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Walker Group Holdings Pty Ltd v Queensland Information Commissioner[2021] QCATA 30

Walker Group Holdings Pty Ltd v Queensland Information Commissioner[2021] QCATA 30

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Walker Group Holdings Pty Ltd v Queensland Information Commissioner [2021] QCATA 30

PARTIES:

WALKER GROUP HOLDINGS PTY LTD AND

WALKER TOONDAH HARBOUR PTY LTD

(applicants/appellants)

v

QUEENSLAND INFORMATION COMMISSIONER

(first respondent)

REDLAND CITY COUNCIL

(second respondent)

REDLANDS2030 INC

(third respondent)

RIC TOONDAH PTY LTD

(fourth respondent)

MINISTER FOR ECONOMIC DEVELOPMENT QUEENSLAND

(fifth respondent)

APPLICATION NO/S:

APL339-18

MATTER TYPE:

Appeals

DELIVERED ON:

9 April 2021

HEARING DATE:

8 February 2021

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

  1. The appeals are allowed.
  2. The decision of the first respondent of 21 November 2018 is set aside.
  3. In lieu thereof, on the external review, the decision of the second respondent, to refuse access to the relevant documents, is confirmed.
  4. If any party seeks an order as to costs, that party must file and serve on the other parties written submissions outlining the order sought and the arguments in support of it within twenty-one days of the date of this decision.
  5. If any such submissions are filed and served, any party against whom an order for costs is sought may file and serve any submissions in response within twenty-one days of the date of service of those submissions.
  6. If any such submissions are filed and served, the party seeking costs may file and serve any submissions in reply within fourteen days of the service of those submissions.
  7. If any party seeks an order for costs, the Appeal Tribunal will decide the question of costs on the papers after all such submissions have been filed.
  8. If no party seeks an order for costs, there will be no order as to costs of the proceeding.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – right to information – whether disclosure of documents would found an action for breach of confidence – Office of the Information Commissioner allowed access to documents – whether provision extends to breach of a contractual obligation of confidence – whether relevant to consider if disclosure of the information is in the public interest – whether matter should be referred back to the Office of the Information Commissioner

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

A v Hayden (1984) 156 CLR 52

Adani Mining Pty Ltd v Information Commissioner [2020] QCATA 52

B v Brisbane North Regional Health Authority (Decision No 94001, 31 January 1994)

BGC (Australia) Pty Ltd v Fremantle Port Authority (2003) 28 WAR 187

Bray v Workers Rehabilitation & Compensation Corporation (1994) 62 SASR 219

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

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

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

McGrath v Director-General, National Archines Australia [2020] AATA 1790

Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448

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

The Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39

APPEARANCES &

REPRESENTATION:

Applicant:

A L Wheatley QC and A G Psaltis instructed by Clayton Utz Lawyers.

First Respondent:

K L McGuire

Second Respondent

K Kennedy

Third Respondent

P Morreau instructed by the Environmental Defenders Office

Fourth Respondent

A Butcher

Fifth Respondent

J M Horton QC and R Berry instructed by the Crown Solicitor

REASONS FOR DECISION

  1. [1]
    On 21 November 2018 the first respondent, the Queensland Information Commissioner, set aside the decision of the second respondent to refuse access to certain documents under the Right to Information Act 2009 (Qld) (“the Act”), and decided that there were no grounds on which access to the information in the documents in question could be refused under the Act.  The appellants and the fifth respondent appealed separately to the Appeal Tribunal to review this decision.  On 12 March 2019 the President directed that the appeals be consolidated.  Under the Act s 119 the appellants are 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.  
  2. [2]
    On the hearing of the appeal the fifth respondent supported the position of the appellants, adopting submissions made on their behalf, and adding brief submissions.  The first, second and fourth respondents appeared but made no submissions, while the third respondent made submissions supporting the decision of the first respondent.  It is therefore convenient to refer to the third respondent as “the respondent”, and to refer to the first respondent as the QIC, the second respondent as the Council, and the fifth respondent as the Minister.  

