Henderson v Taylor, Information Commissioner Qld

[2006] QSC 42

SUPREME COURT OF QUEENSLAND

CITATION:

Henderson  v Taylor, Information Commissioner Qld & anor [2006] QSC 042

PARTIES:

PAUL DAVID HENDERSON
(applicant)
v
CATHI TAYLOR (A.K.A. CATHERINE MARY TAYLOR), INFORMATION COMMISSIONER, QUEENSLAND
(first respondent)
RACHEL ELIZABETH JEAN MOSS
(second respondent)

FILE NO/S:

BS No 6205 of 2005

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

17 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

17 February 2006

JUDGE:

White J

ORDER:

In application filed 9.1.06:

1. Within 7 days Paul David Henderson file and serve his points of claim particularising his allegations against the first and second respondents and in particular the conduct of each which is alleged to constitute criminal contempt
2. The respondents to file and serve their points of response within 7 days of receipt of points of claim
3. Application adjourned to a date to be fixed, with liberty to relist on 7 days notice in writing
4. Respondent’s costs thrown away to be born by Paul David Henderson

In application of 7.2.06:

1. By consent, dismiss paragraph 1 of the application
2. Otherwise dismiss the application
3. Applicant (Paul David Henderson) to pay respondent (Commissioner of Police) costs of and incidental to the application

In application of 1.12.05:

1. Adjourn application
2. Costs reserved

CATCHWORDS:

ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – REQUEST FOR ACCESS – where applicant requested access to tape recording of complaint made to police – where respondent alleged such recording is irrelevant to proceedings – where respondent further alleged such recording does not exist – whether respondent has disclosed all relevant documents in his possession

Freedom of Information Act 1992 (Qld)
Uniform Civil Procedure Rules 1999 (Qld), r 248

COUNSEL:

Applicant appeared on his own behalf
T Bradley for the respondent Information Commissioner
J M Horton for the respondent Commissioner of Police

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

WHITE 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 OF POLICE	Nominated Party
and
CATHI TAYLOR (AKA CATHERINE MARY TAYLOR), INFORMATION COMMISSIONER, QUEENSLAND	Affected Party

BRISBANE

..DATE 17/02/2006

ORDER

HER HONOUR:  Mr Henderson, who appears on his own behalf in these applications, has served a notice of non-party disclosure on the Commissioner of Police, seeking the documents which are set out in the schedule.  I will refer to those documents in a moment.  There are also two other applications before the Court, also Mr Henderson's applications:  one of which has been adjourned by consent and the other will, in a sense, await the outcome of my decision relating to the non-party disclosure.

As best I can ascertain from the material - and I am to this extent relying on the background information contained in
Mr Bradley's outline of submissions and by reference to some of the many affidavits of Mr Henderson - I will say briefly what I think the background to today's application is. As I understand it, in April last year Mr Henderson sought access to certain documents from the Crime and Misconduct Commission pursuant to the Freedom of Information Act 1992, which would appear to have something to do with an audit of the Queensland Law Society. That is probably neither here nor there for today's application.

But what is relevant is that, in May, the co-ordinator for the Freedom of Information Commissioner told Mr Henderson that there were no documents responsive to the description of
Mr Henderson's request that could be identified.  Mr Henderson requested a review of that decision and subsequently, having heard nothing, sought an external review from the Information Commissioner, who is the first respondent to the substantive proceedings.

Mr Henderson was informed by the Information Commissioner's delegate, who is the second respondent to other proceedings, that a preliminary view had been formed that there was no reason to believe that there were in existence any documents of the kind sought by Mr Henderson.  Mr Henderson commenced proceedings in this Court shortly thereafter and there have been, apparently, some procedural problems emanating from the Registry.  There was some further correspondence between the first respondent and Mr Henderson.

Mr Henderson then filed an application in which he maintains that the Information Commissioner and Ms Moss are in contempt of an order of the Court, but alleges criminal contempt.  In order to assist Mr Henderson in his disposal of that allegation, he needs to obtain, he submits, documents from the Commissioner of Police, and it arises in this way:  that Mr Henderson allegedly went to the Information Commissioner's private residence on the evening of the 1st of December 2005 to serve her with an amended originating application and supporting affidavit.

The Information Commissioner took extreme exception to this course of conduct by Mr Henderson, and made a complaint to police.  Police attended at Mr Henderson's residence to deal with the subject matter of the complaint.

A conversation ensued between Mr Henderson, the investigating police, and Mrs Henderson - as I understand Mr Henderson's affidavit - were present.  For whatever reason except for the better prosecution of his contempt proceedings, Mr Henderson has sought particular documents about the complaint from the Commissioner of Police.

There has been some correspondence between them about the schedule of documents.  The Commissioner having initially resisted production then agreed to produce those certain documents in compliance with the subpoena relating to the police notebook, and the entry in the police log for the visit to Mr Henderson, and a copy of the audio tape which was running at that interview. 

Mr Henderson also sought the Queensland Police Service operational policy manuals relative to the receipt and investigation of complaints, and the Queensland Police Services involvement in Civil proceedings. 

Mr Henderson was invited to attend at the Hendra Police Station and peruse the manual and if he wished, he could purchase a copy. Initially Mr Henderson objected to that course proposed by the police service but as r 248 makes plain:

"A non-party is required only to produce the document specified at the place of business of the non-party within ordinary business hours or at another place or time as agreed." 

And as I understand it, Mr Henderson now accepts that that is the case.  Ultimately, Mr Henderson's complaint is that he has not received a tape recording of the complaint either made by Ms Taylor or made on her behalf to the police.  The basis for his understanding that there must necessarily be a tape is that at some time in the past, he has been aware of the existence of such a system of tape recording complaints. 

It is contended on behalf of the Commissioner that such a tape recording is irrelevant to the issues between the parties, that is, between Mr Henderson and the Information Commissioner, and her delegate about contempt of Court proceedings.

In the second instance, Mr Horton, who appears on behalf of the Commissioner, has said that he has instructions that no such document (in its broadest sense) exists.  Mr Henderson complains that that is not an appropriate way to inform him of the non-existence of that document. 

I am satisfied that the Commissioner of Police has, to the best of his ability disclosed all documents in his possession relating to the matters in issue between the parties as best he and his legal advisors are able to ascertain what those issues are from the material which has been filed, or provided by Mr Henderson.

And accordingly, that being so, any application for further disclosure is dismissed. 

...

HER HONOUR:  In the application relating to the non-party disclosure, Mr Henderson must pay the Commissioner's costs to be assessed on the standard basis. 

In respect of the application to adjourn the contempt proceedings, the need for the adjournment seems to be dictated by the applicant's failure to particularise the claim and so the costs thrown away by the adjournment today must also be borne by Mr Henderson.  I adjourn the application relating to the contempt proceedings to a date to be fixed. 

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