Australia Act, and s 35(3) of the Judiciary Act as they stood at the material time. The test for determining whether a judgment is final … is whether the judgment finally determines the rights of the parties, and the authorities have held that the court in applying the test must have regard to the legal rather than the practical effect of the judgment. So that the question in the present case is whether the whole judgment finally determined, in a legal sense, all the rights of the parties that were at issue in these proceedings. And the answer is, plainly, that it did not, because it left undetermined the question whether any, and what, damages were payable … Murphy and Wilson JJ agreed. The same approach has been taken when determining whether leave to appeal is required where an appeal is filed in respect to decisions of single Judges of this Court: Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90 at 100-101 per French J (as his Honour then was); NZI Securities Australia Ltd v Poignand (1994) 51 FCR 584 at 594 per Beaumont, Gummow and Carr JJ; Thai v Commissioner of Taxation (1994) 53 FCR 252 at 260-261 per Lockhart, Beaumont and Whitlam JJ.
6. It is beyond doubt that the judgment of the primary judge was an interlocutory judgment as the orders did not finally determine the rights of the parties in the substantive proceeding: Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248 (Gibbs CJ); Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at [45] (French J), Beaumont and Finkelstein JJ agreeing at [1] and [99]; Bienstein v Bienstein (2003) 195 ALR 225 at [25] (McHugh, Kirby and Callinan JJ). If the legal effect of the judgment is final, the judgment or order is final; if not, it is interlocutory: Carr at 248; Re Luck [2003] HCA 70; 203 ALR 1; 78 ALJR 177 at [4] (McHugh ACJ, Gummow and Heydon JJ) at [4].
7. An order is interlocutory "when it stays or dismisses an action or refuses leave to commence or proceed with an action because it is frivolous, vexatious, an abuse of process of the court or does not disclose a reasonable cause of action": Re Luck at [9].
8. Moreover, if it is open to the party affected to file another originating application, the legal effect of the order or judgment is not final, even if the second application would be doomed to fail because the substantive issues it raises were decided against it in the first application: Plaintiff S164/2018 v Minister for Home Affairs [2018] HCA 51; 361 ALR 8; 92 ALJR 1039 at [11] (Edelman J).
9. That is the case here. Rule 5.23 appears in Division 5.2 of the Rules. Note 2 to r 5.23 also provides that an order or judgment under this Division may be set aside or varied. Notes in an Act form part of the Act: Acts Interpretation Act 1901 (Cth) (AIA), s 13. The Rules are not an Act but, unless the contrary intention appears, the AIA applies to the Rules as if they were an Act and to each provision of the Rules as if it were a section of the Act: FCA Act, s 59(4) and Legislation Act 2003 (Cth), s 13(1).
10. For these reasons an order dismissing a proceeding under r 5.23 is interlocutory: Dauget v Centrelink [2015] FCA 1212 at [53] (Murphy J); Gill v iiNet Limited [2016] FCA 1273 at [27] (Kenny J).
11. The joinder decisions were also interlocutory decisions: E Pty Ltd & Anor v Zunino [2020] FamCAFC 216 at [10] (Ainslie-Wallace, Ryan and Tree JJ). So, too, was the costs order: Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2019] FCA 1458 at [23] (Jagot J) and the authorities referred to there.
12. Mr Saffari relies on s 24(1E), which relevantly provides that: The fact that there has been, or can be, no appeal from an interlocutory judgment of the Court in a proceeding does not prevent: (a) a party from founding an appeal from a final judgment in the proceeding on the interlocutory judgment[.]
13. Section 24(1E) does not assist. It is clear from the authorities to which I have referred that a final judgment is one which determines in a legal sense all the rights of the parties in issue in the proceedings. Her Honour's judgment did not do that.
14. As Pagone J explained in Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 507 at [4]: It may seem curious to a litigant who is not trained in law to describe as "interlocutory" a decision which effectively brings an end to a proceeding, but such a decision is interlocutory, and not final, within the meaning of s 24(1A), because the judgment from which the appeal is sought was not made on the merits of the case.
15. Consequently, the interlocutory application filed on 23 August 2024 must be dismissed.

