Trau v Commisioner of Police, New South Wales Police Service

[2001] NSWADT 215

CITATION:	Trau -v- Commisioner of Police, New South Wales Police Service [2001] NSWADT 215
DIVISION:	General Division
PARTIES:	APPLICANT Jerzy Trau RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	013242
HEARING DATES:	07/12/2001
SUBMISSIONS CLOSED:	12/07/2001
DATE OF DECISION:	12/17/2001
BEFORE:	Robinson MA - Judicial Member
APPLICATION:	Dismissal of proceedings - frivolous, vexatious, misconceived or lacking in substance
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Freedom of Information Act 1989 Victorian Civil and Administrative Tribunal Act 1998
CASES CITED:	Trlin -v- Director General, Department of Fair Trading [2000] NSWADT 192 Law Society of NSW v Boland [2001] NSWADT 35 Karekar -v- TAFE Commission of New South Wales [2000] NSWADT 187 Langley v Niland (1981) 2 NSWLR 104 Reyes-Gonzales v Sydney Institute of Technology (1998) NSW EOT (6 March 1998) General Steel Industries Inc v Commissioner for Railways (NSW) 1964 112 CLR 125 Tannock v State of New South Wales (1999) NSWADT 31 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 18 Ravel v Plastral Fidence Pty Ltd [1999] NSWADT 18 (11 May 1999) Beesley -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 Murre (No 2)-v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 175
REPRESENTATION:	APPLICANT In person RESPONDENT C Dawes, solicitor
ORDERS:	1.The applicant’s application for review is dismissed; 2.The parties have 14 days of the date of this decision to file and serve on each other any written application or submission on costs.

1 Before the Tribunal is an application by the respondent agency to, in effect, summarily dismiss the applicant’s application for review of a reviewable decision made under the Freedom of Information Act 1989 (“ FOI Act ”) refusing the applicant access to documents relating to him on the ground that the respondent has conducted an adequate search for them but does not hold the subject documents. The primary FOI application is listed to be heard on 28 February 2002. Directions have already been made about the steps the parties need to attend to before the hearing.

2 The dismissal application is made under section 73(5)(h) of the Administrative Decisions Tribunal Act 1997 (“ADT Act”). That sub paragraph is contained in the ADT Act at Chapter 6 – “Procedure of Tribunal generally”, Part 2 – “Other Procedural Matters”. Section 73(5)(h) provides:

“73 Procedure of the Tribunal generally
(5) The Tribunal: …
(h) may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance.”
The Course of the FOI Applications
3 It is not contested between the parties that the applicant made an FOI application to the respondent on about 7 March 2001 seeking “all documentation concerning an investigation by Police of criminal matters in relation to the applicant’s dismissal from Sydney University” (“ the first FOI request ”). The respondent undertook searches and, as set out in the determining officer’s decision dated 19 April 2001, located a number of documents which were released to the applicant in full (exhibit 2). The applicant was not satisfied that adequate searches had been undertaken in respect of four identified documents (listed in exhibit 3). The applicant commenced proceedings in the Tribunal (file no 013084) and attended planning meeting on 17 July 2001. At that planning meeting, the applicant was represented by counsel. During the course of that planning meeting, the respondent agency indicated that it could not locate the four identified documents and maintained its searches for them were adequate. The applicant, through his counsel, consented to dismissal of the proceedings and they were, by consent of the parties, dismissed.

4 On 15 August 2001, the applicant made a further written request for documents under the FOI Act (“the second FOI request”). He asked for four identified documents, three of which he had already asked for in the first FOI application. He asked for access to:

1 A “confidential opinion” by the Crown Advocate RO Blanch dated 6 February 1986 issued for the Attorney General;
2 A report by Sargent Gillett dated 23 June 1992;
3 A letter by the NSW Premier to the Minister for Police of June 2000; and
4 The applicant’s letter to the Minister for Police dated 22 June 2000.
5 The second FOI request was refused by the respondent in a determination dated 10 September 2001. The respondent’s officer decided access to documents numbered 1 & 2 be refused because the respondent had already searched for the documents and could not locate them. Documents numbered 3 & 4 were searched for and they could not be located. The applicant sought internal review of the determination. On 27 September 2001, the General Manager of the respondent determined that the documents identified in the second FOI request had already been the subject of “full and exhaustive searches” and that no such documents could be located. Access was therefore refused. The applicant has applied to the Tribunal seeking a review of that decision. The parties accept that the Tribunal has jurisdiction to review that reviewable decision.

