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- Unreported Judgment
Queensland Police Service v ZIL QCATA 162
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Queensland Police Service v ZIL  QCATA 162
QUEENSLAND POLICE SERVICE
6 December 2019
2 December 2019
Dr J R Forbes, Member
APPEAL – EXTENSION OF TIME TO APPEAL – where application to appeal filed out of time – where application for extension of time delayed – whether explanation for delay satisfactory – whether detriment to respondent would flow from grant of extension – whether prospects of successful appeal if extension granted – where application for extension dismissed – where application to appeal consequently dismissed – where order made for non-identification of present respondent
Information Privacy Act 2009 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28, s 61, s 66, s 143(4)
Abalos v Australian Postal Commission (1990) 171 CLR 167
Attorney-General (UK) v Heinemann Publishers Pty Ltd (1987) 10 NSWLR 86
AXP v Queensland Police Service  QCAT 680
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 54
CMC v O'Regan  QCAT 238
Coco v AN Clark (Engineers) RPC 41
Crinis v Ray White Paradise Group  QCATA 90
Devries v Australian National Railways Commission (1993) 177 CLR 472
Director General, Department of Education and Training v MT (2006) 67 NSWLR 237
Fox v Percy (2003) 214 CLR 118
Hughes v National Trustees Executors and Agency Co of Australasia Ltd  VR 257
Khanna v Baweja & Anor  NSWCA 193
Legal Services Commissioner v Bradshaw  QCA 126
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
NF v State of Queensland  QCA 110
Pappas v Meiklejohn’s Accountants  QCATA 60
Prince Alfred College Incorporated v ADC (2016) 258 CLR 134
Rook v Maynard (1993) 70 A Crim R 133; 126 ALR 150
The Pot Man Pty Ltd v Reaoch  QCATA 318
Thomas v Mowbray (2007) 233 CLR 307;  HCA 33
Thompson v Body Corporate for Arila Lodge & Ors  QCA 267
S A McLeod QC, instructed by Queensland Police Service Legal Unit
REASONS FOR DECISION
- This is an application by the Queensland Police Service (‘QPS’) for an extension of time to file Appeal APL102-19.
- On 27 March 2019 the Tribunal determined the question of liability in favour of ZIL, and adjourned the compensation issue, pending an appeal by the QPS.
- The QPS filed an application to appeal on 26 April 2019.
- It is now common ground that the normal time for appeal expired on 24 April 2019.
- On 22 July 2019 the QPS filed the present procedural application, seeking extension of the time for filing its appeal to 26 April 2019.
Principles governing discretion
- In an application of this kind the court or tribunal is required to consider inter alia (a) the length of the delay, the reasons for it, the prospects of a successful appeal if an extension is allowed, and the degree of prejudice to the other party in that event. The onus of justifying an affirmative exercise of discretion is on the applicant. And even then:
An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre-conditions that enliven the discretion ... The exercise of the discretion ... must take account of the reasons for the limitation regime.
- In purely chronological terms the delay in this instance is minimal. If the applicant were an unsophisticated person without professional assistance it might well be overlooked. But in this case the applicant is represented by a specialist arm of the State, and must act as a model litigant.
- Is there a satisfactory reason for the delay? The presence or absence of such an explanation is a consideration of prime importance. ‘A month’s delay with a plausible explanation may lead to an extension of time, but a day’s unexplained delay may not’. An unsatisfactory explanation is no explanation. Brevity of delay alone does not conclude the inquiry in the applicant’s favour.
- The QPS offered a contingent excuse: ‘[I]f a delay is found to have occurred, then it is only the consequence of a misunderstanding as to the interpretation of section 143.’And a little later: ‘Due to public holidays surrounding the Easter period the date in [sic] which to appeal was miscalculated’. Not until the hearing on 2 December 2019 was the denial of filing out of time formally abandoned. Senior counsel for the QPS, in reply to the Tribunal, then fairly conceded that the only available explanation was administrative oversight.