Should an extension of time and leave to appeal be granted?

1. I now turn to the application for an extension of time and leave to appeal filed on 2 July 2024.
2. The delay is short. The respondents are not prejudiced by it. And the delay has been adequately explained. The respondents did not argue otherwise. For these reasons, if there were merit in the leave application, that is to say, if Mr Saffari could show that there is a reasonably arguable appealable error in the reasons of the primary judge, I would grant his application. For the following reasons, however, I am satisfied that there is not.

Mr Saffari's argument

1. Mr Saffari submitted that the proposed appeal raised an important issue, The issue he identified was that, if the judgment were not overturned, "the incompetent precedent" would have been set "that corporations in Australia cannot be held to account for breach of privacy or breach of confidence when they fail to protect private data because of the question of quantum of damages with implications for future privacy breaches and any class action against the [r]espondents that may be brought when the OAIC [the Office of the Australian Information Commissioner] stops delaying performing their mandated duty".
2. Mr Saffari's submissions on the merits of the proposed appeal were brief. In substance, he submitted that the primary judge erred in exercising the power under s 31A of the FCA Act to summarily dismiss the proceeding when the power should be exercised with caution and that cases such as this, which involve complex issues of law and fact, are unlikely to be suitable for resolution by summary judgment, citing Spencer v Commonwealth of Australia (2010) 241 CLR 118. He contended that the decision to dismiss the proceeding was "wholly inconsistent with the law", particularly when no defence had been filed, no evidence adduced, and no finding of fact made, and when Mr Saffari had not been given any opportunity to cure any deficiencies. Aspects of the proposed grounds were addressed in the submissions without reference to the grounds to which they were said to relate, and I will refer to them in the context of the grounds to which they apparently relate when I consider whether any of the grounds is reasonably arguable.

The powers

1. Rule 35.13 stipulates that an application for leave to appeal from a judgment or order must be filed within 14 days after the date judgment is pronounced or the order made. The power to extend a time fixed by the Rules is conferred by r 1.39, which relevantly confers a discretionary power to extend time before or after the time expires and irrespective of whether an application is made before the time expires.
2. Section 37M(3) of the FCA Act provides that the Rules and, relevantly, provisions of the FCA Act (together the civil practice and procedure provisions) must be interpreted and applied, and any power conferred or duty imposed by them must be exercised or carried out, in the way that best promotes the overarching purpose of the civil practice and procedure provisions. The overarching purpose is to facilitate the just resolution of disputes according to law and as quicky, inexpensively and efficiently as possible: FCA Act, s 37M(1). Section 37M(2) provides that the overarching purpose includes the following objectives: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