6 At a planning meeting conducted before the Tribunal on 15 November 2001, the matter was set down for a final hearing on 28 February 2002 and directions for a timetable were made.

7 On 16 November 2001 the respondent notified the Tribunal in writing that it wished to make this dismissal application. Directions were made for the early exchange of evidence and submissions before the hearing of the application which took place on 7 December 2001.

8 At the hearing of the application before the Tribunal, the applicant was not represented and the respondent was represented by a solicitor.

9 The respondent tendered some relevant documents and read two affidavits going to the question of the adequacy of the respondent’s search for the documents. The affidavit of Jason Bywater sworn 27 November 2001 and the affidavit of Peter McCann sworn 28 November 2001 were read by the respondent. There was no objection by the applicant to the reception of this evidence and the applicant did not require either of the deponents to be cross-examined. Accordingly, I accept their evidence as to the searches they each undertook in relation to the applicant's first and second FOI requests.

10 The evidence establishes that the respondent’s officers searched for the identified documents on a number of occasions by way of searches, inter alia, of the computerised “Records Management System” (RMS) and the system styled “Tower Records and Information Management” (TRIM). The TRIM system took over from the RMS system in about 1997. In addition, exhibit 2 describes thorough searches that were made of the respondent’s index books and manual records in response to the applicant’s first FOI request.

11 The applicant did not adduce any affidavit or oral evidence. He tendered three exhibits. The first exhibit is a copy of 7 letters the applicant has written to, inter alios, the Attorney-General for NSW and the Minister for Police asking about a number of matters of personal concern to the applicant and requesting the provision of documents (exhibit A). The primary purpose of the tender of the document was apparently to assist the applicant in making his submission that he thought that provision of these documents was “critical” to him in his continuing endeavors in seeking to further agitate issues of an alleged defamation of him by a University Professor and of his alleged unfair dismissal from the University. I accept, for the purposes of this application, and to the limited extent that it is or might be relevant, that the documents requested are of considerable interest to the applicant. I note that the alleged unfair dismissal appears to have occurred in about 1978.

12 The second exhibit is a copy of a letter from the then Attorney General for NSW to the then Minister for Police in NSW dated (it is agreed) sometime in the 1990’s (exhibit B). The precise date is unable to be determined on the face of the copy of the document before the Tribunal. It is agreed between the parties that this document is a copy of a document released to the applicant pursuant to his first FOI request. The applicant submits the significance of this document is that it demonstrates that, at least on this occasion, a copy of Ministerial correspondence has made its way from the respective Minister’s offices to the respondent’s files or records. He says that this demonstrates that documents numbered 3 & 4 should be in the possession of the respondent.

13 I do not accept this submission for a number of reasons. The uncontradicted evidence establishes that documents numbered 3 & 4 were searched for and were not located. Even if the applicant is correct in his submission that Ministerial correspondence makes its way to the respondent’s records from time to time, it plainly did not do so on this occasion. In any event, it is apparent from the description of those documents, that if they exist, they would reside with the Premier or the Minister for Police, and not with the respondent.

14 The applicant tendered a 7-page report of the NSW Police Service’s Major Crime Squad South West, dated 23 June 1992 concerning his representations and his 4-page reply to the then Commander of that squad dated 19 July 1992 (exhibit C). The applicant contends that the 7 page report is in fact an expurgated copy of the original report by Sargent Gillett dated 23 June 1992, document numbered 3 in his second FOI request. The author’s name appears to be deleted from this copy. The respondent did not contest this assertion made at the hearing and it is accepted by the parties that the respondent was provided with a copy of the 7-page report prior to the commencement of these proceedings and it had specifically been searched for by the respondent’s officers.

