Jackson v Residential Tenancies Authority
[2024] QCATA 31
•21 March 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Jackson v Residential Tenancies Authority [2024] QCATA 31
3131PARTIES:
KERRY JACKSON (applicant/appellant)
v
RESIDENTIAL TENANCIES AUTHORITY (respondent)
APPLICATION NO/S:
APL176-23
MATTER TYPE:
Appeals
DELIVERED ON:
21 March 2024
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Judicial Member D J McGill SC
ORDERS:
1. The appeal is dismissed.
2. The decision of the Information Commissioner of 23 May 2023 is confirmed.
3. If the respondent wants to apply for an order for costs of the appeal, it must file submissions in writing in support of the order sought, and give a copy of them by email to each of the associate to the Deputy President of the Tribunal and the appellant, within 21 days from the date of this decision.
4. If no such submissions are filed, there will be no order as to costs of the appeal.
5. If such submissions are filed, the appellant may file any submissions in writing in opposition to such an order, and give a copy of them to by email to each of the associate to the Deputy President and the lawyer for the respondent, within 21 days of the receipt of such submissions.
6. If submissions as to costs are filed, the question of costs will be decided by the Appeal Tribunal without an oral hearing, under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32.
7. Liberty to apply as to costs.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – appeal from decision of the Information Commissioner under the Information Privacy Act 2009 (Qld) – where appeal solely on question of law – whether question of law raised by the appellant
Information Privacy Act 2009 (Qld) s 132
Adani Mining Pty Ltd v Information Commissioner [2020] QCATA 52
Allen v Queensland Building Services Authority [2024] QCA 24
Maksymiuk v Savage [2015] QCA 177
Powell v Queensland University of Technology [2018] 2 Qd R 234
Sibelco v Right to Information Commissioner [2017] QCATA 59
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Applicant:
Self represented
Respondent:
K Pitman of Crown Law
REASONS FOR DECISION
This is an appeal from a decision of the Information Commissioner. On 31 August 2022 the appellant applied to the respondent under the Information Privacy Act 2009 (Qld) (“the Act”) for access to information about her supplied in connection with certain investigations.[1] On 10 October 2022 the respondent refused to disclose 241 pages of documents which met the terms of the request, on the basis that disclosure of the documents would be on balance contrary to the public interest.
[1]For convenience I shall refer to Ms Jackson as the appellant and the Residential Tenancy Authority as the respondent.
On 19 October 2022 the appellant sought external review of that decision by the Office of the Information Commissioner. On 23 May 2023 the Information Commissioner affirmed the decision of the respondent. On 15 June 2023 the appellant appealed to the Appeal Tribunal against the decision of the Information Commissioner.
By the Act s 132 the appellant has a right to appeal to the Appeal Tribunal from the decision of the Commissioner, but only on a question of law. The review by the Commissioner is a full merits review, but there is no appeal to the Tribunal from the decision of the Commissioner on a question of fact, or a question of mixed fact and law. It follows that the appeal is in the nature of judicial review.[2] The appeal must be “on” a question of law, not just involve a question of law.[3]
[2]Powell v Queensland University of Technology [2018] 2 Qd R 234 at [44], [55].
[3]Allen v Queensland Building Services Authority [2024] QCA 24 at [19].
Background
The appellant was at the relevant time the agent for the owner or owners of residential properties which were tenanted under residential tenancy agreements. At different times at least two tenants in the properties complained to the respondent that the appellant was in breach of her obligations, in one case to provide a tenant with reasonable peace, comfort and privacy in using premises.[4] As result the respondent conducted investigations which apparently involved obtaining information from other tenants of properties managed by the appellant. According to the appellant, at least one of the complaints was dismissed by the respondent.[5]
[4]Under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 183(2).
[5]Decision of the Commissioner [16].
In principle when an appeal is only on a question of law, the appellant should identify the question of law the subject of the appeal.[6] Where the appellant is a litigant in person, it is unrealistic to expect her to be able to formulate properly a question of law, but the Tribunal cannot give a party legal advice. It is sometimes possible to identify a question of law in the grounds raised by an appellant litigant in person, or in submissions in support of the appeal, but I consider it is not open for the Tribunal to identify some other question of law, and decide the appeal on that basis, particularly if the ground has not been dealt with by the respondent in submissions.
[6]Maksymiuk v Savage [2015] QCA 177 at [5].
Grounds of appeal
In the Application for Leave to Appeal or Appeal, the appellant listed five grounds, although the first just set out the decision of the Commissioner. The remaining four were as follows:
1.Paras 14 and 15 of the Reasons for Decision concede that allowing disclosure of the material to the [appellant] should perhaps be allowed on the basis of procedural fairness.
2.Para 16 of the Reasons for Decision makes the erroneous finding that “I am not aware that the [respondent] made any decision adverse to the [appellant] in connection with the complaints.
3.That erroneous finding was contradictory to the many adverse decisions of the respondent, relating to the [appellant] – see details thereof at annexure A hereto.
4.In denying the [appellant] access to the material made against her by her accusers, the respondent is denying her natural justice.
