Kant v Chief Commissioner, Victoria Police - Summary Judgment

Original Word Document (86.5 KB) Federal Court of Australia

Kant v Chief Commissioner, Victoria Police [2026] FCA 430

| File number: | VID 1613 of 2025 |
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| Judgment of: | BUTTON J |
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| Date of judgment: | 16 April 2026 |
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| Catchwords: | PRACTICE AND PROCEDURE – pleadings – application to summarily dismiss claims under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth) or strike out statement of claim – whether Applicant has no reasonable prospect of successfully prosecuting the proceeding – held no reasonable prospect of success – application allowed – summary judgment entered for the Respondent against the Applicant |
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| Legislation: | Acts Interpretation Act 1901 (Cth) s 2B

Crimes Act 1914 (Cth) s 43(1)

Federal Court of Australia Act 1976 (Cth) s 31A(2)

Judiciary Act 1903 (Cth) s 80

Privacy Act 1988 (Cth) ss 3, 6, 6C, 6F, 12B, 13, 13G, 13H, 15, 66(1), 66(1AA), 80W, Sch 1

Regulatory Powers (Standard Provisions) Act 2014 (Cth) s 121(2)

Privacy Regulation 2013 (Cth) regs 5, 8, 9

Federal Court Rules 2011 (Cth) r 26.01

Freedom of Information Act 1982 (Vic)

Privacy and Data Protection Act 2014 (Vic)

Victoria Police Act 2013 (Vic) ss 6, 7, 16, 17 |
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| Cases cited: | Cochrane v Bupa Aged Care Australia Pty Ltd [2025] FCA 1560

Kant v Principal Registrar of the Federal Court of Australia [2025] FCA 274

Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808

Scordo v Commonwealth Bank of Australia [2024] FCA 359 |
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| Division: | General Division |
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| Registry: | Victoria |
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| National Practice Area: | Administrative and Constitutional Law and Human Rights |
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| Number of paragraphs: | 44 |
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| Date of last submissions: | 26 March 2026 |
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| Date of hearing: | Determined on the papers |
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| Counsel for the Applicant: | The Applicant represented himself |
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| Counsel for the Respondent: | T Malone |
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| Solicitor for the Respondent: | Victorian Government Solicitor’s Office |
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ORDERS

| | | VID 1613 of 2025 |
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| BETWEEN: | JAN MAREK KANT

Applicant | |
| AND: | CHIEF COMMISSIONER, VICTORIA POLICE

Respondent | |

| order made by: | BUTTON J |
| DATE OF ORDER: | 16 April 2026 |
THE COURT ORDERS THAT:

1. The proceeding be dismissed and judgment be entered for the Respondent pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth).

2. The Applicant pay the Respondent’s costs of the proceeding, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BUTTON J:

Background

1 The Applicant, Mr Kant, has made two freedom of information requests to Victoria Police for documents under the Freedom of Information Act 1982 (Vic) (Victorian FOI Act). The first request was made on 6 July 2023 (first request), and the second request was made on 13 February 2025 (second request). The requests sought records of warrants relating to the Applicant and his property.

2 The first request was refused, but no application for review has been brought forward by the Applicant. The second request has not yet been determined.

3 On 28 November 2025, the Applicant commenced this proceeding against the Chief Commissioner, Victoria Police (Respondent), by filing an originating application together with a statement of claim.

4 The Respondent holds the office established by s 16 of the Victoria Police Act 2013 (Vic) (Victoria Police Act) and was appointed to that office by the Governor in Council pursuant to s 17 of that Act.

5 In broad terms, the Applicant alleges that the Respondent has an obligation under various provisions of the Privacy Act 1988 (Cth) (Privacy Act) to provide him the documents that he has previously sought under the Victorian FOI Act.

6 In his prayer for relief, the Applicant also relies on provisions in the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (Regulatory Powers Act) and the Judiciary Act 1903 (Cth) (Judiciary Act) as a basis for the remedies that he seeks.

7 By his originating application, the Applicant seeks the following relief:

1.    An injunction requiring the Respondent produce, to the Applicant, all records of personal information about the Applicant that in the possession, custody or power of Victoria Police – under 121(2) Regulatory Powers (Standard Provisions) Act 2014 or 12B(1) Privacy Act 1988 or s.80 Judiciary Act 1903 in the alternative.

