NZ v Commissioner of Police, NSW Police

[2006] NSWADT 142

Pending Appeal:

CITATION:	NZ v Commissioner of Police, NSW Police [2006] NSWADT 142
DIVISION:	General Division
PARTIES:	APPLICANT NZ RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	053402
HEARING DATES:	11/05/2006
SUBMISSIONS CLOSED:	05/11/2006
DATE OF DECISION:	05/16/2006
BEFORE:	Handley R - Judicial Member
CATCHWORDS:	Dismissal of application - frivolous vexatious misconceived or lacking in substance
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998
CASES CITED:	Attorney-General (Victoria) v Wentworth (1988) 14 NSWLR 481 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 Miriani v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 99 NZ v Commissioner of Police [2005] NSWADT 35 Re Williams and Australian Electoral Commission (1995) 21 AAR 467 Wilde v University of Sydney (EOD) [2004] NSWADTAP 32
REPRESENTATION:	APPLICANT In person RESPONDENT R Burdick, agent
ORDERS:	The proceedings are dismissed pursuant to s 73(5)(h) of the Administrative Decisions Tribunal Act 1997

1 NZ claims that the NSW Police (‘the Police’) contravened the Privacy and Personal Information Protection Act 1998 (‘the PPIP Act’) by delivering a letter addressed to her at her home, by making telephone calls to her, by acting on false information about her, and by storing and distributing false information about her without her knowledge or consent.

Background

2 NZ suffers from a psychological condition that she prevents her leaving her home. She has provided a number of reports from her general practitioner and treating psychologist attesting to this.

3 This matter appears to arise from conflict between NZ and her relatives and a neighbour that led to Apprehended Violence Order proceedings in Waverley Local Court. NZ alleges that her signature has been forged on various documents and that false documents have been provided to the Court. She claims to have suffered distress and psychological injury as a result.

4 NZ alleges that the Police have failed to take action in relation to fraudulent documents and documents on which her signature has been forged, and have failed to action an AVO granted to her by Waverley Local Court. She claims that the Police are holding and distributing false information about her, and that police officers have telephoned her at home, have come to her home making enquiries, and have delivered a letter to her home without her consent. NZ claims she has been victimised by the Police, who have breached her privacy and refused to accord her her rights.

5 NZ first applied to the Tribunal in relation to these alleged breaches of privacy on 19 July 2004. In NZ v Commissioner of Police [2005] NSWADT 35, the President of the Tribunal, O’Connor DCJ, dismissed NZ’s application for lack of jurisdiction, on the ground that NZ had failed to provide the Police with an opportunity to conduct an internal review of the alleged misconduct.

6 NZ states the Police have ignored her many requests to conduct an internal review of the alleged misconduct. She has now produced copies of a number of letters addressed to the Police requesting internal review in relation to alleged breaches of her privacy by the Police: including letters dated 14 March 2003, 10 March 2004, 12 May 2004, 6 August 2004, 19 August 2005, and 10 September 2005.

7 On 14 November 2005, NZ filed a further application with the Tribunal for review of the conduct of the Police under the PPIP Act.

Submissions

8 At the hearing on 11 May 2006, I heard oral submissions (by conference phone) from both Ms Burdick and NZ with regard to this application. NZ repeated her claims that the Police have breached her privacy. She contended that the Police hold false and inaccurate information about her, which she wants deleted. She submitted that it would be unfair to dismiss her application for lack of substance without knowing the nature of the conduct, which she alleges breaches her privacy. NZ made lengthy written submissions to the Tribunal following the Planning Meeting on 14 February 2005 which she asked the Tribunal to take into account.

9 Ms Burdick, for the Police, submitted that NZ has failed to identify any conduct by the Police involving breaches of her privacy that could be the subject of an internal review. For the Police to telephone NZ at home or to visit her home in order to deliver a letter or to make enquiries when investigating a complaint, is not a breach of her privacy. It is necessary for the Police to undertake such actions in fulfilling their functions. If, as NZ alleges, the Police are holding documents concerning NZ containing information that is incorrect, then she has a right to apply for amendment of that information pursuant to the Freedom of Information Act 1989 (‘the FOI Act’). The fact that information held may be inaccurate is not a breach of privacy.

10 Ms Burdick said, as indicated at the Planning Meeting on 14 February 2006, the Police submit that NZ’s application to the Tribunal is frivolous, vexatious, or lacking in substance and should be dismissed pursuant to s 73(5)(h) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’). NZ should not be permitted to continually lodge applications for review with the Tribunal, with a substantial cost in terms of resources and time.

