EX v Commissioner of Police, NSW Police [2008] NSWADT 222

CITATION: EX v Commissioner of Police, NSW Police [2008] NSWADT 222

DIVISION: General Division

APPLICANT EX PARTIES: RESPONDENT Commissioner of Police

FILE NUMBER: 083053

HEARING DATES: 26 June 2008

SUBMISSIONS CLOSED: 26 June 2008

DATE OF DECISION: 13 August 2008

BEFORE: Higgins S - Judicial Member

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, (2000) 17 ALR 644 and [2000] HCA 63Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; CASES CITED: (2000) 96 FCR 125 Macquarie University v Howell [2008] NSWADTAP 46 McGuirk v University of NSW [2008] NSWADTAP 39 Re JRL; Ex parte CJL – (1986) 161 CLR 342, (1986) 66 ALR 239.

In person REPRESENTATION: V Anderson, solicitor S Barry, solicitor

ORDERS: Application that I disqualify myself for bias is refused.

REASONS FOR DECISION Introduction 1 EX has made an application for review of conduct by an officer of the NSW Police Service ('NSW Police'), which EX asserts contravened the disclosure information protection principle under section 18 of the Privacy and Personal Information Protection Act 1998 ('the PPIP Act'). The conduct in question was the disclosure of personal information about EX, held by NSW Police, to EX's employer during January and April 2007. 2 The respondent to EX's application is named as the Commissioner of Police, NSW Police. In this decision I have used the term 'respondent' when identifying the agency whose internal review decision of conduct that is the subject of EX's application for review. 3 The EX's application first came before me on 18 March 2008 at a planning meeting. EX participated in this planning meeting by telephone, through the Tribunal's telephone conference equipment. Mr Gaha appeared in person, on behalf of the respondent. At that time, the only material before the Tribunal was EX's application for review and the internal review determination of a delegate of the respondent concerning the conduct which EX alleged to be in breach of section 18 of the PPIP Act. EX had described the contravening conduct as follows: "Supt Kenny and Insp Carey Tweed Byron region, released information of a complaint of NSW Police to my employer Qld Government. My employer was not involved in this complaint of misconduct and corruption of a number of officers of NSW Police and was a vexatious action from these officers who were also subject to a complaint from me. …" 4 In the internal review determination, the respondent determined that the conduct to which EX had referred, was conduct undertaken in the course of the respondent's investigatory function and therefore, by reason of section 27 of the PPIP Act, not subject to the provisions of that Act. The investigation being an investigation into alleged criminal conduct by EX. 5 At this planning meeting, EX explained that the conduct of which he had sought review under the PPIP Act was the sending of several emails by an officer of the NSW Police to his employer. EX said he had a copy of these emails and at the request of Mr Gaha and with the consent of EX, an order was made that EX file and serve a copy of these emails. EX complied with the direction, but he had ruled large black lines over the majority of the content of each email. In light of this, on 4 April 2008, when the matter next came before me at a further planning meeting, I made an order that EX file and serve an unedited copy of the emails that formed the basis of his internal review application. EX again appeared at this planning meeting by telephone. 6 On 4 April 2008, by consent, I also made an order in the following terms: "Commissioner file and serve a statement in regard to the conduct the subject of review on or before 2 May 2008." 7 EX's application next came before me on 9 May 2008 at a directions hearing. EX again appeared by telephone and as these were directions hearings, the proceedings were recorded. 8 During the course of the directions hearing, EX asserted I was "biased" and "corrupt" and requested that I disqualify myself from dealing with his application any further. As a result of that request I made orders for EX to formally file an application and submissions that set out the grounds on which his application for disqualification was made. An order was also made for the respondent to respond to EX's application and submissions and that the application would be determined on the papers. 9 In complying with these orders, on 9 May 2008, EX sent a letter to the President formally requesting that I be removed from any further participation in the hearing of his application for review. 10 On 13 May 2008, the Registrar responded to EX's letter and advised that his objection to my participation in his application should be raised with me when the matter was next listed for directions on 26 June 2008. The Registrar also said that once the President had exercised his listing discretion under section 22 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act') his power to remove the member listed to deal with an application was limited to the circumstances set out in section 79 of that Act. 11 In the mean time, Ms V Anderson, solicitor, on behalf of the respondent had filed and served submissions in reply to the matters set out in EX's letter to the President. 