Moore v Commissioner of Police, NSW Police Service

[2002] NSWADT 97

CITATION:	Moore -v- Commissioner of Police, NSW Police Service & anor [2002] NSWADT 97
DIVISION:	General Division
PARTIES:	APPLICANT Ian Moore FIRST RESPONDENT Commissioner for Police, NSW Police Service SECOND RESPONDENT Registrar, Victim's Compensation Tribunal
FILE NUMBER:	013079
HEARING DATES:	18/02/2002
SUBMISSIONS CLOSED:	04/16/2002
DATE OF DECISION:	06/12/2002
BEFORE:
APPLICATION:	Summons - application to set aside
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Beesley -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 Waind v Hill [1978] 1 NSWLR 372 Grassby v R (1989) 168 CLR 1 Pelechowski v The Registrar, Court of Appeal (NSW) [1999] 198 CLR 435 Pollock CB in The Attorney-General v Walker[(1849) 3 Ex 242 State Drug Crime Commission of NSW v Chapman (1987) 12 NSWLR 447 Attorney-General v Leveller Magazine Ltd [1979] AC 440 Proprietors Units Plan No 52 v Gold (1993) 44 FCR 123 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 R v Saleam [No 1] (1989) 16 NSWLR 14 N (No. 2) -v- Director General, Attorney General's Department [2002] NSWADT 33 Holpitt Pty Ltd v Varimu Pty Ltd & Ors (1991) 103 ALR 684 Hurt v Director-General, Department of Fair Trading [1999] NSWADT 50 Mangoplah Pastoral Company Pty Ltd v Great Southern Energy (No 2) [2000]NSWADT 4
REPRESENTATION:	APPLICANT M Duncan, barrister FIRST RESPONDENT J Tunks, solicitor SECOND RESPONDENT P Singleton, barrister
ORDERS:	1. Application for the summons to be set aside is dismissed; 2. No order as to costs.

Introduction
1 This decision concerns an application by the Registrar, Victims Compensation Tribunal (VCT) to set aside a summons issued by the Registrar of the Administrative Decisions Tribunal (the Tribunal). The summons requested that the Registrar of the VCT produce “Victims Compensation Tribunal file in relation to a compensation claim made by Edward Stals in respect to the offender Ian Moore.”

2 The substantive matter relates to an application by Mr Moore to the Commissioner of Police, NSW Police Service (the agency) for access to certain documents under the Freedom of Information Act 1989 (FOI Act). His request was for:

All COPS entries, all references to COPS entries, all records of access to all COPS entries, all documents referred to in COPS entries, all contents of files made or kept by (but not limited to) Special Branch, CPEA, internal affairs, ICPU and all original source document referral to those documents.
History of the proceedings to date
3 The Tribunal heard Mr Moore’s application on 23 and 24 August 2001. It was adjourned, part heard. The two main issues in the principal proceeding are whether the agency made the correct and preferable decision in refusing Mr Moore access to certain documents and whether the agency has conducted an “adequate search” for documents covered by the FOI request.

4 “Adequate search” is a shorthand term for the question of whether an agency has made the correct and preferable decision in refusing access to documents because the documents are not "held" by the agency within the meaning of that term in s 6(1) of the FOI Act. A decision that access to documents is to be refused encompasses a refusal on the ground that a document within the terms of the request cannot be identified or located or that it has been found not to exist. The Tribunal must assess the evidence in each case to decide the strength of the applicant's suspicions that further documents exist and the adequacy of the agency's efforts to locate them. (See Beesley -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 52.) As with other grounds for refusing access, the onus is on the agency to justify such a conclusion (see s 61 of the FOI Act).

5 Mr Stals alleged that Mr Moore had engaged in certain paedophile activities against him. Those allegations were the subject of findings by the VCT and the claim was dismissed. The District Court upheld an appeal against that decision. Mr Moore’s purpose in summonsing the documents is to test whether certain references in Mr Stal’s application to the VCT indicate that the agency has not adequately searched for particular documents.

6 Mr Moore obtained a draft copy of Mr Stals’ application from the District Court appeal file. He alleges that there is a sworn declaration by Mr Stals on the District Court file which refers to a report to the VCT by the agency. These references are to allegations of paedophilia against Mr Moore being reported to Detective Inspector Inkster at Sydney Police Station. Neither Mr Stals’ sworn declaration or the report by the agency to the VCT has been identified in response to Mr Moore’s FOI request. Mr Moore deduced that if Mr Stals reported the allegations to police there should also be other documents in existence relating to the investigation of such allegations.

