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  • Unreported Judgment

Adani Mining Pty Ltd v Office of the Information Commissioner

 

[2020] QCATA 52

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Adani Mining Pty Ltd v Office of the Information Commissioner & Ors [2020] QCATA 52

PARTIES:

adani mining pty ltd

(applicant/appellant)

 

v

 

office of the information commissioner

(first respondent)

TOWNSVILLE CITY COUNCIL

(second respondent)

AUSTRALIAN BROADCASTING CORPORATION

(third respondent)

APPLICATION NO/S:

APL088-19

MATTER TYPE:

Appeals

DELIVERED ON:

28 April 2020

HEARING DATE:

14 April 2020

HEARD AT:

Brisbane

DECISION OF:

Member D J McGill SC

ORDERS:

  1. The appeal is allowed.
  2. The decision of the Information Commissioner made on 12 March 2019 is set aside.
  3. The matter is returned to the Information Commissioner for reconsideration in accordance with this decision of the Appeal Tribunal.
  4. The parties shall file any submissions on costs by 4:00pm on 8 May 2020. 
  5. Unless either party requests an oral hearing by telephone, the issue of costs will be determined on the papers on a date to be fixed by the Tribunal. 

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – question of law – right to information – disclosure – where Office of the Information Commissioner allowed access to documents – where Office of Information Commissioner found documents not exempt from disclosure under Right to Information Act 2009 (Qld) Schedule 3 section 8(1)  – whether section extends to contractual confidentiality – whether error in failing to find contract – whether fresh evidence admissible on appeal – whether relevant to consider whether disclosure of information was in the public interest – whether the Office of the Information Commissioner erred in law

Right to Information Act 2009 (Qld), s 47, s 48, s 119, Schedule 3 s 8

Callejo v Department of Immigration and Citizenship [2010] AATA 244

Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434

Crown Resorts Ltd v Zantran Pty Ltd [2020] FCAFA 1

Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10

Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151

IPEX ITG Pty Ltd (in liq) v Victoria [2010] VSC 480

Kelson v  Queensland Police Service & Anor [2019] QCATA 67

McCrystal v Office of the Information Commissioner & Anor [2019] QCATA 90 

Ramsay Health Care (third party) [2017] QICmr 6 

Ramsay Health Care Ltd v Information Commissioner [2019] QCATA 66

Seeney and Department of State Development; Berri Ltd (third party) (2004) 6 QAR 354

Sibelco v Right to Information Commissioner [2017] QCATA 59

Tripple A Pty Ltd v WIN Television Qld Pty Ltd [2018] QCA 246

Wagdy Hanna and Associates Pty Ltd v National Library of Australia [2012] ACTSC 126

REPRESENTATION:

 

Applicant:

S Eggins instructed by Ashurst Australia

Respondents:

The first respondent was not represented

Clayton Utz Lawyers for the second respondent

D Chen for the third respondent

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    This is an appeal from a decision of the first respondent.  In October 2017 a document, referred to as a “term sheet”, was signed by representatives of the appellant, the second respondent and the Rockhampton Regional Council (“RRC”).  Subsequently the third respondent requested access to the term sheet under the Right to Information Act 2009 (Qld) (“the Act”).  The second respondent determined that the term sheet was exempt from disclosure.  The third respondent appealed to the first respondent against that decision.  On 12 March 2019 the first respondent set aside that decision and found that the third respondent was entitled to access to the document.
  2. [2]
    Under the Act s 119 the appellant is entitled to appeal to the Appeal Tribunal from the decision of the first respondent.  The appeal is only on a question of law, and may only be by way of a rehearing.  The appellant has filed written submissions in support of the appeal, and an affidavit setting out additional information as to the background to the document.  The first respondent filed short formal submissions but has taken no active part in the appeal.  The second respondent filed short submissions supporting the appellant.  The third respondent filed short submissions asserting that no error of law had been shown in the decision of the first respondent, but subsequently filed further submissions conceding that an error of law had occurred, and submitting that the matter should be referred back to the first respondent.  