Background

  1. [3]
    On 21 June 2013 an area of land at Toondah Harbour was declared a Priority Development Area under the Economic Development Act 2012 (Qld).[1] After receiving expressions of interest, the Queensland Government decided to proceed with the development of the harbour.  For that purpose, the appellants, the Minister, the Council and the fourth respondent entered into a development agreement for the redevelopment of Toondah Harbour.  Subsequently they entered into a deed of variation by which the development agreement was varied.  
  1. [4]
    The proposed development incorporates a new port facility for ferry services, with 1,010 public car parking spaces for ferry users, foreshore parks and public access, an area of conservation park, recreational boating facilities including a 200 berth marina, a pontoon, sheltered boat ramp and trailer parking, a retail and dining area associated with the marina, hotel and convention facilities, and 3,600 new dwellings.  The area of the development includes 17.9 hectares of land and 49.5 hectares of water, from which approximately 32 hectares of land is to be reclaimed under the project.[2] The intention is to retain the foreshore park and road reserves as state land managed by the Council, to transfer title of the ferry terminals and car parking to the Council, and the marina and development lots are to be sold as freehold for construction or development.  
  2. [5]
    Despite the optimistic statement of purpose of the 2012 Act s 3, such a development faces a host of legislative obstacles.  For example, it needs to be dealt with under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth), and a Land Use Agreement must be negotiated with claimants under the Native Title Act 1999 (Cth).  As with any proposal to do anything, there are those who oppose it, and I expect this appeal is a minor skirmish on the border of the main battle.
  1. [6]
    On 4 July 2017, the respondent, a community group, applied to the Council for the release under the Act of various documents, by a description which included the development agreement and the deed of variation.  On 1 September 2017, the Council decided not to release those documents, on the ground that they contained exempt information within s 8 in Schedule 3 of the Act, being information the disclosure of which would found an action for breach of confidence.  On 28 October 2017 the respondent sought an internal review of that decision, and on 24 October 2017 that review confirmed the decision.  The following day, the respondent sought external review of the decision by the QIC.  That led to the decision the subject of the present appeal.  
  2. [7]
    The matter has not proceeded with any notable celerity.  It was before the QIC for over a year, and although the first application to appeal was filed on 14 December 2018 it took over two years to come to a hearing.  In the meantime, other things have been happening.  The QIC decided in this matter, as she had in others, that the category of exempt information in s 8 of Schedule 3 of the Act did not apply to a cause of action for breach of confidence based on a contract, and that whether there was an action on equitable grounds for breach of confidence required the satisfaction of five grounds, one of which required that the balance of public interest factors favour not disclosing the information.  
  3. [8]
    After that decision judgment was delivered by the President of the Tribunal in an appeal from another similar decision of the QIC: Ramsay Health Care Ltd v Information Commissioner [2019] QCATA 66.  His Honour concluded that the QIC erred in construing s 8 as being limited to breaches of confidence on equitable grounds, and had also erred in concluding that relief was not available on equitable grounds by an analysis which focused only on the public interest exception to such relief.  He also expressed the view that there were only four elements to establish aright to relief on equitable grounds, and that no detriment to the plaintiff need be shown.  Further, he proceeded on the basis, not controversial before him, that to show that disclosure of the information would found an action for breach of confidence did not require that the existence of any defence be negatived: [72].  There has been no appeal from that decision.
  4. [9]
    Last year an appeal came before me from a similar decision of the QIC, taken before the judgment in Ramsay:  Adani Mining Pty Ltd v Information Commissioner [2020] QCATA 52.  The appeal was on the same grounds, and after the judgment in Ramsay, the third respondent conceded that there had been an error of law in the decision.  I expressed agreement with the decision in Ramsay about the scope of s 8, and I also held that the QIC had erred in concluding that, if a cause of action for breach of confidence could arise from a contract, public interest considerations were still relevant in determining whether that confidentiality would be enforced.  As well, the second error found in Ramsay was found to have been repeated: [45].  I also referred to the absence of a need to negative defences, again not the subject of argument: [39].  There has been no appeal from that decision.  
  5. [10]
    The Act provides that a document is exempt from disclosure if disclosure of the document would “found an action for breach of confidence”.[3] In the present matter the appellants and the Minister in essence supported the approach in Ramsay and in Adani.  The respondent submitted that s 8 was confined to a cause of action for breach of confidence on equitable grounds, and that it was relevant to consider the balance of public interest considerations to determine whether such an action was available.  It was further submitted that to “found a cause of action for breach of confidence” it was necessary to negative defences.  Further, it was submitted that the scope of the contract, and any available defences, had not been considered by the QIC, so if the appeal were allowed the matter had to go back to the QIC.  

