Chan v NSW Police Force

[2010] NSWADT 251

CITATION:	Chan v NSW Police Force [2010] NSWADT 251
DIVISION:	General Division
PARTIES:	APPLICANT Yau Hang Chan RESPONDENT NSW Police Force
FILE NUMBER:	093350
HEARING DATES:	On the papers
DATE OF DECISION:	21 October 2010
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Dismissal for want of prosecution - costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998
CASES CITED:	Argus Industrial Group Holdings Ltd v Chief Commissioner of State Revenue [2010] NSWADT 136 AT v Commissioner of Police [2010] NSWCA 131 Baulderstone Hornibrook Engineering Co Pty Ltd v Gordon Runoff Ltd (No 2) [2009] NSWCA 12 Commissioner of Police, New South Wales Police Force v YK [2008] NSWADTAP 78 Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 Salon Today Pty Limited v. M.M.I.R. Pty Limited [2009] NSWADT 71
REPRESENTATION:	APPLICANT In person RESPONDENT G Shirm, solicitor
ORDERS:	1. The application is dismissed for want of prosecution pursuant to section 73(5)(g)(iv) of the Administrative Decisions Tribunal Act 1997 2. Yau Hang Chan is to pay the Respondent’s costs of the proceedings from 27 April 2010, as agreed or assessed.

REASONS FOR DECISION

1 The Respondent has applied for an order dismissing these proceedings under section 73(5)(g) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") on the following grounds:

a, the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance within section 73(5)(g)(ii);
b. the Applicant has failed to appear in the proceedings within section 73(5)(g)(iii); and
c. there has been a want of prosecution of the proceedings within section 73(5)(g)(iv).

2 The Respondent also seeks an order that the Applicant pay its costs of the proceedings.

Background

3 In October 2009, the Applicant applied to the Respondent alleging breaches of the Privacy and Personal information Protection Act 1998 ("the Privacy Act") and requested an internal review under section 53 of the Privacy Act as well as copies of documents relating to the alleged breaches pursuant to section 14 of the Privacy Act.

4 The circumstances giving rise to the Applicant’s complaint are set out in the Respondent's internal review decision. Essentially, the Respondent's officers attended the Applicant's premises after a complaint had been made. The officer who attended the address made an entry in the Police COPS records system ("the COPS entry") to record the activities and involvement of the police with the parties subject of the incident on the day in question.

5 On 30 December 2009, the Applicant made an application for external review by the Tribunal under Part 5 of the Privacy Act. The Applicant alleges numerous breaches of the information protection principles set out in Pt 1 of Div 2 of the Privacy Act. The application to the Tribunal makes the following allegations:

a. That the Respondent recorded the information in the COPS event entry E37685237, by corrupt means.
b. That the Respondent collected the Applicant's personal information in a COPS event entry otherwise than for a lawful purpose.
c. That the Respondent did not take reasonable steps to ensure that the information was relevant to the purpose collected and was up to date and complete before recording it in the COPS entry.
d. That the Respondent did not take such steps as were reasonable in the circumstances to enable the Applicant to ascertain whether the Respondent holds personal information about him, the nature of that personal information and the purpose for which it is held.
e, That the Respondent has failed to provide him with the COPS entry relating to him.
f. That the police "deliberately manipulated' the collection of information for a COPS entry.

6 The matter came before me for a planning meeting on 2 March 2010. On that occasion I made directions for the filing of material in the matter. The Applicant was directed to file his submissions and evidence by 23 March 2010 but did not do so.

7 On 24 March 2010, the Applicant filed a Notice of Motion. The matter was relisted on 27 April 2010. On that occasion I refused the Applicant's application for an adjournment or stay until the Respondent provided him with unedited copies of documents that he sought, refused the Applicant's request that I order the Respondent to provide unedited documents of those documents prior to the Applicant filing his evidence and I also refused to stand down from hearing the matter. I set a new timetable for filing of material and confirmed that the application would be heard on the papers after 9 July 2010.

8 Also on 27 April 2010 I refused the Respondent's application to dismiss the proceedings for want of prosecution. However, I granted leave to the Respondent to have the matter relisted if the Applicant failed to comply with the timetable.

9 The Applicant again failed to comply with the directions. On 24 May 2010, the Respondent wrote to the Tribunal and the Applicant seeking to have the matter re-listed and foreshadowing that the Respondent would seek to strike out the proceedings for want of prosecution.

10 The matter was relisted on 10 June 2010. On that occasion the Applicant did not appear at the directions hearing and I adjourned the proceedings to 13 July 2010. I advised the Respondent that I would not proceed with the hearing of the Respondent's application for dismissal of the proceedings until some time after 8 July 2010. I also reserved my decision on the issue of costs until after 8 July 2010.

11 The matter came before the Tribunal’s President on 13 July 2010. On that occasion the President set a timetable for the filing of material in relation to the Respondent’s application. The application for dismissal and costs was to be determined on the papers pursuant to section 76 of the ADT Act.

