NZ v Commissioner of Police, New South Wales Police (GD)

[2008] NSWADTAP 23

Appeal Panel - Internal

CITATION:	NZ V Commissioner of Police, New South Wales Police (GD) [2008] NSWADTAP 23
PARTIES:	APPELLANT NZ Respondent Commissioner of Police, New South Wales Police
FILE NUMBER:	089011
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	4 April 2008
DATE OF DECISION:	18 April 2008
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	Leave to appeal out of time
MATTER FOR DECISION:	Principal matter
DECISION UNDER APPEAL:	NZ v Commisioner of Police, Newe South Wales Police [2007] NSWADT 263
FILE NUMBER UNDER APPEAL:	073134
DATE OF DECISION UNDER APPEAL:	11/12/2007
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Interpretation Act 1987 Privacy and Personal Information Protection Act 1998 Health Records and Information Privacy Act 2002
CASES CITED:	NZ v Commissioner of Police, NSW Police [2007] NSWADT 263 Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2002] NSWADTAP 9 Ministry of Transport v Kharbanda (GD) [2006] NSWADTAP 61 NZ v Commissioner of Police, NSW Police (GD) [2007] NSWADTAP 30
REPRESENTATION:	APPELLANT In person RESPONDENT F Gaha, solicitor
ORDERS:	1. Leave to appeal out of time is refused 2. Appeal dismissed.

REASONS FOR DECISION

1 The General Division of the Tribunal has declined to consider an application filed by NZ against the NSW Police Force on the basis that it has no jurisdiction. NZ has appealed. The Tribunal’s decision was given in writing, and the reasons for decision are dated 12 November 2007: NZ v Commissioner of Police, NSW Police [2007] NSWADT 263. The Police Force, as respondent, has objected to the appeal being received out of time. The appeal was filed on 19 February 2008.

2 The rule is that an appeal ‘must be made … within 28 days after the Tribunal furnishes the party with written reasons’: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113(3)(a). An appeal may only proceed out of time if the Appeal Panel makes a decision allowing that to occur: s 113(3)(b).

3 An Appeal Panel decision whether to allow an appeal to proceed out of time involves the exercise of an ‘interlocutory function’ of the Tribunal (see s 22A(1)(d)). The Appeal Panel may be constituted for the purpose of making a decision in respect of an interlocutory function by one presidential judicial member who is assigned by the President for the purpose of exercising the function: s 24A(2)(a). It is so constituted on this occasion, with the President constituting the Appeal Panel.

4 The first question is when did the appeal period commence. The Tribunal records show that the decision was delivered to NZ on the day of the decision, 12 November 2007. The 28 day period would commence to run the next day. Consequently, the final day for service of the notice of appeal would have been 11 December 2007. NZ’s appeal, therefore, was out of time by two months and eight days.

5 In considering whether to grant leave to appeal out of time, the governing consideration is the interests of justice in the circumstances. Time lines are a usual feature of any organised system of administration, including the administration of justice. The party who secures a positive order at first instance should be able to expect, once the appeal period has passed, that the order is now final and not contestable. Sometimes there may be good reasons why the unsuccessful party did not file an appeal in time, and now seeks leave to have the appeal accepted out of time.

6 The party seeking leave should have a cogent explanation for failing to meet the time lines. If there is a cogent explanation, it is necessary to consider the prejudice that might be suffered by the successful party in reopening the matter. If the successful party has taken steps based on the decision, it may well be that it would be unfair on that basis alone to reopen the decision. Further, there is the issue of whether allowing the appeal to proceed would waste the (limited) resources of the Tribunal and be burdensome to the respondent because the appeal grounds are so weak that there are little or no prospects of the appeal being successful.

7 These considerations are well known. There are many Tribunal cases setting out the considerations seen as relevant to the exercise of the discretion to grant leave to appeal. An early instance is Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2002] NSWADTAP 9 at [6] where the following considerations are listed,

- The reason for the failure to lodge the appeal.

- The length of the delay in lodging the appeal.

- The diligence shown by the appellant in lodging the appeal after it came to his notice that were circumstances justifying an appeal.

- The nature of the decision below and the consequences of the decision upon the appellant’s rights.

- The adequacy of the information conveyed to the appellant at the time the decision was notified to him or her, both as to the reasons for decision and of the appellant’s entitlement to appeal.

- The extent of the appellant’s knowledge of the relevant statutory provisions.

- The possible prejudice to the respondent to the appeal.

8 More recent cases that illustrate the approach taken by the Appeal Panel include Ministry of Transport v Kharbanda (GD) [2006] NSWADTAP 61; and another case involving NZ and the Police Force, NZ v Commissioner of Police, NSW Police (GD) [2007] NSWADTAP 30.

9 NZ has now undertaken numerous proceedings in the Tribunal. As has been explained in a number of decisions she has a psychiatric disability which affects her ability to participate directly in hearings (agoraphobia). She regularly files copious submissions, and has done so again in respect of this appeal. I mention these matters as indicating that NZ is not unfamiliar with the procedures of the Tribunal, and as affording some background to the way she has presented her case in this appeal. I am of the view that NZ is aware that the Tribunal operates within a framework of procedures that include rules as to the filing of process.