15 As to the first numbered document sought by the applicant in these proceedings, the confidential opinion by the Crown Advocate dated 6 February 1986, the applicant submitted that he had already made a request of the NSW Attorney General under the FOI Act for access to be given to him to that document and that access had been refused on the grounds that the document was exempt under that Act. The applicant did not appeal that decision to the Tribunal, although he indicated that he still objects to it.

16 It appears to me that the following is the position in relation to the four documents identified in the applicant’s second FOI request: The applicant has already been refused access to the first numbered document by the Attorney General in an FOI application he did not pursue at the time. It is a confidential document. The respondent agency could not locate it in searches in response to the first and second FOI requests. I am satisfied it is not held by the agency. As to the second numbered document, the applicant already has a substantial copy of it (exhibit C) and the respondent contends that if it did once have a copy of it (which it accepts it did) it no longer does. As to the third numbered document, the applicant could not assure the Tribunal it even exists. If it does exist, it is certainly in the possession of the Minister for Police. I accept it is not held by the respondent agency. If the applicant wishes to be provided a copy of the document, he should apply to the Minister direct under section 35 of the FOI Act which provides for a person to have a legally enforceable right to be given access to a Minister’s documents in accordance with the FOI Act. As to the fourth numbered document, this is the applicant’s own letter to the Minister for Police. If he has failed to keep a copy as at the time he sent it, he can also request access to it in the same manner as for document numbered three. I am satisfied it is not held by the respondent agency.

17 During the course of the hearing of the respondent’s dismissal application, I asked the applicant whether he would have put anything further to the Tribunal by way of evidence in addition to what he put at the hearing on 7 December 2001. He said he would have not sought to adduce any additional evidence other than that he would have sought to adduce the oral evidence of an officer of the NSW Director of Public Prosecutions, Mr Martin Flory as to the importance (to the applicant) of the first numbered document. I doubt that such evidence would have assisted the applicant in any event, as I am satisfied, as I have said, that for the purposes of this application the applicant regards the document as significant.

Dismissal Pursuant to Section 73(5)(h) of the ADT Act
18 The respondent based its dismissal application on the grounds of the FOI application being misconceived or lacking in substance. In particular, it was submitted that the application was misconceived as the first FOI request was the subject of Tribunal proceedings that were dismissed and the applicant should not be permitted to “re-litigate” the issues. The respondent cited Trlin -v- Director General, Department of Fair Trading [2000] NSWADT 192 in support. In that case, the Tribunal considered the re-litigation issue in the context of the principles of res judicata and issue estoppel. The Tribunal considered (at [16]) there that:

“… good reason must be shown for the Tribunal to depart from the general practice of prohibiting the relitigation of facts and questions of law, which have already been decided.”
19 In the specific context of section 73(5)(h) of the ADT Act, the Tribunal said (at [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 issues, will fall into one or more of those categories and will not be permitted to proceed.”
20 Section 73(5)(h) of the ADT Act is similar to section 42B of the Commonwealth Administrative Appeals Tribunal Act1975 (Cth) which was inserted into that act in 1993. The federal cases on that provision hold that the section seeks to prevent matters being heard which constitute a re-litigation of decided Tribunal matters (see, eg: Re Coopers and Repatriation Commission (1005) 38 ALD 164). A further similar provision is section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (VIC). That provision is a little wider in terms than the NSW counterpart in that it includes express provision for dismissal on the grounds of abuse of process (cf: Law Society of NSW v Boland [2001] NSWADT 35, which considered abuse of process in the context of a dismissal application under section 73(5)(h) of the ADT Act).

21 However, the present case does not relate to a matter that has formally been “decided” by the Tribunal. The earlier Tribunal proceedings here were dismissed by consent at a planning meeting. There were no hearing of the merits, findings of fact or decision made upon the reception of evidence.

