Metleg v Commissioner of Police

[2021] NSWCATAD 358

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Metleg v Commissioner of Police [2021] NSWCATAD 358

Hearing dates:

29 October 2021

Date of orders:

02 December 2021

Decision date:

02 December 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Gatland, Senior Member

Decision:

1. The respondent is not required to lodge with the Tribunal copies of the documents comprising the confidential material the subject of the respondent’s application dated 1 September 2021 pursuant to the Administrative Decisions Review Act 1997 (NSW), s 59.

2. Disclosure to the Applicant or his legal representatives of the confidential material the subject of the respondent’s application dated 1 September 2021 and the matters contained in that material is prohibited.

3. Publication of the confidential material the subject of the respondent’s application dated 1 September 2021 and the matters contained in that material is prohibited.

4. Disclosure to the Applicant in these proceedings or his legal representatives of the confidential affidavit, filed by the respondent on 16 September 2021 and of matters contained in that affidavit is prohibited.

5. Publication of the confidential affidavit, filed by the respondent on 16 September 2021 and of matters contained in that affidavit is prohibited.

6. Pursuant to Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(c) and s 64(1)(d), the transcript and recording of the hearing of the interlocutory application on 29 October 2021 conducted in private in accordance with an order previously made pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 49(2) are not to be published or released to the Applicant or the public.

7. Pursuant to Civil and Administrative Tribunal Act 2013, s 64(1)(c) and s 64(1)(d), the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public.

Catchwords:

PRACTICE AND PROCEDURE – lodgement of documents under the Administrative Decisions Tribunal Act 1997 (NSW), s 58; application for order that Commissioner of Police not be required to lodge documents relevant to the determination of the application for administrative review – whether appropriate to make orders not requiring the lodgement of those documents because of their confidential nature

PROCEDURE – suppression orders – confidential nature of material –whether desirable to make orders under Civil and Administrative Tribunal Act 2013 (NSW), s 64 – extent of orders necessary

Legislation Cited:

Administrative Decisions Review Act, 1997, s 58

Civil and Administrative Tribunal Act 2013, s 49, s 64

Cases Cited:

Bellamy v Bellamy [2018] NSWCA 534

CYL v YZA [2017] NSWCATAP 105

Grant v Commissioner of Police [2020] NSWCATAD 158

Mekhitarian v Commissioner of Police [2021] NSWCATAD 309

Pendrick v Commissioner of Police, NSW Police Force [2021] NSWCATAD 326

State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69

Category:

Procedural rulings

Parties:

Mustafa Metleg (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Applicant Self-represented
Crown Solicitor (Respondent)

File Number(s):

2021/00208284

Publication restriction:

1. Disclosure to the Applicant or his legal representatives of the confidential material the subject of the respondent’s application dated 1 September 2021 and the matters contained in that material is prohibited.

2. Publication of the confidential material the subject of the respondent’s application dated 1 September 2021 and the matters contained in that material is prohibited.

3. Disclosure to the Applicant in these proceedings or his legal representatives of the confidential affidavit, filed by the respondent on 16 September 2021 and of matters contained in that affidavit is prohibited.

4. Publication of the confidential affidavit, filed by the respondent on 16 September 2021 and of matters contained in that affidavit is prohibited.

5. Pursuant to Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(c) and s 64(1)(d), the transcript and recording of the hearing of the interlocutory application on 29 October 2021 conducted in private in accordance with an order previously made pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 49(2) are not to be published or released to the Applicant or the public.

6. Pursuant to Civil and Administrative Tribunal Act 2013, s 64(1)(c) and s 64(1)(d), the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public..

REASONS FOR DECISION

The Substantive Proceedings

1. On 12 December 2020, the respondent Commissioner revoked the Applicant’s firearms licence. The Commissioner’s stated reasons for that decision are that the Applicant was not a fit and proper person to hold a licence and the continued holding of a firearms licence by the Applicant would be contrary to the public interest.