Background

  1. [3]
    The appellant is embarking on the development of a coal mine in the Carmichael Valley west of Townsville and Rockhampton.  The development is controversial, having been vigorously opposed by various groups opposed to the exploitation of fossil fuels.  As part of the development the appellant had in mind constructing an airport near the mine site, to be owned and operated by it, although presumably not to be used exclusively by aircraft owned by it or operated for its benefit.  The second respondent supports the development, and there were discussions between the appellant, the second respondent and the RRC about the possible provision of financial assistance in the construction and operation of the proposed airport. 
  2. [4]
    Discussions between officials of the appellant, the second respondent and the RRC resulted in the term sheet being drawn up, as a document which recorded in summary form the main terms on which the parties would be willing to contract.  The document expressly provided that it was not at that stage a binding contract between the parties, but that any legal obligation incorporating the substance of the document depended on the execution of a formal contract to that effect.  I expect that one reason for this is that the approval of the elected councillors was required for the councils to enter into such a contract. 
  3. [5]
    The second respondent found that the term sheet was exempt from disclosure under the Act s 47 and s 48, on the basis that it fell within s 8 of Schedule 3 of the Act, and on the basis that disclosure would on balance be contrary to the public interest.  On appeal the first respondent rejected both of these findings, and concluded that the document was not exempt from disclosure.  On the present appeal, the appellant challenged the decision of the first respondent on the first ground, as involving errors of law.  If that aspect of the decision was in error, and Schedule 3 s 8 applies, the document is exempt and it is unnecessary to consider the second ground. 

Decision of the first respondent

  1. [6]
    The effect of the Act is that a document is exempt from disclosure if disclosure of the document would “found an action for breach of confidence”.[1]  In considering this ground, the first respondent held that the ground was confined to an action to enforce an equitable obligation of confidence, and did not extend to an action to enforce a contractual obligation of confidence.  This conclusion was based on the decision of a Deputy President of the AAT in relation to an analogous provision of the Commonwealth Act,[2] which had previously been followed in other decisions of the first respondent, including in the matter of Ramsay Health Care.[3] 
  2. [7]
    The first respondent added that in any case, since the term sheet expressed that it was not a binding contract, no contractual obligation of confidence could arise under it.  The first respondent then turned to the question of whether an equitable obligation of confidence existed, and identified five criteria to be established for this to be shown.  The fifth was that disclosure must cause detriment to the person asserting the equitable obligation of confidence, in this case the appellant. 
  3. [8]
    The first respondent found that some of the contents of the document did not satisfy the second criterion, and that none of the document satisfied the third criterion, for the circumstances to create an equitable obligation of confidence.  That was because this had to be assessed by reference to public interest considerations relating to the public’s legitimate interest in obtaining information about the affairs of government.  There was said to be a public interest in being informed of proposals for a local government to spend money raised from the public in a particular way, which was characterised as being for the benefit of private interests, presumably those of the appellant, so that in such a situation no equitable obligation of confidence would arise.  Accordingly the first respondent concluded that the breach of confidence exemption did not apply. 

