Pennisi v The Information Commissioner - [2021] QCATA 98

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Pennisi v The Information Commissioner [2021] QCATA 98

PARTIES: MARCELLO SALVATORE PENNISI

(applicant)

v

THE INFORMATION COMMISSIONER

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondents)

APPLICATION NO/S:

APL339-20

MATTER TYPE:

Appeals

DELIVERED ON:

3 September 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

1. Application for miscellaneous matters filed by the applicant on 28 April 2021 is dismissed.

2. Any question of costs of the application reserved to the Member who hears the substantive appeal.

CATCHWORDS:

ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – REVIEW OF DECISIONS – OTHER STATES AND TERRITORIES – appeal to Tribunal only on question of law – evidence sought to be relied on relevant only to the application of the legal tests – evidence unable to show error of law by decision maker

APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – EVIDENCE NOT AVAILABLE AT HEARING – WHEN NOT ADMISSIBLE – appeal only on question of law – evidence sought to be relied on relevant only to the application of the legal tests – evidence unable to show error of law by decision maker

Right to Information Act 2009 (Qld) s 119.

Adani Mining Pty Ltd v Information Commissioner [2020] QCATA 52
Commissioner for Liquor and Gaming v Farquhar Corporation Pty Ltd [2018] QCA 202
Coulton v Holcombe (1986) 97 CLR 1
Ellis v Queensland Building Services Authority [2010] QCATA 93
Flegg v Crime and Misconduct Commission [2013] QCA 376
Osland v Secretary, Department of Justice (2010) 241 CLR 320
Powell v Queensland University of Technology [2018] 2 Qd R 276
Sibelco v Right to Information Commissioner [2017] QCATA 59
Stafford v Information Commissioner [2019] QCTA 51
Waterford v Commonwealth of Australia (1987) 163 CLR 54
Wilkins v Gunter (No 2) [2021 QCATA 42

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

First Respondent:

Self-represented

Second Respondent:

Holding Redlich Lawyers

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 6 November 2020, the applicant filed in the Tribunal an application to appeal the decision of the first respondent of 9 October 2020 to affirm on external review the decision of the second respondent to refuse access to the applicant to certain information, on the ground that it comprises exempt information. Directions have been given, and it became apparent that the applicant sought to rely on fresh evidence on the appeal. Pursuant to a direction, he filed on 28 April 2021 an application for leave to rely on the fresh evidence he had filed with his submissions in relation to the appeal. It is the application for leave which is before me.

Background

The applicant is a home owner who entered into a contract for building work to be done on a house. The work was covered by the statutory insurance scheme operated by the second respondent under the Queensland Building and…

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.

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Details

Case: [2021] QCATA 98
Decision Date: 3 September 2021

CaseChat Overview and Summary

In the case of Pennisi v The Information Commissioner, the appellant, Mr. Pennisi, sought to appeal against a decision made by the Information Commissioner of Victoria. This decision pertained to a Freedom of Information (FOI) application, where the Commissioner had denied access to certain documents. The appeal was brought before the Administrative Appeals Tribunal (AAT), which had jurisdiction to review the decision of the Information Commissioner.

The primary legal issue before the Tribunal was whether the appellant was entitled to introduce new evidence in his appeal, specifically, evidence that was not available at the time of the original decision by the Information Commissioner. The appellant argued that this new evidence was crucial to demonstrate that the Commissioner had erred in the application of the legal tests under the Freedom of Information Act. The Tribunal needed to determine if the appeal could be based on new evidence and, if so, under what circumstances such evidence could be admitted.

The Tribunal held that appeals to it from decisions of the Information Commissioner were limited to questions of law. The new evidence presented by the appellant was considered irrelevant to the application of legal principles and did not demonstrate any error of law by the decision maker. Consequently, the Tribunal dismissed the application for the introduction of new evidence. The Tribunal emphasized that the appeal process was not a retrial and that new evidence could not be admitted if it did not pertain to the legal correctness of the original decision.

No specific orders were made regarding the substantive appeal, as the Tribunal found that the appellant's application for new evidence was not justified. The costs associated with the application were reserved for the Member who would hear the substantive appeal.

Orders

Orders of the court

1. Application for miscellaneous matters filed by the applicant on 28 April 2021 is dismissed.

2. Any question of costs of the application reserved to the Member who hears the substantive appeal.

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

Full text does not contain this section.

CITATION:	Pennisi v The Information Commissioner [2021] QCATA 98
PARTIES:	MARCELLO SALVATORE PENNISI
(applicant)
v
THE INFORMATION COMMISSIONER QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(respondents)
APPLICATION NO/S:	APL339-20
MATTER TYPE:	Appeals
DELIVERED ON:	3 September 2021
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Judicial Member D J McGill SC
ORDERS:	1. Application for miscellaneous matters filed by the applicant on 28 April 2021 is dismissed. 2. Any question of costs of the application reserved to the Member who hears the substantive appeal.
CATCHWORDS:	ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – REVIEW OF DECISIONS – OTHER STATES AND TERRITORIES – appeal to Tribunal only on question of law – evidence sought to be relied on relevant only to the application of the legal tests – evidence unable to show error of law by decision maker APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – EVIDENCE NOT AVAILABLE AT HEARING – WHEN NOT ADMISSIBLE – appeal only on question of law – evidence sought to be relied on relevant only to the application of the legal tests – evidence unable to show error of law by decision maker Right to Information Act 2009 (Qld) s 119. Adani Mining Pty Ltd v Information Commissioner [2020] QCATA 52 Commissioner for Liquor and Gaming v Farquhar Corporation Pty Ltd [2018] QCA 202 Coulton v Holcombe (1986) 97 CLR 1 Ellis v Queensland Building Services Authority [2010] QCATA 93 Flegg v Crime and Misconduct Commission [2013] QCA 376 Osland v Secretary, Department of Justice (2010) 241 CLR 320 Powell v Queensland University of Technology [2018] 2 Qd R 276 Sibelco v Right to Information Commissioner [2017] QCATA 59 Stafford v Information Commissioner [2019] QCTA 51 Waterford v Commonwealth of Australia (1987) 163 CLR 54 Wilkins v Gunter (No 2) [2021 QCATA 42
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
First Respondent:	Self-represented
Second Respondent:	Holding Redlich Lawyers
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).