12 The Respondent was directed to file and serve its material by 10 August 2010. The Applicant was directed to file and serve his material by 31 August 2010.

13 No material has been filed by the Applicant in compliance with those directions.

14 Section 27 of the Privacy Act provides:

27 Specific exemptions (ICAC, ICAC Inspector and Inspector’s staff, NSW Police Force, PIC, Inspector of PIC and Inspector’s staff and NSW Crime Commission)

(1) Despite any other provision of this Act, the Independent Commission Against Corruption, the Inspector of the Independent Commission Against Corruption, the staff of the Inspector of the Independent Commission Against Corruption, the NSW Police Force, the Police Integrity Commission, the Inspector of the Police Integrity Commission, the staff of the Inspector of the Police Integrity Commission and the New South Wales Crime Commission are not required to comply with the information protection principles.
(2) However, the information protection principles do apply to the Independent Commission Against Corruption, the Inspector of the Independent Commission Against Corruption, the staff of the Inspector of the Independent Commission Against Corruption, the NSW Police Force, the Police Integrity Commission, the Inspector of the Police Integrity Commission, the staff of the Inspector of the Police Integrity Commission and the New South Wales Crime Commission in connection with the exercise of their administrative and educative functions.

15 Section 73(5)(g) of ADT Act provides:

73 Procedure of the Tribunal generally
…
(5) The Tribunal:
(g) may dismiss at any stage any proceedings before it in any of the following circumstances:
(i) if the applicant (or, if there is more than one applicant, each applicant) withdraws the application to which the proceedings relate,
(ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,
(iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings,
(iv) if the Tribunal considers that there has been a want of prosecution of the proceedings, …

The Respondent’s application

16 The Respondent relies on a statement of Ms Daniela Hartman sworn on 22 July 2010. Ms Hartman also filed written submissions in support of the Respondent’s application for dismissal.

17 The Respondent asserts that in accordance with section 27 of the Privacy Act, the Respondent is not required to comply with the information protection principles other than "in connection with the exercise of their administrative and educative functions."

18 The Respondent relies on the decision in Commissioner of Police, New South Wales Police Force v YK [2008] NSWADTAP 78, where the Appeal Panel stated at paragraph [20]:

"20 In our opinion, section 27(1) gives a blanket exclusion from the application of the Act to the named agencies in respect of all of their activities, subject only to the qualification set out in s 27(2). Therefore the starting point is that all functions of the Police Force have the benefit of the s 27(1) exclusion. It is not necessary to refer to the Police Act list of functions. The question is simply whether the activity is brought back under the regulation of the Act because it belongs to the ‘administrative’ or ‘educative’ services of the Police Force. "

19 The Respondent submitted that on any view, the information could not be said to have been collected in connection with the Respondent’s administrative or educative functions. The COPS entry was a record of the Respondent’s attendance at the Applicant's address in response to the receipt of a complaint. It is further submitted that it follows from section 27 of the Privacy Act that the Respondent was not required to comply with the information protection principles in respect of the COPS entry. Accordingly, it argues that the proceedings are misconceived and lacking in substance because there could not have been a breach of the Privacy Act by the Respondent. It is submitted that this ground alone is sufficient to warrant the dismissal of the proceedings.

20 The Respondent further submits that the proceedings should be dismissed on the basis of the Applicant's failure to appear on two occasions. The Applicant failed to appear in these proceedings on 10 June 2010. As a consequence of this failure to appear, the proceedings were adjourned to 13 July 2010. No explanation has been provided by the Applicant for this failure to appear. The Applicant again failed to appear on 13 July 2010. As a consequence of this failure to appear, the proceedings were adjourned for the Respondent’s summary dismissal application to be dealt with on the papers. No explanation was provided by the Applicant for this failure to appear.

21 The Respondent submits that the failure to appear should also be seen in the context of the fact that the Tribunal had already set two timetables for the filing of submissions. The effect of the Applicant's failure to appear has meant that the Respondent has had to attend the Tribunal on three separate occasions, at which times the proceedings were unable to be meaningfully advanced.

22 The Respondent submits that the Applicant has failed to prosecute the proceedings and that as a consequence, the proceedings are no further progressed towards a hearing than they were at the time the Applicant filed his application. Accordingly, the proceedings should be dismissed pursuant to section 73(5)(g)(iv) of the ADT Act.

23 The Respondent further submits that, if the Tribunal considers that any one of the factors above is not alone sufficient to dismiss the proceedings in this case, it may consider the cumulative effect of these factors and dismiss the proceedings on that basis. The Tribunal has the power to dismiss the proceedings if "any" of the factors in section 73(5)(g) of the ADT Act is established. In this case, it is submitted that the Tribunal is entitled to dismiss the proceedings under section 73(5)(g) even if the Tribunal would not dismiss the proceedings on the basis of one of these factors alone, considering together:

a. The fact that the Respondent was not required to comply with the information protection principles in respect of the COPS entry by virtue of section 27 of the Privacy Act and the proceedings are accordingly misconceived,
b. The Applicant's failure to attend at two directions hearing, and
c. The Applicant's failure to comply with two orders for the filing of evidence and submissions.

