GHZ v Commissioner of Police, New South Wales Police Force

[2025] NSWSC 1091

Supreme Court

New South Wales

Medium Neutral Citation:

GHZ v Commissioner of Police, New South Wales Police Force [2025] NSWSC 1091

Hearing dates:

12 May 2025

Date of orders:

23 September 2025

Decision date:

23 September 2025

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

(1) The plaintiff’s summons dated 13 December 2024 is dismissed.

(2) The plaintiff is to pay the defendant’s costs.

Catchwords:

Judicial Review – NCAT decisions – Administrative decisions – Privacy and personal information protection

Legislation Cited:

Administrative Decisions (Judicial Review) Act1977 (Cth), s 10(2)(b)(ii)

Administrative Decisions Review Act 1997 (NSW), s 9

Anti-Discrimination Act 1977 (NSW)

Australian Human Rights Commission Act 1986 (Cth)

Criminal Records Act 1991 (NSW)

Child Protection (Working with Children) Act 2012 (NSW), s 5C

Civil and Administrative Tribunal Act 2013 (NSW), ss 30, 34(1)

Court Suppression and Non-publication Orders Act2010 (NSW), s 7

Crimes Act1900 (NSW), ss 61, 112, 317, 319, 327

Evidence Act1995 (NSW), ss 56, 59, 137 138

Privacy and Personal Information Protection Act 1998 (NSW), ss 11, 15, 27(1)(h), 53, 55

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 59.10

Supreme Court Act 1970 (NSW), ss 23, 69

State Records Act 1998 (NSW)

Cases Cited:

A v New South Wales [2007] HCA 10; (2007) 230 CLR 500

Allen v TriCare (Hastings) Pty Ltd [2015] NSWSC 416

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564

Blooms the Chemist Management Services Ltd v Pharmacy Council of New South Wales [2024] NSWSC 296

BUSSQ v APRA [2025] FCA 31

CGU Insurance Ltd v Blakeley [2016] HCA 2; (2016) 259 CLR 339

Commonwealth ofAustralia v BIS Cleanaway Ltd [2007] NSWSC 1075

Copper Resources Ply Ltd [2015] NSWCA 113

CSL Australia Pty Ltd v Minister for Infrastructure and Transport [2014] FCAFC 10; (2014) 221 FCR 165

Davies v Minister for Urban Development and Planning [2011] SASC 87; 109 SASR 518

DPP v Tuteru [2023] VSCA 188

Dokas v Gallagher (No 2) [2024] NSWCA 236

Edelsten v Minister of Health (1994) 58 FCR 419

Fontainas [2019] NSWSC 1376

Gennacker Ply Ltd t/a Homestead Holiday Park v

Hausfeld v Commissioner of Police [2018] NSWSC 1540

Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591

INSURANCE AUSTRALIA LIMITED(t/as NRMA) v James Hulse [2024] NSWSC 142

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531

Landini v State of New South Wales [2008] NSWSC 1280

Makucha v Richardson [2008] NSWSC 945

Makowska v St George Community Housing Ltd [2022] NSWCA 5

Masterson v Commissioner of Police [2018] NSWSC 892

Mikhaylova v Commissioner of New South Wales Police [2025] NSWSC 542

Minister for Resources and Energy v Gold and Commissioner of Corrective Services v Liristis [2018] NSWCA 143; (2018) 98 NSWLR 113

Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308’

Potkonyak v Attorney General of NSW [2019] NSWSC 987

Shapkin v The University of Sydney [2023] NSWSC 1534

Shapkin v The University of Sydney [2024] NSWCA 156

Sullivan v Moody [2001] HCA 59

Truth About Motorways Pty Ltd v Macquarie

Stephens v Director of Public Prosecutions(NSW) [2019] NSWSC 761

Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254

Wishart v Fraser [1941] HCA 8; (1941) 64 CLR 470

Category:

Principal judgment

Parties:

GHZ (Plaintiff)
Commissioner of Police, New South Wales Police Force (Defendant)

Representation:

Counsel:
Self-represented (Plaintiff)
S Hoare (Defendant)

Solicitors:
Self-represented (Plaintiff)
Crown Solicitor for NSW (Defendant)

File Number(s):

2024/00464502

Publication restriction:

Nil

JUDGMENT

1. This decision involves judicial review of a decision of the Civil and Administrative Tribunal of New South Wales (NCAT).

2. The plaintiff is GHZ. She is self-represented in these proceedings. An order was made under s 7 of the Court Suppression and Non-publication Orders Act2010 (NSW) that the plaintiff not be identified but instead be referred to by the pseudonym “GHZ”.

3. The defendant is the New South Wales Police Force (NSWPF). It is represented by S Hoare of counsel. The parties relied on a court book compromising of 4 volumes (Ex B1, B2, B3 and B4) and supplemented by a smaller court book (Ex 1). NSWPF also relied upon the affidavit of its solicitor, Robert Sherrington dated 13 March 2025 and its exhibits (Ex 2).

4. By a notice of motion filed 13 March 2025 the defendant, NSWPF, seeks the following orders:

(1) (a) pursuant to s 34(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), that the court refuse to conduct a judicial review of the decision made by a delegate of the defendant on 3 July 2024; and

(1) (b) upon refusing, the Court dismiss the proceedings.

(2) Further, or in the alternative, to order 1, an order under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) dismissing the proceeding.

(3) Alternatively to orders 1 and/or 2, an order by analogy with r 14.28 of the UCPR striking out the plaintiff’s summons seeking judicial review filed 13 December 2024.

5. The gravamen of GHZ’s complaint arises out of the Computerised Operational Policing System (COPS) database. That database records the fact that she was charged with two offences of common assault. She has sought to have the existence of the record that she was charged expunged or deleted.

6. GHZ has an entrenched view that the record on the COPS database that she was charged with those two offences must be expunged or deleted.

This current judicial review

7. GHZ seeks to have the record of the charges being made deleted or expunged from her criminal record. She says that she should not have been charged and that at the hearing before the Magistrate and at the hearing in the Local Court, the police relied on a falsified video.

8. It is not in dispute that s 69 of the Supreme Court Act 1970 (NSW) (Supreme Court Act) is applicable. It relevantly reads:

69      Proceedings in lieu of writs

…

(3)    The jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes, if the Court is satisfied that the ultimate determination of a court or tribunal in any proceedings has been made on the basis of an error of law that appears on the face of the record of the proceedings—

(a)    jurisdiction to quash the ultimate determination of the court or tribunal, and

(b)    if the Court determines that, as a matter of law, only one particular determination should have been made by the court or tribunal, jurisdiction to make such judgment or orders as are required for the purpose of finally determining the proceedings.

(4)    For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.

…

The summons

9. By summons filed 13 December 2024, GHZ seeks judicial review of the NSWPF internal review that was heard on 3 July 2024 and 12 December 2024. On 12 December 2024, the decision of the Senior Tribunal Member was delivered, a decision to which I will return.

10. In this judicial review, GHZ seeks the following orders:

1. Declare GHZ’s two no prima facie criminal charges brought on 20 May 2021 invalid, illegitimate, prejudicial, unlawful and malicious constituting a breach of the integrity principles outlined in the State Records Act 1998 (NSW) (State Records Act) (order 1).

2. Set aside the decision of Commissioner of Police, made on 3 July 2024 at the NSWPF to refuse expungement (deletion) of GHZ’s two criminal entries from the police database (COPS) pursuant to s 69 of the Supreme Court Act (order 2).

3. Direct a public official within the NSWPF to fulfill their legal duty to expunge (delete) GHZ’s two criminal entries from all police databases (COPS) and all records through a prerogative writ of mandamus (order 3).

4. Direct the NSWPF to complete the expungement process within 30 days from the date of the order (order 4).

5. Direct the NSWPF to provide GHZ with written confirmation of the expungement, including the date of removal and the specific records expunged (order 5).

6. Direct the NSWPF to cover all costs associated with proceedings (order 6).

11. It is noted that orders (4) and (5) follow on if order (3) is granted. During the hearing, GHZ agreed to have order (7) of the summons and the corresponding remedy sought struck out (T11 [45]-[50]; T12 [1]-[15]). That means that her claim for damages is not pressed.