Appellant’s submissions 

  1. [9]
    The appellant submitted that there were four errors of law made by the first respondent in arriving at her conclusion on the breach of confidence ground.  The first of these was in concluding that the breach of confidence provision was confined to a situation where the existence of an equitable obligation of confidence was established, and did not apply to a contractual obligation of confidence, at least unless the requirements for an equitable obligation of confidence were also met.  The appellant relied on the decision of the Appeal Tribunal in Ramsay Health Care Ltd v Information Commissioner [2019] QCATA 66, a decision of the President of the Tribunal delivered after the decision of the first respondent in this case. 
  2. [10]
    In that case Daubney J declined to follow the decision in Callejo (supra), and held that the breach of confidence exemption could arise from a contractual obligation of confidence as well as from an equitable obligation of confidence.  This decision was given on appeal from one of the earlier decisions of the first respondent relied on by her in her reasons in this matter, and it follows that there was an error of law shown in this matter also.  No party submitted that I should not follow the decision in Ramsay Health Care Ltd, and I do so.  The decision contains a detailed consideration of the relevant authorities, and, with respect, I agree with his Honour’s reasoning. 
  3. [11]
    His Honour in that case also dealt with an argument advanced on the basis that the relevant issue was whether an equitable obligation of confidence arose, and held that the first respondent had decided that one did not arise, not by considering all the relevant circumstances of the case, but by focussing only on the public interest consideration said to favour the release of the document, which was also an error of law.  In arriving at this conclusion his Honour noted that the authorities, in particular the relevant High Court decision,[4] supporting the relevance of this consideration said that the boundaries of it were unsettled, and made clear that it was not the only relevant consideration, and said that the Information Commissioner had erred in law in having regard only to that consideration in determining that the equitable obligation of confidence did not exist in that case: Ramsay Health Care, [84].  In seems to me, with respect, that the first respondent made the same error in the present case in concluding that an equitable obligation of confidence did not arise here. 
  4. [12]
    His Honour also doubted that the Information Commissioner’s identification of a fifth element of an action for breach of confidence, that disclosure must cause detriment to the plaintiff, reflected the law in Australia on the point, but did not decide the matter on that ground, as it had not been the subject of argument.  His Honour’s analysis appears persuasive, and if he was correct in that conclusion, that was a further error of law by the first respondent in the present case (at [34]), although it did not affect the outcome as she found that that element was satisfied.[5] 
  5. [13]
    A recent decision of the Full Federal Court supports the analysis that an enforceable obligation of confidence can arise from contract as well as in equity.  In Crown Resorts Ltd v Zantran Pty Ltd [2020] FCAFA 1 Allsop P, with whom White J agreed, said at [24]: 

A party may be bound to an obligation of confidence not to disclose information by express or implied contract or contractual term, or by equity. The identification of these legal foundations of confidence is not an exercise in idle taxonomy. It frames the nature and content of the principles by reference to which confidence will be protected, or not, as the case may be. This involves considerations of both common law and equity, and of their respective relationships with statute. 

  1. [14]
    His Honour also said at [34]:

It can be accepted that where there is an express term in a contract as to confidentiality it will be enforced by a court of equity subject to equitable defences, including any discretionary considerations, unclean hands and subject to identified public policy that makes void or unenforceable a contract or a contractual provision as to confidence. The principles underlying and informing such notions of public policy should not be seen as part of an entirely separate universe of discourse from the considerations as to what is confidence recognisable by equity, what is an available defence to injunctive relief in aid of legal rights and what terms will be implied into a contract. 

  1. [15]
    That case involved express contractual obligations of confidence of former employees, and whether a court could and should authorise them to speak to the lawyers for a plaintiff suing the former employer to ascertain what (if any) evidence they could give relevant to the plaintiff’s claims.  It was accepted that if called as witnesses the former employees would be bound to answer proper questions put to them, but the Full Court held that there was no principled basis to go behind the contracts at any earlier stage of the litigation, just because it would be convenient to the plaintiff to do so. 
  2. [16]
    Although that decision did not involve a statutory right to information, it clearly shows that a contractual provision for confidentiality will be enforced on the basis that any contract will be enforced in equity, without reference to the specific requirements for the enforcement of an obligation of confidence arising only in equity.  In effect, where there is a contractual obligation of confidence, it will be enforced in equity so long as the necessary discretionary consideration is present that damages will not be an adequate remedy (which will ordinarily be the case), unless some recognised defence on equitable grounds arises.  It is not necessary to show that it is in the public interest for the confidentiality to be preserved, because of the general proposition that prima facie it is in the public interest for contracts to be enforced.  Considerations of public policy in disclosure will arise at the level of an equitable defence to a claim to enforce the contract in equity. 

