Budd v New South Wales Commissioner of Police

[2006] NSWSC 1265

CITATION:	Budd v New South Wales Commissioner of Police [2006] NSWSC 1265
HEARING DATE(S):	16/11/06
JUDGMENT DATE :	16 November 2006
JUDGMENT OF:	Bell J at 1
EX TEMPORE JUDGMENT DATE:	11/16/2006
DECISION:	1. The proceedings dismissed generally; 2. The plaintiff pay the defendant's costs of the proceedings
LEGISLATION CITED:	Administrative Decisions Act 1997 Administrations Tribunal Act 1997 Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998 Uniform Civil Procedure Rules 2005
CASES CITED:	Hutchinson v The Director-General Roads and Traffic Authority [2004] NSWADT 448 NZ Commissioner of Police, NSW Police (GD) [2005] NSWADTAP 61
PARTIES:	Pamela Joan Budd (Appellant) New South Wales Commissioner of Police (Respondent)
FILE NUMBER(S):	SC 30017/06
COUNSEL:	Self represented (Appellant) S Free (Respondent)
SOLICITORS:	Self Represented (Appellant) I V Knight (Respondent)
LOWER COURT JURISDICTION:	Appeal Panel of the Administrative Decisions Tribunal
LOWER COURT FILE NUMBER(S):	059016
LOWER COURT JUDICIAL OFFICER :	Hennessy N; Higgins S; Bolt M
LOWER COURT DATE OF DECISION:	18/11/05
LOWER COURT MEDIUM NEUTRAL CITATION:	NZ Commissioner of Police, NSW Police (GD) [2005] NSWADTAP 61

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

BELL J

Thursday 16 November 2006

30017/06 - PAMELA JOAN BUDD v NEW SOUTH WALES COMMISSIONER OF POLICE

JUDGMENT

1 HER HONOUR: The Commissioner of Police, by Notice of Motion filed on 19 June 2006, claims an order that the proceedings be dismissed generally pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005.

2 The plaintiff commenced the proceedings without the benefit of legal representation and has appeared on her own behalf on the hearing of the Commissioner's motion.

3 The plaintiff is said to suffer from conditions including agoraphobia and social phobia. Mr Free, who appears on behalf of the Commissioner, was on notice of the plaintiff's desire that her submissions be received by telephone because her condition is such that it is difficult for her to leave her own home. He had no objection to her submissions being rece3ived by telephone.

4 Provision is made in Pt 31 of the Uniform Civil Procedure Rules 2005 (the UCPR) for the Court to order that submissions be received by telephone, and having regard to the attitude taken by the defendant I made such an order.

5 The proceedings were commenced by summons filed on 21 February 2006. They are styled as an appeal under s 119 of the Administrations Tribunal Act 1997. The plaintiff describes the proceedings in her summons in her summons in this way: “059016 appeal”. Provision is made on the standard form of summons for a statement of the Grounds of Appeal. In handwriting the plaintiff has completed this part of her summons saying, "See my attached letter reasons/grounds.”

6 The relief claimed by the plaintiff in her summons is as follows:

I seek compensation and costs. Also orders to stop police break, breaching my human rights/privacy. Cause me mental abuse and home like a prison, denial of rights.

7 The plaintiff has commenced other proceedings in the Court, including appeals against decisions of the Administrative Decisions Tribunal (the Tribunal) and has submitted voluminous documents that have been filed in the Registry, some of which relate to the present proceedings and some which appear to be directed to other proceedings. However, by reference to the appeal as No. 059016, it is apparent that the plaintiff seeks to appeal against the decision of the Appeal Panel of the Tribunal published on 18 November 2005: NZ Commissioner of Police, NSW Police (GD) [2005] NSWADTAP 61. In that determination, the Appeal Panel dealt with two decisions of the Tribunal dismissing applications brought by the plaintiff under the Freedom of Information Act 1989 (the FIO Act) and the Privacy and Personal Information Protection Act 1998 (the PPIP Act).

8 The Appeal Panel noted that the Tribunal had dismissed each of the applications upon the basis that it did not have jurisdiction to deal with the matter. The application under the PPIP Act was dismissed upon the basis that the plaintiff had not requested an internal review of the conduct that was the subject of her complaint.

9 A pre-condition of an application for review by the Tribunal is that the applicant apply for an internal review of the conduct, or, in circumstances not presently relevant, that the agency has had a sufficient opportunity to conduct an internal review: ss 53 and s 55 of the PPIP Act.

10 The Appeal Panel noted that the plaintiff asserted, contrary to the finding of the Tribunal, that she had applied for an internal review within time, but that she had not received a response to her applications. The Tribunal approached the matter upon the basis that the plaintiff had not produced a copy of any document written by her to the New South Wales Police, which constituted an application for an internal review under s 53 (3) of the PPIP Act.

