Shoebridge v Commissioner of Police, NSW Police Force
[2017] NSWCATAD 334
•25 October 2017
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New South Wales |
Case Name: | Shoebridge v Commissioner of Police, NSW Police Force |
Medium Neutral Citation: | [2017] NSWCATAD 334 |
Hearing Date(s): | 23 October 2017 |
Date of Orders: | 25 October 2017 |
Decision Date: | 25 October 2017 |
Jurisdiction: | Administrative and Equal Opportunity Division |
Before: | Hennessy LCM, Deputy President |
Decision: | The request by a third party to access “the materials submitted to the Tribunal” in this matter is refused. |
Catchwords: | PRACTICE and PROCEDURE –public access documents - where third party requested access to public access documents lodged by parties in proceedings - where proceedings not finally determined – whether access should be granted to public access documents |
Legislation Cited: | Civil and Administrative Tribunal Act 2013 (NSW), ss 3, 36, 38, 49 and 64 |
Cases Cited: | Hearne v Street [2008] 235 CLR 125 |
Category: | Procedural and other rulings |
Parties: | David Shoebridge (Applicant) |
Representation: | Applicant (self-represented) |
File Number(s): | 2017/00045369 |
Publication Restriction: | Nil |
REASONS FOR DECISION
Mr Shoebridge has applied under the Government Information (Public Access) Act 2009 (NSW), for access to documents held by the Commissioner of Police. On 5 October 2017 a third party, Mr Chalmers, applied to the Tribunal for access to all the material submitted by the parties in this matter. Mr Shoebridge did not object to access being given. The Commissioner of Police objected.
The Registrar refused the access request and Mr Chalmers requested that the application be determined by the Tribunal. On 23 October 2017 I refused the request for access to the documents lodged by the parties. Mr Chalmers has asked for written reasons for that decision.
On 4 July 2017, and again on 3 October 2017, the Tribunal directed the parties to give to the Tribunal, and one another, certain materials including statements. The proceedings are listed for public hearing on 19 December 2017.
A person is entitled to apply to a registrar of the Tribunal to inspect or receive a copy of a document relating to proceedings in the Tribunal that are finally determined: Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules), r 42. Under Rule 42 and NCAT Policy 4, (January 2016) - Access to, and Publication of, Information Derived from Proceedings in the Tribunal, access by non-parties is generally limited to “public access documents” after proceedings have been finally determined. The circumstances in which a proceeding is “finally determined” are explained in Rule 42(7). Rule 42(8) provides that “public access documents” include “a statement, affidavit or document admitted into evidence in proceedings held in public” but subject to any of the exceptions in Rule 42(5).
The principles on which Rule 42 and NCAT Policy 4 are based are also relevant when the Tribunal, rather than the Registrar, is deciding whether to give a third party access to documents lodged in proceedings. In addition, the objects of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and the ‘guiding principle’ are relevant: The following objects are particularly relevant:
(1)“to ensure that the Tribunal is accessible and responsive to the needs of all its users”: NCAT Act, s 3(c);
(2)“to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible”; NCAT Act, s 3(d);
(3)“to ensure that the Tribunal is accountable and has processes that are open and transparent”: NCAT Act, s 3(f); and
(4)“to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members”; NCAT Act, s 3(g).
The Tribunal’s ‘guiding principle’ is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”: NCAT Act, s36.
Provided it complies with the rules of natural justice, the Tribunal “may determine its own procedure” and is to “act with as little formality as the circumstances of the case permit”: NCAT Act, s 38 (1), (2) and (4). The Tribunal is to ensure that “parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings” and that “all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue”: NCAT Act, s 38(5)(c) and s 38(6)(a).
There are some potential restraints on providing third parties with access to material lodged by a party, even if that party does not object. These include where the Tribunal makes orders restricting the disclosure of information or material: NCAT Act, s 64. Hearings are open to the public unless the Tribunal orders otherwise: NCAT Act, s 49.
Transparency, accessibility and accountability are all principles which may support members of the public having access to material that parties lodge in proceedings. The issue in this case is at what stage of the proceedings should that material be required to be disclosed when a party objects to the disclosure. The hearing is generally the first opportunity that a member of the public has to obtain information about the proceedings. Before the hearing, the Tribunal directs parties to lodge documents and to provide that material exclusively to the other party. The material is lodged to ensure that all relevant material is disclosed to the Tribunal and that parties have an opportunity to respond to that material.
A party may not ultimately rely on all the material it has lodged. In addition, the Tribunal may decide the material is not admissible. Balancing all the relevant considerations, my view is that fairness requires that the Tribunal should not disclose that material over the objection of a party until the material has been received in evidence.
Depending on all the circumstances, including whether the Tribunal has made a relevant non-publication order, a party may give a member of the public copies of that party’s evidence before the proceedings have been finally determined. In this case, Mr Shoebridge has agreed to give Mr Chalmers access to his documents. He is not able to give Mr Chalmers access to the material filed by the Commissioner of Police because a party is subject to an implied undertaking not to use another party’s material for any purpose other than for the conduct of the proceedings: Hearne v Street [2008] 235 CLR 125 at [96].
Order
The request by a third party to access “the materials submitted to the Tribunal” in this matter is refused.
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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
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