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NBN Co Limited v Information Commissioner[2021] QCATA 40

NBN Co Limited v Information Commissioner[2021] QCATA 40

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

NBN Co Limited v Information Commissioner & Ors [2021] QCATA 40

PARTIES:

NBN CO LIMITED

(applicant)

v

INFORMATION COMMISSIONER

(first respondent)

and

SUNSHINE COAST REGIONAL COUNCIL

(second respondent)

and

JIM STRAKER

(third respondent)

APPLICATION NO/S:

APL396 - 16

MATTER TYPE:

Appeals

DELIVERED ON:

30 March 2021

HEARING DATE:

6 March 2018

HEARD AT:

Brisbane

DECISION OF:

Judge Sheridan

ORDERS:

  1. The appeal is allowed;
  2. The matter be remitted to the Commissioner to be dealt with in accordance with these reasons.

CATCHWORDS:

ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – RIGHT OF ACCESS – GROUNDS FOR REFUSAL – where Information Commissioner determined to grant access to information held by the applicant under Right to Information Act 2009 (Qld) (RTI Act) – where the applicant appeals that decision of the Information Commissioner – where applicant argues that the decision is vague and fails to specify what information should be disclosed – whether decision is uncertain – whether decision outside Commissioner’s jurisdiction – whether Commissioner misconstrued Schedule 3, s 8 of the RTI Act – whether decision unreasonable – whether appeal should be allowed

Right to Information Act 2009 (Qld), s 24, s 37, s 47(3)(b), s 80, s 89, s 119, Schedule 3 s 8(1), Schedule 4 s 7(1)(b)

Freedom of Information Act 1982 (Cth), s 45(1)

Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587, considered

Commonwealth of Australia v John Fairfax & Sons Ltd and Ors (1980) 147 CLR 39 considered

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

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

National Roads and Motorists Association Ltd v Geeson (2001) 40 ACSR 1, followed

NP Generations Pty Ltd v Feneley (2001) 80 SASR 151, followed

Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281, followed

Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [2005] WASC 255, followed

Smith Kline & French Laboratories (Aust) Ltd & Ors v Secretary to the Department of Community Services & Health (1991) 22 FCR 73, followed

Wilson v Ferguson [2015] WASC 15, followed

APPEARANCES &

REPRESENTATION:

 

Applicant:

JN Horton QC, instructed by Clayton Utz Lawyers

First Respondent:

T Lake, Office of the Information Commissioner

Second Respondent:

No appearance

Third Respondent:

No appearance

REASONS FOR DECISION

Background

  1. [1]
    This appeal is against the decision of the Information Commissioner to grant access to information concerning the “general rollout information” of the NBN network in the Maleny area.[1]
  2. [2]
    Jim Straker, a Maleny resident and member of the Maleny Action Group, applied to the Sunshine Coast Regional Council under the Right to Information Act 2009 (Qld) (RTI Act) seeking disclosure of:
  • “documents provided to NBN Co Limited (or its representatives) by Council relating to the NBN ‘local government checklist’; and
  • correspondence with NBN Co relating to NBN Co’s use of towers ‘for the provision of NBN services’.”[2]
  1. [3]
    Following a request from Council, Mr Straker clarified and narrowed the scope of his application, specifically focusing on documents that specifically relate to the Maleny area.  Mr Straker excluded from his application documents relating to previous planning schemes, current and finalised development applications and information relating to fibre/copper cable outside the Maleny area.
  2. [4]
    The application was the subject of an original decision by the Council, an internal review by the Council and an external review by the Office of the Information Commissioner.
  3. [5]
    The Information Commissioner decided that disclosure of what the Commissioner described as “negotiation information” would be contrary to the public interest and access to this information was refused under section 47(3)(b) of the RTI Act.  The Commissioner decided that what the Commissioner described as “general rollout information” was not exempt and that its disclosure would not be contrary to the public interest.
  4. [6]
    NBN has appealed against the decision permitting the third respondent access to the “general rollout information” on the basis that the Commissioner did not have jurisdiction to decide the question of access to the “general rollout information,” that the Commissioner misconstrued and misapplied the confidentiality provision of the RTI Act, the decision was uncertain and the decision was unreasonable.
  5. [7]
    In its written submissions, NBN dealt with each of these grounds in a different order. Given the way in which the proceeding was argued it is convenient to deal with the grounds in the same order as the written submissions.
  6. [8]
    An appeal is by way of rehearing, and may only be on a question of law.[3]
  7. [9]
    The Council did not oppose either the granting or the refusal of access to the information. Surprisingly, Mr Straker adopted the same attitude.
  8. [10]
    The Information Commissioner made brief submissions which concluded with the statement that the applicant’s submissions did not reveal any error of law arising from its decision.

