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Toogood v Cassowary Coast Regional Council[2018] QCAT 319

Toogood v Cassowary Coast Regional Council[2018] QCAT 319

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Toogood v Cassowary Coast Regional Council [2018] QCAT 319

PARTIES:

STEVEN PAUL TOOGOOD

(applicant)

v

CASSOWARY COAST REGIONAL COUNCIL

(respondent)

APPLICATION NO/S:

OCL052-17

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

21 September 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:

  1. In respect of the application for disclosure filed 15 January 2018 it is ordered that the Cassowary Coast Regional Council disclose to Steven Paul Toogood the following:
  1. (a)
    Item 2 – copies of all emails exchanged between Cassowary Coast Regional Council and the Queensland Ombudsman in relation to Toogood (privacy breach) between February 2017 and October 2017;
  2. (b)
    Item 3 – copies of all emails exchanged between Cassowary Coast Regional Council and the Office of the Information Commissioner in relation to Toogood and this complaint of privacy breach between May 2017 and
    May 2018; and
  3. (c)
    Item 20 – 3 May 2017 email from Toogood received by Cassowary Coast Regional Council in relation to demand for $350,000 cash and subsequently quoted by CEO James Gott in his …complaint to Queensland Police Service,

by:

4:00pm on 2 October 2018

  1. The general application for miscellaneous matters filed 15 January 2018 is otherwise dismissed.
  2. Until further order, the name of the person the subject of the disclosure from Mr Toogood to the Cassowary Coast Regional Council is to be published in de-identified format only pursuant to s 62(b) of the Queensland Civil and Administrative Act 2009 (Qld).

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – interlocutory application – disclosure sought by applicant from respondent pursuant to s 62 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

HUMAN RIGHTS – PRIVACY LEGISLATION – where substantive proceedings allege breach of privacy under the Information Privacy Act 2009 (Qld) – whether documents sought in interlocutory application directly relevant to issues in the proceeding – whether documents subject to valid claim to privilege from disclosure

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28, s 62, s 66

Information Privacy Act 2009 (Qld), s 12, s 27, s 178, Schedule 3

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

G Humphries, Connolly Suthers

APPEARANCES:

 

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

REASONS FOR DECISION

Introduction

  1. [1]
    On 15 January 2018 the applicant, Mr Toogood, filed an application for miscellaneous matters seeking directions from the Tribunal to the effect that:
    1. (a)
      certain witnesses in the substantive proceedings to which the application relates have committed perjury and that those witnesses be referred to the Crime and Misconduct Commission;
    2. (b)
      statements by those witnesses and by the Cassowary Coast Regional Council (the Council) be struck out; and
    3. (c)
      the Council disclose certain documents pursuant to s 62(3) of the QCAT Act.
  2. [2]
    The Tribunal is not in a position to determine whether witnesses to a proceeding, yet to be heard and determined, have committed perjury. Furthermore, the Tribunal does not have jurisdiction to refer matters or individuals to the Crime and Misconduct Commission. This part of the application is embarrassing and is therefore struck out.
  3. [3]
    Mr Toogood has provided no basis for striking out the witness statements he identifies in the application. Whether there are inaccuracies contained within those statements is a matter properly left to be determined at the hearing. The power in s 47 of the QCAT Act to strike out part of a proceeding does not extend to striking out statements provided by parties to the proceedings. This part of the application is embarrassing and is therefore also struck out.
  4. [4]
    I turn now to consider the application for directions regarding disclosure.

Application for disclosure of documents

  1. [5]
    Mr Toogood seeks extensive disclosure from the Council pursuant to s 62 of the QCAT Act. This is a separate power from that in s 97 of the QCAT Act, which is a power to require a party to attend the Tribunal to give evidence and to produce certain documents.
  2. [6]
    Section 62 provides, relevantly:
  1. (1)
    The tribunal may give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding.

…

  1. (3)
    Without limiting subsection (1), the tribunal may give a direction under this section requiring a party to the proceeding to produce a document or another thing, or provide information to -
  1. (a)
    the tribunal; or
  2. (b)
    another party to the proceeding.

…

  1. (5)
    However, subsection (4) does not apply to a document or thing, a part of a document or thing, or information for which there is a valid claim to privilege from disclosure.

