Carmody v Information Commissioner & Ors (5) - [2018] QCATA 18

CITATION:	Carmody v Information Commissioner & Ors (5) [2018] QCATA 18
APPLICATION NUMBER:	APL 342-16
PARTIES:	The Honourable Justice TF Carmody (Applicant)
v
Information Commissioner (First Respondent) Department of Justice & Attorney General (Second Respondent) Seven Network (Operations) Ltd (Third Respondent)
MATTER TYPE:	General administrative review matters
HEARING DATE:	8 November 2017
HEARD AT:	Brisbane
DECISION OF:	Justice CRR Hoeben
DELIVERED ON:	2 March 2018
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The appeal by the applicant against the decision of the IC in her external review is upheld. 2. The decision of the IC in her external review of 19 September 2016 is set aside 3. Access to the unreleased documents is refused. 4. The costs of the appeal are reserved with liberty to the parties to apply to the tribunal on 28 days’ notice on the issue of costs.
CATCHWORDS:	APPEAL – right to information – finding by Information Commissioner (IC) that parts of certain documents should be made available to media outlets – whether IC properly took into account item 9 of schedule 4 of part 3 of Right to Information Act 2009 (Qld) (RTI) – whether IC erred by inconsistently taking into account that much of the information in issue was already in the public domain – whether IC erred in not finding that Ms Edwards was “the holder of an office connected with … a quasi-judicial entity” – whether the unreleased documents were prepared “in relation to that entity’s quasi-judicial functions” – whether the IC erred by taking into account irrelevant considerations – whether IC erred in failing to take into account relevant considerations – whether unreleased documents fell outside scope of access application – whether IC properly considered whether disclosure of unreleased documents would found an action for breach of confidence – whether decision should be returned to IC for reconsideration. Acts Interpretation Act 1954 (Qld), sch 1 Invasion of Privacy Act 1971 (Qld), s 45 Right to Information Act 2009 (Qld), s 14, s 17, s 23, s 47, s 49, s 119, sch 2, sch 3, sch 4 Supreme Court of Queensland Act 1991 (Qld), s 15, s 51 Queensland Civil and Administrative Tribunals Act 2009 (Qld) s 146 Attorney General v Times Newspapers Ltd (No 1) (1973) QB 710 Cairns Port Authority v Albietz [1995] 2 Qd R 470 Davis v City North Infrastructure Pty Ltd [2012] 2 Qd R 103 Fingleton v The Queen [2005] HCA 34; 227 CLR 166 Henderson v Legal Practice Committee (Application no 310322 of 30 November 2011) R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13 R v Khazaal [2012] HCA 26; 246 CLR 601 Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors [1986] HCA 40; 162 CLR 24 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611
APPEARANCES: APPLICANT: RESPONDENTS:	Mr S Doyle QC with Mr J Green for the Applicant Mr JM Horton QC for the First…

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: [2018] QCATA 18
Decision Date: 2 March 2018

CaseChat Overview and Summary

The appellant, Carmody, sought access to certain documents under the Right to Information Act 2009 (Qld). The Information Commissioner (IC) decided that parts of the documents should be made available to media outlets, but some parts were exempt from disclosure. Carmody appealed this decision, arguing that the IC had not properly considered the scope of access, had made errors in the application of the law, and had taken into account irrelevant considerations. The court had to determine whether the IC had properly exercised her discretion under the Act.

The central legal issues were whether the IC had properly taken into account the relevant statutory provisions, and whether the IC had erred by inconsistently considering the public availability of the information, misapplying the law regarding quasi-judicial functions, and improperly weighing irrelevant considerations. The court also had to consider whether the IC had failed to take into account relevant considerations, such as whether the unreleased documents fell outside the scope of the access application, and whether the IC had properly assessed the risk of breach of confidence.

The court found that the IC had not properly exercised her discretion. The IC had not given sufficient weight to the statutory considerations, had erred by inconsistently taking into account the public availability of the information, and had misapplied the law concerning quasi-judicial functions. The IC had also taken into account irrelevant considerations and failed to consider relevant ones, such as the scope of the access application and the risk of breach of confidence. The court held that the IC's decision should be set aside and that access to the unreleased documents should be refused.

The court ordered that the appeal be upheld, the decision of the IC be set aside, and access to the unreleased documents be refused. The costs of the appeal were reserved with liberty to the parties to apply to the tribunal on 28 days’ notice on the issue of costs.

Orders

Orders of the court

1. The appeal by the applicant against the decision of the IC in her external review is upheld.

2. The decision of the IC in her external review of 19 September 2016 is set aside

3. Access to the unreleased documents is refused.

4. The costs of the appeal are reserved with liberty to the parties to apply to the tribunal on 28 days’ notice on the issue of costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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