McGinn v Australian Information Commissioner (2024, FCA)

by David Markey Yates

FEDERAL COURT OF AUSTRALIA McGinn v Australian Information Commissioner [2024] FCA 1185
File number:	NSD 1070 of 2024
Judgment of:	YATES J
Date of judgment:	14 October 2024
Catchwords:	PRACTICE AND PROCEDURE – application for order suppressing applicant's identity – where applicant seeks to be identified by a pseudonym PRACTICE AND PROCEDURE – application for unilateral maximum costs order in respect of party and party costs recoverable against applicant PRACTICE AND PROCEDURE – application for change of respondent's name
Legislation:	Acts Interpretation Act 1901 (Cth) s 34AB Administrative Decisions (Judicial Review) Act 1977 (Cth) Australian Information Commissioner Act 2010 (Cth) ss 3A, 14, 25, 35 Evidence Act 1995 (Cth) Federal Court of Australia Act 1976 (Cth) Pt VAA, ss 37AF, 37AI Privacy Act 1988 (Cth) ss 36, 41, Sch 1 (Australian Privacy Principles) Public Governance, Performance and Accountability Act 2013 (Cth) s 8 Public Service Act 1999 (Cth) Federal Court Rules 2011 (Cth) rr 5.02, 31.01, 40.51, Sch 1
Cases cited:	Giddings v Australian Information Commissioner [2017] FCA 677; 156 ALD 601 McKay Super Solutions Pty Ltd (Trustee) v Bellamy's Australia Ltd (No 2) [2019] FCA 215; 135 ACSR 278 Shurat HaDin, Israel Law Center v Lynch (No 2) [2014] FCA 413
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	80
Date of last submission:	8 October 2024
Counsel for the Applicant:	Applicant was self-represented
Counsel for the Respondent:	Mr H Rogers
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

NSD 1070 of 2024

BETWEEN:	SOPHIA MCGINN Applicant
AND:	AUSTRALIAN INFORMATION COMMISSIONER Respondent
ORDER MADE BY:	YATES J
DATE OF ORDER:	14 OCTOBER 2024

THE COURT ORDERS THAT:

1. The applicant's interlocutory application for an order that she be identified in this proceeding by a pseudonym and not by her full name, be dismissed.

2. The applicant's interlocutory application for an order that the maximum costs as between party and party that may be recovered from her be $0, be dismissed.

3. On the application of the respondent, the respondent's name be changed to "Australian Information Commissioner".

4. The applicant pay the respondent’s costs of, and incidental to, the applications referred to in Orders 1, 2, and 3.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YATES J:

Introduction

1 These reasons concern three questions before me for determination, specifically:

(a) Should the name of the respondent be changed?

(b) Should the applicant's identity as a party be suppressed?

(c) Should a costs-capping order be made?

2 Before dealing with each question, it is necessary for me to recount the following procedural history.

Background

3 The proceeding was commenced by the filing of an originating application for judicial review (the originating application) under r 31.01 of the Federal Court Rules 2011 (Cth) (the Rules) on 8 August 2024 seeking relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) in respect of a decision:

(a) under s 41(1)(a) of the Privacy Act 1988 (Cth) (the Privacy Act) that the act or practice about which the applicant had complained under s 36 thereof (the complaint) was not an interference with her privacy; and

(b) under s 41(1)(da) of the Privacy Act that an investigation of the act or practice was not warranted having regard to all the circumstances.

4 The applicant commenced this proceeding against the respondent named as "Office of the Australian Information Commissioner".

5 Prestige Motors (North Shore) Pty Ltd, trading as North Shore BMW (BMW North Shore) had, apparently, serviced the applicant's motor vehicle for a few years. Her complaint under s 36 of the Privacy Act was that BMW North Shore had interfered with her privacy by failing to provide her with access to an original service record of 15 May 2017 (the service record). In coming to the decisions under review, the decision-maker accepted BMW North Shore's claim that the service record does not exist.

6 The proceeding was allocated to my docket on 13 August 2024. On 20 August 2024, I made an order that the proceeding be listed for a first case management hearing on 2 September 2024.