Submissions of the parties – First issue

  1. [11]
    The appellants advanced eleven grounds of appeal, but at the hearing grouped these into three issues.  The first was: Does Schedule 3 s 8(1) of the Act include an action for breach of a contractual obligation of confidence?  In respect of this issue, the appellant and the Minister adopted the reasoning in Ramsay (supra).  The respondent submitted that the contrary conclusion adopted previously by the Administrative Appeals Tribunal had been repeated in McGrath v Director-General, National Archives of Australia [2020] AATA 1790.  That decision involved a different Act, but the relevant provision contained a similar expression, “would constitute a breach of confidence.”  This was the original form of the provision in the Commonwealth equivalent of the Act, as discussed below.  The difficulty with this decision, for my purposes, is that it seems simply to state the proposition that release of a document would constitute a breach of confidence only if the elements of an equitable obligation of confidence were present, and that breach of a contractual term to keep information confidential would not be sufficient: [208].  
  2. [12]
    That Tribunal explained that the provision would be interpreted without reference to the decision of the Federal Court in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434, and having regard to the other provisions in the Act where the term “confidence” or “confidential” was used, but there seems to me, with respect, to be no reasoned analysis of why a breach of a contractual obligation of confidence would not amount to a breach of confidence for the purpose of the section.  In those circumstances, I can hardly regard this as a persuasive authority.
  1. [13]
    On the other hand, in Bray v Workers Rehabilitation & Compensation Corporation (1994) 62 SASR 219 the Full Court applied a provision in the correspondent Act of that state, that “A document is an exempt document … if it contains matter the disclosure of which would found an action for breach of confidence.”  The Court at p 227 regarded it as self-evident that it applied to a contractual obligation of confidence, and held that it applied as well to an equitable obligation of confidence.[4] In that case information was provided in reliance on a promise on behalf of the respondent to treat it as given in confidence, and it was held that as a result the document containing it was exempt under that provision.  This deserves respect as a decision of an intermediate appellate court.  
  2. [14]
    The respondent also referred to the absence, in the reasons in Ramsay, of any consideration of the significance of s 47(2)(a) of the Act, requiring that the grounds on which access may be refused to be interpreted narrowly.  That is a reference to the “grounds” referred to in subsection (1), and set out in subsection (3), but there is no ambiguity about the terms of s 47(3)(a).  That approach may be useful in some circumstances where the words used by the legislature are susceptible of two or more meanings.  The difficulty I find however is that the approach adopted by the QIC really involves reading the words used in s 8 as if they contained an unexpressed limitation, to “an action for breach of confidence on equitable grounds.”  I do not consider that s 47(2)(a) justifies inserting a non-existing limitation into the words used by the legislature.  That is not interpreting the section narrowly, it is amending it.  
  3. [15]
    A cause of action for breach of confidence can exist whenever there has been a breach of an obligation of confidence, that is, an obligation to keep the relevant information confidential.  An obligation of confidence can arise in equity, but it can also arise at law, under a contract, and a cause of action for breach of confidence can therefore exist as a result of a breach of either obligation.  As the Full Federal Court said in Crown Resorts Ltd v Zantran Pty Ltd [2020] FCAFC 1, it is necessary to distinguish between the separate features of the two bases.  An obligation of confidence arising under a contract is an obligation in law, and gives rise to an action at law for breach of confidence, although the existence of such a cause of action can support the grant of equitable remedies.   
  4. [16]
    Subject to the above, I adhere to what I said in Adani Mining Pty Ltd v Office of the Information Commissioner [2020] QCATA 52 about the decision in Ramsay.  The first issue in the appeal is resolved in favour of the appellants.  The QIC erred in treating s 8 as not applying to an obligation of confidence founded in contract.  

