THE SUPREME COURT
[Appeal No: 2015/017]
In the Matter of the Data Protection Acts 1988 and 2003
And In the Matter of an appeal purportedly pursuant to Section 26 of the Data Protection Acts, 1988 and 2003
The Data Protection Commissioner
Judgment of Mr. Justice Clarke delivered the 28th April, 2016.
1. I concur with the order proposed by O’Donnell J. including the decision to refer certain questions to the Court of Justice. I also fully agree with the judgment of O’Donnell J. on the question of whether an appeal lies from a decision of the Data Protection Commissioner to the effect that a complaint under s.10(1)(a) of the Data Protection Act is frivolous or vexatious. I have nothing to add to the judgment of O’Donnell J. on that question.
2. On the question of the nature of the appeal which thereby is permitted I agree with O'Donnell J. that this issue does not have any impact on the substance of Mr. Nowak’s appeal in this case since, as O'Donnell J. points out, the issue which Mr. Nowak raises is essentially a question of law. That issue, being whether his examination paper was personal data within the meaning of the Data Protections Acts, is largely a question of the application of the Acts, as properly interpreted, to facts in respect of which there is little dispute. On that basis it is clear that, even if the nature of the appeal permitted is of quite a limited scope, Mr. Nowak would be entitled to have the court consider the merits of whether the substance of the decision of the Data Protection Commissioner to the effect that his examination paper did not constitute personal data for the purposes of the Acts was correct. If it should transpire that the commissioner was incorrect in coming to that conclusion then it almost inevitably follows that the commissioner would have made an error of law such that his decision could be reversed under any form of appeal contemplated.
3. My only reason for adding this brief concurrence is that I would, unlike O'Donnell J., wish to reserve a final decision on the question of whether the test identified in Orange Communications Limited v. The Director of Telecommunications Regulation and anor  4 I.R. 156 is the appropriate test to be applied in this case. I do, in this context, note that O’Donnell J. has left open the question of whether it may be appropriate to look again at the precise parameters of the test identified in Orange.
4. I very strongly agree with the observation contained in the judgment of O'Donnell J. which notes with some alarm that legislation very frequently provides for an appeal of some nature to some court in our legal system without specifying the nature of the appeal concerned. I sought to analyse some of the difficulties which arise from the fact that legislation or, indeed, the rules of private organisations, frequently provide for an appeal without specifying the nature of the appeal in Fitzgibbon v. Law Society  IESC 48. It seems to me that there is much merit in attempting to bring a greater level of cohesion to the structure of appeals generally. Some of that cohesion may not be possible without legislative intervention or improved drafting in the rules of private bodies. However, in my view, the courts should do their best to attempt to bring about as much cohesion as is possible without such outside intervention. Precisely where the Orange test, in whatever formulation, might fit into a more coherent structure (if at all) is a matter which may need to be considered in that context. However, it does not appear to me that this case is the appropriate vehicle to attempt so to do.
5. For the reasons already noted it does not seem to me that it is, strictly speaking, necessary to decide such questions in order to resolve this case. I would prefer to leave those issues to a case in which same might prove decisive. However, that view does not lead to me reaching any different conclusion as to the ultimate outcome of these proceedings and I, therefore, agree with the order proposed by O'Donnell J. including the order for reference to the Court of Justice.