12. Judicial review grounds 2, 3, 4 and 5 are related and will be dealt with together.

Judicial review grounds

13. At pars 1-2 of the summons, GHZ articulates her grounds of judicial review as follows:

1. Application for review of decision by government and public officials pursuant to s 69 of the Supreme Court Act being errors of law on the face of the record.

2. Breach of both common law and statutory provisions, including:

1. Failure to consider relevant facts and credible evidence inconsistent with the principles established in High Court: Kioa v West (1985) 159 CLR 550; [1985] HCA 81 at 584 (Mason J).

2. Non-compliance with statutory provisions including violations of ss 11 and 15 of the Privacy and Personal Information Protection Act 1998 Act (NSW) (PPIP Act) along with the violation of multiple sections of the Evidence Act1995 (NSW) (Evidence Act) and ignored applicability of the Crimes Act1900 (NSW).

14. GHZ referred to a number of sub-grounds in seeking her review of part of the decision by the Commissioner of Police, NSWPF, made on 3 July 2024 to refuse the expungement or deletion of GHZ’s two entries from COPS (Internal Review Decision). These sub-grounds are wide ranging. As best I can understand, GHZ’s application for judicial review can be summarised in the following way:

1. GHZ’s right to have her own, correct, legitimate and not misleading personal record in line with statute including the PPIP Act, State Records Act, Anti-Discrimination Act 1977 (NSW), and Australian Human Rights Commission Act 1986 (Cth) (Australian Human Rights Commission Act) (the central grounds of review).

1. The other grounds of judicial review are sub-species of the central grounds of review. They are that the entries are illegitimate as the Magistrate recorded no prima facie charges, proceedings and entries that should not have existed in line with the statute and common law due to non-credible, unreliable and misleading evidence fabricated by police, lack of witnesses’ credibility and perjury.

2. A disregard of GHZ’s protection under common law – charges should have never been brought, and entries should have never existed due to prejudice and applicability of the malicious prosecution at common law.

3. Violation of fundamental rights and law, Australian Human Rights Commission Act: infringement of GHZ’s human right to work, use hard-earned qualification, support herself and her children, and live healthy.

15. GHZ seeks to have:

1. the decision to refuse deletion of GHZ’s criminal entries from the police database be set aside; and

2. GHZ’s two criminal entries removed from the police database (COPS) and from all records once and forever.

Extension of time

16. The first issue to be determined is whether GHZ should be granted an extension of time to file the summons pursuant to the UCPR. Rule 59.10 of the UCPR sets out the rule for the time for commencing proceedings. It relevantly reads as follows:

59.10    Time for commencing proceedings

(1)    Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.

(2)    The court may, at any time, extend the time for commencing proceedings fixed by subrule (1).

…

(5)    This rule does not apply to any proceedings in which the setting aside of a decision is not required.

17. On 13 December 2024, GHZ filed her summons seeking relief under s 69 of the Supreme Court Act.

NSWPF’s submissions

18. NSWPF submitted that by her summons, GHZ only seeks to review the Internal Review Decision dated 3 July 2024, rather than the Tribunal Decision dated 12 December 2024. The Internal Review Decision is outside the three-month requirement under UCPR r 59.10. Leave for an extension of time should not be granted, as there is no application and no reasons provided for the extension.

GHZ’s submissions

19. In oral submissions, GHZ sought an extension of time to file her summons out of time if she needed it. GHZ submitted that, at the end of July 2024, she told NSWPF of her intention to file the summons in August to review the Internal Review Decision. On 2 August 2024, she received a letter from the Crown Solicitor which, based on her understanding, told her that she should not file the summons until she received the NCAT decision; and that if she filed it in August, NSWPF would file a notice of motion to dismiss her summons. For this reason, GHZ filed the summons on 13 December 2024, one day after the decision of the Tribunal dated 12 December 2024.

20. GHZ further submitted that she does not need to seek an extension of time. However, if the Court decides that she should seek leave for the extension, she seeks leave based on the reasons that she has taken all the possible steps to not to abuse the process and also because of what the NSWPF stated in its letter dated 2 August 2024 that she should not file her summons before the decision of NCAT was made.

Resolution

21. I am satisfied that GHZ should be granted an extension of time to file her summons, if in fact she needs one. Her explanation for her delay was that, based on the letter from the Crown Solicitor, she believed that if she filed the summons immediately in August, her summons would be dismissed.

22. GHZ took into account the contents of the letter from the Crown Solicitor’s Office about the written reasons and decision of NCAT. On 12 December 2024, NCAT handed down its decision dismissing GHZ’s internal appeal. The next day, namely, 13 December 2024, GHZ filed her summons in this Court. While GHZ may not be entitled to seek judicial review from an internal decision of NCAT, she filed her summons a day after the decision of NCAT. In these circumstances, it is my view that GHZ does not require an extension of time to appeal, but in the event I am wrong, I would grant GHZ leave to extend the time to file her summons.

The background

23. It is the making of charges against GHZ and her subsequent criminal record that form the gravamen of her application for judicial review.

24. On 23 May 2021, GHZ was charged with two charges of common assault. In response to a National Police Check requested on 7 June 2022, NSWPF disclosed to the Department of Education that there was a ‘pending court appearance’ on 29 July 2022 for these assault charges.

25. On 19 August 2022, the Department of Education notified GHZ via email that a criminal history check disclosed an incident in 2022 and asked her to show cause why her application to be a School Learning Support Officer should proceed. On 16 September 2022, the Department of Education informed GHZ that her application had been withdrawn because of the pending court appearance.

26. On 7 November 2022, GHZ appeared before the Local Court. Her charges were dismissed, and it was noted that “there was no prima facie case.” GHZ applied for her costs incurred in the Local Court be paid by NSWPF. The Magistrate dismissed her application for costs.

27. GHZ appealed to the District Court only in relation to the costs order. GHZ then sought judicial review of the costs order. That judicial review was dismissed (Mikhaylova v Commissioner of New South Wales Police [2025] NSWSC 542 (‘GHZ (No 1)’). The COPS record inaccurately recorded that criminal proceedings were pending. This record was later corrected on the COPS database.

The prior Local Court proceedings

28. Faulkner J in the earlier proceedings, GHZ (No 1), has provided a complete and thorough timeline of the plaintiff’s proceedings in the Local Court. I have carefully read them and agree with his Honour’s history. I gratefully acknowledge and adopt his Honour’s summary. I have extracted only the relevant history of the Local Court proceedings so far as it relates to this judicial review. It is as follows:

“Original incident

[3]    As at 2021 the Plaintiff operated a business which included taking photographs of families and children, especially newborn babies.

[4]    The case arises out of an incident on 20 May 2021 which occurred at the Plaintiff’s photography studio in Sydney. …

[5]    On the day in question a family arrived having previously booked to have photographs taken of their newborn baby. They arrived at the foyer of the building in which the studio was located. I will refer to the baby as Baby N and the mother as Ms N. The father, Mr N, his adult sister-in-law and a couple of other children were also in the foyer.

[6]    … When the Plaintiff met the N Family in the foyer there appears to have been an immediate dispute. To the extent the facts can be discerned, it seems that the dispute was about three adults attending when the Plaintiff would not permit more than two adults in her studio … They went to the studio where the Plaintiff took some photographs. At some point Mr N took the other children away so that only the Plaintiff, Ms N and Baby N remained in the studio. More photographs were taken.

[7]    Another dispute ensued between the Plaintiff and Ms N. Whether it was a new dispute or an evolution of the earlier dispute does not matter.

[8]    Using her mobile telephone, Ms N started to make video recordings of the interaction. She ultimately made three video recordings. For some of the video recordings the telephone appears to have been located in Ms N’s pocket (or similar) so there are no images for those parts of the interaction. There is, however, audio.

[9]    The three video recordings were adduced into evidence as Exhibit F in these Supreme Court proceedings. They reveal an argument in which Ms N was complaining about the service being provided and the Plaintiff was asking Ms N to leave. Baby N cried intermittently throughout.

[10]    There is no dispute that for at least part of the interaction the Plaintiff had in her hand a spray bottle containing a cleaning product. There is no video footage of the Plaintiff actually spraying Baby N, but [certain exchanges are recorded alluding to Baby N having been sprayed.]

