FEDERAL COURT OF AUSTRALIA Ogawa v Australian Information Commissioner [2014] FCA 229 Citation: Ogawa v Australian Information Commissioner [2014] FCA 229 Parties: DR MEGUMI OGAWA v AUSTRALIAN INFORMATION COMMISSIONER, TOOWONG PRIVATE HOSPITAL, MICHELE CALVIRD and COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS File number(s): QUD 363 of 2013 Judge(s): GREENWOOD J Date of judgment: 13 March 2014 Catchwords: PRACTICE AND PROCEDURE – consideration of four interlocutory applications arising in connection with the applicant's originating application for relief under the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) Cases cited: R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 – cited Community Television Sydney Ltd v Australian Broadcasting Authority (No 2) (2004) 136 FCR 338 - cited TXU Electricity Ltd v Office of the Regulator-General (2001) 3 VR 93 – cited Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 – cited Giniotis v Human Rights and Equal Opportunity Commission [2000] FCA 1954 - cited Date of hearing: 13 March 2014 Date of last submissions: 13 March 2014 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 30 Counsel for the Applicant: Applicant granted leave not to appear on the hearing of the applications for interlocutory orders Solicitor for the Applicant: No appearance by solicitor Solicitor for the Respondents: Ms Fiona E Dempsey, Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 363 of 2013 BETWEEN: DR MEGUMI OGAWA Applicant AND: AUSTRALIAN INFORMATION COMMISSIONER First Respondent TOOWONG PRIVATE HOSPITAL Second Respondent MICHELE CALVIRD Third Respondent COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS Fourth Respondent JUDGE: GREENWOOD J DATE OF ORDER: 13 MARCH 2014 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The applicant is granted an extension of time for the filing of the originating application in respect of the decisions the subject of that application up to and including the date of filing of the originating application. 2. The first respondent is granted leave to withdraw the notice of objection to competency. 3. The first respondent's interlocutory application filed on 25 July 2013 is dismissed. 4. The applicant's interlocutory application filed on 25 November 2013 is dismissed. 5. The originating application proceed and be heard and determined on the papers. 6. The costs of the applications heard and determined today be costs in the cause. 7. The applicant file and serve any further material upon which she proposes to rely in the substantive proceeding on or before 10 April 2014. 8. The applicant file and serve any further written submissions upon which she proposes to rely on or before 10 April 2014. 9. The first respondent file and serve any submissions in response on or before 24 April 2014. 10. The applicant file and serve any submissions in reply on or before 1 May 2014. 11. Pursuant to s 17(2) of the Federal Court of Australia Act 1976 (Cth) and r 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders be published from Chambers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 363 of 2013 BETWEEN: DR MEGUMI OGAWA Applicant AND: AUSTRALIAN INFORMATION COMMISSIONER First Respondent TOOWONG PRIVATE HOSPITAL Second Respondent MICHELE CALVIRD Third Respondent COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS Fourth Respondent JUDGE: GREENWOOD J DATE: 13 MARCH 2014 PLACE: BRISBANE REASONS FOR JUDGMENT 1 In the principal originating application, Dr Megumi Ogawa, the applicant, seeks review of four decisions of the Australian Information Commissioner in reliance upon provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "ADJR Act") and s 39B of the Judiciary Act 1903 (Cth) (the "Judiciary Act"). 2 There is no controversy that the four decisions are these: a decision dated 18 February 2011 declining to investigate the applicant's complaint of a breach of privacy against Dr Calvird under s 41(1)(a) of the Privacy Act 1988 (Cth) (the "Privacy Act") on the footing that Dr Calvird was not in breach of that Act; a decision dated 8 April 2011 being an internal review of the 18 February 2011 decision; a decision dated 29 May 2013 declining to investigate the applicant's complaint of a breach of privacy against the Toowong Private Hospital under s 41(1)(a) of the Privacy Act on the basis that the Hospital was not in breach of that Act; and, a decision dated 14 June 2013 declining to investigate the applicant's complaint of a breach of privacy against the Commonwealth Director of Public Prosecutions under s 41(1)(c) of the Privacy Act on the footing that more than 12 months had expired since the alleged interference with the applicant's privacy. 3 There is also no controversy that the relevant factual background is this. 4 The applicant filed her application for review on 26 June 2013, and on 24 July 2013 the first respondent filed a notice of objection to the competency of the application. On 25 July 2013, the first respondent filed an interlocutory application seeking the dismissal of the principal application. On 25 July 2013, the Court ordered the applicant to file and serve an application for an extension of time in relation to the decisions dated 18 February 2011 and 8 April 2011 by 22 August 2013 supported with an affidavit as to the facts as contemplated by the Federal Court Rules 2011. The application for an extension of time together with the first respondent's application seeking dismissal of the principal proceeding was adjourned for further directions. 