2. The Applicant sought an internal review of the decision but received no response and the internal review was deemed to have been finalised on 10 February 2021.

3. On 21 July 2021, the Applicant applied to the Tribunal to review the Commissioner’s decision to revoke his firearms licence.

4. Documents were filed by the Commissioner, as Respondent, on 25 August 2021 pursuant to the Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 58.

5. A further bundle of documents filed pursuant to the ADR Act, s 58 were filed on 1 September 2021. I refer to these bundles of documents together as the s 58 documents.

The Commissioner’s Application and Orders Sought

6. By an application dated 1 September 2021, which accompanied the second bundle of s 58 documents, the Commissioner sought the following orders;

1. Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), s 49 the hearing of this application be conducted in the absence of the Applicant in the substantive proceedings, and the legal representative for the Applicant in the substantive proceedings and the public (Private Hearing);

2. Pursuant to the ADR Act, s 59, the Respondent is not required to lodge copies of the documents or parts of the documents (Confidential Documents), specified in the confidential affidavit with the application and provided to the Tribunal by the Commissioner (Confidential Affidavit);

3. Pursuant to the CAT Act, s 64(1)(c), the publication of:

1. any evidence given in the Private Hearing;

2. the Confidential Documents and the Confidential Affidavit; and

3. matters contained in the Confidential Documents and the Confidential Affidavit is prohibited.

4. Pursuant to s 64(1)(d) of the CAT Act, the disclosure to the Applicant and his legal representatives of the Confidential Documents and the Confidential Affidavit, matters contained in the Confidential Documents and Confidential Affidavit and/or evidence given before the Tribunal in the Private Hearing is prohibited; and

5. Pursuant to CAT Act, s 64(1)(b) and s 64(1)(c), the publication and reporting of the Private Hearing of this application, including any oral evidence given during the hearing is prohibited.

7. As to the first order sought by the Commissioner, on 25 October 2012 the Tribunal made orders in accordance with the CAT Act, s 49 allowing a Private Hearing. These orders were made with the consent of the Applicant. The hearing before me of the application with regard to the balance of the orders then took place in a private hearing in the absence of the Applicant and his legal representatives and the public.

8. In the Private Hearing, the Commissioner’s representative informed me that the Confidential Documents about which the above orders are sought are, or would but for this application, form part of the documents to be lodged by the Commissioner pursuant to ADR Act, s 58.

9. Given the orders which are to be made in with respect to the Commissioner’s application, I will not identify that material separately other than to state that a redacted version of one of the Confidential Documents has in fact been filed and served by the Commissioner as part of the s 58 document bundle on 1 September 2021 and the redaction made to that document was on the basis of relevance only.

Relevant Legislation

10. The ADR Act, s 58 obliges a respondent to file, amongst other things, a copy of every document that is in the possession or under its control that it considers relevant to the determination of the application by the Tribunal.

11. The ADR Act, s 59 empowers the Tribunal on application, to direct that an administrator not be required to lodge certain documents as would otherwise be required by s 58:

59 Objections to lodgement

(1) An administrator may apply to the Tribunal before the expiry of the period referred to in section 58 (1) for an order that the administrator not be required to lodge a copy of a document under section 58.

(2) On any such application, the Tribunal may make an order that a copy of a document not be lodged with the Tribunal if:

(a) ... or

(b) it considers that, if an application were made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013, it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document.

12. An application by an administrator for directions pursuant to the ADR Act, s 59 is to be brought within a particular time limit. The time for the lodgement of the s 58 documents has been extended with the Applicant’s consent and so the application has been brought within the required time.

13. Confidentiality orders relating to evidence and proceedings are regulated by the CAT Act, s 64. That provision relevantly provides:

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

...

The Evidence

14. In support of his application, the Commissioner relied on evidence from John Watson, a Detective Superintendent in the New South Wales Police Force.