12 On 26 June 2008, EX again appeared at the directions hearing by telephone. During the course of the directions hearing, EX confirmed his application for disqualification on the grounds set out in his letter to the President. EX and Ms Barry, solicitor appearing on behalf of the respondent, indicated that they did not wish to make any further submissions. I then reserved my decision on EX's disqualification application and made orders for the further progress of his application. I also indicated that I would publish my decision and reasons for decision in regard to EX's disqualification application prior to the next directions date, which is 19 August 2008. 13 On 16 July 2008, at my direction, the Registrar wrote to the parties and provided them with a copy of the transcript of the 9 May 2008 directions hearing and advised that I had made an order giving the parties 7 days to file and serve any additional submissions in light of what was recorded in the transcript. EX sent in a written response on 24 July 2008. The response however, raised a related issue and did not point to any particular portions of the transcript which EX alleged evidenced bias (actual or apprehended) by me on 9 May 2008. The related issue concerns a request that the Respondent produce to the Tribunal a copy of the Part 8A investigation file concerning EX. This, as explained below is a matter that is yet to be fully considered and determined. Grounds relied on by EX 14 In his letter of 9 May 2008, EX identified the following as the basis of his application that I was biased and should disqualify myself from dealing any further with his application: (a) my failure to accept, during the directions on 9 May 2008, that the Respondent had failed to comply with the order that I had made at the previous planning meeting on 4 April 2008. That is, I failed to accept that the six page document that was filed and served by the solicitor for the respondent on the due date was not a 'statement' that complied with the directions that had been made (i.e. failure to accept that the Commissioner had not complied with orders ); (b) my ongoing refusal to make an order to direct the "Commissioner" to "file and serve a number of files that is held by them. These files are a major component of evidence that would substantiate the complaint …" (i.e. failure to direct the Commissioner to produce the criminal investigation files); and (c) my failure "to allow the applicant, the opportunity to respond to matters that has been raised by her, the Member and representative of the respondent and when the applicant raises or tries to clarify a point, is cut off and not allowed to complete what they have to say." (i.e. not allowing EX to respond to matters raised). The law 15 In Macquarie University v Howell [2008] NSWADTAP 46 at [121] to [123] and McGuirk v University of NSW [2008] NSWADTAP 39 at [11] to [13], the Appeal Panel recently considered the relevant principles in regard to applications for disqualification of a decision maker on the grounds of bias. 16 As pointed out in these decisions judicial officers are bound by the rules of procedural fairness which comprise the hearing rule and the bias rule. This includes judicial officers of the Tribunal: see section 73(2) of the ADT Act. 17 Under the bias rule, a decision maker, is required to disqualify him or herself from hearing a matter if he or she is actually biased or a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question to be decided: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 75 ALJR 277 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6] and [8]. At the same time, it is also accepted that judicial officers must not disqualify themselves too readily. Any pre-judgement on the part of the decision maker must be "firmly established" and it is not enough for a fair minded observer to reasonably apprehend that the decision maker will make a decision adversely to one party: see Re JRL; ex parte CJL (1986) 161 CLR 342 per Mason J. 18 In Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125 at 133-134, Drummond J summarised the principles in regard to actual bias as follows: (a) Actual bias exists where the decision-maker has prejudged the case against the applicant, or has acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant. (b) The emphasis is upon the state of mind which affects the decision-making rather than elements of the process of decision-making taken in isolation. (c) Proof of an intentional state of mind adverse to the party is not the only way of proving actual bias. Such bias may be subconscious, provided it is real. (d) It is not sufficient proof of actual bias to show that the decision-maker has expressed views adverse to the party's position at an early stage of the proceedings unless there is also proof that those views were incapable of being changed in the course of the proceedings. … 19 In Ebner, Gleeson CJ, McHugh, Gummow and Hayne JJ, summarised the approach that is to be taken where an apprehended bias objection has been made is as follows: '6 Where, in the absence of any suggestion of actual bias, the question arises as to the independence on impartiality of a judge (or other judicial officer or juror), … , a judge disqualified if a fair-minded lay person might reasonably apprehend that the judge might not bring an impartial mind to the resolution of a question the judge is required to decide … 7 … deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. … 8 The apprehension of bias principle admits the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First it requires the identification of what it is said might lead a judge or juror to decide a case other than on its legal but factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. 