NBN Co Limited v Information Commissioner

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

NBN Co Limited v Information Commissioner & Ors [2021] QCATA 40
PARTIES: NBN CO LIMITED

(applicant)

v
INFORMATION COMMISSIONER

(first respondent)

and

SUNSHINE COAST REGIONAL COUNCIL

(second respondent)

and

JIM STRAKER

(third respondent)

APPLICATION NO/S:

APL396 - 16

MATTER TYPE:

Appeals

DELIVERED ON:

30 March 2021

HEARING DATE:

6 March 2018

HEARD AT:

Brisbane

DECISION OF:

Judge Sheridan
ORDERS:

1.   The appeal is allowed;

2.   The matter be remitted to the Commissioner to be dealt with in accordance with these reasons.
CATCHWORDS:

ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – RIGHT OF ACCESS – GROUNDS FOR REFUSAL – where Information Commissioner determined to grant access to information held by the applicant under Right to Information Act 2009 (Qld) (RTI Act) – where the applicant appeals that decision of the Information Commissioner – where applicant argues that the decision is vague and fails to specify what information should be disclosed – whether decision is uncertain – whether decision outside Commissioner’s jurisdiction – whether Commissioner misconstrued Schedule 3, s 8 of the RTI Act – whether decision unreasonable – whether appeal should be allowed

Right to Information Act 2009 (Qld), s 24, s 37, s 47(3)(b), s 80, s 89, s 119, Schedule 3 s 8(1), Schedule 4 s 7(1)(b)
Freedom of Information Act 1982 (Cth), s 45(1)

Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587, considered
Commonwealth of Australia v John Fairfax & Sons Ltd and Ors (1980) 147 CLR 39 considered

Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) & Anor (1987) 14 FCR 434, followed
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10, considered

National Roads and Motorists Association Ltd v Geeson (2001) 40 ACSR 1, followed
NP Generations Pty Ltd v Feneley (2001) 80 SASR 151, followed
Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281, followed
Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [2005] WASC 255, followed
Smith Kline & French Laboratories (Aust) Ltd & Ors v Secretary to the Department of Community Services & Health (1991) 22 FCR 73, followed
Wilson v Ferguson [2015] WASC 15, followed

APPEARANCES & REPRESENTATION:

Applicant:

JN Horton QC, instructed by Clayton Utz Lawyers
First Respondent: T Lake, Office of the Information Commissioner
Second Respondent: No appearance
Third Respondent: No appearance

REASONS FOR DECISION

Background

  1. This appeal is against the decision of the Information Commissioner to grant access to information concerning the “general rollout information” of the NBN network in the Maleny area.[1]

    [1]Straker and Sunshine Coast Regional Council; NBN Co Limited (Third Party) [2016] QICmr 44 (28 October 2016) (Straker).

  2. Jim Straker, a Maleny resident and member of the Maleny Action Group, applied to the Sunshine Coast Regional Council under the Right to Information Act 2009 (Qld) (RTI Act) seeking disclosure of:

    ·     “documents provided to NBN Co Limited (or its representatives) by Council relating to the…

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Details
Case
[2021] QCATA 40
Decision Date

CaseChat Overview and Summary

NBN Co Limited took an appeal against a decision of the Information Commissioner, who had determined to grant access to information held by the applicant under the Right to Information Act 2009 (Qld) (RTI Act). The Information Commissioner had made an order that certain information be disclosed to the applicant, and the applicant sought judicial review of that decision. The primary issue before the court was whether the Information Commissioner's decision was uncertain, whether it was outside the Commissioner’s jurisdiction, whether the Commissioner misconstrued Schedule 3, section 8 of the RTI Act, whether the decision was unreasonable, and whether the appeal should be allowed.

The court found that the Information Commissioner's decision was uncertain as it did not specify what information should be disclosed. The court also found that the Information Commissioner had misconstrued section 8 of the RTI Act. The court held that the Commissioner's decision was outside their jurisdiction and was unreasonable. Therefore, the court allowed the appeal and remitted the matter to the Commissioner to be dealt with in accordance with the court's reasons.

The final orders were that the appeal be allowed and that the matter be remitted to the Commissioner to be dealt with in accordance with the court's reasons. The court did not provide any further details about the specific information that should be disclosed, leaving that decision to the Commissioner.

Orders

Orders of the court

1. The appeal is allowed;

2. The matter be remitted to the Commissioner to be dealt with in accordance with these reasons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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