11 Having heard submissions from the parties, I told them that I would deal with Ms Burdick’s application as a preliminary matter and, if I rejected this application, I would then proceed to review the handling of NZ’s application under the PPIP Act. NZ asked that I deal with her application ‘on the papers’.

Discussion

12 The PPIP Act provides for the protection of personal information and the privacy of individuals. The privacy of individuals is protected by regulating the collection, use and disclosure of personal information. The term ‘personal information’ is defined in s 4 of the PPIP Act. Section 4(1) states “‘personal information’ means information or an opinion ... about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion”. Certain information is excluded from the definition by reason of s 4(3).

13 The jurisdiction of the Tribunal to conduct a review under the PPIP Act arises by virtue of s 55, on the application of a person who is aggrieved by the conduct of a public sector agency and who is not satisfied with the outcome of their application for an internal review by the agency made pursuant to s 53. I note that s 53(6) states that where an application is made for review, the review must be completed as soon as is reasonably practicable in the circumstances. If a review is not completed within 60 days of the application being received, the applicant is entitled to apply to the Tribunal under s 55 for a review of the conduct concerned.

14 I am satisfied that NZ has applied to the Police for internal review on a number of occasions, and that at least 60 days have passed since the receipt of those applications. Thus, in my view, I have jurisdiction to hear NZ’s application pursuant to s 55 of the PPIP Act. However, the difficulty encountered by the Police and facing the Tribunal, is that NZ has not identified any specific conduct by the Police that could involve breaches of her privacy under the PPIP Act. It appears that the Police, having initially responded to NZ’s complaints and found them to be groundless and not involving any conduct to which the provisions of the PPIP Act might apply, have ignored the significant volume of further correspondence received from NZ.

15 I have reviewed the copy correspondence and documents provided by NZ in conjunction with her written submissions. I find it difficult to see how most of these documents have any relevance to an alleged breach of privacy in terms of the protection afforded by the PPIP Act. NZ’s conception of a breach of privacy appears to be a very broad one, encompassing a range of conduct by the Police about which she complains but which, in my view, does not amount to a breach of privacy for which the law provides any legal redress. For example, she complains that the Police have failed to enforce an Apprehended Violence Order she obtained against a neighbour, that the Police have called at her house making enquiries about a complaint, have delivered a letter to her at her home, and have telephoned her in relation to an investigation. NZ seems to be under a misapprehension that the scope of the protection afforded by the PPIP Act is much broader than it is.

16 The Police have applied for NZ’s application to the Tribunal to be dismissed pursuant to s 73(5)(h) of the ADT Act on the ground that it is frivolous, vexatious or lacking in substance. Section 73(5)(h) empowers the Tribunal to dismiss proceedings before it “if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance”.

17 I note Barwick J’s admonition in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, that the power of peremptory dismissal of proceedings is to be exercised cautiously and sparingly. Proceedings can be regarded as ‘vexatious’ if they are instituted with the intention of annoying, harassing or embarrassing the respondent, if they are brought for a collateral purpose such as wasting time or causing delay, are devoid of any practical effect, or are manifestly untenable: Attorney-General (Victoria) v Wentworth (1988) 14 NSWLR 481 at 491; Re Williams and Australian Electoral Commission (1995) 21 AAR 467, at par 30 – par 31; Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65, at par 9 – par 11; Wilde v University of Sydney (EOD) [2004] NSWADTAP 32, at par 10; Miriani v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 99, at par 28 (O’Connor DCJ, President).

18 In my view, NZ’s proceedings are not vexatious. Rather they are both misconceived, in the sense that she appears to misunderstand the scope of the protection afforded by the PPIP Act - believing it to be much broader than it is in fact, and also lacking in substance in so far as she has not identified any specific conduct by the Police that could involve breaches of her privacy under the PPIP Act. I note that if, as NZ alleges, the Police are holding documents concerning her containing incorrect or inaccurate information, then she has a right to apply for amendment of that information pursuant to s 30 of the FOI Act. I am aware, because of the other proceedings on foot before the Tribunal, that NZ is seeking access to documents held by the Police concerning her personal affairs and is currently awaiting a determination on her request for an internal review.

19 In my view, the proceedings must be dismissed.

Decision

20 The proceedings are dismissed pursuant to s 73(5)(h) of the ADT Act 1997.