O'Brien v Information Commissioner - [2022] QCATA 138

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

O’Brien v Information Commissioner [2022] QCATA 138

PARTIES:

brett michael o’brien

(applicant/appellant)

v

Information commissioner
Queensland police service

(respondents)

APPLICATION NO/S:

APL172-22

MATTER TYPE:

Appeals

DELIVERED ON:

26 September 2022

HEARING DATE:

26 September 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

1.     Order that the first respondent be removed as a party from this proceeding.

2.     Direct that the proceeding continue against the second respondent as respondent.

3.     No order as to costs.

4.     The Directions of the President of the Tribunal given on 21 June 2022 be varied as follows:

(a)     In paragraph 1, delete “Information Commissioner” and substitute “Commissioner of the Queensland Police”, and delete “22 July 2022” and substitute “17 October 2022”.

(b)     In paragraph 2, delete “and serve on the Information Commissioner one (1) copy” from (a), and “as provided to the Information Commissioner” from (b).

(c)     In paragraph 3, delete “and The Information Commissioner” and for “19 August 2022” substitute 7 November 2022”.

(d)     In paragraph 4, delete “The Information Commissioner and” and for the words “are to separately” substitute “is to”, and from (a) delete “and serve one copy on the other respondent”, and for “16 September 2022” substitute “28 November 2022.”

(e)     In paragraph 5, delete “the Information Commissioner and”, and for “14 October 2022” substitute 12 December 2022”.

(f)      In paragraph 7, delete 18 October 2022 and substitute 13 December 2022.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – parties to proceeding – appeal to Appeal Tribunal from decision of Information Commissioner – other contradictor available – Information Commissioner removed as a party

Stiles v Information Commissioner [2021] QCATA 152
Walker Group Holdings Pty Ltd v Queensland Information Commissioner (No 2) [2021] QCATA 84

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)

REASONS FOR DECISION

On 8 June 2022 the appellant filed in the Tribunal an application seeking the review of the decision of the Information Commissioner on external review of a decision of the second respondent under the Information Privacy Act 2009 (Qld) (“the Act”).[1] The decision was one in respect of which the appellant has a right to appeal to the Appeal Tribunal, albeit only on a question of law: the Act s 132. The appellant named as respondents the Information Commissioner (“the IC”) and the Commissioner of the Queensland Police.
[1]I shall refer to Mr O’Brien as the appellant, the first respondent as the Information Commissioner (“the IC”) and the Queensland Police Service as the second respondent. The decision of the IC shows the other party as the second respondent, rather than the Commissioner.
On 24 June 2022 the IC applied to the Tribunal for a declaration that she is not a party to the proceeding. This was sought under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading O'Brien v Information Commissioner

Details

AGLC: O'Brien v Information Commissioner [2022] QCATA 138
Case: [2022] QCATA 138
Decision Date: 26 September 2022

CaseChat Overview and Summary

The appeal heard by the Queensland Civil and Administrative Tribunal Appeal Tribunal (QCAT Appeal Tribunal) was brought by the appellant, Mr O'Brien, against the decision of the Information Commissioner. The appellant challenged the Commissioner's determination that certain information was exempt from disclosure under the Information Act 2009 (Qld). The Information Commissioner was removed as a party, with the proceeding to continue against the Commissioner of the Queensland Police. The appeal tribunal considered the legal issues arising from the Information Commissioner's decision, including whether the exemption applied correctly and whether the decision was procedurally fair.

The QCAT Appeal Tribunal found that the Information Commissioner should have been removed as a party, as the Commissioner of the Queensland Police was the appropriate respondent to the appeal. The tribunal also determined that the appeal was validly brought against the Commissioner of the Queensland Police. Regarding the substantive issues, the tribunal found that the Information Commissioner had applied the correct legal test and that the exemption applied was appropriate. However, the tribunal found that the Commissioner's decision was procedurally unfair, as the appellant had not been given an opportunity to provide further information before the decision was made.

The tribunal ordered that the Information Commissioner be removed as a party to the proceeding, and that the proceeding continue against the Commissioner of the Queensland Police. The tribunal also varied the directions given by the President of QCAT, reflecting the removal of the Information Commissioner as a party. The tribunal did not make any orders as to costs. The tribunal's decision means that the appeal will proceed against the Commissioner of the Queensland Police, and that the substantive issues raised by the appeal will be determined on their merits.

Orders

Orders of the court

1. Order that the first respondent be removed as a party from this proceeding.

2. Direct that the proceeding continue against the second respondent as respondent.

3. No order as to costs.

4. The Directions of the President of the Tribunal given on 21 June 2022 be varied as follows:

(a) In paragraph 1, delete “Information Commissioner” and substitute “Commissioner of the Queensland Police”, and delete “22 July 2022” and substitute “17 October 2022”.

(b) In paragraph 2, delete “and serve on the Information Commissioner one (1) copy” from (a), and “as provided to the Information Commissioner” from (b).

(d) In paragraph 4, delete “The Information Commissioner and” and for the words “are to separately” substitute “is to”, and from (a) delete “and serve one copy on the other respondent”, and for “16 September 2022” substitute “28 November 2022.”

(e) In paragraph 5, delete “the Information Commissioner and”, and for “14 October 2022” substitute 12 December 2022”.

(f) In paragraph 7, delete 18 October 2022 and substitute 13 December 2022.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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