VID829/2023 – List of issues (02 May 2025) & non-objection

No. VID 829 of 2023
JAN MAREK KANT
Applicant

AUSTRALIAN INFORMATION COMMISSIONER
Respondent

Applicant’s list of issues
Issues (as questions)

Was the original request a complaint about the Australian Security Intelligence Organisation (ASIO) in which the Applicant claimed ASIO had mishandled his personal information?
Was the original request refused for reasons as stated in the 12 Sep 2023 notification?
Is the refusal decision in accordance with the law?
Can the Respondent investigate an alleged interference with privacy not being an “interference with privacy” in meaning of Part III of the Privacy Act?
Is ASIO exempt from operation of the Privacy Act?
Does the Respondent have authority to investigate the handling of personal information by ASIO?
Does the law Require the Respondent also investigate any interference with the Applicant’s ICCPR rights by ASIO?
Was the refusal decision designed to fail against judicial review?
Did the Respondent contrive for a judgement favouring the Applicant?
Did the Respondent contrive for the proceeding to continue after the Applicant proposed to discontinue it?
Is the Respondent in his official capacity guilty of an offence against the Privacy Act?
Is the Commonwealth guilty of an offence against the Privacy Act?
Did the Respondent attempt “serious interference with the privacy” of the Applicant? If so:

13.1. Is attempted “serious interference with the privacy of an individual” punishable like successful “serious interference with the privacy of an individual”?

Is conduct of the Respondent punishable as “serious interference with the privacy of an individual”? If so:

14.1. Is the Applicant entitled to award of the pecuniary penalty? If so:

14.1.1. What amount is to be awarded?

Did conduct of the Respondent amount to disprivacy? If so:

15.1. Is the Applicant entitled to damages?

Did conduct of the Respondent amount to tortious use/abuse of the process of the Court? If so:

16.1. Is tortious use/abuse of the process of the Court actionable per se?

16.2. Is the Applicant entitled to damages?

How, if at all, should the Applicant’s circumstances and/or the Respondent’s conduct of the proceeding affect the assessment of costs in the proceeding?
Who should pay the costs of the proceeding?

Evidence

For purposes of items [1 – 3, 7] above, evidence includes:
a. The Respondent’s 23 Feb 2024 Tender Bundle
b. The affidavits enclosing “JMK-10” and “JMK-34”
For purposes of items [8 – 16] above, evidence includes:
a. The Respondent’s 23 Feb 2024 Tender Bundle
b. The affidavits enclosing “JMK-8”, “JMK-10” through “JMK-22”, “JMK-24”, “JMK-25”, “JMK-27” through “JMK-30”, “JMK-43”, “JMK-46”, “JMK-48”, and “JMK-49”
For purposes of item [14.1.1] above, evidence includes the affidavits enclosing “JMK-1”, “JMK-8” and “JMK-11”
For purposes of item [16.1, 16.2] above, evidence includes the affidavit enclosing “JMK-26”
For purposes of item [17] above, evidence includes the affidavits enclosing “JMK-1” through “JMK-5”, “JMK-8”, “JMK-9”, “JMK-11”, “JMK-13” through “JMK-16”, “JMK-18”, “JMK-19”, “JMK-21” through “JMK-46”, “JMK-48”, “JMK49” and “JMK-51” though “JMK-55”

Prepared by: Jan Marek Kant, Applicant
02 May 2025

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Jan Kant jmjarosz01@gmail.com
RE: VID829/2023 – JAN MAREK KANT v THE AUSTRALIAN INFORMATION COMMISSIONER [SEC=OFFICIAL] [AGSDMS-DMS.FID5009249]
1 message

Wed, May 7, 2025 at 11:15 AM

Gangemi, Melissa Melissa.Gangemi@ags.gov.au
To: “jmjarosz01@gmail.com” jmjarosz01@gmail.com
Cc: “Assistant.LuxtonR@fedcourt.gov.au” Assistant.LuxtonR@fedcourt.gov.au, “Arduca, Elena” Elena.Arduca@ags.gov.au

OFFICIAL

Dear Mr Kant

VID829/2023 – Kant v Australian Information Commissioner

I am assisting the Australian Information Commissioner (Commissioner) with this matter while Ms Arduca is on leave.

While the Commissioner acknowledges the list of issues attached to your 2 May 2025 email, she does not seek to agree a joint list of issues with you in advance of the case management hearing (CMH).

If you still wish to place the list before the Court in advance of the CMH, the Commissioner will not object to you doing so.

Kind regards

Melissa Gangemi (she/her)
Senior Executive Lawyer
Australian Government Solicitor
T 03 924 21329 M 0458357145
melissa.gangemi@ags.gov.au

Find out more about AGS at http://www.ags.gov.au
Important: This message may contain confidential or legally privileged information. If you think it was sent to you by mistake, please delete all copies and advise the sender. For the purposes of the Spam Act 2003, this email is authorised by AGS.

