Stiles v Information Commissioner
[2021] QCATA 152
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- Stiles v Information Commissioner[2021] QCATA 152
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Stiles v Information Commissioner[2021] QCATA 152
Stiles v Information Commissioner[2021] QCATA 152
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Stiles v Information Commissioner [2021] QCATA 152 |
PARTIES: | noel edward stiles (applicant/appellant) v office of the information commissioner central seq distributor-retailer authority trading as urban utilities (respondents) |
APPLICATION NO/S: | GAR159-21 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 17 December 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC |
ORDERS: |
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CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – parties to proceeding – appeal to Appeal Tribunal from decision of Information Commissioner – Information Commissioner made respondent – other contradictor available – Information Commissioner removed as a party Information Privacy Act 2009 (Qld) s 132 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 25(b), s 40(1)(b) Walker Group Holdings Pty Ltd v Queensland Information Commissioner (No 2) [2021] QCATA 84 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
First Respondent: | Self-represented |
Second Respondent: | Hopgood Ganim Lawyers |
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]This is an application in an appeal from a decision of the Information Commissioner under the Information Privacy Act 2009 (Qld) (“the Act”) s 132. By that section, the appeal is only on a question of law, and goes to the Appeal Tribunal which has jurisdiction under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 25(b). It is therefore not an application to the review jurisdiction of the Tribunal under the QCAT Act Chapter 2 Part 1 Division 3, and so s 40(1)(b) does not apply.
- [2]The appeal was incorrectly commenced by the appellant filing in the Tribunal an Application to review a decision in Form 23, as a result of which it was not given an APL number. On 20 July 2021 the then President of the Tribunal, Daubney J, directed that that Application be treated as an Application for leave to appeal or appeal. The first respondent, the Office of the Information Commissioner, was named as the only respondent to the Application, and at the same time his Honour directed that the second respondent be joined as a respondent in the proceedings.
- [3]The first respondent on 27 September 2021 filed an application seeking a direction that it be removed as a party to the proceeding. That application is now before me. It is based on the conclusion I arrived at in Walker Group Holdings Pty Ltd v Queensland Information Commissioner (No 2) [2021] QCATA 84, that the Information Commissioner had been incorrectly made a party to that proceeding, although by the time the point was taken it was too late for it to be removed as a party. (The point was not taken until an application was made by the successful appellant for an order for costs.) That matter was an appeal under the Right to Information Act 2009 (Qld), but the relevant provisions are in the same terms, and the considerations I discussed in that decision apply here also.
- [4]The second respondent does not oppose the application, and will remain a party to the proceeding, to act as the contradictor. The appellant opposed the order sought, but did not advance any reason why my decision in Walker Group was wrong or not applicable, merely noting that the Information Commissioner was not removed as a party in Walker Group, and that the Information Commissioner had taken part in directions hearings before applying to be removed. That is so, but there had been only two on the papers hearings and one directions hearing before the directions hearing on 21 September 2021, when this issue was raised, only a little over a month after the decision in Walker Group was published. Nothing had occurred prior to then to make it inappropriate for this point to be raised.
- [5]The appellant also referred to the QCAT Act s 151(2)(a), and the Uniform Civil Procedure Rules 1999 r 749, which are concerned with an appeal or application to the Court of Appeal, and have nothing to do with this proceeding.
- [6]Indeed, the first respondent submitted that it had never been validly made a party to the proceeding at all, on the basis that there was no statutory authority for it to be made a party, even though it had a right to appear and to be heard under the Act s 155. That section is of wider application than a proceeding under the Act, but there is an important distinction between a provision which makes it appropriate for a body to be a party to a proceeding and a provision which permits the body to choose to be a party to a proceeding. The fact that the first respondent was not properly made a party does not mean that the proceeding brought against it was a nullity, or that it was never in fact a party to the proceeding. It was a respondent to the proceeding because it was named as such in the application, and the appropriate remedy is for the Tribunal to direct that it be removed as a party to the proceeding. In the circumstances, and based on the reasoning in Walker Group which I adopt without repetition, I direct accordingly, and that the proceeding continue against the second respondent as respondent.
- [7]The first respondent did not seek costs, and there will be no order as to costs.