- Second issue

  1. [17]
    The next issue raised was whether, to found an action for breach of confidence for the purposes of s 8, a consideration of the public interest is required?  The appellants again relied on what was said in Ramsay and in Adani Mining.  In the submissions of the respondent this was tied up with the question of whether it is necessary to have regard to the existence of any defence in order to decide whether the circumstances found such an action.  The respondent referred to passages in Crown Resorts to support the proposition that public interest considerations impacting on enforceability still arise in relation to contractual obligations of confidence.  A number of passages were referred to, but these are generally directed to the availability of a defence to equitable relief, rather than the existence of a cause of action for breach of confidence.  One exception is where the contractual obligation is said to be based on an implied term in the contract, where any limits on the willingness to imply a term wide enough to assist the plaintiff goes to the existence of a cause of action; see for example the quote at the end of [31].
  1. [18]
    In my opinion however, the Chief Justice made it clear in [34] that an express contractual provision for confidentiality will be enforced, subject to equitable defences, or matters which render the contract or that term unenforceable, which can include identified public policy grounds.  This is just saying that defences in law will be relevant to enforceability at law, and equitable defences, to the availability of enforcement in equity.   Lee J at [97] referred to a passage in the judgment of Gummow J in Corrs Pavey which suggested that information about the existence of real likelihood of a crime, civil wrong or serious misdeed of public importance would lack the necessary attribute of confidence.  Even if this is seen as going to the existence of a cause of action, this was a dissenting judgment, and Lee J at [100] went on to characterise this as a matter which depended on grounds for unenforceability being established, that is, that it was a matter of defence.  See also what his Honour said at [113].  

Legislative history

  1. [19]
    It is sometimes helpful to consider the legislative background to a particular provision.  The Act replaced the Freedom of Information Act 1992 (Qld) which in turn was modelled on the Freedom of Information Act 1982 (Cth).  Both acts also made provision for documents subject to an obligation of confidence.  The 1982 Act provided in s 45 that “A document is an exempt document if its disclosure under the Act would constitute a breach of confidence.”  That Act also provided in s 43 that a document which would disclose a trade secret or other information having a commercial value which would be reduced by the disclosure of that document was exempt, as well as information about the business, commercial or financial affairs of a person, organisation or undertaking.  The Explanatory Memorandum for the bill explained that s 45 was to protect confidential relationships which would not be within the specific protection of s 43, or s 41, which deals with personal privacy.  
  2. [20]
    In 1991 the 1982 Act was amended, including s 45, to provide “A document is an exempt document if its disclosure under the Act would found an action, by a person other than the Commonwealth, for breach of confidence.”[5] That amendment made it clear that the intention was to protect the confidence of others, and introduced the expression “found an action”.  The Explanatory Memorandum referred to the clause making this amendment, Clause 32, as implementing a Senate recommendation that the exemption be confined to a situation where “the person who provided the confidential information would be able to prevent disclosure under the general law relating to breach of confidence.”  It was not to protect some confidences that the general law does not protect, such as information about a crime or fraud.
  1. [21]
    The 1992 Act provided in s 46(1)(a) that “Matter is exempt if its disclosure would found an action for breach of confidence.”  Paragraph (b) of that subsection covered “information of a confidential nature that was communicated in confidence” disclosure of which could reasonably be expected to prejudice the future supply of such information, but it contained the express limitation, “unless its disclosure would on balance be in the public interest.”  That this appeared only in paragraph (b) showed clearly that a similar limitation did not apply to paragraph (a).  The section went on to provide that it applied only to a confidence owed to someone other than a manifestation of the government.  The Explanatory Note for the bill for this Act was characteristically unhelpful.  The Explanatory Note for the bill for the Act stated that s 8 of Schedule 3 re-enacts s 46(1)(a) of the 1992 Act,[6] while s 46(1)(b) was to be dealt with in Schedule 4, as a harm factor.  

