Gao v Federal Privacy Commissioner [2002] FCAFC 128 (10 May 2002)

Last Updated: 15 May 2002

FEDERAL COURT OF AUSTRALIA

Gao v Federal Privacy Commissioner [2002] FCAFC 128

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Privacy Act 1988 (Cth)

Federal Court Rules O 20 r 2

PENG YUAN GAO v THE FEDERAL PRIVACY COMMISSIONER and ROBERT GARRAN OFFICES, ATTORNEY GENERAL'S DEPARTMENT and THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 1197 OF 2001

CARR, MOORE AND MARSHALL JJ

10 MAY 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1197 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	PENG YUAN GAO APPELLANT
AND:	FEDERAL PRIVACY COMMISSIONER FIRST RESPONDENT ROBERT GARRAN OFFICES, ATTORNEY GENERAL'S DEPARTMENT SECOND RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS THIRD RESPONDENT
JUDGES:	CARR, MOORE AND MARSHALL JJ
DATE OF ORDER:	10 MAY 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1197 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	PENG YUAN GAO APPELLANT
AND:	FEDERAL PRIVACY COMMISSIONER FIRST RESPONDENT ROBERT GARRAN OFFICES, ATTORNEY GENERAL'S DEPARTMENT SECOND RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS THIRD RESPONDENT

JUDGES:	CARR, MOORE AND MARSHALL JJ
DATE:	10 MAY 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT

1 This is an appeal from a judgment of a single judge of the Court ("the primary judge"). The primary judge dismissed an application made to the Court by the appellant. However his Honour made no order as to costs against the appellant. His Honour held, in the context of the respondents' motion to dismiss the application under O 20 r 2, at [11] that the application did not disclose a reasonable cause of action.

2 The proceeding before the primary judge arose out of a dispute between the appellant and Ms Zhu. Ms Zhu formerly lived with the appellant. She had a child when in a relationship with the appellant but the appellant was not the father of the child. The appellant initiated proceedings in the Family Court of Australia in which he sought access to the child and an order restraining Ms Zhu from taking the child overseas. In those proceedings, on 18 May 1999, the Family Court ordered a paternity test. The test showed that the appellant was not the father of the child. The appellant considered that Ms Zhu perjured herself before the Family Court.

3 On 16 June 1999 the appellant met with an officer of the Investigations Section of the third respondent's department ("DIMA"). The appellant made allegations to the DIMA officer about fraudulent conduct of Ms Zhu which was said to be in furtherance of her desire to obtain permanent residence in Australia. Those allegations included a claim that Ms Zhu had placed false information on the birth certificate of the child which referred to the appellant as the father. The appellant showed the DIMA officer the DNA test report which revealed that the child was not his.

4 The DIMA officer informed the Registry of Births, Deaths and Marriages that the appellant was not the father of the child. On 24 August 1999 the Registry of Births, Deaths and Marriages wrote to the appellant to advise him that, as a result of information supplied by the DIMA officer, the appellant's name had been removed from the register as the father of the child. On 22 September 1999 the appellant complained to the Commonwealth Ombudsman about the disclosure made by the DIMA officer to the Registry of Births, Deaths and Marriages. On 25 September 1999 he made the same complaint to the first respondent.

5 The first respondent took the view that no breach of the Privacy Act 1988 (Cth) had been disclosed and decided not to further investigate the matter. The first respondent advised the appellant of his views by letters dated 10 March 2000 and 18 July 2000.

6 The application seeking to review the decision of the first respondent was made over a year after his 18 July 2000 letter. The primary judge dealt with this aspect of the matter before him at [7] of his reasons for judgment in the following way:

"The Commissioner apparently took the view that the disclosure to the Registry was "necessary for the enforcement of the criminal law" within the privacy principle embodied in s 11(1)(e) of the Privacy Act. At all events, the application in its present form does not disclose how a review in this Court of the Commissioner's decision is said to be available under the Administrative Decisions (Judicial Review) Act ("the AD(JR) Act"). Even if the application had identified an alleged error of law or other ground of review afforded by the AD(JR) Act, it would still be more than twelve months out of time. I shall, therefore, dismiss the application against the Privacy Commissioner without prejudice to the applicant's rights, if so advised, to apply for an extension of time in which to bring an application under the AD(JR) Act against that officer."