24 The Respondent submits that it is fair to award costs to the Respondent, having regard to the following:

a. That the Applicant has conducted the proceedings in a way that unnecessarily disadvantaged the Respondent by conduct such as:
i, failing to comply with an order or direction of the Tribunal without reasonable excuse,
ii. causing an adjournment, and
iii. vexatiously conducting the proceedings.
b. That the Applicant has been responsible for prolonging unreasonably the time taken to complete the proceedings so far,
c. That the Applicant's claims are very weak given section 27 of the Privacy Act, and that some of the Applicant's claims have no tenable basis in fact or law.

Discussion

25 I agree with the submissions made on behalf of the Respondent in regard to the application for dismissal. I agree with the Respondent that the proceedings are misconceived and lacking in substance. It follows from section 27 of the Privacy Act that the Respondent was not required to comply with the information protection principles in respect of the COPS entry. Therefore, there could not have been a breach of the Privacy Act by the Respondent.

26 The Applicant still has not complied with the directions to file and serve his material that were made by the President on 13 July 2010. Nor has he complied with the directions that I had previously made. I am satisfied that he has failed to prosecute the matter and that the proceedings should be dismissed pursuant to section 73(5)(g)(iv) of the ADT Act.

27 The ADT Act provides that the usual rule in relation to costs is that each party bears its own cost of proceedings in the Tribunal. The power to award costs arises only where the Tribunal 'is satisfied that it is fair to do so having regard to a non-exhaustive list of factors set out in section 88(1A) of the ADT Act.

28 The provisions of section 88 of the ADT Act have been considered in numerous cases. It is likely that costs will not be ordered in consequence of conduct falling within section 88(1A) unless that conduct is of a serious nature and such that there is significant prejudice to the other party in consequence: Argus Industrial Group Holdings Ltd v Chief Commissioner of State Revenue [2010] NSWADT 136 at paragraph [30].

29 The Court of Appeal considered the provisions of section 88 in its recent decision in AT v Commissioner of Police [2010] NSWCA 131. Basten JA, delivering the judgment of the Court, referred to ‘the force of the general principle that each party should bear its own costs in the Tribunal, a principle applicable at both first instance and before the Appeal Panel’. He said:

“33 … Although an order varying the general rule may be made “only if” the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an Applicant seeking an order. The criterion of “fairness” will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in sub-s (1A), but subject to the generality of paragraph (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the Tribunal Act.”

30 In Salon Today Pty Limited v. M.M.I.R. Pty Limited [2009] NSWADT 71 Judicial Member Molloy commented on the generality of paragraph (e). He stated at paragraph [77]:

77 But the real key to understanding the Section 88 amendments is Section 88(1A)(e): “any other matter that the Tribunal considers relevant”. These are very, very wide words, quite deliberately chosen by the Parliament, which quite clearly enjoin this Tribunal to look very carefully at the concept/principle of fairness and to widen the scope, without restriction, of the various aspects of the litigation – indeed, all the aspects of the litigation – that may result in a finding that the Tribunal is satisfied that it is fair to award costs. In my opinion it would be wrong to attempt to restrict Section 88(1A)(e).

31 Parties to litigation are expected to act reasonably in the running of litigation: Baulderstone Hornibrook Engineering Co Pty Ltd v Gordon Runoff Ltd (No 2) [2009] NSWCA 12 per Allsop P at paragraph [18].

32 I have considered Ms Hartman’s submissions in regard to the Respondent’s application for costs. I generally agree with her assessment of the manner in which the proceedings have been conducted. For the reasons that Ms Hartman has outlined, it is my view that the Applicant has not acted reasonably in the running of the matter.

33 For the reasons that she has argued, it is my view that this is a matter of the kind referred to by McHugh J in Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 in that the Applicant “has acted so unreasonably that the [Respondent] should obtain the costs of the action."

34 In my view, the Applicant has unnecessarily disadvantaged the Respondent because he has prolonged the proceedings, caused the Respondent to incur further costs, and has made it difficult for the Respondent to resolve the matter.

35 The Applicant’s failure to comply with the directions made by the Tribunal on 2 March 2010 resulted in the proceedings being adjourned on 27 April 2010. The Applicant's failure to attend on 10 June 2010 and 13 July 2010 caused the further adjournment of the proceedings. The proceedings have not progressed at all since their commencement.

36 In my view, the Applicant's failure to comply with the directions made by the Tribunal warrants the awarding of costs in favour of the Respondent for the attendance at the Tribunal on 27 April 2010, 10 June 2010 and 13 July 2010. The Applicant should also pay the costs of the Respondent in relation to the application for dismissal.

Order

1. The application is dismissed for want of prosecution pursuant to section 73(5)(g)(iv) of the Administrative Decisions Tribunal Act 1997.

2. Yau Hang Chan is to pay the Respondent’s costs of the proceedings from 27 April 2010, as agreed or assessed.