McEwan v Cloudsdale

Case [2023] QCA 122

SUPREME COURT OF QUEENSLAND

CITATION:

McEwan v Cloudsdale & Ors [2023] QCA 122

PARTIES:

JULIE McEWAN
(appellant)
v
CATE CLOUDSDALE
(first respondent)
OFFICE OF THE AUSTRALIAN INFORMATION COMMISSIONER
(second respondent)
PAUL VENUS
(third respondent)
ANGELENE FALK
(fourth respondent)

FILE NO/S:

Appeal No 14926 of 2022
Appeal No 612 of 2023
SC No 13944 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 24 November 2022 (Williams J); [2022] QSC 284 (Burns J)

DELIVERED ON:

9 June 2023

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2023

JUDGES:

Flanagan and Boddice JJA and Ryan J

ORDERS:

In Appeal No 14926 of 2022:

1.   Leave to adduce further evidence be refused.

2.   Leave to file the appellant’s amended outline dated 16 May 2023 be refused.

3.   The appeal be dismissed.

4.   The appellant pay the respondents’ costs of the appeal, to be assessed on the standard basis.

In Appeal No 612 of 2023:

1.   Leave to file the Notice of Contention be refused.

2.   Leave to file the appellant’s amended outline dated 16 May 2023 be refused.

3.   The appeal be dismissed.

4.   The appellant pay the respondents’ costs of the appeal, to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – IRREGULARITIES AND NON-COMPLIANCE WITH RULES – where the appellant made two unsuccessful privacy complaints to the Australian Information Commissioner against the Australian Taxation Office – where the appellant commenced proceedings in the Federal Court of Australia seeking judicial review of the complaints – where the appellant filed an unsuccessful interlocutory application in that Court for the disclosure of a preliminary determination letter (“the document”) related to the complaints – where the appellant raised concerns as to the authenticity of the document after receiving an electronic version of the document with a date stamp of January 2001 – where the appellant then filed an originating application in this Court seeking an order that the respondents verify the authenticity of the document – where, at the first directions hearing, the third respondent indicated the document could be provided on a USB stick to the appellant – where a number of other directions were made at that directions hearing, not including the provision of the document to the appellant – where the appellant filed an interlocutory application seeking disclosure of the document “in accordance with the directions of Justice Williams” (“the first primary judge”) – where the first primary judge found there was no direction for disclosure and, therefore, no failure to comply with a direction under rule 443(d) of the Uniform Civil Procedure Rules 1999 (Qld) – where the appellant accepts, on appeal, there was no formal direction for the production of the document, but submits the first primary judge ought to have ordered the third respondent, as an officer of the Court, comply with the offer to produce the document – whether the appellant is entitled to preliminary disclosure on an interlocutory…

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McEwan v Cloudsdale [2023] QCA 122
Case
[2023] QCA 122
Decision Date

CaseChat Overview and Summary

In the Court of Appeal, the appellant has lodged two appeals against the decisions of Burns J, who set aside the originating application on the basis that it constituted an abuse of process. The appellant had commenced proceedings seeking an order that the respondents verify the authenticity of a preliminary determination letter related to two complaints against the Australian Taxation Office. The appellant claimed that the third respondent had offered to provide an electronic version of the preliminary determination letter at a directions hearing, and that offer ought to have been enforced when the document was not provided. The appellant also appealed against the setting aside of the originating application as an abuse of process, on the basis that it was brought to enable the prosecution of an appeal in the Federal Court of Australia. The appeals raise questions concerning the inherent jurisdiction of the Court to compel an offer made by a party, and the circumstances in which a proceeding may be set aside as an abuse of process.

The Court considered whether there was any direction for the production of the preliminary determination letter, and whether the appellant was entitled to disclosure on an interlocutory basis. The Court found that there was no formal direction for the production of the document, but also found that the appellant had not demonstrated that the offer by the third respondent ought to have been enforced. The Court held that the first primary judge was not in error in finding there was no direction for disclosure, and therefore no failure to comply with a direction under rule 443(d) of the Uniform Civil Procedure Rules 1999 (Qld). The Court also considered whether the originating application ought to have been set aside as an abuse of process. The Court found that the appellant had pursued disclosure of the same electronic file and associated metadata in the Federal Court proceeding, which was currently under appeal, and had made plain the singular purpose for commencing separate proceedings was to enable the prosecution of her appeal in the Federal Court. The Court held that the second primary judge was not in error in setting aside the originating application as an abuse of process.

Accordingly, in Appeal No 14926 of 2022, the Court refused leave to adduce further evidence, leave to file an amended outline, and dismissed the appeal. The Court also ordered the appellant to pay the respondents’ costs of the appeal. In Appeal No 612 of 2023, the Court refused leave to file the Notice of Contention and an amended outline, and dismissed the appeal. The Court also ordered the appellant to pay the respondents’ costs of the appeal.

