I v Department of Agriculture and Food

[2016] WASC 26

I -v- DEPARTMENT OF AGRICULTURE AND FOOD [2016] WASC 26

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 26
Case No:	GDA:3/2015	Heard:	9 APRIL 2015, 27 AUGUST 2015
Coram:	CORBOY J	Delivered:	29/01/16
No of pages:	11	Judgment Part:	1 of 1
Result:	Application for access applicant to be joined allowed
Category:	B
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Parties:	I DEPARTMENT OF AGRICULTURE AND FOOD
Catchwords:	Freedom of information Appeal Whether an access applicant can be joined to an appeal pursuant to O 18 r 6(2) of the Rules of the Supreme Court 1971 (WA)
Legislation:	Freedom of Information Act 1992 (WA), s 68, s 69, s 85, s 86 Rules of the Supreme Court 1971 (WA), O 18 r 6(2)
Case References:	Huntingdale Village Pty Ltd as Receiver and Manager of Huntingdale Village Pty Ltd v Corrs Chambers Westgarth [2013] WASCA 275 Martin Bruce Jones as Receiver and Manager of Miami Waterfront Developments Pty Ltd v Miami Waterfront Developments Pty Ltd [2012] WASC 483 Morrell v Mercantile Mutual Insurance (Australia) Ltd [1999] WASCA 250; (1999) 21 WAR 451 Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 Temwood Holdings Pty Ltd v Western Australia Planning Commission [2001] WASCA 354; (2001) 25 WAR 311

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : I -v- DEPARTMENT OF AGRICULTURE AND FOOD [2016] WASC 26 CORAM : CORBOY J HEARD : 9 APRIL 2015, 27 AUGUST 2015 DELIVERED : 29 JANUARY 2016 FILE NO/S : GDA 3 of 2015 BETWEEN : I

Appellant

AND

DEPARTMENT OF AGRICULTURE AND FOOD
Respondent

Catchwords:

Freedom of information - Appeal - Whether an access applicant can be joined to an appeal pursuant to O 18 r 6(2) of the Rules of the Supreme Court 1971 (WA)

Legislation:

Freedom of Information Act 1992 (WA), s 68, s 69, s 85, s 86

Rules of the Supreme Court 1971 (WA), O 18 r 6(2)

Result:

Application for access applicant to be joined allowed

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : Ms F B Seward

Solicitors:

Appellant : In person
Respondent : State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Huntingdale Village Pty Ltd as Receiver and Manager of Huntingdale Village Pty Ltd v Corrs Chambers Westgarth [2013] WASCA 275
Martin Bruce Jones as Receiver and Manager of Miami Waterfront Developments Pty Ltd v Miami Waterfront Developments Pty Ltd [2012] WASC 483
Morrell v Mercantile Mutual Insurance (Australia) Ltd [1999] WASCA 250; (1999) 21 WAR 451
Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52
Temwood Holdings Pty Ltd v Western Australia Planning Commission [2001] WASCA 354; (2001) 25 WAR 311

CORBOY J:

The background to the appeal

1 The appellant was an employee of the Royal Society for the Prevention of Cruelty to Animals Western Australia Incorporated (RSPCA) and a general inspector appointed under the Animal Welfare Act 2002 (WA). She resigned from those positions in January 2013 after her husband had been transferred in his employment to the north-west.

2 The appellant learnt in mid-May 2013 that the Department of Agriculture and Food (DAFWA) had issued a warning letter directed to her. The letter followed a complaint about an investigation in which she had been involved. The appellant had been unaware of the complaint or of a subsequent investigation into matters raised by the complaint.

3 The appellant made an access application under the Freedom of Information Act 1992 (WA) (the FOI Act) seeking documents relating to the warning letter. Some information was released but DAFWA claimed that there was other information that was exempt from release under the FOI Act.

4 The appellant subsequently received a letter from DAFWA (dated 30 August 2013) advising that the Department had received an access application under the FOI Act (the Access Application) from an unidentified person (the Access Applicant) (a copy of the letter is attachment '2' to the affidavit made by the appellant on 17 March 2015). The letter stated that the appellant had been identified as a 'third party' in some documents that apparently came within the scope of the Access Application. A brief description of the documents (the Disputed Documents) was enclosed with the letter. The appellant was invited to express her views and opinions on whether the Disputed Documents were exempt from release under the FOI Act.

