Appeal Panel - Internal CITATION: Patsalis v Commissioner of Police, NSW Police (GD) [2004] NSWADTAP 20 APPELLANT PARTIES: Michael Patsalis RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 039078, 049007 HEARING DATES: 01/04/2004 SUBMISSIONS CLOSED: 05/21/2004 DATE OF DECISION: 05/31/2004 Patsalis v Commissioner of Police, NSW Police (29 May 2003); Patsalis v Commissioner of Police, NSW Police (No 2) [2003] NSWADT 213 DECISION UNDER APPEAL: BEFORE: Hennessy N - Magistrate (Acting President); Robinson MA - Judicial Member; Bolt M - Non Judicial Member CATCHWORDS: leave to appeal out of time - no question of law identified MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 033041 DATE OF DECISION UNDER APPEAL: 09/10/2003 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1989 Interpretation Act 1987 Supreme Court Act 1970 Brandusoiu v Commissioner of Police [1999] NSWADTAP 8 Mayhew v A [1999] NSWADTAP 1 CASES CITED: Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWADTAP 3 Lupevo Pty Ltd t/a Ampol Nabiac -v- Bree [2002] NSWADTAP 9 B v Commissioner of Police [2000] NSWADT 168 Shepherd and Department of Housing, Local Government & Planning [1994] QICmr 7 (18 April 1994) APPELLANT REPRESENTATION: In person RESPONDENT D Paterson, solicitor ORDERS: Each appeal is dismissed. REASONS FOR DECISION Introduction 1 Mr Patsalis has appealed against two decisions of the Tribunal. The first decision, made on 29 May 2003, was to set aside a summons that he issued to the Commissioner of Police (the summons appeal). The second decision, made on 10 September 2003, was to dismiss parts of Mr Patsalis' application under the Freedom of Information Act 1989 (FOI Act). The Tribunal held, contrary to Mr Patsalis' submission, that the Commissioner of Police did not hold certain documents which were the subject of his application under the FOI Act. In doing so the Tribunal rejected Mr Patsalis' submission that the Commissioner had not conducted an adequate search for those documents. We refer to this appeal as the "adequacy of search" appeal. 2 Both Mr Patsalis' appeals were lodged out of time. The first question for the Appeal Panel is whether to accept the appeals out of time. If one or both appeals is accepted then the Appeal Panel must go on to consider the substantive grounds of appeal. Jurisdiction 3 The Appeal Panel has jurisdiction to hear these appeals under s 113 of the Administrative Decisions Tribunal Act 1997 (ADT Act): (1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel. (2) An appeal under this Part: (a) may be made on any question of law, and (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision 4 Mr Patsalis appealed on what he said were questions of law and applied for leave to extend the appeal to the merits of each decision. 5 The Tribunal's decision to set aside the summons issued by Mr Patsalis is an "appealable decision" (Lloyd v Veterinary Surgeons Investigating Committee & Anor [1999] NSWCA 68, per Mason P, Priestley and Stein JA at [22] to [23].) The decision to dismiss parts of Mr Patsalis' application to the Tribunal under the FOI Act is also an "appealable decision". 6 Under s 113(3) of the ADT Act an appeal must be lodged within 28 days after the Tribunal furnishes the party with written reasons for the decision. However the Appeal Panel may allow further time to lodge an appeal. 7 Ms Paterson, the solicitor representing the Commissioner of Police, appeared before the Appeal Panel at the hearing. At Mr Patsalis' request, he did not appear at the hearing, but asked the Appeal Panel to rely on his written submissions. We undertook to provide the parties with a copy of the transcript of the hearing and made further directions in relation to the filing and service of additional material. Mr Patsalis filed additional material on 21 May 2004. Background 8 Mr Patsalis is in prison at Goulburn Correctional Centre. On Friday 24 September 1999, Mr Patsalis and an accomplice were each found guilty of the murder of Klaus Peter Ludwig. Mr Patsalis intends to apply to the Supreme Court for an inquiry into his conviction. The relevant parts of his FOI application are as follows: All COPS and NetMail police computer system records for 12 April 1996 in respect of the investigation into the murder of Mr KP Ludwig. All documents evidencing the accessing of the COPS and NetMail police computer system records for Friday 12 April 1996 in respect of the investigation into the murder of Mr KP Ludwig, by any person since that time. 9 Mr Patsalis subsequently advised the Tribunal that he was not pressing his application in relation to NetMail information. The focus of Mr Patsalis' concern was a "printout" which he described in the hearing before the Tribunal on 18 August 2003 as follows: It's the printout document which was disclosed to myself by the Crown prosecutor and by Detective Jacob at the trial on the 48th day, being Wednesday, 15 September 1999. The transcript reference pages are 2582 and 2595. The printout document records information of the police investigation for Friday, 12 April 1996 relating to a number of police inquiries which were made on this day on the New South Wales police database, also called the COPS computer system from the evidence of the police officers at the trial. The computer system was accessed by a number of police officers associated in the investigation of Mr Ludwig's death. That is, for Friday, 12 April 1996.' 