5 On 18 August 2013, the applicant filed an interlocutory application (or sought to file an interlocutory application) seeking an extension of time to 27 September 2013 to file and serve an application for an extension of time (together with supporting affidavits). The applicant also sought an order that the proceedings be heard on the papers. 6 On 27 August 2013, the Court made orders that the time for filing an application for an extension of time be extended to Monday, 9 September 2013. 7 On 2 September 2013, the applicant filed an application for an extension of time supported by an affidavit dated by her 17 August 2013 and sworn 28 August 2013. On 5 September 2013, the applicant filed further affidavits dated by her 21 August 2013 (and sworn 29 August 2013) and dated by her 22 August 2013 (and sworn 4 September 2013) in support of the application for an extension of time for the filing of the principal application for an order for review under the ADJR Act. 8 On 27 September 2013, the applicant filed a document entitled "Particulars of the Grounds of Application". On 25 November 2013, the applicant filed an interlocutory application in which the applicant sought these orders: 1. The First Respondent's Notice of Objection to Competency dated 24 July 2013 be dismissed. 2. The First Respondent's Interlocutory Application dated 25 July 2013 be dismissed. 3. This application be heard on the papers. 4. The First Respondent be restrained from opposing order 3 sought by the Applicant. 5. The First Respondent be restrained from opposing any orders sought by the Applicant except for making limited submissions concerning the powers and procedures of the First Respondent. 6. Costs be paid by the First Respondent. 9 On 26 November 2013, the applicant filed an outline of submissions in support of her application for orders restraining the first respondent from making submissions. On 22 December 2013, the applicant filed an outline of submissions in support of her application for an extension of time. 10 On 24 February 2014, the applicant filed a further outline of submissions responding to the first respondent's interlocutory application seeking dismissal of the principal proceeding, and submissions in relation to the first respondent's notice of objection to competency. 11 The applicant has filed a number of affidavits in the proceeding. It is not necessary to recite in these reasons each of those affidavits and the date of filing of each affidavit. 12 Four matters were heard today. 13 These matters were the subject of exchanges between the Court and the parties with a view to establishing clearly which matters would be dealt with today and the material which would be relied upon, particularly by the applicant, in relation to each of today's applications. This became necessary because the applicant sought leave not to appear on the hearing of the applications today with a request that the matter be dealt with on the papers. The applicant made that request because she is not medically fit to appear today. The first respondent, being the only party who seeks to appear in the proceeding, did not object to leave being granted to the applicant not to appear at the interlocutory hearing today. Leave would be necessary because in the absence of leave the first respondent would be entitled to seek orders consequent upon the applicant's non-appearance before the Court to prosecute her various applications. Accordingly, at the commencement of the application, an order was made that "the applicant be granted leave not to appear at the interlocutory hearing heard on 13 March 2014". 14 The four matters dealt with today are these: 1. the notice of objection to competency filed by the first respondent on 24 July 2013; 2. the interlocutory application filed by the first respondent on 25 July 2013; 3. the application for extension of time filed by the applicant on 2 September 2013; and 4. the interlocutory application filed by the applicant on 25 November 2013. 15 In relation to these four matters, the material relied upon by Dr Ogawa, filed by her, was this: 1. the originating application filed on 26 June 2013; 2. paragraphs 5 and 6 of the affidavit of Dr Megumi Ogawa sworn on 29 August 2013 and filed on 5 September 2013; 3. paragraph 7 of the affidavit of Dr Megumi Ogawa sworn on 5 September 2013 and filed on 6 September 2013; 4. the application for extension of time filed on 2 September 2013; 5. the 'particulars of the grounds of application' filed on 27 September 2013; 6. the interlocutory application filed on 25 November 2013; 7. the 'outline of submissions' filed on 26 November 2013; 8. the 'outline of submissions' filed on 22 December 2013; and 9. the 'outline of submissions' filed on 24 February 2014. 16 On the evening of 12 March 2014, the applicant filed submissions in reply. 17 In the result, although the first respondent recognises that the question is a matter for the Court in the exercise of its discretion having regard to whether the interests of justice are served by granting the extension, the first respondent did not oppose the granting of an application for an extension of time in which to seek review of the decision dated 18 February 2011. 18 Further, the first respondent accepted that the notice of objection to competency would fall away if the application for an extension of time is granted having regard to the material filed by the applicant. 19 The first respondent advised the Court that it would not press its application for dismissal of the principal proceeding if leave is granted to the applicant not to appear. 20 Further, having regard to the available evidence that the applicant may not be in a position to appear personally in the proceedings at any stage, the first respondent advised the Court that it was content for the principal application to be dealt with on the papers. 