2.    Ordinary damages – under 12B(1) Privacy Act 1988 or s.80 Judiciary Act 1903 in the alternative.

3.    Exemplary damages in amount equal to sum revenue of Victoria in the years ending 30 June 2024 and 30 June 2025 – under 12B(1) Privacy Act 1988 or s.80 Judiciary Act 1903 in the alternative.

4.    A civil penalty order or similar penalty amount to be paid to the Applicant – under 12B(1) Privacy Act 1988 or s.80 Judiciary Act 1903 in the alternative.

8 Broadly, the Applicant’s pleading contends that the Respondent has breached the Privacy Act, specifically, ss 12B(1), 15, 13H(1), 13G(1), 66(1), 66(1AA), in not providing the Applicant with the information sought. These breaches are said to found the relief sought in the originating application.

9 On 20 February 2026, the Respondent filed an interlocutory application, together with a supporting affidavit of Louarde Thomas (solicitor) dated 20 February 2026, seeking an order that judgment be given summarily against the Applicant pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) or alternatively r 26.01 of the Federal Court Rules 2011 (Cth) (Rules), on the basis that:

(a) the Applicant has no reasonable prospect of success; and/or

(b) no reasonable cause of action is disclosed; and/or

(c) the proceeding is an abuse of process of the Court.

Alternatively, the Respondent seeks an order that the whole of the Applicant’s statement of claim be struck out.

10 The parties jointly requested that the Respondent’s application be determined on the papers. Both parties filed evidence and written submissions.

11 Before addressing the substance of the application, I note that the Applicant is a litigant in person. His written submissions travel well beyond the bounds of the case advanced by the originating application and the statement of claim. For example, the Applicant’s written submissions address various unpleaded claims, including claims concerning a tortious misfeasance in public office, and a suggestion that the Respondent (and/or Victoria Police) has attempted to pervert the course of justice and in doing so, has committed an offence under s 43(1) of the Crimes Act 1914 (Cth). He also makes many submissions about wrongs by Victoria Police, notwithstanding that the only Respondent is the Chief Commissioner, Victoria Police. (Victoria Police is established as a “body” pursuant to s 6 of the Victoria Police Act. The Respondent is one of the persons who, together, comprise Victoria Police (see s 7 of the Victoria Police Act).)

12 These reasons are concerned with the Respondent’s application in relation to the case that the Applicant has advanced. Accordingly, I do not address the claims referred to in the Applicant’s submissions insofar as they are not the claims advanced in the proceeding he has actually commenced against the Respondent against whom the proceeding has been brought.

Principles

13 Section 31A of the FCA Act and r 26.01 of the Rules are relevantly as follows:

31A Summary judgment

…

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

…

26.01 Summary judgment

(1)    A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)    the proceeding is frivolous or vexatious; or

(c)    no reasonable cause of action is disclosed; or

(d)    the proceeding is an abuse of the process of the Court;

…

14 The principles in relation to summary judgment applications are settled. I recently set out the relevant principles in Cochrane v Bupa Aged Care Australia Pty Ltd [2025] FCA 1560 (Bupa). For present purposes, I reiterate the following observations from Bupa:

(1) Granting summary judgment is a serious matter as it brings to an end a litigant’s ability to pursue claims to trial. However, the Court should not shy away from exercising its powers in an appropriate case: at [31], citing Scordo v Commonwealth Bank of Australia [2024] FCA 359 (Scordo) at 53.

(2) There will be no prospect of success in circumstances where there is a defect in pleadings which cannot be cured: at [34], quoting Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 (Prior) at 29(b).

(3) As a general principle, the moving party on an application for summary dismissal is likely to succeed if it can demonstrate to the Court that the applicant’s success in the principal proceedings relies on a question of law that is straightforward and confined, or is trite in the sense that it is well settled on authority, such that the question can be resolved summarily without the necessity for a full trial: at [34], quoting Prior at 29(d).

