NZ v Commissioner of Police, NSW Police (GD) [2006] NSWADTAP 57

Appeal Panel - Internal

CITATION: NZ v Commissioner of Police, NSW Police (GD) [2006] NSWADTAP 57

APPELLANT PARTIES: NZ RESPONDENT Commissioner of Police, NSW Police

FILE NUMBER: 069024

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 06/13/2006

DATE OF DECISION: 11/02/2006

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

CATCHWORDS: evidence - failure to give due consideration - jurisdiction - procedural fairness

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 053402

DATE OF DECISION UNDER APPEAL: 05/16/2006

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997

CASES CITED: GL v Director General, Department of Education and Training [2003] NSWADT 166JD v Director General, NSW Department of Health [2004] NSWADT 7KO & anor v Commissioner of Police, New South Wales Police (GD) [2004] NSWADTAP 21

APPELLANT In person REPRESENTATION: RESPONDENT R Burdick, agent

ORDERS: 1. Leave to extend the appeal to the merits of the Tribunal's decision is refused; 2. The Tribunal's decision to dismiss the proceedings pursuant to s 73(5)(h) of the Administrative Decisions Tribunal Act 1997 is affirmed.

REASONS FOR DECISION Introduction 1 Background. NZ has appealed to the Appeal Panel from a decision of the Tribunal summarily dismissing her application against the Commissioner of Police in relation to alleged breaches of the Privacy and Personal Information Protection Act 1998 (PPIP Act). NZ suffers from the psychological condition known as agoraphobia (fear of open spaces and fear of being in a crowd) and from panic attacks. She is unable to leave her home except very occasionally. She has been involved in litigation with members of her family and with numerous public sector agencies for several years. A hallmark of NZ's conduct is that she sends, often by facsimile, bundles of disorganised documents and letters to public sector agencies and to this Tribunal. It is often difficult and time consuming to identify from this material, the point that NZ is endeavouring to communicate. We start with this background information because it is this conduct that has led, in part, to the proceedings now before the Appeal Panel. 2 Over several years, NZ has sent letters and other documentation to NSW Police purporting to be requests for internal reviews of Police conduct pursuant to the PPIP Act. That Act gives a person aggrieved by the conduct of a public sector agency, the right to a review of the conduct: s 53(1). The purpose of the review is to determine whether any of the information protection principles or privacy codes of conduct applicable to the agency have been breached: s 52. For example, with some exceptions, s 18 of the PPIP Act prevents an agency from disclosing personal information. Personal information is defined to mean "information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion." 3 The background to these proceedings is set out by the Tribunal at [3] to [7] of the decision: 3. This matter appears to arise from conflict between NZ and her relatives and a neighbour that led to Apprehended Violence Order proceedings in Waverley Local Court. NZ alleges that her signature has been forged on various documents and that false documents have been provided to the Court. She claims to have suffered distress and psychological injury as a result. 4. NZ alleges that the Police have failed to take action in relation to fraudulent documents and documents on which her signature has been forged, and have failed to action an AVO granted to her by Waverley Local Court. She claims that the Police are holding and distributing false information about her, and that police officers have telephoned her at home, have come to her home making enquiries, and have delivered a letter to her home without her consent. NZ claims she has been victimised by the Police, who have breached her privacy and refused to accord her rights. 5. NZ first applied to the Tribunal in relation to these alleged breaches of privacy on 19 July 2004. In NZ v Commissioner of Police [2005] NSWADT 35, the President of the Tribunal, O'Connor DCJ, dismissed NZ's application for lack of jurisdiction, on the ground that NZ had failed to provide the Police with an opportunity to conduct an internal review of the alleged misconduct. 6. NZ states the Police have ignored her many requests to conduct an internal review of the alleged misconduct. She has now produced copies of a number of letters addressed to the Police requesting internal review in relation to alleged breaches of her privacy by the Police: including letters dated 14 March 2003, 10 March 2004, 12 May 2004, 6 August 2004, 19 August 2005, and 10 September 2005. 7. On 14 November 2005, NZ filed a further application with the Tribunal for review of the conduct of the Police under the PPIP Act. 4 The Tribunal dismissed the application and NZ has appealed to the Appeal Panel against that decision. 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). Because NZ's disability prevents her from leaving home, the Appeal Panel acceded to her request that the appeal be determined "on the papers" pursuant to s 76 of the ADT Act . Tribunal's decision 5 The Tribunal dismissed NZ's application as misconceived and lacking in substance pursuant to s 73(5)(h) of the ADT Act. The Tribunal's findings and reasoning process can be summarised as follows: 1. The Tribunal has jurisdiction to hear NZ's application pursuant to s 55 of the PPIP Act because she has applied to the Police for internal review of alleged conduct on numerous occasions. 