JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: PEARLMAN -v- WA A/INFORMATION COMMISSIONER [2019] WASC 257
CORAM: SMITH J
HEARD: 10 JUNE 2019
DELIVERED : 19 JULY 2019
FILE NO/S: GDA 17 of 2018
BETWEEN: PATRICK W PEARLMAN
Appellant
AND
WA A/INFORMATION COMMISSIONER
First Respondent
THE UNIVERSITY OF WESTERN AUSTRALIA
Second Respondent
ON APPEAL FROM:
Jurisdiction : OFFICE OF THE INFORMATION COMMISSIONER
Coram: ACTING INFORMATION COMMISSIONER C FLETCHER
File Number : F2018292
Catchwords:
Freedom of information - Refusal to deal with access application - Whether Information Commissioner mischaracterised the agency's decision to refuse access to documents - Unreasonable burden upon agency - Jurisdictional error - Error of fact causally giving rise to error of law - Whether Information Commissioner erred in her determination that there was nothing remaining in dispute
Freedom of information - Statutory construction - Whether Information Commissioner made a 'decision' within the meaning of s 85(1) of the Freedom of Information Act 1992 (WA) - Whether Information Commissioner has power to 'remit' an external review complaint to an agency and instruct the agency to 'deal with' the access application
Procedural fairness - Apprehended bias - Whether decision of the Information Commissioner invalid on grounds of bias - Whether membership of agency sports team could on the facts give rise to a reasonable apprehension of bias in ordinary informed member of public
Review under s 85(1) of the Freedom of Information Act 1992 (WA) - Whether court can engage in merits review - Whether court can substitute decision of Information Commissioner with decision of the court - Whether court can refer to referee
Legislation:
Freedom of Information Act 1982 (Vic), s 50(4)
Freedom of Information Act 1992 (WA), s 12, s 20, s 31, s 33, s 63(1), s 64, s 65, s 67(1), s 70, s 71, s 72, s 73, s 75, s 76, s 83, s 85(1), s 89, s 91, s 92, s 93
Rules of the Supreme Court 1971 (WA), O 35
Supreme Court Act 1935 (WA), s 50
Result:
Information Commissioner's decisions vitiated by jurisdictional error
Remitted to Information Commissioner for determination
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| First Respondent | : | Ms C Taggart |
| Second Respondent | : | Mr R F Humphreys |
Solicitors:
| Appellant | : | In person |
| First Respondent | : | In person |
| Second Respondent | : | Minter Ellison |
Case(s) referred to in decision(s):
Apache Northwest Pty Ltd v Department of Mines and Petroleum [No 2] [2011] WASC 283
Bulong Operations Pty Ltd v Computercorp Pty Ltd [2005] WASC 147
Department of State Development v Latro Lawyers [2016] WASC 108
Dimes v Grand Junction Canal Co (1852) 3 HL Cas 759; (1852) 10 ER 301
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 525
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 93 ALJR 629
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- Case
- [2019] WASC 257
- Decision Date
CaseChat Overview and Summary
The court found that the Acting Information Commissioner mischaracterised the agency's decision and failed to properly address the complaint. The Acting Information Commissioner's decision to remit the complaint to the agency was considered a jurisdictional error, as it did not align with the statutory requirements of the Freedom of Information Act. The Acting Information Commissioner also erred in concluding that there was nothing remaining in dispute because she did not properly consider the appellant's complaint regarding the agency's refusal to grant access to documents on the basis that they were exempt from disclosure. Furthermore, the court held that the Acting Information Commissioner did not have the authority to instruct the agency to 'deal with' the access application in the context of an external review, which was another jurisdictional error. Finally, the court determined that the Acting Information Commissioner's decision to stop dealing with the complaint was outside her jurisdiction and thus invalid.
As a result, the court quashed the Acting Information Commissioner's decision to stop dealing with the complaint and ordered that the complaint be remitted to the Acting Information Commissioner for reconsideration in accordance with the law. The court also directed that the Acting Information Commissioner consider the merits of the complaint, including the agency's refusal to grant access to documents on the basis that they were exempt from disclosure, and make a fresh decision in writing.
