FEDERAL COURT OF AUSTRALIA Wijayaweera v Australian Information Commissioner [2011] FCA 775 Citation: Wijayaweera v Australian Information Commissioner [2011] FCA 775 Parties: ANUPRIYA WIJAYAWEERA v AUSTRALIAN INFORMATION COMMISSIONER File number: VID 534 of 2011 Judge: TRACEY J Date of judgment: 16 June 2011 Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 11 Privacy Act 1988 (Cth) s 40 Cases cited: A v Australian Information Commissioner [2011] FCA 520 cited Décor Corporation Pty Ltd v Dart Industries Incorporated (1991) 33 FCR 397 applied Vranic v Commissioner of Taxation (2002) 67 ALD 798 cited Date of hearing: 16 June 2011 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 14 Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondent: E Arduca of Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 534 of 2011 BETWEEN: ANUPRIYA WIJAYAWEERA Applicant AND: AUSTRALIAN INFORMATION COMMISSIONER Respondent JUDGE: TRACEY J DATE OF ORDER: 16 JUNE 2011 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The time within which the applicant is required to file and serve his application for leave to appeal be extended to 16 June 2011. 2. The application be refused. 3. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 534 of 2011 BETWEEN: ANUPRIYA WIJAYAWEERA Applicant AND: AUSTRALIAN INFORMATION COMMISSIONER Respondent JUDGE: TRACEY J DATE: 16 JUNE 2011 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant seeks leave to appeal from orders made by a single judge of the court refusing an application for an extension of time within which to commence judicial review proceedings and dismissing his application as incompetent. The orders were made on 18 May 2011. 2 Leave to appeal is required because the primary judge's orders were interlocutory in nature: see Vranic v Commissioner of Taxation (2002) 67 ALD 798 at [2]. 3 The applicant had sought to commence judicial review proceedings to challenge a decision made by a delegate of the respondent. That decision was made under s 40 (1A) of the Privacy Act 1988 (Cth), and was to the effect that the Commissioner declined to investigate a complaint which the applicant had made concerning alleged breaches of his privacy. Judicial review was sought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). It was common ground that the application had been brought outside the time limit prescribed by s 11(3) of the ADJR Act. Because the application was out of time, the primary judge was required to consider, as a preliminary issue, whether an enlargement of time should be granted. 4 The primary judge accepted the applicant's submission that the two-day delay in commencing the proceeding was minor and caused no prejudice to the respondent. She, however, refused the application for enlargement of time on the ground that: "[T]he applicant's substantial application has insufficient merit to warrant the Court extending time for its lodgment." See: A v Australian Information Commissioner [2011] FCA 520 at [32]. 5 The present application was also brought out of time. It was lodged on 7 June 2011. The applicant explained this delay by saying that he had not appreciated that the primary judge's decision was interlocutory in nature and thought that he had 21 days within which to lodge an appeal against her orders. 6 The respondent submitted that, even if this explanation is accepted, it would be futile to allow the appeal to proceed because the primary judge was plainly correct in determining that the grounds advanced by the applicant for challenging the Commissioner's decision lacked substance. Her Honour had so concluded after what amounted to a full consideration of those grounds. 7 I accept that the applicant, as an unrepresented litigant was not aware that the orders were interlocutory in nature. Some lawyers have from time to time been uncertain about this point. The respondent has not suggested that he would suffer any prejudice were the applicant to be given leave to apply for leave to appeal out of time. I would grant such leave. 8 The applicant filed a draft notice of appeal. Although discursive, it can be seen to fall into two broad areas: the first are grounds which contend that no competency issue arose in relation to the original application because the applicant had received the notice of the Commissioner's decision later than the time that had been accepted by the primary judge. The second broad group of grounds restate and develop the full grounds of judicial review on which the applicant sought to challenge the Commissioner's decision. It was these grounds that the primary judge found to lack sufficient merit. As I understand the position, the applicant would seek, if leave to appeal were granted, to challenge this assessment. 9 The principles to be applied on an application for leave to appeal from an interlocutory decision are well established. They are stated and explained in Décor Corporation Pty Ltd v Dart Industries Incorporated (1991) 33 FCR 397. I asked the applicant before he commenced making his submissions whether he was familiar with these principles. He confirmed that he was and quoted them to the Court. 10 The applicant submitted that the primary judge's decision was attended by sufficient doubt as to warrant it being reconsidered by a Full Court. As to the first group of grounds, he submitted that her Honour had proceeded on the wrong basis in accepting that his original application for judicial review had been filed out of time. He accepted that he had sworn an affidavit in which he had said that he had filed his case two days late. He said that in doing so he was mistaken. He said that he had since been told by an unnamed person in the Commissioner's office that the letter advising of the Commissioner's decision had been posted in Sydney in 20 October 2010. He contended that it would not have reached him in Melbourne until 24 October 2010. If that had been the case, his application was timely. There was, unfortunately no evidence to support these claims. 11 As to the second group of grounds, the applicant agreed that they did not allege error on the part of the primary judge. I therefore invited him to make submissions in which he explained why it was that he alleged that her Honour was in error in concluding that his four judicial review grounds lacked merit. He submitted that her Honour had failed to have regard to some evidence about the circumstances which led him to make his complaints to the Commissioner concerning privacy violations. This complaint cannot be sustained. Her Honour had regard to all the evidence on which the application was based. See reasons at [17]. 12 He submitted that his second judicial review ground relied on s 5(2)(e) of the ADJR Act, not s 5(2)(d), which was the ground considered by the primary judge. When asked how he suggested that the delegate's decision had been made at the behest of another person, he responded that many people did not want the Commissioner to investigate his complaints and that it was likely that some of them had brought pressure to bear upon the delegate. No person was named. No evidence was presented to support this serious allegation. In any event it is clear that the applicant argued his case before the primary judge as one brought, in part, in reliance on s 5(2)(d). 13 The primary judge's reasons for concluding that the applicant's case lacked merit are set out in her reasons at paras [27] – [31]. The applicant's submissions did not identify any errors in those reasons which would warrant the attention of the Full Court. Her Honour was, I respectfully consider, correct, for the reasons which she gave, to conclude that the applicant's case lacked merit and that it should not be allowed to proceed. 14 Leave should be given to the applicant to file his application for leave to appeal out of time, but his application for leave to appeal should be refused. The applicant should pay the Commissioner's costs to his application for leave to appeal. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 16 June 2011