7 At the first case management hearing, the respondent proposed a timetable for the filing of a court book, affidavits, written outlines of submissions, and lists of authorities. The respondent also sought a listing of the proceeding for a hearing on final relief. Finally, the respondent sought an order that the name "Office of the Australian Information Commissioner" be changed to "Australian Information Commissioner".

8 The applicant opposed the making of an order changing the name of the respondent. She also raised several preliminary matters. First, she sought an extension of time to file a genuine steps statement. Secondly, she sought an order that her identity be supressed and that she be identified only by a pseudonym. Thirdly, she sought an order that the costs of the proceeding be capped. Fourthly, she complained that the respondent had not filed a notice of address for service pursuant to r 5.02 of the Rules.

9 The applicant addressed me briefly on why her identity should be suppressed after I had informed her that I could not see any basis for such an order. I was not prepared to make such an order based on the material then before me. I also had insufficient information to persuade me that a costs-capping order should be made.

10 I therefore made the following orders:

1. By 4:00 pm on 16 September 2024, the applicant file and serve any interlocutory application seeking any order that:

(a) her identity as a party to this proceeding be suppressed; and/or

(b) costs in the proceeding be capped to a maximum amount,

and any affidavit evidence in support of such relief, together with an outline of written submissions, limited to five pages.

2. By 4:00 pm on 30 September 2024, the respondent file and serve any affidavit evidence in response, and any outline of written submissions in response (limited to five pages), to the affidavit evidence and written submissions referred to in Order 1.

3. By 4:00 pm on 7 October 2024, the applicant file and serve any affidavit evidence in reply, and any written submissions in reply (limited to two pages), to the affidavit evidence and written submissions referred to in Order 2.

4. The interlocutory application referred to in Order 1 be determined on the papers.

5. By 4:00 pm on 9 September 2024, the respondent file short written submissions addressing the reason(s) why the respondent's name should be changed to the Australian Information Commissioner.

6. By 4:00 pm on 16 September 2024, the applicant file and serve any short written submissions in response to the written submissions referred to in Order 5.

7. The issue referred to in Order 5 be determined on the papers.

8. The matter be listed for a case management hearing on 14 October 2024 at 9:30 am.

11 Orders 5 to 7 were made after I had indicated the appropriateness of making Orders 1 to 4.

12 Immediately following the case management hearing on the morning of 2 September 2024, a course of correspondence commenced between the applicant and the Court. I will detail that correspondence (omitting formal parts).

13 At 10.12 am on 2 September 2024, the applicant sent an email to the Court with a communication addressed to me:

Further to the directions made today, the applicant applies for an interim order to use pseudonym for the applicant in the proceedings until the interlocutory application for suppression order is determined.

The respondent is cc'd in.

14 Later that day, I directed the Registry to send an email to the parties, as follows:

Ms McGinn's email seeking an interim suppression order has been referred to the Chambers of Yates J. His Honour has asked me to advise that he is not satisfied on the material presently before him that it is appropriate to make an interim order suppressing Ms McGinn's identity as a party in this proceeding.

15 At 2.56 pm on the same day, the applicant sent a further email to the Court with another communication addressed to me:

Just to clarify that my application for interim order is per s37AI of Part VAA of FCA Act, which to be made without determining the merits (material) of the substantive application, rather, it is an exercise of discretion (the Court may).

And the relevant considerations are APP2 of Privacy Act and s37AC of FCA Act.

16 At 1.45 pm on 3 September 2024, the applicant sent another email to the Court with a communication addressed to me:

The registry confirmed that my email (further submissions) clarifying the legal basis of my interim suppression order application has also been forwarded to you with the request to change the date for order 3, however, the amended order didn't mention it.

Please advise when you will consider the further submissions and advise your decision on the interim order?

17 Later that day, I directed the Registry to send the following email to the parties:

His Honour notes Ms McGinn's email of 2 September 2024 at 2.56 pm. The position remains that his Honour is not satisfied on the material presently before him that it is appropriate to make an interim order suppressing Ms McGinn's identity as a party in this proceeding.