Further consideration

  1. [22]
    There is perhaps a hint in the Parliamentary Material concerning the 1991 Act, which was the basis of the Queensland provisions, that the intention was to extend protection only to situations where a court would actually enforce a cause of action for breach of confidence, but in my opinion there are three considerations which point clearly in the opposite direction.  The first is the actual words used by the legislature, “found an action for breach of confidence”.  Such an action is “founded” by a pleading setting out the basis on which an obligation of confidence is alleged to exist, and has been breached, but it need not, and properly does not, deal with any issues by way of defence.  That does not require that the absence of any defence be established to bring information within the scope of s 8.  
  2. [23]
    The second consideration is that potentially there could be a host of possible defences to a cause of action for breach of a contractual obligation of confidence.  There can be defences in law which go to the validity of the contract, and if equitable relief is also sought, further relevant considerations, including equitable defences.[7] The cases considering a public interest defence naturally focus on that particular defence, but unless the section extends to any information where a cause of action for breach of confidence exists, potentially any defence could be relevant.  Excluding all of them could impose an impossible burden on any decision maker, and any party seeking to uphold the confidentiality.[8]  
  3. [24]
    The third reason arises from the presence in the Act of s 170, which provides protection from an action for breach of confidence against the State etc if a person is given access to a document which was required or permitted to be given under the Act.  It follows that release of a document containing information otherwise falling within s 8 in Schedule 3 will necessarily not found a successful action for breach of confidence, because there will be a defence under s 170.  If s 8 is satisfied only by such an action, it will never be satisfied, because of s 170.  The only way to read both sections together in a way which gives meaning to s 8 is to characterise it as not requiring the absence of any defence to the postulated action for breach of confidence.  Overall, I consider that matters going to defence only are not relevant to the operation of s 8, and adhere to the view to that effect I expressed in Adani.
  1. [25]
    The respondent also argued that a government cannot contract out of its obligations under the Act.  As a general proposition that is true, but it does not assist the respondent here, because what matters is the scope of the category of exemption in s 8.  The Act clearly provides that the obligation to disclose information does not apply to the exempt information within Schedule 3, so that whatever s 8 covers, there is no obligation to disclose it under the Act.  If on its true construction s 8 applies to information the subject of a contractual obligation of confidence, there is no obligation under the Act to disclose it, and hence no question of contracting out of that obligation.[9] 
  2. [26]
    It is significant that s 8 is essentially directed to protecting information where there is an obligation of confidence owned to a third party, rather than a situation where the government is seeking to enforce an obligation of confidence imposed by it.  There is no particular reason why a government should not be able to enter into a contractual obligation to a third party under which the third party is able to enforce an obligation to keep confidential information which, in a sense, belongs to it.  I do not want to get into the question of whether information is, or can be, property, but at least in some circumstances information can be like property, and it seems to me that it is that sort of information with which this section is concerned.  
  3. [27]
    Reference was also made to the decision of Heenan J in BGC (Australia) Pty Ltd v Fremantle Port Authority (2003) 28 WAR 187.  That case was similar to the present, in that the appellant sought access to certain documents relating to a contract between the government agency and a third party about the development of a port, which were subject to a contractual obligation of confidence.  The wording of the relevant provision of the Western Australian Act was similar to the wording of s 45 of the 1982 Act, as amended in 1991, and s 46 of the 1992 Act, but the equivalent of s 46(1)(a) was expressed as: “Matter is exempt matter if its disclosure (otherwise than under this Act or another written law) would be a breach of confidence for which a legal remedy could be obtained.”  
  4. [28]
    That provision was characterised as covering obligations of confidence arising in contract, but as making the existence of a good defence to a claim for relief relevant: [23].  It was said that a contract could be unenforceable if entered into in bad faith or for an improper purpose, but it was the obligation of the party alleging that to establish it by requisite proof: [33].  The proposition that it was also necessary to show grounds for an equitable remedy was also rejected: [44].  The respondent submitted that the decision should not be followed, but I consider that there is no good reason not to do so.  To the extent that that provision is comparable with s 8 of the Act, I consider that it supports the approach in Adani.  
  5. [29]