15. Detective Superintendent Watson’s non-confidential affidavit set out his relevant work history, experience and qualifications. Detective Superintendent Watson’s experience as a serving police officer for over 34 years is extensive and the roles he has occupied in the course of his service qualify him to be able to inform the Tribunal of various matters relevant to the Commissioner’s application.

16. The Tribunal was further given the opportunity to assess Detective Superintendent Watson as a witness in the course of some short oral evidence given by audio-visual link in the course of the Private Hearing. Given the orders I will make, the subject matter of Detective Superintendent Watson’s oral evidence shall not be described here. Detective Superintendent Watson presented as a knowledgeable and experienced person who did not attempt to act as an advocate for the Commissioner’s application but properly sought to assist the Tribunal in its deliberations by the provision of relevant evidentiary material.

17. In his non-confidential affidavit, Detective Superintendent Watson gave evidence about the Computerised Operational Policing System or COPS database. According to his evidence, COPS is an electronic record keeping system adopted by the NSW Police Force in about 1994 to record, capture and store information and intelligence.

18. Detective Superintendent Watson gave evidence in his non-confidential affidavit that:

1. human sources of criminal intelligence are of great importance to the work undertaken by the NSW Police Force;

2. the NSW Police Force relies heavily on the assistance of people who provide information on a confidential basis. This confidential information is important and useful and that the identification of sources may place those persons at risk of harm and deter the supply of such information to the NSW Police Force in the future;

3. while not common, information recorded on COPS sometimes contains the name of or identifying features of human sources; and

4. that the protection of the identity of human sources is vital to ensure the safety of those sources and the ability of the NSW Police Force to investigate criminal activity.

19. Detective Superintendent Watson gave evidence in his non-confidential affidavit that he had reviewed the Confidential Documents which are subject to the Commissioner’s application. Detective Superintendent Watson’s evidence was that the Confidential Documents comprised criminal intelligence held by the Commissioner relevant to the Applicant.

20. As to the Confidential Documents, Detective Superintendent Watson’s non-confidential affidavit evidence was that:

1. the information in the Confidential Documents has been collated and maintained by Police to assist in the monitoring and investigation of criminal activity and those persons who participate in unlawful conduct;

2. such material is generally only accessible by law enforcement personnel, and it is necessary that such intelligence holdings remain confidential and not known to those the subject of such holdings;

3. disclosure of the Confidential Documents would allow a picture to emerge showing what matters are known to the Police about the activities of the Applicant and other persons of interest from which inferences could be drawn as to what matters are therefore not known to the Police; and

4. while it is possible that the Applicant or other persons may suspect or know some of the information held by the Police, disclosure of the material contained in the Confidential Documents may confirm any such suspicions.

21. Detective Superintendent Watson deposed to his belief that the release of the Confidential Documents to the Applicant would or could:

1. Prejudice current and future police investigations into criminal activity;

2. Identify confidential sources of information to law enforcement;

3. Place identified persons at risk of harm;

4. Reveal confidential police methodology.

22. Superintendent Watson lastly stated, in his non-confidential affidavit, that if these proceedings were court proceedings, the Confidential Documents would be subject to a claim by the Commissioner to public interest immunity to prevent their use and disclosure.

23. The Commissioner also relied on Superintendent Watson’s confidential affidavit and its confidential written submissions and oral submissions made in the confidential part of the Private Hearing. Given the orders to be made, I do not propose to reveal the substance or nature of the material presented on a confidential basis in open Reasons. Those parts of the Reasons that are not to be disclosed are identified at the start of each relevant heading or paragraph with the words “[NOT FOR PUBLICATION]’ pursuant to CAT Act, s 64.