10 NZ alleged in her application to the Tribunal that the Police Force have breached various provisions of the Privacy and Personal Information Protection Act 1998 (the PPIP Act) and the Health Records and Information Privacy Act 2002 (the HRIP Act).

11 Both of these laws require that a complainant of breach of the privacy principles must first seek to resolve the matter by applying for internal review of the offensive conduct by the agency concerned. It is only after the agency has dealt with that application, or is deemed to have failed to deal with it, that an application for external consideration of the complaints by the Tribunal can be made. This is a fundamental feature of the PPIP Act and the HRIP Act.

12 NZ submitted that she had made an application for internal review for the purpose of each of the Acts, and referred to the contents of three letters dated 12 December 2006 and a letter dated 14 March 2007. The Tribunal was satisfied that at least some of the letters were received by the Police Force, and did not accept its assertions to the opposite effect.

13 The Tribunal referred to case-law in the Tribunal as to what needed to be demonstrated if an objection is taken by an agency on the ground that it never received an application for internal review. A full account of the relevant case-law is given in the decision, and will not be repeated here. In essence, the Tribunal held that the letter or other document sent to the agency must be sufficiently particular as to what is complained of, and that it is concerned with breach of privacy principles, for it to be reasonably capable of being understood to be an application of the kind to which the Acts mentioned refer.

14 The Tribunal held that their contents did not constitute competent applications under s 53 of the PPIP Act because ‘they did not sufficiently particularise with the necessary clarity the breaches of the PPIP Act or HRIP Act alleged by NZ to enable the Police to investigate her complaints’: at [25].

15 The Tribunal also decided that NZ’s son had not lodged any application with the Tribunal, and to the extent that she purported to agitate concerns on his behalf, it had no jurisdiction to deal with that part of her complaints.

16 Finally, it found it unnecessary to decide whether the Police’s substantive objections made to NZ’s complaints based on the exemption provisions of the legislation were applicable.

17 It is apparent from the detail given in the decision of the Tribunal below that already considerable resources have been consumed in dealing with this matter, both on the part of the Police and the Tribunal.

18 The main parts of the notice of appeal are filled in by handwriting in a form that makes the message sought to be conveyed by the handwriting nigh on incomprehensible. The notice has attached to it a typed document which continues over 11 pages. This document is expressed more clearly than the notice of appeal itself. Nonetheless this document is extremely hard to follow.

19 NZ claims that the Tribunal was wrong.

20 I am satisfied that the Tribunal took the correct approach in assessing whether the various letters had given rise to a competent internal review application. It made, in my view, a correct finding that the letters did not contain an internal review application. As there was no competent internal review application, it inevitably followed that there could be no external review application to the Tribunal.

21 NZ makes specific reference to her having a mental illness, and appears to be critical of the Tribunal for not allowing her to speak (by telephone) in support of her application. She criticises the decision of the Tribunal to decide to deal with the matter on the papers. The Tribunal explains its decision to deal with the matter on the papers primarily at para [5] of its reasons. It says:

‘5 The psychological condition suffered by NZ prevents her from leaving her home. Any Tribunal proceedings involving NZ are, therefore, conducted by telephone, but she prefers these to be of short duration because she becomes upset easily. The Tribunal conducted conferences with Mr Gaha, representing the Commissioner, and NZ, participating by telephone, on 8 June 2007, 11 July 2007, 20 August 2007 and 13 September 2007. At the conference on 8 June 2007, NZ informed the Tribunal that she was seeking Legal Aid in relation to these proceedings. By letter dated 22 June 2007, Mr Gaha confirmed his application, made orally on 8 June 2007, that NZ’s application be dismissed for lack of jurisdiction. On 11 July 2007 and 20 August 2007, the Tribunal adjourned proceedings pending an outcome to NZ’s application for Legal Aid. NZ subsequently informed the Tribunal that her application for Legal Aid had been refused. At the telephone conference on 13 September 2007, the parties agreed that I should determine the preliminary issue of whether the Tribunal has jurisdiction in this matter “on the papers” and I issued directions for the filing of their written submissions on this issue.’
22 In my view the Tribunal adopted a reasonable and acceptable course in handling the matter the way it did. The evidence took the form of documents. The issues in the case were clearly capable of disposal by consideration of written submissions and examination of documents. Section 76 of the Act provides:
‘The Tribunal may determine proceedings by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties.’
23 The Tribunal gave cogent reasons for the course it took, and did not deny procedural fairness to NZ.

24 Leave should not be granted to allow the appeal to proceed of time. I can find no explanation for the delay in lodging the notice of appeal. I can detect no ground of substance in the appeal. The Tribunal adopted a satisfactory procedure for dealing with the case. The respondent agency would be put to considerable further cost and inconvenience if the appeal was allowed to proceed.

25 I have not referred in any detail to the Police Force’s notice in reply, nor its submissions filed 4 April 2008. The reply referred to the same difficulties I have experienced in ascertaining precisely what the grounds of appeal might be. The submissions, as I have already done, comment on NZ’s experience in the procedures of the Tribunal. They note that there is no explanation given for the late filing. It will be seen that I agree with the Police Force’s submissions. I also agree with the alternative submission that in any case the appeal lacks substance.

Order

1. Leave to appeal out of time is refused

2. Appeal dismissed.