…

  1. [7]
    There are also requirements to:
    1. (a)
      ‘act fairly and according to the substantial merits of the case’ (s 28(2)); and
    2. (b)
      ‘ensure, as far as practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts’ (s 28(3)(e)).
  2. [8]
    Although the power in s 62 is expressed in wide terms, it can be inferred from s 62(1) (necessary for the speedy and fair conduct of the proceeding), s 28 (as far as practicable, all relevant material is disclosed) and the obligation of the Tribunal to deal with matters in a way that is ‘economical, informal and quick’ (s 3(b)) that only documents relevant to the issues in the proceedings ought to be the subject of a direction to produce. Further, that applications for disclosure should not be permitted where the disclosure is sought for inappropriate purposes, for other proceedings or where the document in question is subject to a valid claim to privilege from disclosure.
  3. [9]
    In order, therefore, to determine whether the Tribunal should make the directions for disclosure sought by Mr Toogood it is necessary to outline the nature of the substantive proceedings.
  4. [10]
    The proceedings concern an allegation that the Mayor of the Council disclosed to XYZ that Mr Toogood had handed to him screenshots from the Grindr dating site involving XYZ. In the request for referral (Form 35) filed on 3 August 2017, Mr Toogood states that he is seeking damages of $100,000 in respect of the disclosure of his identity in these circumstances, which he claims amounts to a breach of privacy.
  5. [11]
    The complaint was accepted[1] and referred to the Tribunal by the Office of the Information Commissioner.[2] The complaint was referred under s 176 of the Information Privacy Act 2009 (Qld) (IPA) which provides that the Information Commissioner must refer a complaint to the Tribunal if asked to do so by the complainant within 20 business days of the complainant’s request. The Tribunal is then required to hear and decide the privacy complaint referred to it.[3]

The relevant privacy complaint provisions

  1. [12]
    After hearing the referred “privacy complaint” the Tribunal may make one or more of the orders in s 178 of the IPA which include, relevantly, an order that the complaint has been substantiated, together with, if considered appropriate, an order that the complainant is entitled to an amount of not more than $100,000 to compensate the complainant for loss or damage suffered by the complainant because of the act complained of, including for any injury to the complainant’s feelings or humiliation suffered by the complainant.[4]
  2. [13]
    The IPA defines a “privacy complaint” as a complaint by an individual about an act or practice of a relevant entity in relation to the individual’s personal information that is a breach of the relevant entity’s obligations under the IPA to comply with the privacy principles.[5]
  3. [14]
    Section 27 provides that an agency must comply with the privacy principles. An agency is defined to include a local government.[6] The privacy principles are set out in Schedule 3.[7] The referral states that the privacy complaint (as outlined above) appeared to involve privacy principles 9 and 10. The “document” containing the personal information was said by the Information Commissioner to be the envelope.[8]
  4. [15]
    “Personal information” is defined in s 12 as follows:

Personal information is information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

  1. [16]
    IPP 9 provides:

Use of personal information only for relevant purpose

  1. (1)
    This section applies if an agency having control of a document containing personal information proposes to use the information for a particular purpose.
  2. (2)
    The agency must use only the parts of the personal information that are directly relevant to fulfilling the particular purpose.
  1. [17]
    IPP 10 provides:

Limits on use of personal information

  1. (1)
    An agency having control of a document containing personal information has expressly or impliedly agreed to the use of the information for the other purpose unless –

…

  1. (c)
    use of the information for the other purpose is authorised or required under a law; or
  2. (d)
    the agency is satisfied on reasonable grounds that use of the information for the other purpose is necessary for 1 or more of the following by or for a law enforcement agency –
  1. (i)
    the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of laws imposing penalties or sanctions;

…

  1. (iv)
    the prevention, detection, investigation or remedying of seriously improper conduct.

…

  1. [18]
    There are a number of elements in IPP 9 and 10 which must be proved for a breach to be established. These include:

For IPP 9:

  1. (a)
    The Council had control of a document;
  2. (b)
    The document contained personal information;
  3. (c)
    The Council proposed to use it for a particular purpose; and
  4. (d)
    The Council failed to use only the parts of the personal information directly relevant to fulfilling the particular purpose.

For IPP 10:

  1. (a)
    The Council had control of a document;
  1. (b)
    The document contained personal information;
  2. (c)
    The document containing the personal information  was obtained for a particular purpose;
  3. (d)
    The information was used for another purpose;
  4. (e)
    The individual the subject of the personal information did not expressly or impliedly agree to the use of the information for that other purpose;
  5. (f)
    Use of the information for the other purpose was not authorised or required under a law; and
  6. (g)
    The Council was not satisfied on reasonable grounds that use of the information for the other purpose was necessary by or for a law enforcement agency for one of the reasons set out in IPP 10(d)(i)-(v).

