Underwood v Department of Housing and Public Works (No 2)
[2013] QCATA 192
•13 May 2013, and 24 May 2013
| CITATION: | Underwood v Department of Housing and Public Works & Anor (No 2) [2013] QCATA 192 |
| PARTIES: | Helen Underwood (Applicant/Appellant) |
| v | |
| Department of Housing and Public Works (First Respondent) and Right to Information Commissioner (Second Respondent) |
| APPLICATION NUMBER: | APL184-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 13 May 2013, and 24 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 13 May 2013 1. The application to extend or shorten a time limit or for waiver of compliance with a procedural requirement filed by the applicant, Helen Underwood on 29 April 2013 is refused. 2. The application for miscellaneous matters filed by the applicant, Helen Underwood on 1 May 2013 is refused. 3. The application for interim order and the application for injunctions filed by the applicant, Helen Underwood on 8 May 2013 is refused. 4. The hearing listed to commence at 9:30am on 28 May 2013 and to continue on 29 May 2013 is confirmed. 24 May 2013 1. The applicant’s application to stay a decision is refused. |
| CATCHWORDS: | APPEAL – QUESTION OF LAW – RIGHT TO INFORMATION – INTERLOCUTORY DECISIONS – where applicant sought to vacate an order requiring an exchange of submissions – whether the application should be granted – where applicant sought an extension of time to file and serve further submissions – whether application should be granted – where applicant sought interim order directing removal of ‘annotated legislation’ from a website – whether application should be granted – where applicant sought to stay a decision of the Tribunal to refuse provision of legal representation to applicant at the public expense – whether stay should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4(c), s 45, s 122, s 145(2) Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453, cited |
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 (QCAT Act).
REASONS FOR DECISION
Ms Underwood seeks reasons for decisions made in interim applications brought by her in the course of these proceedings. The decisions were made on the papers on 13 May and 24 May 2013. She seeks reasons pursuant to s 122 of the QCAT Act.
Identical applications were made in her concurrent appeal, APL075-12 on the same dates and, pursuant to an identical request, I provided reasons in that appeal recently.
It is unnecessary to do any more, in this appeal, than repeat what I said in those identical applications in APL075-12. The reasons are now set out.
Ms Underwood applied to the Office of the Information Commissioner for external review of four decisions made by the Department of Communities under the Right to Information Act 2009 (Qld) (RTI Act). Subsequently the Information Commissioner decided that her applications should not be dealt with because they were vexatious, and would cause unfairness to the respondents. She has appealed to QCAT against that decision.
In the course of the proceedings Ms Underwood has brought a large number of applications and filed over 40 cm of material. A number of applications have previously been dealt with.
Application to extend or shorten a time limit or waive compliance with a procedural requirement filed 29 April 2013
Ms Underwood’s applications fell to be considered in light of the Tribunal’s statutory obligation to resolve matters ‘… as quick as is consistent with achieving justice’[1], its previous directions orders to that end, the nature of the relief sought in the proceeding and the history of the matter including, in particular, a large number of previous interlocutory applications filed by her.
[1]QCAT Act s 4(c).
Directions have been made in the matter – all intended, ultimately, to produce an adequate exchange of information, documents and submissions between the parties and take the matter to a hearing in the Tribunal with reasonable expedition.
Ms Underwood has previously filed applications for extensions of time on 24 April, 25 June and 31 July 2012 and, for the purposes of the application presently being dealt with, on 29 April 2013. She has also filed applications for injunctions on 30 April 2012 and 8 May 2013, and applications for miscellaneous orders on 29 June, 31 July and 18 October 2012, and 22 March and 1 May 2013.
