Fitzgerald v Booth
[2023] QSC 46
•15 March 2023
SUPREME COURT OF QUEENSLAND
CITATION: Fitzgerald v Booth and Anor [2023] QSC 46 PARTIES: GRANT LESLIE PATRICK FITZGERALD (applicant) v
PAXTON BOOTH(first respondent) OFFICE OF THE INFORMATION COMMISSIONER (second respondent) FILE NO/S: BS No 8809 of 2022 DIVISION: Trial Division PROCEEDING: Hearing ORIGINATING Supreme Court of Queensland at Brisbane COURT: DELIVERED ON: 15 March 2023 DELIVERED AT: Brisbane HEARING DATE: 7 February 2023 JUDGE: Williams J ORDER: The Court orders that: 1. The application is dismissed.
The Court directs that:
1. The parties file and serve submissions on costs of no more than 3 pages by 21 March 2023.
CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW –
GROUNDS OF REVIEW – GENERALLY – where a delegate
of the second respondent made a decision declining to deal
with the applicant’s privacy complaint – where the applicant
sought review of the decision – where the applicant raised
three grounds of review but withdrew the third ground at the
hearing – whether there was a breach of the rules of natural justice – whether there was failure to observe procedures
required by law to be observed in relation to the making of the
decision
Information Privacy Act 2009 (Qld), s 164, s 165, s 166,
s 167, s 168Judicial Review Act 1991 (Qld), s 20
Ebner v The Official Trustee and Bankruptcy (2000) 205
CLR 337
Michael Wilson & Partners v Nicholls (2011) 244 CLR 427
Minister for Immigration and Border Protection v WZARH
(2015) 256 CLR 326
Stead v State Government Insurance Commission (1986) 161CLR 141
COUNSEL: The applicant in person
A Nicholas for the first and second respondentsSOLICITORS: The applicant in person
Office of the Information Commissioner for the first andsecond respondents
Whilst the respondents did not accept that bias is properly a breach of the rules of natural justice rather than a separate ground, in respect of the now articulated ground 1 the respondents relied upon the part of their written submissions previously made on bias under the heading ground 3.
Facts and Decision
The decision, and the reasons for the decision, are set out in a letter dated 5 July 2022 from Mr Lemm Ex, a delegate of the second respondent.
The applicant’s privacy complaint was against the Queensland Human Rights
Commission (QHRC) pursuant to s 165 of the IP Act. The reasons record the
applicant’s complaint (quoting the applicant) as follows:
“The complaint pursuant to Section 166(c) of the Information Privacy
Act 2009 (Qld), (‘the Act’) with respect of Ms Ruth Venables
obtaining unlawfully of the Queensland Human Right Commission by obtaining information on myself personally from the Health Ombudsman of Queensland. Either by implied consent, tacit or express to use in Brisbane Supreme Court proceedings BS 1258/22
under cover of Ms Venable’s Affidavit of the 12 February 2022.”[1]
[1] Affidavit of Booth filed 20 September 2022 page 10.
The reasons characterise the complaint as containing two allegations:
(a) the QHRC’s collection of information concerning the applicant from the Office of the Health Ombudsman Queensland (Health Ombudsman); and
(b) QHRC’s use and/or disclosure of this information to the Queensland Supreme Court in proceedings BS 1258/22 by way of the affidavit of Ruth Venables.[2]
[2] Ms Venables was a delegate of the Queensland Human Rights Commissioner.
The affidavit of Ms Venables was provided as part of the material provided by the applicant to the second respondent under cover of an email dated 28 April 2022 and is located at page 147 of the affidavit of Mr Paxton Booth sworn 20 September 2022 exhibiting the documents that were before the decision-maker.[3]
[3] In fact the Venables affidavit appears twice in the material provided to the second respondent, with the other copy at page 21 of the affidavit of Booth filed 20 September 2022.
The reasons describe the seven exhibits to the affidavit of Ms Venables as follows:
“• ‘RV 1’ – decision of QHRC dated 21 January 2022 • ‘RV 2’ – Statement of reasons for the above decision dated 21 February 2022 • ‘RV 3’ – originating complaint form submitted by you to QHRC dated 4 December 2020 • ‘RV 4’ – e-mail from you to QHRC dated 9 December 2020 • ‘RV 5’ – letter from QHRC to you dated 3 June 2021 • ‘RV 6’ – complaint from you to QHRC dated 11 January 2022 • ‘RV 7’ – e-mail from you to QHRC dated 11 January 2022.”[4] [4] Affidavit of Booth filed 20 September 2022 page 262.