…

[13]    Eventually Ms N and Baby N left the studio.

29. GHZ recorded a video as to these encounters. I have carefully viewed that video (Ex A).

Police investigation

[Ms N made a report to police immediately and a police investigation commenced.]

[18] On 23 May 2021 the police charged the Plaintiff with two counts of common assault contrary to s 61 of the Crimes Act 1900 (NSW). The victims of the alleged assaults were Ms N and Baby N. Each assault was said to have been constituted by the Plaintiff spraying the victim with cleaning solution.

…

Local Court trial

…

[23]    The Plaintiff pleaded not guilty to the assault charges. The case proceeded to a hearing in the Local Court which commenced on 7 November 2022. The Plaintiff represented herself at the hearing.

[45]    … the Magistrate raised with the prosecutor whether the Crown had adduced sufficient evidence to make good the charges. The Magistrate found that there was no evidence (or no satisfactory evidence) that once expelled from the spray bottle the droplets of cleaning solution alighted on the skin of either Ms N or Baby N. The Crown accepted that that was an essential element of the charges. Hence, there was no prima facie case for the Plaintiff to answer.

[46]    The Magistrate found the Plaintiff not guilty of both charges and dismissed them.”

30. In summary, on 3 November 2023, the two charges of common assault were dismissed by Magistrate Reiss (the Magistrate). At that stage, the Local Court made findings that there was “no prima facie case”, and that GHZ was not guilty. After the hearing concluded, GHZ made an application under ss 213 and 214 of the Criminal Procedure Act 1986 (NSW) that NSWPF pay for her professional costs. That costs application was dismissed by the Magistrate.

30. On 10 November 2023, GHZ appealed to the District Court in relation to the Magistrate’s dismissal of her costs application. On 19 March 2024, Barrow DCJ dismissed her appeal as to costs on the basis that the District Court lacked jurisdiction to hear her appeal against the refusal of the Local Court to award costs against the NSWPF. GHZ subsequently sought judicial review in this Court in relation to the appeal to the District Court decision regarding her costs application: that was GHZ (No 1). Her application for judicial review was dismissed by Faulkner J.

The NSW Civil and Administrative Tribunal (NCAT) proceedings

32. On 1 March 2024, GHZ lodged an application in NCAT for internal review pursuant to s 53 of the PPIP Act, in relation to the conduct of NSWPF in relation to the Local Court criminal proceedings against her.

33. Section 53 of the PPIP Act reads as follows:

53 Internal review by public sector agencies

(1) A person (the applicant) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.

…

(d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and

…

(4) Except as provided by section 54 (3), the application must be dealt with by an individual within the public sector agency who is directed by the agency to deal with the application. That individual must be, as far as is practicable, a person—

(a) who was not substantially involved in any matter relating to the conduct the subject of the application, and

(b) who is an employee or officer of the agency, and

(c) who is otherwise suitably qualified to deal with the matters raised by the application.

(5) In reviewing the conduct the subject of the application, the individual dealing with the application must consider any relevant material submitted by—

(a) the applicant, and

…

(6) The review must be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application under section 55 to the Tribunal for an administrative review of the conduct concerned.

…

34. On 8 April 2024, after she lodged her application for internal review, the NSWPF criminal records team forwarded GHZ a letter informing her that NSWPF does not delete information relating to criminal charges. The letter stated that NSWPF may disclose all criminal charges for working with children checks; however, the assault charges would not be disclosed for a National Police Check for the purposes of general employment.

35. So far as a working with children check is concerned, of relevance here is s 5C of the Child Protection (Working with Children) Act 2012 (NSW). It reads as follows:

5C    Meaning of “criminal history”

(1)    A person’s criminal history includes--

(a) convictions (including convictions that have been spent, quashed or set aside or for which a pardon has been granted), despite anything to the contrary in the Criminal Records Act 1991, and

(b) criminal charges, whether or not heard, proven, dismissed, withdrawn or discharged, and

…

(2)    In this section--

conviction has the same meaning as it has in the Criminal Records Act 1991.

36. On 6 May 2024, GHZ also commenced the Tribunal Information Proceeding in NCAT by lodging an application for administrative review in relation to the conduct of NSWPF, the subject of the internal review.

37. On 3 June 2024, the Tribunal Information Proceeding was listed for a first case conference. GHZ appeared in person. Mr Sherrington, solicitor, appeared for NSWPF. At the case conference, the solicitor acting for the Crown Solicitor’s Office deposed as follows:

“Commencement of Tribunal lnformation Proceeding, making of lnternal Review Decision

On 1 March 2024, the Plaintiff lodged an application for internal review, pursuant to s 53 of the Privacy and Personal Information Protection Act 1998 (the PPIP Act), of conduct of the NSW Police Force in connection with the Local Court Criminal Proceeding…

On 6 May 2024, the Plaintiff commenced the Tribunal lnformation Proceeding by lodging an application for administrative review by the Tribunal of the conduct of the NSW Police Force the subject of her application for internal review…

On 3 June 2024, the Tribunal lnformation Proceeding was listed for a first case conference. The Plaintiff appeared in person, and I appeared on behalf of the Commissioner. At that case conference, I said words to the effect that no internal review had been commenced by the Commissioner, due to an administrative oversight. The Tribunal then made orders remitting the Commissioner's deemed decision back … for further consideration and contemplating that, if the Plaintiff remained dissatisfied with the Commissioner's reconsidered decision, the Tribunal lnformation Proceeding would continue by reference to that decision…

On 3 July 2024, I caused to be filed with the Tribunal a copy of the internal review decision prepared on behalf of the NSW Police Force (lnternal Review Decision)…

The Tribunal lnformation Proceeding was subsequently conducted by reference to the lnternal Review Decision.”

38. In summary, on 3 June 2024, the NSWPF filed a copy of the Internal Review Decision. The reconsideration of the Tribunal Information Proceeding was subsequently conducted by reference to the issues raised that were meant to be dealt with the Internal Review Decision.

NCAT reconsideration

39. As the internal review application was not completed 60 days after the review was mailed to the Police Commissioner, GHZ was entitled to lodge a review application to NCAT pursuant to s 55 of the PPIP Act. The plaintiff relied on extensive and similarly wide-ranging submissions as in this judicial review.

40. On 3 June 2024, the NCAT Senior Member Higgins ordered that the matter be returned to the NSWPF for reconsideration (Amended Order 4(a)):

4(a)    The deemed decision by Commissioner of Police, NSW Police Force is returned to the Commissioner of Police, NSW Police Force for re-consideration.

41. On 3 July 2024, GHZ was notified of the result of the reconsideration that was conducted by Philippa Reeves, lawyer, Office of General Counsel of NSWPF (the reconsideration).

42. I have extracted a number of relevant portions of the reconsideration that relate to the issues raised in GHZ’s current application for judicial review:

“… I note that your internal review was not completed within 60 days of receipt by the agency because, due to administrative error, it was not allocated to a reviewer when it was received. On behalf of the NSWPF, I apologise for the delay in completing your internal review. [CB 67]

…

Your internal review application

At section 5 of your internal review application, you selected the following options to describe your complaint:

   Failure to protect my correct personal information — my clear criminal record and clear criminal history.

   Unlawfully creating false personal information — criminal history and criminal record under my name based on false material police has produced and distributing to third parties.

   Producing false material to deliberately create false personal information — criminal record while deliberately failing to protect my correct personal information

   Security or storage of my personal information

   Refusal to let me access or find out about my own personal information — criminal record

   Accuracy of my personal information

   Use of my personal information

   Disclosure of my false personal information to third parties to compromise my correct personal information — my clear criminal record

   Deliberate severe defamation while failing to protect my correct personal information — my clear criminal record and clear criminal history.

Based on this, and the information provided at section 4 of your internal review, I understand that the specific conduct which is alleged to breach the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) is:

1. creating entries in the Computerised Operational Policing System (COPS) police database that incorrectly recorded that you had a criminal history;

2. failing to notify you that this false criminal history had been created;

3. failing to provide you access to your criminal history at your request;

4. failing to alter or delete your false criminal history at your request; and

5. disclosing your false criminal history to third parties, being the NSW Department of Education and Office of the Children's Guardian (OCG).

