Sibelco Australia Ltd v Right to Information Commissioner
[2017] QCATA 59
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- Unreported Judgment
- Sibelco Australia Ltd v Right to Information Commissioner[2017] QCATA 59
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Sibelco Australia Ltd v Right to Information Commissioner[2017] QCATA 59
Sibelco Australia Ltd v Right to Information Commissioner[2017] QCATA 59
CITATION: | Sibelco v Right to Information Commissioner [2017] QCATA 59 |
PARTIES: | Sibelco Australia Limited (Applicant) v Right to Information Commissioner Department of Natural Resources and Mines (Respondents) |
APPLICATION NUMBER: | APL160-13 |
MATTER TYPE: | Appeals |
HEARING DATE: | 12 December 2013 |
HEARD AT: | Brisbane |
DECISION OF: | Justice DG Thomas, President |
DELIVERED ON: | 29 May 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | APPEAL – APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – whether hearing on question of law by way of rehearing de novo or hearing in the nature of a judicial review ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – RIGHT OF ACCESS – GROUNDS FOR REFUSAL – whether documents in issue fall outside scope of access application – whether the Commissioner considered whether disclosure of the information would found an action for breach of confidence – whether decision should be returned to Information Commissioner for reconsideration Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 146, 147 Right to Information Act 2009 (Qld) s 119 Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 Flegg v Crime and Misconduct Commission & Anor [2013] QCA 376 Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 House v R (1936) 55 CLR 449 Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 Jimenez v Sternlight Investments t/a LJ Hooker Alexandra Hills [2010] QCATA 029 Marshall-Holst v Office of the Information Commissioner and Queensland Health (Metro North Hospital and Health Service) [2017] QCATA 028 Minister for Aboriginal Affairs v Peko- Wallsend Limited (1986) 162 CLR 24 Minogue v Office of Information Commissioner [2011] QCATA 256 Perry v Comcare [2006] FCA 33 |
APPEARANCES: |
|
APPLICANT: | JK Chappel instructed by Ashurst for Sibelco Australia Limited |
RESPONDENTS: | TJ Bradley for the Right to Information Commissioner No appearance (leave granted) for Department of Natural Resources and Mines |
REASONS FOR DECISION
- [1]Differing approaches were put about the nature of these proceedings.
Nature of the appeal
- [2]Section 119 of the Right to Information Act 2009 (Qld) (‘RTI Act’) provides (relevantly):
- Appeal to Queensland Civil and Administrative Tribunal on question of law
(1) A participant in an external review may appeal to the appeal tribunal against a decision of the information commissioner on the external review.
(2) The appeal may only be on a question of law.
(3) …
(4) …
(5) The appeal may only be by way of a rehearing.
- [3]Under the QCAT Act, in deciding an appeal against a decision on a question of law only, the Appeal Tribunal may set aside and substitute its own decision or remit it back to the original decision maker or make any other order it considers appropriate.[1] It is only when the appeal relates to a question of fact, or mixed fact and law that the appeal is decided by way of rehearing,[2] with or without the hearing of additional evidence as decided by the Appeal Tribunal.
- [4]Section 119 of the RTI Act conflates the two methods of hearing an appeal, so that the application of the QCAT Act does not assist. Therefore, I must first decide how to approach the appeal.
The applicant’s submissions
- [5]Sibelco submitted that the requirement for this appeal to be ‘only by way of “rehearing”’ should be construed as requiring a rehearing de novo, although it acknowledged there is no absolute rule to that effect. In making that submission, it relied on Builders Licensing Board v Sperway,[3] where Mason J said:
“The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo.”[4]
- [6]Sibelco noted that the Commissioner’s external review did not involve a hearing, nor oral evidence or right to cross-examine, and the Commissioner was not constrained by the rules of evidence. It submitted that, applying Sperway, the Appeal Tribunal should hear the application as a hearing de novo. Sibelco submitted that the Appeal Tribunal could determine the access application afresh without being confined to the material or grounds it relied upon in the review by the Commissioner.
The Commissioner’s submissions
- [7]The Commissioner submitted that the Appeal Tribunal’s task was in the nature of a judicial review. In support of that proposition, the Commissioner relied on the decision of Osland v Secretary, Department of Justice (No. 2).[5]
- [8]On behalf of the Information Commissioner, it was submitted that section 119(5) RTI Act, should not materially alter the task that is being undertaken by the Appeal Tribunal. It was submitted that section 199(5) would make it possible to adduce new evidence, which would be appropriate because the nature of the review conducted by the Information Commissioner did not involve a hearing, but rather written submissions.