The reasons state in respect of the first component of the complaint as follows:
“The source of these documents was either yourself or QHRC. None
of these documents were sourced directly from [the Health
Ombudsman]. I acknowledge that nonetheless, the documents – and in particular ‘RV 4’ did contain e-mails between you and [the Health
Ombudsman].”[5]
[5] Affidavit of Booth filed 20 September 2022 page 263.
The reasons then go on to deal with the second component of the complaint, namely that the documents and their content were used and submitted to the Supreme Court in proceeding BS 1258 of 2022.
In respect of the use of the documents and their content in the Supreme Court proceeding, the reasons state:
“The privacy jurisdiction generally and the privacy complaint process
is not suited to contesting the material submitted by parties to a court proceeding. The court processes have in-built mechanisms for questions of relevance and weighting of submitted evidence.
There are numerous exemptions in the privacy principles and the IP Act which refer to the authority of courts for their consideration and determination of submitted evidence; including Information Privacy Principle (IPP) 10(1)(c), IPP 10(1)(e)(v), IPP 11(1)(a), IPP 11(1)(e), IPP 11(1)(e)(v).
In addition, there is the obligation on a respondent agency to comply with Directions and Orders of courts. Finally, there is the obligation
on a public sector agency to be a ‘model litigant’ which requires the agency to place all relevant material before the court.” (footnotes
omitted)
Under the heading Summary, the reasons acknowledge the applicant’s concerns over
QHRC’s direct involvement in Supreme Court proceeding BS 1258 of 2022. It
appears from what is referenced in the reasons that Mr Ex in considering the
applicant’s complaint understood that this was a component of the complaint and the
reasons reflect a statement of the decision-maker’s understanding of the applicant’s concerns. That is, the applicant’s concerns included that he considered there was a
breach of an undertaking that the QHRC would not be involved in the Supreme Court
proceeding. The reasons state “this is not an issue that can be pursued in the privacy
complaints jurisdiction”.
The reasons at this point expressly recognise the applicant’s complaint that QHRC
sourced information from the Health Ombudsman for inclusion in the affidavit.
Again, the reasons conclude “the Affidavit’s exhibits were sourced from either you or QHRC”.[6]
[6] Affidavit of Booth filed 20 September 2022 page 264.
The reasons further state that if the applicant wished to contest the provision of the affidavit and its contents that it was appropriate to raise this in the course of the
Supreme Court proceeding. Further, the reasons expressly recognise that “the privacy
complaints jurisdiction has not been set up as an alternate process to court processes
and proceedings”.
The letter dated 5 July 2022 concludes by stating:
“I am a delegated officer within OIC with the authority to consider and
make decisions on privacy complaints. On the basis of the above information, I have decided to decline to deal with your complaint
under section 168(1)(c) of the IP Act.”
Relevant legislation
Section 20 of the JR Act provides:
“A person who is aggrieved by a decision to which this Act applies
may apply to the court for a statutory order of review in relation to
the decision.”
It is not contentious between the parties that the decision of the second respondent is a decision under enactment and is subject to judicial review under the JR Act.
The grounds raised in the originating application are under s 20(2)(a), (b) and originally (f) (the latter being withdrawn at the hearing).
The relevant provisions of the IP Act include:
“164 Meaning of privacy complaint
(1) A privacy complaint is a complaint by an individual about an act or practice of a relevant entity (the respondent for the complaint) in relation to the
individual’s personal information that is a breach of the
relevant entity’s obligation under this Act to comply
with—
(a) the privacy principles; or (b) an approval under section 157.
(2) In this chapter— relevant entity means—
(a)
an agency, in relation to documents of the agency; or
(b)
a bound contracted service provider, in relation to documents held by the bound contracted service provider for the purposes of performing its obligations under a service arrangement.
165 Privacy complaint may be made or referred to information commissioner
(1)
An individual whose personal information is, or at any time has been, held by a relevant entity may make a privacy complaint to the information commissioner.
(2) Also, a privacy complaint may be referred to the commissioner by any of the following entities—
(a) the ombudsman; (b)
the health ombudsman under the Health Ombudsman Act 2013;
(c)
the human rights commissioner under the Anti- Discrimination Act 1991;
(d)
a person or other entity having responsibilities, under a law of another State or the Commonwealth that corresponds to this Act, that correspond to the responsibilities of the commissioner under this Act;
(e)
any other commission or external review body that has received the privacy complaint in performing its functions under a law.