Second error – existence of contract

  1. [17]
    The next error of law alleged by the appellant was that the first respondent erred in failing to find that there was a contract between the parties to the document to keep it confidential.  The submission was advanced that although the term sheet was not binding as a contract in respect of its subject matter (the construction of the airport), that did not prevent there being a contract between the parties as to the confidentiality of the document.   Although this aspect of the reasons of the first respondent is somewhat cryptic, it does appear clear that her reasoning focussed on whether the term sheet was itself a contract. 
  2. [18]
    There are two bases on which such an approach can be criticised.  The first is that it overlooks the possibility that there can be a contract about the document even if the document is not a contract in respect of its main subject matter.  An example of this is an option.  If an option is understood as an offer coupled with a contract under which the grantor agrees (for consideration) to leave the offer open for acceptance in accordance with its terms,[6] it is clear that the offer is not a contract prior to acceptance (if and when that occurs), but the agreement to keep it open for acceptance is, and will be enforced by a court.  There is no reason in principle why there cannot be a binding contract between two parties to a contractual negotiation that the terms of the negotiations, and perhaps even the fact of the negotiations, are to be kept confidential until a binding contract is made between them. 
  3. [19]
    That, the appellant says, is what happened in this case.  The significance of the document is that it represented the terms on which the appellant would be willing to contract with the second respondent.  No doubt the purpose of the exercise was to have a document to put before the elected councillors who could then decide whether to approve such a contract, with the assistance of the knowledge that, if they did, the proposed terms would be acceptable to the appellant.  But it is plausible that (relevantly) the appellant might want the content of the document kept confidential until there was a formal contract. 
  4. [20]
    The appellant submitted that, because the document was marked “confidential” and provided that “At this stage it should not be shared with any other party without obtaining the consent of the second respondent and the RRC”, the document was properly characterised as an immediate contract to keep the document confidential.  Although the document said expressly that it “is not intended to be legally binding”, in a context where the document expressly contemplated a later formal contract between the parties, this should be seen as excluding contractual effect as to the substance of the document.  It should not be seen as contradicting the clear statements that the document was to be kept confidential “at this stage…”, that is, immediately.[7]  
  5. [21]
    The appellant drew attention to the fact that there is authority that tenders for government works can give rise, prior to the acceptance of a particular tender, to what is described as a “process contract”; that is, a contract binding the entity calling the tenders to follow, in awarding the substantive contract, the process identified in its documents as the process to be followed.  In IPEX ITG Pty Ltd (in liq) v Victoria [2010] VSC 480 it was said at [43] that “each case must be considered on its own facts” and that the relevant documents and “context and circumstances must be examined separately in order to determine whether there is any intention to create an immediately binding contract as to process.”  It was held that there was a “process contract”: [44]. 
  6. [22]
    In Wagdy Hanna and Associates Pty Ltd v National Library of Australia [2012] ACTSC 126, Refshauge ACJ held that there was a process contract of this kind, and that it contained an implied term that the contents of any tender would be kept confidential: [233].[8]  Reference was made to material suggesting that confidentiality was a normal part of a tender process.[9]  There is therefore nothing unusual about the existence of a contractual obligation of confidence in relation to a proposed contract. 
  7. [23]
    There is however another way by which a contractual obligation of confidence can arise.  There can be an earlier agreement between the parties that the process of negotiation is to remain confidential.  Consider a case where parties are negotiating a possible contract to undertake some construction work.  The owner wants assurance that the builder has the financial capacity to complete the work, and asks for documentation demonstrating that the builder is financially sound.  The builder first seeks an assurance that the material will be kept confidential, and on that being given, provides the requested information.  In such a situation, the builder has provided the information in consideration for the owner’s promise to keep the information confidential.  The owner is subject to a contractual obligation to do so. 
  8. [24]
    In the same way, in the present case there could in principle have been a prior contract between the parties to keep the negotiations confidential, which would extend to the content of the term sheet.  That is after all part of the process of negotiation, since that process does not end until a contract has been entered into.  This was not a matter considered by the first respondent, and I consider that this failure was an error of law. 

