Dawson-Wells v Office of the Information Commissioner [2013] QCATA 4

CITATION: Dawson-Wells v Office of the Information Commissioner [2013] QCATA 4 PARTIES: Narelle Dawson-Wells v Office of the Information Commissioner APPLICATION NUMBER: APL485-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Acting Deputy President DELIVERED ON: 7 January 2013 DELIVERED AT: Brisbane ORDERS MADE: [1] Amanda Flynn Charity Limited is joined as a respondent to the appeal. [2] Amanda Flynn Charity Limited must file in the tribunal two (2) copies and give to Dr Narelle Dawson-Wells and the Information Commissioner one (1) copy of: a) All submissions, including any cases relied upon in reply to the application for leave to appeal or appeal; and b) A list of any documents filed or tendered in proceedings 310313 which it considers relevant to the application for leave to appeal and appeal by 1 February 2013. [3] The directions hearing on 7 February 2013 is confirmed. CATCHWORDS: JOINDER OF PARTIES – where application for access to information – where external review of decision about access – where appeal against decision – whether original applicant a proper party to be joined to the appeal Queensland Civil and Administrative Tribunal -- 1 of 3 -- 2 Act 2009, ss 42, 146(b) Right to Information Act 2009, ss 43, 119 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] Amanda Flynn Charity Limited applied to the Crime and Misconduct Commission for access to documents under the Right to Information Act 2009. The documents related to Dr Dawson-Wells. [2] Dr Dawson-Wells objected to the disclosure of the documents. The CMC gave Amanda Flynn access to some, but not all, of the documents. [3] Amanda Flynn applied to the Information Commissioner for an external review of the CMC’s decision. The Information Commissioner has published a decision in which it finds the factors favouring disclosure outweigh the factors favouring non-disclosure. The CMC has not yet provided access to the additional documents. [4] Dr Dawson-Wells has appealed the Information Commissioner’s decision to the tribunal. Amanda Flynn has applied to be joined as a party to that appeal. [5] The tribunal may join a party to a proceeding if it considers that: the party should be bound by, or have the benefit of a decision of the tribunal; the party’s interests may be affected by the proceeding; or, for another reason, it is desirable that the party be joined1. [6] Amanda Flynn says that it should be joined as a party to the appeal because it will be bound by the decision of the tribunal and it will be directly affected by the outcome of the proceedings. Amanda Flynn also says that, because the Information Commissioner has indicated that it does not intend to make substantive submissions on the appeal, there is no effective adversary to Dr Dawson-Wells’ appeal unless it is joined as a party. It notes that the RTI Act requires that the notice of appeal be served on all participants in the external review2. [7] Dr Dawson-Wells objects to the joinder. She says that the Information Commissioner is the proper contradictor not Amanda Flynn. She says that Amanda Flynn has no relevant business with the tribunal in this matter. [8] An appeal to the tribunal can only be on a question of law3. Dr Dawson- Wells submits that the question of law is the proper exercise of the Information Commissioner’s discretion. She submits that this proceeding is not a merits review, so any decision of the tribunal will not affect Amanda Flynn’s rights. She says that the decision is of general interest – because it will comment on the Information Commissioner’s procedure – and is not 1 Queensland Civil and Administrative Tribunal Act 2009, s 42. 2 Right to Information Act 2009, s 119(3). 3 RTI Act, s 119(2). -- 2 of 3 -- 3 particular to Amanda Flynn. Dr Dawson-Wells contends that a decision of the tribunal will not extinguish Amanda Flynn’s rights to make applications for information. Dr Dawson-Wells is concerned that the joinder of Amanda Flynn will delay a decision of the tribunal. [9] I am not persuaded that the prospect of delay is a relevant factor in deciding whether to join Amanda Flynn as a party. Dr Dawson-Wells filed her application on 23 December 2011. It has proceeded at a leisurely pace since then. Amanda Flynn has indicated that, if joined, it can present is substantive submissions “very quickly”. [10] There are two reasons why Amanda Flynn should be joined as a party to the proceeding. The first is that the appeal process, by requiring that Amanda Flynn be served with a copy of the notice of appeal, contemplates that it will be a party interested in the outcome of the proceeding. If it was not so interested, then there would little point in it having notice of the appeal. [11] The second reason is contained within s 43(3)(d) of the RTI Act. If a party makes a further application to the same agency in relation to the same documents, the agency may refuse to deal with the later application if the first decision has been the subject of a completed review. [12] The Information Commissioner has completed a review, and decided that Amanda Flynn should be given access to the documents. The tribunal must consider the appeal by way of rehearing4. The tribunal may set aside the decision and substitute its own decision5. If Dr Dawson-Wells succeeds in her appeal, the tribunal’s decision may be the “completed review” contemplated by s 43(3)(d). [13] Although Dr Dawson-Wells is correct in her assertion that Amanda Flynn can make further applications for access to documents, the reality is that a successful appeal may effectively preclude an application for access. It would be contrary to the interests of justice if a decision of this tribunal had the effect of denying a party a right to information without that party having an opportunity to be heard on the issue. Orders [14] Amanda Flynn Charity Limited is joined as a respondent to the appeal. [15] Amanda Flynn Charity Limited must file in the tribunal two (2) copies and give to Dr Narelle Dawson-Wells and the Information Commissioner one (1) copy of: a) All submissions, including any cases relied upon in reply to the application for leave to appeal or appeal; and b) A list of any documents filed or tendered in proceedings 310313 which it considers relevant to the application for leave to appeal and appeal by 1 February 2013. [16] The directions hearing on 7 February 2013 is confirmed. 4 RTI Act, s 119(5). 5 QCAT Act, s 146(b). -- 3 of 3 --