Ibarcena v Smyth [2000] FCA 1942

FEDERAL COURT OF AUSTRALIA

Ibarcena v Smyth [2000] FCA 1942

JEREMY PATRICK IBARCENA v BRENDAN SMYTH AND THE COMMISSIONER FOR HOUSING No. A 38 of 2000 O'LOUGHLIN, HIGGINS & MATHEWS JJ 16 NOVEMBER 2000 CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 38 OF 2000

APPLICATION FOR LEAVE TO APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: JEREMY PATRICK IBARCENA

APPELLANT

AND: BRENDAN SMYTH

FIRST RESPONDENT

THE COMMISSIONER FOR HOUSING

SECOND RESPONDENT

JUDGE: O'LOUGHLIN, HIGGINS & MATHEWS JJ

DATE OF ORDER: 16 NOVEMBER 2000

WHERE MADE: CANBERRA

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondents' costs which costs are to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 38 OF 2000

APPLICATION FOR LEAVE TO APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: JEREMY PATRICK IBARCENA

APPELLANT

AND: BRENDAN SMYTH

FIRST RESPONDENT

THE COMMISSIONER FOR HOUSING

SECOND RESPONDENT

JUDGES: O'LOUGHLIN, HIGGINS & MATHEWS JJ

DATE: 16 NOVEMBER 2000

PLACE: CANBERRA

REASONS FOR JUDGMENT

O'LOUGHLIN J:

1 The applicant in these proceedings is Mr Jeremy Patrick Ibarcena. Mr Ibarcena has been engaged in a long running battle with the Commissioner for Housing for the Australian Capital Territory ("the ACT") over his claims for rent relief, and, as he has alleged, because of breaches by the Commissioner of the Privacy Act 1988 (Cth) ("the Privacy Act") and the Housing Assistance Act 1989 (Cth) ("the Housing Assistance Act"). In addition to naming the Commissioner as a respondent to these proceedings, Mr Ibarcena also brought action against Mr Brendan Smyth, the Minister for Urban services in the ACT. 2 The present proceedings came before the Court as an application for leave to appeal against the judgment of Cooper J in his capacity as a judge of the Supreme Court of the ACT. That judgment was delivered on 16 May 2000. However, Mr Ibarcena had earlier instituted similar proceedings in the Federal Court of Australia, but those earlier proceedings had been summarily dismissed by Finn J on 25 June 1999 on the ground that they did not disclose any reasonable cause of action. 3 The core complaint that has been made by Mr Ibarcena can be identified from the first paragraph of his statement of claim where he complains that the respondents had required him, first, to grant an authorisation that would enable the respondents to gain access to his and his wife's social security records and, secondly, to supply copies of all documents that would be relevant to the compilation of his income tax returns. Mr Ibarcena claims that those requirements breach the provisions of the Privacy Act and in par 7 of his statement of claim he claims that they are also breaches of the Housing Assistance Act. 4 Because of his refusal to supply the information, Mr Ibarcena's rent rebate of about $58 per week was withdrawn. In turn, Mr Ibarcena refused to pay the rent that was then said to be due and owing. This led to his tenancy being terminated by notice dated 30 December 1998. He has now vacated the Commission's premises. 5 In order to understand Mr Ibarcena's complaints it is best to start with the proceedings in the Federal Court that came before Finn J last year. Those proceedings came into existence as a consequence of Mr Ibarcena's earlier request for housing assistance and his dealings with officers of the ACT with respect to that request. He made a large number of complaints against a large number of respondents, alleging, among other things, violations of his rights, misuse of public power and invasion of privacy. 6 Although Mr Ibarcena's fundamental complaint was against the ACT body politic and certain of its officers, his amended application raised five Commonwealth statutes as grounding the Federal Court's jurisdiction in the matter. Included in those statutes were the Privacy Act and the Housing Assistance Act – the two Acts of Parliament upon which he has based his present application. 7 Speaking of those two statutes Finn J said that their object was: "… to put into effect an inter-governmental agreement between the Commonwealth and the States, including the ACT, relating to the provision of financial assistance to the States for the provision of housing assistance …"