7 We see no error in the approach taken by the primary judge.

8 The primary judge dealt with the aspect of the application which concerned "the Attorney-General's Department" in the following way at [8] and [9] of his reasons:

"I deal second with the respondent named as "the Attorney-General's Department". The applicant contends that Yu Jing Ju had committed perjury in the Family Court in relation to, amongst other things, the Commonwealth Bank draft. He complained to that effect to the Attorney-General's Department but, after investigation, that Department declined to recommend to the Commonwealth Director of Public Prosecutions that Ms Ju be prosecuted for perjury. In a letter to the applicant dated 30 August 2001 the Department advised the applicant that it was precluded by the Privacy Act from disclosing to him what had been revealed by its investigation.

Assuming in the applicant's favour that the making of any decision within the meaning of the AD(JR) Act was reposed in the Attorney-General's Department rather than the Director of Public Prosecutions, no basis has been shown on the face of the application for this Court's reviewing that decision under the AD(JR) Act or otherwise within the jurisdiction of this Court."

9 We see no error in the approach taken by the primary judge. Nothing was put to us on appeal to persuade us to take any contrary view.

10 The primary judge dealt with the complaint about the third respondent and DIMA by saying at [10] that:

"I deal thirdly with the application against DIMA. As I understand it, the complaint against this department is for contravention of the Privacy Act on account of its conduct in conveying the results of the paternity test to the Registry of Births Deaths and Marriages. However, that complaint cannot be made directly to this Court. It must be made to the Privacy Commissioner under s 36 of the Privacy Act. As already noted in relation to the Privacy Commissioner, a decision by that officer rejecting such a complaint is reviewable by this Court under the AD(JR) Act but no right of review is exercisable against the agency which is alleged to have infringed the privacy of a complainant. Furthermore, I reiterate that the time within which a review of the applicant's complaint to the Privacy Commissioner against DIMA has long since expired."

11 It may be that the appellant's complaints concerning DIMA were more extensive than the one matter identified by his Honour. However the fact that there is uncertainty about the issues the appellant sought to raise demonstrates, in our opinion, that the ultimate view his Honour took about the application, in the form in which it was advanced, was correct. Again, nothing on appeal was said to lead us to a contrary view.

12 The written submissions of the appellant in this appeal deal with many matters of detail. However whether the primary judge was correct in making the order he did, is to be assessed by reference to the material before his Honour. That material did not disclose a reasonable cause of action. One of the written submissions ("Outline of submission 4") appears to invite us to treat this appeal as an application for an extension of time to apply for an order for review or relief under any other applicable Act. It then raises various matters that take the form of grounds of review.

13 The primary judge made it clear in his judgment that if the appellant wanted to bring proceedings in a proper form, he could do so. There would, of course, be questions about whether time should be extended even if an application is filed that raises grounds of apparent substance. However an appeal to this Full Court is not the proper mechanism for making such an application. A fresh application would have to be filed. Until and unless that happens, the appellant is bound by the application he filed on 4 October 2001 which both the primary judge and this Full Court considers discloses no reasonable cause of action.

14 The appeal will be dismissed. While the respondents did not take the point, the judgment under appeal is probably an interlocutory judgment. Leave to appeal would be necessary. If so, for the reasons given leave should be refused.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Carr, Moore and Marshall.

Associate:

Dated: 14 May 2002

The Appellant appeared in person (with the assistance of an interpreter)
Counsel for the Respondents:	Mr P R D Gray
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	10 May 2002
Date of Judgment:	10 May 2002