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

1. 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. 

2. 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 60, which gives the Tribunal a power to make a declaration in a proceeding in lieu of or in addition to an order it could make in the proceeding, provided the Tribunal is constituted by a judicial member. The IC relied on the reasoning in Walker Group Holdings Pty Ltd v Queensland Information Commissioner (No 2) [2021] QCATA 84, and noted that in Stiles v Information Commissioner [2021] QCATA 152 an order was made that the IC be removed as a party to that proceeding.

3. Neither the appellant nor the second respondent opposed the making of the order sought.  The appellant said that the IC was made a party because he believed that that was the standard practice.  It is true that, prior to the decision in Walker Group Holdings (supra), it was usual for the IC to be made a party to an appeal under the Act s 132, possibly because of a belief that the QCAT Act s 40(1)(b) applied; it does not, as that applies to the review jurisdiction, not to the appeal jurisdiction. So far as I know, the issue was not raised before Walker Group Holdings (supra).  I see no reason to depart from what I said in that matter, and adopt that reasoning.  There has been no particular reason shown as to why that approach should not apply in the present case.  Accordingly, the IC should not be a party to this proceeding.

4. I consider however that the appropriate order to make is that the first respondent be removed as a respondent in this proceeding, the order made in Stiles (supra).  Because the first respondent was named as such in the application filed in the Tribunal by the appellant, the first respondent is currently a party to the proceeding, even if she should not be.  The conclusion in Walker Group Holdings (supra) was that the IC should not have been made a party to the proceeding, not that she was not a party to the proceeding.  I consider therefore that the appropriate order is that made in Stiles (supra), that the first respondent be removed as a party to this proceeding.  I also direct that the proceeding continue against the second respondent as respondent. 

5. Before the first respondent’s application was filed, directions were given by the President of the Tribunal which provided for the first respondent to prepare the appeal book for the Tribunal, and a set of redacted documents for the appellant, and later to file and serve any submissions.  The appeal book should now be prepared by the remaining respondent, who seeks three weeks for that purpose.  Although the appellant complains of the length of time this and related matters have taken, that seems to be a reasonable allowance for what is required.  Other amendments will have to be made to remove references to the IC, and to extend the times fixed for various other steps, largely to accommodate deadlines which have already passed. 

6. The decision of the Appeal Tribunal is therefore as follows:

   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.