LZ v Commissioner of Police, NSW Police

[2007] NSWADT 267

CITATION:	LZ v Commissioner of Police, NSW Police [2007] NSWADT 267
DIVISION:	General Division
PARTIES:	APPLICANT LZ RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	063453
HEARING DATES:	30 October 2007
SUBMISSIONS CLOSED:	30 October 2007
DATE OF DECISION:	20 November 2007
BEFORE:	Handley R - Judicial Member
CATCHWORDS:	Dismissal of application - frivolous vexatious misconceived or lacking in substance
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Protected Estates Act 1983
CASES CITED:	Attorney-General (Victoria) v Wentworth (1988) 14 NSWLR 481 EP v Commission for Children and Young People [2003] NSWADT 227General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Karekar v TAFE Commission of NSW [2000] NSWADT 187 Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 Miriani v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 99 P v R [2003] NSWSC 819 Re Williams and Australian Electoral Commission (1995) 21 AAR 467 Wilde v University of Sydney (EOD) [2004] NSWADTAP 32 YN v Director-General, Department of Housing [2006] NSWADT 79
REPRESENTATION:	In person H Haslem, solicitor
ORDERS:	1. The Respondent’s application for dismissal of these proceedings pursuant to s 73(5)(h) of the Administrative Decisions Tribunal Act 1997 is refused; 2. The matter will be listed for a Directions Hearing in relation to the Respondent’s application under s 71(4) of the Act.

REASONS FOR DECISION

1 The Commissioner of Police has applied for LZ's application for the review of a decision under the Freedom of Information Act 1989 (‘the FOI Act’) to be dismissed on the ground that it is “ ‘frivolous or vexatious’ by reason of her undue delay in prosecuting the proceedings and/or irresponsible pursuit of litigation”.

Background

2 By letter dated 19 October 2005, LZ applied to the NSW Police for access to specified documents. On 24 November 2005, a delegate of the Commissioner determined to release the whole or part of some of the relevant documents to LZ, but refused access to others or parts of others pursuant to s 25 and Sch 1, Pt 2, cl 4(1)(e), cl 6(1), and cl 13(b) of the FOI Act.

3 By letter dated 20 December 2005, LZ requested that the delegate reconsider the deletions made in the various documents on the grounds that these were excessive and contrary to the spirit of the FOI Act. Subsequently, on 17 January 2006, LZ applied for an internal review of the decision. On 5 May 2006, another delegate of the Commissioner upheld the decision, subject to one variation in which deletions from one page of one document were removed.

4 LZ complained to the NSW Ombudsman. On 22 June 2006, an Investigation Officer with the Ombudsman’s Office wrote to the Commissioner suggesting that the decision of 5 May 2006 be reviewed and that certain documents should be released to LZ in full and others in part. On 7 July 2006, another delegate of the Commissioner accepted these suggestions and released the identified documents in whole or in part.

5 On 11 August 2006, LZ informed the NSW Ombudsman’s office that the documents released to her by the NSW Police had been stolen and requested a complete set of all the documents. These were enclosed with a letter to LZ dated 15 August 2006. By fax to the NSW Police dated 29 August 2006, received by the Police on 20 September 2006, LZ confirmed an earlier telephone conversation in which she had requested “a further copy of all documents supplied on my original FOI Application 60422 which have been stolen from my premesis [sic]”. The NSW Police responded by letter dated 20 September 2006 with a further copy of the Notice of Determination dated 7 July 2006.

6 By letter dated 10 October 2006, LZ again wrote to the Ombudsman raising further issues in relation to material claimed to be exempt and deletions made in documents (partially) released to her by the NSW Police. By letter dated 31 October 2006, the NSW Ombudsman informed LZ that his office would be taking no further action in relation to her complaint and that if she remained aggrieved by the determination made by the NSW Police, it was open to her to appeal to the Tribunal.