[NOT FOR PUBLICATION]

24. [NOT FOR PUBLICATION]

25. [NOT FOR PUBLICATION]

26. [NOT FOR PUBLICATION]

27. [NOT FOR PUBLICATION]

28. [NOT FOR PUBLICATION]

29. [NOT FOR PUBLICATION]

30. [NOT FOR PUBLICATION]

31. [NOT FOR PUBLICATION]

32. [NOT FOR PUBLICATION]

33. [NOT FOR PUBLICATION]

34. [NOT FOR PUBLICATION]

35. The Applicant attached some brief submissions to his originating application. In summary the Applicant has submitted that he:

1. did not know what adverse information the police could possibly have in relation to him; and

2. was concerned that there had been adverse information arising from a confusion of names where persons with similar names have been identified, incorrectly, as the Applicant; or where the Applicant’s name has been used by other people; or where a nickname or alias used by the Applicant was subsequently adopted by another person.

36. From a review of the materials filed by the Commissioner pursuant to ADR Act, s 58 there is a proper basis for the Applicant’s concern on this point. There have been instances where the NSW Police Force have confused his name or identity with others. In reviewing the Confidential Documents, I am satisfied in that cause for the Applicant’s concern does not arise with respect to those documents.

Consideration

37. When considering an application for orders to restrict disclosure in or of proceedings the Tribunal must be satisfied, in terms, that the imposition of restrictions is “desirable”. That satisfaction turns on the confidential nature of the material before the Tribunal or for any other reason. That provision allows the Tribunal to prohibit or restrict:

1. disclosure of names of persons; s 64(1)(a),

2. the publication or broadcast of any report of the Tribunal’s proceedings; s 64(1)(b),

3. the publication of evidence before the Tribunal whether in public or in private session of matters contained in material received as evidence or lodged with it; s 64(1)(c), and

4. the disclosure to some or all parties to the proceedings of evidence before the Tribunal, the content of a document, or of matters contained in material whether received as evidence or lodged with the Tribunal; s 64(1)(d).

38. It has been stated that the CAT Act, s 64(1) implicitly permits a denial of procedural fairness: Grant v Commissioner of Police [2020] NSWCATAD 158 at [24]; Mekhitarian v Commissioner of Police [2021] NSWCATAD 309 at [17]. I agree that orders made under CAT Act, s 64(1) operates to deny some aspects of procedural fairness. In making orders under CAT Act, s 64(1) the Tribunal is required to deliberate on whether and to what extent any restriction on disclosure concerning its proceedings is desirable, having regard to the factors set out in the provisions and the basic common-law precept of open justice and matters relevant to each particular case; State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61], [50] – [53] and [81] – [82]; Grant at [19].

39. The word “desirable” necessarily has prominence in guiding the Tribunal on the use of these restrictions. The principle of open justice is of course key; Dezfouli at [61], Bellamy v Bellamy [2018] NSWCA 534 at [30] though that principle is not the sole consideration; Dezfouli at [81] and the Tribunal’s powers to make suppression orders are less constrained than a court considering similar matters at common law; CYL v YZA [2017] NSWCATAP 105 at [102].

Findings

40. Having regard to the evidence set out above, I find that the material contained in the Confidential Documents is confidential in nature. Regard to each of the Confidential Documents shows that the information contained in them was either given on a confidential basis, received confidentially or was handled on a confidential basis by the Commissioner. The Confidential Documents and the Confidential Affidavit were then lodged on a confidential basis with the Tribunal in support of the application made by the Commissioner under ADR Act, s 59.

41. It may be desirable to make orders prohibiting disclosure and publication where material is filed on a confidential basis in support of an application for orders under ADR Act, s 59. The rationale being that administrators should not be discouraged from making such applications when they consider it to be appropriate and that material supporting such applications should remain confidential irrespective of the outcome of an application under CAT Act, s 59; Pendrick v Commissioner of Police, NSW Police Force [2021] NSWCATAD 326 at [46]. This is one factor relevant to the consideration of whether it is desirable to make orders under the CAT Act, s 64 in this case. Administrators should not be deterred from making such applications and nor should administrators be deterred from lodging sufficient evidential material with the Tribunal to allow applications of this kind to be properly and carefully considered.