(3)
As soon as practicable after receiving a privacy complaint made or referred under this section, the commissioner must advise the relevant entity the subject of the complaint.
166 Requirements for privacy complaint
(1) A privacy complaint made or referred to the information commissioner must—
(a) be written; and (b) state an address of the complainant to which notices may be forwarded under this Act; and (c) give particulars of the act or practice complained of. (2) For a privacy complaint made to the commissioner by an individual, the commissioner must give reasonable help to the complainant to put the complaint into written form. (3) However, an individual may not make a privacy complaint to the commissioner unless—
(a)
the individual has first complained to an appropriate person within the relevant entity under the complaints management system of the relevant entity; and
(b)
at least 45 business days have elapsed since the complaint was made under paragraph (a); and
(c)
the individual has not received a response to the complaint or the individual has received a response but considers the response not to be an adequate response.
167 Preliminary action
The information commissioner may make preliminary inquiries of the complainant and the respondent for a privacy complaint to decide whether the commissioner is authorised to deal with the privacy complaint and whether the commissioner may decline to deal with the complaint.
168 Information commissioner may decline to deal with or to deal further with complaint
(1)
The information commissioner may decline to deal with a privacy complaint, or a part of a privacy complaint,
made or referred to the commissioner if—
(a)
the act or practice the subject of the complaint or part does not relate to the personal information of the complainant; or
(b)
the requirements under section 166(3) for making a complaint have not been fully satisfied; or
(c)
the commissioner reasonably believes the complaint or part is frivolous, vexatious, misconceived or lacking in substance; or
(d)
there is a more appropriate course of action available under another Act to deal with the substance of the complaint or part; or
(e)
although the complainant made the complaint to the respondent as required under section 166(3), in the circumstances, the respondent has not yet had an adequate opportunity to deal with the complaint or part; or
(f)
12 months have elapsed since the complainant first became aware of the act or practice the subject of the complaint or part.
(2)
The commissioner may decline to continue dealing with a privacy complaint, or a part of a privacy complaint,
made or referred to the commissioner if—
(a)
the complainant does not comply with a reasonable request made by the commissioner in dealing with the complaint or part; or
(b)
the commissioner is satisfied on reasonable grounds that the complainant, without a reasonable
excuse, has not cooperated in the commissioner’s
dealing with the complaint or part; or
(c) the commissioner considers the address the complainant stated in making the privacy complaint is no longer the address at which the complainant can be contacted, and the complainant has not, within a reasonable time, advised the commissioner of a new address to which notices may be sent under this Act.”
It is not contentious in this matter that a complaint was made pursuant to s 165 and that the requirements of s 166(1) have been complied with.
It is also not contentious that the decision was made pursuant to the power in s 168(1)(c) of the IP Act. The sufficiency of the reasons is in dispute between the parties, particularly in the circumstance where the decision does not identify which of the bases was found. That is, the decision did not identify whether the complaint was one or all of frivolous, vexatious, misconceived or lacking in substance. The applicant contended that because the decision does not identify which specific one of those matters was established there are insufficient reasons in respect of the decision.
As ground 3 has been withdrawn, this contention is considered as part of the second basis of ground 1 concerning the consideration of s 168(1)(c).
First respondent
The application names Mr Paxton Booth as the first respondent and the Office of the Information Commissioner as the second respondent.
The respondents submit that the proper respondent to the application is the second respondent.
Mr Ex was the principal privacy officer under a delegation pursuant to s 139 of the IP Act and made the decision of the second respondent which is the subject of the application for review.
The first respondent, Mr Booth, was not the relevant decision-maker. This is addressed at paragraphs 4 and 5 of the affidavit of Mr Booth filed 20 September 2022.
Following the decision being made and communicated on 5 July 2022, Mr Ex ceased working for the second respondent on 8 July 2022. Subsequently, Mr Booth communicated with the applicant as a result of further communications received from the applicant.
Further, for the purposes of this application, Mr Booth swore an affidavit on behalf of the second respondent exhibiting the documents before the decision-maker based on the records of the second respondent.
It is in these circumstances that the respondents submitted that there is no basis for the first respondent to be joined to the application and that the applicant has not articulated a proper basis for doing so.
