Medibank seeks to restrain Information Commissioner in data breach case

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This matter arose out of an alleged data breach by the applicant (Medibank). The Privacy Act 1988 (Cth) (Act) contains a regime for the lodgement of a ‘representative’ complaint under that Act, in terms which in some respects resemble the regime under Part IVA of the Federal Court of Australia Act 1976 (Cth) for the commencement of a representative proceeding. Pursuant to that regime, the second respondent to this proceeding lodged a representative complaint with the first respondent (AIC). Separately, a representative proceeding was commenced in the Federal Court against Medibank arising out of the same facts, but by a different party and represented by different solicitors (Class Action Applicant). Medibank sought an injunction against the AIC to restrain it from making a determination in respect of the representative complaint lodged with it (and also in respect of a separate investigation commenced by the AIC on its own initiative, which it was intended would be investigated concurrently with the representative complaint). The Class Action Applicant intervened in the proceeding, in support of Medibank’s application.

Medibank contended, in substance, that any determination made or enforced by the AIC poses a real risk of interference with the administration of justice having regard to the issues raised in the separate class action proceeding, including a real risk of inconsistent factual and legal findings being made in respect of the same or overlapping questions.

Justice Beach accepted that if there was a real risk of the AIC’s investigation interfering with the administration of justice (in the sense of constituting a contempt), there was nothing in the Act which countenanced that, and therefore it would be open to the Court to grant an injunction. However, his Honour dismissed the application, finding in substance that, at least at this stage, any risk was speculative and theoretical, and was remote rather than immediate, and therefore did not rise to the level of a ‘real risk’. His Honour’s reasons are lengthy, but a key component of his reasoning was that determinations of the AIC are not per se binding or enforceable, and can only be enforced by taking proceedings in, inter alia, the Federal Court, at which time, if it arises, the Court will be well placed to manage any issues that may arise. Thus, his Honour said (at [129], [157], [201], [203]):

In my view the fact that the AIC’s opinion about matters of fact or law might be different from the Court’s findings and conclusions in respect of the same subject matter does not embarrass or prejudice the Federal Court representative proceeding in any way. Even though a power of inquiry and determination may be conferred on an administrative body which can encompass the formation and expression of an opinion about an existing legal right or obligation, the mere possibility of a difference of opinion between an administrative or executive body and a Court is insufficient to give rise to a contempt.

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I do not see anything which warrants granting an injunction at this stage on these various contingent and compounding possibilities… [A] theoretical tendency to interfere with the course of justice is not enough. The tendency must be a practical reality. The context before me is nowhere near that end of the spectrum. Whether it moves closer to that end at some later stage I cannot say at the present time. Medibank is not foreclosed from making a later application if there are relevant changed circumstances.

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The suggestion that the AIC’s future processes will constitute a contempt by having a real and definite tendency to prejudice or embarrass the Federal Court representative proceeding is speculative.

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Even if there was some substance to Medibank’s points, in my view it would be premature to grant an injunction. The relevant risk is not so immediate such as to justify an injunction now which for all practical purposes is likely to carry with it permanent consequences concerning the statutory processes under the Act … When a determination would be made under s 52 by the AIC is uncertain. The content of such a determination is also uncertain. Further, whether and when there would be enforcement proceedings under s 55A is also uncertain. And the timing and disposition of the Federal Court representative proceeding is also uncertain. Generally, there is lacking the immediacy of any risk concerning inconsistent findings. But in any event, and as I have said, although that risk is important to the principal question it is not determinative as to whether there may be an interference with the administration of justice.

Medibank Private Ltd v Australian Information Commissioner [2024] FCA 117

Federal Court of Australia, Beach J, 22 February 2024
Applicant’s Solicitors: King & Wood Mallesons
Respondents’ Solicitors: DLA Piper Australia / Maurice Blackburn
Interveners’ Solicitors: Baker McKenzie
Applicant’s Funder: N/A

AustLII Link

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