OFFICIAL

From: Jan Kant jmjarosz01@gmail.com
Sent: Friday, 2 May 2025 6:03 PM
To: Arduca, Elena Elena.Arduca@ags.gov.au
Cc: Assistant LuxtonR Assistant.LuxtonR@fedcourt.gov.au
Subject: Re: VID829/2023 – JAN MAREK KANT v THE AUSTRALIAN INFORMATION COMMISSIONER [AGSDMS-DMS.FID5009249] [SEC=OFFICIAL]

Hi Elena,

Please find attached the “Applicant’s list of issues” I created in response to the requirements mentioned below.

Please let me know if the Respondent agrees with the list, or wishes to add anything, so I can draw up an “Agreed list of issues” for the Court before the 12 May 2025 case management hearing. Many thanks.

Regards,
Jan Marek Kant
Applicant in VID829/2023

On Thu, May 1, 2025 at 4:29 PM Assistant LuxtonR Assistant.LuxtonR@fedcourt.gov.au wrote:

OFFICIAL

Dear parties,

I refer to the above matter and correspondence below.

I advise that, at the case management hearing, the parties will need to explain what is proposed, including what matters fall to be determined by the Court and what material is relied upon.

Further, could the parties please refrain from sending further emails to the Court prior to the hearing, unless such email is sent with the agreement of both parties.

Kind regards,

Heaven Mulugeta Hailu | Legal Case Manager

Federal Court of Australia | 305 William Street, Melbourne VIC 3000
p. (03) 8638 6767 | www.fedcourt.gov.au |
I acknowledge the Australian Aboriginal and Torres Strait Islander peoples as the first inhabitants of the nation and the traditional custodians of the lands where we live, learn and work.

From: Jan Kant jmjarosz01@gmail.com
Sent: Wednesday, 30 April 2025 4:56 PM
To: Assistant LuxtonR Assistant.LuxtonR@fedcourt.gov.au
Cc: Arduca, Elena elena.arduca@ags.gov.au
Subject: Re: VID829/2023 – JAN MAREK KANT v THE AUSTRALIAN INFORMATION COMMISSIONER [AGSDMS-DMS.FID5009249] [SEC=OFFICIAL]

Caution: This is an external email. DO NOT click links or open attachments unless you recognise the sender and know the content is safe.

Hi Heaven,

I understand the case management hearing is going ahead as scheduled and confirm I will be in attendance (barring unforeseen calamity). I also would appreciate an indication of whether the proposed consent order will need further (to the below) explanation.

Regards,
Jan Marek Kant
Applicant in VID829/2023

On Mon, Apr 7, 2025 at 12:31 PM Jan Kant jmjarosz01@gmail.com wrote:

Hi Heaven,

The proposed consent order would cause the proceeding to be determined without the parties being required to attend before the Court or to make further submissions. The substantive proceeding would instead be determined on written submissions the parties made a year ago and each document filed before 21 March 2025, including the 12 Feb 2025 interlocutory judgement, would be considered to the extent of any relevance to the proceeding.

The costs of the case management hearing (if not vacated) and any other costs of making the order would be reserved.

Except for context given it by interlocutory judgements, the matter of the substantive proceeding has not changed since the parties filed their written submissions. To attempt in the substantive proceeding some form of appeal from an interlocutory judgement would be a procedural aberration. No further submissions are required.

I’m aware the costs situation doesn’t look too good for me now and, with that in mind, I’m hoping to avoid requiring the Respondent to attend before the Court. I’m happy to provide further information by email as necessary. Any such email would also be copied to the Respondent.

Regards,
Jan Marek Kant
Applicant in VID829/2023

On Mon, Apr 7, 2025 at 9:10 AM Assistant LuxtonR Assistant.LuxtonR@fedcourt.gov.au wrote:

OFFICIAL

Dear parties,

RE: VID829/2023 – JAN MAREK KANT v THE AUSTRALIAN INFORMATION COMMISSIONER

I refer to the above matter which is listed for case management hearing on Monday, 12 May 2025 at 10 am.

The proposed consent orders were brought to Judicial Registrar Luxton for consideration. I advise the Registrar is not prepared to make the orders on the papers.

Accordingly, appearances will be required at the case management hearing in order to explain what is proposed.

Kind regards,

Heaven Mulugeta Hailu | Legal Case Manager
Federal Court of Australia | 305 William Street, Melbourne VIC 3000
p. (03) 8638 6767 | www.fedcourt.gov.au |
I acknowledge the Australian Aboriginal and Torres Strait Islander peoples as the first inhabitants of the nation
and the traditional custodians of the lands where we live, learn and work.

