Commissioner of Police, NSW Police Force v Roy (GD)

[2013] NSWADTAP 6

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Commissioner of Police, NSW Police Force v Roy (GD) [2013] NSWADTAP 6

Hearing dates:

19 November 2012

Decision date:

23 January 2013

Before:

Judge K P O'Connor, President
S Higgins, Deputy President
J McClelland, Non-judicial Member

Decision:

By consent:

1. Appeal allowed.

2. The decision of the Tribunal dated 19 June 2012, and reported as Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120, is set aside.

3. The decision of the Appellant dated 8 July 2011 is affirmed.

Catchwords:

Appeal - Respondent applies to withdraw from matter after hearing - disposal of proceedings - consent orders - no substantive reasons given by Appeal Panel - effect on decision below

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Government Information (Public Access) Act 2009

Cases Cited:

Council of the New South Wales Bar Association v LI [2005] NSWCA 415
New South Wales Bar Association v 'LI' [2005] NSWADT 15

Category:

Principal judgment

Parties:

Commissioner of Police, NSW Police Force (Appellant)
Peter Roy (Respondent)

Representation:

Counsel
K Mantziaris (Appellant)
K Rose, Sparke Helmore (Appellant)
K Anderson, Nyman Gibson Stewart (Respondent)

File Number(s):

129019

 Decision under appeal 

Citation:

Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120

Date of Decision:

2012-06-19 00:00:00

Before:

General Division

File Number(s):

113252

REASONS FOR DECISION:

1. The following orders are made by consent in the circumstances explained below:

1. Appeal allowed.

2. The decision of the Tribunal dated 19 June 2012, and reported as Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120, is set aside.

3. The decision of the Appellant dated 8 July 2011 is affirmed.

1. The Commissioner lodged his Notice of Appeal on 17 July 2012, and lodged an Amended Notice of Appeal on 24 September 2012. The appeal hearing was fixed for 19 November 2012, and proceeded on that day. Mr Mantziaris appeared for the Commissioner, and Ms Anderson for the respondent.

1. In the decision under appeal the Tribunal had set aside the Commissioner's decision made 8 July 2011 to refuse the respondent's application made under the Government Information (Public Access) Act 2009 for access to an internal document entitled 'Standard Operating Procedures Stationary Speed Enforcement - LIDAR & RADAR' dated March 2007.

1. The appeal directions had not included the usual directions for the exchange of written submissions prior to hearing. The Panel gave the Commissioner leave to rely on the Amended Notice of Appeal. The Appeal Panel allowed the respondent to file any written submissions going to any issues raised by the amended notice or otherwise not later than 3 December 2012, with the Commissioner to file any reply by 10 December 2012. The respondent did not file submissions. On 11 December 2012 the respondent notified the Registrar that he had decided not to file any further submissions, and wished to 'withdraw from the matter'.

1. An application of this kind from a review applicant who is a respondent to an appeal amounts, in effect, to a decision on the applicant's part to withdraw the underlying review application.

1. The Tribunal has a discretion to dismiss at any time proceedings 'if the applicant ... withdraws the application to which the proceedings relate' (Administrative Decisions Tribunal Act 1997, s 73(g)(i)). The Tribunal is not bound to dismiss the application: see generally, New South Wales Bar Association v 'LI' [2005] NSWADT 15; Council of the New South Wales Bar Associaton v LI [2005] NSWCA 415.

1. Directions hearings were held by the President on 14 and 18 December 2012. They gave rise to an agreement between the parties as to the above orders.

1. The Commissioner reserved his right to apply for a costs order.

1. In the circumstances, the Appeal Panel does not consider it appropriate to issue a substantive decision in relation to the Commissioner's appeal. It notes that the Commissioner vigorously opposed the decision of the Tribunal to grant access to the documents in issue; and presented an arguable case. We observe that in these circumstances the decision of the Tribunal below should not be treated as a precedent in relation to future similar access applications.

Decision last updated: 24 January 2013