These reasons deal with the grounds raised by the applicant. There is no basis for the first respondent to be personally joined as a party to the proceeding. The application against the first respondent should be dismissed independently of the consideration of the grounds discussed below.
Ground 1 – breach of natural justice
Grounds 1 and 2 are closely linked, however it is convenient to deal with them separately to ensure that each aspect is considered.
First basis
The applicant contends that the delegate of the second respondent should have “come back to him” in the circumstances where there was a longstanding relationship which
was not a good relationship. The applicant does not articulate any specific procedure
that was not followed by the respondent in respect of this contention.
In submissions the applicant referred to the existence of a longstanding relationship between the applicant and the second respondent. However, this is not established on the evidence filed in relation to this application.[7] The respondents in oral
submissions urged caution on the Court in acting on the “evidence from the bar table”
in this regard.
[7] The applicant did not file any affidavits. However, copies of documents were annexed to the two submissions filed by the applicant on 28 September 2022 and 7 October 2022. The respondents filed an affidavit exhibiting the documents before the decision-maker.
Even if there was some evidence of an ongoing relationship, and even if it was not necessarily on good terms between the applicant and the second respondent, it is difficult to see how that without more could:
(a) give rise to a requirement that the second respondent consult or make further inquiries with the applicant; or (b) otherwise provide a further opportunity to the applicant to put in material, prior to making a decision pursuant to s 168(1)(c) of the IP Act.
Here the applicant does not point to anything other than generally the length and
“bad” nature of the relationship. That is not sufficient to give rise to an obligation to
further consult or make inquiries prior to making the decision. Further, a failure to further consult or make inquiries in the context of that relationship alone does not amount to a breach of natural justice.
Second basis
The applicant raised as the second basis of a breach of natural justice consideration of s 166 (excluding subsection (2)), s 167 and s 168(1)(c) of the IP Act.
Section 166 of the IP Act sets out the requirements for a privacy complaint including that it must be in writing, state an address and give particulars of the act or practice complained of.
The applicant in oral submissions expressly confirmed that he was not relying on s 166(2) of the IP Act to found any breach of natural justice. That subsection does require the Commissioner to give reasonable help to the complainant to put the complaint into written form.
In any event, the applicant had considerable opportunity to put a complaint in written form to the second respondent and to have the complaint considered. Further, as evidenced by the material which was provided by the applicant to the second respondent, the applicant did have the opportunity to provide the material he chose to in support of his complaint over a reasonable period of time.
Section 166(3) includes certain circumstances where an individual may not make a privacy complaint unless those provisions are complied with. This includes under subsection (3)(a) that the individual has first complained to an appropriate person within the relevant entity under the complaints management system of the relevant entity. That is not in issue here. I note that the applicant did make a complaint to the QHRC as evidenced in a letter by the QHRC dated 26 April 2022 communicating its decision in relation to the complaint.[8]
[8] The QHRC letter was attached to the Application for Statutory Order of Review filed 26 July 2022.
As indicated previously, it is not contentious that the applicant has met the formal requirements for there to be a privacy complaint. Accordingly, it is difficult to see how the reliance on s 166 of the IP Act can found any basis for a breach of natural justice. Section 166(1)(c) does not require more than the complaint to include particulars of the act or practice complained of. Section 168(1) provides a power to the second respondent to consider the substance of what is contained in s 166(1)(c) and to decline to deal with a complaint in the identified circumstances.
Section 167 provides a discretion to the second respondent to make preliminary inquiries of a complainant and a respondent to the complaint to decide:
(a) whether the second respondent is authorised to dealt with the privacy complaint; and (b) whether the second respondent may decline to deal with the complaint.
The applicant accepts that s 167 is discretionary.
However, the applicant contends that given the history of the relationship between the applicant and the second respondent, preliminary inquiries should have been undertaken.
The evidence establishes:
(a) The applicant lodged the complaint and provided a considerable volume of correspondence and material in support of his complaint to the second respondent. (b) The applicant was given an opportunity to be heard by the provision of the material in support of the complaint over a reasonable period of time.
The respondents also point to the contents of the material provided by the applicant in support of the complaint as supporting the conclusion that the failure to exercise the discretion in s 167 to make preliminary inquiries does not result in a breach of natural justice.
The applicant’s material provided to the second respondent did not provide any new information subsequent to the QHRC’s 26 April 2022 letter where the QHRC considered in detail the applicant’s privacy complaint. That letter also specifically
addressed the affidavit of Ms Venables and the exhibits, together with the purpose for
which the affidavit was prepared.