    The respondent submitted that when private law concepts involved in an action for breach of confidence are translated into the framework of the Act, they must accommodate that setting, and general public law obligations, consistent with the overall purpose of the Act.  I do not consider that it is obvious that that is so.  Rather, when the legislature incorporated into the Act a test which was based on private law, I consider that the ordinary inference is that the private law concepts that have been made applicable to the statutory test.   This however is subject to the proper construction and operation of the statute as a whole.  The scope and purpose of the public law regime may well have the effect of producing some modification of the private law doctrines.  
  6. [30]
    That was the effect of what was said by the High Court in Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448 at 455.  That decision is instructive.  A provision in the Migration Act 1958 (Cth) required the Migration Review Tribunal to give to an applicant certain information, but excluded “non-disclosable information” which was defined in a way that included information “whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence.”  The Court, reversing a decision of the Full Federal Court, held that this meant that the Tribunal was prevented from disclosing the identity of a person who had provided the department in confidence with information about the applicant, and the details of the information, as distinct from its effect.  
  7. [31]
    The appellant had argued that the obligation should not be enforced, because it involved the disclosure of “iniquity”, and because natural justice considerations required disclosure so that he could respond properly.  But the Court held that this was not an example of a relevant disclosure of “iniquity” (at [28]), and that the objects and purpose of the Migration Act required that there be no impediment to the giving of information to authorities about claims that are made for visas: at [32].  Whether there was any modification of the private law principles was determined by reference to the scope and purpose of that statute.  As well, although the Court discussed contractual confidence and an equitable obligation of confidence as different things, there was nothing in the judgment to suggest that it regarded the relevant provision in the definition as confined to a breach of the latter.   
  8. [32]
    In support of the existence of an overriding public interest test, reference was made to the primary object of the Act in s 3.  But the terms of s 48(3) make it clear that, if information falls within any of the types set out in Schedule 3, the Parliament has already decided that on balance it is contrary to the public interest to give access, the test in s 3.  It follows that, if information falls within any of the types set out in Schedule 3, it is necessarily inappropriate to carry out any further balancing of the public interest to determine if the information is not to be disclosed.  That is the point of making the information exempt.  
  9. [33]
    I was referred to statements in the judgments in A v Hayden (1984) 156 CLR 52, where the Court held that a term in the contract of employment of an intelligence officer that the identity of the officer would be kept confidential did not give rise to an enforceable obligation of confidence, where the identity of the officer had been sought by State police investigating the alleged criminal offences of the officer.  This was on the basis that it would be contrary to public policy to enforce a contract in a way which would tend to obstruct the administration of the criminal law.  In that case the Commonwealth government was willing to disclose the information, and the issue was whether the officer could present that.  The decision has no present relevance, because it did not involve the operation of a statute such as the Act, and because there is no basis for any suggestion that the contract relied on in this case would somehow obstruct the administration of the criminal law.
  1. [34]
    I was also referred to the decision of the Court in The Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 51, that the way in which equitable relief against breach of confidence is modified if relied on by the government.  That is not relevant here, because it is clear that s 8 is not concerned with protecting government secrets, but concerned with protecting the private interests of third parties who have been promised confidentiality by the government.  That is a very different thing.  The same point was made in Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 31.  This flows from the fact that the test under s 8 depends on whether the third party could found an action for breach of confidence, not whether the government could found an action for breach of confidence.  
  2. [35]
    Overall, I am not persuaded to depart from the opinion I expressed in Adani.  It was not appropriate for the QIC to consider the application of a public interest test in determining whether the documents contained exempt information under s 8.  To do so was an error of law.  
  3. [36]
    I should also say something about the question of whether a provision in the confidentiality agreement that it did not apply to documents released under the Act meant that s 8 did not apply, because there was no contractual obligation to keep information confidential for the purposes of the Act.  That in my opinion is not the function and effect of such a clause.  It is similar to s 170 of the Act, in that it prevents liability if documents are released notwithstanding the contractual obligation; that is, if the other parties have no choice but to release the documents.  Subject to that, there is an obligation to keep the documents confidential, and since that brings the documents within s 8 of Schedule 3, there is no obligation under the Act to release them, and the contractual exclusion does not apply.  

