Deturt v Information Commissioner - [2025] WASC 452

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   DETURT -v- INFORMATION COMMISSIONER [2025] WASC 452
CORAM:   WHITBY J
HEARD:   ON THE PAPERS
DELIVERED          :   22 OCTOBER 2025
FILE NO/S:   CIV 1617 of 2025
BETWEEN:   KERRY ANNE DETURT
Applicant
AND
INFORMATION COMMISSIONER
First Respondent
DEPARTMENT OF LOCAL GOVERNMENT, INDUSTRY REGULATION AND SAFETY
Second Respondent

Catchwords:

Judicial review - Whether decision of Information Commissioner not to exercise her discretion to refer questions of law to Supreme Court pursuant to s 78(2) of Freedom of Information Act 1992 (WA) constitutes jurisdictional error - Onus on applicant to establish whether decision was infected by jurisdictional error - Proper construction of s 78(2) - Natural and ordinary meaning of words in s 78 clear and consistent within context of legislation - Decision of Information Commissioner within jurisdiction conferred by s 78 - No jurisdictional error established

Legislation:

Freedom of Information Act 1992 (WA), s 78(2)
Rules of the Supreme Court 1971 (WA), O 56 r 2

Result:

Application dismissed
Applicant pay second's respondent's costs of the application fixed in the sum of $1,716

Category: B

Representation:

Counsel:

Applicant	:	No appearance
First Respondent	:	No appearance
Second Respondent	:	No appearance

Solicitors:

Applicant	:	In person
First Respondent	:	State Solicitor's Office
Second Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Craig v South Australia (1995) 184 CLR 163
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
In Re Refugee Review Tribunal; Ex parte Aala, [2000] HCA 57; (2000) 204 CLR 82
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
McFarlane v Outback Communities Authority [2024] SASC 54
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 597

WHITBY J:

Introduction

Kerry Anne Deturt seeks judicial review of a decision of the Information Commissioner made on 9 April 2025 to refuse her request made on 22 March 2025 to refer questions of law to the Supreme Court pursuant to s 78(2) of the Freedom of Information Act 1992 (WA) (FOI Act).
For the reasons that follow, I dismiss Ms Deturt's application for judicial review.

Application for judicial review

On 16 June 2025, Ms Deturt filed an application for judicial review (Application) pursuant to O 56 r 2 of the Rules of the Supreme Court 1971 (WA) (RSC).
The Application seeks judicial review of the Information Commissioner's decision dated 9 April 2025 (Decision). The Decision is in the following terms:
Section 78 provides a discretion for me to refer to the Supreme Court any question of law that arises in the course of dealing with a complaint, on my own initiative or at the request of a party to a complaint.
Having viewed the questions set out above, in relation to the first two points, I consider that sufficient guidance exists in published decisions…

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.

Continue reading Deturt v Information Commissioner

Details

AGLC: Deturt v Information Commissioner [2025] WASC 452
Case: [2025] WASC 452
Decision Date: 22 OCTOBER 2025

CaseChat Overview and Summary

Deturt v Information Commissioner involved a judicial review application where the applicant sought to challenge the Information Commissioner's decision not to exercise her discretion to refer questions of law to the Supreme Court under section 78(2) of the Freedom of Information Act 1992 (WA). The applicant argued that the Information Commissioner made several errors in her decision, including failing to properly apply the public interest test and breaching natural justice by allowing a third party privileged access to agency-held information. The court was tasked with determining whether the Information Commissioner's decision constituted a jurisdictional error and whether the decision was infected by jurisdictional error.

The court first addressed the proper construction of section 78(2) of the FOI Act, which provides the Information Commissioner with a discretion to refer questions of law to the Supreme Court. The court found that the natural and ordinary meaning of the words in section 78(2) was clear and consistent within the context of the legislation. The court also found that the Information Commissioner's decision to not exercise her discretion was within the jurisdiction conferred by section 78 and that the applicant had not established any jurisdictional error. The court further clarified that the issues raised by the applicant, such as the refusal to provide access to documents, were not relevant to the application for judicial review and therefore could not be considered.

