PQ (a pseudonym) v The Law Society of New South Wales (No 5)

By notice of motion filed on 21 April 2021, the second defendant, the College of Law Limited (the College) seeks an order, pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 6.29, that it be removed as a party to the proceedings; and, in the alternative, an order that the plaintiff’s claim be summarily dismissed against it pursuant to UCPR, r 13.4(1).

On 8 July 2020 the first defendant, the Law Society of New South Wales (the Society) granted a practising certificate to the plaintiff which was subject to three conditions. Of present relevance, the plaintiff’s practising certificate was subject to a condition that he complete a Practice Management Course (PMC) before being eligible to be a principal of a law practice.

The plaintiff enrolled in the PMC conducted by the College. He successfully completed the course and obtained a certificate from the College dated 14 January 2021. When the Society became aware of his successful completion of the PMC (through inspecting documents produced in answer to a notice to produce issued in these proceedings), it issued a further practising certificate to the plaintiff which was no longer subject to the condition that he complete the PMC.

The plaintiff commenced the PMC on 23 November 2020. On 24 November 2020, the College advised the plaintiff that the Society had sought confirmation from the College that the plaintiff had enrolled in the PMC. The College sought the plaintiff’s permission to pass on this information but, on 7 December 2020, the plaintiff declined to give it and stated:

Also on 7 December 2020, the plaintiff made a request of the College that it provide him with his “personal information”. By email dated 14 December 2020 sent at 11.54am, the College confirmed that it would not respond to the Society’s inquiry. As to the plaintiff’s request, the College wrote:

Later on 14 December 2020, the plaintiff lodged a complaint with the Office of the Australian Information Commissioner (OAIC) in which he said:

The plaintiff identified, in the appropriate location on the complaint form, the resolution he sought from the OAIC as follows:

On 18 December 2020, the College (by its Chief Operating Officer, Ms Stella) sent an email to the plaintiff advising him that the College would provide him with the personal information he had requested.

On 24 December 2020, the plaintiff commenced these proceedings by summons and named the Society as the first defendant, the College as the second defendant and the NSW Legal Services Commissioner as the third defendant. The summons claimed the following relief against the College:

The summons was not served on the Society or the College until about 10 February 2021. It was never served on the NSW Legal Services Commissioner.

On 11 January 2021, the College posted the plaintiff’s personal information to his address in accordance with his request that a hard copy be provided by post rather than a soft copy online.

On 14 January 2021, the College advised the plaintiff that he had passed the PMC.

On 17 February 2021, the OAIC, as part of the preliminary inquiries into the plaintiff’s complaint, wrote to the College about the plaintiff’s complaint and noted that the plaintiff had advised that “the College has interfered with his privacy by failing to provide access to all his personal information that the College holds, specifically information that has been redacted”. The OAIC sought a response by 25 February 2021.

The College provided the OAIC with a timeline of the steps it took to comply with the plaintiff’s request for access to his personal information as well as unredacted copies of the emails which had been provided to the plaintiff in redacted form (so that the OAIC could be satisfied that they did not relate to the plaintiff’s personal information).

On 26 March 2021, the OAIC advised the College that it had formed the view that the College had not interfered with the plaintiff’s privacy within the meaning of the Privacy Act 1988 (Cth) and that it was satisfied that the College had provided the plaintiff with access to personal information it held about him. The OAIC also told the College that it had decided, pursuant to s 41(1)(a) of the Privacy Act, to decline to investigate the plaintiff’s complaint further on the grounds that the College had not interfered with the plaintiff’s privacy. The OAIC confirmed that its investigation officer had sighted the unredacted emails and could confirm that the information redacted did not relate to the plaintiff. The OAIC confirmed that it had closed its file.

On 6 April 2021, the plaintiff filed an amended summons, which claimed the following relief against the College:

On 14 April 2021, Ms Gibson, the Director, Licensing and Registry of the Society, wrote to the plaintiff as follows:

The Privacy Act contains, in Sch 1, “Australian Privacy Principles”, which include principle 12, which concerns access to personal information. Clause 12.1 provides that a relevant entity (which was accepted to include the College) which holds personal information about an individual is obliged, on request, to give the individual access to the information. Exceptions include circumstances where giving access would have an unreasonable impact on the privacy of other individuals. It was common ground that the College was obliged, under principle 12.4(a)(ii) and (b), to give access to the plaintiff to his personal information within a reasonable period after the making of a request and in the manner requested by him, if reasonable and practicable.

Section 36(1) of the Privacy Act provides that a person may make a complaint to the OAIC “about an act or practice that may be an interference with the privacy” of the person. The OAIC has power to investigate complaints. However, s 41(1)(a) provides that the OAIC may decide not to investigate, or not to investigate further, an act or practice about which a complaint has been made under s 36 if the OAIC is satisfied that the act or practice is not an interference with the privacy of an individual.

Part VIB of the Privacy Act provides for enforcement in the form of civil penalties (s 80U), enforceable undertakings (s 80V) and injunctions (s 80W). The OAIC is the only authorised person who can seek civil penalties or enforceable undertakings, but any person can seek an injunction under s 80W.