The principles

1. While the Court has a broad discretion to extend the time for leave to appeal, in general leave will only be granted if the decision in question is attended by sufficient doubt to warrant its reconsideration on appeal and substantial injustice would result if the decision is wrong and leave were refused: Decor Corporation Pty Ltd v Dart industries Inc (1991) 33 FCR 397 at 398 (Decor v Dart). Both limbs of the test must be satisfied: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; 81 ATR 36 at [5] (Ryan, Stone and Jagot JJ). It is true, as Mr Saffari pointed out in his submissions, that leave has been granted in cases raising an issue of general importance. But, like any power conferred by the civil practice and procedure provisions, the power to extend time and the power to grant leave to appeal must be exercised in the way that best promotes the overarching purpose of the civil practice and procedure provisions. Consequently, in the absence of a reasonably arguable ground, leave to appeal should be refused.
2. Although the decision to grant default judgment had serious consequences for Mr Saffari, it was a discretionary decision on a matter and practice and procedure. In Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 177 Gibbs CJ, Aickin, Wilson and Brennan JJ observed that courts exercise particular caution in reviewing decisions relating to practice and procedure and endorsed the remarks of Jordan CJ in In re the Will of FB Gilbert (dec.) (1946) 46 SR(NSW) 318 at 323: [T]here is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.
3. The present case falls into the former category in that it involves exercises of discretion on questions of practice or procedure rather than an exercise of discretion which determines substantive rights.
4. In Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274, a case involving a challenge to an order dismissing a proceeding for want of prosecution after repeated non‑compliance with court orders, Heydon JA explained at [45] (Sheller JA and Studdert AJA agreeing): Any attack on decisions of that character must fail unless it can be demonstrated that the decision-maker: (a) made an error of legal principle, (b) made a material error of fact, (c) took into account some irrelevant matter, (d) failed to take into account, or gave insufficient weight to, some relevant matter, or (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning. Even though this Court might conclude that it would have exercised the discretion differently if the discretion had been conferred on it in the first instance - might have adjourned the matter so as to permit the defendants to consider the late-supplied particulars, or might have held the plaintiff to the old particulars, or might have fixed one more "final" date for outstanding matters to be completed by - any such conclusion would be immaterial. The law committed the exercise of the discretion to [the primary judge]. The law permits interference with his exercise of the discretion in only the limited circumstances just described. See House v R (1936) 55 CLR 499 at 504-505; Lovell v Lovell (1950) 81 CLR 513 at 518-519 and 532-533; Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 at 627. These principles are applied to a wide range of discretionary judgments, but their application to this specific field, dismissal for want of prosecution, was approved by this Court in Stollznow v Calvert [1980] 2 NSWLR 749 at 751
5. In the present case, none of the proposed grounds of appeal clearly articulates such an error and none rises any higher than a "mere assertion of error expressed in the most general terms": Nasir v Reynolds (Application for leave to appeal) [2024] FCA 865 at [16] (Wigney J). Furthermore, no issue of general importance is raised.

The proposed appeal from the joinder applications

1. Any appeal from the decision to dismiss the joinder application would be bound to fail as Mr Saffari has no right to appeal and no right to seek leave to appeal from those parts of the judgment and the relevant orders. The right to seek leave to appeal depends on the existence of a right of appeal: r 35.11. And s 24(1AA) of the FCA Act relevantly provides that an appeal must not be brought from a judgment of the Court if the judgment is a decision to join a party. The effect of s 24(1AA)(b)(i) is that no appeal can be brought whether by leave or as of right. Any such appeal would be incompetent: Dye v Commonwealth Securities Limited (No 2) [2010] FCA 817 (Nicholas J); Revill v John Holland Group Pty Ltd [2021] FCA 558 at [10]‑[17] (McKerracher J).
2. It follows that the extension of time and leave to appeal from the joinder applications must be dismissed.