Ground 1 – Uncertainty of the Decision

  1. [11]
    The first error alleged, that the decision is uncertain, is based on the Commissioner’s statement that “much of the information is either innocuous, out of date, relatively high-level or already in the public domain.”[4]  It is submitted that this finding does not allow the reader to differentiate precisely those documents which fit into that category and those which do not. It is submitted that the decision was therefore uncertain.  Reference was made to the decisions of Dixon J in King Gee[5] and Cann’s;[6] which concerned the validity of subordinate legislation alleged to be uncertain.  Presumably the submission is that the decision involved an error of law because it was uncertain.
  2. [12]
    The statement criticized was made as part of the findings of the Commissioner relating to the asserted fifth element of the confidentiality exemption, namely detriment.  It is not clear, however, that the statement (or any part of it) had any role to play in the ultimate decision.  There is no indication that any particular documents had these qualities and therefore should not be exempt for that reason.  Ultimately it was a whole group of documents, namely the “general rollout information,” which were found to be disclosable because, it was said, there was a manifest public interest in disclosure of information of that type.
  3. [13]
    Given the absence of any role in the decision-making process, the statement does not make the decision uncertain.  This ground fails.

Ground 2 – Jurisdiction

  1. [14]
    The second error alleged, which was originally articulated in the grounds for review as one going to jurisdiction, was that the Commissioner permitted the release of all “general rollout information” despite the fact that shortly after his initial application Mr Straker narrowed his application to documents that specifically related to the Maleny area.  NBN argued that the Commissioner only had power to deal with the request contained in the access application; relying upon a previous decision of the Commissioner to that effect.
  2. [15]
    It was not disputed that the Commissioner’s power was limited to documents which were the subject of the access application, but whether the power had been transgressed is more complicated.  It was submitted by NBN that the information found to be disclosable included a confidentiality agreement between NBN and the Council:

“Which had nothing to do with the Maleny area in particular, nor the NBN rollout, but was a commercial agreement negotiated at arm’s length to govern the exchange of information between the Council and NBN.”

  1. [16]
    That description of the document does not show that the confidentiality agreement did not relate to the Maleny area.  The Commissioner did not make any submissions on the substantive issue, and there was, as I have said, no contradictors to assist the Tribunal.
  2. [17]
    NBN did not submit that any other documents not related to the Maleny area were caught by the decision to give global access to the rollout information.
  3. [18]
    In order to determine whether the document in question, and presumably others in the relevant class, were outside the class of documents to which access was sought, it would be necessary for either the Tribunal to read and consider each document, without any party (including NBN) addressing it specifically on each document, or to return the whole matter to the Commissioner for it to be considered according to law.  Given that NBN have only submitted that the appeal should be allowed and the matter returned to the Commissioner, in respect of this ground the obvious order would be simply to return the matter for reconsideration.
  4. [19]
    The difficulty of making such an order is that it could only be made if NBN had demonstrated that the Commissioner had made an error of law.
  5. [20]
    I would not necessarily have been so satisfied except for the fact that the Commissioner has not denied the specific allegation and instead merely submits that NBN, as the third party, was not permitted to object to disclosure of the information on the ground that the information was outside the scope of the access application; referring to s 37(1)(a) of the RTI Act and two previous decisions of the Commissioner: Campbell[7] and OY76VY.[8]  Such a protective submission does not instil confidence that the original decision did not allow access to documents that were beyond the scope of those sought by the applicant.
  6. [21]
    The legal submission that NBN cannot make the argument as to the breadth of disclosure can be dealt with shortly.  Section 24 of the RTI Act allows a person to apply for access to a document.  Section 37 requires an agency or minister to give access to a document the disclosure of which may reasonably be expected to be of concern to a third party only if they have taken steps to obtain the views of the relevant third party on the document.  Under s 80 a person affected by a decision may apply for internal review.  Under s 89 a person affected by a decision, including a third party, may apply to participate in an external review by the Commissioner.  Under s 119 a participant in an external review may appeal to the Tribunal against the decision of the Commissioner.  No limits are placed in these sections upon the grounds of review or appeal; other than, in the case of the Tribunal, that the appeal be on a question of law.
  7. [22]
    There is no suggestion in any of these sections that the agency or minister or the Commissioner may give access to documents not sought in an application.  A decision beyond power is a classic error of law.  There is accordingly no basis to consider that a third party cannot argue on an appeal to the Tribunal that the Commissioner has committed an error of law in giving access to documents not sought.
  8. [23]
    I uphold this ground of appeal.