7 On 22 December 2006, LZ filed an application with the Tribunal for the review of the determination made by the NSW Police. A Planning Meeting listed for 20 February 2007 was vacated at LZ’s request and re-listed for 7 March 2007. On that date, I gave directions for the exchange of documents between the parties and listed the matter for hearing on 15 June 2007.

8 On 14 March 2007, the NSW Police provided LZ with a copy of all documents obtained by her pursuant to her FOI application on being advised by her that the documents had been stolen.

9 At LZ's request on 3 April 2007, because of her recent hospitalisation, the Tribunal agreed to vacate the hearing date on 15 June 2007 and re-list the matter for hearing on 4 July 2007 (letter dated 4 April 2007). At the request of the Crown Solicitor’s Office (‘CSO’) representing the Commissioner (by letter dated 13 June 2007), the Tribunal listed the matter for a further Planning Meeting on 20 June 2007 (letter dated 14 June 2007). By letter dated 18 June 2007, LZ requested that the hearing date on 4 July 2007 be vacated and the matter re-listed (1) because she was awaiting a decision from Legal Aid as to whether legal representation would be provided for her in this matter, (2) because of ongoing medical problems, and (3) because all her documents relating to this matter had again been stolen.

10 LZ did not attend the Planning Meeting on 20 June 2007 and an attempt to contact her by telephone was unsuccessful. A solicitor with the CSO did attend and I set a new timetable for the exchange of documents, vacated the hearing date on 4 July 2007, and re-listed the matter for hearing on 11 September 2007. The Tribunal notified LZ of these directions by letter dated 25 June 2007.

11 On 27 June 2007, the NSW Police sent LZ with a further set of all relevant documents on being advised by her that the documents had again been stolen.

12 On 11 July 2007, LZ applied to the Registrar for the issue of a summons to her neighbour for the production of documents relating to this matter which LZ alleged had been removed by her neighbour from LZ’s house. By letter dated 13 July 2007, the Registrar advised LZ that her request for the issue of a summons had been refused.

13 On 25 July 2007, LZ notified the Tribunal that her documents had been stolen and requested that the matter be re-listed for hearing at a later date. On 27 July 2007, the Tribunal notified the parties that the matter had been re-listed for hearing on 30 October 2007.

14 By letter dated 11 September 2007, the CSO noted that LZ had not filed any further documents in this matter since the commencement of the proceedings, and requested that the matter be listed for dismissal pursuant to s 73(5)(h) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’). By letter dated 14 September 2007, the Tribunal notified the parties that the Commissioner’s application for dismissal would be considered at the commencement of the hearing on 30 October 2007.

15 According to a chronology of events prepared by the CSO, on 24 September 2007, LZ notified the CSO that while certain documents relating to this matter had been returned to her, others were still missing, having been stolen by her neighbour. On 2 October 2007, the CSO supplied LZ with a full copy of all documents. However, on the same day, LZ apparently notified the CSO that she was still missing documents. According to a letter from LZ filed on 30 October 2007, she received these further documents on 11 October 2007, but she was still missing certain documents and again contacted the CSO asking for further copies of these. LZ said she received these documents by express post on 23 October 2007. However, as a result of a subsequent illegal entry into her house by her neighbour, she is still missing various documents.

Issue

16 The preliminary issue for determination is whether LZ’s application should be dismissed pursuant to s 73(5)(h) of the ADT Act. This provision empowers the Tribunal to dismiss proceedings before it “if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance”.

Submissions

17 Ms Haslem, for the Commissioner, noted that the Commissioner is still unaware of the grounds upon which LZ seeks a review as she has not filed any submissions in the proceedings to date, despite directions made by the Tribunal on 7 March 2007 and 20 June 2007, and written requests to LZ from the CSO on 7 March 2007, 31 May 2007, 20 June 2007, 10 August 2007 and 2 October 2007. LZ claims that her inability to file submissions is due to repeated thefts of her documents relating to these proceedings by her neighbour. LZ has given no indication that these alleged thefts are likely to stop, nor any indication of how she intends to prepare for the hearing.

