Appeal Panel - Internal CITATION: Commissioner of Police, New South Wales Police v LZ [2008] NSWADTAP 22 APPELLANT Commissioner of Police, New South Wales Police PARTIES: RESPONDENT LZ FILE NUMBER: 079068 HEARING DATES: 8 February 2008 SUBMISSIONS CLOSED: 8 February 2008 DATE OF DECISION: 18 April 2008 BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: Leave to appeal interlocutory decision - leave to extend to the merits MATTER FOR DECISION: Principal matter DECISION UNDER APPEAL: LZ v Commissioner of Police, New South Wales Police FILE NUMBER UNDER APPEAL: 063453 DATE OF DECISION UNDER APPEAL: 11/20/2007 Administrative Decisions Tribunal Act 1997 Civil Procedure Act 2005 LEGISLATION CITED : Freedom of Information Act 1989 Police Act 1990 Protected Estates Act 1983 Supreme Court Act 1970 Adam P Brown Male Fashions Pty Limited v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FAFC 270 Coulter v R [1988] HCA 3; (1988) 164 CLR 350 Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 Hamilton v Oades (1989) 166 CLR 486 CASES CITED: Jackson v Sterling Industries Ltd (1987) 162 CLR 612 Jago v District Court of NSW (1989) 168 CLR 23 Johnson Tiles Pty Ltd v Esso Australia Co-op Co Ltd [1990] VR 355 Khalifeh v RSPCA [2000] NSWSC 912 Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 247 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) ALR 59 Ridgeway v R (1995) 184 CLR 19 Tringali v Stewardson Stubbs and Collett Ltd (1966) 66 SR (NSW) 335 APPELLANT C Spruce, solicitor REPRESENTATION: RESPONDENT No appearance 1. Leave to appeal against the Tribunal's interlocutory that "The respondent's application for dismissal of these proceedings pursuant to section 73(5)(h) of the Administrative Decisions Tribunal Act 1997 is refused" is granted ORDERS: 2. Leave is refused for the appeal to extend to a review of the merits of the Tribunal's decision 3. The Tribunal's order that "The respondent's application for dismissal of these proceedings pursuant to section 73(5)(h) of the Administrative Decisions Tribunal Act 1997 is refused" is affirmed. REASONS FOR DECISION Introduction 1 This is an application for leave to appeal against an interlocutory decision made by the Tribunal in November 2007. The Tribunal's decision was to refuse an application from the New South Wales Police Force (New South Wales Police) to summarily dismiss LZ's application. LZ had applied for documents under the Freedom of Information Act 1989 (FOI Act). New South Wales Police had given her some of the documents but refused access to other documents or parts of documents. LZ applied to the Tribunal for a review of that decision. New South Wales Police submitted that the application before the Tribunal should be dismissed because LZ had not filed any submissions despite the Tribunal directing her to do so on several occasions. LZ claimed that her inability to file submissions was because her neighbour had repeatedly stolen the documents from her home. 2 LZ applied for the hearing of this matter to be vacated because she said that she did not receive the submissions from New South Wales Police, which were filed on 21 January 2008, until 29 January 2008. I note that LZ has a post office box address, but I am not aware of whether she checks her mail each day. She also said that she did not have a sufficient opportunity to arrange for legal representation. I refused that application on the ground that even if LZ did not receive the submission until 29 January, she had 10 days in which to file and serve a response. LZ did not appear at the hearing. 3 I note that the respondent in the Tribunal proceedings (the appellant in these proceedings) was named as Commissioner of Police, New South Wales Police. In my view, the correct name is the New South Wales Police Force: FOI Act, section 6 (definition of agency) and section 7; Police Act 1990, section 4. I will refer to the appellant in these reasons as New South Wales Police. Legal principles in relation to leave to appeal an interlocutory decision 4 The decision to refuse to summarily dismiss an application is an interlocutory decision and requires the Appeal Panel to give its permission before it can go ahead: Administrative Decisions Tribunal Act 1997 (ADT Act), section 113(2A). There are several analogous provisions to section 113(2A) of the ADT Act in other legislation. For example, section 101(2)(e) of the Supreme Court Act 1970 provides that: "An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from an interlocutory judgment or order ..." The High Court has pointed out that the requirement for leave to appeal is designed to operate as a filter restricting access to the appeal process: Coulter v R [1988] HCA 3; (1988) 164 CLR 350 at 359 per Deane and Gaudron JJ. Similarly the leave requirement in section 113(2A) of the ADT Act is designed to restrict access to appeals before the Appeal Panel. The High Court has also pointed out that there are no rigid rules or exhaustive criteria that must be applied when determining whether to grant leave: Adam P Brown Male Fashions Pty Limited v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 175. 5 The general rule is that leave is not granted unless a substantial injustice would result if leave were refused and the decision is attended with sufficient doubt to warrant it being reconsidered by an appeal body: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 398–9; Johnson Tiles Pty Ltd v Esso Australia Co-op Co Ltd [1990] VR 355 at 364. To amount to a substantial injustice, the appeal must have some prospects of success. Where the interlocutory decision concerns the substantive interests of the parties, as opposed to decisions concerning matters of practice and procedure, there is a greater likelihood that an incorrect decision will cause substantial injustice: Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FAFC 270 at [8]. 