Ground 3 – Misconstruction of Schedule 3, s 8 of the RTI Act

  1. [24]
    In its written submissions, NBN argued a third ground of appeal based on three elements of the decision of the Commissioner relating to the exemption for confidential information: the decision of the Commissioner to consider a public interest test in this context, the decision to consider whether the information was provided by a public body and the decision to consider whether the confidentiality was mutual.
  2. [25]
    The grounds of appeal were articulated slightly differently to the submissions and no specific mention was made of the mutuality issue, but no objection was taken to the course of the appeal by any of the respondents and the Tribunal could and would have allowed an amendment of the grounds in this respect if the issue had arisen.  I propose to deal with each of the matters argued in the submissions.
  3. [26]
    Documents are exempt from disclosure if they are subject to a duty of confidence.  The RTI Act, Schedule 3, s 8(1) provides that:

“Information is exempt information if its disclosure would found an action for breach of confidence.”

  1. [27]
    It is settled that in order to make out a case in equity for protection of confidential information, a plaintiff must be able to prove:[9]
    1. (a)
      the information is specifically identifiable;
    2. (b)
      it has the necessary quality of confidence (and is not for example, common or public knowledge);
    3. (c)
      it was communicated in such circumstances as to import an obligation of confidence; and
    4. (d)
      there was an actual or threatened misuse of the information.
  2. [28]
    In approaching the question of exemption under Schedule 3, s 8, the Information Commissioner added a fifth element, namely “disclosure would result in detriment to the party claiming confidentiality.”[10]  In support of that proposition the Information Commissioner relied upon various previous decisions of the Information Commissioner.

Mutuality

  1. [29]
    In the discussion of the third element, the Commissioner stated that the Commissioner must be satisfied that the information was communicated and received on the basis of a mutual understanding of confidence.  Again, this approach was said to be based upon a previous decision of the Commissioner.
  2. [30]
    Ultimately, although finding that some documents were covered by a confidentiality agreement between NBN and the Council, the Commissioner found that some documents would not, nor would they be subject to any confidentiality undertaking, even when marked confidential.
  3. [31]
    In its written submissions, NBN referred to a number of authorities and propositions derived from those authorities in support of the argument that mutuality was not part of the test for an obligation of confidence.  At its highest, the law required, so it was submitted, that the information be disclosed in the reasonable knowledge that it should be treated as confidential; quoting Lord Goff in Attorney-General v Guardian Newspapers Ltd.[11]
  4. [32]
    No submissions were made to the contrary by the Commissioner.
  5. [33]
    The task is to determine whether the information was “imparted so as to import an obligation of confidence.”[12]  It is not to search for an express or implicit consensus or understanding preserving the confidentiality of the information imparted.  To search for mutuality in that respect is to apply the wrong test.  To disregard the marking on a document “confidential” and determine that this was only intended to flag the temporary secrecy of the information reinforces the error.  To further find that some of the “general rollout information” did not originate from NBN and therefore this information as a whole was not confidential also misses the point.
  6. [34]
    This part of ground 3 is made out; a requirement for mutuality is not part of the test.

