Apache Northwest Pty Ltd v Department of Mines and Petroleum

The appellant, Apache Northwest Pty Ltd, sought to appeal against a decision of the primary judge dismissing its appeal against a decision of the Information Commissioner, who had ordered that certain documents be disclosed to Lander & Rogers, who had sought them under the Freedom of Information Act 1992 (WA). The appeal to the Court of Appeal concerned both the substantive merits of the appeal to the primary judge and an order made by the primary judge that the costs of the appeal be costs in the cause. The appeal against the substantive merits of the appeal to the primary judge concerned the proper construction of various clauses of the Act, and the standard of proof applicable to claims that documents contained exempt matter. The appeal against the costs order concerned the meaning of 'as to costs only' in s 60(1)(e) of the Supreme Court Act 1935 (WA). The Court of Appeal dismissed the appeal. In relation to the substantive merits of the appeal, the Court found that the Information Commissioner had not erred in law. The Commissioner's reasons had to be read as a whole and it was not open to the Court to find error by seizing upon passages of his reasons out of context. The Court found that the Commissioner had applied the correct test and had not erroneously applied the standard of proof of the balance of probabilities. The Court found that the primary judge had not erred in law in finding that the Commissioner had not misconstrued the relevant clauses of the Act. In relation to the appeal against the costs order, the Court found that leave to appeal was required and that the primary judge had not erred in ordering that the costs of the appeal be costs in the cause.