Seven Network v Commissioner of Police, NSW Police Force

[2017] NSWCATAD 31

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Seven Network v Commissioner of Police, NSW Police Force [2017] NSWCATAD 31
Hearing dates:	On the papers
Date of orders:	13 January 2017
Decision date:	13 January 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	The application is dismissed.
Catchwords:	GOVERNMENT INFORMATION – Applicant withdrew proceedings for review of a decision to refuse access to information – Tribunal dismissed proceedings – Whether Tribunal has jurisdiction to review the decision the subject of the proceedings which have been dismissed – No power to renew or reinstate proceedings – Tribunal functus officio - No jurisdiction
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Administrative Decisions Review Act 1997 (NSW) Government Information (Public Access) Act 2009 (NSW) Civil and Administrative Tribunal Regulation 2013 (NSW)
Cases Cited:	Johnson v Veterans’ Review Board (2005) 88 ALD 652; [2005] FCA 1136 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Re Le and Secretary, Department of Education, Science and Training (2006) 90 ALD 83
Category:	Procedural and other rulings
Parties:	Seven Network (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Solicitors: Seven Network (Applicant) Sparke Helmore Lawyers (Respondent)
File Number(s):	1610068

REASONS FOR DECISION

1. These proceedings concern two related questions. The first is whether the Tribunal may reinstate proceedings for review of a decision under the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”) which it dismissed when the applicant withdrew its application. The second is whether it can entertain a new application in respect of the decision which was under review in the proceedings it dismissed.

2. I have found that it does not have jurisdiction to do either of these things.

DETERMINATION OF THE MATTER ON THE PAPERS

3. The parties consented to the jurisdictional issue being determined on the papers. I am satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal and make an order dispensing with a hearing: Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”), s 50(2).

BACKGROUND

4. Seven Network (“Seven”) applied for access to information contained in CCTV footage under the GIPA Act. The respondent, to whom I will refer as the Commissioner, refused access to the information on the basis that there was an overriding public interest disclosure of the information. The Commissioner relied upon cl 3(a) (personal information), 3(b) (contravene a privacy principle) and 3(g) (child’s personal information) of the table in s 14 of the GIPA Act.

5. Seven applied to the Tribunal for a review of that decision (proceedings 1510017).

6. After that application had been made, the Commissioner reconsidered the decision under review. The Commissioner determined to provide Seven with an edited version of the requested footage, with pixilation concealing the identity of persons in the footage.

7. On the same day that the Commissioner provided the copy of the edited footage to Seven, Seven advised the Tribunal that it wished to withdraw its application.

8. One week later, the Tribunal dismissed proceedings 1510017 under s 55(1)(a) of the NCAT Act. Section 55(1)(a) relevantly provides that the Tribunal may dismiss any proceedings before it if the applicant withdraws the application to which the proceedings relate.

9. About a month later, Seven wrote to the Tribunal requesting that the “file be reopened, or at least a new file be opened” in relation to the subject matter of proceedings 1510017. Seven stated in the letter that the Commissioner provided the footage on the basis that Seven withdraw its application, but claimed that the Commissioner had been “heavy handed” in the “pixilation to the extent that the pixilation has been rendered useless.”

10. About three weeks after that, Seven purported to apply to the Tribunal for another review of the Commissioner’s decision which had been the subject of proceedings 1510017 (or, possibly, for a reinstatement of the first review). A representative of Seven stated in the application:

“This matter has already been before NCAT but I accepted informal resolution in good faith at the end of last year. Unfortunately, I was misled as to the quality of the CCTV I would be provided in relation to its pixilation. The pixilation has rendered the CCTV useless. I believe the Commissioner of Police would be able to meet its [sic] privacy obligations without rendering the CCTV useless.”

CONSIDERATION

No power to reinstate or renew the proceedings

11. The Tribunal has no power to reinstate proceedings 1510017.

12. Subsection 55(1) provides a number of bases upon which the Tribunal may dismiss proceedings. Section 55(2) provides that the Tribunal may reinstate proceedings that have been dismissed under subsection 55(1)(c) if it considers that there is a reasonable explanation for that failure. Subsection 55(1)(c) permits the Tribunal to dismiss proceedings where the applicant fails to appear in the proceedings.

13. The circumstance that s 55(2) provides for the reinstatement of proceedings only where the proceedings were dismissed under s 55(1)(c) indicates that the power of reinstatement does not apply where proceedings were dismissed due to the applicant’s withdrawal of the proceedings under s 55(1)(a).

14. There is a power to renew proceedings where an order is not complied with, in cl 9 of Sch 4 to the NCAT Act. However, this only applies to proceedings in the Consumer and Commercial Division. As proceedings under the GIPA Act are allocated to the Administrative and Equal Opportunity Division (see NCAT Act, Sch 3, cl 1(a)), the renewal power under cl 9 of Sch 4 is not available in respect of these proceedings.

15. There is an additional power to set aside or vary a Tribunal decision determining proceedings conferred by cl 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW). This may be exercised if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, or if the decision was made in the absence of a party and the Tribunal is satisfied that the party’s absence has resulted in the party’s case not being adequately put to the Tribunal. Neither of these circumstances pertains in the present case.

16. Accordingly, the Tribunal does not have power to set aside or vary its decision in proceedings 1510017.

No power to review decision the subject of the dismissed proceedings

17. In Seven’s application to the Tribunal and its subsequent submissions, Seven asked the Tribunal to extend time for making its second application. It referred to its application as a “new application” to “open a file that has already been before NCAT”. Seven submits that permitting an extension of time would be consistent with the objects of the NCAT Act, including ensuring that the Tribunal is accessible to users (NCAT Act, s 3(c)).

18. This raises the question as to whether the Tribunal has jurisdiction to review a decision under the GIPA Act which has already been the subject of a review by the Tribunal. For the reasons which follow, I accept the Commissioner’s submission that it does not. Accordingly, the issue of an extension of time does not arise.

19. As the High Court observed in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [7], “as a general rule, subject to a power to correct a slip or an error of expression, a tribunal cannot revisit its own decision because it has changed its mind, or recognises that it has made an error within jurisdiction, or because there has been a change of circumstances.” Neither the NCAT Act, the Administrative Decisions Review Act nor the GIPA Act, expressly or by implication, permits a revisiting of the Tribunal’s decision in reviews of decisions under the GIPA Act, because there has been a change of circumstances, with some very limited exceptions which do not apply: see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [7] and [53]. The NCAT Act only permits the revisiting of the Tribunal’s decision in accordance with s 55(2), and in some other limited circumstances (see, for example, NCAT Act, s 63 (“Power to correct errors”)). If it were otherwise, reviews of the same decision could continue indefinitely and there would be no finality in decision-making (see Johnson v Veterans’ Review Board (2005) 88 ALD 652; [2005] FCA 1136 at [55]). This could not have been intended by the legislature.

20. Once the Tribunal made its determination in proceedings 1510017, it was functus officio; that is, it had “used up all of its powers because it [had] been given the task of reviewing a decision and, having done that, it [had] completed its task”: see Re Le and Secretary, Department of Education, Science and Training (2006) 90 ALD 83 at [12] (concerning the powers of the Administrative Appeals Tribunal); see also Johnson v Veterans’ Review Board (2005) 88 ALD 652; [2005] FCA 1136.

21. For these reasons, the Tribunal does not have jurisdiction to hear or determine Seven’s application. The proceedings must therefore be dismissed pursuant to s 55(1)(b) of the NCAT Act.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 13 January 2017