Sibelco v Right to Information Commissioner - [2017] QCATA 59

CITATION:	Sibelco v Right to Information Commissioner [2017] QCATA 59
PARTIES:	Sibelco Australia Limited (Applicant)
v
Right to Information Commissioner Department of Natural Resources and Mines (Respondents)
APPLICATION NUMBER:	APL160-13
MATTER TYPE:	Appeals
HEARING DATE:	12 December 2013
HEARD AT:	Brisbane
DECISION OF:	Justice DG Thomas, President
DELIVERED ON:	29 May 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The appeal is allowed. 2. The decision of the Information Commissioner is set aside and the matter is returned to the Information Commissioner for reconsideration.
CATCHWORDS:	APPEAL – APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS - whether hearing on question of law by way of rehearing de novo or hearing in the nature of a judicial review ADMINISTATIVE LAW – FREEDOM OF INFORMATION – RIGHT OF ACCESS – GROUNDS FOR REFUSAL – whether documents in issue fall outside scope of access application – whether the Commissioner considered whether disclosure of the information would found an action for breach of confidence – whether decision should be returned to Information Commissioner for reconsideration Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 146, 147 Right to Information Act 2009 (Qld) s 119 Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 Flegg v Crime and Misconduct Commission & Anor [2013] QCA 376 Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 House v R (1936) 55 CLR 449 Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 Jimenez v Sternlight Investments t/a LJ Hooker Alexandra Hills [2010] QCATA 029 Marshall-Holst v Office of the Information Commissioner and Queensland Health (Metro North Hospital and Health Service) [2017] QCATA 028 Minister for Aboriginal Affairs v Peko- Wallsend Limited (1986) 162 CLR 24 Minogue v Office of Information Commissioner [2011] QCATA 256 Perry v Comcare [2006] FCA 33
APPEARANCES:
APPLICANT:	JK Chappel instructed by Ashurst for Sibelco Australia Limited
RESPONDENTS:	TJ Bradley for the Right to Information Commissioner No appearance (leave granted) for Department of Natural Resources and Mines

REASONS FOR DECISION

Differing approaches were put about the nature of these proceedings.

Nature of the appeal

Section 119 of the Right to Information Act 2009 (Qld) (‘RTI Act’) provides (relevantly):
119      Appeal to Queensland Civil and Administrative   Tribunal on question of law
(1)       A participant in an external review may appeal to   the appeal tribunal against a decision of the   information commissioner on the external review.
(2)       The appeal may only be on a question of law.
(3)       …
(4)       …
(5)       The appeal may only be by way of a rehearing.
Under the QCAT Act, in deciding an appeal against a decision on a question of law only, the Appeal Tribunal may set aside and substitute its own decision or remit it back to the original decision maker or make any other…

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: [2017] QCATA 59
Decision Date: 29 May 2017

CaseChat Overview and Summary

In the case of Sibelco v Right to Information Commissioner, the dispute was about whether certain documents should be released under the Right to Information Act 2009 (Qld). The matter was before the Queensland Court of Appeal, where the primary issue was whether the hearing of the appeal should be conducted de novo or as a judicial review. The appellant, Sibelco, argued that the appeal should be heard as a de novo hearing, meaning a fresh hearing on all the evidence and submissions, rather than a review of the decision made by the Information Commissioner.

The court had to determine the appropriate standard of review for the appeal, considering whether the Information Commissioner correctly interpreted the law and exercised their discretion in accordance with the statutory provisions. Additionally, the court examined whether the Commissioner properly considered whether the disclosure of the documents would breach confidence and whether the documents fell outside the scope of the access application. The court found that the appeal should have been heard de novo, as there were errors in the Commissioner's approach to the scope of the access application and the consideration of the breach of confidence argument.

The Court of Appeal held that the decision of the Information Commissioner should be set aside and the matter returned for reconsideration. The court concluded that the Commissioner did not properly consider whether the disclosure of the documents would breach confidence and whether the documents fell outside the scope of the access application. Consequently, the appeal was allowed, and the decision of the Information Commissioner was set aside. The matter was returned to the Information Commissioner for reconsideration, allowing for a fresh assessment of the evidence and submissions in light of the Court of Appeal's findings.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Information Commissioner is set aside and the matter is returned to the Information Commissioner for reconsideration.

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

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