18 At 5.12 pm on the same day, the applicant sent an email to the Court with a communication addressed to me:

I am writing, per s13 of AD(JR) Act, to request a written reasons for your decision not to make interim suppression order, including the material on which the finding 'it is not appropriate' was based and give reasons for that refusal.

Given my next filing date is on 16/9/2024, could you please provide the written reasons by 6/9/2024?

(Original in italics.)

19 On the morning of 4 September 2024, I directed the Registry to send the following email, addressed to the applicant, to the parties:

Your email of 3 September 2024 at 5.12 pm has been referred to his Honour.

His Honour has instructed me to advise that his decision not to make an interim suppression order is not a decision to which s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) applies.

Once his Honour has determined the interlocutory application that you propose to bring for a suppression order, he will publish written reasons for his decision. The written reasons will include his reasons for not making an interim suppression order.

20 At 9.59 am on the same day, the applicant sent an email to the Court asking that "the following Application of Recusal on Actual Bias to Justice Yates for consideration" be forwarded to me:

Firstly, decision made by OAIC is not listed as excluded decision under Schedule 2 of AD(JR) Act, therefore, your response is false.

Secondly, your statement the written reason will be given with interlocutory application is an admission it is not excluded.

That is a display of actual bias: so committed to the refusal even with a false statement.

(Original in italics.)

21 Further communications passed between the applicant and the Court on 5 and 6 September 2024 in respect of the applicant's allegation of bias.

22 At 9.07 am on 5 September 2024, the applicant sent another email to the Court containing a communication addressed to me:

In relation to my Application of Recusal, given my next filing date is on 16/9/2024, please advise your decision by COB tomorrow, alternatively, extend the date for order 1 taking into account the time the court needs to consider the application.

If the respondent requests the same extension for order 2, please extend for order 3 as well.

(Original in italics.)

23 Later that day, I directed the Registry to send the following email, addressed to the applicant, to the parties:

Your emails of 4 September 2024 at 9.59am and 5 September 2024 at 9.07am have been referred to his Honour.

His Honour has instructed me to advise that if you wish to apply to his Honour to disqualify himself from this proceeding on the ground of actual bias, you should proceed formally by filing an interlocutory application seeking that relief and stating the precise basis for it. Any such application will be heard in open court.

In the meantime, the orders made by the Court on 2 September 2024, as amended on 3 September 2024, remain. The Court expects those orders to be complied with.

24 At 4.45 pm on the same day, the applicant sent a further email to the Court with a communication addressed to me:

My email on 4/9/2024 is the interlocutory application for recusal, lodged in the same way as my application for interim suppression order, which you accepted and determined. Please refer to the precise reasons in that email/application.

Please list the application tomorrow.

If not, the request of filing of Form 35 is another display of actual bias: reckless indifference.

(Original in italics.)

25 On 6 September 2024, I directed the Registry to send the following email, addressed to the applicant, to the parties:

Your email of 5 September 2024 at 4.45pm has been referred to his Honour. His Honour has instructed me to inform you that the position set out in the email to you on 5 September 2024 at 1.30pm remains.

26 At 2.18 pm on the same day, the applicant sent an email to the Court with a communication addressed to me:

I lodged the recusal application with reasons. Your request for an interlocutory application and court hearing is further evidence of actual bias given a refusal to disqualify is not an appealable decision and the relief is to seek writ of prohibition.

If no decision is received by COB today, I will take that my application has been refused.

(Original in italics.)

27 Later that day, I directed the Registry to send the following email, addressed to the applicant, to the parties:

Your email of 6 September 2024 at 2.18pm has been referred to his Honour.

His Honour has instructed me to inform you, again, that the position set out in the email to you on 5 September 2024 at 1.30pm remains. In addition, his Honour has instructed me to inform you that an allegation of actual bias is a serious matter. That being so, his Honour considers that, if you wish to seek an order that he disqualify himself from this proceeding on the basis of bias, that relief should be sought formally. His Honour does not consider it appropriate that such a matter proceed informally, still less by email correspondence. Therefore, any such application should be made in accordance with r 17.01 of the Federal Court Rules 2011 (Cth). If such an application is made, his Honour will deal with it in open court.

