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Walker Group Holdings Pty Ltd v Queensland Information Commissioner (No 2)[2021] QCATA 84

Walker Group Holdings Pty Ltd v Queensland Information Commissioner (No 2)[2021] QCATA 84

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Walker Group Holdings Pty Ltd v Queensland Information Commissioner (No 2) [2021] QCATA 84

PARTIES:

WALKER GROUP HOLDINGS PTY LTD and walker toondah Harbour Pty Ltd

(applicants/appellants)

v

queensland information commissioner

redland city council

redlAnds2030 Inc

ric toondah pty ltd

minister for economic development queensland

(respondents)

APPLICATION NO/S:

APL339-18

MATTER TYPE:

Appeals

DELIVERED ON:

19 July 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

  1. Order that the third respondent pay the costs of the appellants of and incidental to the appeal, incurred after 17 October 2019, on the standard basis on the District Court scale.
  2. Order that the amount of costs, if not agreed, be assessed by an approved costs assessor to be agreed by the appellants and third respondent, and if not agreed, to be appointed by the Registrar of the Tribunal.
  3. Order that the costs be paid within thirty days from their ascertainment, by agreement or by assessment.
  4. Order that, otherwise, there be no order as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – appeal from decision of Information Commissioner that certain documents not exempt – on appeal error of law found – whether respondents unreasonably resisted the appeal – relevant earlier decisions of Tribunal – whether first respondent properly a party to the appeal – whether public interest relevant – order for costs made.

Right to Information Act 2009 (Qld) s 119.

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 96

Cairns Port Authority v Albietz [1995] 2 Qd R 470

Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666

Ferella v Official Trustee in Bankruptcy [2016] NSWCA 27

Marzini v Health Ombudsman (No 4) [2020] QCAT 365

Osland v Secretary, Department of Justice (2010) 241 CLR 320

Powell v Queensland University of Technology [2018] 2 Qd R 276

R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 12

Tamawood Ltd v Paans [2005] 2 Qd R 101

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

This matter was heard and determined on the papers pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

  1. [1]
    This was an appeal to the Tribunal from a decision of the first respondent. The decision given on 9 April 2021 allowed the appeal, set aside the decision of the first respondent and confirmed the decision of the second respondent that the relevant documents were exempt from disclosure: [2021] QCATA 30. Directions were given for any application for costs. The appellant has applied for costs against the first and the third respondents. No other party applied for any order for costs; those respondents submitted that there should be no order for costs.
  2. [2]
    The question of costs in this matter is governed by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 100, s 102. Under s 100, the starting point is that there be no order for costs, but there is power in an appropriate case for the Tribunal to depart from that position. The test for when an order for costs can be made is set out in s 102(1): “If the tribunal considers the interests of justice require it to make the order.” I considered the meaning and operation of this test in Marzini v Health Ombudsman (No 4) [2020] QCAT 365, and adhere to the views I expressed in that decision. In particular, I stated that the default position, that there be no order for costs, should not be too readily departed from, because of the use in that subsection of the word “require”.
  3. [3]
    I also considered that the reference to the absence of a finding of unreasonableness in Medical Board of Australia v Wong [2017] QCA 42 at [35] should be understood in the context of the particular issue under consideration at that point in the judgment, and not as a general statement as to the operation of the test in s 102(1). Some other aspects of the reasons in Marzini were specific to the nature of those proceedings.

Background

  1. [4]
    This appeal was started in 2018; it was originally two appeals, as the fifth respondent also appealed against the decision, but in 2019 the President of the Tribunal, Daubney J, directed that the appeals be consolidated. The central issue in the appeal was whether the Right to Information Act 2009 (Qld) (“the Act”) Schedule 3 s 8(1) included an action for breach of a contractual obligation of confidence. There was also a subsidiary issue, as to whether, if it did, there was still a public interest test to be applied to determine whether the relevant information was exempt. The appellants were legally represented in the appeal, at the hearing by senior and junior counsel, as was the fourth respondent; the third respondent was represented by junior counsel, the other respondents by solicitors, who did not make submissions.[1]
  2. [5]
    The former issue had been raised in other matters where appeals had been brought from other decisions of the first respondent, and there have been a series of decisions of the Tribunal finding that s 8(1) does include an action for breach of a contractual obligation of confidence, and setting aside or varying decisions of the first respondent based on the contrary proposition. These decisions were that of the President, Daubney J, in Ramsay Health Care Ltd v Information Commissioner [2019] QCATA 66, that of a former Deputy President of the Tribunal, Sheridan DCJ, in Screen Queensland Pty Ltd v Information Commissioner [2019] QCATA 122, and mine in Adani Mining Pty Ltd v Information Commissioner [2020] QCATA 52. The decision of the first respondent in the present case was before any of these matters was decided, but all had been decided before the present appeal was heard. The subsidiary issue was also dealt with in Adani Mining. The progress of the present appeal to a hearing was delayed specifically to await the decision of the Tribunal in the other matters.[2]