22 The respondent further relied on Karekar -v- TAFE Commission of New South Wales [2000] NSWADT 187 in seeking to argue that the applicant misconceived his application in that there was no factual basis for the assertion by the applicant to the effect that the respondent did in fact possess the documents sought under the FOI Act. That case was a summary dismissal application made under section 111(1) of the Anti-Discrimination Act 1977. That Act provides for wider powers to strike out or dismiss proceedings than does section 73(5)(h) of the ADT Act. The Tribunal said (at [35] to [38]):

“35 While there is no commonly accepted definition of the terms "misconceived" and "lacking in substance", the terms have been considered by many courts and tribunals in the context of interpreting anti-discrimination legislation at both the State and the Commonwealth levels. We consider it is appropriate to describe a complaint as "misconceived" or "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations, or that the allegations lack merit. This is consistent with the approach adopted in Langley v Niland (1981) 2 NSWLR 104 at 107 and Reyes-Gonzales v Sydney Institute of Technology (1998) NSW EOT (6 March 1998).

36 We are also of the view that a Tribunal should exercise its discretion to dismiss a complaint summarily with exceptional caution and only if the circumstances clearly warrant such action (see General Steel Industries Inc v Commissioner for Railways (NSW) 1964 112 CLR 125; Tannock v State of New South Wales (1999) NSWADT 31 (11 May 1999)). The need for caution is even more apparent in cases where a s 111(1) application is made prior to the adducing of the Applicant's evidence at the substantive hearing.

37 In the circumstances of the present case, in order to ascertain whether the complaint is "misconceived" or "lacking in substance", we propose to take the Applicant's foreshadowed evidence at its highest, so as to enable us to determine whether he could possibly substantiate a complaint under the Act : see Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 18 at 13-14; Ravel v Plastral Fidence Pty Ltd [1999] NSWADT 18.

38 In essence, if we are of the view that the conduct complained of could not possibly amount to a contravention of the relevant provisions of the Act, we are bound to find the complaint is either "misconceived" or "lacking in substance". If we are not so persuaded, clearly this ground of the Respondent's application under s 111(1) of the Act must fail.”

23 While these observations were made in the anti-discrimination context, they are of some guidance to the Tribunal in its consideration of the proper application of section 73(5)(h) of the ADT Act. Bearing in mind that the applicant stated he effectively had no challenge of substance to make to the evidence of the respondent, I consider that the applicant’s “allegation” that the documents he sought under the FOI Act are or remain in the possession of the respondent has no sufficient factual basis and lacks merit for the reasons expressed earlier. Even if I am wrong in that view, I consider that the full merits of the applicant’s case has effectively now already been heard by the Tribunal in hearing the dismissal application. The applicant did not challenge any of the affidavit evidence of the respondent as to the thoroughness of the searches conducted.

Adequacy of Search in FOI Matters
24 The proper approach of the Tribunal to consideration of the adequacy of searches by agencies for documents held by them in answer to FOI Act requests is set out in Beesley -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 52. In that case, the Tribunal decided that it is proper in appropriate cases for the Tribunal to inquire into and decide the question whether or not an agency adequately searched for the documents and whether or not the agency holds the said documents. That decision was approved of and applied by Deputy President Hennessy in Murre (No 2)-v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 175 at [16] & [17].

25 In Beesley’s case, at [19], the Tribunal said:

“All that the Tribunal can do is to assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavors to satisfy them.”
26 In the present case, I have assessed all the evidence and I have decided that the applicant’s suspicions to the effect that the respondent has not conducted an adequate search to be unfounded and unsupported by the unchallenged evidence of the respondent. I consider the agency’s efforts to locate the documents as satisfactory. Accordingly, on the basis of the matter having been fully heard and argued, I am not minded to direct any further searches of the respondent’s records and systems in the present case.

27 I determine the applicant’s application for review is dismissed.

28 As the representative for the respondent sought to make an application as to costs, I direct the parties have 21 days from the date of this decision to file and serve on each other any written application or submission on costs.