Optus data breach claim develops

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This matter arose out of an alleged data breach by Singtel Optus Pty Ltd (Optus data breach). The Privacy Act 1988 (Cth) contains a detailed regime for the lodgement of a ‘representative’ complaint under that Act with the Australian Information Commissioner (in terms which, in many respects, closely 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, on 4 October 2022 a representative complaint was lodged with the AIC in respect of the Optus data breach, by an applicant who is represented by Johnson Winter & Slattery (JWS Complaint). Subsequently, a second representative complaint was lodged with the AIC in respect of the Optus data breach, by the present applicant who is represented by Maurice Blackburn (and on behalf of substantially the same class members covered by the JWS Complaint) (First MB Complaint). At a later time, the same applicant lodged an identical representative complaint, after he had formally opted out of the JWS Complaint (which he had not done before lodging the First MB Complaint) (Second MB Complaint). The Second MB Complaint was, in effect, intended to replace the First MB Complaint.

The AIC declined to investigate the Second MB Complaint (or, for that matter, the First MB Complaint), on the basis that the Act does not permit the lodgement of a second (or subsequent) representative complaint in relation to the same subject matter, and on behalf of the same or substantially the same class members, as an existing representative complaint. In this proceeding the applicant sought judicial review of the AIC’s decision.

In short, the applicant contended that there was nothing in the Act which expressly or impliedly prohibits the lodgement of a ‘competing’ or ‘overlapping’ representative complaint, and the AIC was therefore obliged to investigate the Second MB Complaint, and its decision not to do so was invalid. In the alternative, the applicant contended that if the Act does prohibit multiple representative complaints in relation to the same subject matter and on behalf of the same class members, then the AIC erred in treating the first in time as the sole criterion determinative of the question as to which of the representative complaints ought be treated as validly lodged and investigated by the AIC, and that the first in time was an irrelevant consideration.

In support of its position the AIC principally relied on s 39 of the Act, which provides that “[a] person who is a class member for a representative complaint is not entitled to lodge a complaint in respect of the same subject matter”.

Justice Beach undertook a detailed analysis of the relevant provisions of the Act, and concluded that, when properly construed, none of the provisions supported the conclusion that only one representative complaint could be validly lodged in relation to a particular subject matter. In relation to s 39 specifically, his Honour held that the reference to “a complaint” in that section was (consistent with the heading to the section and other extrinsic materials) to be read as a reference to an ‘individual complaint’ only – in other words, a person who is a class member in relation to a representative complaint is prohibited from lodging an individual complaint in relation to the same subject matter, but is not prohibited from lodging a separate representative complaint in relation to that subject matter. As his Honour put it, s 39 “was not introduced to deal with duelling representative complaints” (at [90]).

In those circumstances, notwithstanding that the Second MB Complaint was lodged later in time than the JWS Complaint, it was nevertheless a validly lodged representative complaint. Further, although ss 38A and 41 of the Act gave the AIC a discretion to de-class the Second MB Complaint or otherwise not to investigate it, or investigate it further, there was no suggestion that the AIC had (at least as yet) purported to exercise that discretion – instead, the AIC’s decision not to investigate the Second MB Complaint was based solely on the (erroneous) contention that it was not validly lodged.

Thus, his Honour made an order quashing the AIC’s decision not to investigate the Second MB Complaint, with the result that the AIC is, in accordance with ss 36A and 40 of the Act (and subject to any later exercise of the AIC’s discretion under ss 38A and 41 of the Act) “required to investigate the act or practice” which was the subject of the complaint.

Foley v Australian Information Commissioner [2024] FCA 169

Federal Court of Australia, Beach J, 1 March 2024
Applicant’s Solicitors: Maurice Blackburn
Respondent’s Solicitors: Australian Government
Solicitor Applicant’s Funder: N/A

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