CITATION: Patsalis v Commissioner of Police, New South Wales Police [2003] NSWADT 171 DIVISION: General Division APPLICANT PARTIES: Michael Patsalis RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 033041 HEARING DATES: 29/05/03 SUBMISSIONS CLOSED: 05/29/2003 DATE OF DECISION: 05/29/2003 BEFORE: O'Connor K - DCJ (President); APPLICATION: Summons - application to set aside MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 CASES CITED: C (No. 2) v Secretary, NSW Treasury [2002] NSWADT 235 Grassby v R (1989) 168 CLR 1 APPLICANT REPRESENTATION: In person RESPONDENT J Waters, barrister ORDERS: Applicant's summons set aside. EX TEMPORE REASONS (REVISED) 1 At a preliminary hearing held at Goulburn on 29 May 2003, the Tribunal gave an oral ruling in relation to an objection to a summons issued for the applicant in the present proceedings, Mr Patsalis (a prisoner presently located at Goulburn gaol), addressed to the Commissioner of Police, the respondent in the present proceedings. 2 The proceedings concern an application for review of a determination made by the Commissioner in response to a request for documents made pursuant to the Freedom of Information Act 1989 (FOI Act) by Mr Patsalis. Mr Patsalis's request has as its context steps being taken by him to make an application to the Supreme Court for an inquiry into his conviction. The request sought numerous documents connected or said to be connected with the police investigation of the death of Klaus Ludwig and the subsequent trial where Mr Patsalis (and an accomplice) were convicted of his murder. 3 In the course of the FOI proceedings the Registrar of the Tribunal has issued a summons to produce documents prepared by Mr Patsalis. The summons on its face appears to seek by that means the same documents as were the subject of the determination that is in issue in the present proceedings. 4 The Tribunal ruled on the Commissioner's objection to the summons. 5 After the ruling was handed down, Mr Patsalis, as he is entitled to do under s 89 of the Administrative Decisions Tribunal Act 1997 (Tribunal Act), asked for written reasons. It is required that the request be dealt with within 28 days. That has not been possible, as the transcript was not supplied by Auscript, the Tribunal's transcript service, to the Tribunal until 30 June 2003. The material text of the oral ruling follows. 6 'The summons has been marked R3 as an exhibit, and was addressed to the Commissioner of Police and issued by the Registrar of the Tribunal on 13 March 2003. The original return date was marked as 7 May 2003, being the day of the original date set down for this hearing, subsequently vacated. That return date was altered to today. 7 The Commissioner of Police has attended through Mr Waters of counsel and has made a number of objections to the summons. These objections were the subject of detailed submissions which I have marked for information as R2 in these proceedings. The relevant submissions are set out at paragraphs 3 to 15 of that document. 8 The essential objection of the Police to the summons is that it has been issued in the context of FOI proceedings for the purpose of obtaining access to the documents that are themselves the subject of the FOI application. The summons might therefore be said to lack any legitimate forensic purpose, and also to be an abuse of the process that the Parliament has contemplated will be followed in respect of FOI proceedings. 9 Mr Patsalis has in my view essentially acknowledged in his submissions today that the objective of the summons is to get particular documents that he is very concerned to have. He acknowledges that the same documents are also the subject of the FOI request. It has emerged today the document of most concern to Mr Patsalis, which is in respect of items 1 and 2 of the FOI request, is a document which I will call the printout. Mr Patsalis has explained today what the relevance of that printout was to the trial and given us transcript references to more clearly identify that document. It was, he states, the subject of observations by the Crown Prosecutor at a certain point in the trial but it does not appear ever to have been received into evidence. Mr Patsalis's position is that he did see the document at that time. He believes the document is of significance to the application he wishes to make to the Supreme Court for a reopening of his conviction. [It has not been located in response to the FOI request.] 10 If one reads the summons one can see specific reference to this issue, in particular in the schedule at l(f). 11 But the more significant point I think is simply that a summons of this kind directed to the kind of documents that are the subject of the FOI application must, I think, in principle - and with all due respect to Mr Patsalis and his motives - be an abuse of process. I am not in stating that conclusion thereby attributing any intention to Mr Patsalis which might be said to involve any thinking on his part that he was abusing the process. It may be that the summons was simply his way of trying better to explain what it is that he is after. 12 But nevertheless, the whole point of FOI proceedings is to permit a structured environment to apply to disputes over requests by members of the community for access to official documents. The Parliament has laid down a detailed code as to the way in which those requests are to be dealt with and determined. It would put the whole FOI scheme on its head if people who had brought forward their request within an FOI framework then within the context of those very proceedings started issuing summonses with the same objective. So, it seems to me that both of the principal submissions of Mr Waters (counsel for the Commissioner) are made out, in particular that it is an abuse of process within the environment of FOI proceedings to issue summonses which have as their object essentially the same documents that are the subject of the FOI request. And secondly, it does not serve any legitimate forensic purpose to do that because the documents which are the subject of the summons are already the subject of the proceedings, so it is impossible to see what added value the summons provides. 