Saleam v Department of Human Services, Community Services
[2011] NSWADT 216
•12 September 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Saleam v Department of Human Services, Community Services [2011] NSWADT 216 Hearing dates: 3 February 2011 Decision date: 12 September 2011 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: 1.The applicant's application is dismissed pursuant to subparagraph 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1997.
2.The respondent to file and serve written submissions on its application for costs within 21 days of the date of this decision.
3.Within a further 21 days, the applicant to file and serve submissions in reply to an application for costs filed by the respondent (if any).
4.Unless the Tribunal accedes to a request made by a party, with supporting reasons, for the matter of costs to be dealt with at a hearing, the matter will be determined 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.
5.In the event the respondent does not file and serve written submissions on costs in accordance with order 2, by default, the Tribunal makes an order that the respondent's application for costs is dismissed.
Catchwords: Access to documents - application to dismiss review proceedings on the grounds they are misconceived and lack substance - where the proceedings involve parties, subject matter and issues which had previously been determined by the Tribunal and the Appeal Panel of the Tribunal. Legislation Cited: Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 (repealed)
Government Information (Public Access) Act 2009Cases Cited: Commonwealth v Sciacca (1988) 17 FCR 476
Gene Simring v Commissioner of Police, NSW Police [2009] NSWSC 270
In the Application of James Saleam - NSWSC 70078/02 (Unpublished, Hidden J, 16 December 2005)
Johnston v Commissioner of Police, NSW Police Force [2009] NSWADT 172
McGuirk v Attorney-General's Department [2007] NSWADT 138
Midlands Metals Overseas Limited v Director of Customs (1991) 30 FCR 87
Saleam v Director-General, Department of Community Services [2002] NSWADT AP 30
Saleam v Director-General, Department of Community Services [2002] NSWADT 41 Trlin v Director-General, Department of Fair Trading [2000] NSWADT 192
University of New South Wales v McGuirk [2006] NSWSC 1362
Victoria Police v Marke [2008] VSCA 218Category: Principal judgment Parties: James Saleam (Applicant)
Department of Human Services, Community Services (Respondent)Representation: Counsel
M Allars (Respondent)
J Saleam (Applicant in person)
File Number(s): 103116
REasons for decision
Introduction
GENERAL DIVISION (S Higgins, Deputy President): The respondent (the Department of Human Services, Community Services) seeks an order pursuant to sub-paragraph 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1997 (the ADT Act) that the review application of the applicant (Dr Saleam) be dismissed. The grounds relied on by the respondent to support its application is that the applicant is seeking to re-litigate an earlier application he had made in 2001 concerning in effect the same decision of the respondent. That application having been determined by the Tribunal and the Appeal Panel in 2002: Saleam v Director-General Department of Community Services and Ors [2002] NSWADT 41 and Saleam v Director-General Department of Community Services and Ors [2002] NSWADT AP 30.
The applicant contends that his application should not be dismissed as there has been a change in the law, there was a mistake in the earlier decision of the Tribunal and there is fresh evidence.
Background
The applicant's application for review, is an application seeking review of a decision of the respondent, under the Freedom of Information Act 1989 (the FOI Act), to refuse him access to documents he had requested.
The applicant's FOI request was made on 15 October 2009 (the 2009 FOI request). In that request, the applicant said his request was based upon the following factors: '(i) the Freedom of Information Act (1989) and (ii) a natural justice rationale.' The applicant said that his name may be familiar to the respondent and he referred the respondent to two decisions of the Tribunal concerning an earlier FOI request he had made to the respondent in 1998 (the 1998 FOI request).
In his 2009 FOI request, the applicant attached a copy of a schedule of documents, prepared by the respondent for the purpose of his 1998 FOI request. That schedule was a list of the documents, held by the respondent and for which the respondent had determined that access to the applicant be refused on the grounds that the documents were exempt documents under clause 6 of Schedule 1 of the FOI Act (i.e. the personal affairs exemptions). Some documents were also claimed to be exempt under clause 4 (the law enforcement exemption). The documents related to a woman, BZ, and her three children.
In his 2009 FOI request, the applicant asked the respondent to reassemble the documents listed on the schedule of documents and reassess them as to whether he should or should not be granted access to them. His request for reassessment was a qualified one in that he sought access to documents that could reasonably be relevant to a challenge to the evidence given by BZ in criminal proceedings commenced against him in 1987.
The applicant explained that his 'true and only purpose' in making the 2009 FOI request was so that he could make a further application to the Supreme Court for an inquiry into his convictions arising from the 1987 proceedings. The applicant had made such an application in 2005: see In the Application of James Saleam - NSWSC 70078/02 (Unpublished, Hidden J, 16 December 2005). That application was unsuccessful and the applicant asserts that this was due to his inability to seek the issue a subpoena for the production of the requested documents in those proceedings.