Scope of the review

In undertaking this internal review, I have:

   considered documents you have provided to the NSWPF;

   considered NSWPF records including emails and also performed certain searches on the COPS database;

   spoken with two employees from the NSWPF Forensic and Technical Services Command, Criminal Records team, being the Manager - FETS Criminal Records and Acting Service Coordinator, National Police Checking Service; and

 reviewed the judgment of R v [GHZ] [2024] NSWDC 90. [CB 67-68]

…

This internal review is a review under section 53 of the PPlP Act, which allows a person who aggrieved by the conduct of a public sector agency to have that conduct reviewed. "Conduct" includes the contravention or alleged contravention of an Information Protection Principle (IPP) that applies to the agency under the PPIP Act (section 52(1)).

…

Applicable law

The applicable law for the purpose of this internal review is the PPIP Act, including:

   section 9 — Collection of personal information directly from individual;

 section 10— Requirements when collecting personal information;

 section 11 — Other requirements relating to collection of personal information (together with sections 9 and 10, the Collection IPPs);

   section 12— Retention and security of personal information (Retention IPP);

   section 14 — Access to personal information held by agencies (Access lPP);

 section 15 — Alteration of personal information (Alteration IPP);

   section 16 — Agency must check accuracy of personal information before use (Accuracy IPP);

   section 17— Limits on use of personal information (Use IPP);

 section 18 — Limits on disclosure of personal information (Disclosure lPP);

   section 25 — Exemptions where non-compliance is lawfully authorized or required;

   section 26 — Other exemptions where non-compliance would benefit the individual concerned; and

 section 27 — Specific exemptions for certain law enforcement agencies.

In particular, section 27 of the PPlP Act relevantly provides:

27 Specific exemptions for certain law enforcement agencies

(1) Despite any other provision of this Act, the following are not required to comply with the information privacy principles—

…

(h) the NSW Police Force.

(2) However, the information protection principles do apply to a public sector agency mentioned in subsection (1) in connection with the exercise of the agency's administrative and educative functions."

The effect of section 27 of the PPIP Act is that the NSWPF is not required to comply with the lPPs except in connection with the exercise of its administrative and educative functions. As the Appeal Panel explained in Commissioner of Police, NSW Police Force v YK (GD) [2008] NSWADTAP 78 at [20], the starting point is that all functions of the NSWPF are exempt from compliance with the lPPs. The question is simply "whether the activity is brought under the regulation of the Act because it belongs to the
'administrative' or 'educative' services of the NSWPF."

A relevant question for the purposes of this internal review is therefore whether the functions exercised by the NSWPF are properly characterised as the exercise of the NSWPF's administrative or educative functions. If they cannot be so characterised, the exemption in section 27(1) will apply.

NCAT has considered the meaning of 'administrative functions' in a number of cases. Relevantly for this decision:

1. the word "administrative" in section 27(2) of the PPIP Act is generally to be given its ordinary or commonly understood meaning. The Tribunal has noted that the word "administrative" is defined in the Macquarie Dictionary as: "relating to administration; executive: administrative ability; administrative problems", with the primary meaning of "administration" being "the management or direction of any office or employment".

2.   administrative functions include, but are not limited to, the NSWPF's "corporate services areas performing functions such as personnel, budget and information technology".

3. NCAT has held that the collecting and recording of information about individuals in the COPS database is not an administrative function. Similarly, considering requests to amend or delete information under s 15 of the PPIP Act is not an administrative function, nor does such a request change the character of the information or the agency's function with respect to which it holds the information.

4.   However, the disclosure of a person's criminal history may be an administrative or non-administrative function, depending on the circumstances. For example:

a.   The disclosure of a person’s criminal history to the defendant's ex-partner during Local Court proceedings against him was non-administrative.

b.   The processing of applications and provision of criminal history information to a third party for the purposes of a National Criminal History Check, or a National Police Certificate, where this is done as part of a routine application, is an administrative function.

In your internal review application you state that "The High Court said in Can^-v The State of Western Australia [2007] HCA 47 at [23] that "making entries into police databases..." were administrative tasks.” That case concerned the admissibility under the Criminal Code (WA) of admissions made by the accused after formal questioning in the interview room had ended. Gummow, Heydon and Crennan JJ (at [23]) noted that the accused made the relevant admissions while the police officers were undertaking "various administrative tasks" such as "making entries into police databases, returning the appellant's property, photographing him and taking DNA samples." Given the different legislative context, I do not think this case is relevant to the meaning of the word administrative in section 27, as the High Court was not considering the meaning of the word in the PPIP Act or any other privacy legislation. have, instead, applied the NCAT cases above in considering the meaning of "administrative", because those cases consider the meaning of the word in section 27 specifically.

'Educative functions' of the NSWPF relate to the "work that the [NSWPF] does in connection with community and school education programs, as well as in relation to its internal education and training programs". [CB 69-71]

Findings of fact

…

On 8 April 2024, the NSWPF Criminal Records team sent you a further letter informing you that the NSWPF does not delete information relating to criminal charges. The letter also stated that the NSWPF may disclose all criminal charges for working with children checks, however the Assault Charges would not be disclosed for a National Police Check for the purposes of general employment.

Based on a search I performed on the COPS database for your criminal history on 21 June 2024, your criminal history now records the outcome of the Assault Charges in the Local Court as "NO PRIMA FACIE CASE: DISMISSED — NOT GUILTY AFTER HEARING: (LCRT 19741)". Your criminal history does not refer to any pending court appearances or any appeal regarding these charges.

Finally, you state that you and your family have suffered considerable harm because of the actions of the NSWPF, including financial loss, loss of employment prospects and the development of medical conditions. However, because of my findings later in this internal review, I do not intend to make findings regarding the loss you have suffered. [CB 73]

…

Summary of internal review findings

In summary, I am satisfied that the collecting, recording and storage of your personal information in the form of your criminal history in the COPS database was not undertaken in connection with the exercise of the NSWPF's administrative or educative functions. It follows that the exemption in section 27(1) of the PPIP Act applied, meaning that the NSWPF was not required to comply with the lPPs and that there has been no breach of the lPPs.

In relation to the disclosure of your criminal history:

1. I found that the NSWPF did not breach the Disclosure 1FF by providing your criminal history to the Department of Education because I found that you consented to the disclosure. The information provided was also, in my opinion, accurate.

2. I found that the NSWPF did not breach the Disclosure IPP by providing your criminal history to the OCG because the Commissioner of Police was authorised to do so under the Child Protection (Working with Children) Act 2012 (NS'A. On balance, I also thought it likely that the PlPPs did not require the NSWPF to ensure that this information was accurate. [CB 77)]

…”

The NCAT decision in relation to the reconsideration

43. On 20 November 2024, the NCAT Information Proceeding was heard by Senior Member Macintyre (the Senior Member). The NCAT Information Proceeding then continued by reference to the Internal Review Decision pursuant to s 55 of the PPIP Act, s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADRA) and s 30 of the NCAT Act.

44. On 12 December 2024, Senior Member MacIntyre in the NCAT (Administrative and Equal Opportunity Division) largely relied upon and adopted the reconsideration decision. He determined that there had been no contravention of the PPlP Act by NSWPF. The Senior Member then ordered, pursuant to s 55(2) of the PPIP Act, that “no further action to be taken in this matter”.

45. In the Senior Member’s decision, he set out the history like how it was set out in the reconsideration. The relevant paragraphs of his decision have been extracted below:

“Consideration

[23] The question for determination is whether the matters described in the Background above gave rise to a breach or breaches of any IPP set out in Part 2 of the PPIP Act. The Applicant alleges that breaches arose in the following contexts:

(1)    The laying of charges

(2)    Disclosure of information for the purposes of the Local Court and District Court proceedings

(3)    Disclosure of information to the Department of Education

(4)    Disclosure of information to the OCG.

…

Office of Children’s Guardian

[44] The Applicant submits that the two disclosures to the OCG contravened s 18 or s 19 the PPIP Act. The Respondent, on the other hand, submits that she was authorised by legislation to make disclosure and alternatively, that the Applicant consented to national police checks when she applied for a Working With Children's Check following the dismissal of the charges against her.