Fresh evidence

  1. [25]
    The appellant has filed in the appeal an affidavit exhibiting documents which include a confidentiality agreement between the appellant and the RRC covering information disclosed during the process, a letter from the second respondent promising that confidentially would be preserved between the appellant and the second respondent unless otherwise agreed, and deposing to the proposition that the subsequent correspondence about the term sheet was marked “confidential”. 
  2. [26]
    This material was not before the first respondent, but the appellant relied on the decision of the then-President of the Tribunal, Thomas J, in Sibelco v Right to Information Commissioner [2017] QCATA 59, where his Honour considered the effect of s 119 of the Act, and in particular s 119(5), and said at [23]:

The inclusion of section 119(5) allows the Appeal Tribunal to have reference to evidence or arguments, which may not have been before the Information Commissioner, in determining whether there is any error of law in the decision by the Information Commissioner. 

  1. [27]
    On this basis it was submitted that further evidence could be put before the Appeal Tribunal.  I respectfully agree that that is what his Honour decided, but it must be remembered that he qualified it as evidence to show an error of law in the decision of the Commissioner.  For example, it could be evidence to show a breach of the principles of procedural fairness on the part of the Commissioner.  It does not follow however that there is an unlimited right to put additional evidence before the Tribunal on the appeal.  The decision has subsequently been treated as showing that the appeal under s 119 is in the nature of judicial review.[10] 
  2. [28]
    In the ordinary case of an appeal by way of rehearing, additional evidence is not admissible unless it related to events at or subsequent to the proceeding at first instance, or unless it could not with reasonable diligence have been obtained at the trial.[11]  It has always been accepted that a party who failed at trial is not just entitled to a second try, with additional ammunition, on appeal.  Given the limited nature of the appeal provided by s 119, the sort of additional evidence which could be material to such an appeal is quite limited.  There is no basis on which fresh evidence could be more readily available under s 119(5) than on an ordinary appeal by way of rehearing.  I do not understand Thomas J to have said anything inconsistent with this. 
  3. [29]
    The material in the affidavit of Mr Zahmel sought to be relied on seems clearly not to satisfy the first requirement of the fresh evidence rule.  There is no reason why it could not have been put before the first respondent, either initially or in response to her advice as to her preliminary views.  In my opinion it is not admissible on this appeal. 
  4. [30]
    In those circumstances, it is not appropriate that I deal with this matter on the basis that, on the facts not in dispute or found by the first respondent, as a matter of law the document is exempt.  Although the construction of the document is a question of law, whether the document was a contract as to confidentiality involves consideration of the context of the document, a matter not examined by the first respondent.  As well, the first respondent did not consider at all whether there was a prior contract between the parties for confidentiality which was the basis for contractual confidentiality.  In circumstances where I have no material relevant to this issue before me, because of the inadmissibility of the affidavit, the matter has to go back to the first respondent, for this question to be considered and decided according to law. 
  5. [31]
    I may say that I reach this conclusion with some regret, since at face value, the inadmissible affidavit does seem to show the existence of an earlier contract to keep the negotiations confidential, so that the conclusion of the first respondent on this point seems fairly obvious.  But I cannot draw that conclusion without having regard to that material, and it is not available to me.  Besides, the other respondents have not been heard as to the substance of this point.  So the matter must go back for rehearing. 

Third error – public interest test for contractual confidentiality

  1. [32]
    The third error of law argued by the appellant was that, if contractual confidentiality did exist, public interest considerations were still relevant in determining whether that confidentiality would be enforced.  Given her approach otherwise, this point was, understandably, dealt with very briefly by the first respondent.  The appellant submitted that public interest considerations were not relevant in a case of contractual confidentiality, and that the passages in the decisions relied on by the first respondent were in error, or had been taken out of context.  The earliest of these was Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151.  The case was one arising out of a tender process, where it was held that there was a process contract between the parties, which included the imposition of an obligation as to confidentiality.  That obligation was held to have been breached when the CEO of the defendant statutory corporation disclosed confidential information to the relevant minister, there being no statutory entitlement in the minister to obtain such information in that way.  At p 246 Finn J said:

Parties who contract with government agencies must, in matters of confidentiality, be taken to have done so subject to such lawful rights of access to information in the agency's hands as our laws and system of government confer on others. 

