AT v Commissioner of Police, New South Wales Police [2011] NSWADT 214

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: AT v Commissioner of Police, New South Wales Police [2011] NSWADT 214 Hearing dates: On the papers Decision date: 06 September 2011 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: The application is dismissed. Catchwords: Privacy - external review application - review of conduct alleged to be a breach of an information protection principle - review application lodged two years after internal review determination - whether application for external review lodged within a 'reasonable time' Legislation Cited: Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 (Repealed) Limitation Act 1969 Privacy and Personal Information Protection Act 1998 Cases Cited: AT v Commissioner of Police [2010] NSWCA 131 AT v Commissioner of Police, New South Wales Police Force (GD) [2009] NSWADTAP 1 AT v Commissioner of Police, (Unpublished extempore decision, 14 December 2007, S Higgins Judicial Member - file number 073195) Category: Interlocutory applications Parties: AT (Applicant) Commissioner of Police, New South Wales (Respondent) Representation: Counsel M Hutchings (Respondent) Capital Lawyers (Applicant) File Number(s): 103145 Publication restriction: ADT Publication, Anonymisation and Suppression: Guideline applies to this decision

REasons for decision

Introduction 1GENERAL DIVISION (S Higgins, Deputy President): The applicant, seeks review of conduct of the respondent, the Commissioner of Police, that she alleges to have been conduct that contravened the retention and disclosure information protection principle in sections 12 and 18 of the Privacy Personal Information Protection Act 1998 (the Privacy Act). The alleged contravening conduct occurred in the latter part of 2004 in the course of the respondent dealing with the applicant's request for access to documents under the Freedom of Information Act 1989. 2In March 2005, pursuant to section 53 of the Privacy Act, the applicant made an application to the respondent seeking an internal review of the alleged contravening conduct. 3The respondent made a determination on the applicant's internal review application on 5 June 2005. The respondent determined that the conduct complained of did not amount to a breach of the retention information protection principle. However, it was determined that the conduct complained of 'may have breached section 18' of the Privacy Act. 4On 20 June 2007, the applicant, being aggrieved by the respondent's determination, lodged an application, with the Tribunal, for external review of the alleged contravening conduct under section 55 of the Privacy Act. 5When the matter first came before the Tribunal, the respondent made an application that the applicant's application be dismissed on the grounds that the application was not lodged within the prescribed time. The respondent also contended that time for the lodgement of that applicant's application should not be extended under section 57 of the Administrative Decisions Tribunal Act 1997 (the ADT Act), as the applicant had failed to provide a satisfactory explanation for her delay in lodging her application. 6On 14 December 2007, after hearing submissions from the legal representatives of the parties, I dismissed the applicant's application and gave brief reasons for decision: see AT v Commissioner of Police, New South Wales Police (Unpublished extempore decision, 14 December 2007: file number 073195). In dismissing the applicant's application I made certain findings on the construction of the review provisions of the Privacy Act (section 53 and 55) and section 55 of the ADT Act in so far as they related to the time within which an application for external review under the Privacy Act was to be lodged. 7The applicant appealed my extempore decision to the Appeal Panel of the Tribunal. Although her appeal was dismissed, the Appeal Panel found that I had erred in my construction of the provisions of the Privacy Act and the ADT Act: see AT v Commissioner of Police, New South Wales Police Force (GD) [2009] NSWADT AP 1 at [34] ( AT [2009]). Instead, the Appeal Panel found that section 55 of the Privacy Act should be read as being subject to a 'reasonable time limitation'. That is, an application for external review under that section was required to be lodged within a reasonable time. 8The applicant subsequently successfully appealed the decision of the Appeal Panel to the Court of Appeal: see AT v Commissioner of Police, NSW [2010] NSWCA 131. The applicant's appeal succeeded on grounds of procedural fairness arising from findings of the Appeal Panel and not the Appeal Panel's construction as to the time limit for lodging an application for external review under section 55 of the Privacy Act. The Court of Appeal set aside the order of the Appeal Panel affirming the extempore decision under appeal. In substitution of the orders made by the Appeal Panel, the Court of Appeal set aside the extempore decision of 14 December 2007 and directed that the Tribunal further consider the applicant's external review application according to law. 9As a result of the orders of the Court of Appeal, the applicant's application came before me at a planning meeting on 21 October 2010. At the request of the applicant's solicitor, the matter was adjourned for 2 months. Orders were nevertheless agreed to so that the matter could proceed. A further planning meeting was held on 21 December 2010. At this planning meeting counsel for the respondent advised that it pressed its application for dismissal as the applicant's application had not been lodged within a 'reasonable time'. Accordingly, orders were made for the filing and serving of evidence and submissions in regard to that application. I also indicated to the parties that I was inclined to the view that the matters in issue for determination in regard to this preliminary issue could adequately be determined on the papers and in the absence of the parties pursuant to section 76 of the ADT Act. In this regard I made an order that the parties were to inform the Tribunal, by 18 February 2011, if they had any objections to the matter being determined on the papers. Subsequent to this date, the respondent filed and served his submissions. At the conclusion of the submissions the respondent said that it would be appropriate for the Tribunal to hear oral argument in relation to the 'applicant's application'. 10As the issue for determination is a preliminary issue and both parties have filed and served written submissions, I remain of the view that the issues in regard to this preliminary issue can adequately be dealt with in the absence of hearing oral submissions. In this regard I note that the respondent has addressed the issues raised in the applicant's submissions.