Cerminara v Commisssioner of Police, New South Wales Police Service & anor (GD)
[2001] NSWADTAP 32
•09/19/2001
Appeal Panel
CITATION: Cerminara -v- Commisssioner of Police, New South Wales Police Service & anor (GD) [2001] NSWADTAP 32 PARTIES: APPLICANT
Ralph CerminaraFIRST RESPONDENT
SECOND RESPONDENT
Commissioner of Police, New South Wales Police Service
Minister Administering the Freedom of Information Act 1989FILE NUMBER: 019033 HEARING DATES: 05/09/2001 SUBMISSIONS CLOSED: 09/05/2001 DATE OF DECISION:
09/19/2001DECISION UNDER APPEAL:
Cerminara-v- Commissioner of Police, New South Wales Police Service & anorBEFORE: Hennessy N (Deputy President); Goode P - Judicial Member; Mapperson K - Member CATCHWORDS: no question of law identified MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 003237 DATE OF DECISION UNDER APPEAL: 06/06/2001 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989CASES CITED: Lloyd v TCN Channel 9 Pty Ltd [1999] NSWADT AP 3
Mayhew v A [1999] NSWADT AP 1
Brandusoiu v Commissioner of Police [1999] NSWADT AP 8REPRESENTATION: APPLICANT
J Klarica, barrister
In person
FIRST RESPONDENT
SECOND RESPONDENT
T Robertson, barristerORDERS: Appeal dismissed.
Introduction
1 On 28 June 2001, Mr Cerminara lodged an appeal against a decision of the Tribunal. The Tribunal’s decision, handed down on 6 June 2001, affirmed the decision of the Commissioner of Police (the agency) made under the Freedom of Information Act 1989 (FOI Act) to refuse Mr Cerminara access to eight documents. Each of the documents concerned Mr Cerminara and was held by the agency at Albury in New South Wales. The second respondent, the Premier of New South Wales, made written submissions, but did not present oral submissions at the original Tribunal hearing.
Jurisdiction of Appeal Panel
- 2 The power of the Appeal Panel to hear this matter is found in s 113 of the Administrative Decisions Tribunal Act 1997 (ADT Act). Section 113 of the ADT Act states that:
(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.
(2) An appeal:
- (a) may be made on any question of law, and
(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.
- (a) within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision under section 89, or
(b) within such further time as the Appeal Panel may allow.
3 The appeal was lodged within time. Mr Cerminara sought leave to extend the appeal to a review of the merits of the decision. Both the first and second respondents submitted that the Notice of Appeal did not identify any questions of law.
Grounds of Appeal
- 4 Mr Cerminara is very concerned that police have documents which relate to him which he is unable to see. He feels that he is being accused of being a criminal, but has no right to look at the documents that the Police Service have in their possession.
- denial of natural justice;
- conferring in private with respondents; and
- allowing unrelated material to be introduced to hearing, and then not noting objections to it, or not noting that material was incomplete.
5 The “errors of law” which Mr Cerminara identified in his Notice of Appeal were as follows:
Denial of natural justice
- 7 The natural justice issues raised by Mr Cerminara were expressed as follows:
a) Tribunal asked respondent solicitor to assist him in this particular matter as he had more experience;
b) that I was discriminated by the Tribunal, and not being treated in a fair manner, by the Tribunal having taken information in private, without giving me the same consideration;
c) the Tribunal has acted in a biased way towards me, by not considering the material before him (newspaper articles) and also considering that it is a fact that police corruption does exist, and that there is a cover up by the NSW police;
d) In item 15, I had expressed that my web site would be no more, if documents were given to me. The Tribunal has put its own interpretation as to what was said, without any mention of what I have actually said.
8 Request for assistance from agency. The first matter Mr Cerminara relied on was that the Tribunal asked the respondent’s solicitor, Mr Tunks, to assist him. Mr Cerminara pointed to the following passage in the transcript of the proceedings at page 9, line 5 and following:
Robinson: Is there anything else that you propose to tender?
Tunks: I have nothing more to tender but I do say that I will be seeking to make oral submissions in relation to the documents individually in the absence of the applicant.
Robinson: You’ll make that at some point?
Tunks: I will make it at the appropriate time without seeking to tell the Tribunal as to how to run the matter.
Robinson: I want you to tell me how to run the matter.
Tunks: My proposal would be to avail Mr Koopman now for short evidence-in-chief in relation to exhibit 3 and to avail him for cross-examination in relation to exhibit 3 and other matters that do not transgress into the section 57(2).