18 Ms Haslem said that in a decision of Justice Barrett in the NSW Supreme Court on 9 September 2003 (P v R [2003] NSWSC 819), His Honour found LZ was “incapable of managing her own affairs”, and ordered that her estate be subject to management under the Protected Estates Act 1983, and that the Protective Commissioner be appointed the manager of her estate. His Honour sets out the history of LZ’s relationship with her neighbour in his judgment. He also referred, at paragraph 55, to the evidence of four psychiatrists who, in his view, while differing in their opinions, “all consider her to be very significantly impaired in her social functioning and in her ability to look after herself”. At paragraph 56, His Honour concluded from the medical evidence:

“that the defendant is suffering from a clinical condition that affects adversely her ability to make rational decisions about where her own best interests lie. She is preoccupied with the various grievances to such an extent that they occupy centre stage in her life and absorb virtually all her energies.”
19 Ms Haslem submitted that Justice Barrett’s observations about the history of LZ's disputes with her neighbour, of instigating proceedings against the Police, and of prolonging legal proceedings without ultimately filing submissions, apply with equal force to her conduct in the present proceedings in which she has failed to adequately explain the reasons for her delay in prosecuting the matter. The Commissioner submits that LZ has failed to diligently prosecute the proceedings to date and it is unlikely that she will properly prepare this matter for hearing.

20 Ms Haslem noted that it is well accepted that the power to dismiss a matter summarily must be exercised with caution. She submitted that the Tribunal’s power to dismiss an application under s 73(5)(h) of the ADT Act is broad enough to encompass dismissal for want of prosecution: YN v Director-General, Department of Housing [2006] NSWADT 79, at paragraphs 1 and 2; Karekar v TAFE Commission of NSW [2000] NSWADT 187, at paragraph 40. Similarly, it is broad enough to encompass dismissal for ‘irresponsible pursuit of litigation’: EP v Commission for Children and Young People [2003] NSWADT 227, at paragraph 11. Ms Haslem concluded by submitting that the power should be exercised in the case of LZ’s application for the reasons set out above.

LZ’s Submissions

21 LZ contended that her account of her neighbour stealing her documents and sometimes returning some of them is genuine. She said her documents continue to be “stolen because police around my way are so corrupt” and they will not do anything about the thefts. LZ said she has had the locks on the doors of her house changed on numerous occasions. She then gave an extensive account of the history of her relationship with her neighbour. LZ said she is unable to prove that it is her neighbour who has stolen her documents and damaged her property without DNA evidence. She has applied to the NSW Attorney General to enable an application to be made to a magistrate for an order that her neighbour be DNA tested and that other evidence, such as the bricks that have been thrown through her windows, is also tested. LZ said her neighbour is acting in collusion with the Police: “it is a power game”. Her house has been bugged and her neighbour has also stolen money from the house.

22 LZ contended that the only delay has been in her “battling” to get copies of her documents. One of the sets of documents provided was the wrong set and not those she asked for. Having only recently obtained the documents she needs, LZ has not had time to prepare submissions.

23 With regard to the substance of her case, LZ said she is concerned with documents released to her with deletions where the documents record the names of persons. She contends that the names deleted are names she gave to the Police in the course of providing the Police with statements.

24 LZ said she was sick at the time of the proceedings before Justice Barrett. She provided him with a medical certificate to this effect, but, notwithstanding this, he insisted on the hearing proceeding. She contended that Justice Barrett, her former solicitor who initiated the Supreme Court proceedings, the Police Commissioner and other senior Police officers are corrupt.

25 LZ produced a photocopy of three cassette tapes dated 2 September 2006, which she said confirm that Police have entered on her property, together with a transcript of proceedings before Justice James in the Supreme Court on 23 June 2003 in relation to civil proceedings apparently instituted by LZ against three police officers for assault and false imprisonment. These proceedings were adjourned pending the outcome of the proceedings before Justice Barrett. A third document produced by LZ is copy of a letter from the CSO to the Clerk of the Court at the Downing Centre, dated 24 September 2002, in relation to a subpoena to produce documents. The letter refers to producing one document, a copy of a letter from LZ to Acting Commissioner NO Taylor, dated 1 April 2006, and to claiming legal professional privilege in relation to transcripts pertaining to, what I take to be, the private prosecution referred to in the proceedings before Justice James brought by LZ against the same three police officers in the NSW Local Court.

