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Privacy Law and Policy Reporter

Privacy Law and Policy Reporter (PLPR)
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Gunning, Patrick --- "Cases and complaints" [2002] PrivLawPRpr 49; (2002) 9(6) Privacy Law and Policy Reporter 118

Cases and complaints


[2002] FCAFC 128, Federal Court of Australia, Full Court

[2002] FCA 823, Federal Court ,of Australia, Goldberg J

Mr Gao is a determined litigant. His claims against the Privacy Commissioner and the Department for Immigration (DIMIA) were dismissed by Ryan J in November 2001 (see [2001] FCA 1683 BC200107408; (2001) 8(7) PLPR 142). His claim against the Commissioner under the Administrative Decisions (Judicial Review) Act 1997 (Cth) (AD(JR) Act) was dismissed by Ryan J for being made out of time (longer than 12 months after the impugned decision had been made). His claim against DIMIA under the Privacy Act 1988 (Cth) was dismissed on the basis that ,he should have made a complaint to ,the Privacy Commissioner under s 36 ,of that Act instead of commencing proceedings in the Federal Court.

By way of a brief judgment issued ,on 10 May 2002, the Full Court of ,the Federal Court (Carr, Moore and Marshall JJ) dismissed an appeal by ,Mr Gao against the decision of Ryan J. The Full Court saw no error in the approach taken by Ryan J.

Mr Gao subsequently commenced fresh proceedings against the same respondents. He applied for an extension of time in which to bring the AD(JR) Act claim, and asked for the substantive issues he had raised in the first proceedings to be determined.

Goldberg J held that ‘it would be inappropriate to extend the time within which to bring the application for review of the decision of the Federal Privacy Commissioner as, on the material before me, no grounds of review are disclosed’ (at [20]).

As to the claim against DIMIA, ,his Honour stated (at [22]-[23]):

Ryan J has already found in par [10] ,of his reasons that no complaint can be made directly to the Federal Court that the DIMIA breached the Privacy Act or the Information Privacy Principles. As Ryan J pointed out, complaints about interference with privacy must be made to the Privacy Commissioner under s 36 of the Privacy Act. Breach of the Privacy Principles is not directly actionable ,under the Privacy Act (see for example Ibarcena v Templar [1999] FCA 900). The Court’s only jurisdiction — that is the jurisdiction of this Court — is under s 55A of the Privacy Act to enforce determinations made under the Act. ,That is not an application which is sought in the present proceeding.

Although it appears that Mr Gao ,was not able to prove any breach of the Privacy Act by DIMIA, it is unfortunate that, once again, the Federal Court’s reasoning is apt to mislead readers as to the nature of its jurisdiction under the Act. Clearly, no one drew Goldberg J’s attention to s 98 of the Act, which confers, in plain terms, jurisdiction on the Federal Court to grant an injunction to restrain conduct that constitutes a contravention of the Act.

Patrick Gunning is a Partner at Mallesons Stephen Jaques, Sydney. He ,is also on the editorial board of PLPR.

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