  1. [33]
    His Honour was there speaking about the possibility of disclosure arising from the nature of responsible government, as was made clear by the context of the statement.  He was not laying down a principle about the relationship of contractual confidentiality and a statutory entitlement to information under something like the Act.  To the extent that this passage was relied on as authority for the proposition that a public interest exception exists in respect of a contractual obligation of confidence, as in Seeney and Department of State Development; Berri Ltd (third party) (2004) 6 QAR 354, [199], I consider that such reliance was unjustified. 
  2. [34]
    The operation of the Act must depend on the terms of the Act itself.  Section 48(2) provides that Parliament has decided that disclosure of information in the cases identified in Schedule 3 would, on balance, be contrary to the public interest.  If, as I consider is the case, contractual confidentiality falls within Schedule 3, it is subject to the judgment of Parliament as to where the balance of the public interest lies.  The proposition that it must be shown, in a particular case, that the balance of the public interest is in favour of disclosure in a case falling within Schedule 3 would involve adopting an interpretation which overrode the judgment of Parliament. 
  3. [35]
    If a particular category within Schedule 3 has a public interest element in the test anyway, that is a different matter, but the structure of s 48 is in my opinion clearly inconsistent with the existence of an implied requirement of a balance of public interest in favour of disclosure in respect of a case otherwise covered by Schedule 3.  So if, outside the context of the Act, a situation in Schedule 3 would not have an element of public interest in disclosure, one is not to be implied by that context. 
  4. [36]
    The analysis in Crown Resorts Ltd v Zantran Pty Ltd (supra) shows that the enforceability in equity of a term of a contract providing for confidentiality is subject only to equitable defences applying to the enforceability in equity of a contractual term generally.  So if a term is contrary to public policy, as providing for something to be done which is illegal, it will not be enforced.  Zantran decided that there is no public interest in the efficient conduct of litigation which justifies the refusal to enforce a contractual obligation of confidentiality.  This shows that rights of contract of this nature are not lightly to be disregarded in equity. 
  5. [37]
    The appellant also submitted that there is authority against the proposition that there is a “public interest” defence in a case of contractual confidentiality.  It referred to Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434, 456, where Gummow J said that the principle that equity would not regard information as having the necessary element of confidentiality in certain circumstances where disclosure was in the public interest did not apply where there was a contractual protection of confidence.  That decision has since been followed and applied.[12] 
  6. [38]
    In these circumstances I do not consider that the first respondent was correct in stating the law when she said that public interest considerations apply in respect of contractual obligations of confidence, at least to the extent that there was a special public policy exception to contractual confidentiality in the context of the Act.  In my opinion, there is no such exception.  In these circumstances, it is unnecessary for me to address the argument advanced by the appellant, that the first respondent erred in elevating the public interest to be the determinative factor, in this context, where that approach had not been adopted by the first respondent. 
  7. [39]
    I should mention as well that, if there is a public interest defence to a cause of action for breach of contractual confidence, it would arise as a matter of defence, not as an element of the cause of action.  But it has been said that, in applying such a provision from Schedule 3, the availability of any defence is to be disregarded.[13]  On this basis, the existence of any such defence to the enforcement in equity of contractual confidence would be irrelevant. 