13 Now, Mr Waters in his submissions, helpfully I think, did acknowledge that there may be circumstances in which a summons might properly issue within FOI proceedings. I do not want any comments I make today to be misunderstood as suggesting that there might never be such circumstances. But certainly where the terms of the summons, reasonably viewed, really cover the same scope as the FOI request it seems to me that the summons must ordinarily fail. [Since giving these reasons I have located a recent Tribunal decision, C (No. 2) v Secretary, NSW Treasury [2002] NSWADT 235 which contains a detailed treatment of relevant case-law, and is to the same effect as these reasons.] 14 [The following comments were made directly to Mr Patsalis.] The summons that you have issued, Mr Patsalis, is in other respects probably not in proper form. Mr Waters alluded to that. For example, I do not think it is appropriate to have words such as the following in a summons: "l(a) to enable the party to examine the recording keeping system." That is in a sense an objective that you have in respect of the summons, but normally a summons is just a document that is descriptive in its content rather than a document that states objectives, but it may be that you thought that was of value to those who receive the summons. 15 Now, it would be apparent from those comments that if you go ahead and issue these further contemplated summons you will again meet similar objections, so I just ask you to consider that in relation to going down that track. If there is material in these draft summonses that you believe is helpful to a better understanding of your FOI application, well just give the draft summonses to the police on that basis. Just say something like, 'these documents may have value to you in seeking better to understand what it is I am looking for.' But I would discourage you from seeking by means of a summons procedure to get a result within FOI proceedings that you might hope would be different to the result you would get in the proceedings themselves. 16 It is true, and I am not sure whether I made this observation on the last occasion, but it is true that the grounds of objection to a summons are different to the grounds of objection to a request for documents under the FOI Act. One can see that tactically it may sometimes be more attractive to go down the summons route, because the objections are narrower. But on the other hand, it is possible then for conditions to be imposed on the receipt of documents under a summons that can not be imposed once documents are received under the FOI Act. So there are good reasons for drawing a distinction between the two processes. 17 But in making those comments I still think it must be the case that if the summons in the FOI proceedings is basically re-agitating the position in relation to access to the documents that are the subject of the head proceedings, well then it would be an abuse of process to transform the proceedings into proceedings around the summons. So I agree with Mr Waters on that point. 18 Now, the consequence of what I have said is that the objection to compliance with the summons made by the Police is upheld, and I should set aside the summons. 19 Mr Patsalis has raised the question of power [to set aside]. The Act is silent on this matter. 20 The relevant provision is s 84 of the Tribunal Act which provides: ' 84. Issue of summons (1) A summons for the purposes of this Act may be issued by the Registrar: (a) on the application of a party to proceedings before the Tribunal, or (b) at the direction of the Tribunal. (2) Any such summons must be signed by the Registrar or as otherwise provided by the rules of the Tribunal. (3) Any such summons may require a person to do any one or more of the following: (a) attend and give evidence, (b) attend and produce documents or other things. (4) A person who, without reasonable excuse, fails to comply with the requirements of a summons is guilty of an offence. Maximum penalty: 100 penalty units. (5) A summons may be served within or outside the State.' 21 See further Rule 20 (summons) and Rule 46 (Persons authorised to sign Summonses) of the Administrative Decisions Tribunal (Interim) Rules 1998 . 22 Mr Waters has made some submissions on the matter. It seems to me that it would be a very strange state of affairs if the Tribunal did not have an implied jurisdiction connected with the power to issue a summons to also exercise a power to, in a sense, revoke the issuance of the summons by making an order to set aside. Though obviously when one is dealing with Tribunals it would be better if these things are expressly stated. 23 It certainly cannot follow, it seems to me that a party can have a Registrar issue a summons and then the respondent to the summons is somehow placed in a relationship of command as between the person who obtained the summons and their responsibilities. That would be a perversion of the understood role of summonses in legal proceedings. So, I think that argument which has to do with the interests of justice and the ordinary operation of the legal system again supports the view that the Tribunal must have some implied power to act in the way we are acting today on return of the summons. [I have since found that this issue was also addressed in C (No. 2) v Secretary, NSW Treasury [2002] NSWADT 235 at [69]. The Tribunal held that it has power to set aside a summons by implication on the principle that a grant of power carries with it everything necessary for its exercise and cited Grassby v R (1989) 168 CLR 1 at 16.] 24 So, they are my views on that matter. The summons is set aside, Mr Patsalis. On the other hand, I think we have obtained some better understanding of the nature of your case during today's proceedings, and I would ask you to take into account what I have had to say in respect of the issuance of further summonses in these proceedings.' ORDER 1. Applicant's summons set aside. 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.