What is relevant to the issues in the substantive proceedings

  1. [19]
    Essentially, to be entitled to compensation under s 178 of the IPA, Mr Toogood will need to establish a breach of privacy and that he has suffered loss or damage because of it.
  2. [20]
    Whether this is the case is not for me to decide. The issue before me is whether the Tribunal should exercise its discretion to require the Council to produce certain documents to Mr Toogood pursuant to its power under s 62(3) of the QCAT Act. This question is informed by the nature of the substantive proceedings and whether the documents sought to be obtained are apparently relevant to those proceedings.
  3. [21]
    In accordance with directions of the Tribunal of 16 April 2018, the parties produced a Table which identified 23 categories of documents sought to be produced and which contained the parties’ submissions in respect of each category. The final Table was that filed in the Tribunal on 16 July 2018. In my reasons I have referred to the categories by number as identified in that Table.

What documents, if any, should be ordered to be produced

  1. [22]
    Mr Toogood’s application for a direction that certain documents be produced is deficient in a number of respects. To the extent that all emails within a date range between certain entities “relating to the Toogoods” have been sought, the request is refused on the basis that it is too wide and that the documents have not been shown to be directly relevant to the breach of privacy issue.
  2. [23]
    Accordingly, I dismiss the application for disclosure of the following documents:
    1. (a)
      Item 1 – copies of all emails exchanged between CCRC and the DILGP in relation to Toogoods between March 2017 and October 2017;
    2. (b)
      Item 4 – emails exchanged CCRC to Queensland Police Service in relation to Toogood between February 2017 and January 2018;
    3. (c)
      Item 8 – copies of all emails and correspondence exchanged between CEO James Gott and Mayor John Kremastos in relation to the applicant between December 2016 and May 2018;
    4. (d)
      Item 9 – copies of all emails and correspondence exchanged between Mayor John Kremastos and XYZ in relation to the applicant between December 2016 and May 2018;
    5. (e)
      Item 10 – copies of all emails and correspondence exchanged between XYZ and CEO James Gott in relation to the applicant between January 2017 and May 2018;
    6. (f)
      Item 11 – copies of all emails and correspondence exchanged between CEO James Gott and CCRC Nancy Gassin in relation to the applicant;
    7. (g)
      Item 21 – copies of all emails and correspondence exchanged between Innisfail Advocate and Cassowary Coast Regional Council in relation to the applicant; and
    8. (h)
      Item 23 – copies of all emails and correspondence exchanged between Cassowary Coast Regional Council and WZ in relation to the applicant.
  3. [24]
    It is clear that there are or have been many legal issues between the Toogoods and the Council and between the Toogoods and James Gott (who has sued them for defamation). The Toogoods have also been charged with extortion, stalking and assault. Some of the categories in the Table, in my view, relate to other proceedings and have not been shown to be directly relevant to these proceedings.
  4. [25]
    Accordingly, I dismiss the application for disclosure of the following documents:
    1. (a)
      Item 5 – copies of all emails sent from CCRC to Queensland Police Service in relation to XYZ…between February 2017 and January 2018; and
    1. (b)
      Item 19 – ‘Information pack’ supplied to Queensland Police Service by Cassowary Coast Regional Council in relation to complaint 24 May 2017.
  5. [26]
    Documents in respect of which there is a valid claim to privilege from disclosure are exempt from s 62.[9] Legal professional privilege protects from disclosure communications between a client and the client’s legal adviser. The privilege has been extended to communications between an in-house lawyer and the employer/client.[10]
  6. [27]
    In my view, valid claims of privilege arise in respect of certain categories of documents identified in the Table. Accordingly, the application in respect of the following documents is dismissed.
    1. (a)
      Item 6 – Copy of the 3 May 2017 email sent to Connolly Suthers from CCRC CEO James Gott consisting of a forwarded email from the applicant relating to an offer to settle;
    1. (b)
      Item 7 – Copy of the 3 May 2017 email sent to Connolly Suthers from CCRC Nancy Gassin consisting of a forwarded email from the applicant;
    2. (c)
      Item 12 – Copy of the email sent to Connolly Suthers on 11 May 2017 from CCRC CEO James Gott consisting of a forwarded email from the applicant;
    3. (d)
      Item 13 – Copy of the email 1 sent to Connolly Suthers on 26 May 2017 from CCRC CEO James Gott consisting of a forwarded email from the applicant;
    4. (e)
      Item 14 – Copy of the email 2 sent to Connolly Suthers on 26 May 2017 from CCRC CEO James Gott consisting of a forwarded email from the applicant;
    5. (f)
      Item 15 – Copy of the 26 May 2017 email 3 sent to Connolly Suthers from CCRC CEO James Gott consisting of a forwarded email from the applicant;
    6. (g)
      Item 16 – Copy of the 26 May 2017 email 4 sent to Connolly Suthers from CCRC CEO James Gott consisting of a forwarded email from the applicant; and
    7. (h)
      Item 17 – Copies of all emails and correspondence exchanged between Connolly Suthers and Queensland Police Service in relation to the applicant in relation to reprisal and false charges.
  7. [28]
    Certain documents in the Table have been the subject of Right to Information applications by Mr Toogood which have been refused, or which have been unsuccessfully sought in other proceedings. The respondent submits that the Tribunal “has no authority to order disclosure of documents in a proceeding where those documents were previously sought by way of external process, that is to say RTI applications”. No authority was provided for that proposition. There is no reason why, if documents are properly disclosable, they should be exempt from disclosure because they have been the subject of a separate application under a different statutory regime. No other objection was raised that the material was otherwise exempt from disclosure. The relevant categories of documents are as follows:
    1. (a)
      Item 18 – copies of the 564 pages of documents provided by CCRC to Office of the Information Commissioner pursuant to RTI 313265; and
    1. (b)
      Item 3 – copies of all emails exchanged between CCRC and the Office of the Information Commissioner in relation to Toogood and this complaint of privacy breach between May 2017 and May 2018.
  8. [29]
    While I do not accept the argument that the documents are not disclosable due to being subject to a prior unsuccessful Right to Information application, I find that the description of documents in item 18 is too wide. For that reason, these documents are not disclosable.
  9. [30]
    However, the same does not apply for the documents in Item 3. These are prima facie relevant to the proceedings and the application in respect of those documents is therefore allowed.
  10. [31]
    I turn now to consider the remaining categories, Item 2, Item 20 and Item 22.
  11. [32]
    Item 2 relates to “copies of all emails exchanged between CCRC and the Queensland Ombudsman in relation to Toogood (privacy breach) between February 2017 and October 2017”. This category is in its terms confined to the privacy breach and the documents are prima facie relevant to the issues in the proceedings. Accordingly, the application in respect of these documents is allowed.
  12. [33]
    Item 20 relates to “3 May 2017 email from Toogood received by CCRC in relation to demand for $350,000 cash and subsequently quoted by CEO James Gott in his … complaint to QPS”. This document, being an email from Toogood, is argued by the respondent to be within Mr Toogood’s control and possession and therefore not disclosable. However, that it might be so does not remove an obligation which otherwise exists to disclose and the application in respect of this document is allowed.
  13. [34]
    Item 22 relates to “copies of all emails and correspondence exchanged between Innisfail Advocate and Cassowary Coast Regional Council in relation to …XYZ”. There is no date limit or reference to subject matter, other than to “XYZ”. The application in respect of this category is accordingly too wide and is dismissed.

