Choi v Commissioner of Police, New South Wales Police

Interlocutory applications

1. The application for access to government information was made on 13 November 2018 and determined by the Commissioner on 12 December 2018. The Commissioner produced a number of documents in redacted form and otherwise determined that he did not hold the information sought. Ms Choi sought review of that decision by the Tribunal.

Extension of time

1. Prior to the hearing in the Tribunal, the Tribunal acceded to a request by the Commissioner to extend the time for complying with procedural directions. Ms Choi sought to have that decision set aside under reg 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW). That application was refused: Choi v Commissioner of Police, NSW Police Force [2019] NSWCATAD 191. Ms Choi challenged that decision in her appeal to the Appeal Panel. The Appeal Panel concluded that the decision had caused no prejudice to Ms Choi and had in any event been superceded by subsequent orders and the final decision of the Tribunal. Questions 16 and 17 specified in Ms Choi's draft notice of appeal in this Court seek again to challenge the decision refusing to set aside the decision extending the timetable. The proposed challenge is without merit and in any event is futile, for the reason identified by the Appeal Panel.

Refusal to issue summonses

1. Questions 5, 6 and 21 concern applications made by Ms Choi for the issue of seven summonses to give evidence. The applications were first refused by a Tribunal Registrar on 16 October 2019. Ms Choi sought to have those refusals reviewed. Principal Member Parsons directed that the review application be heard with the substantive matter. In the substantive decision at first instance, the Tribunal refused to issue the summonses, finding that they lacked a legitimate forensic purpose and instead sought to conduct a "de facto review" of the investigation undertaken by police: Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAD 95 at [65].
2. Questions 6 and 21 challenge the reasonableness of that decision. Framed in those terms, they have the appearance of raising a question of law. However, as submitted by the Commissioner, Ms Choi's summary of argument makes plain that the questions raised are questions of fact concerning findings as to her purpose in seeking the issue of the summonses.
3. Question 5 is concerned with the direction made by Principal Member Parsons on 18 October 2019 that the application for review of the Registrar's decision refusing to issue the summonses would be dealt with at the substantive hearing. The Appeal Panel determined at [68] that Principal Member Parsons' direction was not a "decision" falling within the Appeal Panel's internal appeal jurisdiction but was "merely a decision to make a decision at a later time". Question 5 challenges that conclusion, asking whether, contrary to the Appeal Panel's determination, it did have jurisdiction to review the direction. Ms Choi submits that the direction was a "decision" within the meaning of s 5(1)(a) of the Civil and Administrative Tribunal Act. That is a question of law but it is not one that warrants a grant of leave. Leaving aside the apparent lack of merit in the argument, the effect of the direction has now been superceded by the determination of the application on its merits by the Tribunal.

The Tribunal's jurisdiction

1. A guardian ad litem was appointed for Ms Choi in proceedings in the Tribunal in CEU v University of Technology [2018] NSWCATAD 185 and Choi v Ombudsman [2018] NSWCATAD 248. Question 14 asks whether the Tribunal had authority to hear and determine Ms Choi's application without appointing a guardian ad litem in circumstances where the decisions in those matters were not revoked. As acknowledged by the Commissioner, the question of whether the proceedings could be heard in the absence of a guardian ad litem is a question of law. However, the Commissioner noted that the issue was not raised before the Tribunal or the Appeal Panel and accordingly that it is not a matter on which the Appeal Panel has made any finding. The Commissioner further submitted that the specificity of the 2018 orders was consistent with the statutory scheme and with the principle that the question of whether a person has capacity is specific to the particular context. We are not persuaded that this is a question which warrants a grant of leave.

Proceedings in the Appeal Panel

1. The Tribunal made its determination on 3 April 2020. Ms Choi appealed to the Appeal Panel. The hearing took place on 18 September 2020.

Appeal Panel's refusal to adjourn

1. Ms Choi did not appear before the Appeal Panel. The evening before the hearing, she applied for an adjournment on medical grounds. The Appeal Panel refused that application and heard the appeal in her absence. In reaching that decision, the Appeal Panel had regard to the "guiding principle" in s 36 of the Civil and Administrative Tribunal Act which provides: The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
2. Question 15 as originally framed asked whether the refusal of the adjournment on that basis despite Ms Choi's medical condition and without considering her application to "disqualify" the Judicial Member was consistent with certain provisions of the Civil and Administrative Tribunal Act. As to the position of Judicial Member Hennessy ADCJ, the Commissioner noted that, although the issue of disqualification was referred to in correspondence, no recusal application was ever made by Ms Choi. Ms Choi then amended question 15 to delete reference to any application and instead raised the question whether it was reasonable for Senior Member Molony (who constituted the Tribunal) and Judicial Member Hennessy ADCJ (who presided in the Appeal Panel) to deal with the matters. The amendment does not cure the problem. In the absence of any application for either member to recuse himself or herself, no complaint should be entertained at this stage. As to the refusal of the adjournment, that was a discretionary decision of the Appeal Panel on a matter of procedure and so attracts the restrained standard of review. No question of law concerning that decision such as to warrant this Court's consideration has been identified.

