Stanway v Information Commissioner - [2017] QCATA 30

CITATION:	Stanway v Information Commissioner & Anor [2017] QCATA 30
PARTIES:	Adam Stanway (Appellant)
v
Information Commissioner (First respondent)
and Federick Marsden Youth Centre Inc (Second respondent)
APPLICATION NUMBER:	APL259-14
MATTER TYPE:	Appeal
HEARING DATE:	20 November 2014
HEARD AT:	Brisbane
DECISION OF:	Judge Horneman-Wren SC DCJ
DELIVERED ON:	7 March 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. Appeal allowed. 2. The decision of the first respondent of 4 June 2014 is set aside. 3. The first respondent is to consider the applicant’s application for external review according to law.
CATCHWORDS:	RIGHT TO INFORMATION – AGENCY – PUBLIC AUTHORITY – ERROR OF LAW – STATUTORY INTERPRETATION – whether the Information Commissioner erred in law in finding as a matter of fact that Letters Patent issued under the Religious, Education and Charitable Instruments Act 1861 (RECI Act) incorporated the second respondent – whether the Information Commissioner erred in concluding that the second respondent was not created by the Governor in Council – whether the Information Commissioner erred in finding that second respondent was not established by government under an Act for a public purpose -- whether the Information Commissioner erred in concluding that second respondent was not otherwise a public authority within the meaning of that term in the RTI Act – Where the applicant contends that the second respondent was established for a public purpose under the RTI Act -- Where the Information Commissioner erred in law in concluding that the second respondent was not a public authority and thus an agency within the meaning of s 16 and 14 of the RTI Act – Where appeal allowed and decision of first respondent set aside
APPEARANCES:
APPLICANT:	Mr Adam Stanway in person
RESPONDENT:	Mr S. Grant of counsel

REASONS FOR DECISION

The appellant, Adam Stanway, applied to Frederick Marsden Youth Centre (FMYC)[1] for access to various documents. The application purported to be made pursuant to ss 23 and 24 of the Right to Information Act 2009 (the RTI Act).
[1]The second respondent is named in the proceedings as “Frederick Marsden Youth Centre Inc”. The second respondent, in its own submissions (at para 15), identifies that its name was changed by a grant of further Letters Patent LP under the Religious, Education and Charitable Institutions Act 1867 (sic) to “Frederick Marsden Youth Centre Inc”. The Letters Patent of 2 March 2000 issued under the Religious, Education and Charitable Instruments Act 1861 changed the name of the Marsden Home for Boys to the Frederick Marsden Youth Centre. I am not able to identify from the evidence that “Inc” has ever formed part of the name of the Frederick Marsden Youth Centre as one would not expect it to unless it was incorporated under the Associations Incorporations Act 1981.
FMYC advised the appellant that it was not an agency subject to the RTI Act and thereby refused his application. The appellant applied to the Office of the Information Commissioner for external review of the decision of FMYC to refuse access. The Information Commissioner…

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 30
Decision Date: 7 March 2017

CaseChat Overview and Summary

The case of Stanway v Information Commissioner concerned a dispute over whether the second respondent, an incorporated entity, was a public authority under the Right to Information Act (RTI Act). The applicant sought information from the second respondent, which refused to provide it on the basis that it was not a public authority. The Information Commissioner upheld the refusal, finding that the second respondent was not created by the Governor in Council and was not established for a public purpose. The applicant appealed to the court, arguing that the Information Commissioner had erred in her findings and that the second respondent was indeed a public authority.

The legal issues before the court were whether the Information Commissioner was correct in finding that the second respondent was not created by the Governor in Council, that it was not established for a public purpose, and that it was not otherwise a public authority under the RTI Act. The court needed to consider the relevant provisions of the RTI Act, the meaning of "public authority," and the interpretation of the Letters Patent issued under the Religious, Education and Charitable Instruments Act 1861 (RECI Act).

The court found that the Information Commissioner had erred in law in her interpretation of the RTI Act. The court held that the second respondent was indeed an entity created by the Governor in Council, as the granting of Letters Patent by the Governor in Council was the act that gave legal form to the entity. The court also rejected the argument that the ejusdem generis rule should be applied to construe the relevant provisions of the RTI Act narrowly. The court held that the second respondent was established for a public purpose, as the applicant had contended. Consequently, the court held that the second respondent was a public authority under the RTI Act.

The court allowed the appeal, set aside the decision of the Information Commissioner, and directed the Information Commissioner to reconsider the applicant's application for external review according to law. The court's decision clarified the scope of the term "public authority" under the RTI Act and the proper interpretation of the relevant statutory provisions.

Orders

Orders of the court

1. Appeal allowed.

2. The decision of the first respondent of 4 June 2014 is set aside.

3. The first respondent is to consider the applicant’s application for external review according to law.

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

It submitted that it was not government that caused the corporation to be registered. It contends that it was not established by government but rather that it was established by the unincorporated association’s members resolving to apply for incorporation under the legislation. Consideration Section 16(1)(b) – an entity created by the Governor in Council? It is convenient to consider first whether, in terms of s 16(1)(b) of the RTI Act, the incorporated entity FMYC is an entity created by the Governor in Council. In considering that issue, it is also convenient to deal at the outset with the second respondent’s contention that s 16(1)(b) ought to be read ejusdem-generis with s 16(1)(a) such that an entity created by the Governor in Council as referred to must be one created for a public purpose, and that FMYC was created for a private purpose. As set out above, the Information Commissioner made a finding of fact at paragraph 15 of her reasons that the second respondent appeared to have been established for a private purpose. The Information Commissioner made that finding by reference to the explanation of a public purpose in McPhillimy v Gold Coast Motor Events Co[16], and to the objects clause of FMYC’s 1932 Constitution and its mission statement, each of which appeared to fall within the concept of a “public purpose”. No appeal was, or could, be brought from that factual finding on the appeal. The submission now advanced by the second respondent is inconsistent with that unchallenged (and unchallengeable) factual finding. [16](1996) QAR 376 at [22]. In any event, I am of the view that the ejusdem-generis rule has no application to s 16(1)(a) and (b) of the RTI Act. Mr Grant of counsel, who appeared for the second respondent, sought to support his argument for s 16(1)(b) to be construed ejusdem-generis with s 16(1)(a) by what was said by Latham CJ in R v Regos & Morgan.[17]However, as was identified by His Honour, “before the ejusdem-generis rule can be applied it is obviously necessary to identify some genus which comprehends the specific cases for which provision is made.”[17](1947) 74 CLR 613 at 623. Section 16(1)(a) does not contain a collection of specific cases for which some genus can be identified. Rather, it contains two separate references to an entity to which s 16(1)(a) applies as being one which is established for a public purpose. There is no genus to which different specific cases may belong. Section 16(1)(b) does not identify some other specific case which ought be construed narrowly so as to conform with the genus identified by the other specific cases. Section 16(1)(b) simply does not contain the words “for a public purpose” which are used in s 16(1)(a). They ought not be read in.[18] [18]Whether any entity created by the Governor in Council or a Minister might be inherently created for a public purpose is a separate issue which the parties did not address and which should not be considered. In my view, FMYC is an entity created by the Governor in Council. As the Information Commissioner herself identified, it cannot be said that anything other than the granting of Letters Patent by the Governor in Council was the act giving legal form to FMYC.