Powell v Queensland University of Technology
[2016] QCATA 196
•19 December 2016
CITATION: | Powell & Anor v Queensland University of Technology & Anor [2016] QCATA 196 |
PARTIES: | Jackson Powell and Calum Thwaites |
| v | |
| Queensland University of Technology (First respondent) and The Information Commissioner | |
APPLICATION NUMBER: | APL295-16 |
MATTER TYPE: | Appeals |
HEARING DATE: | 15 December 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Judge Suzanne Sheridan, Deputy President |
DELIVERED ON: | 19 December 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The appeal is allowed. 2. The decisions of the second respondent of 30 August 2016 are set aside. 3. The decisions of the first respondent of 6 July 2016 are set aside. 4. The access applications of 14 June 2016 on behalf of each of the appellants be returned to the first respondent to be dealt with according to law. 5. For the purposes of calculating the processing period, the applications be treated as having been received on 24 November 2016. 6. Each party is to bear their own costs. |
CATCHWORDS: | APPEAL AND NEW TRIAL – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where the appellants applied to the first respondents for access to documents – where the first respondent refused access on the basis that the appellants failed to satisfy the requirements of s 43(3) of the Information Privacy Act 2009 (Qld) – where the first respondent’s decision was upheld by the second respondent – where the first and second respondents now acknowledge the requirements of s 43(3) of the Information Privacy Act 2009 (Qld) have been satisfied and the first respondent has proceeded to deal with the appellants’ original applications – whether the appeal should be allowed PROCEDURE – CIVIL PROCEDURE IN STATE AND TERRITORY COURTS AND TRIBUNALS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – where the appellants seek their costs on an indemnity basis – where the first respondent submits there be no order as to costs – where the parties’ were unable to reach informal resolution – where costs are to be determined pursuant to the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether there should be an order as to costs Information Privacy Act 2009 (Qld), s 22, s 43(3), s 132 |
APPEARANCES: | |
APPLICANT: | Mr A Morris QC of counsel for the appellants |
FIRST RESPONDENT: | Mr J Horton QC of counsel, instructed by Clayton Utz Lawyers, for the first respondent |
SECOND RESPONDENT: | Mr S McLeod of counsel for the second respondent |
REASONS FOR DECISION
This appeal arose out of an application for access to documents made by the appellants, Powell and Thwaites, to the first respondent, Queensland University of Technology (QUT), pursuant to the provisions of the Information Privacy Act 2009 (Qld) (IP Act). The appeal was brought pursuant to s 132 of the IP Act. In accordance with that act, the notice of appeal was served on each of the participants in the external review.
The applications for access were refused by QUT on the basis that the appellants had failed to satisfy the threshold requirements of s 43(3) of the IP Act. That decision was upheld by the Information Commissioner.
QUT was the only party initially named as a respondent to the appeal. The grounds of appeal filed in support of the appeal, however, detailed only the alleged errors of law made by the decision-maker, the Assistant Information Commissioner. Upon application by the Information Commissioner and by order of the President of the Queensland Civil and Administrative Tribunal (tribunal), on 6 October 2016 the Information Commissioner was joined as a party to the appeal.
On 6 October 2016, directions were made also in respect to the appeal. The directions required the appellants to file their submissions on 10 November 2016, and the first and second respondents to file their submissions on 24 November 2016. In fact, the submissions on behalf of the appellants were sent to the tribunal and the other parties on 4 November 2016.
On 24 November 2016, QUT filed its submissions. Those submissions relevantly stated:
3. Having given the matter further consideration, the First Respondent is now satisfied as to the identity under s 43(3) of the Information Privacy Act.
4. Accordingly, the First Respondent will process the Application for Access dated 14 June 2016 upon it being either re-made or re-presented, whether physically or by confirmation that the Applicants to this proceeding or their agent, seek to do so.
The email from QUT’s solicitors to counsel for the appellants enclosing the submissions stated, “You will see that the First Respondent has, after further consideration, changed its position in respect of the relevant issues.”
The submissions for the Information Commissioner, on the other hand, stated that:
3. The first respondent, as custodian of the documents to which the applicant seeks access, would be an effective adversary in the appeal and would therefore be the proper contradictor to the applicants’ contentions. Any submissions by the second respondent would be supplementary to the submissions made by the other parties to the appeal.
4. Accordingly, the second respondent, as the external review decision-maker, will abide by the decision of the Tribunal.