- The lack of due diligence in observing the time for appeal was followed by an inordinate delay before the present application for extension was filed. As early as 29 April 2019, three days after the appeal was filed, ZIL informed the QPS that she was taking the limitation point. However, the QPS did not apply for an extension until 22 July 2019, almost three months later. On 20 May 2019 the tribunal directed the QPS to take that step by 29 May; the QPS did not comply. Further tolerance was exercised. The deadline for an extension application was then amended to 30 July 2019.
- The unexplained delay in filing the appeal, and the tardy action to remedy that defect. Despite promptings by ZIL and a Senior Member of the tribunal may suffice, without more, to warrant dismissal of the present application. However, it is desirable to consider other matters affecting the discretion to extend.
Prospects on appeal
- What are the prospects of a successful appeal? The QPS alleges that the tribunal erred by subjecting it to the principle of ‘strict’ or absolute liability. This submission is misconceived; it confuses strict liability with direct liability. In essence the subject decision holds that the QPS breached its own duty of care to the party aggrieved by failing to maintain a system which would have prevented, or at least deterred, delinquent officers from violating the Information Privacy Act. As the learned Member found: ‘I cannot be satisfied that the QPS took all reasonable care to prevent ... unauthorised use or disclosure of the personal information.’
- In arriving at that conclusion the Member distinguished certain earlier cases by invoking an intuition of recent changes in public opinion – a ratio applied in some notable examples of judicial creativity in recent times. She also noted a decree of the Police Commissioner dated 30 March 2016, warning officers that ‘discipline sanctions for inappropriate access of QPS information which have applied in the past will no longer apply ... as the bar has been raised to ... clearly reflect organisational and community disapproval [of] such conduct.’ The vague phrase ‘in years gone by’ might reach back to years before the suggested age of enlightenment dawned after 2006.
- But be that as it may, I see no real prospect of that finding being set aside as unreasonable, let alone ‘glaringly improbable’ or contrary to compelling evidence. Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible conclusion.
- Another ground of appeal is that the tribunal erred in law ‘by having regard to an irrelevant consideration, namely that the personal information related to domestic violence’. On the contrary the sensitivity or otherwise of information improperly disclosed is relevant to the degree of care that ought to be taken in protecting that information.
- Further, the QPS complains that the Member’s consideration of the absence of ‘an audit regime’ was ‘not available on the evidence’. In fact the Member questioned the QPS expert closely about security arrangements, and expressly raised the issue of monitoring. The witness agreed that it was possible to regulate the access that particular officers had to the system, and that certain information might be restricted to officers above the rank of constable. Evidently that had not been done, and use of the system was ‘up to the ethics of the individual’. The witness conceded that there was no regular system of checking to see who had access, how often, and for what purpose, and official knowledge of such matters was unlikely unless there was ‘a complaint or an incident to suggest there’s been unauthorised access’. ‘He knew he would not be caught - because no one looked’.
- The QPS complains of ‘no evidence’ but there is nothing particularly novel about monitoring systems for computers storing confidential data. They are not infallible but they are an effective deterrent.
- If anything more be required to dispose of this ground of appeal, we have section 28(3) of the QCAT Act:
In conducting a proceeding, the tribunal … is not bound by the rules of evidence, or any practices or procedures applying to courts of record … and may inform itself in any way it considers appropriate.
- In order to justify a favourable exercise of this discretion the applicant must establish that the commencement of an appeal beyond the limitation period would not result in significant prejudice to the prospective defendant.
- In a sense an extension order always causes a detriment to disappointed parties. At one moment they are safe from continued litigation; in the next moment they are not. If that were a conclusive answer no application of this kind could succeed. But here there are other detriments that cannot be resolved by an order for costs. Detriment may be personal, economic or non-economic. ZIL has experienced inordinate delays and uncertainties by the QPS’ actions (or inactions) in this unnecessarily protracted matter. There is no good reason to doubt the citizen’s complaint that, as a result, she has suffered considerable stress and anxiety. Similar experiences were emphatically declared by Senior Member Oliver to be ‘detriment’ for present purposes in CMC v O'Regan and I respectfully agree. Indeed, the unauthorised disclose of confidential information is per se a detriment to the confider of that information.
