Gemellaro v Burdekin Shire Council
[2011] QCAT 496
•20 September 2011
| CITATION: | Gemellaro v Burdekin Shire Council [2011] QCAT 496 |
| PARTIES: | Teresa Gemellaro |
| v | |
| Burdekin Shire Council |
| APPLICATION NUMBER: | GAR204-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 20 September 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The application by the Burdekin Shire Council for a non publication order is refused. |
| CATCHWORDS: | ADMINISTRATIVE REVIEW – declaration about menacing dogs – review sought – where decision maker sought non-publication order over identifying details of a witness Queensland Civil and Administrative Tribunal Act 2009, s 66 |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Two dogs owned by Ms Gemellaro have been declared by the Burdekin Shire Council as menacing dogs under the Animal Management (Cats and Dogs) Act 2008. Ms Gemallaro has sought a review of that decision in QCAT.
Directions were made requiring the Council to file in QCAT a statement of reasons for its decision and to file all documents on which it relied when the decision was made. The directions also required the Council to send copies of the reasons and documents to Ms Gemellaro.
The Council sought an order to allow it to black out identifying information about a witness to maintain confidentiality. The reasons for seeking such an order were expressed to be that Ms Gemallaro had previously undertaken a Right to Information application with the Council. As part of that process the Council had contacted the complainant and the witness for permission to release their details. Permission was granted by the complainant but not by the witness. The Council seeks a non-publication order to honour the wishes of the witness.
No other information was provided in support of the non-publication application.
QCAT must deal with matters in a way that is accessible, fair, just, economical, informal and quick.[1] Reviews of administrative decisions take place by way of a fresh hearing on the merits of the case. In all proceedings, QCAT must act fairly and according to the substantial merits of the case.[2] That requirement applies to both final hearings and hearings of applications during the course of a matter.
[1] Section 3 of the Queensland Civil and Administrative Tribunal Act 2009.
[2] Section 28(2) of the Queensland Civil and Administrative Tribunal Act 2009.
It is part of the requirement of a fair hearing that parties have access to the evidence that is being relied on in a proceeding. It is usual that the identity of witnesses is known by the parties. The identity of a witness can be an essential factor to a party determining the cogency of the evidence that the witness will give. The identity of a witness can also be essential to what evidence is called in response.
There are of course circumstances when access to the evidence can be restricted without infringing the fair hearing rule. However, those circumstances must be clearly made out in any given case.
The Queensland Civil and Administrative Tribunal Act 2009 contains some provisions that can be used to restrict access to evidence in a case. Relevant to this matter are the provisions in section 66 of the Act which enable QCAT to prohibit publication of information that may identify a person who has appeared before the tribunal.
An order can be made under section 66 if the tribunal is satisfied about one of the grounds set out in subsection 2 of section 66. In essence those grounds go towards avoiding disclosure of identity when it is in the interests of justice to do so. Confidential information or information whose publication would be contrary to the public interest can be the subject of a non-publication order.
[10] In this case, no grounds were put forward by the Council to meet the requirements of section 66(2) of the Queensland Civil and Administrative Tribunal Act 2009. It was not suggested that disclosure of the name of a witness would interfere with the administration of justice. It was not suggested that disclosure would endanger the safety of a person. It was not suggested that disclosure would offend public decency.
[11] At best it might be stated that the Council had suggested that publication of the identity of the witness would disclose confidential information. It was not made clear why the identity of the witness was confidential for QCAT’s purposes. A mere assertion that the witness had not given permission for their identity to be disclosed is not sufficient to convert the information into confidential information for QCAT’s purposes.
[12] An order under section 66 is not made merely to honour the wishes of a witness. That witness will be expected to take part in the proceeding and may well be cross-examined at the final hearing. If the witness has genuine concerns for their safety, then those specific grounds for non-publication must be put to QCAT and proven.
[13] To make a non-publication order on the basis of the application in the terms submitted by the Council would be an abuse of process and result in QCAT not acting fairly as it is required to do by law.
[14] The application for a non-publication order was refused.
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