6 In my view, leave should be granted in this case because important questions of law have been raised and the appeal has some prospects of success. Furthermore, because the question of summary dismissal involves the substantive interests of the parties, justice requires that the appeal be determined. Procedural background 7 The Tribunal summarised the history of these proceedings at [7] to [15] of its reasons for decision: 7 On 22 December 2006, LZ filed an application with the Tribunal for the review of the determination made by the New South Wales Police. A Planning Meeting listed for 20 February 2007 was vacated at LZ 's request and re-listed for 7 March 2007. On that date, I gave directions for the exchange of documents between the parties and listed the matter for hearing on 15 June 2007. 8 On 14 March 2007, the New South Wales Police provided LZ with a copy of all documents obtained by her pursuant to her FOI application on being advised by her that the documents had been stolen. 9 At LZ 's request on 3 April 2007, because of her recent hospitalisation, the Tribunal agreed to vacate the hearing date on 15 June 2007 and re-list the matter for hearing on 4 July 2007 (letter dated 4 April 2007). At the request of the Crown Solicitor's Office ('CSO') representing the Commissioner (by letter dated 13 June 2007), the Tribunal listed the matter for a further Planning Meeting on 20 June 2007 (letter dated 14 June 2007). By letter dated 18 June 2007, LZ requested that the hearing date on 4 July 2007 be vacated and the matter re-listed (1) because she was awaiting a decision from Legal Aid as to whether legal representation would be provided for her in this matter, (2) because of ongoing medical problems, and (3) because all her documents relating to this matter had again been stolen. 10 LZ did not attend the Planning Meeting on 20 June 2007 and an attempt to contact her by telephone was unsuccessful. A solicitor with the CSO did attend and I set a new timetable for the exchange of documents, vacated the hearing date on 4 July 2007, and re-listed the matter for hearing on 11 September 2007. The Tribunal notified LZ of these directions by letter dated 25 June 2007. 11 On 27 June 2007, the New South Wales Police sent LZ with a further set of all relevant documents on being advised by her that the documents had again been stolen. 12 On 11 July 2007, LZ applied to the Registrar for the issue of a summons to her neighbour for the production of documents relating to this matter, which LZ alleged, had been removed by her neighbour from LZ 's house. By letter dated 13 July 2007, the Registrar advised LZ that her request for the issue of a summons had been refused. 13 On 25 July 2007, LZ notified the Tribunal that her documents had been stolen and requested that the matter be re-listed for hearing at a later date. On 27 July 2007, the Tribunal notified the parties that the matter had been re-listed for hearing on 30 October 2007. 14 By letter dated 11 September 2007, the CSO noted that LZ had not filed any further documents in this matter since the commencement of the proceedings, and requested that the matter be listed for dismissal pursuant to section 73(5)(h) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). By letter dated 14 September 2007, the Tribunal notified the parties that the Commissioner's application for dismissal would be considered at the commencement of the hearing on 30 October 2007. 15 According to a chronology of events prepared by the CSO, on 24 September 2007, LZ notified the CSO that while certain documents relating to this matter had been returned to her, others were still missing, having been stolen by her neighbour. On 2 October 2007, the CSO supplied LZ with a full copy of all documents. However, on the same day, LZ apparently notified the CSO that she was still missing documents. According to a letter from LZ filed on 30 October 2007, she received these further documents on 11 October 2007, but she was still missing certain documents and again contacted the CSO asking for further copies of these. LZ said she received these documents by express post on 23 October 2007. However, as a result of a subsequent illegal entry into her house by her neighbour, she is still missing various documents. Tribunal's decision 8 New South Wales Police applied to the Tribunal for LZ's application to be dismissed under section 73(5)(h) of the ADT Act. That provision states that: The Tribunal may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance. 9 New South Wales Police submitted that this power was sufficiently broad to include dismissal for want of prosecution. The Tribunal did not expressly accept or reject that submission. Rather, Judicial Member Handley set out at [29], his understanding of the meaning of vexatious and decided that the circumstances of the present case did not meet that test: In General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, at 129, Barwick CJ emphasised that the power of peremptory dismissal of proceedings is to be exercised cautiously and sparingly. Proceedings can be regarded as 'vexatious' if they are instituted with the intention of annoying, harassing or embarrassing the respondent, if they are brought for a collateral purpose such as wasting time or causing delay, are devoid of any practical effect, or are manifestly untenable: Attorney-General (Victoria) v Wentworth (1988) 14 NSWLR 481 at 491; Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 21 AAR 467, at paragraphs 30 and 31; Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65, at paragraphs 9 to 11; Wilde v University of Sydney (EOD) [2004] NSWADTAP 32, at paragraph 10; Miriani v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 99, at paragraph 28 (O'Connor DCJ, President). 