20 Accordingly, as pointed out by the Appeal Panel, in McGuirk at [13], in order for EX's application to succeed he must firmly establish either that I am actually biased against him or that a fair-minded person would reasonably apprehend that I would not decide his application fairly and impartially Consideration 21 The submissions filed by Ms V Andersen, solicitor, on behalf of the respondent, contend that the matters raised by EX do not disclose any bias, actual or apprehended. Instead it is contended that I had at all times acted appropriately and that EX is merely dissatisfied with views that are contrary to his. 22 It is convenient to separately deal with each of the three matters relied on by EX as the basis for his application. However, the context in which they arose is also relevant. As explained above, they arose at the 9 May 2008 directions hearing, which had followed two planning meetings. 23 It is the Tribunal's practice for all applications for review under the PPIP Act and the Freedom of Information Act 1989 be allocated to a Judicial Member at the time of filing and for that Member to case manage the application up to hearing and then to hear and determine the application if not resolved or withdrawn prior thereto. It is through the planning meetings that matters in issue are identified as well as parties being given an opportunity to explore avenues of settlement. At the same time, directions are made so as to progress the matter to hearing if the matter cannot be resolved. In some cases these directions are made during the course of several planning meetings and in other cases they are made in the course of directions hearing. EX's application has been progressed through directions hearing, which are ongoing at the time of this decision. Failure to accept that the Commissioner had not complied with orders made 24 As mentioned above, EX asserts bias by me is evidenced in my failing to accept his contention that the 6 page document headed "Respondent's Statement of Conduct", signed by Vanessa Anderson and filed and served on 2 May 2008 ('the document'), did not comply with the order that I had made on 4 April 2008. 25 The document was divided into 7 sections, which included a section on the background to EX's application for review (section 2), a section that set out the contact that had been made with EX's employer (section 5), and a section on the four emails sent to his employer in January and April 2007 (section 6), which EX had identified as being the contravening conduct under the PPIP Act. During the course of the directions hearing, Ms Barry, solicitor of the Commissioner, explained that Vanessa Anderson was her supervisor, a partner of Henry Davis York solicitors, instructed by the Commissioner in regard to EX's application. 26 At page 6 and 7 of the transcript of the directions hearing on 9 May 2008, the following interchange is recorded as having taken place between myself and EX in regard to this document and the orders that had been made in regard thereto: HIGGINS: Well, if you do me the courtesy of listening. What needs to be done, as I have indicated to Ms Barry, is that we need to have some evidence in an evidential form from the Commissioner which explains the circumstances in which those documents were released. APPLICANT: And that was the order that was made last time we spoke and that the respondent had failed to provide that, 'cause in you said in your order that is to be provided by the Commissioner. This is a document drawn by a solicitor or an article clerk, not the Commissioner. HIGGINS: Well, the intention of the orders last time was so that we could have an outline of what they say the conduct is. APPLICANT: And what was the actual order - the Commissioner is to provide a statement of conduct. HIGGINS: No, it was-- APPLICANT: The Commissioner - well, I've actually down here I could hear you word-for-word and the word "Commissioner" was used. This is not signed by the Commissioner, it doesn't appear on their letterheads, this is just for me six pieces of paper that's got typing on it. It holds no evidence at all. HIGGINS: Well, Mr[EX], we may just differ on that interpretation. APPLICANT: Well, in fact in essence there that the other parties have breached this order because the order said that the Commissioner is to file and serve - the Commissioner. HIGGINS: Mr[EX], I do not find there's been a breach of the order. The order - what has been provided may indeed not satisfy you, but the - the next thing that will need to happen is that the Commissioner indeed put on some evidence which explains the circumstances in which these documents were released. APPLICANT: And that is to be signed by the Commissioner himself, Commissioner Scipione-- HIGGINS: No. APPLICANT: --not six pieces of paper with typing on. HIGGINS: It's a matter for the Office of the Commissioner who gives that evidence and it should be the person who was directly involved in this release, or somebody who has knowledge of the circumstances. 