10 Later, Mr Patsalis told the Tribunal that: So the records that I'm after is which police officer accessed the system on Friday, 12 April 1996 in respect of their duties that they were performing on that day. That is, investigating a murder . . . 11 Mr Patsalis also summonsed from the Commissioner of Police a document described as: All COPS police computer system records for Friday 12 April 1996 in respect of the investigation of the murder of Mr KP Ludwig, i.e. the printout record for Friday 12 April. [Please see attached schedule, i.e. a further two pages] Annexure A – B. 12 The Tribunal set aside the summons on the grounds that it was an abuse of process and served no legitimate forensic purpose. Out of time 13 Adequacy of search appeal. Both Mr Patsalis' appeals were lodged out of time. The adequacy of search decision was made on 10 September 2003. Mr Patsalis received a copy of the reasons for decision on 12 September 2003. He filed his appeal on 27 October 2003. The appeal was 17 days late. Mr Patsalis said that he calculated the 28 day period provided for in s 113(3) by excluding weekends. Although Mr Patsalis says "the Act is silent on this matter", s 36 of the Interpretation Act 1987 makes it clear that the reckoning of time normally includes weekends unless the last day falls on a Saturday or Sunday in which case the document may be filed on the first week day that is not a public holiday or a bank holiday. Mr Patsalis' second reason for requesting an extension of time was that he originally filed an appeal on 8 October 2003, but for some reason that Mr Patsalis does not explain, that appeal did not proceed. If it had proceeded, it would have been lodged five days out of time. 14 The Commissioner of Police did not object to the Appeal Panel accepting Mr Patsalis' adequacy of search appeal out of time. As the appeal was 17 days late, and given the reasons for the delay, together with all the other relevant matters referred to below at [15], we exercise our discretion under s 113(3)(b) to allow Mr Patsalis until 27 October 2003 to lodge the adequacy of search appeal. 15 Summons appeal. The Tribunal handed down its decision setting aside the summons on 29 May 2003. That decision was given ex tempore and later revised. The revised decision was sent to Mr Patsalis by letter on 5 June 2003. Mr Patsalis does not provide any evidence of the date on which he received that decision, but we find, in accordance with the provisions of s 76 of the Interpretation Act 1987, that he received it on the fourth working day following the day on which it was posted, that is 11 June 2003. Mr Patsalis lodged his appeal on 10 February 2004, seven months out of time. The Commissioner submitted that the Appeal Panel should not extend the time for lodgement. Factors relevant to accepting an appeal out of time 16 The factors relevant to a consideration of this issue were set out by the Appeal Panel in Lupevo Pty Ltd t/a Ampol Nabiac -v- Bree [2002] NSWADTAP 9. In that case the appeal was lodged six weeks out of time and the Appeal Panel refused the appellant's application for leave. At [5] to [9], the Appeal Panel set out the relevant principles to be applied when considering whether to exercise its discretion to extend time: The section invokes a broad discretion in the Panel to extend the time for the lodgement of the appeal. In that respect, it is on all fours with s 29(7) of the Administrative Appeals Tribunal Act 1975 (Clth) (the AAT Act), albeit that provision refers to the time within which application may be made to the Commonwealth Administrative Appeals Tribunal (the AAT) for a review of an administrative decision. Section 29(7) of the AAT Act has been the subject of a number of AAT decisions, which are helpful in the present context. In Meschino and Secretary, Department of Family and Community Services [2001] AATA 342 the AAT referred to Re Schmack and Defence Force Retirement and Death Benefits Authority (1981) 3 ALN N77 in reliance upon a number of factors relevant to the exercise of the discretion, which may be re-stated as follows:- the reason for the failure to lodge the appeal. the length of the delay in lodging the appeal. the diligence shown by the Appellant in lodging the appeal after it came to his notice that there were circumstances justifying an appeal. the nature of the decision below and the consequences