Department of Education v Poyton [2023] QCATA 110

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Department of Education v Poyton [2023] QCATA 110 PARTIES: DEPARTMENT OF EDUCATION (applicant/appellant) v CURTIS NICHOLAS POYTON (respondent) APPLICATION NO/S: APL156-23 MATTER TYPE: Appeals DELIVERED ON: 5 September 2023 HEARING DATE: 4 September 2023 HEARD AT: Brisbane DECISION OF: Judicial Member D J McGill SC ORDERS: The Department of Education is granted an extension of time to file the notice of appeal to 30 May 2023. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – appeal from Information Commissioner to Appeal Tribunal – extension of time for appeal – application by respondent to existing appeal – small delay – reasonable response to appeal – matter of general importance – sufficient prospects of success – no prejudice alleged – extension granted Information Privacy Act 2009 (Qld) s 132(3) Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 61(1) Body Corporate for No 9 Port Douglas Road v McEvoy [2011] QCATA 292 Cutbush v Scenic Rim Regional Council [2019] QCATA 25 Nicholls v Kline Industries International Pty Ltd [2022] QCATA 103 Powell v Queensland University of Technology [2017] QCA 200 Rosa v Hunterland [2015] QCATA 20 APPEARANCES & REPRESENTATION: Appellant: J M Horton KC, instructed by the appellant’s Legal Services unit -- 1 of 4 -- 2 Respondent: Self-represented REASONS FOR DECISION [1] This was an application for an extension of time within which to appeal from a decision of the Information Commissioner under the Information Privacy Act 2009 (Qld) (“the Act”) s 132. Section 132(3) permits the Appeal Tribunal to extend time for filing the notice of appeal.1 At the hearing of the application I decided to extend the time for filing the notice to appeal to the date on which it had been filed, 30 May 2023. I said I would publish written reasons for the decision. These are the reasons. Background [2] On 20 May 2022 the respondent made an application to the appellant under the Act for access to certain information about himself.2 The appellant considered that the respondent had not complied with the proof of identity requirements for such an application, and, after contacting and consulting with the respondent, decided that the application did not comply with all relevant application requirements. On 12 December 2022 the appellant gave to the respondent a notice under the Act s 53(6) of that decision. That was a reviewable decision,3 but the respondent did not apply to the Information Commissioner to review that decision. [3] However, the respondent had already, on 3 July 2022, applied for external review of what was said to be a deemed decision of the appellant, under the Act s 66, not to release the information sought. On 16 March 2023 the Information Commissioner decided that there had been a deemed decision to refuse access, of which the respondent was entitled to external review, set aside that deemed decision, and substituted a decision that the respondent had not complied with all relevant application requirements. [4] On 11 April 2023 the respondent, within time, filed in the Tribunal an application for review of the decision of the Information Commissioner. That was using Tribunal Form 23, the form appropriate for a review under the review jurisdiction of the Tribunal.4 But the Act provides for an appeal (on a question of law) to the Appeal Tribunal,5 and the appropriate form is Form 39. This is a common enough error, and the appeal is generally treated as valid on the basis that the error is of no practical significance. I was told by the respondent that the application was filed by mail, copies were returned to the respondent by mail, and then served on the appellant by mail, which probably explains why it did not come to the attention of the relevant unit in the appellant until 12 May 2023. The respondent did not dispute that proposition. [5] Given that there was to be an appeal, the appellant was in the position of contending that the reasons of the Information Commissioner, on this point at least, were wrong, even if the decision on the question of proof of identity was correct, and the decision substituted was the correct decision, which it had made. In order to be able to advance that argument, it considered that a cross-appeal was appropriate, which meant that there had to be a separate notice of appeal filed, for which an extension of time was 1 See also the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 61(1). 2 In these reasons I shall refer to the Department as the appellant, and to Dr Poyton as the respondent. 3 The Act Schedule 5, definition of “reviewable decision”. 4 The QCAT Act Chapter 2 Division 3. 