10 The Tribunal made several observations including that there was no evidence to contradict LZ's assertions that documents had been repeatedly stolen from her house and that LZ had, while the proceedings had been on foot, suffered from various medical conditions, which required treatment. The Tribunal concluded at [34] that: While there have undoubtedly been undue delays in the prosecution of these proceedings, LZ has provided reasons for the delays, albeit that there is no specific evidence before the Tribunal as to the alleged thefts of documents. I am not satisfied that there has been any intention on LZ's part to unnecessarily delay the proceedings. I am satisfied that her desire to gain access to relevant documents held by the New South Wales Police is genuine and, in the absence of evidence to the contrary, I am not satisfied that her claim is untenable. I therefore conclude that these proceedings are not frivolous or vexatious and I refuse the Commissioner's application to dismiss LZ's application under section 73(5)(h) of the ADT Act . Grounds of Appeal 11 Introduction. New South Wales Police put forward two grounds of appeal. The first was that the Tribunal had erred by applying the incorrect test when determining whether LZ's application should be summarily dismissed. The second was that the decision was so unreasonable that no reasonable Tribunal could have exercised the power under section 73(5)(h) of the ADT Act in the way that it did: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. 12 Incorrect test? According to New South Wales Police, the Tribunal erred by deciding that the matters set out at [29] of the decision were the only circumstances in which proceedings could be regarded as vexatious and by concluding at [34] that because the proceedings did not fall within one of those categories, they were not vexatious. In support of that submission, New South Wales Police said that there is no precise definition of the term vexatious and it was a mistake restrict the matters included in that term to "defined and closed categories": Hamilton v Oades (1989) 166 CLR 486 at 502, citing Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 639 and Tringali v Stewardson Stubbs and Collett Ltd (1966) 66 SR (NSW) 335 at 340, 344. New South Wales Police went on to say that in addition to the matters noted by the Tribunal, the term "vexatious" may also import a consideration of the justice or fairness of the proceeding, those terms signifying proceedings which are "seriously and unfairly burdensome, prejudicial or damaging" or are "productive of serious and unjustified trouble and harassment". New South Wales Police cited the following decisions in support of that proposition: Ridgeway v R (1995) 184 CLR 19; Jago v District Court of NSW (1989) 168 CLR 23; Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 247; and Hamilton v Oades (1989) 166 CLR 486. 13 The only additional elements of vexatiousness identified by New South Wales Police, but not referred to by the Tribunal, were those mentioned by Deane J in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR at 247. That case involved the doctrine of "inconvenient forum" (forum non conveniens). Deane J decided that when interpreting the terms "vexatious" and "oppressive", the focus should be on the objective effect on the defendant of a continuation of the proceedings in that forum, rather than on the conduct of the plaintiff in selecting or persisting with that forum. His Honour concluded that: On that approach, "oppressive" should, in this context, be understood as meaning seriously and unfairly burdensome, prejudicial or damaging while "vexatious" should be understood as meaning productive of serious and unjustified trouble and harassment. 14 The other authorities relied on by New South Wales Police ( Jago v District Court of New South Wales (1989) 168 CLR 23 and Hamilton v Oades (1989) 166 CLR 486) do not expand on this test. 15 Conclusion. The Tribunal correctly identified the question to be decided as whether the particular circumstances of this case met the test for summary dismissal on the ground that the proceedings were vexatious. New South Wales Police's submission that the meaning of vexatious cannot be restricted to "defined and closed categories" is correct. However, the Tribunal will only have made an error of law if it failed to consider a category or element of vexatiousness and its decision might have been different, had it done so: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 per Mason CJ. In our view, even if the Tribunal had applied the test set out by Deane J, it would have come to the same conclusion. That is because Deane J was referring to the effect on the defendant of continuing the proceedings, as filed, not the effect on the defendant of any other kind of conduct. 