Orders

Orders of the court

In Appeal No 14926 of 2022:

1. Leave to adduce further evidence be refused.

2. Leave to file the appellant’s amended outline dated 16 May 2023 be refused.

3. The appeal be dismissed.

4. The appellant pay the respondents’ costs of the appeal, to be assessed on the standard basis.

In Appeal No 612 of 2023:

1. Leave to file the Notice of Contention be refused.

2. Leave to file the appellant’s amended outline dated 16 May 2023 be refused.

3. The appeal be dismissed.

4. The appellant pay the respondents’ costs of the appeal, to be assessed on the standard basis.

Background

Background to the litigation

The first and fourth respondents seek an extension of time in which to file a Notice of Contention in the appeal against Burns J.Background In or about November 2020, the appellant made a privacy complaint to the Australian Information Commissioner (“AIC”) against the Australian Taxation Office (“ATO”) and one of its officers. The complaint was that that officer had disseminated the appellant’s protected information, received under section 353-10 of the Taxation Administration Act1953 (Cth) (“TAA”), to a specified organisation and that the dissemination was false and vexatious. On 10 March 2022, the first respondent issued a finding, pursuant to section 41 of the Privacy Act1988 (Cth), that the AIC would not investigate the appellant’s complaint, because the ATO had not breached the appellant’s privacy. Thereafter, the appellant made a further complaint against the same officer, alleging he had disseminated the appellant’s tax audit “compulsory interview” to a witness, in breach of section 353-25 of the TAA. That further complaint was the subject of a determination by the first respondent that the officer could lawfully disseminate compulsorily acquired material to any person, if a taxpayer was under an investigation. In May 2022, the appellant filed two applications in the Federal Court of Australia, seeking judicial review of the decisions for the two complaints. On 29 June 2022, the appellant filed an interlocutory application in the Federal Court, seeking, relevantly, orders that a preliminary determination letter of a Mr Tanyous be disclosed, and that the ATO officer the subject of the complaints and another officer be joined in the proceedings. The preliminary determination letter request related to telephone advice the appellant received from Mr Tanyous in January 2022, to the effect that an ATO officer had breached the appellant’s privacy, and that Mr Tanyous would send a copy of the preliminary determination letter once it had been signed off by the first respondent. The appellant’s interlocutory application was determined in the Federal Court on 5 July 2022.[1] Relevantly, Logan J declined to make any order for disclosure of the preliminary determination letter, noting that the appellant had already received disclosure of the document in the affidavit material relied upon by the respondents in those proceedings, and finding that whilst the appellant was entitled to disclosure in the proceeding, she would need to wait and obtain the court record book to see what documents were before the relevant decision-maker.[1]McEwan v Office of the Australian Information Commissioner [2022] FCA 955. The court record book was subsequently prepared for the final hearing of the judicial review applications in the Federal Court on 8 November 2022. Page 639 contained a copy of the preliminary determination letter, which was undated. The appellant raised inconsistencies and irregularities with the document at page 639, in the Federal Court proceeding. The appellant said she had been provided with an electronic version of that preliminary determination letter and that upon opening the electronic document, she obtained differing versions of that document, including a version with a date in the top, right-hand corner of “1 January 2001 at 10:00 am”.