7 At the hearing before the Tribunal in August 2001, Detective Sergeant Linkenbagh gave evidence of the searches that had been conducted to locate the documents which were the subject of Mr Moore’s FOI application. Detective Sergeant Linkenbagh agreed that Mr Stals had given evidence to the VCT but did not know whether Mr Stals provided any information to Police. Detective Sergeant Linkenbagh agreed that despite his endeavours to locate all relevant documents it is likely that there are documents outside the Child Protection Enforcement Agency (CPEA) which name Mr Moore but which were not disclosed. Detective Sergeant Linkenbagh spoke to Superintendent Inkster but did not question him about any documents relating to Mr Stals.

8 Mr Moore submitted that because no such documents have been produced pursuant to his FOI application, the agency has not made an “adequate search” for those documents.

Summons to the VCT
9 Mr Moore applied for several summonses to be issued including a summons to the VCT in relation to the Stals file. That summons required the Registrar of the VCT to attend before the Administrative Decisions Tribunal and produce:

“Victims Compensation Tribunal file in relation to compensation claim made by Edward Stals in respect of the offender Ian Moore (Possibly file No 97/30987)
10 On 31 October 2001, Mr Moore wrote to the Tribunal requesting that this matter proceed in a certain manner. A copy of his submission was forwarded to the agency and a reply was received on 8 November 2001. On the basis of these submissions, the Tribunal made the following rulings and directions:
The Tribunal directed that the Registry write to the Victims Compensation Tribunal and request them to provide their file in relation to a compensation claim made by Mr Stals against Mr Moore.

Following access being given (or denied) to the VCT file referred to in 1 above, Mr Linkenbagh be recalled for the purpose of cross examination but only in relation to documents in the District Court file in Stals v VCT and any further relevant material on the VCT file in relation to Stals to which Mr Moore has been granted access.

When the Tribunal has made a decision about access to the VCT’s Stals file, a date will be set down for the completion of cross examination of Detective Sergeant Linkenbagh and final submissions by the parties.

Reasons for the rulings and directions will be included in the final decision where appropriate.

VCT’s application to set aside summons
11 The Registrar of the VCT applied to set aside the summons. That matter was listed for hearing on 18 February 2002. The VCT filed written submissions. Mr Moore requested an adjournment because he said the submissions took him by surprise. The VCT applied for costs in relation to the adjournment. I did not rule on the application at that stage but sought to minimise any further costs by determining the matter on the papers pursuant to s 76 of the ADT Act. I directed that Mr Moore file further evidence and submissions by 28 March 2002 and that the VCT file any submissions in response by 15 April.

Issues
12 On the basis of the submissions from Mr Moore and the VCT, the Tribunal must answer the following questions:

· who issued the summons?

· does the Tribunal have power to set aside the summons?

· if so, should the summons be set aside?

· should any order for costs be made?

Who issued the summons?
13 Pursuant to s 84 of the Administrative Decisions Tribunal Act 1997 (ADT Act) all summonses are issued by the Registrar, either on the application of a party to the proceedings or at the direction of the Tribunal. In this case it was Mr Moore who applied for the summons to be issued. While I directed the Registrar to prepare the summons following the VCT’s refusal to provide the documents informally, I did so at Mr Moore’s request. This is not a case where the Tribunal has decided, independently of either party, to direct the Registrar to issue a summons.

Does the Tribunal have power to set aside the summons?
14 Applicant’s submissions. Mr Duncan, counsel for Mr Moore, prepared written submissions dated 18 March 2002. Counsel submitted that the Tribunal does not have jurisdiction to set aside the summons issued to the VCT. The submission noted that the Tribunal’s jurisdiction arises from a combination of s 8 and s 38 of the ADT Act and Division 2 of Part 5 of the FOI Act. Mr Duncan submitted that the Tribunal is an administrative body, not a court of record, and a summons can only be set aside by the Supreme Court following an application for an order in the nature of prohibition. Failure to produce the documents to the Tribunal is an offence.

15 VCT’s submission. The VCT submitted that the power to issue a summons for production carries with it the implied power to set aside such a summons. The VCT cited Waind v Hill [1978] 1 NSWLR 372 at 381E Moffitt P (Hutley and Glass JJA agreeing) in support of this proposition. In that case their Honours noted that obedience to a subpoena involves three steps:

The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise.
16 In addition s 73(1) of the ADT Act gives the Tribunal a flexible power to “determine its own procedure” including whether or not a summons should be set aside.

