The growing recognition of enforceable rights to privacy across the common law world creates tensions with the existing protections afforded to another dignitary interest, reputation, through the tort of defamation. One area in which this tension is acute is the disposition towards injunctive relief. Defamation law has consistently taken a restrictive approach to injunctive relief, based on a commitment to freedom of speech and an aversion to prior restraint. Yet courts, particularly in the United Kingdom, have shown a readiness to grant injunctions to protect privacy. The interaction between reputation and privacy has not been adequately explored. Taking as its starting-point the decision of Tugendhat J in Terry v Persons Unknown, this article analyses the potentially conflicting approaches to injunctive relief in defamation and privacy. It argues that seeking to ascertain whether the essence of the proceedings in reputation or privacy does not provide a principled approach to the resolution of this problem. The interaction between defamation and privacy poses a problem for the coherent and orderly development of the law. Viewed from this perspective, the article argues that a novel cause of action needs to develop to ensure coherence with the well-established cause of action for defamation. In doing so, it examines a difficult issue of principle raised by this interaction, such as the concept of ‘false privacy’, as well as challenging the view that an award of damages vindicates a plaintiff’s reputation, whereas a plaintiff’s privacy can only be protected by an injunction.
In Rahman v Dubs [2012] NSWSC 1065 Garling J states
In the "Additional Submissions" to the Court, Mr Rahman refers to these documents and quotes from a part of the letter of the Vice Chancellor of UTS. He then makes this assertion:
"And, thus in doing such acts by the Officials, UTS the applicant construes are of violations of:
UNHR - Human Rights Article 26 Right to education -
ICCPR - article 14, 1966 [entry into force 1976],
International Covenant on Economic and Social and Cultural Rights [Australia is a Signatory and ratified State] Article 13(1) Right of everyone to education (c) Higher education ... of free education) and
Anti-Discrimination Act NSW ..."
The next paragraph seems to encapsulate the case that Mr Rahman really wishes to make. It is in these terms:
"Throughout the proceedings the applicant submits with evidences of documents in court will testify that the defendant - University of Technology, Sydney - UTS has not submitted any defence for the legitimacy of such acts of 'infringement of educational right' since 2009 to 2012. And thus validates the applicant's relief claims for such acts by the University of Technology - UTS [Officials] in the submitted documents of such legitimate claims and for justice for the cause of UTS decisions that are not legitimate under substantive law of NSW but are of: discretion not obedient to the 'rule of law' since on 19 June 2009."
In short, it seems that Mr Rahman wishes to contend that the conduct of UTS, by its various officers, contravened a right, personal to him, of education, created by one or other or all of:
(a) Article 26 of the Universal Declaration of Human rights which provides: "Everyone has the right to education ... Technical and professional education shall be made generally available and higher education shall be equally accessible to al on the basis of merit";
(b) Article 14 of the International Covenant on Civil and Political Rights which does not refer to education but rather equality before the Courts and standards which relate to the conduct of criminal proceedings; and
(c) Article 13 of the International Covenant on Economic, Social and Cultural Rights which reads: "(i) The States parties to the present Covenant recognize (sic) the right of everyone to education ... [and that] ... (c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means ..."
The balance of the submissions seems to make assertions covering allegations involving: (a) counsel for all of the defendants having committed some unspecified crimes; (b) allegations that decisions of McCallum J and Registrar Bradford were an abuse of judicial discretion; (c) allegations that justice has been perverted, obstructed, prevented and disobeyed by both counsel for the defendants and by Judges or other judicial officers of the Court; and (d) there have been breaches, unspecified in nature, or by whom, of Article 70 of the Rome Statute of the International Criminal Court and the International Criminal Court Act 2002 (Cth).
The causes of action based upon breaches of various international covenants and the Universal Declaration of Human Rights, are not justiciable in this Court. There is no domestic legislation, either of the Commonwealth Government, or the NSW Government, which make these international laws part of the domestic law of NSW. A breach of the international covenants, and laws, is not of itself justiciable, unless and until a domestic law adopts these international covenants and makes them a law of the State: Minister for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 183 CLR 273.
But even if they were laws of the State, they are not able to be used in the way in which Mr Rahman seeks to use them. They are statements of ambition, broad rights within a community and perhaps, aspirational goals. They do not create a private cause of action lying in the individual against a State, or any other body, which can be sued upon.
There is no basis at all for any cause of action asserting that counsel for the defendants has committed an unspecified crime nor that there have been breaches of the International Criminal Court Act or Article 70 of the Rome Statue of the International Criminal Court (assuming that it applies directly in Australia). It is unnecessary to determine this question.
There is no basis for an allegation that the decisions of McCallum J and Registrar Bradford were an abuse of judicial discretion, nor is there any basis for allegations that justice has be "perverted, obstructed, prevented and disobeyed".
All of these allegations, to my mind, are vexatious and an abuse of the process of court. There is no reason why the allegations should be allowed to stand, or to be made.
The proceedings as presently constituted insofar as they seek to challenge earlier decisions of UTS are moot. That is because, as the evidence demonstrates, and as the additional submissions of Mr Rahman appear to accept, the decisions which are preventing Mr Rahman attending as a student of UTS are not those sued upon, but rather much later decisions.
If Mr Rahman has any claim for administrative law relief, and it is far from certain that he does, then it is those decisions which, logically, must be the subject of the proceedings. But they are not.
In all of the circumstances, it is clear, beyond argument, that the causes of action relied upon are doomed to fail and it is appropriate for the Court, having regard to the terms in which they are alleged, and the absence of any support them, to exercise its discretion and summarily dismiss the proceedings, because no reasonable cause of action is disclosed and, as a result, the proceedings are an abuse of process of the Court.