Consideration of equitable obligation of confidence

  1. [40]
    The appellant also submitted, I expect on a precautionary basis, that the first respondent had made errors of law in rejecting the existence of an equitable obligation of confidence.  That obligation was rejected on two grounds: that some of the information in the document did not have the necessary degree of secrecy to qualify as confidential information, and that the circumstances of the communication did not create an equitable obligation of confidence.  Both were challenged by the appellant. 
  2. [41]
    As to the former, the first respondent said that she was not satisfied that some of the information contained in the document was sufficiently secret.  The parts said not to be secret, and the evidence on the basis of which that was said, were not identified, probably because she went on to address the next requirement, which applied to the document as a whole, and because she referred to letters to the parties, which were more specific.  The error was said to lie in moving from that proposition to a conclusion that the document as a whole did not have the necessary degree of confidentiality.  I am not persuaded, however, that that was the approach of the first respondent.  As I read her reasons, she focused thereafter on the other requirement, and concluded that it was not made out.  In these circumstances, she did not need to decide whether all or part, and what part, of the term sheet failed to satisfy the requirement of sufficient secrecy.  This has not been shown to be an error of law. 
  3. [42]
    As to the latter, this part of the decision was challenged on that basis that the first respondent, in considering whether an obligation of confidence existed, had focused exclusively on the existence of a public interest in the disclosure of the content of the document, rather than treating it as one of a number of factors to be considered in determining whether an obligation of confidence arose in equity.  This was said to be the error identified by Daubney J in Ramsay Health Care (supra), so that this decision also involved an error of law. 
  4. [43]
    It is true that, in her reasons at [45], the first respondent said: “I acknowledge the fact that the term sheet is endorsed as confidential, contains terms as to confidentiality, and was considered by both local government signatories in closed session, reflective of shared intentions the information be kept confidential.”  She went on to refer to statements in cases about the significance of such declarations of confidentiality, but said that was in a context not involving public actors.  At [46] she said: “As stressed above, whether an obligation of confidence arises in a particular case depends on an assessment of all relevant circumstances.  Having regard to the circumstances in this case, I am not satisfied that conscionable conduct would require” the second respondent to keep the document confidential from the community it represents.  This was because that community would be the source of any funds expended under such a contract if it came into existence. 
  5. [44]
    There may be a fine line between a decision maker considering all the relevant circumstances, and finding that on balance the community interest in the publication of the information is so strong that it outweighs the factors favouring confidentiality, so that an equitable obligation of confidence will not be imposed, and the decision maker adopting the approach that the community interest in the publication of the information is so strong that it is unnecessary to have regard to any factors favouring confidentiality.  Guidance as to the correct approach is provided by the analysis in Ramsay Health Care (supra), and in particular those reasons at [84], [85].  In that case as well, the Commissioner had referred to the need to take into account all relevant circumstances surrounding the communication, but it was held that the Commissioner had erred in focussing solely on the issue of public interest. 
  6. [45]
    There is little difference between the analysis of the Commissioner in Ramsay Health Care and in this case.  There was no specific reference to the existence of the express contractual obligation of confidence in the paragraphs of the reasons of the Commissioner referred to in the reasons of Daubney J at [85], but it had been set out earlier, at [16] in the reasons of the Commissioner.  If, as was held, the analysis in that case involved an error of law in the approach, in my opinion the analysis in the present case is sufficiently similar for it to be said that the first respondent here fell into the same error in her analysis.  This was another error of law. 