- Third issue

  1. [37]
    The third matter related to the question of whether the QIC had correctly engaged in the balancing exercise of the factors supporting and opposing disclosure in order to determine whether it was appropriate on balance to release the documents.  This was characterised as an issue as to the proper construction and application of the Act s 49.  The appellants and the Minister submitted that the QIC had applied the wrong approach, and, as in Ramsay, had focussed on the public interest in the release of the documents in a way which involved a further error of law.  Although I heard argument on this, since I consider that the QIC erred in undertaking that balancing exercise at all, and that the external review can be resolved without undertaking it, I consider that the question has become academic.  In those circumstances, I do not consider that I should decide this issue.  If a different view is taken elsewhere, the Court will be in as good a position as I am to decide that question for itself.  
  2. [38]
    The appeal should therefore be allowed.  The remaining question is how the respondent’s application for external review is to be dealt with.  The respondent asked that, if this situation arose, the matter be remitted to the QIC to be determined.[10] This was first to determine whether the contract would be enforced because of public policy considerations, but that I consider is dependent on its being necessary to exclude defences in order to bring the matter within s 8.  Since I have decided that it is not, that is not a reason to send the matter back.  
  3. [39]
    There is no reason to refer the matter back to the QIC to consider the scope of the confidentiality provision, since there have already been findings that the documents in dispute, the Development Agreement and the Deed of Variation, are covered by it: [17].  That these are the documents in dispute appears from [12].  The only remaining issue is whether the documents contain exempt information because it falls within s 8 in Schedule 3.  I do not consider that any other matters of fact need to be found before the matter can be decided.  In those circumstances, there is no need to refer the matter back to the QIS.  
  4. [40]
    Accordingly the decision of the Appeal Tribunal is that:
    1. (a)
      The appeals are allowed.
    2. (b)
      The decision of the first respondent of 21 November 2018 is set aside.
    3. (c)
      In lieu thereof, on the external review, the decision of the second respondent, to refuse access to the relevant documents, is confirmed.
    4. (d)
      If any party seeks an order as to costs, that party must file and serve on the other parties written submissions outlining the order sought and the arguments in support of it within twenty-one days of the date of this decision.
    5. (e)
      If any such submissions are filed and served, any party against whom an order for costs is sought may file and serve any submissions in response within twenty-one days of the date of service of those submissions.
    6. (f)
      If any such submissions are filed and served, the party seeking costs may file and serve any submissions in reply within fourteen days of the service of those submissions.
    7. (g)
      If any party seeks an order for costs, the Appeal Tribunal will decide the question of costs on the papers after all such submissions have been filed.
    8. (h)
      If no party seeks an order for costs, there will be no order as to costs of the proceeding.

Footnotes

[1]  The harbour is located on the shore of Moreton Bay, near Cleveland, about one kilometre east of the
railway station. There is currently a ferry terminal there. It is not pristine foreshore.