There was nothing in the material provided to the second respondent which would
have been a “line of inquiry” which required further inquiries to be made, for example
to obtain a further view on new material. Additionally, the applicant does not point
to anything which would have been a basis for further inquiries to be made.
The applicant’s complaint also raised s 30 of the IP Act and the National Privacy
Principles in Schedule 4 to the IP Act.[9] These provisions are relevant to “Health Agencies” as defined in the IP Act and are not applicable in respect of the QHRC.
These provisions of the IP Act do not assist the applicant’s contentions.
[9] Applicant’s written outline of submissions filed 28 September 2022 at pages 5 and 10.
In the circumstances, the failure to exercise the discretion in s 167 to make preliminary inquiries does not result in a breach of natural justice.
The applicant also relies on s 168(1)(c) of the IP Act.[10] Specifically, the applicant complains that the second respondent does not identify which of the bases listed was found for the purposes of the decision.
[10] Applicant’s written outline of submissions filed 28 September 2022 at page 11.
It is submitted on behalf of the second respondent that it is not necessary to identify or otherwise delineate the specific finding in respect of it being frivolous, vexatious, misconceived or lacking in substance: it was sufficient that the basis under s 168(1)(c) was identified. The decision states the basis for the dismissal of the complaint and the reasons for doing so. The respondents submit that in these circumstances, there can be no breach of natural justice on the basis of insufficient reasons being provided.
Section 168 provides the second respondent with a power to decline to deal with a privacy complaint on one of more of the bases articulated in sub-paragraphs (a) to (f).
For a practical point of view, s 168(1)(c) requires a complaint to contain an arguable case of breach of the privacy principles. Otherwise, the second respondent may, in effect, summarily dismiss the complaint.
Section 168 does not require a complainant be given notice or a preliminary view before a decision is made declining to deal with a privacy complaint on one or more of the grounds articulated.
Here, the applicant provided voluminous material in support of the privacy complaint. This included the provision of material over more than two months, namely 28 April 2022 to 5 July 2022.[11]
[11] Affidavit of Booth filed 20 September 2022 at [9] and [11].
The decision to decline to deal with the privacy complaint followed consideration of the material provided by the applicant to the second respondent.
Whilst the reasons did not delineate the specific finding in respect of it being frivolous, vexatious, misconceived or lacking in substance, the reasons identified that the applicant had failed to identify an arguable case of breach of the privacy principles. The specific subsection and power were identified and the failure to delineate a specific single reason is not fatal.
In respect of the broader allegation of a failure to give adequate reasons, this complaint is also not made out. The letter of 5 July 2022 states the reasons for the decision in reasonable detail. It is apparent from those reasons that the decision was to decline to deal with the privacy complaint for two main reasons:
(a) That the applicant failed to present an arguable case of breach of the privacy principles as the source of the contested documents were either the applicant directly or QHRC; and (b) The privacy complaints process was not the appropriate procedure to deal with contested material which had been filed and sought to be used in Supreme Court proceedings.
Further, the reasons identified that the exemptions provided for in Schedule 3 of the Information Privacy Principles also supported that the appropriate procedure was to apply to the Courts for a ruling in respect of the use and protection of any private information which was included in an affidavit filed in support of Court proceedings.
No reviewable error has been established in respect of the second basis relied upon in respect of a breach of natural justice.
Third basis
The third basis relied upon by the applicant for a breach of natural justice is bias. The applicant indicated to the Court that he thought that this was properly characterised as a breach of natural justice as part of ground 1, rather than ground 3, which was why he withdrew ground 3.
Again, the applicant pointed to the relationship between the applicant and the second
respondent and the lack of “conviviality” as evidencing bias. He submitted that there
was no working relationship between the applicant and the decision-maker. He had
to chase the decision-maker.
Further, the applicant submitted that the reasons contain statements of opinion of the
delegate of the second respondent as to the nature of the applicant’s complaint and he
did not know why those opinions were included. Additionally, the applicant contended that the delegate of the second respondent could have easily written to him to clarify the nature of his complaint.
The applicant also relied on the submissions made at point 9 on page 13 of his written submissions filed on 28 September 2022.
The written submissions refer to the test in respect of apprehended bias of a decision- maker in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. The applicant contended that the test for apprehended bias is met in the current circumstances.
