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 …" It was Mr Ibarcena's complaint that various conditions in those statutes and in agreements made under those statutes had not been complied with in his case. 8 The first named respondent, the ACT's Minister for Urban Services had claimed, in an application for summary dismissal, that the Housing Assistance Statutes, and any agreements that may have been made under them between the Commonwealth and the ACT, did not grant any enforceable right to a recipient of assistance against either the Commonwealth or the ACT. That submission was accepted by Finn J. He concluded that those statutes did not confer any cause of action upon a member of the public who happened to be a recipient of housing assistance and who was dissatisfied with the assistance or the terms and conditions under which such assistance was available. That particular decision of Finn J has not been challenged on appeal. In his proceedings in the Federal Court before Finn J, Mr Ibarcena also complained that the respondents had breached the Information Privacy Principles of the Privacy Act. At that stage, Mr Ibarcena had not made a formal complaint to the Privacy Commissioner and hence there were no proceedings before Finn J in the form of a complaint against the Commissioner. Mr Ibarcena had inappropriately sought to invoke the jurisdiction of the Federal Court directly. That and Mr Ibarcena's further complaints were also summarily dismissed. 9 Mr Ibarcena did later lodge formal complaints with the Privacy Commissioner and in these current proceedings there are, among the papers that were filed by Mr Ibarcena in the Supreme Court, copies of these complaints and a copy of the Commissioner's rejection of them. 10 I turn now to consider Mr Ibarcena's proceedings in the Supreme Court and his present application to this Court. It will be convenient to deal first with Mr Ibarcena's complaint that the requirement that he and his wife authorise access to their social security records is a breach of s 18G of the Privacy Act. That section deals with the obligation that is placed upon a credit reporting agency and a credit provider to ensure that, at all times, its records are accurate, that appropriate security is in place and that unauthorised use of its records is prevented. The term "credit reporting agency" is defined in terms which make it quite clear that the Social Security Authorities are not a credit reporting agency. There is therefore no substance in the allegation that there has been a breach of s 18G 11 It remains necessary to mention s 14 Principle 3 of the Privacy Act. That requires a collector of personal information to ensure that any information that is collected is relevant to the stipulated purpose; it also requires the collector to ensure that the information "does not intrude to an unreasonable extent upon the personal affairs of the individual concerned". 12 The respondents have conceded, contrary to Cooper J's finding, that this provision applies to officers of the ACT. But the respondents also contend that the error does not fault his Honour's ultimate conclusion for there was no evidence that suggested that the present respondents in any way breached that provision. That submission is correct. It is quite clear that the Housing Authorities have an obligation to check all applicants for rent assistance so as to ensure that they are eligible for relief. They would be derelict in their duty if they failed to do so. 13 The request for documents and records that would be needed for income tax purposes is not a request for information about a person's Income Tax Return; it is a request for accounting and financial information so that a proper assessment can be made of an application for rental assistance. The reference to the Income Tax Assessment Act does no more than identify the type of accounting and financial information that is required. That was a perfectly normal and reasonable request. 14 Finally, there is the question of the Housing Assistance Act. 15 Cooper J said of both the 1989 Act and the 1996 Act that neither Act created any justiciable rights in Mr Ibarcena. That decision is plainly correct. As his Honour said, and as Finn J had earlier said, the two pieces of legislation were to operate as inter-governmental arrangements relating to the provision of Commonwealth grants. Neither Act of the Commonwealth Parliament was intended to nor did it create personal rights at the suit of a disgruntled member of the public. 16 Furthermore, as Cooper J pointed out, any entitlement that Mr Ibarcena might have had to a rental rebate and to access to subsidised public housing in the ACT depended upon the provisions of the ACT's legislation and there has been no allegation in the papers that these respondents had breached any provision of the Territory's legislation. 17 Finally, to raise the issue of the Commonwealth's Housing Assistance legislation in light of the judgment of Finn J, which addressed the same issue, is, in my opinion, properly classified as an abuse of process. The High Court in Walton v Gardiner (1992) 177 CLR 378 addressed this subject. In the joint judgment of Mason CJ and Deane and Dawson JJ at p 393, there are references constituting examples of abuse of process. The one which is relevant here and has direct application to these proceedings is as follows: "Proceedings before the Court should be stayed as an abuse of process if their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case that has already been disposed of by earlier proceedings." 18 In my opinion, this is not a case where leave to appeal should be granted. The application is refused. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin. Associate: Dated: 16 November 2000 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 HIGGINS J: 19 I agree with the reasons of O'Loughlin J with the following additions. 20 This situation has arisen because Mr Ibarcena though he applied for a rental rebate declined to support it by offering proof concerning the incomes of himself and Mrs Ibarcena. His refusal was, as the learned presiding judge has pointed out, based on a misunderstanding of the law on his part. 21 There is an entitlement which is provided for in relation to housing assistance and rebates of rental, but it arises only under the Housing Assistance Act 1987 of the Australian Capital Territory and the instruments made under s 12(1) of that Act. The current instrument is 155 of 98 par (4) of which does give a housing tenant the right to apply for a rebate of rental and imposes an obligation on the Commissioner to grant it if the circumstances are appropriate. 22 In the circumstances of this case where, although the application for rental rebate had been made, there being no documentation provided to support it, the Commissioner had no option but to decline to grant a rebate of rental. There was no error therefore in the refusal of the Commissioner to do so even had that been the gravamen of the complaint in these proceedings which it is not. It is regrettable that the termination of the tenancy in this case would not have occurred but for the plaintiff'' insistence that he need not provide the documentation. That is, I repeat, unfortunate. Had Mr Ibarcena not done so it may well have been that the rebate would have been granted given his assertions as to the limited level of income that he and his wife enjoy. 23 But the right to the rebate cannot arise unless Mr Ibarcena was prepared to apply for it and support his application by reference to the sort of information which the Commissioner requires under the application for rental rebate, which it must be said is a lawful requirement and one which the Commissioner would be failing in his duty not to request. I can only express the hope that Mr Ibarcena will accept that the Commissioner was entitled to ask for that information as a matter of law and if he does accept that I would further express the hope that he may come to an agreement with the Commissioner concerning rental arrears, because it may be that the Commissioner even now would be prepared to retrospectively review those arrears in the light of whatever information Mr Ibarcena may be able to place before him concerning his limited means. And it may be possible for assisted housing to be resumed. 24 I can do not more than express a hope as to that because it does not arise in these proceedings. But otherwise with regret I must concur with the learned presiding judge that the application for leave must be refused. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Higgins. Associate: Dated: IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY A 38 OF 2000 BETWEEN: JEREMY PATRICK IBARCENA APPLICANT AND: BRENDAN SMYTH FIRST RESPONDENT COMMISSIONER FOR HOUSING SECOND RESPONDENT JUDGES: O'LOUGHLIN, HIGGINS & MATHEWS JJ DATE: 16 NOVEMBER 2000 PLACE: CANBERRA REASONS FOR JUDGMENT MATHEWS J: 25 I agree with the reasons for judgment of O'Loughlin J and with the orders which his Honour proposes. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews. Associate: Dated: 16 November 2000 The Appellant appeared in person: Counsel for the First & Second Respondents: Dr Jarvis Solicitor for the First & Second Respondents: ACT Government Solicitor Date of Hearing: 16 November 2000 Date of Judgment: 16 November 2000