40. Confidential material which may be the subject of a claim for public interest immunity in Court proceedings is of such a nature as to be considered “special” and relevant to the Tribunal’s consideration of whether it is desirable to make orders restricting the disclosure or publication; Dezfouli at [82].

41. [NOT FOR PUBLICATION]

42. [NOT FOR PUBLICATION]

43. [NOT FOR PUBLICATION]

44. [NOT FOR PUBLICATION]

45. [NOT FOR PUBLICATION]

46. [NOT FOR PUBLICATION]

47. [NOT FOR PUBLICATION].

48. The Commissioner’s proposed order 5 seeks prohibition of the publication and reporting of the Private Hearing, including any evidence given during the hearing. The effect of that order would mean that even those aspects of the evidence which was not treated by the Commissioner as being confidential, and parts of these reasons which are not confidential would be prohibited from publication. The Commissioner proposed those orders prior to orders being made for the hearing of his application to take place in private and may be considered in that context. I decline to make an order in the terms proposed by the Commissioner; it is too wide. Where, as here, orders have been made for a private hearing under the CAT Act, s 49, non-publication orders are to be made in respect of some paragraphs of these reasons, and non-publication and restriction orders will also be made arising from this decision, then the material disclosed by the Commissioner is sufficiently protected while having regard for the principles of open justice.

49. Having regard to the findings so made and the consideration of the principles as they apply to those findings, I am satisfied that:

1. the Commissioner should not be required to lodge the Confidential Documents as part of the s 58 documents;

2. save for Detective Inspector Watson’s non-confidential affidavit which was read as evidence at the Private Hearing, it is desirable, by reason of the confidential nature of the material presented at the Private hearing that, pursuant to the CAT Act, s 64(1)(c), the publication is prohibited of the following;

1. the evidence given in the Private Hearing;

2. the Confidential Documents and the Confidential Affidavit; and

3. the matters contained in the Confidential Documents and the Confidential Affidavit.

3. it is desirable, by reason of the confidential nature of the material presented at the Private Hearing that, pursuant to the CAT Act, s 64(1)(d), the disclosure to the Applicant and his legal representatives of is prohibited of the following material:

1. the Confidential Documents and the Confidential Affidavit;

2. matters contained in the Confidential Documents and Confidential Affidavit; and

3. any other evidence given before the Tribunal in the Private Hearing save for the non-confidential affidavit of Detective Inspector Watson.

4. [NOT FOR PUBLICATION]

Orders

52. Accordingly, I make the following orders:

1. The respondent is not required to lodge with the Tribunal copies of the documents comprising the confidential material the subject of the respondent’s application dated 1 September 2021 pursuant to the Administrative Decisions Review Act 1997 (NSW), s 59.

2. Disclosure to the Applicant or his legal representatives of the confidential material the subject of the respondent’s application dated 1 September 2021 and the matters contained in that material is prohibited.

3. Publication of the confidential material the subject of the respondent’s application dated 1 September 2021 and the matters contained in that material is prohibited.

4. Disclosure to the Applicant in these proceedings or his legal representatives of the confidential affidavit, filed by the respondent on 16 September 2021 and of matters contained in that affidavit is prohibited.

5. Publication of the confidential affidavit, filed by the respondent on 16 September 2021 and of matters contained in that affidavit is prohibited.

6. Pursuant to Civil and Administrative Tribunal Act2013 (NSW), s 64(1)(c) and s 64(1)(d), the transcript and recording of the hearing of the interlocutory application on 29 October 2021 conducted in private in accordance with an order previously made pursuant to the Civil and Administrative Tribunal Act2013 (NSW), s 49(2) are not to be published or released to the Applicant or the public.

7. Pursuant to Civil and Administrative Tribunal Act 2013, s 64(1)(c) and s 64(1)(d), the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public.

**********

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

Registrar

Decision last updated: 02 December 2021