Proposed grounds 1 and 2

1. It is convenient to deal with these grounds together.
2. By proposed ground 1 Mr Saffari alleges that the primary judge "made an error of fact that no Statement of Claim 'has been subsequently filed' [in compliance with the Primary Judge's orders] contrary to the established facts and documents in evidence" (original emphasis).
3. By proposed ground 2 Mr Saffari alleges that the primary judge erred in finding (at J[61]) that the filed statement of claim "named as respondents, and pleaded allegations against, entities which were not parties".
4. Both these grounds are hopeless.
5. As I mentioned in my opening remarks, at the first case management hearing on 10 August 2023, her Honour ordered Mr Saffari to file and serve a statement of claim by 15 September 2023. Mr Saffari lodged a statement of claim the same day with the Registry of the Court in accordance with r 2.21(1), but the application was not accepted for filing.
6. Mr Saffari submitted that the statement of claim was filed, pointing to a document (annexed to his submissions in chief) showing that it "has its own Lodgment ID" and asserting that it is "part of the Court's record". But the fact that a statement of claim is lodged with the Court for filing and retained on its computer system does not mean it is filed.
7. A document in an existing proceeding is not "filed" unless it is lodged with the Court in accordance with r 2.21(1) and accepted in the proper registry by being stamped as "filed": r 2.25. Rule 2.27 sets out the circumstances in which documents will not be accepted for filing. They include, relevantly: (a) it is not substantially complete; or (b) it does not substantially comply with these Rules; or (c) it is not properly signed; or (d) a Registrar has refused to accept the document; or (e) the Court has given a direction that the document not be accepted; or (f) the Court has given a direction that the document not be accepted without the Court's leave, and leave has not been obtained.
8. The Application Book contains no statement of claim bearing the Court's stamp and the very document Mr Saffari described as proof that the statement of claim was filed contains a "Registry Message" which proves that it was not. The Registry message is in the following terms: An email is being sent explaining the rejection.
9. The contents of the email were reproduced in Latitude's submissions and in his submissions in reply Mr Saffari did not dispute them. The email reads: The statement of claim has not been accepted for filing because it makes allegations of breaches of a duty against third parties who the applicant seeks to join pursuant to the interlocutory application dated 15 September 2023. In those circumstances, Justice Perry has asked me to convey that it would be premature to accept the statement of claim for filing until the application for leave to join DXC Technology Australia (Holdings) Pty Ltd and CrowdStrike Australia Pty Ltd as parties to the proceeding has been determined.
10. There is no doubt that the statement of claim lodged on 15 September 2023 pleaded allegations against non-parties. Mr Saffari did not argue otherwise. Rather, he submitted that "it would be untenable to consider everyone mentioned in a Statement of Claim as parties to the proceeding".
11. Rule 2.26 permits a Registrar to refuse to accept a document for filing if satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious. Mr Saffari could have applied to the Court for a review of the Registrar's decision but he did not and it is highly unlikely that such an application would have succeeded. Rather, on 10 January 2024 he applied for leave to file a different statement of claim, which contained various deletions and additions to the statement of claim he had tried to file in September 2023. On 12 February 2024 he applied for leave to file another proposed statement of claim, which was substantially the same as the version of 10 January 2024 but included allegations against LFA. Those statements of claim were contained in annexure B to each of the affidavits he filed in support of his interlocutory applications. Mr Saffari's submission that "two amended [s]tatements of [c]laim were subsequently filed and accepted for filing with lodgment IDs and are part of the Court's record" is incorrect. While the interlocutory applications and affidavits in support were lodged and accepted for filing, the inclusion of a proposed statement of claim as an annexure to an affidavit does not constitute filing the statement of claim. In any case, Mr Saffari's submission that that he filed two amended statements of claim is inconsistent with the making of the interlocutory applications seeking leave to file them. It was those statements of claim (the proposed statements of claim) which the primary judge refused him leave to file. In any event, as Latitude submitted, the decision by the primary judge to dismiss the proceeding against LFSA did not turn on the fact that the proposed statements of claim named other parties as respondents.

Proposed ground 3

1. By this ground Mr Saffari alleges that the primary judge erred in finding that no reasonable cause of action was pleaded against "any proposed respondent".
2. Since no application for leave to appeal may be made against any of the proposed respondents, for the reasons given above, this ground is doomed to fail.
3. In his application for leave to appeal Mr Saffari contended that the primary judge "erred in law awarding costs to non-parties" but he did not develop the point in his submissions. In any event, the contention is without merit as the Court's power to award costs extends to ordering costs for or against a non-party: see, for example, O'Keefe v Hayes Knight GTO Pty Ltd [2005] FCA 1559 at [19]-[24] (Nicholson J); Smith, in the matter of Peko Rehabilitation Project Pty Ltd (Receiver and Manager Appointed) (in liq) [2011] FCA 1448 at [16] (Murphy J); and Revill v John Holland Group Pty Ltd [2020] FCA 1633 at [39] (Jackson J).

Proposed ground 4

1. By this ground Mr Saffari alleges that the primary judge erred in finding that LFA did not have any obligations to not cause harm to Mr Saffari under a contract or under any Australian law.
2. It is unnecessary to consider whether this ground is meritorious because of Mr Saffari's inability to appeal the decision to refuse the joinder applications.

Proposed ground 5

1. By proposed ground 5, Mr Saffari alleges that the primary judge erred in finding that the respondents were "under no legal obligation to protect [his] private information or owed [him] obligations of confidence under any Australian law".
2. As Latitude submitted, that is an inaccurate characterisation of what her Honour said. She made no such finding. Rather, she held that the claim Mr Saffari made for an order under ss 25, 25A and 93 of the Privacy Act that the respondents pay damages to Mr Saffari was misconceived for the reasons she gave at J[33]-[38]. Her Honour's reasons disclose no arguable error.
3. In his submissions in reply Mr Saffari argued that Australian Securities and Investments Commission v RI Advice Group Pty Ltd [2022] FCA 496; 160 ASCR 204 (ASIC v RI) "created a right to sue for breach of privacy and confidence and [one] need not wait a lifetime for OAIC to make a determination to be able to take legal action which previously could be done only under ss 25 and 25A of the Privacy Act". He also submitted that the primary judge was "unfamiliar with ASIC v RI and failed to properly read [his] Submissions".
4. Mr Saffari is mistaken in thinking that the primary judge did not "properly read" his submissions or was unfamiliar with ASIC v RI.
5. Before the primary judge Mr Saffari argued that "[a] failure to have adequate risk management … to manage cyberattacks and hacking attempts and to detect, prevent and stop cyberattacks contravenes the Corporations Act". Her Honour referred to, and dealt with, those submissions at J[44]-[47] and the reasons she gave there are unassailable.
6. The submission Mr Saffari made on the present application that "ASIC v RI created a right to sue for breach of privacy and confidence" was not made below. In any event, the case did no such thing. Nor does it stand for such a proposition.
7. ASIC v RI concerned admitted contraventions of the general obligations of a financial services licensee under ss 912A(1)(a) and (h) of the Corporations Act to "do all things necessary to ensure that the financial services covered by the licence are provided efficiently, honestly and fairly" and to "have adequate risk management systems". They have no bearing on the applicant's privacy claims which were exclusively based on the Privacy Act. The proposed statements of claim did not include an allegation that s 912A had been contravened. In any case, as DXC submitted below, s 912A does not confer a private right to damages on third parties (like Mr Saffari) for breach by a financial services licensee of its licence obligations under s 912A. Section 1101B gives the Court the power to make orders in relation to contraventions of s 912A, but only on the application of ASIC.

Proposed ground 6

1. By this ground Mr Saffari alleges that the primary judge erred in law by "misusing" "undefined" provisions of ss 31A, 37M and 37N of the FCA Act "in circumstances where the Cause of Action was admitted by Latitude from the outset at the first directions hearing as defined by s 191 of the Evidence Act 1995 (Cth)". He submitted that the error was in dismissing the proceeding at an interlocutory stage in circumstances in which "the agreed fact" was "sufficient factual foundation of a Cause of Action as defined by s 191 …".
2. This ground is baseless. It rests upon a number of false premises.
3. First, s 31A relevantly confers a power on the Court to give judgment for a respondent against an applicant if the Court is satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of a proceeding. In his submissions he submitted, correctly, that the power to dismiss a proceeding under s 31A should be exercised with caution.
4. But her Honour dismissed the proceeding under r 5.23(1)(b), not s 31A. Latitude did not apply for summary dismissal. At the outset of the interlocutory hearing, its counsel explained that their contention was that the proceeding should be dismissed under r 5.23(1)(b) because, although Mr Saffari had attempted to file a statement of claim, he had not done so and the proposed statement of claim, being the statement of claim he now wanted to file, fails to disclose a reasonable cause of action against his client and was otherwise embarrassing.
5. Her Honour's only references to s 31A were made in the context of the joinder applications. She observed that to obtain an order for joinder it is necessary, though not sufficient, for a party to show that "that they have an arguable case against the proposed respondent, at least to the standard of being able to resist an application for summary judgment by the proposed respondent" (J[12]).
6. Second, s 191(2) of the Evidence Act 1995 (Cth) provides that evidence is not required to prove the existence of an agreed fact and may not be adduced to contradict or qualify an agreed fact without the leave of the Court. An agreed fact is defined in s 191(1) as "a fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding, to be disputed". The dispensation in s 191(2) does not apply unless the agreed fact is stated in an agreement signed by the parties or their legal representatives and adduced in evidence in the proceeding or with the leave of the court is stated by a party before the court with the agreement of all other parties: s 191(3).
7. Mr Saffari pointed to no such agreed fact and the application book does not include any signed agreement or transcript which discloses one.
8. Third, LFSA accepted that data pertaining to Mr Saffari was stolen but did not admit "any cause of action" or any claim he made against it. Indeed, it expressly denied that he had such a claim. Counsel for Latitude, Mr Atkin, told her Honour at a case management hearing on 2 May 2024: At the first directions hearing, your Honour asked me if there was any issue as to whether a data breach had occurred, and I said no, but for abundant clarity, my client denies any liability or breach of any legal obligation in connection with that data breach. I just wish to make clear that there's no admission of any kind in relation to that.
9. Her Honour confirmed as much by reference to the transcript of the first case management hearing.