17 Tribunal’s reasons. The ADT Act does not contain an express power to set aside a summons. Furthermore the Tribunal is not a superior court, so it has no inherent jurisdiction to do so. However the Tribunal may set aside a summons by implication on the principle that a grant of power carries with it everything necessary for its exercise. That proposition was articulated by the High Court in Grassby v R (1989) 168 CLR 1, where Dawson J stated, at 16, that:

. . . notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest.) Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J points out, fundamental.
18 His Honour observed, further, at p 17, that:
It would be unprofitable to attempt to generalise in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be derived by implication from statutory provisions conferring particular jurisdiction.
19 Gaudron, Gummow and Callinan JJ commented on this passage in Pelechowski v The Registrar, Court of Appeal (NSW) [1999] 198 CLR 435 at p 452. Their Honours stated that:
The term "necessary" in such a setting as this is to be understood in the sense given it by Pollock CB in The Attorney-General v Walker [(1849) 3 Ex 242 at 255-256 [154 ER 833 at 838-839], namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Div 4 of Pt 3 of the District Court Act. In this setting, the term "necessary" does not have the meaning of "essential"; rather it is to be "subjected to the touchstone of reasonableness"[ State Drug Crime Commission of NSW v Chapman (1987) 12 NSWLR 447 at 452. See also Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 450; Proprietors Units Plan No 52 v Gold (1993) 44 FCR 123 at 126; Dockray, "The Inherent Jurisdiction to Regulate Civil Proceedings", (1997) 113 Law Quarterly Review 120 at 130-131.]
20 The Registrar is the only person who can issue a summons. The Registrar will not have addressed the question of whether the summons has been improperly issued or is an abuse of the power to compel the production of documents. Whether that summons is issued on the application of a party or at the direction of the Tribunal, the recipient of the summons will not have had the opportunity to make submissions in relation to whether it should have been issued. In those circumstances the express power given to the Registrar to issue a summons carries with it an implication that the Tribunal has power to set it aside.

Should the summons be set aside?
21 Applicant’s submissions. The applicant’s submission was that the “legitimate forensic purpose” test is amply met given Mr Moore’s explanation of why the VCT’s file is relevant to the “adequacy of search” issue. Mr Duncan submitted that Mr Stals’ application to the VCT suggests the existence of other documents which have not been identified or produced pursuant to Mr Moore’s FOI application. Mr Moore’s request that the summons be issued is not a “fishing expedition.”

22 VCT’s submission. Mr Singleton, counsel representing the VCT, submitted that the summons should be set aside on the ground that no legitimate forensic purpose is apparent for the production of the file. Counsel provided comprehensive submissions on the principles that the Tribunal should apply in determining whether to set aside a summons. On the basis of an analysis of relevant case law, Mr Singleton submitted that the following propositions can be extracted:

1. A summons will not be valid unless it has a legitimate forensic purpose.

2. The validity of a summons does not depend on whether or not public interest immunity is claimed: such a claim is merely an additional basis upon which production can be resisted.

3. The test of whether or not a summons has a legitimate forensic purpose is more stringent in civil cases than in criminal cases.

4. The test in civil cases is therefore more stringent than the test that is clearly established to apply in criminal cases (that it is “on the cards” that the subpoenaed material will materially assist the case of the accused.)

5. The test in civil cases, whilst variously stated, requires the summonsing party to demonstrate that there are definite (or concrete, or reasonable etc) grounds to believe that the summonsed materially would materially (or substantially etc) assist the summonsing party’s case.

6. The summonsing party must justify the summons that it has issued; it must justify the width of the summons.

7. The burden of demonstrating the existence of a legitimate forensic purpose falls on the summonsing party, which must discharge the burden expressly and precisely, lest the summons be set aside as an abuse of process.

23 There is no need for the Tribunal to determine whether the test in civil cases necessarily requires definite (or concrete, or reasonable) grounds for the Tribunal to believe that the production of the documents would materially assist Mr Moore’s case. Even applying the more stringent test as posited by Mr Singleton, I find that the summons has been issued for a legitimate forensic purpose. That purpose is to put to the agency that one or more of the documents in that file suggests that other documents, not identified in the agency’s response to the FOI application, exist. The grounds on which Mr Moore infers that these documents exist are summarised in paragraph 6 above. These allegations provide definite grounds for the Tribunal to believe that the production of the documents would materially assist Mr Moore’s case.