- This is not a meritorious application. Pertinent are the observations of Wilson J, sometime President of the Tribunal:
The legislation, and the demands upon public resources which fund QCAT necessarily impose an expectation and an obligation upon a party that it will ensure that it acts in its own best interests, or accept the consequences. 
- That caution was addressed to an unrepresented litigant. It applies a fortiori to arms of the State.
- In the words of another distinguished judicial Member strict observance of time limits ‘is consistent with the public interest in the finality of litigation’.
- For the reasons already given, I am by no means satisfied that time for filing the QPS appeal should be extended. The present application, and, in consequence, the application to appeal, must be dismissed.
- By consent it is ordered that publication of any information that may enable identification of the respondent to the present application (the applicant at first instance) is prohibited without further order of the tribunal.
- The application of the QPS for extension of time to appeal is dismissed.
- The application of the QPS to appeal is dismissed.
- The issue of compensation is remitted to the tribunal of first instance.
Also Respondent to QPS application APL102-19.
A pseudonym, pursuant an order that her name not be published: see QCAT Act s 66.
See QCAT Act s 143(4)(b).
QCAT Act s 61.
Hughes v National Trustees Executors and Agency Co of Australasia Ltd  VR 257; Legal Services Commissioner v Bradshaw  QCA 126: Thompson v Body Corporate for Arila Lodge & Ors  QCA 267.
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547, 551, 564; NF v State of Queensland  QCA 110; Prince Alfred College Incorporated v ADC (2016) 258 CLR 134.
Prince Alfred College Incorporated v ADC (2016) 258 CLR 134 at .
Thomas v Mowbray (2007) 233 CLR 307;  HCA 33 at .
Khanna v Baweja & Anor  NSWCA 193 at ; Thompson v Body Corporate for Arila Lodge & Ors  QCA 267.
Legal Services Commissioner v Bradshaw  QCA 126 at  per Chesterman JA.
 QPS submissions 22 July 2019 paragraph 29.
 Affidavit of Esther Fletcher filed 7 August 2019 paragraph 3.
 Email ZIL to QPS 29 April 2019; see submissions of respondent dated 26 August 2019 page 4, and Chronology attached thereto; letter respondent to tribunal 15 July 2019.
 Directions dated 20 May 2019.
 Directions dated 4 July 2019.
 Grounds of appeal 26 April 2019 paragraph 2.
 Decision delivered on 27 March 2019 at . See also at -.
Director General, Department of Education and Training v MT (2006) 67 NSWLR 237; AXP v Queensland Police Service  QCAT 680.
 Decision at .
 Decision at .
Fox v Percy (2003) 214 CLR 118 at -; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-179.
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at .
 Notice of appeal, particulars paragraph 5.
 Notice of appeal, particulars paragraph 4.
 Decision at .
 Decision at .
 Decision at .
 See for example Rook v Maynard (1993) 70 A Crim R 133; 126 ALR 150.
 Cf QCAT Act s 61(3).
Crinis v Ray White Paradise Group  QCATA 90 at .
 ZIL’s submissions dated 26 August 2019 paragraph 17; letter ZIL to tribunal 24 July 2019 pages 1 and 3.
  QCAT 238 at .
Attorney-General (UK) v Heinemann Publishers Pty Ltd (1987) 10 NSWLR 86 at 191; Coco v AN Clark (Engineers)  RPC 41 at 47.
The Pot Man Pty Ltd v Reaoch  QCATA 318 at  and  emphasis added.
Pappas v Meiklejohn’s Accountants  QCATA 60 at  per Thomas QC.
- Published Case Name:
Queensland Police Service v ZIL
- Shortened Case Name:
Queensland Police Service v ZIL
 QCATA 162
06 Dec 2019