Henderson v. Taylor, Information Commissioner Qld
[2006] QSC 80
•30/03/2006
[2006] QSC 080
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
HOLMES J
No 6205 of 2005
| PAUL DAVID HENDERSON | Applicant |
| and | |
| CATHI TAYLOR (aka CATHERINE MARY TAYLOR), INFORMATION COMMISSIONER, QUEENSLAND | First Respondent |
and
RACHEL ELIZABETH JEAN MOSS Second Respondent
and
PAUL DAVID HENDERSON Requesting Party
and
ROBERT ATKINSON, COMMISSIONER Nominated Party
OF POLICE
and
CATHI TAYLOR (aka CATHERINE MARY Affected Party
TAYLOR), INFORMATION COMMISSIONER,
QUEENSLAND
BRISBANE
..DATE 30/03/2006
ORDER
HER HONOUR: The view I take is this: there is no case to answer on the first of the charges which are particularised, nor on the third or the fourth. It might be better if I expand on my reasons in relation to that later.
On the second of the charges, which concerns the letter, it seems to me there is an arguable case as to the effect of the letter written by the first respondent. I will take it no further than that at the moment. That means there is no remaining case against the second respondent at all. As I say, I will outline my reasons in due course but it might be simpler to proceed with the extant charge for the moment.
...
This is an application for orders committing the first respondent for contempt of Court in refusing - and I quote from the application:
"By the authority of the Court to decide the issues in contention within originating application 6205 of 2005 and in implementing reprisal action against the applicant as a party and as a witness within originating application 6205 of 2005 and for threatening further reprisal action against the applicant and for placing improper pressure on him."
An alternative order is sought, seeking that the first respondent be fined for contempt in the same regard.
An order is sought that the second respondent be committed for contempt of Court in refusing to bide the authority of the Court to decide the issues in contention within originating application 6205 of 2005, and again an alternative order fining the second respondent for contempt.
Mr Henderson, the applicant, has filed points of claim which I will come to. Those points of claim deal also with some subsequent matters in relation to sending of letters and, it is said, disclosing information to a journalist. Mr Henderson had sought to amend the application to include those matters. I will grant leave to make that amendment to the application.
I should say too that Mr Henderson had sought an adjournment of the hearing of the contempt applications to enable him to pursue a freedom of information application against the Queensland Police Service. Attempts to obtain material or non-party discovery had been unsuccessful. I declined that application because it seemed to me in the nature of a fishing exercise.
That means that the applicant has proceeded in reliance on affidavits filed by him on the 1st, 5th and 7th of December 2005. The first of the matters which is the subject of the contempt charge is particularised in the points of claim. Those points of claim I should say begin by setting out some background information.
The first set of particulars relevant to the first charge are these:
"From first of August 2005 to 1st of December 2005 the first respondent acted in concert with the second respondent in contempt of the applicant's originating application. The first respondent:
(1) Was served with a copy of the applicant's originating application to this honourable Court filed 1st of August 2005;
(2) Was aware that a higher Court Registry error meant that reservice on her of the originating application was imminent;
(3) Knew that a stay applied on the applicant's request for external review;
(4) In or about October 2005, instructed the second respondent to intermeddle with this stayed external review;
(5) The second respondent had not been previously involved in the external review;
(6) Knew that the second respondent in common with her other delegates with disentitled to intermeddle with the stayed external review;
(7) Did so to place improper pressure on the applicant as a party and as a witness in originating application 6205 of 2005;
(8) Did so to pre-empt the Court's paramount authority to decide the issues contained in the originating application;
(9) Did so with actual knowledge the second respondent was a person enrolled as a legal practitioner;
(10) Did so knowing that the second respondent was not the holder of a current practising certificate."
There are then the following particulars, which refer to requests made by the applicant to the first respondent to appoint a legal practitioner to avoid the need for personal service of an originating application and affidavit on her;
her refusal to do so; her refusal to file in the Court and serve a notice of address for service until 6th of December 2005. It is particularised that she was aware that service would be effected on her personally; that that was done on the 1st of December 2005; that service was lawful; that a letter was received on the 2nd of December 2005 from the applicant by the first respondent; and that she was served with an affidavit of service on the 5th of December 2005.
Those last particulars are not easy to relate to the first of the charges and I assume that they relate in fact to the second.
Returning to the first charge, there is no specific particular which deals with the conduct of the second respondent. One infers that it is intended to allege that she herself intermeddled, as it purports, with the external review.
