Efb v Commissioner of Police, NSW Police Force

[2022] NSWCATAD 322

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EFB v Commissioner of Police, NSW Police Force [2022] NSWCATAD 322

Hearing dates:

16 September 2022

Date of orders:

30 September 2022

Decision date:

30 September 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Griffin, Senior Member

Decision:

(1) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the name of the Applicant is prohibited.

(2) Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998 (NSW) no action will be taken in this matter.

Catchwords:

ADMINISTRATIVE LAW – privacy – jurisdiction - NSW Police Force

Legislation Cited:

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

GA v Commissioner of Police (GD) [2005] NSWADTAP 38

NZ v Commissioner of Police, New South Wales Police [2005] NSWADT 213

Category:

Principal judgment

Parties:

EFB (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

EFB (self-represented)
Crown Solicitor (Respondent)

File Number(s):

2022/00194626

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 publication of the name of the Applicant is prohibited.

REASONS FOR DECISION

Introduction

1. The Applicant applied for administrative review of the conduct of the New South Wales Police Force. She claimed breaches by the Police of sections 8-14 and 16-18 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). She sought damages under s 55(2)(a) of the PPIP Act.

Background

2. The Applicant has several other applications before the Tribunal, including a matter presently stayed by the Appeal Panel pending its consideration by the Supreme Court.

3. This particular application for review was lodged with the Tribunal on 15 June 2022. Following a Case Conference on 25 July 2022, the Tribunal relevantly ordered:

2. The respondent is to file and serve a Strike Out / Summary dismissal application on or before 29 July 2022 returnable at hearing on 16 September 2022.

...

4. The applicant is to file and serve any stay of proceedings application, material in support of that application and material in response to the strike out application, on or before 26 August 2022. The Strikeout application is to be returnable on 16 September 2022.

5. The respondent is to file and serve a reply to the strike out response, and a response to the stay application, on or before 2 September 2022.

6. By 5 September 2022 the applicant is to advise in writing whether they wish both applications to proceed to a hearing on the papers. If this occurs the hearing date of 16 September 2022 can be vacated.

4. The Respondent complied with Order 2 above by lodging an Application for Miscellaneous Matters on 29 July 2022 seeking dismissal for want of jurisdiction; or, in the alternative, dismissal pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW). Nothing was received from the Applicant until the morning of the 16 September 2022 hearing, when a 33-page submission was lodged by email.

Respondent’s submissions

5. The Respondent submits, in part, the Applicant has not made a valid application for review. Annexed to its submissions is a document setting out “Conduct complained of” in 13 serials, which replicate 13 dot points in an email from the Applicant seeking an Internal Review on 27 April 2022.

6. The Respondent replied to that email on 17 May 2022 with a “Request to Identify Conduct the subject of review”, which relevantly stated:

On reading the series of dot points it is unclear what action or circumstances of concern you say arises from the NSWPF handling of your personal information. The series of dot points, in my view, do not describe the handling of your personal information. Rather, the series of dot points describe categories of personal information. What is lacking is a precise description of what you say the NSWPF did with those categories of personal information.

It is only Category 6 which in any way describes conduct. However, even then, the description of conduct is not specific. Instead, the description is generic, refusals to provide (you) with all (your) personal information. The lack of detail as to when and in what circumstances the alleged refusal took place does little to assist identifying with any precision [in] what circumstances the refusal occurred.

...

I invite you to provide a precise description of the conduct listed in the categories in the attached table.

7. The Applicant did not reply to the Respondent’s request and on 15 June 2022 made this application for review. The Respondent submits that, for the Tribunal's jurisdiction to be invoked, an applicant must have made a valid application under s 55 of the PPIP Act for internal review of the relevant conduct. The Respondent cites a decision of the Appeal Panel, GA v Commissioner of Police (GD) [2005] NSWADTAP 38 at [10], that:

The making of a competent application for review is an essential preliminary to the Tribunal exercising jurisdiction. The application can only be competent if the applicant has previously made a valid application for internal review. The respondent can properly object to jurisdiction on the basis that there has not been an application for internal review. Accordingly, when examining the circumstances relating to the making of the application for internal review, the Tribunal is engaged in the exercise of ascertaining its jurisdiction.

8. The Respondent submits it is an applicant's obligation to meet any objection to jurisdiction and cites NZ v Commissioner of Police, New South Wales Police [2005] NSWADT 213 at [11] where it was held that:

The Tribunal can not be expected to pore over voluminous submissions in order to locate the evidence that might show that a precondition to its jurisdiction has been met. The obligation lies, essentially, on the applicant to meet any objection to jurisdiction, and to do so by identifying clearly the relevant evidence.