Orders
Orders of the court
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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
After setting out what the Acting Information Commissioner regarded as relevant background facts (which substantially referred to a 'decision' by the University to deal with the appellant's access application pursuant to s 20 of the FOI Act) the Acting Information Commissioner made the following findings:Consideration37.In considering a claim under section 20, it is necessary to decide whether an agency's decision to refuse to deal with a matter is justified. In doing so, I am required to consider information about the amount of work involved in dealing with the application and the resources of the agency required to deal with the application.38.Given the number of documents in dispute and the resources the agency requires to deal with the access application, I consider that the agency could have decided to refuse to deal with the access application under section 20.39.However, given the complainant's reduction in the scope of his access application, the agency withdrew its claim under section 20 that to deal with the application would divert a substantial and unreasonable portion of its resources from its other operations and has now agreed to deal with the application.40.As the agency agreed to deal with the application, there is nothing remaining in dispute in relation to section 20 for me to determine.41.Under section 67(l)(b), I may decide to stop dealing with a complaint, as follows:The Commissioner may, at any time after receiving a complaint, decide not to deal with the complaint, or to stop dealing with the complaint, because -(b)it is frivolous, vexatious, misconceived or lacking in substance.CONCLUSION42.Given the matters set out above, I find that the complaint is now lacking in substance and I have decided to stop dealing with it pursuant to section 67(1)(b) of the FOI Act. The amended grounds of appeal are as follows:[22][22] Amended appeal notice, filed 7 March 2019.Errors of LawThe first respondent committed the following errors of law or jurisdictional errors in her 26 October 2018 and/or 8 February 2019 decisions (or actions) under appeal:l.The first respondent's 26 October 2018 and/or 8 February 2019 decisions, including prior decisions incorporated in those decisions, were misconceived and otherwise outside or in excess of her jurisdiction and were made without lawful authority because they proceeded from her errant view that:(i)the agency decision(s) to which the appellant's 1 December 2016 complaint for external review related was a 'refusal to deal' under s 20 of the FOI Act and not a decision refusing to grant access on the basis documents sought were exempt from disclosure, and(ii)that the matter could be resolved by remittal to the agency if it agreed 'to deal' with the appellant's original access application.2.The first respondent's 26 October 2018 and/or 8 February 2019 decisions, including prior decisions incorporated in those decisions, were misconceived and otherwise outside or in excess of her jurisdiction and were made without lawful authority in that they were in contravention of the FOI Act generally, including ss 63, 71 and 76 of that legislation because:(i)the first respondent failed to discharge her main function to deal with the complaint, made under Part 4 of the FOI Act, about the agency decision made in respect of the appellant's access application;(ii)the first respondent exceeded or failed to act within her authority under s 71 of the FOI Act by remitting the matter to the second respondent for a fresh decision and characterising that action as 'negotiation' or 'conciliation'; and(iii)the first respondent failed to act in accordance with her duty under s 76 of the FOI Act to make a decision, in writing, regarding the agency decision to which the appellant's external review complaint related.3.The first respondent's 26 October 2018 and/or 8 February 2019 decisions, including prior decisions incorporated in those decisions, were misconceived in that the respondent asked the wrong question and identified the wrong issue in her application of the FOI Act, including ss 71 and 76 of that legislation, specifically:(i)whether the decision to which the appellant's complaint for external review related was a 'refusal to deal' under s 20 of the FOI Act;(ii)whether the second respondent could, in the context of an external review under Part 4 of the FOI Act, 'refuse to deal' after having twice previously refused access on grounds the documents sought were exempt from disclosure; and(iii)whether the appellant's complaint for external review could be resolved by remittal to the second respondent for a fresh decision notwithstanding the appellant's objections to that course of action.4.The first respondent's 26 October 2018 and/or 8 February 2019 decisions, including prior decisions incorporated in those decisions, were otherwise manifestly unreasonable.5.The first respondent's 26 October 2018 and/or 8 February 2019 decisions, including prior decisions incorporated in those decisions, were infected by reasonably apprehended bias and denied the appellant procedural fairness.6.The first respondent's 8 February 2019 decision was outside or in excess of her jurisdiction and was made without lawful authority in that it was premised on the second respondent's 7 December 2018 purported notice of decision, which the second respondent had no jurisdiction or authority to make once external review proceedings had begun under Part 4 of the FOI Act.