of the decision upon the Appellant's rights. the adequacy of the information conveyed to the Appellant at the time the decision was notified to him, both as to the reasons for the decision and of the Appellant's entitlement to appeal. the extent of the Appellant's knowledge of the relevant statutory provisions. the possible prejudice to the Respondent to the appeal. The AAT also referred to Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 with approval. The principles to be applied in the exercise of the discretion which were summarised by Wilcox J in Hunter Valley Developments were also applied in Goldie and Minister for Immigration and Multicultural Affairs [2001] AATA 513. Those principles relevantly are:- Prima facie, proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so. It is relevant whether the Appellant rested on his rights or took action to make the decision-maker aware that the decision was being contested. Any prejudice to the Respondent that would be caused by granting an extension of time is relevant. The merits of the appeal are relevant. Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant. To the last-mentioned principle may be added general considerations of fairness and equity: Hunter Valley Developments, Maric v Comcare (1993) 40 FCR 244 at 249. Further to the provision of an explanation for the delay in lodging the appeal, an acceptable explanation will generally be expected in support of an application for extension of time, and a failure to provide such an explanation is also a relevant factor in the exercise of the discretion to extend the time: Comcare v A'Hearn (1993) 45 FCR 441 at 444. Reasons for not appealing in time 17 Mr Patsalis' reasons for not lodging an appeal within time are set out in an affidavit dated 24 December 2003 and filed with the Tribunal on 5 January 2004. In that affidavit Mr Patsalis sets out the fact that he appealed against the Tribunal's summons decision to the Supreme Court on 7 August 2003, two months after receiving the decision. When the matter was listed for mention on 18 November 2003, the Crown Solicitor's representative objected to the matter being heard by the Supreme Court, rather than the Appeal Panel of the Administrative Decisions Tribunal (ADT). Mr Patsalis' matter was subsequently transferred to the Court of Appeal, presumably because appeals from a decision of a Judge of the District Court, including Judge KP O'Connor, are to be determined by that Court. The matter was listed for mention on 8 December 2003 and the representative from the Crown Solicitor's office raised the same objection. Mr Patsalis gave evidence that he received a letter from the Call Centre Manager of the Supreme Court dated 28 August 2003 informing him that his "application was forwarded to the Registrar for consideration and had been approved." That letter was not attached to the affidavit. Mr Patsalis submitted that since his application had been approved, even though the Registrar of the Court of Appeal ultimately determined that the matter ought to be heard and determined by the ADT Appeal Panel, he has a valid reason for the delay in filing the appeal with the Appeal Panel. 18 Nothing in the ADT Act (except s 123) affects the power of the Supreme Court, in the exercise of its original jurisdiction, to review the decisions of the Tribunal. (See s 122 of ADT Act.) While Mr Patsalis was legally entitled to appeal to the Supreme Court, pursuant to s 69 of the Supreme Court Act 1970, s 123 of the ADT Act gives the Supreme Court discretion to refuse to hear such an appeal if satisfied that, in all the circumstances, adequate provision is made under the ADT Act for the applicant to seek an alternative review of the decision. We assume that that was the reason that the Court of Appeal did not hear the appeal. Length of the delay 19 Seven months is a relatively long time to delay filing an appeal given the statutory requirement that an appeal be filed within 28 days of receiving the decision. Mr Patsalis took two months to appeal to the Supreme Court and when that appeal was finalised on 8 December 2003, he took a further two months to lodge an appeal with the Appeal Panel. Mr Patsalis provided no explanation for these delays. Adequacy of information conveyed 20 The Tribunal advised Mr Patsalis at the end of the hearing that he would be given a copy of the decision within 28 days. Furthermore, the Tribunal advised Mr Patsalis at the end of the hearing relating to the summons that he could appeal to the Appeal Panel against his decision. It is also the Tribunal's usual practice when furnishing a copy of written reasons for a decision, to notify each party in writing that they have 28 days in which to lodge an appeal to the Appeal Panel. The appellant did not submit that such a notice was not given to him and we find that it was given. In those circumstances, Mr Patsalis knew of his