16 The power of summary dismissal on the ground of vexatiousness relates to "proceedings", not to other conduct of parties such as a failure to comply with directions. Simpson J made this point in Khalifeh v RSPCA [2000] NSWSC 912 at [35]. That case concerned, among other things, an application to dismiss proceedings as frivolous, vexatious or an abuse of process pursuant to a former rule of the Supreme Court Rules (Pt 13 r5). One of the allegations was that the plaintiffs had sought to amend the proceedings on several occasions. Simpson J held that the plaintiff's "collateral conduct" in seeking to amend the proceedings was not covered by the summary dismissal power: 35. . . . It is necessary here to distinguish between proceedings - that is, the means or the vehicle by which a dispute is brought to court - and collateral conduct of the parties. What the plaintiffs do out of court does not constitute proceedings. The rule does not provide for the stay of proceedings because collateral conduct of a party is frivolous or vexatious, and I do not think it extends to constituting collateral conduct as an abuse of the process of the court. Nor does it envisage that otherwise properly constituted proceedings become an abuse of process, or frivolous or vexatious, because of collateral conduct. There may be other remedies available to the defendants if the plaintiffs' conduct become oppressive, or amounts to harassment, but, on an ordinary reading of the rule, I do not think its language extends to the kind of conduct of which complaint is here made. 17 Given that the Supreme Court rule under consideration in Khalifeh v RSPCA [2000] NSWSC 912 was to the same effect as section 73(5)(h), it follows that the Tribunal's failure to refer to the category of vexatiousness identified by Deane J in Oceanic Sun Line Special Shipping Company Inc v Fay did not constitute an error of law. LZ's conduct was "out of court" conduct - it did not relate to the proceedings as filed. Consequently, even if the Tribunal had referred to Deane J's test and applied it to the facts of this case, it would have made no difference to the Tribunal's ultimate decision. 18 Wednesbury unreasonableness. The second ground of appeal was that the Tribunal had acted unreasonably in accepting LZ's evidence that her neighbour had repeatedly entered her house and stolen documents. New South Wales Police said that that finding of fact led the Tribunal to exercise its discretion in a manner, which was so unreasonable that no reasonable Tribunal could have come to that view. This ground of appeal is known as Wednesbury unreasonableness because it was first identified in a decision of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223. It has been clear since the decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) ALR 59, that Wednesbury unreasonableness does not apply to fact finding – it applies only to discretionary decisions. As this ground of appeal related to findings of fact made by the Tribunal, it must fail. Extension to the merits 19 New South Wales Police applied for leave for the appeal to be extended to the merits of the Tribunal's decision: ADT Act, section 113(2)(b). The granting of leave is not dependent on the Tribunal having made an error of law: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456. In the submissions relating to the merits of the Tribunal's decision, New South Wales Police made two main points. The first was that the merits of the case are such that leave should be granted and the application dismissed. The second was that LZ does not have standing to bring the application and that even if she does have standing she lacks the capacity to represent herself in the proceedings: ADT Act, section 71(7). 20 Merits of the case. The submissions made to the Appeal Panel in relation to the merits of the dismissal application were not significantly different from those made to the Tribunal. The Tribunal has determined that application and no reason was put to the Appeal Panel, which would justify extending the appeal to the merits of the Tribunal's decision. 21 Standing and capacity. New South Wales Police submitted to the Tribunal that LZ does not have standing to make the application to the Tribunal because the Protective Commissioner has been appointed to manage her financial affairs and he has exclusive power to bring and defend proceedings on LZ's behalf: Protected Estates Act 1983, section 24(2)(o). As he has not authorised the bringing of these proceedings, LZ is a person who is "otherwise disabled" and thus falls into the category of an "incapacitated person" in section 71(1) of the ADT Act. Finally, New South Wales Police submitted that even if LZ did have standing she was an incapacitated person because of her mental state. Because LZ did not have adequate notice of these submissions prior to them being made, the Tribunal adjourned that application to afford LZ procedural fairness. It is not appropriate for the Appeal Panel to make any decision about the merits of an application for a person to be appointed to represent LZ. We note that Tribunal directed that the matter be listed for a Directions Hearing in relation to the Respondent's application under section 71(4) of the ADT Act for a person to be appointed to represent LZ. 22 Recommendation. This decision highlights the need for the ADT Act to be amended to give the Tribunal power to dismiss proceedings not only when the proceedings themselves are frivolous or vexatious but also when a party has engaged in conduct after the commencement of proceedings which justifies dismissal. (See, for example, Civil Procedure Act 2005, section 65.) Orders 1. Leave to appeal against the Tribunal's interlocutory that "The respondent's application for dismissal of these proceedings pursuant to section 73(5)(h) of the Administrative Decisions Tribunal Act 1997 is refused" is granted 2. Leave is refused for the appeal to extend to a review of the merits of the Tribunal's decision 3. The Tribunal's order that "The respondent's application for dismissal of these proceedings pursuant to section 73(5)(h) of the Administrative Decisions Tribunal Act 1997 is refused" is affirmed. 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.