5 The appellant subsequently provided a detailed submission to DAFWA contending, among other things, that all her personal information was exempt under cl 3(1) of the FOI Act and that some of the Disputed Documents did not come within the scope of the Access Application (letter dated 11 September 2013; attachment '3' to the appellant's affidavit). However, DAFWA decided that the appellant's name and 'prescribed details' were not exempt personal information under the FOI Act and that the Access Applicant was entitled to access to the Disputed Document (attachment '4').

6 The appellant requested that DAFWA conduct an internal review of its decision. DAFWA subsequently confirmed the decision (attachment '5'). The appellant then made a complaint to the Office of the Information Commissioner seeking an external review of the decision. The complaint was dated 13 December 2013 (attachment '6').

7 DAFWA advised the Access Applicant by a letter dated 16 December 2013 that it had decided to grant access to some of the documents requested in the Access Application (the Access Notice). The Access Notice further advised that access to the Disputed Documents would be deferred until the appellant's complaint had been dealt with by the Information Commissioner. DAFWA's decision on the Access Application was undated but must have been made sometime between 12 and 16 December 2013 (affidavit of Rhea Ellen Fisher made on 19 August 2015 and attachment 'REF 1').

8 The Information Commission provided his preliminary views on the appellant's complaint in August 2014 (attachment '8' to the appellant's affidavit). He invited the appellant to either withdraw her complaint or provide further information or submissions in support of her claim that the Disputed Documents were exempt from release. The appellant made further submissions in late August and early September 2014 (appellant's affidavit, pars 36 - 43 and attachments '10' - '10C', '11' and '12').

9 The appellant was informed in November 2014 that the warning letter issued by DAFWA had been withdrawn. The appellant advised the Information Commissioner that the letter had been withdrawn (appellant's affidavit, pars 47 - 50). Subsequently, she requested the Information Commissioner refer certain questions of law to this court for determination pursuant to s 278 of the FOI Act. The Information Commissioner declined that request and delivered his final decision in December 2014 (appellant's affidavit, pars 51 - 58; attachment '19'). He held that DAFWA's decision to grant access to the Disputed Documents was justified and that the documents were not exempt under cl 3(1), sch 1 to the FOI Act.

The grounds of appeal

10 The appellant appeals from the Information Commissioner's decision. The appeal notice pleads five grounds of appeal:

(a) the Information Commissioner erred in law by finding that the appellant's personal information contained in the Disputed Documents was prescribed information pursuant to cl 3(3), sch 1 of the FOI Act;

(b) the Information Commissioner erred in law by finding that the appellant was an officer of DAFWA for the purposes of the FOI Act;

(c) the Information Commissioner erred in law by finding that it was not relevant to consider whether an agency (in this instance, DAFWA) had received an access application in determining whether a person was an officer of an agency as defined by the FOI Act;

(d) the Information Commissioner erred in law by not 'formally' deciding the public interest test pursuant to cl 3(6), sch 1 of the FOI Act; and

(e) the Information Commissioner erred in law by 'informally' finding the public interest favoured disclosure of the disputed documents.

The direction regarding the Access Applicant

11 A direction was made in the appeal requiring the respondent to notify the Access Applicant that an appeal had been commenced by the appellant so that the Access Applicant could inform the court whether she wished to apply to be joined as a party to the appeal. The Access Applicant subsequently advised the court that she wished to be joined as a party. She stated in an affidavit made in support of an application to be joined that she believed that documents the subject of her access application contained 'major information to prove [her] case CACV 40/2015' (affidavit made on 29 April 2015). The Access Applicant further alleged in her affidavit that the RSPCA had illegally seized her animals.

12 The appellant's appeal was commenced out of time. A directions hearing was held for the purpose of determining whether the appellant should be granted leave to appeal out of time and whether the Access Applicant should be joined as a party to the proceedings.

The extension of time for the appeal

13 Neither DAFWA nor the Access Applicant objected to the appellant being granted an extension of time in which to commence her appeal. Accordingly, an order was made granting the appellant leave to appeal out of time.

The joinder of the Access Applicant

The FOI Act

14 Clause 1 of the glossary to the FOI Act includes the following definitions:

agency means -

(a) a Minister; or

(b) a public body or office,

and the agency means the agency to which an access application or application for amendment of personal information has been made or to which such an application has been transferred or partly transferred;

…

personal information means information or an opinion, whether true or not, and whether recorded in a material form or not, about an individual, whether living or dead -

(a) whose identity is apparent or can reasonably be ascertained from the information or opinion; or

(b) who can be identified by reference to an identification number or other identifying particular such as a fingerprint, retina print or body sample.