The application to extend time refers to a Directions Order made on 18 October 2012. It is difficult to comprehend what is sought, or why. It seeks, as I attempt to understand it, the vacation of an order made on 18 October requiring an exchange of supplementary submissions, and the replacement of that order with a new direction that the parties file those supplementary submissions on a ‘… date to be advised’. It contains what appear to be submissions in support:
Documentation incomplete … requirements of additional documentation; time has not enabled completion; brief preparation incomplete; inability instructing solicitor pending outcome legal representation at public expense; decisions of the tribunal re notices to produce, interrogatories, admissions fact; leave for first and second respondents to be represented by Crown Law/appoint separate solicitors at ‘arms length’ to Crown Law for each appeal – adequate time frame upon receipt of these decisions is required; the issues are complex; there are six individual access applications/five external review applications and each access application/external review application are not identical or the same; the documentation being lodged on Wednesday 1 May 2013 prior to 4pm includes an application for directions hearing; an extension is required in the interests of having all arguments/facts relating to the arguments before the Tribunal enabling the correct or preferred decision; the respondents have indicated their preference to not file/serve additional submissions.
Some references in this passage can be understood. The respondents had sought leave to be legally represented in November 2012. On 3 April 2013 Ms Underwood applied for an order that the Tribunal provide her with legal representation at the public expense. Those applications were determined, in a decision published (with Reasons) on 2 May 2013.
Each of Ms Underwood’s applications must be considered in the context of the primary relief she seeks. This is an appeal on a question of law only under s 119 of the RTI Act. The decision from which she appeals is in very narrow compass. As previously observed in my reasons of 2 May 2013, despite the enormous volume of paper she has filed in the Tribunal and the many and varied applications she has brought, no basis has been established for the array of orders she has sought in them: for example, compelling admissions of fact, the production of documents, or the answering of interrogatories by the respondents.
Some previous applications were inimical to the speedy resolution of the matter, and can not unfairly be called mischievous. An example is an application for miscellaneous matters she filed on 3 April 2013. In that application she sought an order that an earlier directions order of a Senior Member of the Tribunal of 25 March 2013 be ‘struck out’ on a ‘with prejudice’ basis in ‘the interests of justice’. When she appeared before me at a directions hearing on 22 April 2013 it became apparent that her sole ground for this application was that the learned Senior Member had allegedly, in her view, wrongfully denied her a right of reply in directions about submissions to be exchanged between the parties in respect of an earlier application she had brought.
As I observed at the time, the application of 3 April was entirely without merit. In light of the material she had already filed it was beyond human understanding that she could possibly have had anything more to say in support of that earlier application – which was for leave to deliver interrogatories, etc.
Putting all of these matters aside, for the moment, there were a number of compelling reasons for refusing Ms Underwood’s application to extend or shorten a time limit filed 29 April 2013.
First, she apparently sought to be excused from compliance with an order made more than six months earlier. Secondly, the matter had already been set down for hearing on 28 and 29 May 2013 and it was not inappropriate to insist that she keep to a reasonable timetable in anticipation of the hearing proceeding on that date.[2]
[2]It did not proceed, but for unrelated reasons.
There is a third, legitimate reason: no previous order had been made by the Tribunal but that had itself become the product of subsequent applications by Ms Underwood to extend time, and other applications of no value or relevance to the speedy and just resolution of her appeal. Arguably by that course of conduct she has been for some time in breach of her own obligation, under s 45 of the QCAT Act, to herself act quickly in any dealing relevant to her appeals.
In the context of the partial history of the proceedings set out above, and the way Ms Underwood has chosen to conduct them, it may well be considered that there is also a good, fourth reason for refusing her relief of this kind.
QCAT is a State funded Tribunal of limited resources. It is required to provide the more than 60,000 parties who come to it each year as applicants or respondents with fair and just, but also speedy and inexpensive, dispute resolution. Ms Underwood has, by her conduct of the matters in which she is involved, demanded an excessive and entirely disproportionate amount of time and effort from QCAT registry staff, and presiding Members.
There must be a point at which the demands made by a party upon those resources are so unreasonable that the Tribunal can legitimately refuse to address those demands. Considerations of that kind have no part to play here, and are neither determinative nor relevant. For the reasons given earlier, the application of 29 April 2013 was refused.