- [9]The Information Commissioner, in referring to the onus provision in section 87,[6] submitted that where such a party does not raise a ground in submissions to the Information Commissioner, it becomes impossible for that party to then demonstrate an error of law in the decision, which was not argued and, therefore, not the subject of any commentary in the decision.
- [10]The Information Commissioner submitted that where the question relates to an error of law, the analysis must begin with the identification of an error in the decision, and where the matter is not argued, (and so does not appear in the decision) there can be no error as there is nothing to identify.
Discussion
- [11]In previous proceedings before the tribunal, it has been suggested that the proceedings contemplated by section 119 are in the nature of a judicial review.[7]
- [12]That view is reinforced by the High Court in Osland. French CJ, Gummow and Bell JJ observed that: “despite the description of proceedings under the section as an ‘appeal’, it confers original non-appellate jurisdiction; the proceedings are ‘in the nature of judicial review’”.[8]
- [13]Osland concerned an appeal in Victoria, at the relevant level of appeal (equivalent to the level of appeal contemplated by section 119). The Victorian legislation provided that “a party to a proceeding may appeal, on a question of law, from an order…”[9]
- [14]The Court of Appeal (the equivalent of the QCAT Appeal Tribunal in the Victorian system) posed a question whether the particular factual circumstances of a case required disclosure, and then undertook its own inquiries. Hayne and Kiefel JJ (as their Honours then were) observed that, in doing so, the Court of Appeal did not review what the Tribunal had done and, therefore, considered whether there was an error of law. Rather, it impermissibly assumed the role of the Tribunal and substituted its own decision.[10]
- [15]Their Honours concluded that the jurisdiction conferred on the Court of Appeal (and, by analogy, this Appeal Tribunal) was confined to appeals on questions of law. It was also found that the section relating to remedies, which was in similar terms to section 146 of the QCAT Act, did not enlarge the jurisdiction and that such power “should not usurp the fact finding function of the (decision maker)”.[11]
- [16]Their Honours talked of the desirability of remitting issues to “the body established for the purpose of making that essentially factual, evaluative and administrative judgment”.[12]
- [17]When discussing the wide ambit of orders which could be made, the High Court ruled that the powers must be exercised having regard to the limited nature of the appeal.[13]
- [18]However, the Victorian legislation does not include a provision that is the equivalent of section 119(5) RTI Act and a rehearing is what is contemplated by section 119(5).
- [19]The nature of the appeal must be determined by reference to the words used in the statute. Therefore, each of the subsections of section 119 (as well as the heading) must be taken into account.
- [20]The inclusion of section 119(5) RTI Act does not alter the task to be undertaken by the Appeal Tribunal from an appeal only on a question of law. That is the clear intention of the words of section 119(2) and the words used in the heading of section 119, “appeal to Queensland Civil and Administrative Tribunal on a question of law”. Had the parliament intended to change the basis of appeal from “only on a question of law”, that could easily have been done by not incorporating a provision like section 119(2).
- [21]Subsection 5 of section 119 must, equally, be considered.
- [22]Generally, in an appeal by way of a rehearing, the Appeal Court determines the appeal on the basis of the circumstances as they exist when the appeal is heard, including the law which then operates. On a rehearing, the Appeal Court can consider events up to the date of the rehearing.
- [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.
- [24]In the context of the RTI legislation, the requirements of subsection 5 are more of a procedural requirement, setting out parameters in which the appeal only on the question of law takes place.
- [25]It follows that the appeal is not confined to the arguments put to the Commissioner.
- [26]It ultimately falls on the Commissioner to consider the provisions of the RTI Act, balance all of the factors, and come to a decision based upon the legislative requirements. That duty is not confined by reference to the submissions made.
- [27]Interpreted in this way, section 119 does operate as a form of judicial review. The distinction is important. In an appeal, the issues under consideration must have been before the original decision maker, whereas an issue on judicial review may have arisen for the first time.[14] Of course, it remains necessary to identify an error of law.
What is an error of law?