Evidence

Evidence Before The Court

Central to a resolution of both appeals is the contention by the appellant that the third respondent offered to provide an electronic version of the preliminary determination letter for forensic examination, at the directions hearing on 16 November 2022, and that that offer ought to have been enforced when the third respondent did not provide the document to the appellant, subsequent to that hearing.Leave to adduce further evidence The further evidence sought to be adduced by the appellant in respect of the first appeal related to the listing of the appeal in the Federal Court and material obtained from the Microsoft website as to online capabilities, training and listing. None of that material is relevant to a determination of whether Williams J was in error in refusing the appellant’s interlocutory application. That being so, there is no proper basis to grant leave to adduce that further evidence.Leave to file Notice of Contention For the reasons that follow, it is unnecessary to consider the matters sought to be raised in the Notice of Contention. Accordingly, we would refuse leave to file the Notice of Contention.Leave to file appellant’s amended outline On the morning of the appeal hearing, the appellant sought leave to file an amended outline. Having regard to the stage the proceedings had reached, it would be unfair to allow her to do so. Accordingly, we would refuse leave.First appeal The appellant’s contention that the third respondent offered to provide an electronic version of the preliminary determination letter derives from an exchange which took place between Williams J and the respondents during the directions hearing on 16 November 2022, after Williams J had stated that she was not determining the substantive issue in the course of that hearing. The exchange occurred after the appellant advised that she had presented to the respondents a request that they provide a copy of the document and verification of its authenticity, so that there was no need for a final hearing. Williams J asked the respondents to place on the record their positions. The fourth respondent advised that it was simply unable to provide that document because it did not exist; the document sought had only ever been provided to the first respondent, who was the delegate in the complaint that was raised by the appellant, “as a preliminary view and was provided to [the first respondent] as a draft email. That view and that email was never adopted by [the first respondent] and the – the email itself is never sent independently of the email that was sent to her by Mr Timothy Tanyous, as an attachment to the email”.[6][6]AB462/35. The fourth respondent further advised that as that preliminary document had never been sent, the first respondent was unable to explain what had happened to the document for the purposes of it appearing with a date stamp of January 2001, because it could not have had sent information on it because it had never been sent. Following that indication, there occurred the following exchange between Williams J and the third respondent:“HER HONOUR: Has there been any attempt to give [the appellant] an electronic copy of that version of the email which is, in effect, in draft that would include the metadata so that [the appellant], if she so chose, could have someone with technical expertise look at it?[THIRD RESPONDENT]: Your Honour, if I may – sorry, Mr Sharpe. That was given to [the appellant] by me on the 4th of July 2022. The document provided to me by my client, who I was acting for in the Federal Court proceedings, the Information Commissioner, sent me the document. I attached it to the email, I sent it to [the appellant] and to the Australian Government Solicitor, who’s not here but who has informed me, and I’m sure this would be something we would have evidence about if – if it went forward, and I – I want to make an application today for something different. I’ll come to that in a moment, but when you – I think just to – to put it – the picture clearly, when you open the document in Outlook, it has no date. When you open it in Gmail, it assigned some random date. So all these events happened from 2020 onwards. The document that [the appellant] is talking about has a 20 – was a 2001 date. I had one of my fellow partners at work, for the first time ever today because this was all raised, open it in his Gmail system and it assigned the date 1970. Apparently this is just something that happens when you open an Outlook document in Gmail. That’s all that’s happened here.HER HONOUR: So there’s – hence my question though. If it was put on a USB in its purely native format and [the appellant] accessed that, she would see it in the closest form, and in its original document, to what was on the computer screen when it was received as a draft?[THIRD RESPONDENT]: And I can do two things. I have the USB because we anticipated that may have been one of the questions, and I actually have my computer, where I could open it up and show her ---HER HONOUR: Well ---[THIRD RESPONDENT]: --- the email.HER HONOUR: --- it might be that it can be given to [the appellant] because it … also might be that she wanted to have somebody forensically look at it, then that was – it’s a matter for her but that is – that might be the closest thing to the original document including the metadata.”

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The respondents submit that Burns J did not err in setting aside the originating proceeding, as it was an abuse of process for the appellant to commence separate proceedings in this Court for the production of a document, for the purposes of enabling the prosecution of her appeal in the Federal Court.Consideration Central to a resolution of both appeals is the contention by the appellant that the third respondent offered to provide an electronic version of the preliminary determination letter for forensic examination, at the directions hearing on 16 November 2022, and that that offer ought to have been enforced when the third respondent did not provide the document to the appellant, subsequent to that hearing.Leave to adduce further evidence The further evidence sought to be adduced by the appellant in respect of the first appeal related to the listing of the appeal in the Federal Court and material obtained from the Microsoft website as to online capabilities, training and listing. None of that material is relevant to a determination of whether Williams J was in error in refusing the appellant’s interlocutory application. That being so, there is no proper basis to grant leave to adduce that further evidence.Leave to file Notice of Contention For the reasons that follow, it is unnecessary to consider the matters sought to be raised in the Notice of Contention. Accordingly, we would refuse leave to file the Notice of Contention.Leave to file appellant’s amended outline On the morning of the appeal hearing, the appellant sought leave to file an amended outline. Having regard to the stage the proceedings had reached, it would be unfair to allow her to do so. Accordingly, we would refuse leave.First appeal The appellant’s contention that the third respondent offered to provide an electronic version of the preliminary determination letter derives from an exchange which took place between Williams J and the respondents during the directions hearing on 16 November 2022, after Williams J had stated that she was not determining the substantive issue in the course of that hearing. The exchange occurred after the appellant advised that she had presented to the respondents a request that they provide a copy of the document and verification of its authenticity, so that there was no need for a final hearing. Williams J asked the respondents to place on the record their positions. The fourth respondent advised that it was simply unable to provide that document because it did not exist; the document sought had only ever been provided to the first respondent, who was the delegate in the complaint that was raised by the appellant, “as a preliminary view and was provided to [the first respondent] as a draft email. That view and that email was never adopted by [the first respondent] and the – the email itself is never sent independently of the email that was sent to her by Mr Timothy Tanyous, as an attachment to the email”.[6][6]AB462/35. The fourth respondent further advised that as that preliminary document had never been sent, the first respondent was unable to explain what had happened to the document for the purposes of it appearing with a date stamp of January 2001, because it could not have had sent information on it because it had never been sent.