NZ v Commissioner of Police, NSW Police

[2007] NSWADT 86

CITATION:	NZ v Commissioner of Police, NSW Police [2007] NSWADT 86
DIVISION:	General Division
PARTIES:	APPLICANT NZ RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	073035
HEARING DATES:	4 April 2007
SUBMISSIONS CLOSED:	4 April 2007
DATE OF DECISION:	16 April 2007
BEFORE:	Handley R - Acting Deputy President
CATCHWORDS:	access to documents - right of review - Freedom of Information Act - access to documents - right of review - Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998
CASES CITED:	NZ v Commissioner of Police, NSW Police [2006] NSWADT 332
REPRESENTATION:	APPLICANT In person RESPONDENT C Weiss, agent
ORDERS:	The Tribunal has no jurisdiction to hear NZ’s application filed on 2 February 2007.

REASONS FOR DECISION

1 On 2 February 2007, the Tribunal received an application from by NZ for review of decisions she claims were made by the Commissioner of Police under the Freedom of Information Act 1989 (‘the FOI Act’) and the Privacy and Personal Information Protection Act 1998 (‘the PPIP Act’). The Commissioner contends the Tribunal has no jurisdiction in this matter.

2 NZ has made a number of previous applications to the Tribunal in which her name has been anonymised. A decision in one of those matters is referred to below. To ensure that the anonymisation remains effective, it is necessary to also anonymise her name in this decision.

3 NZ’s application is handwritten and difficult to understand. She states: “Police cause abusive approaches, calls, letters to me. The Police Maroubra have breached my privacy for 3 years. Harassments, interfere, making false allegations to my good name and good character ...” Attached to the application is an internal review decision dated 28 June 2006 made by a delegate of the Commissioner in respect of an application by Ms NZ for access to documents under the FOI Act.

4 Because it was not clear to the Tribunal what decision NZ was asking the Tribunal to review, the Registrar wrote to NZ on 5 February 2007 returning her application and seeking clarification. The Registrar noted that if NZ’s application was for the review of the internal review decision of 28 June 2006 made under the FOI Act, then her application was out of time. If her decision was in relation to a decision made under the PPIP Act, then NZ had not provided evidence of an internal review decision that was reviewable by the Tribunal.

5 On 7 February 2007, the Tribunal received another copy of the application from NZ together with documents relevant to her request for waiver of the fee prescribed for lodging an application with the Tribunal.

6 On 15 February 2007, the Registrar wrote again to NZ, acknowledging receipt of her application and notifying her that since “the nature and extent of the issues you have raised is not clear”, it was necessary in the first instance for there to be a hearing to enable the Tribunal to satisfy itself that it has jurisdiction. NZ replied by letter dated 16 February 2006, received on 21 February 2007, stating that the reason she had lodged her application out of time was because of her illness and her need to rely totally on her son as her sole carer.

7 NZ suffers from a psychological condition (severe agoraphobia and social phobia) that prevents her from leaving her home. She has provided a number of reports from her general practitioner and treating psychologist attesting to this. Even when discussing her application with the Tribunal on the phone, NZ quickly becomes distressed.

8 The Tribunal conducted a hearing on 4 April 2007 to hear submissions from the parties on whether it has jurisdiction in this matter. Ms Weiss, for the Commissioner, submitted, first, that the Tribunal has no jurisdiction to hear NZ’s application for review of the internal review decision made under the FOI Act because this internal review decision was the subject of a decision of the Tribunal on an earlier application made by NZ: NZ v Commissioner of Police, NSW Police [2006] NSWADT 332, determined on 24 November 2006. NZ said her current application is different to the one determined by the Tribunal on 24 November 2006 and deals with a different issue.

9 I have read my earlier decision of 24 November 2006. In that decision, I stated that I could not review that part of the internal review decision of 28 June 2006 that determined that the additional 35 documents identified in NZ’s application for an internal review (and not part of her original FOI application) were outside the scope of her internal review. I noted that NZ had made a fresh FOI application for access to these documents and, should she be aggrieved by the determination of that application and by the outcome of a consequent internal review decision, then she could apply to the Tribunal for a review of that internal review decision. NZ has provided no evidence of any subsequent internal review decision in relation to the fresh FOI application.

10 According to the long established principle of law res judicata pro veritae accipitur, meaning that a judicial decision is conclusive until reversed and its verity cannot be contradicted, once a matter has been litigated and decided by a court or tribunal, it cannot be raised again by the same parties. In my view, this principle is applicable to NZ’s present application under the FOI Act since she appears to be requesting a review in a matter that has already been determined by the Tribunal. Consequently, the Tribunal has no jurisdiction in relation to her application under the FOI Act.

11 Ms Weiss submitted, secondly, that the Tribunal has no jurisdiction in relation to an application by NZ to review a decision made under the PPIP Act because there is no evidence of an internal review decision on an application by her under that Act which would give the Tribunal jurisdiction. NZ submitted that the Police have violated her privacy on numerous occasions and that such an internal review decision has been made. She was, however, unable to provide any evidence of such a decision.

12 The Tribunal has jurisdiction to review a decision under the PPIP Act pursuant to s 55(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.”
13 Thus, an internal review application is a pre-requisite to a review by the Tribunal under this section. In NZ’s case, therefore, in the absence of any evidence of a relevant internal review decision under the PPIP Act, the Tribunal has no jurisdiction.

14 In conclusion, I am not satisfied that the Tribunal has jurisdiction in relation to NZ’s application under either the FOI Act or the PPIP Act. Her application must therefore be dismissed.

Decision

15 The Tribunal has no jurisdiction to hear NZ’s application filed on 2 February 2007.