(4) The Court’s power to give summary judgment under s 31A does not involve “‘mere pleading points’” but is concerned with substance: at [33], quoting Scordo at 42.

Claims concerning Australian Privacy Principle 12

15 The Applicant’s substantive claims allege that, by failing to provide the information sought, the Respondent has contravened s 15 of the Privacy Act. Section 15 provides that an “APP entity must not do an act or engage in a practice, that breaches an Australian Privacy Principle”.

16 The Applicant also contends that, by failing to provide the information sought, the Respondent has contravened ss 13G and 13H of the Privacy Act. Those sections are to be read with s 13(1). Section 13(1) relevantly provides that an “act or practice of an APP entity is an interference with the privacy of an individual if: (a) the act or practice breaches an Australian Privacy Principle in relation to personal information about the individual…” (emphasis in original). The concept of an “interference with the privacy of an individual” is then picked up in ss 13G and 13H as follows:

13G Civil penalty provision for serious interference with privacy of an individual

Civil penalty provision

(1)    An entity contravenes this subsection if:

(a)    the entity does an act, or engages in a practice, that is an interference with the privacy of an individual; and

(b)    the interference with privacy is serious.

…

13H Civil penalty provision for interference with privacy of individuals

Civil penalty provision

(1) An entity contravenes this subsection if the entity does an act, or engages in a practice, that is an interference with the privacy of an individual.

…

17 The Applicant also alleges a contravention of s 66(1) of the Privacy Act. That section provides that a “person contravenes this subsection if: (a) the person is required to give information, answer a question or produce a document or record under this Act; and (b) refuses or fails to do so”. If the Respondent were required to provide information or documents pursuant to the Australian Privacy Principles, a failure to do so would contravene this provision.

18 As may be seen, the claims concerning contravention of ss 13G, 13H, 15 and 66 of the Privacy Act relevantly tie back to the Australian Privacy Principles. Although the Applicant’s statement of claim does not refer to Australian Privacy Principle 12 (Privacy Principle 12), his written submissions make it clear that he relies on Privacy Principle 12.

19 The Australian Privacy Principles are set out in Sch 1 to the Privacy Act. Privacy Principle 12 includes subclause 12.1 which provides:

If an APP entity holds personal information about an individual, the entity must, on request by the individual, give the individual access to the information.

20 For Privacy Principle 12 to apply, the entity that holds the information must be an “APP entity”. The term “APP entity” is defined by s 6 of the Privacy Act to mean “an agency or organisation”.

21 The term “agency” is defined in s 6 as follows:

agency means:

(a)    a Minister; or

(b)    Department; or

(c)    a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a Commonwealth law, not being:

(i)    an incorporated company, society or association; or

(ii)    an organisation that is registered under the Fair Work (Registered Organisations) Act 2009 or a branch of such an organisation; or

(ca)    a body (whether incorporated or not), or a tribunal, established for a public purpose by or under a law (other than a law providing for the incorporation of companies, societies or associations) of a State or Territory as in force in an external Territory, other than a body exempted by the Minister under subsection (5A); or

(d)    a body established or appointed by the Governor-General, or by a Minister, otherwise than by or under a Commonwealth law; or

(e)    a person holding or performing the duties of an office established by or under, or an appointment made under, a Commonwealth law, other than a person who, by virtue of holding that office, is the Secretary of a Department; or

(ea)    a person holding or performing the duties of an office established by or under, or an appointment made under, a law of a State or Territory as in force in an external Territory, other than an office or appointment exempted by the Minister under subsection (5A); or

(f)    a person holding or performing the duties of an appointment, being an appointment made by the Governor-General, or by a Minister, otherwise than under a Commonwealth law; or

(g)    a federal court; or

(h)    the Australian Federal Police; or

(ha)    a court of Norfolk Island; or

(k)    an eligible hearing service provider; or

(l)    the service operator under the Healthcare Identifiers Act 2010.

22 For completeness, reg 5 of the Privacy Regulation 2013 (Cth) (Privacy Regulation) further expands the meaning of the term “agency”. However, these expansions are not relevant to the current proceeding.