9 Mr Cerminara interpreted this passage as the Tribunal asking Mr Tunks for help. According to Mr Cerminara, the Tribunal should have made its own decision.
10 The response from the Police Service in relation to this submission was the Tribunal was asking Mr Tunks to tell him how to run the case in a procedural rather than a substantive sense.
11 The statement from the Tribunal that “I want you to tell me how to run the matter” was made in the context of a discussion about when certain submissions would be made and when certain evidence would be called. The Tribunal is entitled to seek assistance from either or both parties on how the case should proceed. Because the onus is on the agency to prove on the balance of probabilities that the documents in dispute are exempt, it is entirely appropriate that the agency should take the initiative in suggesting how their case should be presented. Mr Cerminara has not identified a question of law in relation to this matter.
12 Conferring in private with the respondent. Several of Mr Cerminara’s 19 points raised the issue that the Tribunal conferred in private with the agency, but did not give him the same consideration or opportunity. Mr Cerminara considered this to be unfair and said that he had been advised by a Chamber Magistrate that: “one in all in.”
13 In response to this ground of appeal, the agency submitted that s 55(b) of the FOI Act allows the Tribunal to receive evidence and submissions in the absence of the applicant. The Tribunal was complying with its obligations under this section.
14 Our view is that pursuant to s 55(b) of the FOI Act, (or s 57(2) if the application was under that section) the Tribunal was entitled to hear evidence and argument in the absence of Mr Cerminara. Section 55(b) states that:
In determining a review application, the Tribunal:
- (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter, and
(b) is to, where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative.
In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of:
- (a) the public, and
(b) the review applicant, and
(c) if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter the review applicant's representative.
17 Because the hearing of evidence and argument in the absence of the applicant is specifically provided for in s 55 and s 57, it cannot be an error of law to exclude the applicant from part of the proceedings in accordance with either of those sections. Conversely, there are no provisions in the FOI Act or elsewhere which would entitle the Tribunal to hear evidence or argument in the absence of the respondent.
18 Bias in not admitting newspaper articles. The final matter which comes within the broader ground of natural justice is Mr Cerminara’s assertion that “the Tribunal has acted in a biased way towards me, by not considering the material before the Tribunal. . . (newspaper articles) and also considering that it is a fact that police corruption does exist, and that there is a cover up by the NSW police”
19 Mr Cerminara tendered a bundle of newspaper clippings (Exhibit B). The Tribunal referred to these clippings at paragraph 13 of the decision. Mr Cerminara also sought to tender two other newspaper clippings, but the Tribunal refused to admit them because they were judged to be of no assistance.
20 Pursuant to s 73(2) of the ADT Act, the Tribunal is not bound by the rules of evidence. It was entirely appropriate for the Tribunal to view all the newspaper clippings and come to a view about their probative value, including their relevance and reliability. No error of law is revealed by this process. Similarly the issue of whether or not police corruption exists does not raise a question of law in these proceedings.
Allowing unrelated material to be introduced to hearing
- 21 The third main area of appeal was that the Tribunal allowed unrelated material to be introduced to the hearing, and then did not note Mr Cerminara’s objections to it. Within this ground, Mr Cerminara raised several specific matters.
22 Objections not noted or referred to. Mr Cerminara admitted in the Tribunal proceedings that he had set up a web site which included information about police officers and his experiences with them. He referred to the follow passage of transcript at page 12, line 13, which relates to the web site:
Tunks: In paragraph 4 Mr Koopman can you tell the Tribunal that it came to your notice a web site containing information about individual police officers in the Albury local area had been posted publicly, on a publicly accessible Internet site? How did it come to your notice?
Applicant: Objection sir, I believe it’s irrelevant. It’s a personal web site and may I say also that anyone can copy a web site and secondly the name Ralph Cerminara is not particular to myself. Now I have to admit . . .
Robinson: If you say it’s not you, you’re entitled to give evidence—
Applicant: No I’m not saying that sir
Robinson: If your objection is based on relevance -
Applicant: Relevance yes
Robinson: I will admit it subject to relevance. If I believe the answers and the line of questioning is not relevant I will not pay any regard to it.
23 Then, at page 16, line 35 of the transcript:
Tunks: It’s relevant. (Referring to the material on the web site) I can say this much because it’s an issue under section 57(2). Its relevance comes into play when one looks at the nature of the documents, the fact that they’re law enforcement exemption based. They’re relevant as far as when one looks at the content of the documents as to the concerns the Commissioner has. Then at the time the documents were made that it still exists now. (Words in brackets added.)
