NZ v Commissioner of Police, NSW Police (GD) [2007] NSWADTAP 29

Appeal Panel - Internal

CITATION: NZ v Commissioner of Police, NSW Police (GD) [2007] NSWADTAP 29

APPELLANT PARTIES: NZ RESPONDENT Commissioner of Police, NSW Police

FILE NUMBER: 079024

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 5 June 2007

DATE OF DECISION: 21 June 2007

BEFORE: Hennessy N - Magistrate (Deputy President); Higgins S - Judicial Member; Bolt M - Non Judicial Member

CATCHWORDS: Freedom of Information Act - jurisdiciton - Privacy and Personal Information Protection Act - jurisdiction

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 073035

DATE OF DECISION UNDER APPEAL: 04/16/2007

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998

CASES CITED: NZ v Commissioner of Police, NSW Police [2006] NSWADT 332

APPELLANT In person REPRESENTATION: RESPONDENT C Weiss, agent

ORDERS: 1. Leave to appeal against the merits of the Tribunal's decision refused.; 2. Appeal dismissed.

REASONS FOR DECISION Introduction 1 NZ has appealed to the Appeal Panel from a decision of the Tribunal that it has no jurisdiction, either under the Freedom of Information Act 1989 (FOI Act) or the Privacy and Personal Information Protection Act 1998 (the PPIP Act) to hear her applications. NZ is entitled to appeal on a question of law: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113(2)(a). She has also asked for the Appeal Panel's leave to review the merits of the Tribunal's decision: ADT Act, s 113(2)(b). NZ suffers from anxiety based social phobia and agoraphobia. She rarely leaves her home and is unable to attend hearings in person. I agreed to her request to have this appeal determined 'on the papers' pursuant to s 76 of the ADT Act. Tribunal's decision 2 It was not clear from NZ's application to the Tribunal which decision she was asking the Tribunal to review. After seeking clarification from her, the Tribunal considered it necessary to first satisfy itself that it had jurisdiction to proceed to hear the matter. The Tribunal heard submissions from both parties in relation to the Tribunal's jurisdiction under both the FOI Act and the PPIP Act. 3 Ms Weiss, for the Commissioner, first submitted that the Tribunal had no jurisdiction to hear NZ's application for review of the internal review decision made under the FOI Act because the internal review decision had already been the subject of external review by the Tribunal: NZ v Commissioner of Police, NSW Police [2006] NSWADT 332. NZ submitted that her current application deals with a different issue from that dealt with in her previous application. The Tribunal found that NZ had not provided any evidence of any subsequent internal review decision in relation to a fresh FOI application, and that she appeared to be requesting a review in a matter that had already been determined by the Tribunal. The Tribunal found that the principle of res judicata pro veritae accipitur (a judicial decision is conclusive until reversed and its verity cannot be contradicted) applied to NZ's application, and that the Tribunal had no jurisdiction in relation to her application for review under the FOI Act. 4 Ms Weiss also submitted that the Tribunal had no jurisdiction in relation to an application by NZ to review a decision made under the PPIP Act because there was no evidence of an internal review decision on an application by her under that Act that would give the Tribunal jurisdiction. NZ submitted that NSW Police has violated her privacy on numerous occasions and that an internal review decision had been made. The Tribunal found that, as NZ was unable to provide evidence of such a decision, and an internal review application is a pre-requisite to a review by the Tribunal under sections 53 and 55 of the PPIP Act, the Tribunal had no jurisdiction in relation to NZ's application for review under the PPIP Act. Grounds of Appeal 5 NZ lists numerous grounds of appeal in her written submissions. Some of the grounds are difficult to discern, but my understanding is that NZ submitted that the Tribunal erred in law by determining that the decision that she was asking the Tribunal to review was the FOI application, not the alleged privacy breaches. Next, NZ submitted that even though the Tribunal stated at [3] that the claim concerned a breach of privacy, it failed to consider the privacy matter. There is a short answer to each of these submissions. The Tribunal considered its jurisdiction in relation to both the FOI request and the alleged breaches of privacy and found it had no jurisdiction to consider either application. 10 Secondly, NZ challenged the Tribunal's decision that it had no jurisdiction to hear the FOI request on the grounds of res judicata pro veritae accipitur (a judicial decision is conclusive until reversed and its verity cannot be contradicted). NZ submitted that the Tribunal determined in a previous decision handed down on 24 November 2006 that the documents in question had not been reviewed at all. In that case she said that it was open to the Tribunal to make findings in relation to that matter. In the previous decision, the Tribunal found that 35 documents requested by NZ were requested on internal review, rather than in the initial application and that consequently the Commissioner had no obligation to make a determination in relation to that request. The Tribunal suggested that NZ could re-apply for the documents and that that application would be subject to all the rights of review available under the FOI Act. 6 NZ's third ground of appeal was that the Tribunal had jurisdiction to hear the alleged privacy breaches, as there had been an internal review decision in relation to those matters. NZ submitted that she had complied with s 53 and 55 of the PPIP Act, and that the Tribunal erred in law by accepting the Commissioner's submission that there had been no application for an internal review. However, NZ provided no evidence of a relevant internal review decision under the PPIP Act. At [12] the Tribunal considered s 53 and 55 of the PPIP Act, which provide that an internal review application is a pre-requisite to a review by the Tribunal. The Tribunal found no evidence that an internal review had been conducted and concluded that it had no jurisdiction in relation to the privacy matter. 7 NZ has not identified any question of law in relation to the Tribunal's decision. Extension of appeal to the merits 8 NZ applied for leave for the appeal to be extended to a review of the merits of the Tribunal's decision on the ground that the Tribunal has jurisdiction to hear the privacy breaches, and to not do so would amount to a denial of her rights to justice. Such a review would involve the Appeal Panel determining whether the Tribunal has jurisdiction to hear either of her applications. The Tribunal has already undertaken that task without legal error. The Appeal Panel cannot give the Tribunal jurisdiction that it does not have and NZ has not provided any fresh evidence of a relevant internal review decision. Consequently, leave to appeal on the merits is refused. Orders Leave to appeal against the merits of the Tribunal's decision refused. Appeal dismissed.