23 Clearly, the term “agency” in s 6 is directed at Commonwealth bodies. It includes:

(a) Ministers, references to which are, by s 2B of the Acts Interpretation Act 1901 (Cth), references to Ministers of State for the Commonwealth;

(b) Departments, defined by s 6 of the Privacy Act as agencies within the meaning of the “Public Service Act 1999”, a piece of federal legislation; and

(c) bodies established or appointed under a Commonwealth law.

24 The legislature turned its mind to the extent to which (subject to constitutional limitations) the Privacy Act might bind bodies and persons appointed under State and Territory laws: see subparagraphs (ca) and (ea) of the definition above. However, each of those paragraphs only apply to State law that is in force in an external Territory.

25 It may also be noted that s 3 of the Privacy Act recognises that the States and Territories may have their own laws concerning the same broad subject matter, and preserves the operation of such laws to the extent that they are capable of operating concurrently with the Privacy Act. The Privacy and Data Protection Act 2014 (Vic) is an example of such legislation.

26 Quite obviously, the Chief Commissioner, Victoria Police is not an “agency” within the definition of s 6 of the Privacy Act.

27 As noted above, the other limb of the definition of an “APP entity” is “organisation”. The term “organisation” is defined by s 6C of the Privacy Act as excluding a “State or Territory authority” or a “prescribed instrumentality of a State or Territory”. Section 6C(3) relevantly defines a “State or Territory authority” as follows (emphasis added):

In this Act:

State or Territory authority means:

(a)    a State or Territory Minister; or

(b)    a Department of State of a State or Territory; or

(c)    a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a law of a State or Territory, other than:

(i)    an incorporated company, society or association; or

(ii)    an association of employers or employees that is registered or recognised under a law of a State or Territory dealing with the resolution of industrial disputes; or

(d)    a body established or appointed, otherwise than by or under a law of a State or Territory, by:

(i)    a Governor of a State; or

(ii)    the Australian Capital Territory Executive; or

(iii)    the Administrator of the Northern Territory; or

(v)    a State or Territory Minister; or

(e) a person holding or performing the duties of an office established by or under, or an appointment made under, a law of a State or Territory, other than the office of head of a State or Territory Department (however described); or

(f)    a person holding or performing the duties of an appointment made, otherwise than under a law of a State or Territory, by:

(i)    a Governor of a State; or

(ii)    the Australian Capital Territory Executive; or

(iii)    the Administrator of the Northern Territory; or

(v)    a State or Territory Minister; or

(g)    a State or Territory court.

28 The Respondent, who holds office in accordance with s 16 of the Police Act (as stated above at paragraph 4), is, pursuant to s 6C(3)(e) a person “holding or performing the duties of an office established by or under, or an appointment made under, a law of a State or Territory” and is not performing the duties of an “office of head of a State or Territory Department (however described)”.

29 As such, the Respondent is a State or Territory authority and is excluded from the definition of “organisation”.

30 Section 6C(1) also excludes “prescribed instrumentalities of a State or Territory from the definition of "organisation". However, s 6F operates to treat certain prescribed State or Territory authorities and instrumentalities as if they were an “organisation”. Regulations 8 and 9 of the Privacy Regulation prescribe a number of such bodies for that purpose, including Essential Energy, Ausgrid and Endeavour Energy in New South Wales, and certain South Australian, Western Australian and Northern Territory bodies. Relevantly, the regulations do not prescribe the Respondent and s 6F is therefore not applicable here.

31 Accordingly, the Respondent does not fall within the definition of “APP entity”, meaning that Privacy Principle 12 does not apply to compel him to provide information upon request.

32 As such, the Applicant’s claims against the Respondent, insofar as they harness Privacy Principle 12, have no reasonable prospects of success.

Other claims under the Privacy Act

33 Section 66 of the Privacy Act is not limited to a requirement being imposed on a person to give information, answer questions or provide documents pursuant to the Australian Privacy Principles. However, no potentially relevant obligation under the Privacy Act has been identified, other than Australian Privacy Principle 12 (addressed above).

34 The Applicant also refers to s 66(1AA) of the Privacy Act, but that section is a penalty provision concerning multiple contraventions; it does not create any independent obligation potentially applicable to the Respondent to provide the documents sought by the Applicant, which might be said to have been breached by the Respondent.