Detriment and Public Interest

  1. [35]
    There is some basis for considering detriment, the fifth element added by the Commissioner.  It was referred to in the well-known judgment of Megarry J in Coco v AN Clark (Engineers) Ltd.[13]  In the course of his judgment Megarry J stated that three elements were required if an action for breach of confidence were to succeed:

“First, the information itself must … ‘have the necessary quality of confidence about it.’  Secondly that information must have been imparted in circumstances importing an obligation of confidence.  Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”[14]

  1. [36]
    Decisions since that time have, however, not repeated that element. The better view would seem to be that detriment is not an essential element of the cause of action; see National Roads and Motorists Association Ltd v Geeson;[15] NP Generations Pty Ltd v Feneley[16] and Wilson v Ferguson.[17]  It is, moreover, not generally included as one of the four elements of the cause of action referred to earlier.
  2. [37]
    The third element involving the obligation of confidence was referred to by Mason J in Commonwealth of Australia v John Fairfax & Sons Ltd and Ors,[18] but only in the context of his reasoning that when applied to government confidences it was necessary to take into consideration the public interest.   His Honour stated that equitable principles had been fashioned to protect the personal, private and proprietary interests of citizens, not to protect the very different interest of the executive government.  He said,

“That is not to say that equity will not protect information in the hands of government, but it is to say that when equity protects government information it will look at the matter through different spectacles.”[19]

  1. [38]
    The decision in John Fairfax involved a refusal by Mason J of an interlocutory injunction to restrain the publication of a book and documents said to contain classified material relating to Australia’s defence and foreign policy.  In the course of his reasons, his Honour stated:

“It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism.  But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism.  It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action.

Accordingly, the court will determine the government’s claim to confidentiality by reference to the public interest.  Unless disclosure is likely to injure the public interest, it will not be protected.”[20]

  1. [39]
    Mason J in John Fairfax had recognised the challenges raised by government information and referred to the conflicting considerations being finely balanced.  His Honour commented:

“The court will not prevent the publication of information which merely throws light on the past workings of government, even if it be not public property, so long as it does not prejudice the community in other respects.  Then disclosure will itself serve the public interest in keeping the community informed and in promoting discussion of public affairs.  If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained.”[21]

  1. [40]
    The context in which the decision was made in John Fairfax was quite different to that under consideration in this case.  The decision was made in the context of an interlocutory injunction. In that case the public interest was used as a defence to the claim.  The context is quite different from that contained in the RTI Act.  The issue under the RTI Act is whether the disclosure would found an action for breach of confidence.  It is not concerned with the discretionary considerations that apply to some forms of relief (particularly equitable relief) nor defences.
  2. [41]
    In Esso Australia Resources Ltd v Plowman, Mason CJ (with whom Dawson and McHugh JJ agreed), although affirming what he said in John Fairfax, stated that the precise scope of the public interest exemption remained unclear.[22] Toohey J agreed with that observation.[23]  The observations were made in the context of a discussion relating to whether or not an obligation of confidence existed over documents disclosed in a private arbitration. 
  3. [42]
    Importantly there is no suggestion by any court that the public interest is an additional and separate issue to the four elements which are traditionally viewed as being required in order to establish a cause of action for breach of confidence.  It is one of the circumstances relevant to whether or not the obligation of confidence is owed and to the relief that is granted, but there is no reason in law to elevate it further. 
  4. [43]
    Although the decision possibly raises an issue separate to the present one, it should be noted that the majority of the Full Court of the Federal Court in Corrs Pavey,[24] in considering a similar ground of exemption in the Freedom of Information Act 1982 (Cth), did not consider it imported considerations of public policy.  The legislation being considered in that case conferred an exemption on the ground that “its disclosure under this Act would constitute a breach of confidence.”[25]  Jenkinson J (with whom Sweeney J agreed) held that the section should be construed so as not to refer to equitable considerations (such as clean hands, iniquity and public interest) which the courts have allowed to influence whether to grant or withhold remedies for breach of confidence.[26] 
  5. [44]
    This part of ground 3 is also made out; a requirement to find detriment is not part of the test.

