TerraCom Limited v Office of the Information Commissioner, Lock the Gate Alliance Limited & Department of Natural Resources, Mines and Energy

[2019] QCATA 6

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

TerraCom Limited v Office of the Information Commissioner, Lock the Gate Alliance Limited & Department of Natural Resources, Mines and Energy [2019] QCATA 6

PARTIES:

TERRACOM LIMITED

(applicant/appellant)

v

OFFICE OF THE INFORMATION COMMISSIONER

(first respondent)

LOCK THE GATE ALLIANCE LIMITED

(second respondent)

DEPARTMENT OF NATURAL RESOURCES, MINES AND ENERGY

(third respondent)

APPLICATION NO/S:

APL176-18

ORIGINATING APPLICATION NO/S:

313446

MATTER TYPE:

Appeals

DELIVERED ON:

30 January 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

ORDERS:

The decision of the Office of the Information Commissioner, made 2 July 2018 in application number 313446, is stayed until determination of the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR

RENEWAL – whether a stay should be granted when refusing the stay would render the appeal nugatory

Right to Information Act 2009 s 119

Queensland Civil and Administrative Tribunal Act 2009 s 122

Alexander and Ors v Cambridge Credit Corporation Lrd (Receivers Appointed) & Anor (1985) 2 NSWLR 685

Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453

REPRESENTATION:

Applicant:

M Dillman solicitor for Macpherson Kelley

First Respondent:

Self-represented

Second Respondent:

Self-Represented

Third Respondent:

Self-Represented

APPEARANCES:

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

1. On 1 August 2018 the Applicant applied to stay the decision of the Information Commissioner in application number 313446. The Tribunal granted that stay, on the papers, on 28 November 2018. These reasons are now provided in response to a request for reasons, made pursuant to s 122 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”), by the Second Respondent.

2. It was clear on the material before me that refusal of the stay application would have rendered the appeal nugatory. This is a substantial factor weighing in favour of the Applicant.1

3. The Second Respondent has been seeking documents relating to a successful application made by the Applicant for the transfer of a mining lease. The Second Respondent had been successful in opposing the Applicant’s Right to Information (“RTI”) Application made internally to the Third Respondent and internal review and external review of that decision. However, the Applicant at all stages has disagreed with release of the subject documents and has now exercised its right under s 119 of the Right to Information Act 2009 (“RTI Act”) to appeal to the Tribunal.

4. A party may only appeal to the Tribunal on a question of law.2 The Second Respondent contends that the Applicant has failed to specify any grounds of appeal on a question of law and therefore submits the prospects of success on appeal are poor.

5. The Applicant’s arguments on the appeal, however, raise issues of statutory construction relating to ss. 47 and 49 and Schedule 4, Part 3 and 4 of the RTI Act, and the application of those provisions to commercially confidential information. In saying that, I am not pre-empting the success or otherwise of the Applicant on appeal.

6. The argument that the Applicant’s grounds of appeal are not on questions of law can be made in the substantive hearing. The Applicant has made extensive submissions as to why they oppose release of the documents and has advanced an arguable case

1. Alexander and Ors v Cambridge Credit Corporation Lrd (Receivers Appointed) & Anor (1985) 2 NSWLR 685, 695.

2. Queensland Civil and Administrative Tribunal Act 2009, s 119(2).

relating to statutory interpretation. If I had refused the stay, but ultimately upheld those substantive arguments, an injustice would have resulted.

1. Finally, I note that neither the First Respondent nor the Third Respondent sought to gainsay the proposition that refusal of a stay would render the appeal nugatory.

2. Noting that the fundamental justification for delaying enforcement by a stay is to ensure that orders which might be made on a successful appeal are fully effective,3 I was satisfied that this was an appropriate case for the grant of a stay.

3 Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453.