Conclusion

  1. [35]
    The application for disclosure filed 15 January 2018 is allowed in respect of the following:
    1. (a)
      Item 2 – copies of all emails exchanged between CCRC and the Queensland Ombudsman in relation to Toogood (privacy breach) between February 2017 and October 2017;
    2. (b)
      Item 3 – copies of all emails exchanged between CCRC and the Office of the Information Commissioner in relation to Toogood and this complaint of privacy breach between May 2017 and May 2018; and
    3. (c)
      Item 20 – 3 May 2017 email from Toogood received by CCRC in relation to demand for $350, 000 cash and subsequently quoted by CEO James Gott in his …complaint to QPS.
  2. [36]
    The general application for miscellaneous matters filed 15 January 2018 is otherwise dismissed.
  3. [37]
    Until further order, the name of the person the subject of the disclosure from Mr Toogood to the Council is to be published in de-identified format only pursuant to s 62(b) of the QCAT Act.

Footnotes

[1]Letter from Office of Information Commissioner to Mr Toogood of 21 July 2017.

[2]Letter from Office of Information Commissioner to QCAT of 3 August 2017.

[3]IPA, s 176(2).

[4]IPA, s 178(a).

[5]IPA, s 164.

[6]IPA, s 18(c); Chapter 5, Note.

[7]IPA, s 26.

[8]Document is defined in Schedule 1 of the Acts Interpretation Act 1954 to include “any paper…on which there is writing.”

[9]QCAT Act, s 62(5).

[10]Waterford v Commonwealth (1987) 163 CLR 54.

Close

Editorial Notes

  • Published Case Name:

    Toogood v Cassowary Coast Regional Council

  • Shortened Case Name:

    Toogood v Cassowary Coast Regional Council

  • MNC:

    [2018] QCAT 319

  • Court:

    QCAT

  • Judge(s):

    Member Traves

  • Date:

    21 Sep 2018

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Waterford v The Commonwealth (1987) 163 CLR 54
1 citation
Jump To
Cite 1 - (1987) 163 CLR 54

Cases Citing

Case NameFull CitationFrequency
Kiemann v State of Queensland (Queensland Health) [2023] QIRC 691 citation
Mehrtens v State of Queensland (Queensland Health) [2023] QIRC 681 citation
Stella v Griffith University [2024] QCATA 1422 citations
1

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