9. The Respondent submits that the Applicant's description of the conduct in the Internal Review Application is not sufficiently particularised, such that the application is not competent. This is because, first, the Internal Review Application does not describe any particular conduct of the Respondent which is said to give rise to the various alleged contraventions. Rather, it is a list of categories of personal information. It is not clear from the Internal Review Application how the categories of information have been used, accessed, or disclosed in contravention of the Information Protection Principles (IPP) listed. The Applicant employs broad terms such as “use”, “handling” and “dissemination” to capture the content of an IPP. However, in the absence of any facts or circumstances that could be said to constitute conduct of the Respondent, it is not possible to identify what conduct the Applicant is seeking review of. The difficulty in identifying the conduct is exacerbated by the extensive interactions that the Respondent has had with the Applicant and given the breadth of the information she has listed in the application, specifically that it is said to relate to any document referring to or featuring the Applicant. The conduct sought to be reviewed is further made unclear by the use of the term “and / or” in relation to each of the 13 categories listed.

10. The Internal Review Application also does not provide any other identifying information which may assist the Respondent to determine what conduct the Applicant is seeking to have reviewed. For example, she has not identified any time period; the persons who may have been involved in any alleged use; the persons to whom the information may have been disseminated; or any request for personal information made by her which has been refused or not complied with. Although the Applicant has specified the dates on which she “first became aware of the conduct” these dates are of limited assistance to the Respondent as they pertain to her awareness, not when the conduct is necessarily said to have occurred. In effect, the Applicant has requested that the Respondent undertake the “absurd” task of “investigat[ing] every transaction or communication relating to [all information held by it in relation to the Applicant] which could possibly constitute a breach of an information protection principle” [quoting GA v Commissioner of Police, NSW Police [2004] NSWADT 254 at 6]. In summary, there is insufficient clarity to indicate what it might be about each of the categories of personal information listed that involves any transgression of the PPIP act.

11. The Respondent submits, secondly, the description of the conduct is insufficient to enable the Respondent to determine whether the application is invalid due to s 53(6) of the PPIP Act or if the Applicant is seeking review of conduct which is presently the subject of review by the Tribunal. In circumstances where it is not apparent what the alleged conduct is or how it became known to the Applicant, it is not possible to determine if the Applicant only became aware of the conduct in the six months prior to the Internal Review Application having been made: s 53(6). The Respondent has particular concerns in this respect because, the Applicant was provided with copies of various documents or categories of information referred to in the Internal Review Application during time periods before the six months prior to the application being made. As the conduct has not been sufficiently specified, the Respondent cannot determine whether the Internal Review Application is also invalid as the Applicant was aware of the conduct more than six months prior to the application being lodged.

12. The Applicant acknowledges in her Internal Review Application that the matters described within it overlap with the subject matter of the Applicant’s 2019 internal review. This is apparent in categories 10 and 13 where she refers to a category of personal information and then states, “unless captured by the previous privacy complaint”. In circumstances where it is not apparent what conduct is alleged in relation to those categories, it is not possible for the Respondent to identify what conduct she wants reviewed, aside from the alleged conduct that is the subject of the 2019 internal review. The Applicant refers to “refusals to provide her with all her personal information”; however, the Applicant has not identified any request made to the Respondent for her personal information which has been declined or not responded to. Given this, it is not apparent whether the personal information the Applicant is referring to as not having been provided, is information which was previously the subject of a decision to refuse access under the GIPA act and / or in subsequent Tribunal proceedings.

13. Thirdly, in light of these issues, the Respondent wrote to the Applicant putting her on notice of the deficiencies in her application and invited her to particularise the conduct she says is the subject of the Internal Review Application. There is no suggestion that the Applicant did not receive this correspondence; a copy is attached to the substantive application. Nevertheless, the Applicant has not responded to this correspondence and has taken no other step to particularise or further identify the conduct the subject of her application. Instead, the Applicant pre-emptively commenced these review proceedings in the Tribunal. The Respondent submits that, by declining to particularise the conduct and instead commencing these Tribunal proceedings, the Applicant is seeking to circumvent the statutory processes outlined in the PPIP Act which provide the respondent with an opportunity to first conduct a review of the conduct, before the Applicant is given an opportunity to seek review by the Tribunal.

14. The Respondent submits that, consistent with the reasoning in GA at [7], the Applicant's failure to respond to the request for particulars is further evidence of the misconceived/lacking in substance nature of the Internal Review Application.

Applicant’s submissions

15. The Applicant opened her oral submissions by stating the Tribunal did not have jurisdiction to deal with this matter. She said she was not going to engage in the proceedings other than to raise the jurisdictional issue, which is currently before the Supreme Court. She said the court proceedings that she initiated had been incorrectly listed in the Equity Division. She said she complied with the Equity Registry Orders, but the Equity Registrar was at fault, and she was now seeking judicial review of the Registrar’s decisions.

