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Millar v Right to Information and Privacy Unit[2016] QSC 206

Millar v Right to Information and Privacy Unit[2016] QSC 206

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Millar v Right to Information and Privacy Unit, Public Safety Business Agency [2016] QSC 206

PARTIES:

ANDREW JOHN MILLAR
(applicant)
v
RIGHT TO INFORMATION AND PRIVACY UNIT,QUEENSLAND POLICE SERVICE
(first respondent)
CRIME AND CORRUPTION COMMISSION
(second respondent)

FILE NO/S:

SC No 7051 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application for Judicial Review

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

1 September 2016

JUDGE:

Ann Lyons J

ORDER:

Application dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DISCRETION NOT TO ENTERTAIN APPLICATION – where applicant seeks judicial review of decisions of first and second respondent not to release records under the Right to Information Act 2009 (Qld) and the Information Privacy Act 2009 (Qld) – where there are alternative avenues available for applicant to seek review of decisions – whether application should be dismissed

Judicial Review Act (1991) (Qld) ss 13, 14, 15, 20, 21, 48

Right to Information Act 2009 (Qld) s 24

Information Privacy Act 2009 (Qld)

Commissioner of Police Service v Spencer [2014] 2Qd R 23 – cited

Edwards v District Court Registrar at Cairns & Anor [2007] QSC 314 – cited

Gough v Southern Queensland Regional Parole Board [2008] QSC 222 – cited

Intero Hospitality Projects Pty Ltd v Empire Interior (Australia) Pty Ltd & Anor [2007] QSC 220 – cited

Mahaffey Thomson and Queensland Dairy Authority [2002] QSC 45 – cited

Stubberfield v Webster [1996] 2 Qd R 211 – cited

Turner v Valuers’ Registration Committee [2001] 2 Qd R 100 – cited

COUNSEL:

Applicant on his own behalf

B McMillan for the Crime and Corruption Commission

SOLICITORS:

Applicant on his own behalf

I Fraser for the Queensland Police Service

  1. On 12 July 2016 an originating application for statutory order of review was filed by the applicant against the first and second respondents on the basis of ss 20 and 21 of the Judicial Review Act 1991 (Qld) (JR Act). As against the first respondent (Queensland Police Service) (QPS), the application relates to a request for access to records which the applicant argues are in the possession or control of the first respondent. The applicant seeks judicial review of two decisions of the first respondent dated 10 June 2016 and 29 June 2016 made with respect to that access. As against the second respondent (Crime and Corruption Commission) (CCC), the applicant seeks access to records of the second respondent and judicial review of the decisions of the second respondent, dated 16 June 2016 and 18 July 2016, made with respect to that access.
  2. The first and second respondents have each filed applications pursuant to ss 13, 14, 15 and 48 of the JR Act to have the applicant’s application for statutory order for review dismissed.
  3. The applications relate back to a complaint made by the applicant to the Ethical Standards Command of the QPS on 9 October 2014. That complaint concerned the conduct of named police officers who the applicant alleged were untruthful in giving their evidence in Magistrates Court proceedings involving the applicant, on 2 October 2014.
  4. The letter to the applicant in response to that complaint by the Chief Superintendent of Brisbane North District, dated 18 November 2014, stated that “Inquiries have established that the allegations, subject of your complaint are partially supported and identified areas of individual improvement”. That letter also indicated that the applicant had incorrectly identified the police prosecutor associated with the case and noted that “in fact it was prosecutor [Sch4p4] who attended to your court matter. Inquiries have also identified that prosecutor [Sch4p4] brought the deficiencies of the investigation and the discrepancies in the statements and oral testimony to the attention of Officers, [Sch4p4(6)] as well as informing their superior officers”.[1]

Background

The request for access to the records of the QPS

  1. On 16 May 2016, the applicant lodged an application under s 24 of the Right to Information Act 2009 (Qld) (RTI Act) with the Right to Information and Privacy Unit, which was then attached to the Public Safety Business Agency. The applicant sought access to records in the possession of the QPS which related to the 2014 complaint and subsequent investigation. I note in this regard that from 1 July 2016 the functions of the Right to Information and Privacy Unit, in regard to QPS records, were returned to the Queensland Police Service from the Public Safety Business Agency.[2]
  2. The Right to Information and Information Privacy Access Application form dated 11 May 2016 sets out the information and documents the applicant requested to be copied onto a CD:

“6. Particular details:

Please provide specific and detailed information about the documents you are seeking, as this will help us process your application”.

Under heading “a. The subject matter of the documents”, the applicant wrote:

“all documents and copies of all telephone conversation between applicant and staff at QPS Ethical Standards in respect to complaint made against police officer Wilkins & LA PRASLE, investigation began approx. Oct 2014 said to have finished around December 2015”.

Under heading “b. The type of documents”, he wrote:

“(particularly want audio of telephone conversations) along with all other documents and all other reports made by QPS INVESTIGATORS investigating the complaint”.

Under heading “c. The time period/date range”, he wrote:

“Oct 2014-Dec 2015 may be same documents created in 2016. QPS contact is Det Insp Paul READY 33646095”.

  1. On 10 June 2016 the applicant was advised by letter of the decision to release documents numbered 2 and 6 which included an audio recording in its entirety; to release documents numbered 1 and 3-5 subject to the deletion of personal information of third parties; and to refuse access to all other documents. The letter set out the reasons for the decision and referred to the relevant sections of the Information Privacy Act 2009 (Qld) (IP Act) and the RTI Act, giving the grounds on which access may be refused. In particular the applicant was advised that the disclosure of personal information about persons other than himself “as well as information concerning the conducting of tests, would be contrary to the public interest pursuant to s 49 of the RTIA”.[3]
  2. The applicant was also advised that the refusal of access to the other documents was on the basis of ss 47(3) (a), 48 and schedule 3 s 10(4) of the RTI Act. Section 47(3) provides that access to a document can be refused to the extent it contains exempt information which is defined in s 48 as information under schedule 3. Essentially information is exempt if it consists of information obtained, used or prepared for an investigation by a prescribed crime authority or another agency in the performance of the prescribed functions of the crime body and it does not relate to information about the applicant and the relevant investigation has been finalised.
  3. The affidavit of Wendy Jan Wright, who was the original decision maker, states that the application was referred to the Ethical Standards Command of the QPS to locate documents relevant to the applicant's application for access. Those searches located an audio-recording between the applicant and Senior Sergeant Tina Green. The searches did not locate an audio recording between the applicant and Inspector Paul Ready which the applicant had identified in his request. The audio recording between the applicant and Senior Sergeant Green was released to the applicant on 10 June 2016. The applicant was advised in email communications with Ms Wright between 15 and 20 June 2016 and prior to internal review decision of Acting Inspector McGhie of 29 June 2016 that searches had only located one recording.
  4. On 20 June 2016 the Right to Information Unit received a letter dated 16 June 2016 from the applicant requesting an internal review of the decision and a full statement of reasons pursuant to ss 47, 48 and s 49 of the JR Act.
  5. A letter dated 29 June 2016 was sent by the Principal RTI Officer Inspector McGhie to the applicant advising of the decision to uphold the decision of the Information Rights Officer, dated 10 June 2016. Full reasons were given again setting out relevant sections of the RTI Act and stating that the request had been treated as if it were an original application. The decision noted that the applicant sought access to all documents in relation to a complaint made against police officers in October 2014 “in relation to your arrest for theft and subsequent court proceedings. I note that investigations were undertaken by ESC and the North Brisbane District (NBD) Professional Practices Manager (PPM) under the direction of the Crime and Corruption Commission (C&CC).”[4]
  6. The letter also stated that “the personal information of persons other than you remains their personal information regardless of circumstances and without agreement to release of the information by the individual must be omitted to deny identification. I also consider that records/documents created and prepared for the consideration of a designated crime body (C&CC) are to be refused access pursuant to section 47(3) (a), section 48, schedule 3, section 10(4) of the RTIA”.[5] Essentially it was considered that once the documents were in the possession of the CCC the obligation under s 33 of the RTI Act was triggered to ensure a complaint was dealt with in an appropriate way. It was ultimately held that the CCC in “obtaining, using or preparing the matter in issue in this application, was performing its misconduct functions within the meaning of s 33 of the CC Act.”[6]
  7. The letter of 29 June 2016 further stated –

“If you are dissatisfied with my decision, you may apply for an external review by the Information Commissioner. This application must:-

  • be in writing
  • be made within 20 business days from the dated (sic) stated on the decision notice;
  • provide an address
  • give details of the decision for review and
  • be lodged with the Office of the Information Commissioner …”.[7]
  1. At the time of the hearing the applicant had not exercised his right of external review by the Officer of the Information Commissioner.
  2. On 12 July 2016 the applicant filed an application for judicial review in the Supreme Court.
  3. On 21 July 2016 the second respondent filed an application to have the applicant’s application for statutory order of review, as against the second respondent, dismissed with costs.
  4. On 22 July 2016 the first respondent filed an application for the following orders:

“1.The Commissioner of Police, Queensland Police Service be substituted as the First Respondent.

  1. That the Application for Review filed on 12 July 2016 be dismissed pursuant to s 13, 14, 15 and 48 of the Judicial Review Act 1991.
  1. The Applicant pay the costs of the Respondent of an incidental to the proceeding including the costs of this application.
  1. Such other orders or directions about the future conduct of the proceedings as the Court considers necessary”.[8]

The request for access to records of the CCC

  1. On 16 May 2016 the CCC also received a request from the applicant for the complete file held by the CCC in respect of the handling and investigation of his complaint made in 2014-2015 regarding the QPS and QPS Ethical Standards handling of his original complaint. In particular the applicant sought “Every communication by any CCC officer and QPS officer, all reports, outcomes of actions, ie subpoenas to question police officer, the files looked at by Karen McCarthy of the CCC.”[9]
  2. On 16 June 2016 the CCC’s Information Privacy decision maker made a decision to provide the applicant with full access to 7 documents, partial access to 27 documents pursuant to section 47(3)(a) and Schedule 3 of the RTI Act. The decision maker refused access to 29 documents pursuant to section 47(3)(a) and Schedule 3 of the RTI Act. Fifty eight pages in total were released to the applicant.
  3. On 12 July the applicant served the CCC with an application for statutory order of review seeking to review the decision of 16 June 2016. On 18 July 2016 the CCC’s Internal Reviewer made a decision on the applicant’s internal review request affirming the original decision maker’s decision.
  4. On 21 July the CCC filed an application pursuant to r 31 of the UCPR that the applicant’s application of 12 July 2016 be dismissed pursuant to ss 13 and 48 of the JR Act.
  5. The applications were listed for hearing in the Applications List on 26 July 2016. On that date P Lyons J gave the applicant leave to amend his application as against the second respondent to include a reference to the decision of 18 July 2016. The applications were then adjourned to 24 August 2016 (and subsequently to 1 September) with Directions for the filing of affidavits in support of the applications and the exchange of submissions.
  6. In a letter to the applicant dated 3 August 2016 the Deputy Official Solicitor at the CCC noted that during the hearing on 26 July 2016 the applicant had sought orders in relation to whether “copies of conversations and interviews between the applicant and respondents agents have been retained and withheld or destroyed.” The letter continued;

“You appear to be concerned that the decisions made by the CCC’s Information Privacy decision-maker on 16 June 2016 and the CCC’s Internal Reviewer on 18 July 2016, respectively, failed to consider audio recordings of conversations between yourself and members of the CCC.

…..

Please be advised that included in the 29 documents to which access was refused are six (6) audio recordings of conversations between yourself and members of the CCC. As indicated in the relevant decisions, access to these recordings was refused pursuant to section 47(3)(a) of Schedule 3 (section10(4)) of the Right to Information Act 2009”.[10]

The applicant’s argument

  1. I note the applicant’s “Short Summary” and “Outline of Argument” dated and filed 4 August 2016 and his “Outline of Argument” dated and filed on 18 August 2016 pursuant to those Directions. The applicant in his 4 August 2016 Outline indicates that he wants the Court to release certain reports referred to by the CCC and QPS Ethical Standards as well as further audio recordings of all telephone calls made between him and the CCC and QPS.
  2. The applicant argues that requirements of s 20(2) (a) of the JR Act have been satisfied as the respondents have sought to have his application dismissed “without making any argument for the non-release of the audio calls yet not referring to them alone establishes a breach of the rules of natural justice.”
  3. In terms of s 20 (2) (b) of the JR Act it is argued that by supressing the existence of the calls there has been an act of corruption which must have been made at the direction of other parties.
  4. In respect of s 20 (2) (e) the applicant argues that the refusal of his request for copies of the calls and the decision to supress them was an improper exercise of power with the attendant features of bad faith. The applicant argues that the refusal was an improper exercise of discretionary power without regard to the merits of the case given this was a case where “a person has spent a lengthy period of time in prison as a result of the perverting of the course of justice by a public official”.[11]
  5. In relation to s 20 (2) (g) the applicant argues that the decision to refuse access is an act of fraud and that conspiracy has also been established.
  6. With respect to s 20 (2) (h), the applicant argues that there is no evidence to put forward to justify the making of the decision not to provide copies of telephone calls to the applicant.
  7. The applicant submits that the arguments put forward in support of his application pursuant to s 20 of the JR Act also support his application pursuant to s 21 of the JR Act.
  8. In his Outline dated 18 August 2016 the applicant objects to the Court relying on the affidavit of Wendy Jan Wright sworn 9 August 2016 on the basis that whilst she was the original decision maker at QPS “Given that the matter went to internal review ( ie a separate unrelated decision maker) the affidavit filed and relied by the first respondent in respect to adhering to the courts orders of 26th July 2016 is ineffective invalid and ineffective, it is submitted therefore that no filing has been made to the court as to why the decision of Mitchell McGhie on 29th June 2016 should be upheld by the court”[12] In this regard I note that the application seeks judicial review of both decisions and the Court will give such weight to the affidavit as it considers appropriate.
  9. In his Outline of 18 August 2016 the applicant makes further submissions in relation to some aspects of the evidence of Ms Wright, and in particular Exhibit ‘WW4’ to her affidavit, to argue that:

“…page 3 of the document search declaration shows that audio recordings have been destroyed, it can seen further, that Inspector  Ready has sought to have even the existence of lengthy phone calls between himself and the applicant not exist via the non-recording in his or any notebook, to this end the applicant asks that the court order that a affidavit be completed by Inspector Ready that he did have telephone conversations with the applicant, and how audio recording of these calls have managed to “disappear” in co incidence with the non-recording anywhere else of these phone calls.”[13]

  1. The applicant further argues as follows:

“For the assistance of the court the respondent has re produced on cd as part of the affidavit of Wendy Wright a copy of audio of a call with a Snr Sgt Tina Green of Ethical Standards this shows and proves the existence of the automatic audio recording system which records all calls made to such agencies, the call with Green also shows at end of call the procedures which are required to be followed by a police officer in this situation which Green can heard completing prior to recording being ceased. With respect to Wendy Wright and Mitchell Mcghie it is seen that they have stayed mute in the their written decisions that the calls have been destroyed, and further hence has sought to give impression that refusal to the audio tapes was made on grounds relied upon in the decision makers written reasons. It can also been seen that solicitor for the respondent lan Fraser stayed mute when the matter was discussed at length in proceedings on 26th July before His Honour, not staying mute would have caused His Honour not to have to make orders that the applicant make out affidavit to confirm that said phone calls had been requested. The applicant states for the record that there is at least one other lengthy and very relevant phone call between the applicant and a Senior officer of the QPS ethical standards Command which has not been disclosed even in the document referred to above. This call will be discussed in further documents but it alone gave rise to emails to the CCC from the applicant and as a result written directions from CCC in 2015 to QPS about the conduct of CCC in this matter for refusing to meet with the applicant. The applicant can’t be 100 per cent sure but the call may have involved Officer Weekes, if not a Dixon or Nixon, the disturbing substance of that call was that QPS Ethical Standards would not and didn't not have to meet with the applicant or receive new material evidence via any other way "because the CCC was "reviewing" the matter", this alone gave rise to correspondence from the CCC to the applicant confirming they had written to QPS to advise this was not the case, the ultimate washup was that QPS defied that directive from CCC. Another disturbing theme from that call was the officer blaming the applicant for conducting his own trial, because if he didn't a lawyer would have been able to go out to toowong in the lunch break and conduct detailed time and distance capability testing in his vehicle to address the perjurious oath evidence given by Det Moore Wilkins given apparently before the lunch break!!. Again it is noted that audio of this entire call has apparently not only to been destroyed by QPS ethical standards that even the existence of the call has been removed from all records. It is noted that page 3 of the Document Search Declaration refers to the thorough searching for said documents and is deposed." (errors and omissions as in original).

  1. The applicant asks that the respondents bring to court all material being refused access to, so that it can be confirmed that said material even exists in first instance. The applicant submits that one this has been done, any further assessment can be made by the Court and questions asked as to why and on what actual grounds refusal should be denied.
  2. The applicant also argues that with respect to the refusal to allow access on the basis of Schedule 3 of the RTI Act, a full set of reasons is required and that nonetheless, the Schedule would not apply as there is no personal information about police officers in the material requested. The applicant asserts that in any event, all investigations have been completed.
  3. The applicant also argues that documents have been destroyed and that there has therefore been misconduct by 2 named CCC officers.
  4. The applicant also argues that in the two CCC decisions the decision maker has not been identified as required and accordingly, no valid decision has been made.
  5. Before turning to the substance of the applicant’s arguments, I will outline the relevant legislation.

Relevant legislation

  1. Section 13 of the JR Act provides:

“13 When application for statutory order of review must be dismissed

Despite section 10, but without limiting section 48, if—

  1. an application under section 20 to 22 or 43 is made to the court in relation to a reviewable matter; and
  2. provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by another court or a tribunal, authority or person;

the court must dismiss the application if it is satisfied, having regard to the interests of justice, that it should do so”.

  1. Section 20 of the JR Act provides:

“20Application for review of decision

  1. A person who is aggrieved by a decision to which this Act applies may apply to the court for a statutory order of review in relation to the decision.
  2. The application may be made on any 1 or more of the following grounds—
  1. that a breach of the rules of natural justice happened in relation to the making of the decision;
  2. that procedures that were required by law to be observed in relation to the making of the decision were not observed;
  3. that the person who purported to make the decision did not have jurisdiction to make the decision;
  4. that the decision was not authorised by the enactment under which it was purported to be made;
  5. that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made;
  6. that the decision involved an error of law (whether or not the error appears on the record of the decision);
  7. that the decision was induced or affected by fraud;
  8. that there was no evidence or other material to justify the making of the decision;
  9. that the decision was otherwise contrary to law.
  1. This section applies only to a decision made after the commencement of this Act”.
  1. Section 21 of the JR Act provides:

“21Application for review of conduct related to making of decision

“(1)If a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies (whether by the person engaging in the conduct or by another person), a person who is aggrieved by the conduct may apply to the court for a statutory order of review in relation to the conduct.

(2)The application may be made on any 1 or more of the following grounds—

  1. that a breach of the rules of natural justice has happened, is happening, or is likely to happen, in relation to the conduct;
  2. that procedures that are required by law to be observed in relation to the conduct have not been, are not being, or are likely not to be, observed;
  3. that the person proposing to make the decision does not have jurisdiction to make the proposed decision;
  4. that the enactment under which the decision is proposed to be made does not authorise the making of the proposed decision;
  5. that the making of the proposed decision would be an improper exercise of the power conferred by the enactment under which the decision is proposed to be made;
  6. that an error of law—
  1. has been, is being, or is likely to be, committed in the course of the conduct; or
  2. is likely to be committed in the making of the proposed decision;
  1. that fraud has taken place, is taking place, or is likely to take place, in the course of the conduct;
  2. that there is no evidence or other material to justify the making of the proposed decision;
  3. that the making of the proposed decision would be otherwise contrary to law.
  1. This section applies only to conduct engaged in, or proposed to be engaged in, after the commencement of this Act”.
  1. Section 48 of the JR Act provides:

“48 Power of the court to stay or dismiss applications in certain circumstances

  1. The court may stay or dismiss an application under section 20, 21, 22 or 43 or a claim for relief in such an application, if the court considers that—
  1. it would be inappropriate—
  1. for proceedings in relation to the application or claim to be continued; or
  2. to grant the application or claim; or
  1. no reasonable basis for the application or claim is disclosed; or
  2. the application or claim is frivolous or vexatious; or
  3. the application or claim is an abuse of the process of the court.
  1. A power of the court under this section—
  1. must be exercised by order; and

may be exercised at any time in the relevant proceeding but, in relation to the power to dismiss an application, the court must try to ensure that any exercise of the power happens at the earliest appropriate time.

  1. The court may make an order under this section—
  1. of its own motion; or
  2. on an application by a party to the proceeding.
  1. The court may receive evidence on the hearing of an application for an order under this section.
  2. An appeal may be brought from an order under this section only with the leave of the Court of Appeal”.

Should the application for a Statutory Order of Review be dismissed?

  1. The first and second respondents argue that as there is no reasonable basis for the application and as no proper relief is sought, the application should be dismissed. In particular it is argued that there is adequate provision in the IP Act for the applicant to have sought an external review, that no proper grounds of review have been set out and that the applicant seeks relief not available in this court.

Has provision been made by another Act for a review of the decisions?

  1. Section 13 of the JR Act clearly provides that an application for a statutory order of review pursuant to ss 20, 21, 22 and 43 must be dismissed if provision is made by a law, other than under the JR Act, under which the applicant is entitled to seek a review of the matter by another court or tribunal, authority or person and it is in the interests of justice to do so.
  2. There is no doubt in this case that there is a right of external review of the decisions which the applicant seeks statutory orders of review. The applicant was informed of the internal review decision of the QPS on 29 June 2016 and I note that in that correspondence he was specifically advised of his right to appeal that decision to the Information Commissioner pursuant to s 99 of the IP Act. The internal decision of the CCC dated 18 July 2016 is also open to external review by the Information Commissioner pursuant to s 99 of the IP Act.
  3. Whilst that application for review must normally be made within 20 business days of the written notice of the internal decision, the Information Commissioner has a power to extend that period pursuant to s 101 (d) of the IP Act, which provides that the application must be “made within 20 business days from the date of the written notice of the decision, or within the longer period the information commissioner allows”. That external review is a de novo merits review and the Information Commissioner must give reasons for the decision pursuant to s 123(1). Furthermore the decision of the Information Commissioner may be appealed to the Queensland Civil and Administrative Tribunal pursuant to s 132 of the IP Act.
  4. I am satisfied therefore that an appropriate and easily accessible review mechanism is available to the applicant pursuant to the IP Act.
  5. The question remains as to whether it is in the interests of justice to dismiss the application.

Is it in the Interests of Justice to dismiss the application?

  1. In Mahaffey Thomson and Queensland Dairy Authority[14] White J held that it is in the interests of justice to dismiss an application where parliament has created a review body to consider complaints about decisions because judicial review should not be seen as a substitute for the process specifically provided for before the Information Commissioner. White J relevantly states:

“Section 13 of the JR Act relevantly provides that where provision is made by a law other than the JR Act under which the applicant is entitled to seek a review of the matter by another court or tribunal, authority or person the court must dismiss the application if it is satisfied, having regard to the interests of justice, that it should do so. That really disposes of Mr Mahaffey’s application. The Dairy Industry Tribunal is the very body designated by Parliament to consider complaints and concerns about decisions etc. made by QDA or a person authorised by QDA. Mr Bell could advance no explanation as to why Mr Mahaffey had not proceeded in that tribunal save to make some oblique suggestion of bias, but it was clear that the matter had not been given much, if any, consideration. There are no interests of justice which would dictate that the application should not be dismissed. It would seem to be less expensive (no lawyers, only by lay agent), less formal and generally more amenable to the ventilation of Mr Mahaffey’s complaints. Needless to say, he must satisfy the jurisdictional requirements of s 96 but that is less difficult than pursuant to the JR Act”.[15]

  1. In my view it would be more advantageous for the applicant to seek a review pursuant to the IP Act particularly in circumstances where he is self -represented. In this regard I note that under the IP Act, s 100(1) provides that the onus is on the agency to prove that the decision under review was correct rather than the onus being on the applicant to prove that it was not. Section 108(1) (b) also requires that the review must be conducted with as little formality and technicality and with as much expedition as the requirements of the Act and a proper consideration of matters allow. Significantly, each party must bear their own costs for a review under the IP Act.
  2. The Information Commissioner is not bound by the rules of evidence and may inform himself as considered appropriate. It is my view that, given the broad powers of the Information Commissioner under the IP Act, the Information Commissioner would be better placed to deal with the issues raised by the applicant and considered below, in particular the issue of possible destruction of records. In this regard I refer specifically to the Information Commissioner’s power pursuant to s 113 of the IP Act to have free and full access to all documents of an agency, as well as the power under s 116 to require a person to produce any information or documentation that the Commissioner has reason to believe is in that person’s possession. The Information Commissioner can also administer an oath or affirmation to a person for the purposes of examination under s 117 of the IP Act.
  3. As Counsel for the first respondent points out the Information Commissioner is required by s 110 (2) (b) of the IP Act to ensure that each participant has an opportunity to present their views by making written or oral submissions. In this way the rules of natural justice are enshrined by the Act. The Commissioner also has significant powers including the power to give directions and to require persons to attend and to give evidence and produce documents. The Information Commissioner is in a position to require the production of the documents and the indexes which the applicant seeks.
  4. I also note the submission of Counsel for the first respondent who refers to the limitations of the judicial review process which was referred to by de Jersey CJ in Intero Hospitality Projects Pty Ltd v Empire Interior (Australia) Pty Ltd & Anor.[16] Where his Honour indicated that if he were satisfied the decision maker had erred “the most I could do would be remit the matter for determination”.[17] In this regard I note that as against both respondents the applicant seeks orders that the respondents provide indexes of all documents held as well as an order that the respondents provide a statement within 2 days “as to whether conversations and interviews between the Applicant and the Respondents agents have been retained and withheld or destroyed”.[18] That relief is not relief which this Court can grant in respect of the applications for judicial review of the four decisions of the respondents.
  5. It would seem to me therefore that in the present case there is a more appropriate, less expensive means of attending to the applicant’s grievance. In this regard the comments of Henry J in Commissioner of Police Service v Spencer[19] are of particular relevance:

“…it is in the interests of justice that the time and resources of the courts and parties not be consumed by pursuit of judicial review that is unnecessary because the law provides for a conventional remedy under the appellate system”.[20]

  1. In determining where the interests of justice lie I have also considered the arguments of the applicant in support of his application and his submission that he has satisfied the requirements of ss 20 and 21 of the JR Act. In my view there is no substance to the allegations he makes. I can see no basis for an argument that he has been denied natural justice by either of the respondents. The history of the applicant’s contact with both agencies sets out in clear detail the documents which were located, the items which would be released in full, the items which would be partially released and the items which were being withheld. The applicant was clearly advised that the reasons for the documents not being provided to him was pursuant to specific provisions of the IP Act. In any event I note that some 59 pages of material was provided by the CCC. In relation to a particular audio recording sought from the QPS, the applicant was clearly informed that such a recording simply did not exist.
  2. The right of access to documents is clearly limited to documents in the possession or control of an agency and access to unspecified documents cannot be provided if they do not actually exist. In this regard I consider that the applicant’s submission that the search declaration form shows that audio recording were destroyed. In my view there is simply no basis for the assertion that the search declaration shows that particular audio recordings occurred and have subsequently been destroyed. That is not what the search declaration shows. The applicant also argues that, on his understanding of QPS procedure, a call between himself and an officer called Weekes, Dixon or Nixon should have been recorded. On this basis the applicant asserts that because such a call does not exist, it must have been destroyed. There is simply no evidence before me to support an argument that if such a call was made it was in fact recorded and it was then subsequently destroyed.
  3. In my view the applicant was clearly advised by the decision makers what documents existed, what documents would be released, what documents would not be released and the reasons for those decisions. Accordingly on the basis of the present material before me the applicant has not established a basis for a claim that he was denied procedural fairness.
  4. Neither has the applicant established that there has been a failure to comply with the procedures required by law. In this regard there has been no particularisation of the alleged failures. Whilst the applicant also alleges the decisions to withhold the documents was made in bad faith there has been no particularisation of this allegation. There is also an argument advanced by the applicant that the refusal to acknowledge his request for the telephone calls indicates an improper exercise of power and bad faith. I note however that the Right to Information Application does not actually specify that there was a request for the telephone calls, though the request was for “every communication”. I also note that when it became clear at the hearing on 26 July that the audio recordings with CCC officers were sought, the letter of 3 August 2016 clarified the CCC’S specific response to that request.
  5. The applicant argues that no relevant decision has been made as the decision makers have not been identified. I note that the decision makers at the CCC have in fact been identified in the relevant decisions as required by the IP Act as the ‘Chairman of the CCC’, which delegated its powers under s 50(1) of the IP Act and s 30 of the RTI Act to identify the CCC officers who are described by their respective titles. The Instrument of Delegation is exhibited to the affidavit of Daniel Maroske sworn 29 August 2016.[21]
  6. Whilst the applicant has claimed that the decisions of the first and second respondents have been infected by fraud, this has not been particularised in any way other than to argue that the lack of a specific reference to audio recordings by the CCC decision maker in its decision is evidence of such. It is clear however that the CCC decision maker stated that access had been refused to 29 documents and there was a subsequent clarification that six of those documents were audio recordings. It is difficult to ascertain how the original decision to refuse access to the 29 documents is somehow affected by fraud due to that initial lack of specificity.
  7. The applicant also alleges that there has been misconduct by 2 named CCC officers and refers to some specific documents to argue that the inference which arises is that documents have been destroyed. I reject the applicant’s characterisation of the evidence and do not consider that on the evidence that is currently before me a conclusion of destruction arises.
  8. As to the applicant’s submission asserting bad faith and fraud, I note the strength of the submission of Counsel for the first respondent that such allegations should not be made without an evidentiary foundation. As Applegarth J stated in Gough v Southern Queensland Regional Parole Board:[22]

“The evidence does not support a finding that the panel acted in bad faith or dishonestly in preparation of the PBAR. The applicant’s submissions on this respect are not supported by any evidence. A submission of bad faith or dishonesty should not be made without a proper evidentiary foundation, and in this case there are none.”

  1. The applicant also argues that there was no evidence to justify the decisions made by the respondents where the history of the applications outlines the basis for those decisions by their respective decision makers. Extensive reasons were in fact given.
  2. The applicant has also argued that the requirements of s 21 of the JR Act have been satisfied for the same reasons he advanced in relation to s 20. That submission cannot be sustained in light of my reasons outlined above.
  3. In conclusion it is my very clear view that it is in the interests of justice to dismiss the current application under s 13 of the JR Act. In this regard I note the reasons of Jones J in Edwards v District Court Registrar at Cairns & Anor[23] where an application under the JR Act was dismissed for similar reasons. That approach had earlier been adopted by Thomas J in Stubberfield v Webster[24] and Holmes J in Turner v Valuers' Registration Committee.[25]
  4. The application filed on 12 July 2016 is dismissed.

Footnotes

[1]     Affidavit of W J Wright sworn 9 August 2016, Exhibit ‘WW6’.

[2]     Affidavits of M B McGhie sworn 22 July 2016 and W J Wright sworn 9 August 2016.

[3]      Affidavit of W J Wright sworn 9 August 2016, Exhibit ‘WW5’.

[4]      Affidavit of M B McGhie sworn 22 July 2016, Exhibit ‘MBM5’.

[5]     Ibid.

[6]     Ibid.

[7]      Ibid.

[8]       Application filed 22 July 2016, Court Document #5.

[9]       Affidavit of D J Maroske sworn 25 July 2016, Exhibit ‘DJM1’.

[10]      Affidavit of D J Maroske sworn 9 August 2016, Exhibit ‘DJM2’.

[11]      Outline of Argument filed 4 August 2016, Court Document #10.

[12]     Outline of Argument filed 18 August 2016, Court Document #14.

[13]     Ibid

[14]    [2002] QSC 45.

[15]      Ibid at [27].

[16]      [2007] QSC 220.

[17]      Ibid at [10].

[18]      Application filed 12 July 2016, Court Document #1.

[19]      [2014] 2Qd R 23.

[20]      Ibid at 42.

[21]      Court Document #16.

[22]      [2008] QSC 222 at [34].

[23]      [2007] QSC 314.

[24]      [1996] 2 Qd R 211 at 217.

[25]      [2001] 2 Qd R 100.

Close

Editorial Notes

  • Published Case Name:

    Millar v Right to Information and Privacy Unit, Public Safety Business Agency

  • Shortened Case Name:

    Millar v Right to Information and Privacy Unit

  • MNC:

    [2016] QSC 206

  • Court:

    QSC

  • Judge(s):

    A Lyons J

  • Date:

    09 Sep 2016

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
Commissioner of Police Service v Magistrate Spencer[2014] 2 Qd R 23; [2013] QSC 202
3 citations
Jump To
Cite 1 - [2014] 2 Qd R 23
Cite 2 - [2014] 2 Qd R 23
Cite 3 - [2014] 2 Qd R 23
Edwards v District Court Registrar at Cairns [2007] QSC 314
2 citations
Jump To
Cite 1 - [2007] QSC 314
Cite 2 - [2007] QSC 314
Gough v Southern Queensland Regional Parole Board [2008] QSC 222
2 citations
Jump To
Cite 1 - [2008] QSC 222
Cite 2 - [2008] QSC 222
Intero Hospitality Projects Pty Ltd v Empire Interior (Australia) Pty Ltd [2007] QSC 220
3 citations
Jump To
Cite 1 - [2007] QSC 220
Cite 2 - [2007] QSC 220
Cite 3 - [2007] QSC 220
Mahaffey v Thomson [2002] QSC 45
3 citations
Jump To
Cite 1 - [2002] QSC 45
Cite 2 - [2002] QSC 45
Cite 3 - [2002] QSC 45
Stubberfield v Webster[1996] 2 Qd R 211; [1995] QSC 182
2 citations
Jump To
Cite 1 - [1996] 2 Qd R 211
Cite 2 - [1996] 2 Qd R 211
Turner v Valuers' Registration Committee of Queensland[2001] 2 Qd R 100; [2000] QSC 94
2 citations
Jump To
Cite 1 - [2001] 2 Qd R 100
Cite 2 - [2001] 2 Qd R 100

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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