5 Under the QCAT Act Chapter 2 Division 3. See the Act s 132. -- 2 of 4 -- 3 now necessary. Directions were given by the President for the hearing of the application for the extension of time, on 13 June and 1 August 2023. Extensions of time for appeal [6] The Appeal Tribunal has a discretion under the Act and the QCAT Act to extend the time for filing a notice of appeal. Factors relevant to the exercise of that discretion include the length of the delay, whether there is a satisfactory explanation for the delay, the prospects for success on appeal, at least so far as they can be assessed at this stage, and whether granting the extension will or may cause prejudice to the other parties or potential parties, particularly prejudice which cannot be remedied by an appropriate order for costs or damages, which is a bar to an extension of time.6 It is necessary to consider all relevant circumstances of a particular application, to determine if overall it is in the interests of justice to allow the extension. Respondent’s submissions [7] The respondent submitted that in substance the appellant had changed its mind about bringing an appeal, and that a change of mind had never been accepted as grounds for an extension of time to appeal. If he had had time to appeal within time, so had the appellant. It was clear that there was no intention to appeal until the appellant was aware of his appeal. Further, it would not assist the appellant to show that the Information Commissioner lacked jurisdiction to conduct the review, because if that were so, there was no valid decision for the appellant to appeal against. This appeal was tactical, designed to prevent the Appeal Tribunal from deciding his appeal, so as to release the information to him. Accordingly the extension of time should be refused. Consideration [8] This was an unusual situation, where to an extent the appellant is seeking to challenge the reasons for the decision, rather than the outcome, although the wording of the decision of the Information Commissioner indicates that there was an operative deemed decision, when the appellant’s case is that the operative decision was the decision that all relevant application requirements had not been complied with. Strictly speaking, the appellant is seeking to challenge the decision of the Information Commissioner, at least to some extent, and an appeal is possible. In the absence of the appeal by the respondent, however, there was little practical utility in an appeal, however much the appellant wanted to challenge the reasoning of the Information Commissioner. [9] This is therefore a situation where it was reasonable for the position of the appellant to change once it became aware that the respondent was appealing. If it was, strictly speaking, a change of mind, it was a justifiable one. I wondered if the need for a second appeal could be avoided by the appellant, in the respondent’s appeal, just arguing in support of its position before the Information Commissioner, as if by way of a notice of contention, where the decision under appeal is supported on a different basis; but did not think that was safe unless such an approach was accepted by the respondent, and did not consider it fair to put the respondent, a litigant in person, on the spot as to such a decision. In courts there is commonly a mechanism for a cross- 6 QCAT Act s 61(1)(a), (3). See Body Corporate for No 9 Port Douglas Road v McEvoy [2011] QCATA 292; Rosa v Hunterland [2015] QCATA 20; Cutbush v Scenic Rim Regional Council [2019] QCATA 25; Nicholls v Kline Industries International Pty Ltd [2022] QCATA 103 at [35] – [37]. -- 3 of 4 -- 4 appeal in response to an appeal,7 but no such provision is made by the Act or by the QCAT Act. [10] Although there was some delay before this appeal was filed, that is largely explained by the time it took for the relevant people within the appellant to become aware of the respondent’s appeal. Thereafter there was no great delay. As to prospects of success, I do not want to say much. The Information Commissioner followed a comment by McMurdo JA in the Court of Appeal8 which was clearly obiter dicta. The point was not dealt with by the other members of the Court at all, and does not explain how the approach is to be reconciled with the Act s 53(4), or why the relevant reviewable decision was not the decision of which notice is required by the Act s 53(6).9 [11] The point sought to be raised is of general application whenever an agency or Minister receives an application under the Act where it is considered by the relevant decision maker that there has been a failure to comply with all relevant application requirements. In such a situation, is it sufficient to give a notice under s 53(6) if the matter cannot be resolved, or is it also necessary to give a notice under s 66 when the processing period expires? [12] As to prejudice, the respondent did not allege any prejudice. There is a possibility that there will be some additional delay in having the appeals heard and determined as a result of the existence of the second appeal, but I expect they will be heard together. A date for the next directions hearing has already been fixed by the President, so that will not be delayed. The respondent is not legally represented, and if that situation continues, there will not be additional legal costs even if the appeals take a little longer.10 I am satisfied that there will be no prejudice or detriment, not able to be remedied by an order for costs or damages, to a party11 or a potential party12 to the proceeding. [13] For these reasons, I decided to extend the time for filing the notice of appeal by the appellant to 30 May 2023, the date on which it was filed. 7 The existence of such provisions recognises that sometimes an appropriate response to an appeal is an appeal by the respondent as well. 8 Powell v Queensland University of Technology [2017] QCA 200 at [152]. 9 It is not clear that in Powell notice was given under s 53(6). 10 If he obtains representation, any prejudice could be remedied by an order for costs. 11 The respondent. 12 The Information Commissioner, if she wants to be involved in this appeal. -- 4 of 4 --