Proposed ground 7

1. By proposed ground 7 Mr Saffari alleges that the primary judge "made errors of law in failing to apply the Common Law principle of loss or damage". The alleged errors are not particularised. Nor are they identified in Mr Saffari's submissions. It is not obvious what Mr Saffari means by "the Common Law principle of loss or damage".
2. In his submissions, however, Mr Saffari wrote: [W]hether it was even necessary to show damage was suffered to establish Causes of Action was addressed in [Mr Saffari's] Outline of Submissions with authorities cited.
3. This submission was accompanied by a footnote to para 67 of Mr Saffari's submissions to the primary judge which reads: It is not necessary to show that detriment has been suffered by Mr Saffari to establish cause of action in breach of confidence {N.R.M.A. v Stewart Geeson [2001] NSWCA 343; 40 ACSR 1 at [58]} & {NP Generations Pty Ltd v Feneley [2001] SASC 185; 80 SASR 151 at [21]}.
4. Neither case stands for the proposition it was said to support. The first concerned an application for an interlocutory injunction to restrain the publication of information said to be confidential. The second concerned the use by a person of a list of customers of the business of her former employer. In that case the Court said (at [21]) that "it seems that it is not necessary for a former employer to prove actual or apprehended detriment in order to recover a list of customers". I fail to see how that assists Mr Saffari.
5. The submissions made to the primary judge were advanced in support of Mr Saffari's claim under the Privacy Act. While he said that he "further and alternatively sought relief under 'Common Law Breach of Confidence'" he did not explain what he meant by that or plead a cause of action for breach of confidence. Nor did he explain how the principles said to be established by the authorities to which he referred had any bearing on the case he wished to prosecute as outlined in the documents upon which he relied. In other words, he did not articulate a coherent case that he had a cause of action in law for a breach of confidence, much less plead such a case in his proposed statements of claim.
6. Her Honour's observation that the mere exposure to the risk of damage in the future is not damage for the purposes of the law of negligence or under s 267(4) of the Australian Consumer Law is unquestionably correct. As her Honour said, citing Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185 at [124] (Crennan, Bell and Keane JJ), "[d]amage is the gist of the cause of action in negligence". In other words, damage is an essential element of the cause of action, without which the cause of action is incomplete. It is therefore a material fact, which must be pleaded. Her Honour cited a number of other authorities to which it is unnecessary to refer. The proposition is a basic one. An applicant's entitlement to, and a respondent's liability for, damages cannot be established without proof of damage. For the reasons given by her Honour at [54], the position is no different under the Australian Consumer Law.

Proposed ground 8

1. In the final ground Mr Saffari alleges that the primary judge "made errors of law in finding that the pleadings do not meet the statutory criteria for claims under the Privacy Act 1988 (Cth), the Corporations Act 2001 (Cth), the Competition and Consumer Act 2010 (Cth) and the Common Law".
2. Mr Saffari does not identify any error of law in her Honour's reasons in the (draft) notice of appeal and, apart from the question raised by proposed ground 7, neither does he do so in his submissions.

Conclusion

1. None of the proposed grounds of appeal is reasonably arguable. Any appeal would be bound to fail.

Outcome

1. Both interlocutory applications must be dismissed. Costs should follow the event. I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann.

Associate: Dated: 17 January 2025 SCHEDULE OF PARTIES NSD 855 of 2024 Respondents Fourth Respondent: LATITUDE FINANCE AUSTRALIA