[45] Under s 25(a) of the PPIP Act, an exception applies to compliance with ss 9, 10, 13, 14, 15, 17, 18 or 19, where an agency is lawfully authorised or required not to comply with the principle concerned. Section 33 of the Child Protection (Working with Children) Act 2012 (NSW) ("CPWC Act") provides as follows:

"33 Notification of offences and other information

(1) The Commissioner of Police is authorised at any time, in accordance with this Part and the regulations, to disclose (or arrange for a member of the NSW Police Force to disclose) to the Children's Guardian the following information-

(a)    information relating to any matter that may cause a person to be a disqualified person or result in an assessment requirement affecting a person,

(b)    information relating to the criminal history of a person,

(c)    without limiting paragraph (a) or (b), information relating to the circumstances of an offence or other matter disclosed under this section.

(2)    (Repealed)

(3)    This section does not limit the persons to whom, or the circumstances in which, information relating to the criminal history, including the criminal record, of persons may be disclosed apart from this Act.

(4)    Information about a person's criminal history may be disclosed under this Act-

(a)    whether or not the information relates to events that occurred when the person was under the age of 18 years, and

(b)    whether or not the information relates to offences that cause or may cause the person to be a disqualified person or result in an assessment requirement affecting the person".

[46] What is the "criminal history" of a person is defined in s 5C(1) [reproduced earlier in this judgment] to include "criminal charges, whether or not heard, proven, dismissed, withdrawn or discharged".

[47]    I am in agreement with the Respondent's submission that 5C(1) captures information in respect of the proceedings in the Local Court, as information relating to the "criminal history" of the Applicant. "Criminal history" is defined to include criminal charges that have been dismissed.

[48] The Respondent accepts that the appeal to the District Court, as originally disclosed to the OCG, was not "criminal history" as defined, there being no criminal charges pending or proved at the time of the appeal, the charges having been dismissed. However, I accept the Respondent's submission that the matters before the District Court came within the description of "information relating to the criminal history of a person" within the ambit of s 33(1)(b), as the appeal "related to" the previously laid criminal charges, coming about about as a result of those charges, even if at the time of the appeal, those charges had been dismissed.

[49]    Section 25 excuses the Respondent from compliance with the relevant information protection principles where it is "lawfully authorised" not to comply.

[50] Section 33 of the CPWC Act "authorises" relevant disclosure to the OCG. It does not, however, describe that authorisation in terms that expressly excuses compliance with the relevant IPPs. Equally, there are no limitations expressed on the reach of the relevant authorisation. I do not see that there is any warrant to imply any such limitation, having regard to the purpose of s 33 as evinced by the language of the provision. That purpose is to authorise free disclosure to the OCG rather than more limited disclosure. I find that the disclosures made to the OCG was, accordingly, authorised under s 33 of the CPWC Act in a manner that did not require compliance with the relevant IPPs and that as a consequence, that authorisation is one that falls within s 25(a) of the PPIP Act.

[51] I accept the Respondent's submission that the Applicant also consented to the disclosure of the relevant information, having applied for a Working With Children's Check. I infer that the application would not have been granted without that disclosure and the Applicant's consent to that disclosure. That consent by reason of s 26(2) excuses the Respondent from complying with the relevant information protection principles set out ss 10, 18 or 19.

…

Expungement

[60]    The information recorded in the Respondent’s data system as at the time of hearing of this matter by the Tribunal was not inaccurate. That information showed that the Applicant had been the subject of two charges of “COMMON ASSAULT” in the past which had been dismissed. She seeks that these records be expunged so that a search will show no information concerning these matters in the future.

[61] There is no dispute that the Applicant has, under s 15, the right to request amendments to information held by the Respondent concerning her to ensure that the information is accurate. The Tribunal, further, has the express power under s 55 of the PPIP Act to make an order requiring personal information that has been disclosed “to be corrected by the public sector agency”.

[62] However, in circumstances where the information in issue is no longer inaccurate, the Tribunal does not have the power under s 55 to make an order requiring a correction. I am not aware of any other power the Tribunal has under the PPIP Act, that could allow the Tribunal to order the deletion or expunging of the information in question.

[63]    It is, however, unsatisfactory, that the Respondent’s database, for a period, contained inaccurate information concerning the District Court proceedings in question, that allowed an inference to be drawn that the status of the criminal charges against the Applicant remained unresolved, after a point in time when those charges had in fact been dismissed. It is also unsatisfactory that as a consequence, inaccurate information was conveyed to the OCG, even if subsequently the error was corrected by the Respondent.

[64]    I note that the Respondent has expressed regret for the inaccurate information and its conveyance to the OCG. The Respondent was correct in doing so. The Tribunal notes for the record that expression of regret.

[65]    It is also clear that the circumstances surrounding the charges in question have cause significant distress to the Applicant and that that distress in part arises out of the history of the charges recorded on the Respondent’s data system together with the ability to carry out a search and find that history.

[66] However, in circumstances where I have found that no breach of the PPIP Act has occurred for the reasons set out above, I am not aware of any remedy under the PPIP Act available to the Applicant that the Tribunal can grant.

[67]    The Applicant claimed that the charges laid against her had no basis and accordingly that the records kept by the Respondent should not be “misleading”. Her submission was that the records ought to show that no charges should have been laid. However, it is not within the jurisdiction of the Tribunal to determine the question of whether or not the charges laid against the Applicant had a proper basis at law. The Tribunal, however, notes for the record, that the charges were dismissed by the Local Court.

Damages

[68] The Tribunal has power to award damages for breaches of the PPIP Act pursuant to section 55. However, I have not found any breach under the PPIP Act. I also make the observation that that the question of damages was not before the Tribunal in these proceedings.”

46. The Senior Member decided that “no further action” was required. This decision replaced the earlier Internal Review Decision as the “operative decision”.

NCAT appeal

47. It is noted that GHZ did not appeal to the Appeal Panel of NCAT, a right which was afforded to her by s 80 of the NCAT Act. It reads:

80    Making of internal appeals

(1)    An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made.

(2)    Any internal appeal may be made—

(a)    in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and

(b)    in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.

(3) The Appeal Panel may—

(a)    decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and

(b)    permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.

48. Section 83 of the NCAT Act sets out a statutory right of appeal from a decision of the NCAT Appeal Panel to this Court:

83    Appeals against appealable decisions

(1)    A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings.

…

(3)    The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following—

(a)    an order affirming, varying or setting aside the decision of the Tribunal,

(b)    an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court.

…

NSWPF’s current notice of motion

The law

49. The NSWPF refers to the following legislative provisions to dismiss or strike out GHZ’s summons. They are extracted below.

50. Section 34(1) of the NCAT Act relevantly reads:

34      Inter-relationship between Tribunal and Supreme Court

(1)     The Supreme Court may—

(a)     refuse to conduct a judicial review of an administratively reviewable decision if it is satisfied that, in all the circumstances, adequate provision is made for an internal review of the decision or an administrative review of the decision by the Tribunal under the Administrative Decisions Review Act 1997, or

…

(c)     refuse to conduct a judicial review of a decision of the Tribunal if an internal appeal or an appeal to a court could be, or has been, lodged against the decision.

…

51. Rules 13.4 and 14.28 of the UCPR provide:

13.4      Frivolous and vexatious proceedings

(1)     If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a)     the proceedings are frivolous or vexatious, or

(b)     no reasonable cause of action is disclosed, or

(c)     the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2)     The court may receive evidence on the hearing of an application for an order under subrule (1).

…

14.28   Circumstances in which court may strike out pleadings

(1)     The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—

(a)     discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b)     has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c)     is otherwise an abuse of the process of the court.

(2)     The court may receive evidence on the hearing of an application for an order under subrule (1).

52. The NSWPF in its submissions has explained how r 13.4 of the UCPR applied to orders sought in a summons. However UCPR r 14.28 applies to pleadings – pleadings are not relevant to proceedings commenced by summons. It is my view that UCPR r 14.28 is inapplicable here.