As indicated previously, the respondents do not accept that bias is properly characterised as a breach of natural justice. However, they rely on their submissions
in respect of bias which were originally directed at the applicant’s third ground of
review.
The respondents submit that the contention of bias is without foundation. In particular, the applicant does not plead, particularise or otherwise identify a specific incident or occasion of alleged bias. The respondents contend that making a serious allegation against a public administrator without any particularity or in a way that would allow the respondent to meaningfully respond to it does not establish bias. The respondents contend that it is a mere assertion.
The respondents also recognise that the relevant test for apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision- maker may not bring an impartial and unprejudiced mind to the resolution of the question the decision-maker is required to decide. This is consistent with the statement of the test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 at [6] and subsequently in Michael Wilson & Partners v Nicholls (2011) 244 CLR 427, 437 at [31].
However, the respondents further submit that the test in respect of apprehension of bias is an objective assessment between the facts and the circumstances said to give rise to the apprehension. That is, it is an assessment of the asserted conclusion that the decision-maker might not bring an impartial mind to bear upon the issues that are to be decided.
The respondents develop the submission further and contend that the test for apprehension of bias requires an objective assessment of the connection between the facts and the circumstances said to give rise to the apprehension and the asserted conclusion that the decision-maker might not bring an impartial mind to bear upon the issues that are to be decided.
Looking at the evidence in this case, the respondents contend that there is nothing in the decision or otherwise that shows either:
(a) The second respondent was so committed to a particular outcome that the second respondent would not alter the outcome, regardless of what evidence or arguments were presented; or (b) that a fair-minded lay observer might reasonably apprehend that the second respondent, or its officers, might not bring an impartial mind to the resolution of the question they were required to decide.
Considering the matters raised in oral submissions and the matters raised in the
written submissions, I accept the respondents’ submissions and contentions. I am not
satisfied that the applicant has established reviewable error in respect of the allegation
of bias to found a breach of natural justice or otherwise. In particular:
(a)
The lack of conviviality referred to by the applicant is not sufficient to found an apprehension of bias.
(b)
Having to follow up with the second respondent does not, in itself, establish apprehended bias.
(c) The statements in the reasons summarising the applicant’s complaint do not establish apprehended bias. Stating the decision-maker’s understanding of the
complaint was not in effect telling the applicant what the applicant considered the complaint to be (as contended by the applicant). Rather, it was stating the
decision-maker’s understanding of the complaint as part of the reasoning
process.
Having considered each of the bases in respect of ground 1, ground 1 has not been established by the applicant and ground 1 should be dismissed.
Ground 2 – failure to observe procedures required by law
There is some crossover between ground 1 and ground 2 as ground 2 also relies upon s 167 of the IP Act.
Consistent with the matters discussed above, the applicant accepts that s 167 of the IP Act is discretionary. The applicant submitted that it was simple for the decision- maker to just write to him to make further enquiries and that should have been done. That submission is misconceived.
The applicant was given an opportunity in oral submissions to identify what factors he relied upon to contend that the exercise of the discretion in s 167 of the IP Act to not make preliminary inquiries was in error. The applicant was unable to articulate
the basis for alleging an error. Many of the applicant’s submissions went to the
merits rather than identifying an error or one of the grounds of judicial review.
In respect of ground 2, the respondents submit that the power is discretionary and there is no statutory requirement that preliminary inquiries are made. Further, the applicant has not pointed to anything in the material before the second respondent that should have raised a particular line of inquiry.
In particular, the respondents address the contention raised by the applicant at page
11 of the applicant’s outline of submissions that the second respondent failed to afford
the applicant procedural fairness by electing not to exercise its discretion to conduct
preliminary inquiries of the QHRC (as opposed to the applicant).
In that regard, the applicant submits that:
“Evidence from the Respondent that I sent Ms Venables pages twenty
three to forty two, forty seventy forty nine and page seventy two to
eighty four of Ms Venables’ affidavit of 12 April 2022 should have
been forthcoming,”[12][12] Applicant’s written outline of submissions filed 28 September 2022 at page 11.
In response, the respondents submit that the applicant provided a large volume of correspondence and material. The second respondent was not compelled to make preliminary inquiries of the applicant or otherwise. In respect of not making preliminary inquiries of the QHRC, the respondents point to the particular material that was provided by the applicant in support of the complaint.