15 Section 32 of the FOI Act concerns access to a document that contains personal information about an individual (referred to as the 'third party') other than the access applicant. The section provides that the agency is not to give access to a document that contains personal information about a third party unless the agency has taken such steps as are reasonably practicable to obtain the views of the party on whether the document contains matter that is exempt matter under cl 3, sch 1 to the FOI Act. Where the views of a person are obtained under s 32, that person is to be regarded as being the third party for the purposes of div 5, pt 2 and pt 4. Division 5 of pt 2 of the FOI Act provides for internal review of decisions relating to access and pt 4 provides for external review and appeals.

16 An external review of an agency's decision is commenced by a complaint being lodged at the office of the Information Commissioner. A complaint may be made by a third party against an agency's decision to give access to a document: s 65(1)(a) and (2)(b) of the FOI Act.

17 Section 68(1) requires the Commissioner to notify the agency of any complaint made under div 3, pt 4 of the FOI Act. Section 68(2) provides that the agency must notify the access applicant if the complaint was made by a third party and it 'relates to an access application'.

18 Section 69 provides for who are to be the parties to a complaint:

(1) The complainant and the agency are parties to every complaint.

(2) In the case of a complaint made by an access applicant any third party is entitled to be joined as a party on giving written notice to the Commissioner.

(3) In the case of a complaint made by a third party the access applicant is entitled to be joined as a party on giving written notice to the Commissioner.

(4) Without limiting section 70(1), if the Commissioner is satisfied that another person or body might be affected by a decision made on the complaint the Commissioner may obtain information or receive submissions from that person or body.

19 Division 5 pt 4 of the FOI Act concerns appeals to this court. Section 85(1) provides that an appeal lies to this court 'on any question of law arising out of any decision of the Commissioner on a complaint relating to an access application'. Section 85(6) provides that an appeal under s 85(1) may be brought by 'any party to the complaint'. Section 86 contains further provisions relating to the parties to an appeal:

(1) The agency is a party to an appeal even if it is neither the appellant nor the respondent.

(2) Any other party to the complaint is entitled to be joined as a party to an appeal under section 85(1) … in accordance with Rules of Court.

20 Division 6, pt 4 contains general provisions relating to proceedings in the Supreme Court, including appeals commenced under s 85. Those provisions are not relevant to the Access Applicant's application to be joined as a party to the appeal except for s 93. That section provides that '[t]o the extent that it is not prescribed by this Act or Rules of Court the procedure on review proceedings may be determined by the Supreme Court'.

The parties' submissions

21 The applicant was content to leave to the court the question of whether the Access Applicant should be joined as a party to the appeal. However, DAFWA opposed the application contending that the FOI Act prescribed who may be a party to an appeal to the Supreme Court and the statutory scheme did not provide for a person in the position of the Access Applicant to be a party to the appeal (respondent's submissions, par 32).

22 In summary, DAFWA submitted that the effect of s 85 and s 86 of the FOI Act is that the parties to an appeal are (a) the party to the complaint who commenced the appeal; (b) the agency; and (c) any other party to the complaint who is entitled to be joined as a party to an appeal under s 85(1) in accordance with the Rules of the Supreme Court. Although the Access Applicant could have been joined as a party to the complaint, she did not seek to be joined. Accordingly, she was not a party to the complaint and she could not, so DAFWA submitted, apply to be joined as a party to the appeal under s 86(2).

Notification of the appellant's complaint

23 Section 68(2) of the FOI Act casts an obligation on the agency to notify an Access Applicant that a complaint has been made to the Information Commissioner relating to an access application. The Access Applicant can then seek to be joined as a party to the complaint.

24 DAFWA claimed that it had notified the Access Applicant about the appellant's complaint in the Access Notice. The notification was said to have been contained in par 8 of the notice. That paragraph appeared under the heading 'The facts' and stated:

On 12 December 2013 one third party lodged a written complaint to the Information Commissioner (WA) requesting an 'external review' of the Department decision. The Department will defer giving you access to the disputed documents at this time in order for the third party to exercise their rights of review under the FOI Act.