Appellants’ argument for costs from first respondent

  1. [6]
    The appellants submitted that, by the time the matter came for a hearing, the appellants had a strong case, as a result of those earlier decisions, a matter made relevant by the QCAT Act s 102(3)(c). The matter was complex, relevant under the QCAT Act s 102(3)(b). Further, prior to the hearing the appellants had proposed that the respondents accept that there was an error of law in the present decision, in view of the earlier decisions, and agree to the appeal being allowed and the decision being set aside.[3] The first respondent had refused to do this, saying that such an order could not be made without a finding by the Tribunal of an error of law.[4]

Response of first respondent.

  1. [7]
    The first respondent advanced three answers to these arguments. She submitted that the Tribunal had no power to make orders by consent, and that it was necessary for the Tribunal to find that there had been an error of law to found its jurisdiction, regardless of the attitude of the parties. Second, it was submitted that any consent or concession on the part of the first respondent would breach her obligation of neutrality in the appeal. Third, it was submitted that the first respondent had been improperly joined as a respondent.

Consideration

  1. [8]
    I agree that it is necessary for the Tribunal to find that there was an error of law in the decision of the first respondent before it is able to exercise its powers on the appeal, and that it cannot simply act on the consent of the parties, or any concessions by the respondents. In the circumstances, however, where the appeal raised an issue of law which had previously been decided three times by the Tribunal in a way which (if correct) showed that the decision in the present case involved an error of law, it would not have been difficult for the matter to be dealt with more expeditiously and efficiently by the Tribunal if no party was contending that the error of law relied by the appellants was not present. It could for example have been dealt with on the papers, under the QCAT Act s 32.
  2. [9]
    If the first respondent considered that it was a breach of its obligation to be impartial to concede that there was an error of law, it could easily have stated clearly that it was not going to argue that the decision did not contain an error of law. That was consistent with its obligation of impartiality, as well as assisting the Tribunal to resolve the matter in a way consistent with the object of the QCAT Act in s 3(b). Instead the letter to the appellants of 15 October 2019 demonstrated no willingness to cooperate in any way which would assist the Tribunal to resolve the matter as efficiently as possible. That was at least unhelpful, and may approach being obstructive. It is no part of the obligation of neutrality.
  3. [10]
    That is particularly so in circumstances where the matter had been delayed specifically to await the decisions in the other appeals. What was the point of doing that, if the first respondent was proposing to take the position that there had to be a full hearing of this matter anyway? I have seen transcripts of three directions hearings, but the first respondent did not then disclose to the President the attitude expressed in the letter of 15 October 2019, and in her submissions on costs, even when the possibility of consent orders in view of the first two earlier decisions was raised by counsel for the appellants on 17 September 2019.[5]

Should the first respondent have been a party?

  1. [11]
    As to the third argument, that the first respondent was not properly joined, the submission was that there was nothing in either the Act or the QCAT Act or rules which required her to be joined, and on the face of it that is the case.
  2. [12]
    The first respondent submitted that in the ordinary course of things, if an appeal is available from the decision of a decision maker, the decision maker is not a protagonist in the appeal, at least unless there is no other contradictor.[6] On the other hand, the appellants submitted that the “appeal” provided by s 119 of the Act, because it was confined to a question of law, was in the nature of judicial review, a proposition which is supported by strong authority.[7] In the case of judicial review proceedings, it is common to make the relevant decision maker a party.[8]
  3. [13]
    I expect the reason why it is common for the decision maker to be a party to judicial review proceedings is historical. Traditionally the courts reviewed administrative decisions by the prerogative writs in the common law courts, and by equitable proceedings for declaration and injunction.[9] These were all proceedings against the decision maker in question, who was therefore an appropriate party. This approach continued in Australia until statutory provisions for judicial review were introduced, initially on an ad hoc basic, with rights of “appeal” to courts, in various forms, ordinarily stopping short of a full merits review. For example, before the QCAT Act there were a number of statutes providing a right of appeal to the District Court from the decisions of some administrative body; the nature of the “appeals” varied somewhat, and close attention to the relevant Act was always necessary.
  4. [14]
    When the Judicial Review Act 1991 (Qld) was passed, it appears to have been assumed that the decision maker would be a party to an application for review of a decision under Part 3 of the Act.[10] The form for an application for statutory order of review, Form 54, contemplates that the decision maker will be a respondent to the application.[11] This preserves the traditional approach. Frequently, of course, the decision maker will be the appropriate contradictor in the proceeding, although there will be some decision makers who will not, and should remain impartial. It is apparent from published decisions of the Tribunal that, from the time when appeals to the Tribunal from the Information Commissioner began, it has been the usual practice to make the Information Commissioner a party to the appeal.[12] I have found no decision which provides a justification for this practice.[13]
  5. [15]
    Ultimately, however, what matters for the purposes of this proceeding is whether the decision maker is an appropriate respondent to an appeal to the Tribunal under the Act. This appeal, like all appeals, is a creature of statute, and the identification of the appropriate respondent depends on the applicable statutory provisions and rules. If they are ambiguous, there may be room for consideration of the general practice in matters of a particular nature, but otherwise what matters is the terms of the Acts and rules, not the true characterisation of the nature of the proceeding.
  6. [16]
    There is nothing in the Act, or in the QCAT Act, which requires or assumes that the Information Commissioner will be a party to the proceeding. The Act s 119 provides that the notice of appeal to the Tribunal may be filed by a “participant” in the external review, and must be served on all “participants” in the external review: s 119(3)(b). That is a reference to the persons identified as “participants” in the external review by the Act s 89. It does not include the first respondent. The Act s 122(1) provides that anything done under the Act involving QCAT must be done in accordance with the rules and procedures applying to QCAT under the QCAT Act.
  7. [17]
    Part 1 of Chapter 2 of the QCAT Act distinguishes between the original jurisdiction, the review jurisdiction and the appeal jurisdiction of the Tribunal. An appeal to the Tribunal under the Act s 119 falls within the appeal jurisdiction: QCAT Act s 25(b). Parties to a proceeding in the Tribunal are dealt with in Part 4 of Chapter 2, covering the original jurisdiction in s 39 and the review jurisdiction in s 40. Part 4 does not contain a provision dealing with parties to a proceeding in the appeal jurisdiction. Section 40(1)(b) does require the decision maker to be a party to a review proceeding, and it is possible that the Information Commissioner was made a party on the assumption that this provision applied. It does not; the QCAT Act clearly distinguishes between the review jurisdiction and the appeal jurisdiction.[14]
  8. [18]
    Turning to the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (“the QCAT Rules”), the only relevant rule appears to be rule 96, which provides:

A party to a proceeding applying for the appeal tribunal’s leave to appeal, or appealing to the appeal tribunal, must give a copy of the application or appeal to—

  1. (a)
    each other party to the proceeding; and
  1. (b)
    each other person to whom notice of the application or appeal is required to be given under an enabling Act; and
  1. (c)
    any person the appeal tribunal directs to be given notice of the application or appeal.[15]
  1. [19]
    This appears to be the only provision in the QCAT Act or Rules which defines who is to be a party to the appeal proceeding. The “proceeding” in r 96(a) is a reference to the “proceeding” in the first line of r 96, and refers to the proceeding from the decision in which the appeal is being brought to the Tribunal. In this context, the paragraph means the parties when the matter was before the first respondent, that is, the persons referred to as “participants” in the Act s 89. Obviously that did not include the Commissioner. Paragraph (a) in effect duplicates the requirement in the Act s 119(3)(b), as does paragraph (b). There is nothing in the Act requiring the first respondent to be a party to an appeal to the Tribunal, and no direction was ever made that she be a party.
  2. [20]
    I am not aware of any relevant authority. I cannot find any relevant practice direction. According, there is nothing which provides that the first respondent is to be a party to the appeal. In my opinion, it follows that the first respondent ought not to have been made a party to the appeal. Although it appears that the practice has been to make the first respondent a party to an appeal under s 119, I consider that that practice has been in error, or at least, is not justified by the applicable legislation.
  3. [21]
    There is no particular practical reason why the Information Commissioner should be a party to an appeal, at least in the ordinary case. The effect of the Hardiman[16] principle is that she cannot make a useful contribution to the argument on the matters in issue. There will always be another “participant” before the Information Commissioner who will be the appropriate contradictor. It follows that there is no basis for implying a requirement to make the first respondent a party to an appeal in order to give a purposive construction to the Act.[17] The first respondent provides relevant documents to the Tribunal to assist it to hear and determine the appeal, although I cannot find a specific provision of the Act or the QCAT Act which requires this.[18] I expect however that the first respondent would cooperate in this respect whether or not a party, and administrative arrangements could easily be made for her to be advised of appeals. If necessary a direction could be made joining her as a party in a particular case, or the documents could be obtained under the QCAT Act s 63.
  4. [22]
    I draw some small amount of comfort from the fact that it appears that, in other jurisdictions where there is an appeal to a court or tribunal on a question of law, the relevant Information Commissioner is not a party to the proceeding. At the federal level, the Freedom of Information Act 1972 (Cth) provides in s 57A for a review by the Administrative Appeals Tribunal,[19] and in s 56(1) for an appeal to the Federal Court on a question of law,[20] although it appears in practice that dissatisfied parties often use the Administrative Decisions (Judicial Review) Act 1977 (Cth) to go to the Federal Court. Under that Act the decision maker is an appropriate party.[21]
  5. [23]
    In NSW access decisions are subject to review by the Civil and Administrative Tribunal,[22] and it appears that the Information Commissioner is not involved. In Victoria under the Freedom of Information Act 1982 (Vic) there is a right to review a decision of the Information Commissioner by VCAT: s. 50. The Commissioner is ordinarily not a party to the review, as appears from s 51 of that Act. In South Australia the Freedom of Information Act 1991 (SA) provides by s 39 for external review by the Ombudsman, and by s 40 for a further review by the South Australian Civil and Administrative Tribunal, but only on a question of law, and by leave of SACAT. The Ombudsman is not a party to that review: s 40(6).
  6. [24]
    I consider therefore that the first respondent was correct to submit that she should not have been made a party to the appeal. That conclusion however does not assist the first respondent in relation to costs. The time to take the objection was during the direction hearings, not after the appeal has been heard and determined. The first respondent appeared at and took part in the direction hearings, filed limited written submissions, and made a formal appearance at the hearing. It is now too late to make the point. The first respondent was and is a party, even if she should not have been, and is amenable to an order for costs. The appellants relied on Ferella v Official Trustee in Bankruptcy [2016] NSWCA 27, which is on point. Accordingly an order for costs can be made against the first respondent.
  7. [25]
    In the circumstances of this matter however I will not make one; I do not consider that the interests of justice require such an order. The involvement of the first respondent did not significantly increase the costs of the appellants, and even if the first respondent had been more cooperative in response to the appellants’ proposal to resolve the matter, it is clear that, in view of the attitude of the third respondent, a hearing would have been necessary anyway. There was nothing inappropriate in the way the first respondent conducted the matter. Overall, and having considered the matters in the QCAT Act s 102(3), there is nothing to require an order for costs in the interests of justice.

Appellants’ argument for costs from third respondent

  1. [26]
    The appellants advanced essentially the same submissions in support of an order for costs against the third respondent: the strength of their case in view of the earlier decisions they relied on; the failure of the third respondent to agree to the relief sought after the first two earlier decisions were known;[23] and that the appeals were complex, with the active parties represented by counsel and solicitors. As to this third point, the parties had a right to legal representation under the Act: s 222(2).

Response of third respondent

  1. [27]
    In response, the third respondent submitted that legal issues remained which had not been decided by the earlier decisions; that it took on the role of a contradictor in the proceeding; that its reasons for participation were in the public interest; that unlike the appellants it does not have extensive financial resources; that the issues were not overly complex; and that its participation was bona fide.

Consideration

  1. [28]
    As to the first point, the third respondent relied on three matters. The first was that there had been a decision of the AAT which had continued the approach of limiting the equivalent Commonwealth exemption to equitable breaches of confidence.[24] That is true, but it did not add anything to the earlier decision of the AAT to the same effect, particularly when it did not provide a reasoned justification for the limitation. The earlier decisions of the Tribunal were made in the knowledge that the AAT had taken a different approach.[25]
  2. [29]
    The second legal issue relied on was that the earlier decisions had not considered the effect of s 47(2)(a) of the Act. It is true that none of the reasons for those decisions made express reference to that provision, but that is simply one of a number of provisions in the Act reflecting a pro-disclosure bias in the legislation, something those responsible for the earlier decisions would have been well aware of. It was not a separate legal issue, just a separate submission in favour of a particular construction of the relevant part of the Act.
  3. [30]
    The third issue relied on was the potential scope of public interest or public law obligations in the establishment of the confidentiality exemption. Again, this was really just another argument directed to the basic proposition of interpretation of the relevant part of the Schedule. Submissions were directed to the decision in Crown Resorts Ltd v Zantran Pty Ltd [2020] FCAFC 1, a decision I discussed in Adani Mining (supra) so I was aware of that decision then. The possibility existed that there was some aspect of that decision I had overlooked, but the outcome in the present matter did not confirm that, and it was an optimistic position to take.
  4. [31]
    The submissions also mentioned that in this decision I dealt with two issues that had not been dealt with in such detail before. That my reasons are somewhat longwinded cannot be a justification for persisting in arguing the matter in the face of the earlier decisions.
  5. [32]
    As to the third respondent’s taking the role of contradictor, while it may assist in the analysis of legal issues for the Tribunal to hear arguments on both sides of a matter in issue, an altruistic appeal to the benefits for the development of the jurisprudence in this field is not really consistent with the basic objective of the QCAT Act, to decide matters quickly and economically.[26] In Adani Mining the respondent seeking disclosure filed further submissions after the earlier decisions were published, conceding that there had been an error of law, and there is no practical reason why the third respondent could not have done so in this matter. It simply chose not to. If the third respondent wanted to preserve its position in respect of an appeal, it could have lodged written submissions submitting formally that the earlier decisions were wrong and should not be followed, and had the matter dealt with on the papers.
  6. [33]
    The appellants invited the respondents to cooperate in resolving the matter quickly in the light of the earlier decisions, and the third respondent did not cooperate.[27] It is true that to some extent the proposal of the appellants was not consistent with the basis of an appeal to the Tribunal, but as discussed earlier the matter could have been dealt with more quickly and efficiently, probably by a hearing on the papers under s 32, if no party had contended that there was not an error of law. The response of the third respondent to the proposal from the appellants to resolve the matter was at least unhelpful, and the uncooperative attitude of the first respondent provides no excuse for the attitude of the third respondent. When the proposal was renewed, there was no response from the third respondent.[28]
  7. [34]
    As to whether it is significant that the third respondent’s action in seeking the release of this information was in the public interest, I gather the third respondent is a lobby group set up to oppose the proposed redevelopment of Toondah Harbour by the appellants. No doubt they claim to be acting in the public interest in doing so, although whether the public interest (however that is identified) would be advanced by this redevelopment proceeding or not proceeding is I expect a matter on which minds may reasonably differ. It is not something on which I am in a position to make any finding. Whether or not opposition to the redevelopment is in the public interest, it is difficult to discern any public interest in the third respondent’s opposition to the appeal, in the teeth of three prior decisions of the Tribunal. The nature of the third respondent is not irrelevant, but I regard it as not having any great weight in the circumstances.
  8. [35]
    As to whether there is a public interest in the clarification of the jurisprudence surrounding the Act, I expect that could be said by any party in any such appeal where real questions of law are raised. I do not regard it as a factor of significance.
  9. [36]
    As to the financial resources of the parties, the fact that the appellants have spent a lot of money on this project does not necessarily say anything about their financial resources. I expect it is common for developers to fund projects largely with borrowed money, hence the number of developers that get into financial difficulties when the costs of a development blow out. Although there is no evidence on the point before me, I am prepared to assume that the financial position of the appellants is better than the financial position of the third respondent.
  10. [37]
    I am not at all sure what the effect of making a costs order against an unincorporated association is. Such bodies are not regarded as having any legal personality separate from their members, which is why traditionally they were not entitled to litigate eo nomine.[29] If the members of the organisation are personally liable if any order for costs is made against it, I expect their combined resources would be the relevant consideration, but I have no way of knowing what that is. If, as I expect, any order would be enforceable only against the assets of the organisation, I expect that the relevant financial resources are quite limited. That is a relevant consideration, but to some extent it cuts both ways. It can be seen also not to be in the public interest for organisations of limited financial resources to feel that they can litigate in the Tribunal with impunity, protected by poverty from any adverse costs consequences. As to this, the third respondent was represented at the hearing by the Environmental Defenders Office, a body funded in part by governments, so that failure may not even carry the burden of paying their own costs, although again I have no evidence about this.
  11. [38]
    As to whether the proceedings were complex, any lack of complexity arose from the fact that the main questions of law had been decided in the earlier matters. It was a matter of considering the various arguments put forward on behalf of the third respondent. It would be unjust to the efforts of counsel for the third respondent to deny that they deserved close attention, and careful consideration, even if in the end they proved unpersuasive. There is no reason to doubt the bona fides of the third respondent, but that just means their position was not motivated by some collateral purpose. Had that been present, it may have been a matter for indemnity costs.
  12. [39]
    The position is that the appellants in fact had a right to have their commercial confidential information protected, and to vindicate that they had to appeal to the Tribunal. The third respondent chose to oppose them, despite the earlier decisions of the Tribunal. The appellants had a right to legal representation, so that their legal costs were reasonably incurred, in a general sense, in order to vindicate their legal right.[30] That is a relevant consideration.[31] They had a strong case, another relevant consideration. I have dealt with all the relevant matters under s 102(3). Although there are also considerations favourable to the third respondent, I consider that on balance in all the circumstances the interests of justice do require that an order for costs be made against the third respondent, so far as those costs were incurred after 17 October 2019, when the third respondent responded to the appellants’ proposal to resolve the matter. Up to the point when the earlier decisions became known and were considered, it was reasonable for the third respondent to rely on their success before the first respondent. But once the first two decisions were published, it was not reasonable to resist the appeal, and that date may be taken as a convenient starting point for that resistance.
  13. [40]
    The QCAT Act does encourage me to fix costs,[32] and in the past I have done so. In the present case however there is too much which is not known to me, about how the matter progressed and what was involved in it, and I consider it is not possible for me to fix costs. Accordingly I order that the third respondent pay the appellants’ costs of and incidental to the appeal, incurred after 17 October 2019, to be assessed on the standard basis on the District Court scale by an approved assessor agreed by the parties, and if not agreed, to be appointed by the Registrar of the Tribunal. The costs are to be paid within thirty days of the amount of the costs being ascertained, whether by agreement or by assessment.

Footnotes

[1] A person has a right to be represented by a lawyer on the appeal: the Act s 122(2).

[2] Affidavit of Dewer-Leahy filed 30 April 2021 paragraphs 5, 6.

[3] On 2 October 2019, after the decisions in Ramsay Health Care and Screen Queensland were available: Affidavit of Dewar-Leahy paragraphs [8], [9] and annexure BDL-4.

[4] Affidavit of Dewar-Leahy annexure BDL-5.

[5] Ibid annexure BDL-3 page 2, 3. At page 3 the President mentioned the advantages of not having to go to a full contested hearing. The first respondent was represented at that hearing.

[6] Citing Cairns Port Authority v Albietz [1995] 2 Qd R 470 at 479; Offe v Tenancies Tribunal of NSW [1997] NSWCA 239. See also Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 at [13].

[7] Osland v Secretary, Department of Justice (2010) 241 CLR 320; Powell v Queensland University of Technology [2018] 2 Qd R 276 at [42] – [46]. That case involved the Information Privacy Act 2019 (Qld) s 132, but that is relevantly in the same terms as the Act s 119.

[8] Cairns Port Authority (supra) at 469.

[9] Benjafield & Whitmore “Principles of Australian Administrative Law” (3rd Ed, 1966) p 198.

[10] Section 49 of that Act, for example, assumes that the decision maker will be a party.

[11] Use of the form is required by UCPR r 566(1). The position under the Administrative Decisions (Judicial Review) Act 1977 (Cth) is the same: Giddins v Australian Information Commissioner [2017] FCA 667 at [5].

[12] The earliest case appears to have been City North Infrastructure Pty Ltd v Information Commissioner [2009] QCATA 60. The practice appears not to have been followed (without comment) in Gordon Resources Pty Ltd v State of Queensland [2012] QCATA 135.

[13] In Dawson-Wells v Information Commissioner [2013] QCATA 4 the other party to the proceeding before the commissioner was joined as a respondent, apparently rejecting a submission that the commissioner was the appropriate contradictor: [7].

[14] The QCAT Act s 9(2). See also Donovan Hill Pty Ltd v McNab Constructions Australia Pty Ltd [2015] QCA 114 at [34]. That decision did not consider the appeal jurisdiction: [37].

[15] Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 96.

[16] R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 12, 35 – 36.

[17] As required by Acts Interpretation Act 1954 (Qld) s 14A.

[18] Contrast the Justices Act 1886 s 222B, which requires the Magistrates Court to provide to the District Court the file and other material necessary for the latter to hear and determine an appeal under s 222. The QCAT Act s 21 does not apply, because that applies only in the review jurisdiction.

[19] To which the Information Commissioner is not a party: that Act s 60.

[20] I cannot find any provision which requires the Information Commissioner to be a party to such an appeal.

[21] Giddings v Australian Information Commissioner [2017] FCA 677 at [5].

[22] Government Information (Public Access) Act 2009 (NSW) s 100, but this appears to be an alternative to review by the Information Commissioner, under Division 3 of Part 5.

[23] The letter to the other parties of 2 October 2019, proposing a consent order, foreshadowed an application for costs if successful, and reliance on the letter: affidavit of Dewar-Leahy annexure BDL-4.

[24] McGrath v Director-General, National Archives Australia [2020] AATA 1790 at [206] – [208].

[25] The decision of Deputy President Forgie in the AAT in Callejo and Department of Immigration and Citizenship [2010] AATA 244; (2010) 51 AAR 308, was discussed in Ramsay Health Care (supra) at [47] – [55].

[26] QCAT Act s 3(b).

[27] The appellants’ letter to the other parties of 2 October 2019, proposing a consent order, foreshadowed an application for costs if successful, and reliance on the letter: affidavit of Dewar-Leahy annexure BDL-4. The third respondent declined to respond to the proposal, a position not justified by the attitude of the first respondent: ibid annexure BDL-6.

[28] Affidavit of Dewar-Leahy paragraphs 12, 16.

[29] Cairns Australian Civil Procedure (11th Ed 2016) p 358. I assume that an unincorporated association can be a party to a proceeding in the Tribunal. That probably depends on whether it can make an application for access under the Act.

[30] That is not to find that the details of their legal costs were all reasonably incurred.

[31] Tamawood Ltd v Paans [2005] 2 Qd R 101.

[32] QCAT Act s 107(1).

Close

Editorial Notes

  • Published Case Name:

    Walker Group Holdings Pty Ltd v Queensland Information Commissioner (No 2)

  • Shortened Case Name:

    Walker Group Holdings Pty Ltd v Queensland Information Commissioner (No 2)

  • MNC:

    [2021] QCATA 84

  • Court:

    QCATA

  • Judge(s):

    Judicial Member D J McGill SC

  • Date:

    19 Jul 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
Adani Mining Pty Ltd v Office of the Information Commissioner [2020] QCATA 52
1 citation
Jump To
Cite 1 - [2020] QCATA 52
Cairns Port Authority v Albietz [1995] 2 Qd R 470
2 citations
Jump To
Cite 1 - [1995] 2 Qd R 470
Cite 2 - [1995] 2 Qd R 470
Callejo and Department of Immigration and Citizenship (2010) 51 AAR 308
1 citation
Jump To
Cite 1 - (2010) 51 AAR 308
Callejo v Department of Immigration and Citizenship [2010] AATA 244
1 citation
Jump To
Cite 1 - [2010] AATA 244
City North Infrastructure Pty Ltd v Information Commissioner [2009] QCATA 60
1 citation
Jump To
Cite 1 - [2009] QCATA 60
Crown Resorts Ltd v Zantran Pty Ltd [2020] FCAFC 1
1 citation
Jump To
Cite 1 - [2020] FCAFC 1
Dawson-Wells v Office of the Information Commissioner [2013] QCATA 4
1 citation
Jump To
Cite 1 - [2013] QCATA 4
Donovan Hill Pty Ltd v McNab Constructions Australia Pty Ltd [2015] QCA 114
1 citation
Jump To
Cite 1 - [2015] QCA 114
Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666
2 citations
Jump To
Cite 1 - (1982) 150 CLR 666
Cite 2 - (1982) 150 CLR 666
Ferella v Official Trustee in Bankruptcy [2016] NSWCA 27
2 citations
Jump To
Cite 1 - [2016] NSWCA 27
Cite 2 - [2016] NSWCA 27
Giddings v Australian Information Commissioner [2017] FCA 677
1 citation
Jump To
Cite 1 - [2017] FCA 677
Giddins v Australian Information Commissioner [2017] FCA 667
1 citation
Jump To
Cite 1 - [2017] FCA 667
Gordon Resources Pty Ltd v State of Queensland [2012] QCATA 135
1 citation
Jump To
Cite 1 - [2012] QCATA 135
MacDonald v Deputy Commissioner of Taxation[2018] 2 Qd R 276; [2017] QCA 206
2 citations
Jump To
Cite 1 - [2018] 2 Qd R 276
Cite 2 - [2018] 2 Qd R 276
Marzini v Health Ombudsman (No 4) [2020] QCAT 365
2 citations
Jump To
Cite 1 - [2020] QCAT 365
Cite 2 - [2020] QCAT 365
McGrath v Director-General, National Archives Australia [2020] AATA 1790
1 citation
Jump To
Cite 1 - [2020] AATA 1790
Medical Board of Australia v Wong [2017] QCA 42
1 citation
Jump To
Cite 1 - [2017] QCA 42
Offe v Tenancies Tribunal of NSW [1997] NSWCA 239
1 citation
Jump To
Cite 1 - [1997] NSWCA 239
Osland v Secretary, Department of Justice [No 2] (2010) 241 CLR 320
2 citations
Jump To
Cite 1 - (2010) 241 CLR 320
Cite 2 - (2010) 241 CLR 320
R v Australian Broadcasting Tribunal (1980) 144 CLR 12
2 citations
Jump To
Cite 1 - (1980) 144 CLR 12
Cite 2 - (1980) 144 CLR 12
Ramsay Health Care Ltd v Information Commissioner [2019] QCATA 66
2 citations
Jump To
Cite 1 - [2019] QCATA 66
Cite 2 - [2019] QCATA 66
Screen Queensland Pty Ltd v Information Commissioner [2019] QCATA 122
1 citation
Jump To
Cite 1 - [2019] QCATA 122
Tamawood Ltd v Paans[2005] 2 Qd R 101; [2005] QCA 111
2 citations
Jump To
Cite 1 - [2005] 2 Qd R 101
Cite 2 - [2005] 2 Qd R 101
Walker Group Holdings Pty Ltd v Queensland Information Commissioner [2021] QCATA 30
1 citation
Jump To
Cite 1 - [2021] QCATA 30

Cases Citing

Case NameFull CitationFrequency
HAR v Metro North Hospital and Health Service [2021] QCATA 1151 citation
Jay v Department of Housing and Public Works (No 1) [2024] QCATA 732 citations
O'Brien v Information Commissioner [2022] QCATA 1382 citations
Stiles v Information Commissioner [2021] QCATA 1522 citations
Underwood v Metro North Hospital and Health Service [2022] QCATA 1242 citations
1

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