Consideration
The short answer to the first of these is that paragraphs 14 and 15 of the reasons for decision do not concede that disclosure of the material should be allowed, with or without a “perhaps”. Paragraph 14 summarised the submissions of the appellant, and in paragraph 15 the Commissioner listed the public interest factors favouring disclosure which arose from the submissions. One such factor was that “disclosure could reasonably be expected to reveal the reasons for decisions made by the [respondent] and any background or contextual information that informed the decision.” That shows that the Commissioner was conscious of the relevance of this factor, and that it was subsequently taken into account in the balancing exercise performed, as required by the Act.
The second and third of those grounds can be conveniently dealt with together. On their face, they allege an error on the part of the Commissioner, but it is an error of fact. Further, the appellant seeks to show that the factual error was an error by relying on additional material, not before the Commissioner. There are two further problems with that. First, what the Commissioner said about an absence of a decision adverse to the appellant was qualified by the words “on the material before me”, so it is not falsified by showing that there was other material not before the Commissioner which was potentially relevant to that issue. As well, the Appeal Tribunal can receive additional evidence only on a very limited basis.
In the first place, the additional evidence must be relevant to a question of law on the appeal. Thomas J, the then President of the Tribunal, said in Sibelco v Right to Information Commissioner [2017] QCATA 59, at [23]:
The inclusion of section 119(5) allows the Appeal Tribunal to have reference to evidence or arguments, which may not have been before the Information Commissioner, in determining whether there is any error of law in the decision by the Information Commissioner.
It does not follow that there is an unrestricted right to advance additional evidence or new arguments on appeal. In Adani Mining Pty Ltd v Information Commissioner [2020] QCATA 52 I referred to this passage at [26], and said at [27] that the evidence which was admissible on this basis was evidence which would show an error of law in the decision. This follows from the fact that the appeal is limited to one on a question of law only. For example, evidence could be put before the Tribunal to show that there was a breach of the rules of natural justice by the Commissioner, but that is not what is alleged here. Evidence which is relevant only to the decision of the Commissioner on a question of fact cannot be relevant to the outcome of an appeal, because it will not be relevant to a question of law. Even if it could be shown by additional evidence that a decision on an issue of fact was wrong, that would not show an error of law by the Commissioner, because it would not show that the decision on that issue was not open as a matter of law on the evidence before the Commissioner.
In this matter as well, producing additional evidence relevant to the question does not demonstrate that the decision on this point was not open as a matter of law on the evidence before the Commissioner. It follows that no question of law is involved, and there is no substance to these grounds.
Apart from all that, I have looked at the additional material, and nothing in it falsifies the finding made by the Commissioner, even if it were taken into account. It does not show a decision adverse to the appellant. It suggests that she was treated by the respondent with consideration.
The fourth of the grounds alleges a breach of natural justice, but on the part of the respondent. If there had been a breach of natural justice on the part of the Commissioner, that would have been an error of law, and hence an appeal on whether there had been such a breach would be an appeal on a question of law. But the position is different if what is alleged is a breach of natural justice by the respondent. Because of the existence of a full merits review, by the Commissioner, of the decision of the respondent as to the disclosure of documents under the Act, it is not presently relevant if there was any breach of natural justice on the part of the respondent in relation to the decision not to release documents under the Act to the appellant. There is no indication of any breach of natural justice by the Commissioner.
It appears however that that is not the basis of the complaint on the part of the appellant. As I understand her position, what she is complaining about is that the respondent breached natural justice in making the decisions on the complaints made to it against her. But that is not a relevant issue in this proceeding. This case is about whether the appellant was entitled to release of the documents in question under the Act, not about whether there was an obligation on the part of the respondent to provide the documents to her in the course of its investigation of the complaints. That issue does not arise in this proceeding, either before the Commissioner, or before the Tribunal, so it cannot give rise to any error of law on the part of the Commissioner.
If the appellant’s point was that the Commissioner failed to give sufficient weight to this factor in performing the balancing exercise under the Act, that does not give rise to an appeal on a question of law. No question of law is raised by a ground of appeal concerning the amount of weight given by the Commissioner to a particular factor. It follows that the matter raised in the fourth ground is not a relevant issue, and there is no substance to that ground.
The appellant has not shown that there was any error of law on the part of the Commissioner, and the appeal must be dismissed. I should acknowledge the detailed and helpful submissions provided by the lawyer for the respondent. The decision of the Appeal Tribunal is as follows:
1. The appeal is dismissed.
2. The decision of the Information Commissioner of 23 May 2023 is confirmed.
3. If the respondent wants to apply for an order for costs of the appeal, it must file submissions in writing in support of the order sought, and give a copy of them by email to each of the associate to the Deputy President of the Tribunal and the appellant, within 21 days from the date of this decision.
4. If no such submissions are filed, there will be no order as to costs of the appeal.
5. If such submissions are filed, the appellant may file any submissions in writing in opposition to such an order, and give a copy of them by email to each of the associate to the Deputy President and the lawyer for the respondent, within 21 days of the receipt of such submissions.
6. If submissions as to costs are filed, the question of costs will be decided by the Appeal Tribunal without an oral hearing, under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32.
7. Liberty to apply as to costs.
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