From: Jan Kant jmjarosz01@gmail.com
Sent: Saturday, 22 March 2025 5:06 PM
To: Assistant LuxtonR Assistant.LuxtonR@fedcourt.gov.au
Cc: Arduca, Elena elena.arduca@ags.gov.au

Subject: Re: VID829/2023 – JAN MAREK KANT v THE AUSTRALIAN INFORMATION COMMISSIONER [SEC=OFFICIAL] [AGSDMS-DMS.FID5009249]

Caution: This is an external email. DO NOT click links or open attachments unless you recognise the sender and know the content is safe.

Hi Heaven,

Please see the attached proposed consent order.

Regards,
Jan Marek Kant
Applicant in VID829/2023

On Fri, Mar 21, 2025 at 6:09 PM Arduca, Elena Elena.Arduca@ags.gov.au wrote:

Dear Mr Kant

We attach proposed consent orders signed by the respondent.

Kind regards
Elena

Elena Arduca
Senior Executive Lawyer
Australian Government Solicitor
T 03 924 21473
elena.arduca@ags.gov.au
Find out more about AGS at http://www.ags.gov.au
Important: This message may contain confidential or legally privileged information. If you think it was sent to you by mistake, please delete all copies and advise the sender. For the purposes of the Spam Act 2003, this email is authorised by AGS.

From: Jan Kant jmjarosz01@gmail.com
Sent: Tuesday, 18 March 2025 12:55 PM
To: Arduca, Elena Elena.Arduca@ags.gov.au
Cc: Assistant LuxtonR Assistant.LuxtonR@fedcourt.gov.au
Subject: Re: VID829/2023 – JAN MAREK KANT v THE AUSTRALIAN INFORMATION COMMISSIONER [SEC=OFFICIAL]

Hi Elena,

Please sign and date, and return to me, the attached consent order if the Respondent will consent to it being made.

Regards,
Jan Marek Kant.

On Tue, Mar 18, 2025 at 11:18 AM Assistant LuxtonR Assistant.LuxtonR@fedcourt.gov.au wrote:

OFFICIAL

Dear Mr Kant,

I have brought your email to the attention of Judicial Registrar Luxton. He has asked me to suggest that you seek to reach agreement with the respondent as to orders which would dispose of the proceeding. If agreement is reached, then proposed consent orders can be submitted to the Court by email to this address.

If agreement cannot be reached, then the matter will remain listed for the case management hearing as scheduled so that the registrar can hear from the parties as to what orders should be made.

Kind regards,

Heaven Mulugeta Hailu | Legal Case Manager
Federal Court of Australia | 305 William Street, Melbourne VIC 3000
p. (03) 8638 6767 | www.fedcourt.gov.au |
I acknowledge the Australian Aboriginal and Torres Strait Islander peoples as the first inhabitants of the nation and the traditional custodians of the lands where we live, learn and work.

From: Jan Kant jmjarosz01@gmail.com
Sent: Thursday, 13 March 2025 7:42 PM
To: Assistant LuxtonR Assistant.LuxtonR@fedcourt.gov.au
Cc: elena.arduca@ags.gov.au
Subject: Re: VID829/2023 – JAN MAREK KANT v THE AUSTRALIAN INFORMATION COMMISSIONER [SEC=OFFICIAL]

Caution: This is an external email. DO NOT click links or open attachments unless you recognise the sender and know the content is safe.

Hi Heaven,

I note my application has no prospect of success after interlocutory judgment of 12 Feb 2025 and request that orders be made accordingly. I also request judgment given in accordance with 20A(2)(c) of the Federal Court Act and the 12 May 2025 listing be vacated for reason of further case management in this matter being unnecessary.

Regards,
Jan Marek Kant
Applicant in VID829/2023

On Thu, Mar 13, 2025 at 5:51 PM Assistant LuxtonR Assistant.LuxtonR@fedcourt.gov.au wrote:

OFFICIAL

Dear parties,

RE: VID829/2023 – JAN MAREK KANT v THE AUSTRALIAN INFORMATION COMMISSIONER

Justice Snaden has referred the above matter to National Judicial Registrar & District Registrar Luxton to conduct the case management of the proceeding.

The matter is listed for case management hearing on Monday, 12 May 2025 at 10.00 am.

The hearing will be conducted in person. The details of the courtroom will be published on the daily list, which is accessible here.

Accordingly, please confirm the suitability of the proposed arrangements.

Kind regards,
Heaven Mulugeta Hailu | Legal Case Manager
Federal Court of Australia | 305 William Street, Melbourne VIC 3000
p. (03) 8638 6767 | www.fedcourt.gov.au |
I acknowledge the Australian Aboriginal and Torres Strait Islander peoples as the first inhabitants of the nation and the traditional custodians of the lands where we live, learn and work.

If you have received this transmission in error please notify us immediately by return e-mail and delete all copies. If this e-mail or any attachments have been sent to you in error, that error does not constitute waiver of any confidentiality, privilege or copyright in respect of information in the e-mail or attachments.

OFFICIAL

JMKvAIC List of issues.pdf 203K

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