26 LZ contended the transcript of the proceedings before Justice James proves the existence of a conspiracy between her former solicitor and the Office of the Protective Commissioner.

27 In conclusion, LZ submitted that she has a legal right to obtain access to documents held by the Police. She said this is not a frivolous matter and her application should not be dismissed because she cannot prove that her neighbour breaks into her house. She hopes, in due course, to obtain DNA evidence to prove this.

Discussion

28 As stated above, the preliminary issue to be determined by the Tribunal is whether LZ’s application should be dismissed pursuant to s 73(5)(h) of the ADT Act on the grounds that the proceedings are “frivolous or vexatious or otherwise misconceived or lacking in substance”. The Commissioner submits the proceedings are frivolous or vexatious by reason of LZ’s undue delay in prosecuting the proceedings, and/or by reason of her irresponsible pursuit of litigation.

29 In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, at 129, Barwick CJ emphasised that the power of peremptory dismissal of proceedings is to be exercised cautiously and sparingly. Proceedings can be regarded as ‘vexatious’ if they are instituted with the intention of annoying, harassing or embarrassing the respondent, if they are brought for a collateral purpose such as wasting time or causing delay, are devoid of any practical effect, or are manifestly untenable: Attorney-General (Victoria) v Wentworth (1988) 14 NSWLR 481 at 491; Re Williams and Australian Electoral Commission (1995) 21 AAR 467, at paragraphs 30 and 31; Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65, at paragraphs 9 to 11; Wilde v University of Sydney (EOD) [2004] NSWADTAP 32, at paragraph 10; Miriani v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 99, at paragraph 28 (O’Connor DCJ, President).

30 Ms Haslem referred the Tribunal to the decision in YN v Director-General, Department of Housing [2006] NSWADT 79, at paragraph 1, where the President, O’Connor DCJ, expressed the view that while there is no express reference to non prosecution of a matter as a ground for dismissal, “it is fundamental to the sensible operation of the justice system that a court or tribunal have such a power”. He said he had “no doubt it would be necessarily implied from the scheme of legislation that such a power is available to the tribunal”, and that, in any event, “the non-prosecution of a matter may itself justify the conclusion that the proceedings are frivolous or vexatious”.

31 In EP v Commission for Children and Young People [2003] NSWADT 227, at paragraph 11, Britton JM, said:

“where there has been a repeated failure by the Applicant to comply with directions of the Tribunal coupled with failure to explain this non-compliance, it is arguable that this conduct represents the irresponsible pursuit of litigation. In my view the term ‘vexatious’ is broad enough to encompass such conduct.”
32 LZ has explained the delay in her prosecuting this matter by reason of the documents necessary for her to prepare her submissions repeatedly being stolen by her neighbour, and by reason of her sickness and need for medical treatment. With regard to the former, while I accept that such allegations are similar to those to which Barrett J referred in his decision in 2003, I am satisfied that there is evidence of an ongoing dispute between LZ and her neighbour over many years. Because the Commissioner has not supplied the Tribunal with a full, unedited set of the relevant documents falling within LZ’s FOI application, I have been unable to check the Police record with respect to complaints by LZ of break-ins at her property. In the absence of evidence to the contrary, I am not therefore satisfied that there is no basis to LZ’s claim that her property has been broken into and her property stolen.

33 With regard to LZ’s medical condition, I am satisfied from her account and correspondence with the Tribunal, that during the course of this year she has suffered from respiratory, hypertension and cardiac problems that have required hospital treatment, and, it appears, she has also required treatment for her psychiatric condition. I note that Justice Barrett’s order dated 9 September 2003 that LZ’s estate be subject to management under the Protected Estates Act 1983 and his appointment of the Protective Commissioner to manage her estate is still operative.