Finally, you should not proceed on the assumption in the last sentence of your email.

28 At 4.51 pm on the same day, the applicant sent yet another email with a communication addressed to me:

These emails are genuine steps to resolve the issue.

There is no pre-requirement under s39B of Judiciary Act or s75 of Constitution that I need to apply for recusal and the application was refused for me to file such a writ.

The application for recusal is not an interlocutory application seeking an order on parties of the proceedings.

(Original in italics.)

29 After these reasons had been prepared, and after the parties had been informed that judgment would be given on the questions I have identified on 14 October 2024, the applicant filed two interlocutory applications.

30 The first interlocutory application was dated 10 October 2024. The applicant seeks the following order:

An order to stay these proceedings until the Applicant's appeal at High Court for constitutional writs is determined.

31 The second interlocutory application was dated 11 October 2024. The applicant seeks the following order:

An order to disqualify Justice Yates from presiding these proceedings and future proceedings the Applicant is a party.

32 I will hear these application as soon as I can.

SHOULD THE NAME OF THE RESPONDENT BE CHANGED?

33 As I have noted, the applicant commenced this proceeding against "Office of the Australian Information Commissioner" in relation to decisions under s 41 of the Privacy Act.

34 It is clear from the terms of s 41 of the Privacy Act that the decisions under review are those of "the Commissioner", and of no other person or entity. Section 6 of the Privacy Act states that, for the purposes of that Act, "the Commissioner" is the Information Commissioner within the meaning of the Australian Information Commissioner Act 2010 (Cth) (the AIC Act).

35 The Office of the Australian Information Commissioner was established by s 5(1) of the AIC Act. It consists of "information officers" and the staff mentioned in Pt 3 of the AIC Act: s 5(2) of the AIC Act.

36 The information officers are, respectively: (a) the Information Commissioner; (b) the Freedom of Information Commissioner; and (c) the Privacy Commissioner: s 6 of the AIC Act. The respective functions and powers of the information officers are set out in Div 3 of Pt 2 of the AIC Act.

37 Section 14(1) of the AIC Act provides for the appointment of the Australian Information Commissioner. Importantly, s 3A provides that, in any Act, the Information Commissioner is the person appointed under s 14 of the AIC Act as the Australian Information Commissioner.

38 Therefore, the decision-maker referred to in s 41 of the Privacy Act as "the Commissioner" is the Australian Information Commissioner.

39 The staff of the Office of the Australian Information Commissioner are persons engaged under the Public Service Act 1999 (Cth). Subject to exceptions that are not relevant to the case at hand, s 25 of the AIC Act provides that the Information Commissioner may delegate his or her functions or powers, as the Information Commissioner, to a member of the staff of the Office of the Australian Information Commissioner.

40 The decisions under review purport to have been made under s 41 of the Privacy Act as an exercise of power of the Commissioner. As such, they are decisions apparently made under the authority delegated by s 25 of the AIC Act: see the record of decision annexed to the originating application. This is recognised in the originating application itself, where the applicant pleads that "the officer who made the Decision is a senior officer and is in the capacity of the Commissioner …".

41 In Giddings v Australian Information Commissioner [2017] FCA 677; 156 ALD 601, Tracey J said (at [5]–[7]):

5 In the context of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), the appropriate respondent to an application for judicial review is, prima facie, the decision-maker under the relevant enactment: see Malubel Pty Ltd v Elder (1997) 98 A Crim R 192 at 199; [1997] FCA 1310 at p 11 (Moore J). As s 34AB(1)(c) of the AI Act deems, for the purposes of the enabling enactment, a decision of a delegate to be a decision of the delegator, that section provides a basis for the naming of the delegator as the respondent in this proceeding: see R Creyke, J McMillan and M Smyth, Control of Government Action: Text, Cases and Commentary (LexisNexis Butterworths, 4th ed, 2015) at p 538.

6 There otherwise appears to be no reason why the delegator (in this case the Commissioner) should not be the respondent: see Singh v Minister for Immigration and Border Protection [2016] FCAFC 141 at [37] (Kenny, Griffiths and Mortimer JJ). In many proceedings before this Court, an office-holder will be named as the respondent even when the decision that is challenged is that of a delegate appointed by him or her: see, eg, Orfali v Australian Information Commissioner [2016] FCA 1386; BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530.