21 I am satisfied that the interests of justice are served by granting an extension of time to the applicant as sought. It follows that the objection to competency falls away. The application for dismissal of the principal proceeding will be dismissed. The substantive application will be dealt with on the papers. The parties will be directed to file written submissions in support of their contentions. The merits of the matter will be determined on the papers. 22 The applicant contends that the first respondent ought to be restrained from putting on submissions on the substantive matters on the basis of the observations of the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13. Normally, when a decision of an administrative decision-making tribunal is subject to challenge on grounds of jurisdictional error under s 39B of the Judiciary Act or under one of the grounds contained in the ADJR Act, the tribunal submits to any order the Court might make. Such a tribunal does not normally become a contradictor in the proceeding to agitate in favour of the legality of its own decision-making. The first respondent accepts that this principle extends to administrative decision-makers generally and not just administrative tribunals, although the principle is said not to have been applied uniformly (see Community Television Sydney Ltd v Australian Broadcasting Authority (No 2) (2004) 136 FCR 338; TXU Electricity Ltd v Office of the Regulator-General (2001) 3 VR 93). 23 The first respondent contends, correctly in my view, that a number of authorities recognise that the application of the Hardiman principle requires some adapted flexibility to the particular circumstances which present themselves to the Court for consideration. 24 For example, where there is no active contradictor to frame propositions concerning the legality of the decision-making, the Court might well elect to entertain submissions from the decision-maker. Sometimes, the tribunal in question is exercising a jurisdiction to review a decision of a Minister's delegate and the tribunal in that role exercises all of the powers conferred upon the Minister under the Act. Whilst the tribunal might be joined in the proceedings, the principal respondent is the Minister under the relevant Act who acts as a contradictor. In those circumstances, the tribunal makes a submitting appearance only and takes no active role in the proceedings. A similar position prevails when the Attorney-General elects to intervene and becomes the contradictor. 25 The first respondent correctly identifies that the proceedings before the decision-maker in this case were not inter-parties proceedings and the Attorney-General has not elected to represent the public interest on the question of the legality of the first respondent's decision-making. Since there is no person present before the Court who can otherwise address the legality of the first respondent's decision-making (in addressing the public interest in determining the legality of that decision-making) it is desirable that submissions be entertained from the first respondent in assisting the Court to determine the legality of the decision-making under challenge (see Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666; Giniotis v Human Rights and Equal Opportunity Commission [2000] FCA 1954). 26 In these proceedings, the only party to enter an appearance is the first respondent. 27 Independently of any question of whether the Court has power to make an order restraining the first respondent from putting on submissions as to the legality of its decision-making, as an expression of the Hardiman principle, I am satisfied that the interests of justice are served by receiving submissions from the first respondent and thus no order ought be made preventing the first respondent from putting on submissions on the substantive questions in issue. 28 I am also satisfied that the costs of the applications today ought be costs in the cause in which event the costs will lie where they fall having regard to the merits of the substantive application. 29 Accordingly, the further orders, apart from the order mentioned at [13] are these: 1. The applicant is granted an extension of time for the filing of the originating application in respect of the decisions the subject of that application up to and including the date of filing of the originating application. 2. The first respondent is granted leave to withdraw the notice of objection to competency. 3. The first respondent's interlocutory application filed on 25 July 2013 is dismissed. 4. The applicant's interlocutory application filed on 25 November 2013 is dismissed. 5. The originating application proceed and be heard and determined on the papers. 6. The costs of the applications heard and determined today be costs in the cause. 7. The applicant file and serve any further material upon which she proposes to rely in the substantive proceeding on or before 10 April 2014. 8. The applicant file and serve any further written submissions upon which she proposes to rely on or before 10 April 2014. 9. The first respondent file and serve any submissions in response on or before 24 April 2014. 10. The applicant file and serve any submissions in reply on or before 1 May 2014. 11. Pursuant to s 17(2) of the Federal Court of Australia Act 1976 (Cth) and r 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders be published from Chambers. 30 The proceeding will then be heard and determined on the papers. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 13 March 2014