Ms Curtin, who appeared for the College, accepted that s 121 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) would authorise the Federal Court or the Federal Circuit Court, as well as this Court under cross-vesting legislation to grant a “restraining injunction” (s 121(1)) or a “performance injunction” (s 121(2)) against the College if it had refused or failed to comply with an enforceable provision. Ms Curtin accepted that the Privacy Principles fell into the category of enforceable provisions.

The plaintiff submitted that there was no basis for removal of the College as a party or dismissal of his claims for relief against the College. He referred to General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 and relied on the well-known statements of principle as to the inadvisability of summary dismissal except in the clearest of cases.

It is important, however, when an application for summary dismissal is made, to have regard to the importance of not subjecting defendants to hopeless claims by plaintiffs which are, from the outset, doomed to fail. The summary dismissal procedure was considered by the Court of Appeal in Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553 at [74]-[75] where Macfarlan JA (Spigelman CJ and Allsop P agreeing) said:

For the reasons which follow, I consider that this case falls into the category of cases where the appropriate course is to summarily dismiss the proceedings against the College. There is no discernible issue of fact relating to the remedies sought against the College. The real question is whether there is any arguable basis as a matter of law for the remedies sought to be granted to the plaintiff against the College. It is convenient to address the prayers for relief in turn since each gives rise to slightly different issues.

The first prayer for relief in the amended summons is the sole complaint of actionable conduct against the College since it seeks an injunction under s 80W of the Privacy Act to compel the College to allow the plaintiff to inspect his personal information. Ms Curtin accepted that the plaintiff had standing to seek the relief and that this Court had the jurisdiction to grant it as a matter of law. However, there is no relevant factual issue to be tried. The College, far from refusing or failing to provide the plaintiff with his personal information, has already provided all the plaintiff’s personal information to him. Further, prior to commencing these proceedings, he sought relief from the OAIC, which was not forthcoming because it was found to be without merit. As referred to above, the complaint to the OAIC against the College was dismissed on the basis that there was no breach of the Australian Privacy Principles in Sch 1 of the Privacy Act.

In these circumstances, the plaintiff’s claim for relief in prayer 1 would appear to be an abuse of process since the plaintiff purports to seek that which has already been provided.

When deciding to exercise a power under the UCPR, it is necessary to have regard to their overriding purpose to facilitate the just, quick and cheap resolution of the real issues between the parties: s 56 of the Civil Procedure Act 2005 (NSW). I am persuaded by Ms Curtin that there is no real issue between the plaintiff and the College concerning the provision of his personal information. While summary dismissal is not to be granted where there is an arguable cause of action, I am satisfied that the claim for relief in prayer 1 of the amended summons does not contain any arguable cause of action and that the claim is an abuse of process.

The claim in prayer 3 of the amended summons would appear to be entirely otiose. As referred to above, on 14 January 2021, the College issued the plaintiff with a certificate certifying that he had satisfactorily completed the PMC. The Society has since issued an amended practising certificate removing the condition that he undertake the PMC because it is satisfied, as Ms Gibson confirmed on 14 April 2021, that he had completed it. It is an abuse of process to claim something which has already been achieved. The Court’s processes are to be used to determine existing disputes, not record facts relating to matters which, if they were ever in issue, have been resolved by time or circumstance.

This prayer for relief falls into a similar category. It would appear to derive from the plaintiff’s aversion to any information being provided by the College to the Society. There would appear to be no basis for the allegation. Indeed, the evidence establishes that the College was scrupulous about obtaining the plaintiff’s consent before answering the Society’s question about whether he was enrolled in the PMC. When the College learned, following its enquiry, that the plaintiff did not consent to the information being passed on, the College confirmed that it would not pass on any information about him to the Society. There is no suggestion that the College has breached the assurance that it gave to the plaintiff and no identified basis on which this Court could order an injunction. Indeed, the fact that the Society only found out that the plaintiff had passed the PMC when it inspected documents produced by the College pursuant to a notice to produce which he served, is an indication that the College complied with the undertaking. Injunctions are discretionary remedies which are granted where there is a demonstrated need for them to enforce a legal or equitable right. They are not appropriate remedies when the question is no more than hypothetical or rhetorical, as in the present case.

It was common ground that the plaintiff enrolled and participated in, and completed, the PMC. He has no ongoing relationship with the College. Thus, any declaration is solely with respect to past conduct. The plaintiff has not identified any cause of action to which such a declaration is referable. A claim for declaratory relief is granted to resolve a justiciable controversy about legal rights. The plaintiff has failed to identify any basis on which the relief sought in prayer 9 could be granted.

None of the claims for relief against the College is reasonably arguable or could reasonably be granted. In these circumstances, it is oppressive and contrary to the interests of justice to require the College to remain in the proceedings, incurring costs of so doing. No reasonable cause of action or claim for relief against the College is disclosed. The proceedings against the College amount to an abuse of process. In these circumstances, the College is entitled to the relief it seeks in the notice of motion.

It follows from the reasons given above that the second defendant has been improperly and unnecessarily joined to the proceedings and ought not remain as a party.

The parties agreed that there was no reason why the costs ought not follow the event in accordance with the general rule. This principle covers the proceedings as a whole and not merely the notice of motion as I am satisfied that the plaintiff ought not to have joined the second defendant to the proceedings as a party. However, the College did not seek, and the plaintiff has not been heard, on the question whether he ought pay the College’s costs of the proceedings, which will accordingly be reserved.

For the reasons given above, I make the following orders: