Exit Distraction Free Reading Mode
- Selected for Reporting
[2017] QCA 200
This appeal arose in circumstances where the Queensland Civil and Administrative Tribunal made an order under the Information Privacy Act 2009. The relevant order effectively purported to reset the processing period for the respondent to provide certain documents to the appellants which had been requested under that Act. At the time of the appeal the documents sought under the Act had been provided to the appellants. However, the court proceeded to set aside the Tribunal’s order on the basis that the order was a nullity and it was necessary to set it aside to correct the record.
Sofronoff P and Gotterson and McMurdo JJA
8 September 2017
The appellants were students at the Queensland University of Technology (“QUT”). [1]. In June 2016, they made an application to QUT, under the Information Privacy Act 2009 (the “IPA”), for access to their personal information in QUT’s possession. [1], [107]. QUT decided that the applications made by the appellants were not applications duly made according to the IPA. [6], [107]. The reason for this was that the appellants had not provided evidence of their identity as required by s 43 of the IPA.
The appellants sought external review of QUT’s decision by the Information Commissioner. [7]. In August 2016, QUT’s decision was upheld by the Information Commissioner. [10], [123]. The appellants then appealed to the Queensland Civil and Administrative Appeals Tribunal. [11]. In December 2016, the Tribunal made orders setting aside the decisions of both the Commissioner and QUT. [27], [107]. However, by this time “the period prescribed by the IPA for the processing by an agency of an access application had long expired”, the consequence of which was that, pursuant to s 66 of the IPA, the access application would have been deemed to be refused. [108]. Accordingly, the Tribunal made the following order:
“5. For the purposes of calculating the processing period, the applications be treated as having been received on 24 November 2016.”
On appeal to the Queensland Court of Appeal (although as explained by Sofronoff P, in the exercise of the Court’s original jurisdiction: see [42]-[46]) the appellants argued that there was no power to make that order because it was not an order that the Tribunal could have made. [109]. All members of the Court held that the order was beyond the power of the Tribunal. [55], [101], [110].
Section 146 of the Queensland Civil and Administrative Tribunal Act 2009 provides that an appeal tribunal, in deciding an appeal against a decision on a question of law only, may, among other things, “make any other order it considers appropriate”. [136]. However, notwithstanding the broadly expressed power in s 146, it was held that:
“The tribunal’s powers were limited to correcting an error of law and, more specifically in this case, to ensuring that the access applications were considered in accordance with the IPA.” [149].
Accordingly, Order 5 (above) purporting to affect the calculation of the processing period was beyond the Tribunal’s power. [55], [150]. The Court also held that the Tribunal did not have the power to make an order for the return of the access applications to QUT as opposed to the Information Commissioner. [56], [149].
The Court concluded that both orders ought not to have been made. [63]–[64], [154].
There was an issue, however, as to whether relief should be granted by the Court of Appeal. In considering whether to exercise the discretion, Sofronoff P noted that it was “relevant that none of the submissions now made on behalf of the appellants were made” to the Tribunal. [67]. Further, the appellants had submitted before the Tribunal that if the Tribunal concluded that it had power to make an order extending the processing period then the appellants “would not oppose the exercise of that power”. [71]. This conduct would ordinarily disqualify the appellants from the relief they sought. [79].
A further factor was that the documents the subject of the access application had been given to the appellants in January 2017. [30]. The appellants proposed to take no further steps to agitate QUT in relation to those documents. [82], [86].
However, Sofronoff P emphasised that QCAT is a court of record. [89]. A characteristic of a court of record is that “the record of a court is conclusive evidence of what is recorded therein”. [90]. As his Honour explained:
“The Tribunal’s status as a court of record renders it undesirable that its record, which is unquestionably subject to review by the Supreme Court, should contain an order that the Tribunal has no jurisdiction to make.”
McMurdo JA, in a similar vein, explained that the appeal against Order 5 was solely upon the basis that it was made in excess of jurisdiction. [158]. That order being a nullity, the Court was bound to set it aside. [158]. Although the appellants did not appeal against the order for the return of the access applications to QUT, the fact that it was not challenged did not mean that the Court should overlook it, and to allow the order to stand would allow the record of QCAT to mispresent the true legal position. [159].
For these reasons, the Court concluded that both orders should be set aside. [93], [102], [158]–[159].
J English