The material included the QHRC’s letter dated 26 April 2022 which comprehensively considered the applicant’s privacy complaint. That letter specifically addressed the
affidavit of Ms Venables and the exhibits, the subject of the current complaint.
Further, there was no new information provided by the applicant subsequent to the
QHRC’s 26 April 2022 letter that would have required the respondent to seek an
updated or further review from the QHRC. That is, there was not any information or material that raised a particular line of inquiry that required further inquiries to be made.
The second respondent received voluminous material in support of the applicant’s
privacy complaint over a reasonable period. The decision to decline to accept the privacy complaint did not raise any new information of which the applicant was not already aware.
The respondents contended that in these circumstances, it was not necessary to give the applicant a preliminary view prior to issuing a final decision declining to deal with the privacy complaint. The second respondent was entitled to make the decision and there was no miscarriage in the exercise of the discretion.
At the hearing, there was some discussion as to whether the applicant included in the material provided to the second respondent a copy of the Venables affidavit. The affidavit of Ms Venables is included in the exhibit to the affidavit of Mr Booth filed 20 September 2022 starting from page 147 of the exhibit, as being one of the documents provided by the applicant to the second respondent in support of his complaint.
Further, at page 135 of the exhibit, there is an email from the applicant to the second
respondent’s email address which clearly lists the affidavit by Ms Venables as an
attachment. Further, the email itself specifically refers to the Venables’ affidavit as
being the subject of the complaint.
From the evidence as to the information before the second respondent, the full
Venables’ affidavit was provided by the applicant as part of the supporting material.
The covering email includes an email chain in respect of the earlier Supreme Court proceedings and notes the complaint that Ms Venables or the QHRC obtained
documents from pages “twenty four to forty nine approximately in Ms Venable’s
affidavit”[13] from the Health Ombudsman and not from the applicant.
[13] Quoting the applicant: Affidavit of Booth filed 20 September 2022 at page 36.
At page 38 of exhibit RV-4 to the affidavit of Ms Venables there is an email to the applicant from the Health Ombudsman dated 7 December 2020.
The inclusion of those pages and other identified pages were the subject of the complaint made to the QHRC and the decision dated 26 April 2022. The letter dated 26 April 2022 was included in the material provided to the second respondent in
support of the applicant’s complaint.
There was material before the second respondent that supported the second respondent reasonably believing that the complaint was frivolous, vexatious, misconceived or lacking in substance. It was open on a consideration of all of the material before the second respondent that the applicant failed to present an arguable case for breach of privacy. No basis for an error establishing a ground of review on the basis that the second respondent did not observe procedures required by law is made out.
Accordingly, ground 2 should be dismissed.
Orders
The applicant has failed to establish grounds 1 or 2 on any of the bases identified.
Accordingly, I order that the application is dismissed.
The parties are directed to file and serve submissions on costs of no more than three pages by 21 March 2023.
This is an application pursuant to s 20(2) of the Judicial Review Act 1991 (Qld) (JR Act) seeking review of a decision by a delegate of the second respondent on 5 July
2022 declining to deal with the applicant’s privacy complaint under s 168(1)(c) of the
Information Privacy Act 2009 (Qld) (IP Act) (the decision).
The application filed on 26 July 2022 raises three grounds:
(a) that a breach of the rules of natural justice happened in relation to the making of the decision; (b) that procedures that were required by law to be observed in relation to the making of the decision were not observed; and (c) that the decision involved an error of law (whether or not the error appears on the record of the decision).
At the hearing of the application on 7 February 2023, the applicant expressly withdrew ground 3 and it was not further considered.
At the hearing, the applicant identified the following bases for grounds 1 and 2:
(a) In respect of ground 1, the applicant submitted that the breach of the rules of natural justice is established by: (i) the delegate on behalf of the second respondent failed to “come back to him” prior to making the decision in the circumstances where there was
a longstanding and not good relationship between the applicant and the
second respondent;(ii) in the context of s 166 (but not subsection (2)), s 167 and s 168(1)(c) of the IP Act, the second respondent should have made further inquiries of the applicant prior to making the decision; and
(iii) the delegate of the second respondent and/or the second respondent was biased.
(b) In respect of ground 2, the applicant contended that while s 167 of the IP Act is discretionary and not mandatory, in the circumstances of the history between the applicant and the second respondent, the delegate should have made preliminary inquiries with the applicant prior to making the decision.
The hearing proceeded on grounds 1 and 2 as articulated on these specific bases.
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