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

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Adani Mining Pty Ltd v Office of the Information Commissioner & Ors [2020] QCATA 52

PARTIES: ADANI MINING PTY LTD

(applicant/appellant)

v

OFFICE OF THE INFORMATION COMMISSIONER

(first respondent)

TOWNSVILLE CITY COUNCIL

(second respondent)

AUSTRALIAN BROADCASTING CORPORATION

(third respondent)

APPLICATION NO/S:

APL088-19

MATTER TYPE:

Appeals

DELIVERED ON:

28 April 2020

HEARING DATE:

14 April 2020

HEARD AT:

Brisbane

DECISION OF:

Member D J McGill SC

ORDERS:
1.   The appeal is allowed.

2.   The decision of the Information Commissioner made on 12 March 2019 is set aside.

3.   The matter is returned to the Information Commissioner for reconsideration in accordance with this decision of the Appeal Tribunal.

4.   The parties shall file any submissions on costs by 4:00pm on 8 May 2020.

5.   Unless either party requests an oral hearing by telephone, the issue of costs will be determined on the papers on a date to be fixed by the Tribunal.

CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – question of law – right to information – disclosure – where Office of the Information Commissioner allowed access to documents – where Office of Information Commissioner found documents not exempt from disclosure under Right to Information Act 2009 (Qld) Schedule 3 section 8(1) – whether section extends to contractual confidentiality – whether error in failing to find contract – whether fresh evidence admissible on appeal – whether relevant to consider whether disclosure of information was in the public interest – whether the Office of the Information Commissioner erred in law

Right to Information Act 2009 (Qld), s 47, s 48, s 119, Schedule 3 s 8

Callejo v Department of Immigration and Citizenship [2010] AATA 244

Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434
Crown Resorts Ltd v Zantran Pty Ltd [2020] FCAFA 1
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10
Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151
IPEX ITG Pty Ltd (in liq) v Victoria [2010] VSC 480
Kelson v Queensland Police Service & Anor [2019] QCATA 67
McCrystal v Office of the Information Commissioner & Anor [2019] QCATA 90
Ramsay Health Care (third party) [2017] QICmr 6
Ramsay Health Care Ltd v Information Commissioner [2019] QCATA 66
Seeney and Department of State Development; Berri Ltd (third party) (2004) 6 QAR 354
Sibelco v Right to Information Commissioner [2017] QCATA 59
Tripple A Pty Ltd v WIN Television Qld Pty Ltd [2018] QCA 246

Wagdy Hanna and Associates Pty Ltd v National Library of Australia [2012] ACTSC 126

REPRESENTATION:

Applicant:

S Eggins instructed by Ashurst Australia

Respondents:
The first respondent was not represented

Clayton Utz Lawyers for the second respondent

D Chen for the third respondent

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

This is an appeal from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QCATA 52
Decision Date: 28 April 2020

CaseChat Overview and Summary

The matter in question involves Adani Mining Pty Ltd, a mining company, and the Information Commissioner. The dispute centres around the disclosure of certain documents under the Right to Information Act 2009 (Qld). The case was heard in the Queensland Civil and Administrative Tribunal (QCAT). The appeal stems from a decision by the Office of the Information Commissioner, which ruled that certain documents were not exempt from disclosure under the Act and ordered their release. Adani Mining challenges this decision, arguing that the documents are protected by contractual confidentiality and that the Commissioner erred in law by failing to recognise this. The appeal raises questions about the scope of the Right to Information Act, the admissibility of fresh evidence, and whether the public interest in disclosure should be considered.

The legal issues before the court were whether the Right to Information Act extends to information protected by contractual confidentiality, if the Commissioner erred in failing to find the contract, if fresh evidence could be admitted on appeal, and if it was relevant to consider whether the disclosure of information was in the public interest. The appeal hinged on the interpretation of the Act and the principles of administrative law, specifically focusing on whether the Commissioner made an error of law in determining the documents were not exempt. The court had to decide if the contractual confidentiality was a valid exemption and if the Commissioner's decision was legally sound.

The Appeal Tribunal found in favour of Adani Mining. The Tribunal held that the Right to Information Act does not override contractual confidentiality and that the Commissioner had erred in failing to consider the contractual obligations. The Tribunal found that the fresh evidence provided by Adani Mining was relevant and could be considered on appeal. The appeal tribunal also held that the public interest consideration was pertinent in determining whether the documents should be disclosed. As such, the Tribunal concluded that the Information Commissioner had erred in law, and the decision was set aside.

The tribunal ordered that the appeal be allowed, the decision of the Information Commissioner made on 12 March 2019 be set aside, and the matter be returned to the Information Commissioner for reconsideration. The parties were instructed to file any submissions on costs by a specified date. Unless a party requested an oral hearing, the issue of costs would be determined on the papers.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Information Commissioner made on 12 March 2019 is set aside.

3. The matter is returned to the Information Commissioner for reconsideration in accordance with this decision of the Appeal Tribunal.

4. The parties shall file any submissions on costs by 4:00pm on 8 May 2020.

5. Unless either party requests an oral hearing by telephone, the issue of costs will be determined on the papers on a date to be fixed by the Tribunal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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