The background to the matter is this: Mr Henderson had made a request for access under the Freedom of Information legislation to documents he perceived to be held by the Crime and Misconduct Commission. The decision at the Crime and Misconduct Commission was to the effect that there were no documents answering the description of what he sought. The next step seems to have been a deemed internal review, on the basis that the applicant had sought internal review which had not taken place. Then the matter was referred to external review to the first respondent.
There seems to have been a good deal of correspondence between the applicant and the first respondent's office. One of the documents referred to in the applicant's material, which was not actually within his material but is now available annexed to the affidavit of Ms Rangihaeata was a letter of 7th of July 2005. That letter sets out a preliminary view and directs the applicant to lodge a written submission containing, in effect, his response.
The applicant was not content with that sort of approach. It seems that he had a complaint that the first respondent's office had inappropriately involved the internal review officer from the Crime and Misconduct Commission in decision-making and had not sought a statutory declaration from him. The applicant seems also to have taken the view that the preliminary view reached was precipitous.
At any rate by letter of the 25th of July 2005 the applicant demanded a final decision and on the 1st of August 2005 filed an originating application by which he sought a declaration that the preliminary view reached was void and sought also that the first respondent be enjoined from making any final decision.
The originating application was deficient through what seems to have been an error on the part of the Registry. It contained no proper return date. Nothing turns on that; I am satisfied that there were pending proceedings; but it did mean that the application had to be re-served with a proper return date, which was inserted as the 1st of December.
In the interim a letter had been written by the second respondent of the 14th of November 2005. She, it seems, reprised the views expressed earlier, expressed her own preliminary view that there were no documents within the parameters of the Freedom of Information search undertaken by the applicant, and asked for any response.
That, so far as I can ascertain from the material, is the basis of the first of the charges brought by the applicant and it seems to be premised on the notion that the existence of the originating application constituted a stay of any further action by the first respondent. That plainly is not so. Three is nothing in the material that would suggest that the application had even been before the Court, heard by the Court in any sense, let alone that any order had been made in respect of it. There was no fetter on the first respondent continuing to exercise her powers under the Act or any delegate of hers doing so. By no stretch of the imagination can anything done in this period be said to be an interference with the course of justice. It is on that basis that I have held that there is no evidence on that charge and there is no case to answer.
In relation to the third and fourth charges, the particulars in respect of the third were that on the 13th of February 2006 and 16th of February 2006, the first respondent in concert with others acted in contempt of the interlocutory application which sought orders against them for contempt.
The particulars of that are that there was a threat by facsimile of 13th February 2006 accompanied by an application and affidavits in various terms, that that threat was renewed by facsimile on the 16th of February 2006. (I am paraphrasing the particulars here.) No evidence was before me in respect of any of those matters. Literally there was no evidence in respect of that charge and there was no case to answer.
In relation to the last of the charges, that between the 17th of February 2006 and the 22nd of February 2006 the respondents acted in further contempt of Court, the particulars were that the respondents had instructed a particular person to brief a journalist on matters which were sub judice and that accordingly he had given confidential documents and information to the journalist who published an article as a result. Again, there is literally no evidence and no case to answer in respect of that charge.
That leaves then the one remaining charge, the particulars of which are that between the 1st of December 2005 and 5th of December 2005 alone and in concert with others the first respondent acted in further contempt of Court in Application 6205 of 2005. The particulars are that the first respondent sent a letter dated 5th of December 2005 at 11.02 a.m. by facsimile to the applicant wherein it is said that she "demonstrated she was in breach of her duty and statutory duty to the applicant, acted contrary to civil and criminal law, informed the applicant that she had implemented reprisal action against him, threatened the taking of future reprisal action including the laying of criminal charges against him and applied improper pressure on the applicant as a party and as a witness contrary to section 119B of the Queensland Criminal Code."
Then, it is also said, by a third party she caused a malicious and untrue complaint against the applicant to be lodged with Judith Spence, the Minister for Police, Robert Atkinson, the Commissioner for Police via various named persons, that she unlawfully disclosed to the QPS official confidential documents containing personal information about the applicant, agitated for Commissioner Robert Atkinson to dispense with QPS published policy procedures for investigation and handling of complaints, caused the applicant to be harassed and intimated at this private residence through three named police officers and received a feedback report from QPS concerning the detectives' attendance.
Again, in relation to the background to that matter, on the 28th of November 2005, the first respondent had written to the applicant advising that she was not currently instructing a solicitor because of what she described as the "current status" of the application. I infer from that, that she meant the fact that the matter did not currently have a return date, although it is not entirely clear.