rights to appeal to the Appeal Panel against the Tribunal's decision and of the time limit for such an appeal. Prejudice to the Commissioner 21 The prejudice to the Commissioner if the Appeal Panel accepts the appeal out of time is that Ms Paterson did not have adequate time to respond to the appeal. She did not know that an appeal had been lodged with the Supreme Court and was not served with the Notice of Appeal to the Appeal Panel. The Tribunal forwarded Ms Paterson a copy of the Notice of Appeal by facsimile on 8 March 2004. We find that the Commissioner was prejudiced in its preparation of its case by not receiving the Notice of Appeal until 3 ½ weeks before the hearing. Merits of the appeal 22 Mr Patsalis perceives that an adverse decision in relation to the summons appeal will affect the likelihood of him successfully applying to the Supreme Court for an inquiry into his conviction. We do not have sufficient information on which to make a finding on that issue. In his submissions to the Appeal Panel, Mr Patsalis said that he wrongly conceded before the Tribunal that the documents requested in the summons were the same as those requested in his FOI application. He added that the summons was a serious attempt to better identify and to further clarify for the agency and the Tribunal the document in question. Mr Patsalis submitted that the summons serves a legitimate forensic purpose because it identifies and describes a document which was not previously described or referred to in his FOI application. The two requests are set out below. The FOI request was for: All COPS and NetMail police computer system records for 12 April 1996 in respect of the investigation into the murder of Mr KP Ludwig. All documents evidencing the accessing of the COPS and NetMail police computer system records for Friday 12 April 1996 in respect of the investigation into the murder of Mr KP Ludwig, by any person since that time. 23 The request in the summons was for: 1. All COPS police computer system records for Friday 12 April 1996 in respect of the investigation into the murder of Mr KP Ludwig, i.e. the printout record for Friday 12 April 1996 [Please see attached schedule, i.e. a further two pages] Annexure A-B. 24 The request in the first paragraph of the FOI application appears to be virtually identical to the request for the document in the summons. Mr Patsalis' submission to the contrary is unlikely to succeed. 25 The Tribunal found at [11] – [12] that the issuing of a summons for the same documents as those requested in an FOI application is an abuse of process and, in addition, the summonsed documents do not serve any legitimate forensic purpose. Mr Patsalis set out various authorities on which he relied to dispute the Tribunal's findings but he failed to demonstrate how the legal principles on which the Tribunal relied were erroneous or how the Tribunal had incorrectly applied those principles to the facts of the case. 26 We have read all Mr Patsalis' written submissions and cannot identify a particular instance where Mr Patsalis maintains that the Tribunal has made what could amount to a legal error. Consequently, the likelihood that Mr Patsalis would succeed in relation to the summons appeal is extremely low. Conclusion 27 Mr Patsalis exercised his right to appeal to the Supreme Court under s 69 of the Supreme Court Act 1970. He was on notice when he did so, that an appeal to the Appeal Panel had to be lodged within 28 days of receiving the Tribunal's decision. The appeal to the Supreme Court was lodged two months after receiving that decision. Despite filing an affidavit with the Tribunal on 5 January 2004 setting out the reasons for not appealing earlier, Mr Patsalis did not lodge an appeal to the Appeal Panel until 10 February 2004. Even accepting that there may be administrative delays in sending and receiving documents from prison, there is an unexplained delay of two months from the time of receiving the Tribunal's decision to the time of filing an appeal in the Supreme Court. There is a further unexplained two month delay from the Supreme Court's decision to the lodging of the appeal with the Tribunal. The Tribunal provided Mr Patsalis with ample information on his rights of appeal. The Commissioner of Police was prejudiced by the late notice of the appeal. Finally, given that Mr Patsalis' chances of success on appeal are negligible, we have decided not to accept Mr Patsalis' summons appeal out of time. Adequacy of search appeal 28 Tribunal's findings. The Tribunal set out its reasons for finding that the Commissioner had conducted an adequate search at [50] – [53]: 50 Sufficiency of search challenges are difficult ones for applicants to establish. The agency will ordinarily put on evidence from relevant personnel. Here it was the officer in charge of the investigations, and an officer with authority to search Internal Affairs records. The applicant does not have inside access to the records system, and is left as occurred here to ask questions that might demonstrate some weakness in what was done. Here one weakness was shown, that is that the officers did not have the details he gave on 29 May 2003 when they undertook their further inquiries. 