Deturt v Information Commissioner
[2025] WASC 452
•22 OCTOBER 2025
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 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?
Ms Deturt relies upon her written submissions filed on 4 September 2025 (Applicant's Submissions), her written submissions in reply filed 4 October 2025 (Applicant's Reply Submissions) and her affidavits sworn on 12 June 2025 (First Deturt Affidavit) and on 29 August 2025 (Second Deturt Affidavit).
Ms Deturt seeks relief in the form of writ of certiorari to quash the Decision and a writ of mandamus to compel the Information Commissioner to refer questions of law to the Supreme Court.
On 10 July 2025, the Commissioner filed a memorandum of appearance and notice of intention to abide by the decision of the court.
On 7 August 2025, I made an order adding the Department of Local Government, Industry Regulation and Safety (formerly the Department of Energy, Mines, Industry Regulation and Safety) (Department) as a party to the Application.
On 21 August 2025, I made orders programming the Application and for it to be determined on the papers.
The Department relies on their written submissions filed 18 September 2025 (Respondent's Submissions) in opposition to the Application.
Factual background
On 23 January 2023, Ms Deturt made an access application under the FOI Act to the Department for documents relating to complaints she had previously made to the Department against Arasi Constructions and Carmelo Arasi (Access Application).
On 9 March 2023, the Department refused the Access Application on the basis that the documents were exempt as disclosure of them could reasonably be expected to prejudice an investigation or any contravention or possible contravention of the law, pursuant to cl 5(1)(b) of sch 1 of the FOI Act. The Access Application was also refused in relation to some documents on the basis that they could not be found or did not exist.
On 24 March 2023, Ms Deturt applied for an internal review of the Department's decision to refuse the Access Application.
On 6 April 2023, the Department, upon its internal review, refused access to the documents on the basis that their disclosure could reasonably be expected to prejudice the fair trial of any person or the impartial adjudication of any case or hearing of disciplinary proceedings, pursuant to cl 5(1)(d) of sch 1 of the FOI Act rather than pursuant to cl 5(1)(b) of the FOI Act.
On 5 June 2023, Ms Deturt applied for an external review of the Department's decision to refuse the Access Application. The reference number of this external review as allocated by the Information Commissioner is F2023192.
On 10 January 2025, the Department gave Ms Deturt access to documents it considered were within the scope of the Access Application.
On 18 January 2025, Ms Deturt informed the Information Commissioner that she was not content with the access provided by the Department.
On 22 March 2025, Ms Deturt emailed Ms Akerstrom, a Senior Review and Investigations Officer at the Office of the Information Commissioner, stating that she intended to use the 'available course of action' set out in s 78 of the FOI Act and sought for the Information Commissioner to refer the following questions to the Supreme Court for determination:
•Where the documents relied on for a technical review officer's and the disciplinary complaint's officer's review decision have been provided by the applicant and documents provided to, and exchanged by both parties during the 2018 building complaint process, are these considered exempt documents or personal information?
•For the transparency and accountability of Building & Energy complaints officers and technical expert officers whether their names are personal information?
•Whether Section 104 of the Building Services (Complaints Resolution & Administration) Act 2011 permits the Building & Energy (BEI) to initiate or continue disciplinary proceedings against a builder for alleged misleading or deceptive conduct, notwithstanding the existence of concurrent common law proceedings in the State Courts of Western Australia concerning related matters, and if so, what is the proper interpretation and application of the 'prejudice a fair trial' principle in the context of the BEI's disciplinary processes, particularly where the alleged conduct involves misleading or deceptive actions?
On 9 April 2025, the Information Commissioner made the Decision and refused to refer the questions to the Supreme Court.
Judicial review - legal principles
An applicant for judicial review bears the onus of establishing the legal and factual basis for the grounds of judicial review.[1]
[1] Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 597 [67].
Judicial review is not a review of a decision on its merits, it is a review of a decision to ascertain whether it involves jurisdictional error. A decision will involve jurisdictional error if the decision is made outside the limits of the powers and functions given to the decision‑maker.[2]
[2] In Re Refugee Review Tribunal; Ex parte Aala, [2000] HCA 57; (2000) 204 CLR 82 [163].
It is not the role of the court to substitute its own decision on the merits for that of the decision‑maker where the legislation has conferred a discretion upon the decision‑maker. Rather, the court's role is to decide the limits within which the decision‑maker must exercise their discretion. If a decision is made within those limits, then it cannot be impugned.[3]
[3] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
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.
Issues
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.
Under what conditions does the Information Commissioner have jurisdiction to make the Decision?