In its internal review determination, the respondent refused the applicant access to the documents requested on the same grounds access had been refused previously. It was noted that the Tribunal had affirmed the earlier decision of the respondent and the applicant's appeal to the Appeal Panel had been unsuccessful. The respondent went on to express the view that the applicant had not presented any new information which would warrant consideration being given to the release of the documents.
Although the FOI Act was repealed on 1 July 2010 and replaced by the Government Information (Public Access) Act 2009 , it continued to apply to and in respect of the applicant's applications: see clause 3(1) of Schedule 3 of the Government Information (Public Access) Act 2009.
Relevant legislation
The Tribunal's power to dismiss proceedings is set out in subsection 73(5) of the ADT Act. That subsection relevantly provides as follows:
73 Procedure of the Tribunal generally
(1) ...
...
(5) The Tribunal:
(a) ...
...
(g) May dismiss at any stage any proceedings before it in any of the following circumstances:
(i) if the applicant (or, if there is more than one applicant each applicant) withdraws the application to which the proceedings relate,
(ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise is conceived or lacking in substance,
(iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings, and
(iv) if the Tribunal considers that there has been a want of prosecution of the proceedings,
Issues
There is no dispute that the documents in issue in this application are the same documents that were the subject of the applicant's 1998 FOI request and his 2001 application to the Tribunal and his appeal to the Appeal Panel from the decision of the Tribunal. That the documents are exempt documents under the personal affairs exemption in clause 6 of Schedule 1 of the FOI Act is also not disputed.
The Tribunal's power to dismiss an application under subparagraph 73(5)(g)(ii) of the ADT Act is also not disputed.
What is in dispute is whether the applicant has raised any new evidence or arguments, which justify a further merit review in regard to a determination about documents the Tribunal has already determined to be exempt.
Applicant's argument
The applicant's argument as to why he should be able to re-litigate the decision of the respondent centres around his unsuccessful application for a judicial inquiry into his convictions. In his written submissions filed on 30 November 2010, the applicant said the following:
'... [I] further aver that the absence of these papers from the failed judicial enquiry application (as my earlier submissions have stated) arguably cause this matter to miscarry. There is a conundrum that I seek to resolve: the papers were not present at the Supreme Court application and the Supreme Court did not order them to be produced until an application was granted. The onus was upon the applicant for judicial inquiry to have material (whether formally admissible as evidence or not) which justifies the granting of such an inquiry. Merely stating that something might be present in the DOCS was not enough to have an inquiry ordered. As an inquiry was not granted upon other grounds, whatever was contained in the DOCS material was moot.'
The applicant asserted that his failure to obtain an order for a judicial inquiry had radically altered the 'relevance of the DOCS papers to the criminal convictions.' That alteration he said made his 'personal interest in these papers of such weight that it is of significant public interest' that he be granted access to them. In this regard the applicant relied on the decision of Smart AJ in Gene Simring v Commissioner of Police, NSW Police [2009] NSWSC 270 at [79] where His Honour said: 'If it appeared that the documents could arguably assist in showing that the convictions were unsafe that would be a powerful reason for granting access.'
The applicant also relied on 2 other decisions concerning the proper construction of the FOI Act, decided subsequent to his 2002 Appeal to the Appeal Panel, which he asserted to be of considerable relevance to his current application. The first decision was that of Nicholls J in University of New South Wales v McGuirk [2006] NSWSC 1362 regarding the role of the Tribunal in determining the 'correct and preferred' decision under section 63 of the ADT Act. The other decision was the decision of the Victorian Court of Appeal in Victoria Police v Marke [2008] VSCA 218 in regard to the question of whether a decision maker in determining whether to grant or refuse access to an exempt document under the Victorian Freedom of Information Act 1982 s 33(1)) must assume that a decision to grant disclosure would be a disclosure to the world at large.
Respondent's argument
The respondent argued that the matters raised by the applicant were of no relevance to his application of review of the respondent's decision and to allow his application to proceed would amount to a re-litigation of matters that had already been the subject of his 2002 application to the Tribunal and his subsequent appeal to the Appeal Panel. A re-litigation of this nature it argued was an abuse of process and for this reason the Tribunal should exercise its power under sub-paragraph 73(5)(g)(ii) of the ADT Act and dismiss the applicant's application.
Consideration
The Tribunal's power to dismiss an application for abuse of process - As pointed out by the respondent, a factual findings made by the Tribunal in a previous decision cannot give rise to an issue estoppel in later proceedings to the Tribunal: see Commonwealth v Sciacca (1988) 17 FCR 476 at 480. As pointed out in that decision, the Tribunal exercising merits review jurisdiction acts in an administrative capacity and even where the Tribunal substitutes its own decision, that decision is deemed to be a decision of the original decision maker: see Midlands Metals Overseas Limited v Director of Customs (1991) 30 FCR 87 at 97-8.
