HV v Commissioner of Police

[2009] NSWADT 100

CITATION:	HV v Commissioner of Police [2009] NSWADT 100
DIVISION:	General Division
PARTIES:	APPLICANT HV RESPONDENT Commissioner of Police
FILE NUMBER:	083238
HEARING DATES:	30 April 2009
SUBMISSIONS CLOSED:	30 April 2009
DATE OF DECISION:	7 May 2009
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Appointment of representative,Section 71 Administrative Decisions Tribunal Act 1997
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
REPRESENTATION:	APPLICANT In person RESPONDENT M Paul
ORDERS:	1. The application pursuant to s.71 of the Administrative Decisions Tribunal Act 1997 for appointment of a representative is dismissed.

1 The applicant has commenced these proceedings in the Tribunal seeking a review of conduct alleged to have been done in breach of the provisions of the Privacy and Personal Information Protection Act 1998. During the course of preparation the applicant has sought the appointment of a representative to act on his behalf pursuant to s.71 of the Tribunal’s enabling legislation. The proposed representative is nominated in that application.

2 At hearing on 30.04.09 the applicant presented documentary evidence in support of his application, which has been marked as exhibit A1 in the proceedings. Neither the respondent nor the Privacy Commissioner were minded to present any evidence or make any submissions in relation to this application. Consequently, the Tribunal reserved its decision on the application and adjourned the substantive proceedings to 19.05.09 at 03:30 pm, by which time the Tribunal’s decision on the s.71 application would be handed down.

3 The applicant has based his interlocutory application on the medical evidence in exhibit A1. This exhibit consists of a series of medical reports and two certificates in relation to the applicant’s fitness for work. On this evidence the applicant argues that he is an incapacitated person within s.71 by reason of his medical and psychological condition. Whilst the several reports have been prepared with other litigation in mind, and consequently deal with questions of causation, they set out the applicant’s psychological condition adequately for present purposes. The reports establish that the applicant has a psychological condition that involves a significant degree of impairment in relation to social and recreational activities, employment prospects in the open market, inter-personal relationships and concentration. He suffers from a significant sleep disability, is receiving medication and is in need of psychiatric treatment.

4 The reports also narrate that, at the time of their preparation, the applicant was self employed and was conducting a business, although with limited success it seems. The applicant has not adduced any evidence in relation to this aspect.

5 In preparation for the substantive hearing of these proceedings the applicant has prepared documentary evidence that he proposes to rely upon and, at the time of the s.71 hearing, he was proposing to file these documents. He has also prepared a summons which he wishes to issue which, he alleges, will enable him to adduce further documentary evidence in support of his case. This summons concerns records maintained by several police officers which will, the applicant argues, show that breaches of his privacy did in fact occur. At the hearing of the s.71 application the applicant was able to raise sensible questions concerning the role of the Privacy Commissioner in the proceedings and he was able to comprehend the discussion that followed. The applicant has given no evidence of any difficulties experienced to date in the preparation of his case in the proceedings. He has given no evidence suggesting that his understanding of what is required of him is impaired in any particular way.

6 An applicant in proceedings like these before the Tribunal needs to have the ability to formulate what acts were done by a respondent allegedly in breach of privacy legislation, to be able to adduce evidence in support of the allegations made and to understand the procedure whereby such allegations may be brought to hearing. An applicant also needs to have the ability to be able to present argument in relation to the evidence and submissions put by a respondent. On the evidence, it is clear to the Tribunal that the applicant currently possesses all these abilities, despite the psychological condition from which he suffers.

7 In these circumstances, and given these findings, it is not appropriate at this stage to appoint a person to represent the applicant and consequently, in the exercise of its discretion, the Tribunal declines to do so.

8 For these reasons the application pursuant to s.71 of the Tribunal’s enabling Act is dismissed, and the Tribunal so orders.