NZ v Commissioner of Police, New South Wales Police

[2005] NSWADT 213

CITATION:	NZ v Commissioner of Police, New South Wales Police [2005] NSWADT 213
DIVISION:	General Division
PARTIES:	APPLICANT NZ RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	053084
HEARING DATES:	20/07/2005
SUBMISSIONS CLOSED:	07/20/2005
DATE OF DECISION:	07/20/2005
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Jurisdiction; application for summary dismissal
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Privacy & Personal Information Protection Act 1998
CASES CITED:
REPRESENTATION:	In person (by phone) W Pisani, NSW Police
ORDERS:	Application summarily dismissed for want of jurisdiction.

1 This is a revised version of reasons delivered orally at the conclusion of the hearing on 20 July 2005. These written reasons are given following a request under s 89 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act).

2 On 7 March 2005 the applicant filed an application for review on the conduct of a public sector agency under the Privacy and Personal Information Protection Act 1998 (the Privacy Act). The respondent was the Commissioner of Police.

3 The applicant completed the application in hand-writing. Under the heading ‘Reasons for application’ and under the sub-heading ‘The Agency has contravened an information protection principle: identify the principle’ the applicant wrote ‘breached my privacy access, collect, disclose, give my name, details privacy Detective Grynadounov to detectives, police for Patients thefts investigations and to Ms [M] her thefts against patients. They allow false letters false fraud, forgery on letters, AVOs …’. The text continues for some time in this vein. There is a longer type written letter dated 26 February 2005 addressed to the Tribunal. It makes numerous allegations about the police in relation to their conduct in connection with a series of events involving the applicant belonging to the 2000 to 2004 period.

4 The Tribunal and the respondent have raised with the applicant the requirements of the Privacy Act as they bear on lodging applications for review of conduct with the Tribunal. The kind of conduct to which the right to apply for review applies is defined relevantly by sub-ss (1) and (2) of s 52 of the Privacy Act:

‘ 52 Application of Part

(1) This Part applies to the following conduct:

(a) the contravention by a public sector agency of an information protection principle that applies to the agency,

(b) the contravention by a public sector agency of a privacy code of practice that applies to the agency,

(c) the disclosure by a public sector agency of personal information kept in a public register.

(2) A reference in this Part to conduct includes a reference to alleged conduct.’

5 The key provision for present purposes is s 55(1) which provides:

‘ 55 Review of conduct by Tribunal

(1) If a person who has made an application for internal review under section 53 is not satisfied with:

(a) the findings of the review, or

(b) the action taken by the public sector agency in relation to the application,

the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53.’

6 It follows that a person must first have made an application for internal review. The provision governing internal review is s 53. Section 53 provides, relevantly, 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.

(2) The review is to be undertaken by the public sector agency concerned.

(3) An application for such a review must:

(a) be in writing, and

(b) be addressed to the public sector agency concerned, and

(c) specify an address in Australia to which a notice under subsection (8) may be sent, and

(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

(e) comply with such other requirements as may be prescribed by the regulations.

(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

(b) the Privacy Commissioner.

(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 a review of the conduct concerned.

(7) Following the completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following:

(a) take no further action on the matter,

(b) make a formal apology to the applicant,

(c) take such remedial action as it thinks appropriate (eg the payment of monetary compensation to the applicant),

(d) provide undertakings that the conduct will not occur again,

(e) implement administrative measures to ensure that the conduct will not occur again.

(7A) …

(8) As soon as practicable (or in any event within 14 days) after the completion of the review, the public sector agency must notify the applicant in writing of:

(a) the findings of the review (and the reasons for those findings), and

(b) the action proposed to be taken by the agency (and the reasons for taking that action), and

(c) the right of the person to have those findings, and the agency’s proposed action, reviewed by the Tribunal.’

7 Applicants must, I consider, clearly identify documents that establish the basis for the Tribunal to exercise jurisdiction. The provisions of the Tribunal Act, s 73 in particular s 73(4) do not, in my view, place this responsibility on the Tribunal. Section 73(4) provides:

‘(4) The Tribunal is to take such measures as are reasonably practicable:

(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.’

8 The Tribunal and the respondent have asked NZ to identify her application for internal review. She has filed hundreds of pages of documents. She was unable to identify in those documents any specific document containing an application for review approximating in any reasonable way to the requirements of s 53(3). In response to enquiries from the Tribunal she has repeatedly asserted that there is such a document among the voluminous material filed; and claims that the respondent has ignored her request for internal review, and failed to respond to it in the time required by s 53(6), 60 days.

9 In this instance at the planning meeting held on 20 July 2005 the Tribunal asked NZ to identify the application for internal review. She was unable to do so. Under s 73(5) the Tribunal:

‘(h) may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance.’

10 The following directions and self-executing order were made:

1. Applicant to produce within 7 days, the application for internal review relevant to Application No. 053084.

2. Application No. 053084 is to be dismissed effective 28 July 2005 if no application for internal review is provided.

3. If an application is provided, further directions will be made.

11 Voluminous submissions were filed on 21 and 27 July 2005 again referring to NZ’s many concerns with the general conduct of the Police in connection with matters involving her over many years. The request of the Tribunal was a simple one – to produce an application for internal review. That did not occur. In circumstances of this kind, the Tribunal does not see the words of s 73(4) as going so far as to conduct a ‘search and find’ service on behalf of applicants. The Tribunal can not be expected to pore over voluminous submissions in order to locate the evidence that might show that a pre-condition to its jurisdiction has been met. The obligation lies, essentially, on the applicant to meet any objection to jurisdiction, and to do so by identifying clearly the relevant evidence.

12 Application summarily dismissed for want of jurisdiction.