The appellants responded to the email and submissions from QUT by email dated 24 November 2016. The appellants detailed the three issues which still required resolution, including that they considered “the Application for Access dated 14 June 2016 remains on foot.” It was said that position would have some implications for the “processing period” under s 22 of the IP Act. It was suggested that the appropriate course was to re-list the matter for the making of consent orders “in accordance with the position now taken by QUT.”
The response of QUT on 28 November 2016 confirmed that QUT would proceed as of the date of the email (24 November 2016) to deal with the relevant applications under the terms of the IP Act. It was said, however, that whether the applications for access “remained on foot” was a matter “where the respective views of our clients will differ and we are unlikely to resolve that point by correspondence.” It was said that given the proceedings were now hypothetical, “our thinking was that the Tribunal could be invited to make orders that will end the proceedings on an early basis.” The appropriate orders, it was said, are “for the Tribunal to determine with input from the parties.” Unfortunately, in its response, no suggestion was made by QUT as to the form of the orders.
The appellants responded to the email from QUT by email of the same date saying, “As we evidently disagree on all three points, I suppose there is nothing but to re-list the matter… on the earliest available date.” Accordingly, as requested, directions were made by the tribunal for each party to make submissions as to the form of order and costs.
Form of orders
In their submissions, the appellants sought the following orders:
1. That the appeal be allowed.
2. That the decisions of the Second Respondent of 30 August 2016 be set aside.
3. That, in substitution for the decisions of the Second Respondent of 30 August 2016, it be decided that:
(a)the decision of the First Respondent of 6 July 2016 be set aside; and
(b)in substitution for the decision of the First Respondent of 6 July 2016, it be decided that the access application of 14 June 2016 on behalf of the Appellants Jackson David Powell and Calum Martin Thwaites complies with the requirements of the Information Privacy Act 2009.
4. That the access application of 14 June 2016 on behalf of the Appellants Jackson David Powell and Calum Martin Thwaites be returned to the First Respondent to be dealt with according to law.
Despite being specifically invited by the tribunal to make submissions as to the form of the orders, QUT declined to do so. Rather, QUT said, “The First Respondent makes no submissions as to the form of order. The impugned decision is that of the Second Respondent.”
Given that the Information Commissioner had previously submitted that QUT was the proper contradictor to the appeal, it is particularly unhelpful of QUT to now say that it does not make any submission as to the form of order as the impugned decision is that of the Information Commissioner. That submission also fails to take into account the broad power granted pursuant to s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) enabling the appeal tribunal to set aside a decision and return the matter to the entity who made the decision for reconsideration (with any other directions the tribunal considers appropriate), or to make any other order it considers appropriate.
The position taken by the Information Commissioner was equally unhelpful and also misguided. Despite previously stating it would abide by the decision of the tribunal, it now submitted that the preferable order for disposal of the appeal was:
1. The appeal is dismissed; and
2. The Applicants’ access applications are remitted to the First Respondent, effective on the date of the Tribunal’s order, for processing under the IP Act.
Although it is true that QUT has not directly indicated that the decision as to whether or not the appellants had fulfilled the requirements of s 43(3) of the IP Act was wrong, the effect of the concession by QUT that it has changed its position in relation to the relevant issues, and its conduct in proceeding to deal with the applications originally lodged, shows that QUT now accepts that the appellants have satisfied the requirements of s 43(3) of the IP Act; though it is not clear why it was not previously satisfied and why it is now satisfied of those matters.
Likewise, the position taken by the Information Commissioner amounts to an acknowledgement that the threshold requirements of s 43(3) of the IP Act have been satisfied.
There is accordingly no reason why the formal order should be otherwise than that the appeal be allowed. In oral submissions, counsel for the Information Commissioner was unable to make any real submission justifying the position that the appeal be dismissed.
It is also appropriate for orders to be made setting aside the decision and remitting the applications to QUT for processing. That position is consistent with what is in fact occurring. It is a position accepted by the Information Commissioner.
In correspondence and in submissions an issue arose as to the effective date of the access applications. Mr Morris QC for the appellants submits the relevant date is the date of the initial applications; albeit the appellants were prepared to exclude a short period while “QUT were labouring under a mistake”. The Information Commissioner says it should be the date of the order of the tribunal.