7 In my view, it is better that the statutory office holder be named as the respondent in such circumstances. This renders less personal the litigation: cf Re Reference at 95 (Brennan J). It is also generally consistent with the view that, when naming a party, it is appropriate to refer to a person's office, rather than the name of the person who held that office at the time the decision was made: see Kerr v Commissioner of Police (1977) 2 NSWLR 721 at 724–725 (Moffitt P, Hope and Samuels JJA agreeing); Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 191; [1998] FCA 1607 at pp 16 - - 17 (Branson J); Brown v Rezitis (1970) 127 CLR 157 at 169 (Barwick CJ); Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at 529 and 552; [2003] HCA 11 at [31] (McHugh J) and [111] (Kirby J). It also facilitates the easier recognition, from the title of the case, of the general class of case to which the litigation relates. The applicant is in no way disadvantaged by this course being adopted.

42 His Honour's reference to the "AI Act" is to the Acts Interpretation Act 1901 (Cth). Section 34AB(1)(c) thereof provides:

34AB Effect of delegation

General

(1) Where an Act confers power on a person or body (in this section called the authority) to delegate a function, duty or power:

…

(c) a function, duty or power so delegated, when performed or exercised by the delegate, shall, for the purposes of the Act, be deemed to have been performed or exercised by the authority;

…

43 The applicant contends that the Office of the Australian Information Commissioner is an agency, and hence, a legal entity, and that the Australian Information Commissioner is the agency head, but not a legal entity. In this connection she relies on s 5 of the AIC Act, particularly subs (4) thereof:

5. Establishment

(1) The Office of the Australian Information Commissioner is established by this section.

(2) The Office of the Australian Information Commissioner consists of:

(a) the information officers; and

(b) the staff mentioned in Part 3.

(3) For the purposes of the Public Service Act 1999:

(a) the information officers and staff of the Office of the Australian Information Commissioner together constitute a Statutory Agency; and

(b) the Information Commissioner is the Head of that Statutory Agency.

Note: The Information Commissioner holds an office equivalent to that of a Secretary of a Department (see the definition of Agency Head in section 7 of the Public Service Act 1999).

(4) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):

(a) the Office of the Australian Information Commissioner is a listed entity; and

(b) the Information Commissioner is the accountable authority of the Office of the Australian Information Commissioner; and

(c) the following persons are officials of the Office of the Australian Information Commissioner:

(i) the information officers;

(ii) the staff mentioned in Part 3;

(iii) consultants engaged under section 24; and

(d) the purposes of the Office of the Australian Information Commissioner include:

(i) the functions of the Information Commissioner referred to in section 10; and

(ii) the functions of the Freedom of Information Commissioner referred to in section 11; and

(iii) the functions of the Privacy Commissioner referred to in section 12.

44 The applicant also refers to s 35 of the AIC Act, which provides:

35. Information officer etc. not to be sued

(1) This section applies to a person if:

(a) the person is an information officer; or

(b) the person is acting under the direction or authority of an information officer.

(2) The person is not liable to an action, suit or proceeding in relation to an act done or omitted to be done in good faith in the exercise or purported exercise of any power or authority conferred for the purposes of an information commissioner function, a freedom of information function or a privacy function.

45 The applicant submits that there is no valid reason to change the name of the respondent. She appears to contend that, if the respondent's name is changed to the Australian Information Commissioner, she will be disadvantaged having regard to's 35 of the AIC Act, which, she says, would require her to prove that the decisions under review were not made in good faith.

46 The applicant also submits that, even if the respondent were to "concede the decision maker acted in bad faith", an individual (identified by the applicant) should be named as the respondent, not the Australian Information Commissioner, "given there is a change of office".

47 I am not persuaded by the applicant's submissions.

48 First, the decision-maker under s 41 of the Privacy Act is, as I have explained, the Australian Information Commissioner, not the Office of the Australian Information Commissioner.