Ms Deturt submits that the Information Commissioner's refusal to refer questions of law to the Supreme Court pursuant to s 78 of the FOI Act constitutes a jurisdictional error because the Information Commissioner failed to refer questions of law to the Supreme Court where in circumstances the Information Commissioner has no jurisdiction to consider questions of law.
Jurisdictional error will be established if the Information Commissioner acted outside the parameters of the power granted by s 78 the FOI Act. An error of law on the part of the Information Commissioner in construction or application of s 78 of the FOI Act may amount to a jurisdictional error if it caused the Information Commissioner to identify a wrong issue, to ask herself a wrong question, to ignore relevant material, to rely on irrelevant material, to make an erroneous finding, or reach a mistaken conclusion.[7]
[7] Craig v South Australia (1995) 184 CLR 163, 179.
Section 78 of the FOI Act relevantly provides:
78.Question of law on complaint, referral to Supreme Court
(1)The Information Commissioner may refer to the Supreme Court any question of law that arises in the course of dealing with a complaint.
(2)A question may be referred under this section on the Information Commissioner's own initiative or at the request of a party to the complaint.
Section 78 of the FOI Act requires two conditions to be met in order for the Information Commissioner to refer a question to the Supreme Court - firstly, the question must arise in the course of dealing with a complaint and secondly, the question must be a question of law.
Even assuming that these two conditions do exist, as I do for the purposes of considering the Application, it does not follow that the Information Commissioner is required to refer any questions of law to the Supreme Court if requested to do so by Ms Deturt.
The parties have not referred me to, nor have I located, any authority which involves a judicial review of a decision by the Information Commissioner to refuse a request to refer a question of law to the Supreme Court pursuant to s 78 of the FOI Act.
The case of McFarlane v Outback Communities Authority[8] involved a judicial review application of the refusal of a District Court judge, in the review of a trial of a minor civil action, to refer a question of law to the Court of Appeal pursuant to s 38(9) of the Magistrates Court Act 1991 (SA). That section provides that 'the District Court may reserve a question of law arising in a review for determination by the Court of Appeal which may determine the question and make any consequential orders or directions appropriate to the circumstances of the case'. Hughes J, in granting an application for summary dismissal of the judicial review application, found that 'it is never mandatory' to refer a question of law under s 38(9) and therefore, 'it cannot be said that a failure on the part of the judge to refer questions of law is an error that goes to jurisdiction'.[9]
[8] McFarlane v Outback Communities Authority [2024] SASC 54 (McFarlane).
[9] McFarlane [63].
I recognise that there is a difference between jurisdictional error on the part of inferior courts exercising discretion compared to tribunals exercising government powers.[10] However, in my view and for the purpose of this Application, McFarlane is instructive as to how s 78 of the FOI operates.
[10] As outlined in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [67] ‑ [68].
In my view, the natural and ordinary meaning of the words of s 78 of the FOI are clear and consistent with the context in which they appear in the legislation. Section 78(1) of the FOI Act provides that the Information Commissioner may (not must) refer a question of law to the Supreme Court. Section 78 of the FOI Act does not preclude the Information Commissioner from deciding questions of law. The Information Commissioner is merely given a discretion to refer questions of law to the Supreme Court pursuant to s 78(1) of the FOI Act.
Further, s 78(2) of the FOI provides that a question of law may (not must) be referred under this section on the Information Commissioner's own initiative or at the request of a party to the complaint. The words 'under this section' mean that it is only the Information Commissioner that may refer a question of law to the Supreme Court. Section 78 of the FOI does not contain a provision that permits Ms Deturt, as a party to the complaint, to refer a question of law to the Supreme Court.
I find that the Information Commissioner's decision to refuse to refer questions of law to the Supreme Court, that is the Decision, was within her jurisdiction conferred by s 78 of the FOI Act.
Ms Deturt has failed to establish any jurisdictional error. The Application must therefore be dismissed.
Costs and final orders
The Department, as the successful party, is entitled to its costs of the Application. The Department seeks costs fixed in the amount of $1,716 in accordance with Item 2.10 of the Table at [4.7.1.1] of the Supreme Court Consolidated Practice Directions.
I am satisfied that it is appropriate to fix costs in this amount as it is an amount that is significantly lower, in my view, than what the Department would be entitled to upon taxation. The fixing of costs in this amount avoids further costs being incurred by the Department, which would ultimately be recoverable from Ms Deturt.
I make the following orders:
(1)The application be dismissed.
(2)The applicant pay the second respondent's costs of the application fixed in the sum of $1,716.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CS
Associate to the Hon Justice Whitby
22 OCTOBER 2025
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