24 Mr Cerminara also highlighted the discussion at page 18 line 1 and following of the transcript:
Robinson: The only point of the web site documents is as I take it is the Commissioner is concerned that you will publish the material if it was provided to you on your web site. That’s the primary focus I take it.
Tunks: That is one of the concerns.
Applicant: If that is the concern right, I could say now once my information is provided I will delete and I repeat I will delete the web site and I will publish nothing else.
25 Mr Cerminara pointed out that Mr Robinson did not refer to his objection about the relevance of the web site documents in his decision. At paragraph 7 of the reasons, the Triubnal said:
Also read was an affidavit of Inspector Koopman sworn 23 February 2001 setting out extracted portions of the applicant’s internet web site styled “Corruption and Injustice in Australia” in which he criticises or disparages many Australians and institutions of the state and, in particular, serving members of the Albury Local Area Command of the Police Service. The Inspector believes there is a very strong likelihood that any information that may be released to the applicant under the FOI Act will end up posted to the said web site.
26 Later in the decision, at paragraph 15, the Tribunal said, in relation to Mr C, that:
He also asserts that he would very much like to hold the police accountable by making the subject reports and entries public knowledge and, as he told me in oral submissions, he was interested to see and to “verify” the said information. In other words, it seems to me that the applicant, if he is granted release of the documents, will actively attempt to follow up the information contained therein in order to verify it. He believes it is all fabricated and any allegations were maliciously made.
27 In the agency’s submission, Mr Cerminara’s objection to the admission of the web site material was noted in the transcript and a decision to admit that material subject to its relevance being established, was made. The agency submitted that the weight given to any factual material is not a question of law. (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 at 155-156.) Mr Cerminara has not submitted that the Tribunal’s findings were against the weight of evidence, merely that his objection to the relevance of that evidence was not noted in the decision, and his undertakings that he would delete the web-site and publish nothing else were ignored.
28 We can understand, from Mr Cerminara’s point of view, that the reasoning of the Tribunal may have appeared to ignore his objections about the relevance of the web site material and his undertakings about the future use of that web site. However, it is clear from the transcript that the Tribunal listened to Mr Cerminara’s objection about the relevance of the web site but based on what the Tribunal heard in both the open and closed sessions, the Tribunal decided that the information was relevant. The Tribunal was restricted in the level of detail it could give in its decision because under s 55, it must ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter. The disadvantage to applicants in FOI cases of this kind is unavoidable. The Tribunal must satisfy itself as to whether the exemptions have been properly made out.
29 There is no error of law in that finding. What Mr Cerminara proposed to do with the web site is a question of fact. The Tribunal was entitled to accept or not accept Mr Cerminara’s undertaking about the web site without falling into legal error.
Other matters
- 30 Mr Cerminara raised several other matters which do not fall within the three grounds of appeal listed above. Each of these matters will be dealt with in turn.
31 Mr Cerminara submitted that the Tribunal ‘Failed to consider that everyone is considered innocent before the law. The decision was affirmed in favour of Police on hearsay, and not based on facts of law.” Mr Cerminara appears to be suggesting that the documents in dispute are based on hearsay, rather than fact. Mr Cerminara’s assertion that the documents in dispute are based on hearsay is not relevant. The issue before the Tribunal was whether the documents came within an exemption provided for in the FOI Act, not the authenticity or accuracy of the documents. The agency’s submission in relation to Mr Cerminara’s assertion of innocence was that the present proceedings are not criminal proceedings and therefore guilt or innocence is not an issue. We agree with this submission. No question of law arises on the basis of Mr Cerminara’s assertion.
32 The next matter raised by Mr Cerminara was that the Tribunal speculated as to what might have been in relation to Judge Mahoney’s decision. On 9 September Judge Mahoney of the District Court decided that the same documents which are in dispute in these proceedings, were exempt from production under the FOI Act. The Tribunal noted that the matter had previously been before the District Court in paragraph 3 of its decision. The Tribunal also noted that one of the reasons given by the agency for refusing to grant access to the documents was Judge Mahoney’s earlier decision. The only other mention of the District Court’s decision was made at paragraph 12:
. . . I am surprised to see him pursing the discovery of the said material in circumstances when a learned Judge of the District Court has already refused access. The evidence does not appear to me to disclose that any relevant fact or circumstance has changed since then.