The court concluded that the Information Commissioner's decision was not infected by jurisdictional error and dismissed the application for judicial review. The court did not make any orders as the application was dismissed. The decision underscores the importance of properly identifying the issues that arise in an application for judicial review and ensuring that the applicant bears the onus of establishing any jurisdictional error.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Application seeks judicial review of the Information Commissioner's decision dated 9 April 2025 (Decision). The Decision is in the following terms:Section 78 provides a discretion for me to refer to the Supreme Court any question of law that arises in the course of dealing with a complaint, on my own initiative or at the request of a party to a complaint. Having viewed the questions set out above, in relation to the first two points, I consider that sufficient guidance exists in published decisions of this office, decisions of Information Commissioners in other jurisdictions and superior courts within Australia, particularly in relation to what constitutes an 'exempt document' and 'personal information' under the FOI Act. The third point, in my view, does not constitute a question of law under the FOI Act and, therefore, is not appropriate to be referred to the Supreme Court under section 78 of the FOI Act in any event. I otherwise observe that your matter remains ongoing before this office and I am yet to provide the parties with any view or decision in this matter, which may address, at least in part, the questions above. Having considered your request, I do not consider it necessary to exercise my discretion under section 78 of the FOI Act in this matter. The Application contains two copies of the prescribed form, each specifying different grounds for the Application. The first form sets out the following grounds of the Application: Error of Law: The OIC Commissioner has failed to properly apply the public interest test required under the Freedom of Information Act 1992 (WA).Failure to consider relevant considerations: The OIC Commissioner has failed to consider that the disputed documents concern structural safety and fire safety non‑compliance in a 16 unit Class 2 building.Breach of natural justice: The OIC Commissioner has allowed the builder (third party) privileged access to agency held information without extending the same transparency to the property owner.Unreasonableness: The OIC Commissioner's decision was legally unreasonable in that it has allowed information critical to public safety and regulatory compliance to remain undisclosed despite clear statutory obligations for the builder and the builder's (third party) record of unlawful business practices. The second form sets out the following grounds of the Application: 1.The OIC Commissioner's failure to refer the applicant's request for a Judicial Review to determine questions of Law.2.The OIC Commissioner's failure to consider unlawful business conduct in the public interest test and for the lack of transparency and accountability of government officers and regulators.3.The OIC Commissioner's failure to consistently apply the principles of the Freedom of Information Act 1992 when determining document exemptions for adverse effects on business activities.4.Can the names of regulatory officers, who apply statutory law to their legally binding complaint decisions or expert advice, be exempt from disclosure as personal information?5.How is the 'prejudice a fair trial' exemption to be applied when determining and applying an exemption for access to documents?6.Has the OIC Commissioner erred in allowing third party disputed documents to be provided by a government regulator to an invited third party respondent prior to the acceptance of the OIC Commissioner's invitation to be joined as a party to the Applicant's FOI application?7.Has the OIC Commissioner breached procedural fairness by allowing disputed documents to have been provided to an invited third party but the OIC Commissioner fails to allow the same access to the disputed documents by the applicant when public safety is at risk as a result of fire safety noncompliance matters?

Ratio Decidendi

Legal Principle Established

Determining whether the Information Commissioner made the Decision within those limits is a question of statutory construction.[4] [4] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123. The decision that Ms Deturt seeks to have reviewed is the Information Commissioner's decision to not exercise her discretion pursuant to s 78(2) of FOI Act to refer questions of law to the Supreme Court. The Department accepts, for the purpose of the proceedings, that a decision of the Information Commissioner made pursuant to s 78(2) of the FOI Act is amenable to judicial review.[5] [5] Respondent's Submissions [48]. As Ms Deturt seeks prerogative relief of the court, she bears the onus of establishing that the Decision was infected by jurisdictional error. The following issues arise in the Application:(1)under what conditions does the Information Commissioner have jurisdiction to make the Decision? - this requires a consideration of the proper construction of s 78(2) of the FOI Act; and(2)has the Information Commissioner made the Decision within her jurisdiction? It is also important to identify the issues which, although they are raised by Ms Deturt, do not arise in the Application. In her affidavits and submissions filed in support of the Application, Ms Deturt refers to two other applications for external review of decisions refusing access to documents which are before the Information Commissioner - being F2022145 and F2022146. Ms Deturt seeks to have those two applications, together with the Access Application, referred to the Supreme Court and dealt with as one application.[6] The Decision relates only to the Access Application and has no relevance to the two other applications. Therefore, materials filed by Ms Deturt that refer to the two other applications are not relevant to the Application and the relief sought by Ms Deturt that all applications be referred to the Supreme Court and dealt with as one application is not available on this application for judicial review. Therefore, I will not refer to those two applications, the material filed, or the relief sought that relates to them again in these reasons.[6] First Deturt Affidavit [31]. Further, in relation to the first form identifying grounds of appeal filed by Ms Deturt, several of the submissions made by Ms Deturt set out reasons why Ms Deturt says that the Department, and subsequently the Information Commissioner, were wrong to refuse access to the documents she sought in the Access Application. These grounds of appeal go beyond the scope of the Decision. The Application is not for the review of either the Department's or the Information Commissioner's refusal to provide access to documents. For this reason, I will not refer to the grounds of appeal or submissions of Ms Deturt that merely assert that either or both of the Department's and the Information Commissioner's decisions to refuse access to documents were wrong. I now turn to consider the issues I have identified as arising on the Application.