At any rate, on the 1st of December 2005, the applicant went to the first respondent's home at 8.12 p.m. to serve the originating application and affidavit in support. He, it seems, took the view that because she had not given a notice of address for service and had been advised that he would effect personal service she should have expected this to occur.
It is pointed out by Mr Bradley, for the first respondent, that the originating application had, in the first instance, been served by the applicant on the 1st of August 2005 at the first respondent's office and I think there is something in his point that one might reasonably have expected a similar means of service this time. The applicant makes the point that he is entitled to effect personal service. That may be so but it does not mean that a particular form of service is necessarily reasonable.
At any rate, it seems that the first respondent did not consider this sort of service to be reasonable, as far as one can judge by her responses. She sent a letter, the letter of which the particulars speak, to the applicant and on the 5th of December 2005, detectives from the Queensland Police Service attended at his house. It seems common ground that that was, indeed, at the complaint of the first respondent.
The applicant says that the police officers did not give him particulars of the complaint. They accused him of breaching the privacy of the first respondent and in his affidavit, although it is true that this is almost certainly a considerable degree of summary, he says that they suggested he should consider "acting contrary to the enjoyment of his lawful rights". The difficulty there, I think, from the applicant's perspective is the absence of any link between anything the first respondent might have done and any such suggestion by the Queensland Police Service if it were made.
Now, taking first the letter itself. It is, omitting formal parts, in these terms:
"I refer to your letter dated 2nd December 2005 and to your letter dated 2nd December 2005 and to your attendance at my private resident after 8.00 p.m. on 1st December 2005. I am prepared to accept service of the originating application and affidavit in support which you left at the front door of my residence. However, I consider your conduct in attending at my home to attempt to effect service of legal papers connected with my role as Information Commissioner to be absolutely unacceptable and unnecessary and done with the intention to intimidate me. As such I have referred your actions to the Queensland Police Service for investigation. You are aware of my work address which clearly is the appropriate place for you to send correspondence connected with my role as Information Commissioner and for you to attend during office hours to deliver any documents connected with my role as Information Commissioner. If you ever again attempt to attend at my private residence in connection with any matter related to my employment I will again report the matter to the Queensland Police Service and seek their advice about the possibility of bringing charges against you.
As regards review number 313 of 2005, I confirm that no further action will be taken by any officer in respect of that review until your application is heard by the Court. To that end I intend to retain counsel to represent me in those proceedings and to seek counsel's advice about applying to the Court for an order that your application be struck out on the basis that it fails to disclose any reasonable cause of action."
In respect, then, of the particulars in the points of claim that letter is undisputed; it is clearly in evidence and it is, as I have said, common ground that the first respondent caused the police officers to attend on the applicant. There is nothing to support any allegation of disclosure of confidential documents or agitating to dispense with published policy or any particular form of interview to be conducted by the police officers.
The letter is certainly heated. It says if the applicant attempts to attend the residence again in relation to any matter connected with the first respondent's employment she will report him again to the Queensland Police Service and seek advice about possible charges.
Specifically in relation to the application in question, however, it contains the advice that no further action will be taken in respect of the review and that the first respondent will seek advice about having the matter struck out. Those matters are self-contained within the letter.
The body of the letter is clearly concerned with any attendance again at the premises. The letter does not threaten any action against the applicant as a prospective witness. It does not in fact say anything about his being a witness. What it says might be a deterrent to his attempting to effect personal service. That of itself I think has no particular bearing on his capacity to conduct litigation.
There were alternatives such as service at the office which had taken place or even, if Mr Henderson had a real concern about how service might be effected, the possibility of some form of order for substituted service. But nothing in the letter suggests any threat to the applicant as a party or witness and there is nothing in it which could have adversely affected his ability to conduct litigation.
Reporting his attendance at the house to the police might be perceived as a discouragement to him to attend there again. It does seem to me a somewhat nervous reaction but there is nothing in it which is designed to put pressure on him as a party or a witness, as opposed to as a prospective attender at the first respondent's house. Again there is nothing to indicate that it was calculated to or did affect the applicant as a party or as a witness.
It does not seem to me that there is anything in the letter or the mere fact of reporting the incident to the police which amounts to any sort of attempt to interfere with the proper administration of justice nor is there any evidence to suggest any intention to do so.
I am not satisfied therefore that that allegation of contempt is made out.
I dismiss the application.
...
HER HONOUR: I do not propose to make any orders about any of that material.
I order that the applicant pay the respondents' costs of and incidental to the application to be assessed on the standard basis unless agreed.
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