25 In my view, DAFWA did not comply, in substance, with the obligation imposed by s 68(2), by that statement or by the Access Notice. There are several reasons for that conclusion:

(a) The purported notification was contained in a document that notified the Access Applicant about DAFWA's decision on her Access Application. The Access Notice was headed, 'Notice of decision under s 30 Freedom of Information Act 1992'. It was not a document that was specifically directed to the fact that the appellant had lodged a complaint with the Information Commissioner and there was nothing in its form that expressly indicated that the document was intended to fulfil a second purpose - to discharge a statutory obligation owed by DAFWA to the Access Applicant. That is especially as the purported notification was contained in a paragraph that was apparently intended to merely recite the background to DAFWA's decision on the Access Application.

(b) The Access Notice did not inform the Access Applicant of her right to become a party to the complaint nor did it alert her to any consequence that might follow from her failure to become a party. What an agency must do to comply with the obligation imposed by s 68(2) is to be assessed by reference to the entitlements conferred by s 69 of the FOI Act on an access applicant and a third party.

(c) The Access Notice referred to three third parties, two of whom had sought an internal review of DAFWA's initial decision. The notice did not disclose the identity of the third party who had lodged the complaint, leaving the Access Applicant to have to make further inquiries of the Information Commissioner to identify the complaint.

26 It is not surprising that, in those circumstances, the Access Applicant did not apply to be joined as a party to the appellant's complaint to the Information Commissioner. The question now raised by DAFWA is whether the Access Applicant can be joined to the appellant's appeal in circumstances where she was not, in effect, provided with the notice required by s 68(2) of the FOI Act.

Determination of the application

27 The appeal provisions of the FOI Act assume that the access applicant will have been notified of a complaint by a third party in such a way as to enable the access applicant to exercise the entitlement conferred by s 69. The Act is understandably silent on what should happen if the agency fails to give the notice required by s 68(2). However, it is apparent from s 93 of the FOI Act that the Rules of the Supreme Court 1971 (WA) are intended to apply to appeals commenced under the FOI Act. In my view, the Rules of the Supreme Court were intended to apply to fill any 'gap' in the procedure for the conduct of an appeal under the Act.

28 Order 18 r 6(2)(b) provides that at any stage of the proceedings in any cause or matter the court may, on such terms as it thinks just and either of its own motion or an application, order that any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated to be added as a party.

29 Section 4(1) of the Supreme Court Act 1935 (WA) defines the term 'cause' to include 'any action, suit or other original proceeding between a plaintiff and defendant and any criminal proceeding'. The section further defines the word 'matter' to include 'every proceeding in the court, not in a cause'. The Rules of the Supreme Court are subsidiary legislation within the meaning of that term in s 167(1) of the Supreme Court Act 1935 (WA). Subsection 44(1) of the Interpretation Act provides that definitions in an Act apply to subsidiary legislation made under that Act. It follows that words and expressions defined by the Supreme Court Act have the same respective meaning in the Rules of the Supreme Court.

30 In Huntingdale Village Pty Ltd as Receiver and Manager of Huntingdale Village Pty Ltd v Corrs Chambers Westgarth [2013] WASCA 275, the Court of Appeal cited with approval the observation of Murray J in Temwood Holdings Pty Ltd v Western Australia Planning Commission [2001] WASCA 354; (2001) 25 WAR 311 [19], that nothing could be more all-encompassing than the definition of 'matter' in s 4(1) of the Supreme Court Act [33]. Consequently, an appeal under the FOI Act is a 'matter' for the purpose of O 18 r 6(2).

31 The question of whether a person is a 'necessary' party to proceedings is generally determined by the 'direct effect' test identified by Lord Diplock in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52. His Lordship said that '[a] better way of expressing the test is: will his rights against or liabilities to any part of the action in respect of the subject matter of the action be directly affected by any order which may be made in the action' (and see Morrell v Mercantile Mutual Insurance (Australia) Ltd [1999] WASCA 250; (1999) 21 WAR 451 and Martin Bruce Jones as Receiver and Manager of Miami Waterfront Developments Pty Ltd v Miami Waterfront Developments Pty Ltd [2012] WASC 483 on the history and application of the test stated by Lord Diplock in Pegang Mining).

32 An access applicant has an obvious interest in the outcome of a complaint lodged by a third party with the Information Commissioner and any subsequent appeal. The right of an access applicant to access information the subject of an access application will obviously be affected by the determination of the complaint and the outcome of any appeal from a decision on the complaint - the access applicant may wish to defend the Commissioner's decision or to appeal from it if it restricts access. Those matters are expressly, and necessarily, recognised by the external review and appeal provisions of the FOI Act. The Access Applicant satisfies the requirements of O 18 r 6(2)(b) of the Rules of the Supreme Court and her application to be joined as a party to the appeal will be allowed.