However, I agree with the argument of the respondent that the concepts of proceedings being 'misconceived' or 'lack substance' in subparagraph 73(5)(g)(ii) of the ADT Act is reflective of the rationale underlying the legal principles of res judicata and abuse of process. The argument is also consistent with the approach adopted by the Tribunal in Trlin v Director-General, Department of Fair Trading [2000] NSWADT 192. In Trlin at [16] and [18] Judicial Member Britton made the following observations of the Tribunal's power to dismiss proceedings under the predecessor of subparagraph 73(5)(g)(ii) of the ADT Act (i.e. paragraph 73(5)(h)):
16 It appears to me that, as this Tribunal is administrative in nature (although it operates in a quasi-judicial fashion), it is not strictly bound by the rules of res judicata and issue estoppel. Nonetheless, as was said in Tolefa , good reason must be shown for the Tribunal to depart from the general practice of prohibiting the re-litigation of facts and questions of law, which have already been decided.
...
18 In effect s.73(5)(h) allows the Tribunal to safeguard its own process from conscious or unconscious abuse by litigants whose causes of action are frivolous, vexatious, misconceived or lacking in substance. In general terms, an application which is brought on the same grounds as an application which has been previously decided, and which raises no new issue, would fall into one or more of those categories and will not be permitted to proceed.
The Tribunal adopted the same approach in McGuirk v Attorney-General Department (2007) NSWADT 138 and Johnson v Commissioner of Police , NSW Police Force [2009] NSWADT 172.
Has the applicant's unsuccessful application for judicial inquiry raised new issues justifying a re-litigation of his earlier application concerning the same documents? In my view, the fact that the applicant was unsuccessful in his application for a judicial inquiry into his convictions is of no relevance to this application. It is noted that in His Honour's reasons for decision, In the application of James Saleam , at [80], Hidden J said the following after giving a brief outline of the applicant's 1998 FOI request and the decisions of the Tribunal;
80 What is in the Department of Community Services documents is not know. To direct an inquiry to ascertain their contents, in the hope they might be relevant to the matter would not be appropriate.
This remark of His Honour does not give rise to any new issue. On the contrary, it merely demonstrates the applicant's ongoing desire to obtain access to the documents for which he has sought access since 1998. His reasons for doing so have not changed since that time. The remark of His Honour certainly does not give rise to a 'significant public interest' as asserted by the applicant.
For the purpose of this application the issue is whether the applicant has identified any new issues, which would justify a re-litigation of the applicant's 2001 application for review, determined by the Tribunal in 2002 and from which the applicant unsuccessfully appealed the same year.
I have already noted that the applicant's reasons for seeking access to the documents have not changed. For, example in his 2001 application for review he said he sought access to the documents as he believed they would support his allegation that BZ 's evidence at his criminal trial was unreliable and knowingly untruthful: see Saleam [2002] 41 at [7] to [11]. At the time he explained that he was collecting evidence for an application for a judicial inquiry into his convictions. His current application is made for the same purpose and also in respect to the same documents, which the Tribunal found to be exempt documents under the FOI Act.
It is apparent from the published reasons for decision concerning the applicant's 2001 application, the Tribunal considered the issue now raised by the applicant that the exempt documents contained information which the applicant believed would assist in showing that a conviction is unsafe: see Saleam [2002] 41 at [40]. Although expressed differently by the Tribunal, the effect is the same. In my view, the more recent statement relied on by the applicant from the decision of Smart AJ in Gene Simring does not set out any new legal principles to that which was applied by the Tribunal when determining his 2001 application for review. The statement of Smart AJ is no more than a statement of the well-accepted relevant applicable law. In any event, for the purpose of this dismissal application, what is relevant is that the applicant exercised his right of appeal from the decision of the Tribunal, including the Tribunal's application of the applicable law. Accordingly, it is difficult to see how in this case a conclusion can be reached, other than the applicant seeking to re-litigate that which he has already litigated.
Do the decisions of Nicholas J and the Victorian Court of Appeal decisions give rise to new issues? In my view the applicant's assertions in regard to the decision of Nicholas J in McGuirk (supra) and Victoria Police (supra) are misconceived. The fact that these decisions were decided subsequent to the Tribunal's determination of his 2001 application for review does not mean that the applicant should be allowed to re-litigate, essentially the same application he/she had made previously. In my view, to allow an applicant to re-litigate in effect the same application, the applicant must show that the legal principles enunciated in the subsequent decisions are relevant, material and arguably likely to give rise to a different conclusion. This, the applicant has failed to do. In any event, I am unable to see how the principles enunciated in either decision relied on by the applicant are material to his current application as they do no more than clarify principles, which applied at the time the Tribunal made its decision in 2002 in regard to his earlier application concerning the same documents.
Conclusion
For the reasons set out above, I find that the applicant's application is misconceived and lacking in substance. Accordingly, the appropriate order is to dismiss the applicant's application pursuant to subparagraph 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1997.
The respondent has also made an application for costs. Accordingly it is appropriate to make orders for the filing and serving of written submissions in the event the respondent wishes to pursue that application.
I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar
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Decision last updated: 12 September 2011
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