NSWPF’s submissions

53. Where s 34(1) of the NCAT Act is applicable, as the Court of Appeal said in Makowska v St George Community Housing Ltd [2022] NSWCA 5 at [28] and [30], an order under it will “usually” be made. This reflects that, as Beech-Jones J “emphasised” in Allen v TriCare (Hastings) Pty Ltd [2015] NSWSC 416 at [8]:

“[8]    … in the ordinary course, complaints of legal or factual error on the part of [administratively reviewable decisions or] NCAT decisions should be agitated by the appeal mechanisms proffered by the [NCAT Act] prior to invoking this Court’s supervisory jurisdiction…”

54. Illustratively, orders under s 34(1) were made in Shapkin v The University of Sydney [2023] NSWSC 1534 (‘Shapkin SC’) (affirmed by the Court of Appeal in Shapkin v The University of Sydney [2024] NSWCA 156 (‘Shapkin CA’); and special leave to appeal to the High Court refused in Shapkin v The University of Sydney [2024] HCASL 272), in circumstances where a plaintiff sought simultaneously, leave to appeal a decision of the Appeal Panel under s 83 of the NCAT Act and review under s 69 of the Supreme Court Act of that same decision and the Tribunal’s decision at first instance. See also, for example, Dokas v Gallagher (No 2) [2024] NSWCA 236 at [69]-[70].

55. The s 34(1) power can be exercised before final hearing, like that conferred by s 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act1977 (Cth) (ADJR Act). In that context, it has been said that this is the “preferable” approach: BUSS (Queensland) Pty Ltd at The Building Unions Superannuation Scheme (Queensland) v Australian Prudential Regulation Authority [2025] FCA 31 at [61].

56. There is some doubt as to how its early exercise should be approached. Where consideration of s 34(1) and discretionary denial of relief generally, it is subsidiary to an application for summary dismissal under UCPR r 13.4(1)(b), it has been said that the Court must be satisfied that “no judge acting reasonably could but refuse the remedy”: Blooms the Chemist Management Services Ltd v Pharmacy Council of New South Wales [2024] NSWSC 296 at [19]-[26] referring to Commonwealth of Australia v BIS Cleanaway Ltd [2007] NSWSC 1075 (‘BIS Cleanaway’) — or that there is "no reasonable prospect of a trial judge exercising the discretion to grant relief”: Davies v Minister for Urban Development and Planning [2011] SASC 87; 109 SASR 518 at [101] (in the context of the general discretion to refuse relief).

57. If taken beyond that context, such an approach is in tension with that endorsed by the Full Court of the Federal Court to preliminary applications under s 10(2)(b)(ii) of the ADJR Act: CSL Australia Pty Ltd v Minister for Infrastructure and Transport [2014] FCAFC 10; (2014) 221 FCR 165 at [219] (cited with approval by Stern JA in Shapkin v Lorenzato [2024] NSWSC 1620 at [55]).

58. In the preliminary s 10(2)(b)(ii) context, there is an assumption that, discretionary considerations aside, the applicant would succeed in their claim. That assumption reflects that the power to dismiss summarily an application for an order of review under s 10(2)(b)(ii) is designed to avoid the necessity for the Court to consider the whole of the applicant’s case “where, even if otherwise an applicant would succeed, no order would be made in favour of the applicant”: Edelsten v Minister of Health (1994) 58 FCR 419 at 422. That assumption may not carry across to s 34(1) because s 34(1) is not concerned with the declining of relief but the refusal to conduct a review: Nation v Minister for Immigration [2005] FMCA 620.

59. The better view is that no heightened bar applies where an early order is sought directly under s 34(1). Section 34(1) is an independent power to refuse to “conduct a judicial review” (not merely to refuse relief). Its early exercise does not require the “presag[ing]” of a postulated subsequent exercise of discretion by the trial judge: Cf Makucha v Richardson [2008] NSWSC 945 at [31]-[33] referring to BIS Cleanaway. It is itself inherently apt for early exercise; its purpose of rationally allocating work as between the Tribunal and this Court is promoted by early exercise without any heightened bar: see for example, Gennacker Ply Ltd t/a Homestead Holiday Park v Fontainas [2019] NSWSC 1376 at [32]-[37], where Lonergan J granted an application for order that this Court decline to exercise jurisdiction under UCPR r 12.11(1)(h) having regard to s 34(1) and the availability of an appeal to the Appeal Panel, stating that “it was responsible and appropriate, for this application to be made as it has been, by way of notice of motion, early in the proceedings” and did not consider that any heightened barrier applied when this course was adopted. See further Hausfeld v Commissioner of Police [2018] NSWSC 1540 at [27]-[28].

60. In any event, there should be no need to resolve this to resolve the current proceeding because the s 34(1) power is available and, on any view, should be exercised.

61. Section 34(1)(a) of the NCAT Act is engaged as “adequate provision is made for... an administrative review of the [Internal Review Decision] by the Tribunal under the [ADRA]”. Section 55 of the PPIP Act, s 9 of the ADRA and s 30 of the NCAT Act made provision for administrative review by NCAT of the Internal Review Decision. The fact that administrative review has already occurred (in the Tribunal Decision) does not disengage s 34(1)(a); rather, it underlines the adequacy of provision for that review. Otherwise, an application for judicial review in respect of an administratively reviewable decision that has already been the subject of administrative review might fall between ss 34(1)(a) and 34(1)(c) — inconsistently with any rational legislative design.

62. The s 34(1)(a) power should be exercised. The Internal Review Decision has already been the subject of administrative review in the Tribunal Information Proceeding. The relief GHZ seeks under s 69 of the Supreme Court Act in respect of the Internal Review Decision is plainly unavailable (making this an even clearer case than the Shapkin cases).

63. The Internal Review Decision has been “replaced” by the Tribunal Decision as the “operative decision”: Wishart v Fraser [1941] HCA 8; (1941) 64 CLR 470; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [20], [53]; Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 at [82]-[87] (‘Navazi’); Shapkin SC at [7]-[9]; Shapkin CA at [46]-[47].

64. Shapkin CA at [46]-[47] has been extracted below:

“[46] Mr Shapkin contended that the primary judge erred in preferring Wishart to Navazi, which he contends supports his position. In Navazi at [86], Sackville AJA referred to the fact that the respondent counsel had drawn the Court’s attention to several decisions which suggested a qualification to the principle stated in Wishart. His Honour described those decisions as indicating:

… that a distinction may need to be drawn between cases where there is an appeal by way of rehearing on both fact and law, and cases where the right of appeal is more limited. In the former, the order of the appellate court supersedes that of the court or tribunal at first instance. But if the right of appeal is limited, for example to questions of law, the orders at first instance may not be replaced or entirely replaced by orders made on the appeal.

[47] Sackville AJA made clear in Navazi at [87] that he was “prepared to accept, without deciding”, that this distinction was correct. As noted above, the Appeal Panel here refused Mr Shapkin leave to appeal on grounds which were not limited to a question of law. Accordingly, the distinction which Sackville AJA referred to inconclusively in Navazi may operate to qualify Wishart. But the point need not be determined in the proceedings here because there is an alternative basis for the refusal to conduct a judicial review of the decisions of either the Tribunal or the Appeal Panel, namely s 34(1)(c). For the reasons given above, Mr Shapkin has insufficient prospects to warrant a grant of leave to appeal in relation to the exercise of the Court’s discretion under s 34(1)(c).”

(emphasis in original)

65. The Tribunal Decision is that “no further action [is] to be taken in this matter”. As Adamson J said in Masterson v Commissioner of Police [2018] NSWSC 892 at [34]-[35], in terms directly applicable to the present proceeding:

“[34] The plaintiff's … application to the Tribunal for review of the Internal Review Decision invoked the Tribunal’s jurisdiction under [the relevant enabling legislation for the purposes of s 9 of the ADR Act] and s 9 of the ADR Act. Once the Tribunal had determined the plaintiff’s application for review of the Internal Review Decision, it was the Tribunal’s decision … which became the operative decision...

[35] Accordingly, the first ground is not competent since it seeks to challenge… the Internal Review Decision, which [is] no longer operative.”

66. As to the application of this in the summary dismissal context, see Potkonyak v Attorney General of NSW [2019] NSWSC 987 at [5]. Accordingly, like Bell P held in Stephens v Director of Public Prosecutions(NSW) [2019] NSWSC 761 at [17], there is no reasonable cause of action for UCPR r 13.4(1)(b) purposes.