If the position asserted by Mr Morris QC was accepted, then as a result of the structure of the IP Act, the time period for the processing of the applications would have already expired. It would be a deemed decision for the purposes of the IP Act and it would be necessary for the decisions to be dealt with by the Information Commissioner through the review process.
Such an approach hardly seems practical. The preferable course must be to enable the original decision-maker to process the applications. The original decision-maker stated on 24 November 2016 that it was doing so. The appropriate course is to treat the access applications as having been made on that day. The powers of the appeal tribunal are sufficiently broad to enable the making of such an order.
That leaves the final issue as to whether or not an order should be made to the effect sought in paragraph 3(b) of the appellants’ draft form of orders, that the initial access applications complied with the requirements of the IP Act. That order is not one that necessarily follows from the more recent position of QUT, and it would not be possible to make that order unless a more comprehensive consideration was given to the appeal on its merits. Such a consideration is not warranted given the circumstances now before the tribunal. Appropriately, in oral submissions, Mr Morris QC did not press for the making of that order.
Costs
That then raises the question of costs. Section 102(1) of the QCAT Act permits the tribunal to make an order as to costs “if the tribunal considers the interest of justice require it to make the order.” In deciding whether to award costs, the tribunal is permitted to have regard to five matters referred to in subsection 3, and “anything else the tribunal considers relevant”.
The appellants have provided a number of reasons as to why an order should be made in their favour and why such order should be an order for costs on an indemnity basis.
QUT submits that the usual position under s 100 of the QCAT Act is that each party bear its own costs, and that there is nothing in the circumstances of this case that would require the tribunal to depart from the usual position.
Many of the matters relied upon by the appellants in their submissions relate to the merits of the appeal. It is difficult to reach any conclusion on those matters without determining the appeal on its merits. That is neither desirable nor necessary given the present attitude of QUT in respect of the relevant issues. It would also be inconsistent with the requirement of the QCAT Act that the tribunal will ensure that proceedings are conducted in an informal way that minimises costs to parties and is as quick as consistent with achieving justice.[1]
[1]QCAT Act, s 4(c). See also QCAT Act, s 3(b).
Mr Morris QC submitted that I would be able to make a fair assessment of the relative strength of the claims made and that this would be sufficient to justify an order for costs in favour of the appellants. This itself, however, would not be a simple process given that QUT and the Information Commissioner have not admitted that there was an error of law, and QUT has adopted what it describes as a “pragmatic approach”.
Both QUT and the Information Commissioner contend that they made previous attempts to resolve the issue in an informal way but these were rejected by the appellants who stood their ground and were unwavering in the view they took as to their entitlement. It is unfortunate that the dispute reached the stage that it did.
QUT has submitted that it would be contrary to s 4 of the QCAT Act to order costs against a party who has acted responsibly in doing the very thing the proceedings seek to secure. That submission sits uneasily with the fact that the change of position occurred on 24 November 2016, the time at which it was due to deliver its submissions pursuant to the direction made by the President of the tribunal. It also sits uneasily with the fact that, although invited by the appellants by email on 24 November 2016 to agree to consent orders, it declined to proffer any form of orders and, in oral submissions, it still declined to do so. None of that is consistent with the earlier and economical resolution of disputes to which it refers in its submissions.
The starting position of the appellants in relation to the Information Commissioner was that no orders as to costs should be made against the Information Commissioner. However, a number of matters are then listed in the appellants’ submissions which would support the making of a costs order. There is no doubt that the approach taken by the Information Commissioner in making the further submissions to the tribunal was unhelpful and in contradiction to earlier submissions made.
On the other hand, even if QUT and the Information Commissioner had responded in a helpful way, it is likely that there would still have been disagreement between all three parties as to the form of orders and costs. In addition, whilst orders will be made consistent with most of the orders sought by the appellants, the tribunal declines to make the orders sought in paragraph 3(b) of their draft orders and has directed that the application be treated as having been made on 24 November 2016, rather than on 14 June 2016.
In all the circumstances, the appropriate order is that each party bear their own costs.
Orders
Accordingly, the tribunal orders that:
a) The appeal is allowed;
b) The decisions of the Information Commissioner of 30 August 2016 are set aside;
c) The decisions of QUT of 6 July 2016 are set aside;
d) The access applications of 14 June 2016 on behalf of each of the appellants be returned to QUT to be dealt with according to law;
e) For the purposes of calculating the processing period, the applications be treated as having been received on 24 November 2016; and
f) Each party is to bear their own costs.
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