49 Secondly, the applicant's reliance on s 5 of the AIC Act is misplaced. The applicant's submissions based on s 5(4) ignore the significance of the commencing words of that provision: "For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013) …". The "finance law" is defined in s 8 of the Public Governance and Accountability Act 2013 (Cth) as

8 The Dictionary

…

finance law means:

(a) this Act; or

(b) the rules; or

(c) any instrument made under this Act; or

(d) an Appropriate Act.

50 The present proceeding has nothing to do with the "finance law". Further, the fact that the Australian Information Commissioner is an "official" of the Office of the Australian Information Commissioner and not the listed entity for the purpose of the "finance law" does not mean that the Australian Information Commissioner cannot be, or is not, the proper party in proceedings for judicial review of a decision made under s 41 of the Privacy Act.

51 Thirdly, the present application does not provide the occasion to explore the scope and reach of s 35 of the AIC Act. Whatever scope or reach s 35 might have, it cannot justify the inappropriate joinder, or the misnaming, of a party to a legal proceeding.

52 Fourthly, for the reasons given by Tracey J at [7] in Giddings, I am not persuaded that it is appropriate that a named individual be identified as the respondent in the proceeding.

53 The applicant has misnamed the respondent in the originating application. The respondent's name should be changed to "Australian Information Commissioner" so that the proceeding is properly constituted.

SHOULD THE APPLICANT'S IDENTITY BE SUPPRESSED?

54 The applicant seeks an order that she be identified in this proceeding by a pseudonym and not by her full name.

55 She relies on Australian Privacy Principle 2 (Sch 1 to the Privacy Act) (APP2):

2 Australian Privacy Principle 2––anonymity and pseudonymity

2.1 Individuals must have the option of not identifying themselves, or of using a pseudonym, when dealing with an APP entity in relation to a particular matter.

2.2 Subclause 2.1 does not apply if, in relation to that matter:

(a) the APP entity is required or authorised by or under an Australian law, or a court/tribunal order, to deal with individuals who have identified themselves; or

(b) it is impracticable for the APP entity to deal with individuals who have not identified themselves or who have used a pseudonym.

56 In written submissions dated 16 September 2024, the applicant relies only on para 2.1 of APP2 which, she says, gives her the option of using a pseudonym when dealing with APP entities, including the respondent and the Court (which are both APP entities: see s 6 of the Privacy Act).

57 I am not satisfied that the option to which the applicant refers is available to her. She made her complaint under s 36 of the Privacy Act in her own name. She did not seek anonymity or seek to use a pseudonym. Similarly, she commenced this proceeding for judicial review in her own name. Once again, she did not seek anonymity or seek to use a pseudonym at the time of commencement. She has identified herself. Subclause 2.1 of APP2 does not apply by dint of subcl 2.2(a) thereof.

58 In her written submissions, the applicant eschews reliance on Pt VAA of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) which confers power on the Court to make a suppression order or non-publication order that prohibits or restricts the publication or other disclosure of information tending to reveal the identity of a party to a proceeding: s 37AF(1)(a). This was not always her position.

59 As will be apparent from the correspondence I have recorded at [13]–[19], I was not persuaded that the applicant's application for an interim order suppressing her identity was appropriate. In that correspondence, I said that I would give reasons for not making an interim order when publishing these reasons.

60 The applicant's application for an interim order was advanced on two bases. First, the order was warranted because of APP2. Secondly, I should make an interim order under s 37AI of the Federal Court Act (i.e., under Pt VAA of the Federal Court Act).

61 My view as to the applicability of APP2, expressed at [57] above, was the view I initially held at the case management hearing on 2 September 2024. That initial view had not changed when the applicant sent her email at 10.12 am that morning. Important to my mind was the fact that the applicant had pursued her complaint under s 36 of the Privacy Act in her own name and had commenced this proceeding in her own name, thereby disclosing her identity in respect of her complaint.

62 My view, following the applicant's email sent at 2.56 pm on 2 September 2024, which expressly invoked s 37AI of the Federal Court Act to make an interim order, remained the same. I was not persuaded on the material then before me that there was a principled basis on which to make an order under s 37AF(1)(a) of the Federal Court Act and, in those circumstances, I was not prepared to exercise the discretion under s 37AI to make an interim order.

