Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pemberton v Commissioner of Police [2021] NSWCATAP 93 Hearing dates: On the papers Date of orders: 16 April 2021 Decision date: 16 April 2021 Jurisdiction: Appeal Panel Before: S Higgins, Senior Member R C Titterton OAM, Senior Member Decision: 1. Mr Pemberton's application for the production of additional documents is refused. 2. Within fourteen (14) days of the publication of this decision, Mr Pemberton is to file and serve his submissions in reply to the submissions of the Commissioner filed and served on 12 November 2020. Catchwords: APPEALS – application of appellant for an order that the respondent produce specified documents Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 McDonald v Pochin [2016] NSWCATAP 259 ZBC v ZBD [2016] NSWCATAP 264 Texts Cited: None cited Category: Procedural rulings Parties: James Pemberton (Appellant) Commissioner of Police (Respondent) Representation: Solicitors: Appellant (Self-Represented) Norton Rose Fulbright Australia (Respondent) File Number(s): 2020/00370861 (AP 20/27406) Publication restriction: Nil reasons for decision 1. The appellant, James Pemberton (Mr Pemberton), has appealed the decision of the Tribunal, made on 21 May 2020, to affirm the decision of the respondent, the Commissioner of Police, NSW Police Force, to refuse him access to specified information for which he sought access under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). 2. On 30 July 2020, at the call-over, the Appeal Panel, constituted by S Westgarth Deputy President, made orders for the filing and serving of evidence and submissions by Mr Pemberton and the Commissioner. Time was subsequently extended for compliance with those orders and Mr Pemberton filed and served his evidence and submissions on 24 September 2020. The Commissioner filed and served his evidence and submissions on 12 November 2020. 3. After the Commissioner filed and served his evidence and submissions, and before Mr Pemberton was required to file and serve his submissions in reply, Mr Pemberton approached the Tribunal seeking an order that the Commissioner be required to produce additional documents. On 13 November 2020, S Westgarth Deputy President made the following orders in regard to Mr Pemberton's application: 1. The Appellant must by 4/12/20 file and serve an application for the production of additional documents in support of the appeal. 2. The Respondent must by 18/12/2020 file and serve its response to the Appellant's application. 3. The question of the Appellant's application (i.e. whether the Respondent should produce documents prior to the Appellant filing his submissions in reply) will be determined on the papers. 1. Mr Pemberton and the Commissioner filed and served their material as ordered in regard to Mr Pemberton's application. 2. For the reasons set out below, we have decided to refuse Mr Pemberton's application for the production of additional documents. We have also made an order that, within seven days of the publication of this decision, Mr Pemberton is to file and serve his evidence in reply to the evidence and submissions of the Commissioner in regard to his substantive appeal. Mr Pemberton's application and submissions 1. In his application for the production, Mr Pemberton seeks the following documents: 1. Police Assistance Line Interactive Voice Response Flowchart; and 2. Crime Stoppers Interactive Voice Response Flowchart 1. Mr Pemberton asserts that these documents will provide conclusive evidence that substantiate the allegations he had made some years ago against two officers of the NSW Police Force having illegally recorded a call on the abovementioned interactive voice responses. He also asserts that the documents will reveal that the Commissioner had misled the Tribunal in claiming that the evidence he had provided to the Tribunal did not contain any information pertaining to misconduct or behaviour that would be defined as misconduct. 2. In his submissions Mr Pemberton pointed to material he provided to the Tribunal that he asserts to have been proof that a disclosure of the information for which he seeks access will reveal misconduct by the two officers of the NSW Police Force and the misleading evidence of the Commissioner before the Tribunal. At [4.21] of his submissions Mr Pemberton concluded by saying: The appellant is not seeking a chance to re-litigate the matter only seeking to re-enforce the material that the Tribunal did not clearly understand or the Tribunal ignored. Also to further re-enforce that the respondent has provided false and misleading information [to] the Tribunal and no action has been taken. The Commissioner's response to the application 1. The Commissioner opposes the application of Mr Pemberton on the grounds that: 1. there was a lack of forensic purpose in the production of the documents sought. In this regard, the Commissioner noted that the documents (i.e. transcripts of a recording played to callers who called Police Assistance or Crime Stoppers) were 'point in time' documents that were regularly changed and would not assist in showing that the disclosure of the information for which the applicant seeks access would reveal that a member of the NSW Police Force had, in 2014, engaged in misconduct or unlawful conduct; and 2. the production of the documents would be 'fresh evidence' that were available to Mr Pemberton during the course of the proceedings before the Tribunal. That is, Mr Pemberton had every opportunity to requested production of the documents at that time and he was not permitted to do so now on appeal. 1. The Commissioner noted that under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), Mr Pemberton's right of appeal from the decision of the Tribunal was on a question of law, or with the leave of the Appeal Panel on any other ground. 2. The Commissioner also noted that Mr Pemberton's grounds of appeal were based on the evidence that was before the Tribunal. Hence, the documents for which he now seeks production have no relevance to his grounds of appeal. Consideration 1. The Commissioner is correct in that Mr Pemberton has a right of appeal from the decision of the Tribunal on a question of law, or with the leave of the Tribunal on any other grounds. That appeal is yet to be determined and in this decision we make no findings in that regard. 2. Mr Pemberton's application for the production of documents is an interlocutory application. In our view, the nature of Mr Pemberton's application is no more than an application for the production of documents to shore up the evidence he relied on before the Tribunal. This is clear from his own submissions in support of his application. 3. In our view this is not open to him at this stage of the proceedings before the Appeal Panel, as he must first establish that the Tribunal in reaching its decision: 1. erred in law in its decision and that the error warrants a rehearing of his application; or 2. erred in another way warranting a grant of leave to appeal and a rehearing of his application before the Tribunal. 1. It is accepted that leave may be granted to an appellant seeking to rely on 'fresh evidence' that could not have been discovered by the exercise of reasonable diligence before the hearing of the decision the subject of appeal and is evidence of such probative value and significance that, taken with the evidence at the hearing, it will in all probability be decisive and result in a different decision being made: see Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23] to [26] and followed in McDonald v Pochin [2016] NSWCATAP 259 and ZBC v ZBD [2016] NSWCATAP 264 at [32] to [34]. 2. In this case, the documents for which Mr Pemberton seeks production would not be new evidence. Hence, on this ground alone we refuse his application for production. 3. We would also have refused his application because it is his contention that he did place sufficient material before the Tribunal and whether the Tribunal erred as alleged is a matter for determination in his substantive grounds of appeal. Conclusion and orders 1. For the reasons set out above, we refuse Mr Pemberton's application for production. 2. As Mr Pemberton had requested that his submissions in reply to the Commissioner's evidence and submissions be delayed pending the outcome of his application for production, it is appropriate to also make an order for the filing and serving of those submissions in reply. In our view given the matters in issue in the appeal and the material filed to date a period of seven days within which to file and serve those submissions in reply is appropriate. 3. Accordingly we make the following orders: 1. Mr Pemberton's application for the production of additional documents is refused. 2. Within fourteen (14) days of the publication of this decision, Mr Pemberton is to file and serve his submissions in reply to the submissions of the Commissioner filed and served on 12 November 2020. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2021