34 While there have undoubtedly been undue delays in the prosecution of these proceedings, LZ has provided reasons for the delays, albeit that there is no specific evidence before the Tribunal as to the alleged thefts of documents. I am not satisfied that there has been any intention on LZ’s part to unnecessarily delay the proceedings. I am satisfied that her desire to gain access to relevant documents held by the NSW Police is genuine and, in the absence of evidence to the contrary, I am not satisfied that her claim is untenable. I therefore conclude that these proceedings are not frivolous or vexatious and I refuse the Commissioner’s application to dismiss LZ’s application under s 73(5)(h) of the ADT Act.

Tribunal’s power to appoint a representative for a party to proceedings

35 During the course of her oral submissions, LZ referred to the Tribunal’s power to appoint a representative for a party to proceedings, and noted that the Tribunal had not previously been prepared to entertain exercising this power in her case. She also noted that she had been self-represented in the Supreme Court proceedings under the Protected Estates Act 1983 before Justice Barrett. LZ’s application for legal aid in respect of the present proceedings was rejected.

36 Ms Haslem requested that the Commissioner be permitted to make submissions on the issue of the Tribunal exercising its power to appoint a representative for LZ, to which I agreed.

37 The power to appoint a representative is set out in s 71(4) of the ADT Act, which provides relevantly:

“(4) If it appears to the Tribunal that a party is an incapacitated person, the Tribunal may appoint any other person the Tribunal thinks fit to represent the party.”
38 The term ‘incapacitated party’ is defined in s 71(7) to include:
“(b) a person who is totally or partially incapable of representing himself or herself in proceedings before the Tribunal because the person is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled”
39 The Tribunal’s Practice Note Number 15 sets out the procedure to be followed by the Tribunal when appointing a representative for an incapacitated person under s 71(4), together with guidelines as to the role of the appointed representative. An order appointing a representative can be made on the application of a party or on the Tribunal’s own motion. A decision as to ‘incapacity’ is one the Tribunal “must make relying on objective evidence” (Practice Note, paragraph 2.4).

40 The role of the person appointed to represent a party is to “impartially and objectively determine what is in the best interests of the person and tender evidence or make legal submissions in accordance with those interests” (Practice Note, paragraph 2.7). Paragraph 3 of the Practice Note sets out the procedure to be followed by the Tribunal where it is contemplating the appointment of a representative.

41 Ms Haslem filed written submissions at the hearing in support of the Commissioner’s application that a representative be appointed for LZ. She submitted that LZ remains incapable of managing her own affairs and noted that management of LZ’s estate continues to be vested in the Protective Commissioner who has not authorised the current proceedings. She submitted that LZ ought to be represented in these proceedings by a person appointed by the Tribunal to act on her behalf.

42 Ms Haslem submitted, in the alternative, that LZ has no legal capacity to conduct these proceedings such that she is ‘otherwise disabled’ within the meaning of s 71(7) of the ADT Act. Thus, in order to facilitate the resolution of these proceedings, the Tribunal ought to appoint another person to represent her in these proceedings.

43 Neither the Tribunal nor LZ had any foreknowledge that such an application would be made and submissions filed by the Commissioner. LZ therefore sought an adjournment of this application to enable her to prepare submissions. In my view, such an adjournment is necessary in order to accord LZ procedural fairness.

44 The Tribunal will therefore conduct a Directions Hearing with the parties in order to determine a timetable for the filing and service of any required documents and to determine a date for the Commissioner’s application under s 71(4) to be heard.

Orders

1. The Respondent’s application for dismissal of these proceedings pursuant to s 73(5)(h) of the Administrative Decisions Tribunal Act 1997 is refused.

2. The matter will be listed for a Directions Hearing in relation to the Respondent’s application under s 71(4) of the Act.