33 Mr Cerminara submitted that the circumstances had changed because Judge Mahoney did not have the full facts when he made his decision. At page 25, line 40 of the transcript the following exchange took place:
Applicant: Why wasn’t Judge Mahoney then informed that Scott McMillan was under investigation for dishonesty?
Witness: I can’t comment on either of those questions. . .
Applicant: But my - what I maintain is I - had I been made aware that Scott McMillan was under investigation I could’ve had the opportunity to present to Judge Mahoney
Robinson: Mr Cerminara you have that opportunity to present that material to me today.
Applicant: Okay.
Robinson: I’m the decision maker in this matter now. Not the judge . . .
34 The agency submitted that the decision of the District Court is irrelevant to these proceedings.
35 The Tribunal dealt with this matter at paragraph 16 of its decision and concluded that this “new” information makes no difference to the ultimate decision in this matter and, to the extent that it is relevant, it would not have made any difference to the decision of Judge Mahoney on 9 September 1997.” We are satisfied on the basis of the transcript quoted above and the decision itself, that the Tribunal considered the material put forward by Mr Cerminara. The Tribunal then came to an independent view based on all the evidence and submissions. Mr Cerminara’s assertion that the District Court did not know all the facts when it made its decision is not a matter that is relevant to these proceedings, and does not amount to an error of law.
36 Mr Cerminara’s next issue was that “the Tribunal, by saying or implying on my persistence in this matter, and in pursuing this matter, how I feel and in pursuing this injustice should be irrelevant in his decision.” We assume that Mr Cerminara was referring to the Tribunal’s comment at paragraph 12 of the decision that “I am surprised to see him pursing the discovery of the said material . .” This was a comment made by the Tribunal in its decision, but was not part of its reasoning process in coming the conclusion that the documents were exempt documents. Consequently no error of law is disclosed.
37 Mr Cerminara stated that “The Tribunal indirectly has stated that I am a criminal, and it has based its findings on material provided to him in private, and on hearsay and not facts of law.” The only new issue raised by this statement is Mr Cerminara’s assertion that the Tribunal indirectly stated that he is a criminal. We assume that Mr Cerminara is referring to paragraph 19 of the decision that “the relevant information in the documents was plainly confidential and related to potentially criminal matters.” This comment was made in the context of relating the contents of the document to the relevant exemptions relied on by the agency. The Tribunal did not make a finding that Mr Cerminara was a criminal. No error of law is apparent in relation to this comment.
38 Next, Mr Cerminara said that “The police have been allowed to lie and change their story all along. At each application the police have given different reasoning as to hinder my application.” Mr Cerminara is referring to the fact that the reasons justifying the exemption have changed since he first lodged his application. This is not a matter which constitutes an error of law on the part of the Tribunal. The Tribunal was conducting a merits review on the basis of the matters put before it at the hearing.
39 In the remainder of his Notice of Appeal, Mr Cerminara makes various statements and assertions, none of which raise a question of law. In summary, no question of law has been identified by Mr Cerminara and no error of law has been found.
Question of law and review on the merits
- 40 The second respondent submitted that no question of law is raised by the Notice of Appeal and consequently the Appeal Panel does not have jurisdiction to determine the merits of the case: Lloyd v TCN Channel 9 Pty Ltd [1999] NSWADT AP 3; Mayhew v A [1999] NSWADT AP 1; Brandusoiu v Commissioner of Police [1999] NSWADT AP 8. 9.
41 We agree with the second respondent’s submissions on this point. The reference in s 113(2)(b) is to extending the appeal to a review of the merits, by leave. This implies that the appeal must be properly made before the Appeal Panel can give consideration to whether or should grant leave to review the merits of the Tribunal’s decision. The use of the word “extend” suggests that an appeal must first be brought on a question of law before any question of merits can be raised in the appeal.
42 In effect, the Tribunal must find an error of law before it can review the merits of the decision. This seems to have been the approach of the Appeal Panel in Brandusoiu v Commissioner of Police [1999] NSWADTAP 8 where the Appeal Panel said at [4] that:
It is necessary for the appellant, therefore, to identify possible errors in the reasoning of the decision under appeal. It would appear that at least an arguable question of law would need to be identified before any consideration could be given to permitting an extension of the appeal to allow consideration of the merits. It would not be proper to embark on a consideration of the merits where no error of law was established.
43 In the light of this reasoning, we do not grant leave for the appeal to be extended to a review of the merits of the decision. In these circumstances it is not necessary to consider the second respondent’s submissions in relation to s 57 of FOI Act and the so-called “override discretion”.
Order
- 44 Appeal dismissed
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