[2]  There is already a large residential development at Raby Bay north of Cleveland Station, built on
reclaimed land.

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

[4]  The Court may have been concerned by the fact that historically an “action” was a proceeding in a
common law court, while a proceeding in Chancery was termed a “suit”.

[5]          This reflected the dissenting view of Gummow J in Corrs Pavey (supra).

[6]  This occurred in a context where the then Information Commissioner had construed s 46(1)(a) as
applying to breach of an obligation of confidence arising under a contract, as well as in equity: B v
Brisbane North Regional Health Authority (Decision No 94001, 31 January 1994) at [37] – [48]

[7]  Indeed, if matters of defence are relevant, does the section apply if there was no defence in law, even
if equitable relief would on some basis not be allowed? In that situation, there is still an enforceable
cause of action for breach of confidence.

[8]          See the Act s 87(1).

[9]          BGC (Australia) Pty Ltd v Fremantle Port Authority (2003) 28 WAR 187 at [32].

[10]         Queensland Civil and Administrative Tribunal Act 2009 s 146(c).

Close

Editorial Notes

  • Published Case Name:

    Walker Group Holdings Pty Ltd v Queensland Information Commissioner

  • Shortened Case Name:

    Walker Group Holdings Pty Ltd v Queensland Information Commissioner

  • MNC:

    [2021] QCATA 30

  • Court:

    QCATA

  • Judge(s):

    Judicial Member D J McGill SC

  • Date:

    09 Apr 2021

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
A v Hayden (1984) 156 CLR 52
2 citations
Jump To
Cite 1 - (1984) 156 CLR 52
Cite 2 - (1984) 156 CLR 52
Adani Mining Pty Ltd v Office of the Information Commissioner [2020] QCATA 52
3 citations
Jump To
Cite 1 - [2020] QCATA 52
Cite 2 - [2020] QCATA 52
Cite 3 - [2020] QCATA 52
BGC (Australia) Pty Ltd v Fremantle Port Authority (2003) 28 WAR 187
3 citations
Jump To
Cite 1 - (2003) 28 WAR 187
Cite 2 - (2003) 28 WAR 187
Cite 3 - (2003) 28 WAR 187
Bray v Workers Rehabilitation & Compensation Corporation (1994) 62 SASR 219
2 citations
Jump To
Cite 1 - (1994) 62 SASR 219
Cite 2 - (1994) 62 SASR 219
Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39
2 citations
Jump To
Cite 1 - (1980) 147 CLR 39
Cite 2 - (1980) 147 CLR 39
Corrs Pavey Whiting & Byrne v Collector of Customs (VIC) (1987) 14 FCR 434
2 citations
Jump To
Cite 1 - (1987) 14 FCR 434
Cite 2 - (1987) 14 FCR 434
Crown Resorts Ltd v Zantran Pty Ltd [2020] FCAFC 1
2 citations
Jump To
Cite 1 - [2020] FCAFC 1
Cite 2 - [2020] FCAFC 1
Esso Australia Resources v Plowman (1995) 183 CLR 10
2 citations
Jump To
Cite 1 - (1995) 183 CLR 10
Cite 2 - (1995) 183 CLR 10
McGrath v Director-General, National Archives Australia [2020] AATA 1790
2 citations
Jump To
Cite 1 - [2020] AATA 1790
Cite 2 - [2020] AATA 1790
Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448
2 citations
Jump To
Cite 1 - (2009) 238 CLR 448
Cite 2 - (2009) 238 CLR 448
Ramsay Health Care Ltd v Information Commissioner [2019] QCATA 66
2 citations
Jump To
Cite 1 - [2019] QCATA 66
Cite 2 - [2019] QCATA 66

Cases Citing

Case NameFull CitationFrequency
Walker Group Holdings Pty Ltd v Queensland Information Commissioner (No 2) [2021] QCATA 841 citation
1

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