67. If GHZ is dissatisfied with the Tribunal Decision, she should file an internal appeal to the Appeal Panel of the Tribunal under s 80 of the NCAT Act. If she is dissatisfied with the Appeal Panel’s decision, she should seek leave to appeal to this Court under s 83 of that Act. She should not be permitted to circumvent the scheme of the NCAT Act, including its leave requirements in respect of appeals to this Court. This is especially so in circumstances where she has been given repeated “salutary warning[s]” that she ought pursue the matter, if at all, before the Appeal Panel (see BUSSQ v APRA [2025] FCA 31 at [62]).This is the very clearest of cases for the exercise of the s 34(1)(a) power and, consequent thereupon, dismissal of the proceeding.

GHZ’s submissions

68. GHZ submitted that NSWPF’s notice of motion should be struck out including the following bases:

1. No reasonable cause of action being disclosed under r 13.4 UCPR, as all other authorities refused to hear the matter including based on a lack of jurisdiction.

2. Prejudice, abuse of process, and intent to delay proceedings, showing the defendant’s “bad faith and unclean hands” under r 14.28 of the UCPR and common law, evidenced by the failure to provide a Statement of Reasons, omission of vital relevant facts including the refusal of all other authorities to hear the matter, and the deliberate charging of an innocent victim to shield a criminal offender – all contrary to the law, public interest, and the defendant’s public duty. [I interpose here, UCPR r 14.28 has no application here.]

3. High prospect of GHZ’s success based on the evidence before the Court, case merit and value.

4. In the public interest, in the interest of justice and as per GHZ’s equal citizen’s right for the matter to be heard in court pursuant to statute including ss 23 and 69 of the Supreme Court Act and s 15 of the PIPP Act to provide the last and only opportunity for GHZ to receive unavoidable life affecting justice denied by all other authorities since 20 May 2021.

69. GHZ referred to s 23 of the Supreme Court Act. It reads:

23 Jurisdiction generally

The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales.

70. She submitted that pursuant to s 23 of the Supreme Court Act and the common law established by the High Court, the Supreme Court lacks jurisdiction, authority and grounds to:

1. Refuse to hear the matter that was not heard and was refused to be heard by all other authorities as it is “necessary for the administration of justice in New South Wales” pursuant to s 23 of the Supreme Court Act and the High Court common law.

2. Keep a citizen suffering for life due to detrimental daily impacts on mental health since 2021 and due to illegitimate personal information fabricated by the criminal acts of others, not her own, including fabricating baseless no prima facie invalid charges suggested to be unlawful.

3. Leave an equal citizen without the last and only opportunity to receive life-affecting justice.

4. Act against the public interest and against the law by giving GHZ no other option but to receive unavoidable life affecting justice outside the Court by denying the review of GHZ’s credible material in court, denied by all other courts and authorities.

71. Finally, GHZ submitted that she has followed the process diligently, correctly, and in accordance with the law. Therefore, any potential denial of her last and only opportunity to obtain life-affecting justice in court would be unjustified, contrary to High Court standards and legally invalid. Specifically:

1. Internal Review addressing several matters was completed by NSWPF on 3 July 2024 following an NCAT order.

2. Internal Review by NCAT was completed on 12 December 2024 and affirmed that it lacked jurisdiction to hear this matter while other matters were determined; so, the external review on this matter is not “spent” as falsely stated by the defendant, is valid and is available to GHZ in the Supreme Court pursuant to ss 23 and 69 of the Supreme Court Act along with s 15 of the PIPP Act and High Court common law. NSWPF has failed to reveal the fact of several matters under one Internal Review; and NCAT’s lack of jurisdiction on this matter points at the defendant’s “bad faith and unclean hands” so its Notice of Motion should be dismissed according to the legal standards mentioned below.

3. NCAT’s lack of jurisdiction to determine the unlawfulness of the charges is not in question and therefore, this decision is not appealable in NCAT or elsewhere – another thing omitted by the defendant, relevantly pointing at the defendant’s “unclean hands and bad faith”.

4. Consequently, the Supreme Court is the only and the last avenue to determine the matter lawfully in court so the Notice of Motion should be immediately dismissed to comply with the law.

5. GHZ has made every possible effort since 20 May 2021 to be heard, have her evidence reviewed and considered, and restore her clear name and life normality, only to be unjustly dismissed by the authorities in breach of the law and points at potential racism as citizens of non-Russian origin were afforded protection under Australian statute and were treated differently in the same circumstances. GHZ refers to the bundle of authorities regarding offenders charged and convicted for perjury, perverting the course of justice, physical assaults, trespassing, break and enter, intimidation, and tampering with evidence.

6. It is unlawful and against the public interest to encourage her to receive unavoidable life affecting justice outside of court by denying her procedural fairness and evidence; and leaving her with a damaging criminal record stemming from the criminal acts of others, not her own, which have a detrimental daily impact on her mental health.

7. There is nothing else she could have possibly done to receive life affecting justice.

NSWPF’s submissions in reply

72. The Court has power to grant the relief sought in the NSWPF’s Notice of Motion, either under s 34(1) of the NCAT Act or UCPR r 13.4. Both powers are discretionary, and neither ousts the Court’s supervisory jurisdiction (Shapkin CA at [24], [40]).

73. GHZ’s submissions reflect the misapprehensions that underpin these proceedings. She repeatedly suggests that this Court can and must grant her relief without identifying any recognisable legal right enforceable by this Court to that relief. Sections 23 and 69 of the Supreme Court Act do not in themselves generate any such right; their invocation does not assist to found a cause of action where one does not exist (Commissioner of Corrective Services v Liristis [2018] NSWCA 143; (2018) 98 NSWLR 113 at [24]-[35] and [60]-[65]).

74. GHZ’s application for judicial review seeks review of the Internal Review Decision made under the PPIP Act. This review does not afford her an opportunity to collaterally attack the validity of the charges laid against her in Local Court criminal proceeding; given that the validity of those charges is non-justiciable and so, irrelevant to the Internal Review Decision.

75. These proceedings are not an opportunity for GHZ to reventilate her complaints regarding the Magistrate’s dismissal of her application for professional costs in respect of the Local Court criminal proceeding. Those complaints were the subject of Supreme Court proceeding 2024/00170239, in which Faulkner J handed down his decision on 29 May 2025.

76. The Tribunal Decision was not that it “lacked jurisdiction” to review the Internal Review Decision. If GHZ’s suggestion is in reference to the Senior Member’s observation at [67] of the Tribunal Decision that “it is not within the jurisdiction of the Tribunal to determine the question of whether or not the charges laid against the Applicant had a proper basis at law”, that observation applies equally to this Court for “it is axiomatic that decisions made in the exercise of prosecutorial discretion are not amenable to review or enquiry by the court[s]” (DPP v Tuteru [2023] VSCA 188 per Beach, Walker and Taylor JJA at [79]).

77. Additionally, the authorities concerning denial of relief in the nature of the constitutional writs to a plaintiff who has “unclean hands” or who has acted with “bad faith” do not assist GHZ because the Motion does not seek such relief and the requirements set down in those authorities are not met.

78. UCPR r 59.9(3) does not require the production of a further statement of reasons in respect of the Internal Review Decision (Minister for Resources and Energy v Gold and Copper Resources Ply Ltd [2015] NSWCA 113 at [57]-[58]). The reasons for the Internal Review Decision accompany that decision.

Resolution

79. Insofar as GHZ’s complaints are concerned, I have carefully read all of her evidence and submissions seeking judicial review and opposing the NSWPF’s orders sought in its notice of motion. GHZ submitted that her application for judicial review should not be dismissed but rather the NSWPF’s notice of motion for dismissal of her proceedings should be dismissed pursuant to r 13.4 UCPR.

80. GHZ cannot seek a judicial review of the internal review decision of NCAT made under the PPIP Act. The Senior Tribunal Member provided reasons that largely adopted the reconsideration decision. In his decision, the Senior Member concluded that “no further action be taken”. That order then became the operative order. Section 80(1) of the NCAT Act stipulates that an appeal of an internally appealable decision may be made to the Appeal Panel by a party to the proceedings in which the decision was made.

