McEwan v Office of the Australian Information Commissioner (No 2) [2022] FCA 1452

McEwan v Office of the Australian Information Commissioner (No 2) [2022] FCA 1452

The interlocutory application to "withdraw" the proceeding was in substance an application to discontinue and could be deemed to take effect as a Form 48 notice of discontinuance. Ms McEwan did not require leave to discontinue because the proceeding was on pleadings and pleadings had not closed. She did not establish any good reason to displace r 26.12(7), because the proceeding remained capable of usefully agitating the statutory construction issue despite the asserted error as to the identity of the disclosing taxation officer, and the discontinuance reflected her personal choice to proceed in another matter rather than a necessity rendering the proceeding without utility.

Jurisdiction
Australia
Judgment Date
31 October 2022
Procedural Posture
Judicial Review of a Decision of the Australian Information Commissioner Under S 41(1) of the Privacy Act 1988 (cth) / Interlocutory Application to Withdraw or Discontinue the Proceeding and Application for Relief From the Costs Consequence of R 26.12(7) of the Federal Court Rules 2011 (cth)
Outcome
The interlocutory application was deemed to take effect as a notice of discontinuance, and the applicant's application for relief from the consequences of r 26.12(7) was dismissed.
Legal Topics
['discontinuance of Proceedings' 'notice of Discontinuance' 'costs of Discontinued Proceedings' 'judicial Review of Dismissal of Privacy Complaint' 'taxation Administration Act Disclosure Provisions']
['practice and Procedure' 'costs' 'administrative Law' 'privacy Law'] ['discontinuance of Proceedings' 'notice of Discontinuance' 'costs of Discontinued Proceedings' 'judicial Review of Dismissal of Privacy Complaint' 'taxation Administration Act Disclosure Provisions']

Case Brief

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Procedural Posture

Judicial Review of a Decision of the Australian Information Commissioner Under S 41(1) of the Privacy Act 1988 (cth) / Interlocutory Application to Withdraw or Discontinue the Proceeding and Application for Relief From the Costs Consequence of R 26.12(7) of the Federal Court Rules 2011 (cth)

Legal Issues

  1. 1 ['Whether the applicant\'s interlocutory application to "withdraw" the proceeding should be treated as a notice of discontinuance in Form 48.' 'Whether the applicant required leave to discontinue the proceeding.' 'Whether the applicant should be relieved from the prima facie costs consequence under r 26.12(7) of the Federal Court Rules 2011 (Cth).']

Ratio Decidendi

The interlocutory application to "withdraw" the proceeding was in substance an application to discontinue and could be deemed to take effect as a Form 48 notice of discontinuance. Ms McEwan did not require leave to discontinue because the proceeding was on pleadings and pleadings had not closed. She did not establish any good reason to displace r 26.12(7), because the proceeding remained capable of usefully agitating the statutory construction issue despite the asserted error as to the identity of the disclosing taxation officer, and the discontinuance reflected her personal choice to proceed in another matter rather than a necessity rendering the proceeding without utility.

Court Disposition

The interlocutory application was deemed to take effect as a notice of discontinuance, and the applicant's application for relief from the consequences of r 26.12(7) was dismissed.

Orders

  • ['The interlocutory application filed by the applicant to "withdraw" the proceeding be deemed to be, and take effect for all purposes as if it were, a notice of discontinuance in Form 48.' "The applicant's application for an order relieving her from the consequences of r 26.12(7) of the Federal Court Rules 2011...