- [28]Greenwood J succinctly summarised the law in relation to the erroneous exercise of discretion as follows:[15]
“It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed…”[16]
- [29]The Appeal Tribunal has discussed the criteria for appeals on a question of law alleging an error in the exercise of a discretion in Marshall-Holst v Office of the Information Commissioner v Queensland Health (Metro North Hospital and Health Service), and adopted the same test.[17]
- [30]As to review of an administrative decision, Mason J observed:
“… the limited role of a court reviewing the exercise of an administrative discretion must constantly be born in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a direction which the legislator has invested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned”.[18]
- [31]
- [32]As has been observed in “Justice in Tribunals”, the case for treating reasons for a decision as a necessary element of natural justice is strong.[21] As is observed, a failure to give reasons “...adds insult to the injury of an adverse decision. Without reasons, how can a party be confident that the case was understood and properly considered?” Denial of natural justice is an error of law.[22]
What are the alleged errors of law?
Do some of the documents in issue fall outside the scope of the access application?
- [33]The applicant asserts that some of the documents in issue fall outside the scope of the access application.
- [34]Given that the access application must identify the documents,[23] it is obvious that the first decision the decision-maker must make is to be satisfied that the documents fall within the scope of the access application.
- [35]During the hearing, it was pointed out that there was some discussion, leading up to the Commissioner’s decision about the issue of scope. Therefore, the issue was squarely raised in the application.
- [36]Regrettably, all that is said in the decision is “during the course of the external review, 15 full pages were identified as being outside the scope of the terms of the access application”.
- [37]The question of scope having been raised, the Commissioner has failed to provide adequate reasons for the decision.
- [38]As I have identified, the absence of reasons, and its consequences, is an error of law. The appeal should be allowed.[24]
Did the Commissioner consider s 8(1) Schedule 3 of the RTI Act?
- [39]Section 8 Schedule 3 provides that information is exempt information if its disclosure would found an action for breach of confidence. However, this ground was not raised in the submissions to the Commissioner.
- [40]The applicant filed affidavit material relating to this issue. The parties made submissions over the period of 12 months subsequent to the hearing date relating to the question of breach of confidence.
- [41]Section 8, Schedule 3 RTI Act, is plainly relevant to the decision made by the Commissioner and should have been considered. It was conceded that the decision did not deal with section 8, Schedule 3. A total failure to take a relevant consideration into account can amount to an error of law.
- [42]The appeal should be allowed.
Was there a document that might be in contempt of court or prejudice an investigation?
- [43]The third ground related to disclosure of documents which might be in contempt of court or prejudice an investigation. This ground related to only one document which was, according to the schedule provided by the applicant, also asserted to be outside scope and in breach of confidence.
- [44]Because of my finding about the Commissioner’s reasons for decision on scope, and the fact that this ground is no longer relevant, it is not necessary to consider this ground further.
Is disclosure contrary to public interest?
- [45]The applicant repeats the assertions regarding the commercial-in-confidence ground. The applicant’s submissions relied upon the additional evidence filed in the appeal. I note that, in the schedule of documents provided, none of the documents referenced this ground as a basis of objection, with all documents bearing either “outside scope” and/or “breach of confidence” notations with one also, in additional to those two notations, bearing the notation “contempt”. I have already found error in the way these documents were dealt with. It is not necessary to consider this alleged error further.
Order
- [46]The appeal is allowed.
- [47]The decision of the Commissioner is set aside and the matter is returned to the Commissioner for reconsideration.
Footnotes
[1] QCAT Act s 146.
[2] QCAT Act s 147(2).
[3] (1976) 135 CLR 616.
[4] Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 621.
[5] (2010) 241 CLR 320.
[6] Section 87 provides that if the decision under external review is a disclosure decision, the participant who opposes the disclosure decision has the onus of establishing that the decision not to disclose the document or information is justified.
[7] Minogue v Office of Information Commissioner [2011] QCATA 256.
[8] Osland v Secretary, Department of Justice (No. 2) [2010] 241 CLR 320 at [18].
[9] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148.
[10] Ibid at [75].
[11] Ibid at [19].
[12] Ibid at [20].
[13] Ibid at [20].
[14] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72 at 81.
[15] Perry v Comcare [2006] FCA 33 at [39].
[16] House v R (1936) 55 CLR 449 at [504] & [505].
[17] [2017] QCATA 028 at [35].
[18] Minister for Aboriginal Affairs v Peko- Wallsend Limited (1986) 162 CLR 24 at [40]-[41].
[19] Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186.
[20] Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225.
[21] Justice in Tribunals (3rd Ed) (Federation Press, Sydney, 2010) at p 249 para 13.2.
[22] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
[23] RTI Act s 24(2)(b).
[24] Jimenez v Sternlight Investments t/a LJ Hooker Alexandra Hills [2010] QCATA 029.