Application for miscellaneous matters filed 1 May 2013
In this application Ms Underwood again sought an extension of time to file and serve further submissions. Again, her supporting grounds are difficult to understand. They refer to ‘hearing 28 and 29 May 2013 – Readiness; proposal – part hear preliminary matters … set second hearing date for substantive arguments’.
The reasons given for an extension of time to file further submissions include a reference to the above mentioned application filed 29 April for an extension of time and,
… non-readiness for hearing 28 and 29 May 2013 … propose part hear preliminary matters hearing 28 29 May 2013 – pending outcome of other decisions … set another hearing date for substantive arguments in the proceedings … insufficient time to instruct legal representative – pending decision on legal representation at public expense.
It was clear that Ms Underwood was simply attempting, in another application, to postpone the hearing date on 28 and 29 May. In light of the previous directions orders and the abundant time allowed in them for the exchange of material and submissions in a case which, at its core, involves relatively straightforward issues, no basis for allowing further time for submissions was apparent.
For the reasons already set out in respect of the application of 29 April, the application was without merit and compelled refusal.
Application for interim order and application for injunctions filed 8 May 2013
This application bears no relation to the issues in this appeal. It requests an interim order directing the ‘removal of annotated legislation on the Office of the Information Commissioner’s website immediately’ and ‘removal of name from decision – the applicant is easily identified’ and apparently relates to the inclusion, in annotations to the Commissioner’s operative legislation, of references to the decision which prompted these appeals by Ms Underwood.
The grounds advanced in support of the application are that the annotated legislation is ‘… used as authorities defamatory and maliciously (with reckless abandon) published’; and ‘the applicant is easily identified and breaches the applicant’s privacy’.
Over 50 unnumbered pages of written submissions accompany the application.
On their face the annotations simply recite the Commissioner’s decision in the case which prompted this appeal, in unexceptionable terms. Ms Underwood asserts that there is no authority in the RTI Act (or the Information Privacy Act 2009) ‘… to enable decisions on appeal to be used as authority in annotated legislation’ but she has not referred to any authority in support of a proposition which must be central to her application – that the Information Commissioner is prevented, in law, from publishing annotations referring to its own decisions, even if they are under appeal.
Ms Underwood also objects to the publication of her name and submits that ‘publishing the name is not in the public interest’ – but, again, advances no persuasive argument, and no authority, for the proposition that publication is prohibited, or unlawful.
On its face the application lacked any substance. On any view, it would have bordered upon the whimsical to have diverted the parties from the substance of these appeals by requiring an exchange of submissions or oral argument before disposing of the application.
Application to stay a decision filed 23 May 2013
On 24 May 2013 I ordered that this application be refused. In it, Ms Underwood sought a stay of my earlier decision of 2 May 2013 in which, with published reasons, I refused her application for the provision, to her, of legal representation at the public expense; and, a stay of the decisions made in my order of 13 May 2013, discussed above. Her grounds for a stay were that she had lodged an appeal to the Court of Appeal on 23 May 2013.
She also sought an order vacating the hearing listed to commence on 28 May 2013; and, an order transferring the entire proceedings to a ‘Court of competent jurisdiction, Court of Appeal’.
The QCAT Appeal Tribunal has power to grant a stay[3] but can only do so on well established principles: Is it an appropriate case to grant a stay?[4] Does the applicant have an arguable case on appeal?[5] Would a refusal of a stay render the appeal nugatory?[6] Does the balance of convenience favour granting the stay?[7]
[3]QCAT Act s 145(2).
[4]Croney v Nand [1999] 2 Qd R 342 at 348.
[5]Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 at 455.
[6]Chief Executive Officer, Department for Child Protection v S (2007) 98 ALD 329 at 331.
[7]Kostopoulos v G E Commercial Finance Australia Pty Ltd [2005] QCA 311.
This application was brought on the eve of hearing dates which had been set for some months. No compelling ground for a stay, according to the tests just outlined, was apparent.
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