51 Ultimately the question is: Whether the conclusion [the agency] reached, that the agency did not hold any documents relating to the applicant other than the ones released ... was sound. If so, it would be open to the Tribunal to conclude that there were no other documents held by the agency in relation to the request, that the request had been met and consequently there was no basis for the application for review': B v Commissioner of Police [2000] NSWADT 168 at [13]. 52 To similar effect, the Queensland Information Commissioner in Shepherd and Department of Housing, Local Government & Planning [1994] QICmr 7 (18 April 1994); (1994) 1 QAR 464: 18. It is my view that in an external review application involving sufficiency of search issues, the basic issue for determination is whether the respondent agency has discharged the obligation, which is implicit in the FOI Act, to locate and deal with (in accordance with Part 3, Division 1 of the FOI Act) all documents of the agency (as that term is defined in s.7 of the FOI Act) to which access has been requested. 19. In dealing with the basic issue referred to in paragraph 18, there are two questions which I must answer: (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency (as that term is defined ... the FOI Act); and if so, (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case. 22. With regard to the second question set out in paragraph 19 above, I agree with the view expressed by the Commonwealth Administrative Appeals Tribunal, in its decision on a sufficiency of search case in Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health (1985) 8 ALD 163 at p.167, that: "the adequacy of the search effort made to locate the document should be judged by having regard to what was reasonable in the circumstances."' 53 In Beesley v Commissioner of Police [2000] NSWADT 52 at [19] the Tribunal said: All the Tribunal can do is assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them. If left unsatisfied by the agency's evidence, its only remedies may be to direct further searches, or the production of better evidence as to searches or the reference of the cases to the Ombudsman. 29 On the basis of Mr Patsalis' Notice of Appeal and subsequent submissions, his grounds of appeal on questions of law can be summarised follows: 1. The Tribunal erred in law by failing to apply the legal principles as set out in B v Commissioner of Police [2000] NSWADT 168 at [13]. 2. The Tribunal erred in law by failing to apply the legal principles as set out in Shepherd and Department of Housing, Local Government & Planning [1994] QICmr 7 (18 April 1994); (1994) 1 QAR 464. 30 We have carefully read through Mr Patsalis' written submissions but are unable to identify any error of law made by the Tribunal. Mr Patsalis restates the law and challenges factual findings. He repeats legal submissions that were, in our view, rightly rejected by the Tribunal. While we appreciate the difficulties faced by an unrepresented person in identifying an error of law, our role is to determine this appeal in accordance with Chapter 7, Part 1 of the ADT Act. We can detect no error of law in the reasoning or conclusions of the Tribunal and the appeal on a question of law is dismissed. Extension to the merits 31 In seeking leave to extend the appeal to the merits of the appeal, Mr Patsalis submitted that: 1. The Tribunal's conduct at various times denied the applicant a fair hearing. 2. The Tribunal failed to act judicially and the decision is flawed. 32 Mr Patsalis elaborated on these grounds of appeal saying that if he is refused leave to appeal there will be "great hardship" or "injustice." Mr Patsalis alleged that the Tribunal had made various factual errors in its decision. These included alleged confusion by the Tribunal between the COPS and the RTA system, an assertion that Mr Patsalis wanted some kind of replica of the printout and that the tracing methods used by Mr McCarthy from Internal Affairs were legitimate. These are all questions of fact. 33 The Appeal Panel's approach to granting leave to extend an appeal to the merits is that an arguable question of law needs to be identified before such leave should be given. See generally: Mayhew v A [1999] NSWADTAP 1; Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWADTAP 3; and Brandusoiu v Commissioner of Police [1999] NSWADTAP 8 at [4].) In line with those decisions, we decline to give leave to Mr Patsalis to extend the appeal to the merits of the decision. Order 35 Each appeal is dismissed. 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.