Sibelco Australia Ltd v Right to Information Commissioner

[2013] QCATA 214

CITATION: Sibelco Australia Ltd v Right To Information Commissioner & Anor [2013] QCATA 214

PARTIES:

Sibelco Australia Ltd
(Applicants)

V

Right To Information Commissioner
(First Respondent)

Department of Natural Resources and Mines
(Second Respondent)

APPLICATION NUMBER: APL160-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Hon K Cullinane AM QC, Judicial Member

DELIVERED ON: 24 July 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.   The application for non-publication orders filed 17 May 2013 is dismissed.

2.   The application for a closed hearing filed 17 May 2013 is dismissed.

CATCHWORDS: APPEAL – GENERAL ADMINISTRATIVE REVIEW – RIGHT TO INFORMATION – DISCLOSURE DECISION – where application for information concerning leases to mine sand on North Stradbroke Island – where First Respondent held disclosure of information would not be contrary to the public interest – where First Respondent held disclosure of information would not impede the administration of justice – where Appellants seeks to appeal that decision at QCAT – where First Respondent gave undertaking not to disclose information until appeal decided – where Appellant seeks orders directing the appeal hearing be held in private – where Appellant seeks non-publication orders – whether QCAT should make those orders

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. The Applicant seeks orders pursuant to ss 66 and 90 of the Queensland Civil and Administrative Tribunal Act 2009 that the hearing of an appeal by the Applicant against a decision of the First Respondent be closed and that certain documents the subject of the access application or related to it not be open to the public.

2. The documents or things the subject of the application are described in extremely wide terms and this alone would be an obstacle to the order sought.

3. The First Respondent refused to make orders refusing access to the relevant documents and there is an appeal from this order.

4. The Second Respondent has given an undertaking to the Applicant not to allow access to the documents until the appeal is determined.

5. There are proceedings pending against the Applicant in the Magistrates and Supreme Courts. These proceedings are explained in the affidavit of Tamieka Leigh Gilmour filed in these proceedings. The Applicant is concerned that disclosure of evidence given in those proceedings may prejudice the Appellant in those proceedings and presumably this appeal.

6. It is of course a matter for those courts what it does with evidence given before them. It goes without saying that it can be assumed that the Applicant will be dealt with fairly and according to law.

7. In my view the undertaking by the First Respondent represents the best the Applicant would be entitled to.

8. To make the orders sought would be to extend the reach of the Tribunal beyond the subject matter of what is before it namely the correctness or otherwise of the first Respondent’s decision. This in my view cannot be accepted.

9. In order to ensure the Applicant’s right of appeal is not rendered nugatory a non-publication order might be made but this is unnecessary because of the undertaking.

10. As to the request for a closed hearing I do not think this is appropriate but the application can be renewed at the hearing.