Conclusion

  1. [46]
    Accordingly the appellant has shown that there were errors of law in the decision of the first respondent.  The appellant has not, however, persuaded me that a correct application of the law to the facts found by the first respondent necessarily leads to the conclusion that the document in question is exempt from disclosure under the Act, and that there is no need for a further hearing before the first respondent. 
  2. [47]
    As I mentioned earlier, there is no need to consider the approach of the first respondent as to the other ground on which the second respondent had decided that the document was exempt from disclosure.  I did notice, however, when reading that part of the reasons of the first respondent, that a number of times she referred to the fact that the RRC did not object to disclosure of the document as a factor relevant to the issue of whether disclosure of the document was on balance in the public interest.[14]  This seems to me at first glance to involve an error of law, for two reasons. 
  3. [48]
    First, it appears to equate the attitude of the RRC with the expression of an opinion that the document is not exempt from production under the Act, that is, is not a document the disclosure of which is on balance not in the public interest.  But the Act makes it clear that an agency may choose to release a document notwithstanding that it is an exempt document under the Act, and the reasons do not make clear that the RRC was expressing the opinion that the document was not exempt, rather than simply saying that, although exempt, we do not object to its disclosure.[15]  If the latter, it would not appear to support the proposition that the document is not in fact exempt. 
  4. [49]
    Second, if the RRC was expressing the opinion that the document is not exempt, this is a non-expert opinion, and one directed to the very issue the first respondent had to decide.  In a court such an opinion would be clearly inadmissible.  The first respondent is not a court, and is not bound by the rules of evidence, but I suspect that, by a parity of reasoning, the attitude of the RRC on this issue must be irrelevant. 
  5. [50]
    This is not something that I have to decide, and not something on which I have heard argument.  I mention it merely because I noticed that the first respondent did say, at [70], that she had taken no irrelevant factors into account in making her decision.  I am not sure that that was correct. 
  6. [51]
    Therefore there will be the following orders:
  1. The appeal is allowed.
  2. The decision of the Information Commissioner made on 12 March 2019 is set aside.
  3. The matter is returned to the Information Commissioner for reconsideration in accordance with this decision of the Appeal Tribunal.
  4. The parties shall file any submissions on costs by 4:00pm on 8 May 2020. 
  5. Unless either party requests an oral hearing by telephone, the issue of costs will be determined on the papers on a date to be fixed by the Tribunal. 

Footnotes

[1]  The Act, s 47(3)(a); s 48(1), (2); Schedule 3 s 8. 

[2] Callejo and Department of Immigration and Citizenship [2010] AATA 244. 

[3]  [2017] QICmr 6. 

[4] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10. 

[5]  Or at least, did not find that it was not satisfied. 

[6]  This is one of two competing theoretical bases of an option, with the dispute unresolved: Tripple A Pty Ltd v WIN Television Qld Pty Ltd [2018] QCA 246, [36]-[50].  What matters for my purposes is that it is seen as a rational basis for the option, and therefore as something which is possible.  The present case is of course not one of an option.

[7]  Indeed, once the proposal matured into a binding contract between the parties about the airport, there would seem to be no longer any need for the term sheet to remain confidential.  But I do not need to decide whether any contract was subject to such a temporal limitation. 

[8]  That was despite the fact that the tender documents had noted that the tenders may be subject to release under the Freedom of Information Act 1982 (Cth).  An appeal, which did not challenge this aspect of the decision, was dismissed: [2014] ACTCA 32. 

[9]  In a former position I once had to sentence someone who was responsible for dealing with tenders for building work who had disclosed (in return for a bribe) tender prices prior to the close of tenders so that a competitive tender could be submitted. 

[10] Kelson v Queensland Police Service & Anor [2019] QCATA 67, [26]; McCrystal v Office of the Information Commissioner & Anor [2019] QCATA 90, [16]. 

[11]  B Cairns, Australian Civil Procedure (Thomson Reuters, 11th ed, 2016) [18.330].  This is subject to any applicable statutory provision, not the case here, and there are two additional requirements. 

[12]  For example, see Ramsay Health Care, (supra) at [37]. 

[13] Re Lobo and the Department of Immigration and Citizenship (2011) 124 ALD 238, cited and uncontentious in Ramsay Health Care (supra) at [73]. 

[14]  At [104], [121], [138], [140] and [143]. 

[15]  Or perhaps, we have not considered whether or not it is exempt, as we do not object to its release.  The effect is the same. 

Close

Editorial Notes

  • Published Case Name:

    Adani Mining Pty Ltd v Office of the Information Commissioner, Townsville City Council and Australian Broadcasting Corporation

  • Shortened Case Name:

    Adani Mining Pty Ltd v Office of the Information Commissioner

  • MNC:

    [2020] QCATA 52

  • Court:

    QCATA

  • Judge(s):

    Member McGill

  • Date:

    28 Apr 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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