Public Sector

  1. [45]
    The Commissioner found that NBN was a public sector body and the “general rollout information” was government information and caught by what was described as the “Fairfax Doctrine.”
  2. [46]
    In deciding whether NBN was a public sector body, the Commissioner placed emphasis on the fact that it was wholly owned and funded by the Commonwealth, was subject to audit by the Commonwealth auditor-general, could readily be wound up by the Commonwealth and had directors selected and replaced by the Commonwealth government.
  3. [47]
    The Commissioner rejected the proposition that the “Fairfax Doctrine” should be confined to the receipt of ordinary government information, rather than commercial information, and quoted a passage from Mason CJ in Esso Australia Resources Ltd v Plowman[27] where His Honour asked why the consumers and public of Victoria should be denied knowledge of what happens in arbitrations to determine the gas price.
  4. [48]
    Having decided that NBN was a public sector body in a functional sense, the Commissioner decided that disclosure would advance the public interest, rather than cause it any detriment. In deciding that issue, the Commissioner stated that the NBN was the most comprehensive and largest infrastructure development in Australia’s history and the “general rollout information” deals with how NBN has undertaken the project in a particular local area and how the local authority facilitated it.  The Commissioner referred to a previous decision which expressed the view that there was a manifest public interest in the community having access to information. 
  5. [49]
    Whilst conceding that NBN was a public company owned and funded by the government and constrained by the requirement that it act consistently with government policy, NBN submitted that it operated at arm’s length from the government, and was expected to operate its business on a commercial basis.
  6. [50]
    There is merit in the argument that a government owned corporation which is expected to operate on a commercial basis should not be subject to the same considerations that apply to government generally.  On the other hand, there is no suggestion that NBN competes with other commercial enterprises, nor was it argued in support of this ground of appeal that the information sought was commercially sensitive.
  7. [51]
    On the present evidence, if the so-called “Fairfax Doctrine” had applied, I would have been inclined to decide that NBN was a public sector body for its purposes.
  8. [52]
    I do not uphold this part of ground 3.

Ground 4 – Unreasonableness

  1. [53]
    The final ground of appeal in part relies upon all the grounds just discussed for a submission that the decision went beyond the source of the power and hence was unreasonable.  Two of the grounds were successful, but both involved errors of law in relation to the obligation of confidence.  NBN’s success in these respects does not demonstrate that the decision was unreasonable; merely that it was in error.  I have rejected the uncertainty ground as having no significance for the decision, and one of the alleged errors of law in relation to the obligation of confidence.  Although it is probable that there was an error in relation to the disclosure of documents not relevant to the Maleny area, that is not entirely clear and certainly not clear enough so as to hold that the decision was unreasonable.
  2. [54]
    Apart from these matters, NBN also submit that the decision was unreasonable because there was good reason not to release the “general rollout information.”  In the grounds of appeal, this was said to arise from a proper application of the provisions of Schedule 3, s 8 of the RTI Act.  That was the same section relied upon for ground 3.
  3. [55]
    In its written submissions reliance was placed upon the non-application by the Commissioner of Schedule 4, s 7(1)(b).  Again, no objection was taken to NBN proceeding with this argument, and, if it had been I could and would have allowed a suitable amendment to the grounds of review.
  4. [56]
    Access to information may be refused where its disclosure would, on balance, be contrary to the public interest.[28]  Schedule 4 lists the factors for deciding the public interest.  Part 4 of this schedule lists the factors favouring nondisclosure in the public interest because of public interest harm in disclosure.  Section 7(1) relevantly provides as follows:

“Disclosure of the information could reasonably be expected to cause a public interest harm because –

……

  1. (b)
    disclosure of the information –
  1. (i)
    would disclose information (other than trade secrets) that has a commercial value to an agency or another person; and
  1. (ii)
    could reasonably be expected to destroy or diminish the commercial value of the information; or
  1. (c)
    disclosure of the information –
  1. (i)
    would disclose information (other than trade secrets or information mentioned in paragraph (b)) concerning the business, professional, commercial or financial affairs of an agency or another person; and
  1. (ii)
    could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of information of this type to government.”
  1. [57]
    NBN raised two issues based on this item.
  2. [58]
    First, NBN argued that the Commissioner failed to consider s 7(1)(b), and said that the information did have commercial value to it.  One of the documents, it submitted, showed that NBN had not yet finalised its selection of a fixed wireless tower in the relevant area and the information was inherently valuable to NBN as informing its negotiating strategy; presumably in relation to such a selection.  NBN submitted that to protect its negotiating strategy it entered into the confidentiality agreement with the Council.
  3. [59]
    The Commissioner submitted that there was nothing in NBN’s submissions or the nature or background to the matter to suggest that s 7(1)(b) was a relevant consideration. The Commissioner also submits that access to information regarding the fixed wireless tower and relating to NBN’s negotiating strategy was refused; being part of the “negotiation information.”
  4. [60]
    There was no reply to this submission.  The only thing clear is that the Commissioner did not consider s 7(1)(b).  It is unclear, however, whether, if the Commissioner had done so, what would have been the result. To say that the examples provided by NBN of information that met the test referred to in s 7(1)(b) was found to be exempt does not necessarily answer the question.
  5. [61]
    The ground was articulated as going to unreasonableness.  On one view the failure to consider a legal test might be regarded as a failure to take into account a relevant consideration; which is an error of law.  It would appear that the Commissioner has failed to take this provision into account, with the result that, in relation to this ground, the appeal succeeds.  Given the uncertainty about whether the consideration would have made any difference, the only order that could be made is that the matter should be returned for consideration.
  6. [62]
    Secondly, NBN submitted that the Commissioner imported a competitive harm element into the consideration of s 7(1)(c), rather than simply address whether disclosure “could reasonably be expected to have an adverse effect” on the business.
  7. [63]
    In the reasons the Commissioner, relying upon a decision of the Commissioner in 2012, the Commissioner stated:

“In most cases the question of whether disclosure of information could reasonably be expected to have an adverse effect will turn on whether the information is capable of causing competitive harm to the relevant entity.”[29]

  1. [64]
    Furthermore, the Commissioner did actually find that the Commissioner could not see “how release of this information could reasonably be expected to result in competitive harm to NBN Co.”[30]
  2. [65]
    It may be that whether disclosure could reasonably be expected to have an adverse effect on the business can be assessed by having regard to whether the information would cause “competitive harm,” but that is not the question.  The test propounded by the legislature is whether disclosure could reasonably be expected to have an adverse effect on the business.  It is unnecessary to put a gloss on the words used by the legislature.
  3. [66]
    This ground of appeal is made out.

Summary

  1. [67]
    In summary, various grounds of appeal are made out; mostly on the basis that the Commissioner has applied the wrong tests.  The result is that the appeal is allowed and the matter remitted to the Commissioner to be dealt with in accordance with these reasons.
  2. [68]
    Although the proper order for the Tribunal is for the matter to be remitted for further consideration, the Commissioner may consider it appropriate, given that the rollout of the NBN in the Maleny area has been completed and the applicant for the documents did not take any part in the proceedings (nor even pursue his application), to enquire of the applicant whether he wishes to withdraw the application.  The utility of access to, and further consideration of the application for access to, the documents is of course a matter that is not presently one for the Tribunal.

Footnotes

[1]Straker and Sunshine Coast Regional Council; NBN Co Limited (Third Party) [2016] QICmr 44 (28 October 2016) (Straker).

[2]Ibid at 2 [1].

[3]RTI Act s 119.

[4]Straker at 15 [62].

[5]King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184 (King Gee).

[6]Cann’s Pty Ltd v The Commonwealth (1946) 71 CLR 210 (Cann’s).

[7]Campbell and North Burnett Regional Council; Melior Resources Incorporated (Third Party) [2016] QICmr 4 (29 January 2016).

[8] OY76VY and Board of Professional Engineers of Queensland [2019] QICmr 1 (24 January 2019).

[9]Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [2005] WASC 255 at [79] quoting the dissenting judgment of Gummow J in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) & Anor (1987) 14 FCR 434 at 443; Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281 at 290 [39] adopting Gummow J in Smith Kline & French Laboratories (Aust) Ltd & Ors v Secretary to the Department of Community Services & Health (1991) 22 FCR 73 at 87.

[10]Straker at 8 [34].

[11](No 2) [1990] 1 AC 109.

[12]Commonwealth of Australia v John Fairfax & Sons Ltd and Ors (1980) 147 CLR 39 at 51.

[13](1968) 1A IPR 587 at 590.

[14]Ibid.

[15](2001) 40 ACSR 1 at 10 - 11 [58].

[16](2001) 80 SASR 151 at 157 - 158 [21].

[17][2015] WASC 15, [43].

[18](1980) 147 CLR 39 at 51 - 52 (John Fairfax).

[19]Ibid at 51.

[20]Ibid at 51 - 52.

[21]Ibid at 52.

[22](1995) 183 CLR 10 at 31.

[23](1995) 183 CLR 10 at 48.

[24]Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) & Anor (1987) 14 FCR 434 (Corrs Pavey).

[25]Corrs Pavey at 435; Freedom of Information Act 1982 (Cth) s 45(1).

[26]Corrs Pavey at 437.

[27](1995) 183 CLR 10 at 31 - 32.