16. I asked the Applicant why she waited until the morning of the Tribunal hearing to lodge her 33-page submissions. She said it was the Respondent who had failed to comply with the Tribunal’s orders of 29 July 2022. She then referred to the Respondent not disclosing confidential police reports about her and said, “it doesn’t matter if the Respondent did not get anything from me [in compliance with the Tribunal’s 29 July 2022 orders] because you don’t have jurisdiction”. I made it plain to the Applicant that there are no confidential police reports about her in the material before the Tribunal.

17. I referred the Applicant to paragraph 4 of her written submissions which state:

The Applicant asks the NCAT

(a) to decline to accept the Applicant’s application for the review made to the NCAT pursuant to the PPIP Act as it seeks to invoke federal jurisdiction because it involves a matter between a State and a resident of another State and,

(b) to provide the Applicant with the document stating that the NCAT declines to accept the applicant's application because it involves a matter between a State and a resident of another State.

18. She confirmed those words and reiterated her view that the Tribunal did not have jurisdiction to deal with either the Review Application or a Summary Dismissal application.

19. Paragraph 1 of the Applicant’s written submissions contains the following sentence: “It is noted that the Applicant applied to the NCAT only because she wished to meet the hurdle in s 34(B)(2)(a) of the Civil and Administrative Tribunal Act 2013 to be able to make an application to a court.”

20. The remainder of the Applicant’s written submissions is concerned, almost entirely, with her argument concerning the exercise of federal jurisdiction which is presently before the NSW Supreme Court and does not touch upon the present submissions by the Respondent.

Discussion and findings

21. The Respondent raises 2 issues:

1. The 15 June 2022 Application for Review is outside the Tribunal’s jurisdiction; or alternatively,

2. It should be dismissed as misconceived or lacking in substance.

22. The Applicant raises 2 issues:

1. The Tribunal has no jurisdiction to deal with the Application for Review.

2. The Tribunal has no jurisdiction to deal with the Dismissal Application.

23. Additionally, the Applicant “asks” the Tribunal to decline to accept the Application for Review, and to provide a document to that effect.

24. The fact is, the Application for Review was lodged with and registered by the Tribunal on 15 June 2022. It is therefore not possible for the Tribunal to “decline to accept” it, or to issue a document to that effect. Similarly, the Miscellaneous Application for strike out / dismissal is validly before the Tribunal.

25. What the Tribunal can do, as stated in GA v Commissioner of Police (GD) [2005] NSWADTAP 38 at [10], is engage “in the exercise of ascertaining its jurisdiction”. That exercise begins with consideration of the Internal Review Application made by the Applicant. The Respondent submits it is an Applicant's obligation to meet any objection to jurisdiction and quotes from NZ v Commissioner of Police, New South Wales Police [2005] NSWADT 213 at [11] in support of that submission. It is instructive to consider the full paragraph from which that quote is extracted:

11 Voluminous submissions were filed on 21 and 27 July 2005 again referring to NZ's many concerns with the general conduct of the police in connexion with matters involving her over many years. The request of the tribunal was a simple one - to produce an application for internal review. That did not occur. In circumstances of this kind, the tribunal does not see the words of s 73(4) as going so far as to conduct a ‘search and find’ service on behalf of applicants. The tribunal can not be expected to pore over voluminous submissions in order to locate the evidence that might show that a precondition to its jurisdiction has been met. The obligation lies, essentially, on the applicant to meet any objection to jurisdiction, and to do so by identifying clearly the relevant evidence.

26. In this matter too, the Applicant has “many concerns with the general conduct of the police in connexion with matters involving her over many years”. The Applicant has declined to reply to the Respondent’s request for particulars of the alleged conduct. The Applicant has expressly refused to meet the Respondent’s objection to jurisdiction concerning the Internal Review Application. Her focus is solely on the broader question of the exercise of federal jurisdiction in a “matter between a State and a resident of another State”. In fact, the Applicant makes it plain in her written submission that the only reason she lodged the Tribunal Application for Review was to “meet the hurdle…to be able to make an application to a court”. She has made no answer to the Respondent’s submissions concerning the inadequacies of her Internal Review Application.

27. I will not repeat those inadequacies, they are quoted at length in paragraphs 5 to 13 above. It is sufficient to say that I am satisfied the Internal Review Application is not sufficiently particularised and therefore, not competent. In this circumstance, as stated by the Appeal Panel in GA, “The respondent can properly object to jurisdiction on the basis that there has not been an application for internal review”.

28. Section 55(2) of the PPIP Act sets out the orders the Tribunal can make on reviewing conduct of an agency that is alleged to amount to a contravention of an IPP. This includes deciding to take no action. In circumstances where the conduct complained of is not sufficiently particularised, where the Respondent consequently objects to the Tribunal's jurisdiction, where the Applicant has refused to engage in the Tribunal’s proceedings and where the Applicant also objects to the Tribunal’s jurisdiction, I am satisfied the appropriate order is to decide to take no further action.

Order

29. The order of the Tribunal is:

1. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the name of the Applicant is prohibited.

2. Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998 (NSW) no action will be taken on this matter.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 30 September 2022