81. GHZ’s application for judicial review in this Court seeks judicial review of the Internal Review Decision made under the PPIP Act. This review, under the PPIP Act does not afford her an opportunity to collaterally attack the validity of the charges laid against her in Local Court criminal proceeding; given that the validity of those charges is non-justiciable and so, irrelevant to the Internal Review Decision, a subject to which I will return.

82. So far as GHZ’s submissions for judicial review is concerned, as explained in Navazi at [85], relief in the nature of certiorari (order 2) is not available because “certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent”.

83. Relief in the nature of mandamus (orders 3-5) could only be consequent upon the quashing of the Internal Review Decision by certiorari; its grant would, otherwise, be inconsistent with the Tribunal's Decision that “no further action [is] to be taken”. Declarative relief (order 1) is likewise unavailable as it would “produce no foreseeable [legal] consequences for the parties”: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 581-582; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591 at [52]; CGU Insurance Ltd v Blakeley [2016] HCA 2; (2016) 259 CLR 339 at [26].

84. GHZ could have appealed to the NCAT Appeal Panel, but she did not do so. Had she appealed to the Appeal Panel and failed, she could then make an application for judicial review in this Court. Then GHZ’s first step would be to seek leave in this Court, pursuant to s 83(1) of the NCAT Act. That is an essential requirement before the judicial review can proceed in this Court.

85. The next issue to be decided is whether this Court should dismiss GHZ’s summons pursuant to s 34 (1) of the NCAT Act and/or in the alternative, pursuant to UCPR r 13.4.

86. Where s 34(1) of the NCAT Act is applicable, as the Court of Appeal said in Makowska v St George Community Housing Ltd [2022] NSWCA 5 at [28] and [30], an order under it will “usually” be made. This reflects that, as Beech-Jones J “emphasised” in Allen v TriCare (Hastings) Pty Ltd [2015] NSWSC 416 at [8]:

“[8]    … in the ordinary course, complaints of legal or factual error on the part of [administratively reviewable decisions or] NCAT decisions should be agitated by the appeal mechanisms proffered by the [NCAT Act] prior to invoking this Court’s supervisory jurisdiction…”

87. In my view, GHZ’s application for judicial review insofar as it concerns the Internal Review Decision, should be dismissed pursuant to s 34(1) of the NCAT Act as GHZ has an administrative right of appeal to the Appeal Panel pursuant to s 80 of the NCAT Act.

88. GHZ has raised a number of issues that fall outside the application she made for internal reconsideration pursuant to s 55 of the PPIP Act and has also included extra ones in this application for judicial review. Both in GHZ’s application for internal review and before the Senior Tribunal Member, she complained of police misconduct including malicious prosecution, defamation, corruption, evidence tampering, perjury and intimidation; and that the complainant and the police informant should have been charged with the assault charges. However, an internal review under s 53 of the PPIP Act could only consider whether the alleged conduct amounted to a contravention of the PPIP Act insofar as it applies to NSWPF. The internal reviewer was not empowered to review the conduct of NSWFF more broadly. In this judicial review, GHZ also included prejudice, intent to delay proceedings, bad faith, that the proceedings are in the public interest, the effect it has had on her family and violation of her human rights.

89. GHZ’s submissions reflect the misapprehensions that underpin these proceedings. She repeatedly suggests that this Court can and must grant her relief without identifying any recognisable legal right enforceable by this Court to that relief. Sections 23 and 69 of the Supreme Court Act do not in themselves generate any such right; their invocation does not assist to found a cause of action where one does not exist (Commissioner of Corrective Services v Liristis [2018] NSWCA 143; (2018) 98 NSWLR 113 at [24]-[35] and [60]-[65]).

90. GHZ says she has suffered prejudice and abuse of process. She further claimed that NSWPF has sought to delay her application for judicial review, she has prospects of success and to allow her to proceed with her application to judicial review is in the public interest and her case has merit or value.

91. The internal review was confined to the parameters set out in s 55 of the PIPP Act. So, the Senior Member’s decision was likewise confined to s 55 of the PIPP Act. The decision of the Senior Member replaced the Internal Review Decision. The Senior Member determined that “no further action be taken in this matter”. The Senior Member was acting within power to make his determination.

92. In relation to the internal review, the Senior Member stated that GHZ submitted that

“the two disclosures to the OCG contravened s 18 or s 19 the PPIP Act. The Respondent, on the other hand, submitted that she was authorised by legislation to make disclosure and alternatively, that the Applicant consented to national police checks when she applied for a Working With Children's Check following the dismissal of the charges against her.”

93. In order to attempt to explain to GHZ why NCAT and this Court cannot exercise administrative or judicial power to grant the orders she seeks, firstly, the criminal history of a person is defined by s 5C(1) of the Working with Children Act (reproduced earlier in this judgment). It includes “criminal charges, whether or not heard, proved, dismissed, withdrawn or discharged”. Section 5C(1) captures information relating to criminal history of the applicant. “Criminal history” is defined to include criminal charges that have been dismissed. The Senior Tribunal Member stated that he was unaware of any other power NCAT had under the PPIP Act that could allow NCAT to order the deletion or expunging of the information in question and stated that GHZ consented to national police checks when she applied for a “working with children check” following the dismissal of charges against her.

94. Judicial ground 3 focuses on the decision of the police to charge her with two accounts of assault. That contention was raised before NCAT, that NSWPF should not have charged her, but as far as the duty of care of the police is concerned, in relation to the bringing of criminal charges where it was not within the jurisdiction of NCAT, there is no remedy in relation to the bringing of charges against her or Ms N.

95. Secondly, by way of explanation, the laying of the charges against her by NSWPF lies at the heart of GHZ’s complaints. The reasons as to why NCAT and, more particularly, this Court, cannot provide the remedy that GHZ seeks is set out in Sullivan v Moody [2001] HCA 59 (‘Sullivan’). The High Court cited Hill v Chief Constable of West Yorkshire [1989] AC 53 in Sullivan and stated at [57]:

“[57]    In Hill v Chief Constable of West Yorkshire [[1989] AC 53], the House of Lords held that police officers did not owe a duty to individual members of the public who might suffer injury through their careless failure to apprehend a dangerous criminal. Lord Keith of Kinkel pointed out [at 63] that the conduct of a police investigation involves a variety of decisions on matters of policy and discretion, including decisions as to priorities in the deployment of resources. To subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action in tort, was inappropriate.”

96. In another words, the decisions made by police officers in the course of an investigation and their decision as to whether or not to charge a person with a criminal offence is not subject to a common law duty of care and not within the statutory jurisdiction of NCAT to consider pursuant to s 55 of the PPIP Act.

97. Finally, NCAT has no power to award damages for breach of the PPIP Act under s 55. GHZ did not press her claim for damages at this hearing of the application for judicial review. Damages are not a remedy that can be granted in an application for judicial review.

98. In summary, it is my view that the plaintiff's application for judicial review of a decision or decisions made by NCAT while non-specific, appear to challenge the internal decisions of NCAT. She has a right of administrative review to the Appeal Panel under s 80 of the NCAT Act. She has not taken this step. As explained earlier in this judgment, complaints of legal or factual error should be agitated by appeal mechanisms set out in the NCAT Act prior to invoking this Court’s supervisory jurisdiction. On this basis, the grounds of judicial review arising from NCAT decisions are dismissed pursuant to s 34(1) of the NCAT Act.

99. So far as GHZ’s grounds of judicial review not directed to NCAT are concerned, she has not established any cause of action that would found a ground for judicial review. So these remaining grounds of judicial review are dismissed pursuant to r 13.4(1)(b) of the UCPR on the basis that GHZ has not articulated any reasonable cause of action.

The result

100. The plaintiff’s application for judicial review fails. The plaintiff’s summons dated 13 December 2024 is dismissed.

Costs

101. Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendant’s costs of the proceedings including the defendant’s notice of motion.

The Court orders that

1. The plaintiff’s summons dated 13 December 2024 is dismissed.

2. The plaintiff is to pay the defendant’s costs.

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I certify that this and the _40__ preceding pages are a true copy of the reasons for judgment herein of the Honourable Assoc. Justice Harrison and of the Court.

DATED: 23 September 2025. Associate:

Decision last updated: 23 September 2025