11 The plaintiff sought to adduce fresh evidence before the Appeal Panel. In this respect the Appeal Panel said this:

We have looked at that evidence with a view to determining whether it should be admitted in these proceedings. We have decided not to admit it in these proceedings for two reasons. Firstly, NZ [as the plaintiff was known in the proceedings] had every opportunity to provide evidence in support of her application to the Tribunal. There is no suggestion that any of the material was not available to her at the time of the Tribunal hearing. Secondly, even if there was some justification for admitting fresh evidence, the evidence is not relevant to any issue in these proceedings. In particular, there is nothing in that material which directly supports the appellant's assertion that she applied to Mr Owens or anyone else for an internal review prior to 29 July 2004.

12 The Appeal Panel concluded that the Tribunal had not erred in finding as a fact that no application for an internal review had been made by the plaintiff and, hence, there was no error in the determination Tribunal’s decision that it did not have jurisdiction to conduct a review under s 55 of the PPIP Act.

13 As to the FOI appeal, the Appeal Panel noted that the Tribunal found that in March 2003 the NSW Police made a determination of an FOI application by the plaintiff and that no internal review of that determination had been sought.

14 The plaintiff maintained that she had applied for an internal review, but she did not produce a copy of any correspondence to NSW Police requesting such a review. The Tribunal noted that the NSW Police claimed that after an exhaustive search of their records they were unable to locate any correspondence from the appellant requesting an internal review of the March 2003 decision. The Appeal Panel noted that the request for an internal review is a procedural step that must be taken before applying to the Tribunal for an external review of an agency's decision: s 53 of the FOI Act; s 55 of the ADT Act; and Hutchinson v The Director-General Roads and Traffic Authority [2004] NSWADT 448 at 45. In these circumstances the Appeal Panel found that the Tribunal did not make an error in dismissing the appellant's application.

15 There are a number of difficulties associated with the plaintiff's summons. The proceedings purport to be an appeal brought under s 119 of the Administrative Decisions Act 1997. Such an appeal must be made within such time and in such manner as is prescribed by the Rules of Court or within such further time as the Supreme Court may allow. Part 50 of the UCPR deals with the conduct of appeals including appeals brought under Section 119 of the ADT Act.

16 A summons commencing an appeal must be filed within 28 days after the material date: Pt 50.3.

17 The plaintiff requires an extension of time in which to bring the present appeal.

18 The Rules require that a summons commencing an appeal must state whether the appeal relates to the whole or part only, and what part of the decision of the Court below, and briefly but specifically the ground relied upon in support of the appeal, including in particular any ground on which it is contended that there is an error of law, and what decision the plaintiff seeks in place of the decision of the Court below: r 50.4.

19 The Commissioner notes that the relief claimed is by way of compensation and injunctive relief restraining breaches of the plaintiff's human rights. Appeals from an Appeal Panel of the Tribunal may only be brought in this Court under s 119 of the ADT Act on a question of law: The relief claimed is plainly inappropriate to the proceedings that are brought.

20 The plaintiff, in answer to a request by the Registry of the Court, has endeavoured to distil the grounds of her Appeal in this proceeding and in other proceedings in a letter dated 31 March 2006. In this document she sets out a number of grounds which are said to disclose errors of law in the determination of the Appeal Panel that is the subject of challenge. In oral submissions she has expanded on these grounds.

21 The plaintiff challenges the factual findings of the Tribunal, that she had not applied for internal reviews under the PPIP Act or the FIO Act, and, she contends that the Appeal Panel erred in failing to receive her fresh evidence. There are other grounds and I will touch on them.

22 The Commissioner seeks summary dismissal of the proceedings. Counsel for the Commissioner does not rely on the circumstance that the proceedings have been commenced out of time and that the summons does not conform with the Rules. Rather, he has invited attention to the reasoning of the Appeal Panel and to the matters that the plaintiff seeks to agitate in support of the contention that any appeal is manifestly hopeless. In these circumstances I am invited to dismiss the summons rather than extending time and permitting it to go forward.

23 The right of appeal provided by s 119 is a limited one. The plaintiff seeks to raise in these proceedings factual matters that were agitated by her before the Appeal Panel and the Tribunal.

24 The plaintiff in her written submissions contends that the Appeal Panel erred in law in failing to give good reasons why her fresh evidence should not be received. It may be that in some circumstances a failure to give sufficient reasons for a determination constitutes error of law. In my view, those circumstances are not established in this case. The Appeal Panel’s reasons are an adequate statement of the factors that it took into account in arriving at its decision.

25 A number of the grounds set out in the letter of 31 March state in different ways challenges to the Tribunal’s factual determinations. The Appeal Panel dismissed the appeal against each determination accepting that the Tribunal had rightly approached the jurisdictional question in light of the factual finding made.

26 For these reasons I am persuaded that the proceedings, to the extent that they purport to be an appeal brought under Section 119 of the ADT Act, are manifestly hopeless. It is not appropriate in these circumstances that I extend time in which to bring an appeal against the determination of the Appeal Panel.

1. The proceedings be dismissed generally.

2. The plaintiff pay the defendant's costs of the proceedings.

oOo