27 Further interchanges along this line are recorded at pages 8 and 9 of the transcript. 28 While EX is correct in his contention that I did not accept his point of view as to the "Commissioner's" compliance with orders I had made, this of itself is not a basis to find actual or apprehended bias on my behalf. What must be shown is that in not accepting his argument, this evidenced my having pre-judged his application or that a fair-minded lay observer might reasonably apprehend that I might bring an impartial mind to the determination of his application. In my opinion, no such finding can be made. As the transcript identifies, EX's concerns related to orders that had been made for the purpose of progressing the matter and although I accepted that the "Commissioner"/respondent had complied with the orders made I also made orders, following EX's objection about the statement that had been filed that the respondent was to file and serve its evidence. I can understand that EX, who is not legally represented or trained, may have misunderstood the order that I had made, in that he understood that it was the Commissioner personally and not the respondent who was ordered to provide a statement. I note this was explained to EX. 29 Accordingly, in my opinion, the fact that I did not accept EX's argument about the "Commissioner"/respondent's non compliance with orders I made does not evidence actual bias on my part. Nor is there any evidence, as assessed objectively, of an apprehension of bias. Failure to direct the Commissioner to produce the criminal investigation files 30 At page 7 of the transcript of the 9 May 2008 directions hearing, after Ms Barry had indicated that it would take 6 weeks for the Commissioner to file and serve evidence in regard to the conduct the subject of EX's application, the following interchange is recorded concerning the Commissioner's Part 8A investigation file: APPLICANT: That's unacceptable, I'm sorry, because all they need to do is just provide the actual investigation or the Part 8A file which contradict each other here. That should already be in the Commissioner's office, 'cause the Commissioner has been assigned by the Police Integrity Commission to undertake an investigation. Now, six weeks is totally unacceptable considering that makes it absurd this document was signed by the Commissioner as ordered the last time. Ma'am, this is dragging out further and further than what needs to be and, you know, these files are the evidence which can assist their criminal investigations-- HIGGINS: We're talking about-- APPLICANT: How we can get to that is simply just by seeing these files. BARRY: Ms Higgins, what the - on behalf of the Commissioner what I will indicate now is that it's not intended when we put together the evidence and file it at the Tribunal to file the totality of files that are in our possession and I just want there to be absolutely no doubt on Mr[EX's] part that that is not what is intended and certainly not as I understand what the Tribunal is ordering. APPLICANT: Well, we filed the evidence was in itself. BARRY: They may be but your request is not a request for access to files, Mr[EX]. APPLICANT: No, it's not but I'm just saying they're relying on the information on these files as to evidence, the way I read it here, so therefore these files should be tendered. HIGGINS: Well, that's a matter for once the evidence is filed it's a matter that can be considered then 31 Contrary to the assertion of EX, this part of the transcript does not record that that I had refused to consider the relevance of the investigation files that EX referred to. On the contrary I expressly stated that this was a matter for consideration after the Commissioner had filed his evidence. As explained above, EX in his correspondence of 16 July 2008, has expressly raised this issue, which is an issue that is yet to be determined following the filing of the Commissioner's evidence. 32 Accordingly, as there is no evidence that I had failed to direct the Commissioner to produce the criminal investigation files, this ground relied on by EX need not be considered any further. Not allowing EX to respond to matters raised 33 EX has not pointed to any part of the transcript in which I did not allow him to respond to matters raised. What the transcript does show is that EX interrupted and spoke over myself or Ms Barry on a number of occasions and that I asked him to listen to what was being said and he could respond later. 34 Once again, the transcript does not show that I did not allow EX to respond to matters raised and on this basis there is no need to consider EX's assertions any further. Conclusion 35 For the reasons set out above, EX has failed to show that the grounds relied on by him evidence that I am actually biased against him (i.e. have pre-judged his application) or that a fair-minded person would reasonably apprehend that I would not decide his application fairly and impartially. Orders 36 Application that I disqualify myself for bias is refused.