24 In addition Mr Moore must justify the width of the summons. The summons is for production of the VCT file in its entirety. Mr Singleton representing the VCT, conceded that a summons can be drafted in somewhat general terms in order to catch documents that fit a description of substance rather than a description of form. In other words the summons does not have to identify each document that is required to be produced. He went on to add that a summons must describe what is sought with “reasonable particularity” and must aim to obtain that which it is legitimate to summons and not aim at discovery. (Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573; v R v Saleam [No 1] (1989) 16 NSWLR 14 at 17C.)

25 No inference can be drawn in this case that Mr Moore is aiming at discovery. He has identified at least two documents (Mr Stals application and his sworn declaration to the VCT) for which a legitimate forensic purpose exists. He is not required to identify each document individually. The summons is not oppressive. It requests that the VCT produce a single file.

26 I should also note that I am aware of a recent decision of the Tribunal in N (No. 2) -v- Director General, Attorney General's Department [2002] NSWADT 33. In that case the Tribunal held that pursuant to s 10 of the FOI Act the VCT was exempt from the FOI Act in relation to its judicial functions. I am mindful of the fact that Mr Moore may not have been given access to Mr

Stals’ file had he requested it under the FOI Act. I am satisfied that he is not attempting to circumvent the provisions of the FOI Act in summonsing the VCT’s file. Nevertheless care needs to be exercised in determining whether and in what circumstances access to those documents is given.

27 For these reasons, I dismiss the VCT’s application that the summons addressed to the Registrar be set aside. The Tribunal’s decision not to set aside the summons does not necessarily mean that Mr Moore will be permitted to inspect all of the documents produced. The Tribunal must decide whether or not permission should be given to a party or parties to inspect the documents. As foreshadowed in an earlier direction, my approach in these proceedings has been to inspect the documents. Depending on their content, I have made a decision as to inspection by the parties. In relation to other summonsed material I gave the agency first access and allowed it to make submissions in relation to my preliminary ruling on access to the file. Mr Moore was then given an opportunity to respond if he opposed the view being put by the agency. Subject to any submissions by the parties I envisage that this process will be repeated in relation to the VCT file.

Should any order for costs be made?

28 Section 88(1) of the ADT provides for the Tribunal to award costs. That section states that:

Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.
29 Each party applied for an award of costs. The VCT submitted that Mr Moore’s request to adjourn the hearing on 18 February 2002 resulted in the VCT incurring further costs in responding to Mr Duncan’s written submissions of 18 March 2002. There is no doubt that the VCT has incurred further expense in preparing written submissions dated 16 April 2002. Those costs would not have been incurred but for the adjournment.

30 The Federal Court has interpreted “special circumstances” as meaning “some circumstances which take the matter out of the ordinary course.” (Holpitt Pty Ltd v Varimu Pty Ltd & Ors (1991) 103 ALR 684.) In Hurt v Director-General, Department of Fair Trading [1999] NSWADT 50 at 10, the Tribunal suggested that it would be undesirable “to encourage, by way of adverse costs orders, people to be reluctant to exercise their statutory rights.”

31 Mr Moore was not represented in the proceedings relating to the summons on 18 February 2002. He was understandably concerned that he was not in a position to address the detailed submissions made by the VCT at that hearing. The Tribunal is “to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.” I decided that it was practicable to determine this matter on the papers after the completion of the hearing and to request the parties to present any further submissions in writing. Although this resulted in the VCT incurring some extra costs I do not consider the circumstances giving rise to that expense to be “special”.

32 Mr Duncan, representing Mr Moore, also applied for costs. Something more than success is needed to warrant a costs order under s 88 of the ADT Act. (Mangoplah Pastoral Company Pty Ltd v Great Southern Energy (No 2) [2000]NSWADT 4 at 5.) Nothing was put to me that would justify an order for costs in favour of Mr Moore.

Orders

1. Application for summons to be set aside is dismissed.

2. No order as to costs.

3. This matter is to be re-listed for directions on a date arranged by the Registrar. At that hearing the issue of access to the summonsed material can be resolved and the matter can be set down for the completion of cross-examination of Detective Sergeant Linkenbagh and final submissions by the parties.