2. Consideration of the documents provided by NZ and her submissions lead to the conclusion that the proceedings are misconceived and lacking in substance. The proceedings are misconceived "in the sense that she appears to misunderstand the scope of the protection afforded by the PPIP Act – believing it to be much broader than it is in fact". The proceedings are lacking in substance "in so far as she has not identified any specific conduct by the Police that could involve breaches of her privacy under the PPIP Act." Grounds of Appeal 6 NZ lists numerous grounds of appeal in written submissions. We are unable to make sense of some of those grounds and others are not relevant to these proceedings. We deal with the remaining grounds below. 7 First, NZ says she did not claim, "the matter is from relatives and neighbours what I said is that as a result of the police privacy breaches taking in 'false fraud allegations', complaints and these parties trading under my privacy and name". A reading of the Tribunal's decision reveals that a reference to "relatives and neighbours" appears when the Tribunal Member is describing the background to the proceedings at [3]. The Tribunal was not under a misapprehension that NZ's application related directly to the conduct of her relatives or neighbours. 8 At [4] the Tribunal attempts to summarise some of the allegations NZ has made in relation to the conduct of Police, including that they "have delivered a letter to her home without her consent." NZ's second ground of appeal was that Police did not deliver only "one letter"; they have breached her privacy for years. NZ does not give any particulars about the letters police have sent to her, nor does it ultimately make any difference to the Tribunal's decision whether there was one letter or numerous letters. The Tribunal Member makes it clear at [15] that he has "reviewed the copy correspondence and documents provided by NZ in conjunction with her written submissions." Even if Police officers sent more than one letter to her home, the Tribunal has not made an error of law by referring to "a letter". 9 Thirdly, NZ said that because of her disability, the Tribunal should have contacted her solicitor by letter and should have reviewed all of her evidence. The Tribunal's failure to do so was alleged to be an abuse of her legal rights. NZ was not represented in these proceedings and accordingly, the Tribunal had no obligation to contact her solicitor. As we have already noted, the reasons make it clear at [15] that the Tribunal considered all the documentation provided by NZ. 10 Fourthly, NZ submitted that the privacy breaches were not just a matter of Police attending her home in the line of duty. We understand this submission to be a reference to s 27 of the PPIP Act which states that the information protection principles in Division 1 of Part 2 of the PPIP Act, do not apply to NSW Police except in relation to their "administrative and educative functions". NZ appears to be making the point that Police were exercising administrative or educative functions when her privacy was breached. The Tribunal Member did not need to make any specific finding about whether the alleged conduct related to the administrative or educative functions of Police because he decided that the application was misconceived and lacked substance. Consequently, there is no error on this ground. 11 Fifthly, NZ said the Tribunal erred by refusing to allow her to summons documents to prove her allegations. NZ must identify the conduct complained of, so that the Tribunal can review the conduct and determine whether it contravenes the PPIP Act: GL v Director General, Department of Education and Training [2003] NSWADT 166 at [26]; JD v Director General, NSW Department of Health [2004] NSWADT 7 at [38]. The Tribunal concluded at [18] that NZ had not identified specific conduct by the Police that could involve breaches of her privacy under the PPIP Act. Since NZ did not meet the threshold requirement of identifying any conduct which could potentially be in breach of the PPIP Act, there was no basis on which she could request the Tribunal to issue summonses for the production of documents to shed light on that conduct. NZ is not entitled to summons documents for the purpose of identifying the conduct itself. There will be situations where, once the conduct has been identified, it will be up to the agency to produce to the Tribunal direct evidence of the conduct in issue from relevant officers: KO & anor -v- Commissioner of Police, New South Wales Police (GD) [2004] NSWADTAP 21. That was not the situation in this case. 12 Extension of appeal to the merits. NZ applied for leave for the appeal to be extended to a review of the merits of the Tribunal's decision. Such a review would involve the Appeal Panel going through NZ's documents to see whether any of her allegations identify conduct that may involve breaches of her privacy under the PPIP Act. The Tribunal has already undertaken that task. NZ either does not understand or does not believe that the Tribunal has reviewed her correspondence and documentation. There is no reason for us to doubt the Tribunal Member's statement at [15] that he has "reviewed the copy correspondence and documents provided by NZ in conjunction with her written submissions." Neither did NZ point to a single incident or document that evidenced such an incident in the material provided to the Appeal Panel that would come within the definition of conduct that breaches the PPIP Act. In those circumstances, leave to appeal on the merits is refused. Orders 1. Leave to extend the appeal to the merits of the Tribunal's decision is refused. 2. The Tribunal's decision to dismiss the proceedings pursuant to s 73(5)(h) of the Administrative Decisions Tribunal Act 1997 is affirmed.