35 Finally, the Applicant makes a claim pursuant to s 12B(1) of the Privacy Act. Sections 12B(1) –(2) relevantly read as follows:

12B Severability—additional effect of this Act

(1)    Without limiting its effect apart from this section, this Act has effect in relation to the following (the regulated entities) as provided by this section:

(a)    an agency;

(b)    an organisation;

(c)    a small business operator;

(d)    a body politic.

…

(2)    This Act also has the effect it would have if its operation in relation to regulated entities were expressly confined to an operation to give effect to the following:

(a)    the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23), and in particular Articles 17 and 24(1) of the Covenant;

(b)    Article 16 of the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4).

36 As detailed in his written submissions, the Applicant’s claim in relation to s 12B(1) appears to be that the Respondent is a body politic and must respect the rights of individuals under the I nternational Covenant on Civil and Political Rights (the ICCPR), including the right of receiving information as recognised in Art 19.2 of the ICCPR. The contention is that if the Respondent does not respect these rights and comply with the attached obligations, pursuant to s 12B(1), the Respondent is liable for damages and a civil penalty order, and the Applicant can seek an injunction to compel the Respondent to provide the information as sought.

37 It is not apparent on what basis it might conceivably be said that the Chief Commissioner, Victoria Police, is a “body politic”. In any event, the claims relying on s 12B fundamentally misunderstand its effect. The role and effect of s 12B was explained by Murphy J in Kant v Principal Registrar of the Federal Court of Australia [2025] FCA 274 at [52]:

The applicant’s argument reflects a fundamental misunderstanding of the effect of s 12B of the Privacy Act, which is concerned with ensuring that there is a Constitutional basis for the operation of the Act. It does not operate to alter the meaning of the text of the Act as the applicant proposed. The Explanatory Memorandum to the Privacy Amendment (Private Sector) Bill 2000 provides that “Clause 12B is intended to ensure that the Act is given the widest possible operation consistent with Commonwealth constitutional legislative power.”

38 The Applicant’s claims pursuant to the Privacy Act have no reasonable prospects of success. The claims do not disclose a reasonable cause of action, and the defect, being broadly that the Respondent is not a person to which the alleged provisions of the Privacy Act attach, is not curable.

Relevance of the Regulatory Powers Act and the Judiciary Act

39 The Applicant relies on s 121(2) of the Regulatory Powers Act in seeking an injunction requiring the Respondent to produce, to the Applicant, all records of personal information about the Applicant that are in the possession, custody or power of Victoria Police.

40 Section 121(2) states:

Performance injunctions

(2)    If:

(a)    a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do a thing; and

(b)    the refusal or failure was, is or would be a contravention of a provision enforceable under this Part;

the court may, on application by an authorised person, grant an injunction requiring the person to do that thing.

41 While injunctive relief can be granted under this provision to compel performance of obligations arising under the Privacy Act (see s 80W of the Privacy Act), no applicable obligation on the Respondent with reasonable prospects of success has been identified. Accordingly, the Applicant’s reliance on s 121(2) of the Regulatory Powers Act does not assist.

42 The Applicant also relies on s 80 of the Judiciary Act. Section 80 reads as follows:

80 Common law to govern

So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters

43 Section 80 concerns the applicability of the common law in courts exercising federal jurisdiction. The Applicant’s submissions suggest that the laws of the Commonwealth must be insufficient to carry the Privacy Act into effect if they fail to take into account the guidelines annexed to the 23 September 1980 recommendation of the Council of the Organisation for Economic Co-Operation and Development. Putting to one side the doubtful merit of the premise, no potentially viable common law claim has been advanced by the Applicant.

Conclusion

44 The proceeding will be dismissed with costs on the grounds that the Applicant has no reasonable prospect of successfully prosecuting the proceeding. It is not necessary separately to address the Respondent’s abuse of process contentions. I also note that this is not a case in which an applicant has identified substantive claims that have been poorly pleaded and, in respect of which, an opportunity to re-plead should be afforded. Rather, the claims advanced are misconceived.

| I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Button. |
Associate:

Dated: 16 April 2026

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