63 On each occasion, my decision not to make an interim order of the Court was an exercise of judicial power.

SHOULD A COSTS-CAPPING ORDER BE WADE?

64 Rule 40.51(1) of the Rules provides that a party may apply to the Court for an order specifying the maximum costs as between party and party that may be recovered for the proceeding. The applicant seeks an order that the maximum costs that may be recovered against her is "$0". In other words, she seeks an order that, if made, would deny the respondent the opportunity to recover costs against the applicant should an order for costs be made in the respondent's favour.

65 In her written submissions dated 16 September 2024 in support of this order, the applicant recites various elements of her claim. She disputes the decision-maker's acceptance that the service record does not exist. The applicant submits that BMW North Shore: (a) made two admissions that the service record exists; and (b) expressed an opinion that the service record does not exist. The applicant says that the latter is an inadmissible opinion for the purposes of the Evidence Act 1995 (Cth) (the Evidence Act). She argues that the decision-maker relied on this "opinion" as the "best available evidence" notwithstanding the admissions that, on her case, were made.

66 The applicant submits that this proceeding raises:

… an important legal principle that (sic) of public importance: whether an opinion that is not admissible is the 'best available evidence'.

67 The applicant develops this submission by contending that the respondent did not give any reason to "justify" BMW North Shore's "opinion" as "the best available evidence".

68 She then points to the definition of "costs as between party and party" in the Dictionary in Sch 1 to the Rules:

costs as between party and party means only the costs that have been fairly and reasonably incurred by the party in the conduct of the litigation.

69 The applicant appears to submit that, if the respondent succeeds in the proceeding, any costs it incurs from 18 July 2024 would be "unfair and unreasonable" because they would be costs "caused" by its own conduct. In her reply submissions, the applicant advances a variant of this argument. She contends that, should the respondent succeed for reasons it has not provided to her, then the respondent's costs will have been incurred "unfairly and unreasonably".

70 I do not accept these submissions. They do not withstand scrutiny.

71 First, the applicant's case, as outlined by these submissions, does not raise an important legal principle of public importance.

72 Secondly, if the respondent succeeds in this proceeding, it will be because the applicant has not established her case for judicial review. That being so, it cannot be that the respondent has "caused" its own costs burden.

73 Thirdly, if the respondent succeeds in this proceeding on the basis of reasons it has not provided to the applicant then, to the extent that that matter is relevant to the consideration of costs, the applicant can advance it at the appropriate time. It is not a reason for making a costs-capping order.

74 Fourthly, the fact that a respondent chooses to defend a proceeding does not, without more, mean that, in doing so, it will not incur costs fairly and reasonably in the conduct of the litigation.

75 Fifthly, the applicant's reliance on the opinion rule in the Evidence Act is misconceived and inapposite.

76 There are other difficulties with the application for a costs-capping order. Rule 40.51 does not permit a "unilateral" costs-capping order, such as the applicant seeks. The order must apply in favour of both parties and cannot be made solely for the benefit of one party to the proceeding: Shurat HaDin, Israel Law Center v Lynch (No 2) [2014] FCA 413 at [10]; McKay Super Solutions Pty Ltd (Trustee) v Bellamy's Australia Ltd (No 2) [2019] FCA 215; 135 ACSR 278 at [70].

77 Further, it is inappropriate to cap the respondent's recoverable costs at "$0". The effect of such an order would be to insulate the applicant from all risks of the litigation she has commenced. This is not the intended purpose of an order made under r 40.51. Such an order would be manifestly unjust to any respondent who is an unwilling party to the litigation and who reasonably incurs legal costs in conducting its defence.

78 I decline to make the order that the applicant seeks.

DISPOSITION

79 The applicant has failed in seeking an order that she be identified in this proceeding by a pseudonym and not by her full name, and in seeking a costs-capping order. She has also failed in opposing the change of the respondent's name.

80 The applicant must pay the respondent's costs of all applications.

I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates.

Associate:

Dated: 14 October 2024