[28]RTI Act s 47(3)(b) and s 49.

[29]Straker at 20 [88] citing Kalinga Wooloowin Residents Association Inc and Department of Employment, Economic Development and Innovation; City North Infrastructure Pty Ltd (Third party) (Unreported, Queensland Information Commissioner, 19 December 2011) at 18 [89].

[30]Straker at 20 [88].

Close

Editorial Notes

  • Published Case Name:

    NBN Co Limited v Information Commissioner & Ors

  • Shortened Case Name:

    NBN Co Limited v Information Commissioner

  • MNC:

    [2021] QCATA 40

  • Court:

    QCATA

  • Judge(s):

    Sheridan J

  • Date:

    30 Mar 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
Attorney-General (U.K.) v Guardian Newspapers [No. 2] (1990) 1 AC 109
1 citation
Jump To
Cite 1 - (1990) 1 AC 109
Cann's Pty Ltd v The Commonwealth (1946) 71 CLR 210
1 citation
Jump To
Cite 1 - (1946) 71 CLR 210
Cann's Pty Ltd v The Commonwealth [2016] QICmr 4
1 citation
Jump To
Cite 1 - [2016] QICmr 4
Cann's Pty Ltd v The Commonwealth [2019] QICmr 1
1 citation
Jump To
Cite 1 - [2019] QICmr 1
Coco v A N Clark (Engineers) Ltd (1968) 1A IPR 587
2 citations
Jump To
Cite 1 - (1968) 1A IPR 587
Cite 2 - (1968) 1A IPR 587
Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39
6 citations
Jump To
Cite 1 - (1980) 147 CLR 39
Cite 2 - (1980) 147 CLR 39
Cite 3 - (1980) 147 CLR 39
Cite 4 - (1980) 147 CLR 39
Cite 5 - (1980) 147 CLR 39
Cite 6 - (1980) 147 CLR 39
Corrs Pavey Whiting & Byrne v Collector of Customs (VIC) (1987) 14 FCR 434
5 citations
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Cite 1 - (1987) 14 FCR 434
Cite 2 - (1987) 14 FCR 434
Cite 3 - (1987) 14 FCR 434
Cite 4 - (1987) 14 FCR 434
Cite 5 - (1987) 14 FCR 434
Esso Australia Resources v Plowman (1995) 183 CLR 10
4 citations
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Cite 1 - (1995) 183 CLR 10
Cite 2 - (1995) 183 CLR 10
Cite 3 - (1995) 183 CLR 10
Cite 4 - (1995) 183 CLR 10
King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 C.L.R 184
1 citation
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Cite 1 - (1945) 71 C.L.R 184
N P Generations Pty Ltd v Feneley (2001) 80 SASR 151
2 citations
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Cite 1 - (2001) 80 SASR 151
Cite 2 - (2001) 80 SASR 151
National Roads and Motorists' Association Ltd v Geeson (2001) 40 ACSR 1
2 citations
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Cite 1 - (2001) 40 ACSR 1
Cite 2 - (2001) 40 ACSR 1
NBN Co Limited v Information Commissioner & Ors [2016] QICmr 44
6 citations
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Cite 1 - [2016] QICmr 44
Cite 2 - [2016] QICmr 44
Cite 3 - [2016] QICmr 44
Cite 4 - [2016] QICmr 44
Cite 5 - [2016] QICmr 44
Cite 6 - [2016] QICmr 44
Optus Networks Pty Ltd v Telstra Corp Ltd (2010) 265 ALR 281
2 citations
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Cite 1 - (2010) 265 ALR 281
Cite 2 - (2010) 265 ALR 281
Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [2005] WASC 255
2 citations
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Cite 1 - [2005] WASC 255
Cite 2 - [2005] WASC 255
Smith Kline & French Laboratories (Aust) Ltd v Secretary to the Department of Community Services & Health (1991) 22 FCR 73
2 citations
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Cite 1 - (1991) 22 FCR 73
Cite 2 - (1991) 22 FCR 73
Wilson v Ferguson [2015] WASC 15
2 citations
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Cite 1 - [2015] WASC 15
Cite 2 - [2015] WASC 15

Cases Citing

Case NameFull CitationFrequency
GV v Director General, Department of Justice and Attorney General [2023] QCAT 301 citation
1

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