Failure to produce the "audit trail" or to adjourn for that purpose

1. The Appeal Panel addressed a question raised by Ms Choi concerning the non-production by the Commissioner of documents referred to by Ms Choi as "audit trail" documents. The Appeal Panel noted that Ms Choi had not explained what she meant by "audit trail". It may be inferred from the kind of documents sought under that label ("the GIPA instruction sheet", "log reports" and "audit reports") that her contention was that the documents produced by the Commissioner should have included documents that would enable her to audit the adequacy of the production.
2. Before the Appeal Panel, Ms Choi contended that the Commissioner's failure to produce such documents was unreasonable and that the Tribunal should have "reserved" (presumably meaning adjourned) its proceedings pending the resolution of other proceedings in the Tribunal in which the same documents were sought. The Appeal Panel rejected those contentions for the brief but cogent reasons stated at [61]-[62] of its decision. Questions 9 and 10 in the summons in this Court seek to rehearse the same points. As with other questions raised by Ms Choi, although framed by reference to the concept of legal unreasonableness, those questions in truth seek merits review of the decisions below. Neither raises a question of law of the kind that warrants a grant of leave by this Court.

Whether the Commissioner's Decision is a reviewable decision

1. Question 1 is whether the Commissioner's Notice of Decision is a reviewable decision under s 80(c) or (i) of the Government Information (Public Access) Act. It is not clear how that question could arise for the consideration of this Court. Ms Choi argues that the decision is "still a reviewable decision" even though it has now been reviewed twice. The submission is misconceived.

Questions concerning the Appeal Panel's decision

1. Question 3 identifies a question of law but it is not one that is capable of arising in the present case. Section 4 of the Government Information (Public Access) Act defines the term "government information" to mean "information contained in a record held by an agency". Section 75(1) allows an agency to provide access to government information held by the agency by making and providing access to a new record of that information. The issue raised by question 3 is whether the Commissioner not only authorised but obliged to make and provide access to a new record of certain information allegedly held by the Commissioner. The difficulty is that the Commissioner decided that he does not hold any government information about the matters in question and the Tribunal affirmed that decision. Accordingly, no question as to how any such information might have been allowed or required to be provided can arise.
2. Ms Choi does not accept the conclusion that the Commissioner does not hold any government information about the matters in question, contending that "information contained in a record" could include information held in the relevant police officers' heads. The Appeal Panel rejected that argument, citing a decision of the Administrative Decisions Tribunal in which it was held that the Government Information (Public Access) Act "is not a vehicle for seeking answers to questions a person might have in regard to . . . action taken by a government agency, or seeking an explanation by an agency as to why particular action was taken": Davison v NSW Department of Education and Training [2013] NSWADT 25 at [3], [24]. We are not persuaded that there is any basis for revisiting the correctness of that decision.
3. Question 2 raises a related question as to whether information obtained by police and allegedly conveyed to the UTS is "personal information" within the meaning of s 4 of the Government Information (Public Access) Act. As already explained in relation to question 3, the information in question is information the Commissioner determined he did not hold. Accordingly, the question of its proper classification cannot not arise.
4. Question 4 replicates a point previously raised and rejected by the Appeal Panel at [44]-[45]. No question of law is identified. As the Appeal Panel correctly identified, Ms Choi's argument on that issue is based on a misconception.
5. Question 7 concerns the reasonableness of the Tribunal's conclusion that the Commissioner had undertaken reasonable searches for the information sought by Ms Choi. Ms Choi contends that certain documents must exist based on her version of events as to the date on which she first reported the assault to police. In the Tribunal, there was a factual issue concerning that date. Senior Member Molony did not accept that there were reasonable grounds for accepting that the documents Ms Choi sought did in fact exist and was satisfied that the searches made by the Commissioner were reasonable in the circumstances: at [83]-[84]. Before the Appeal Panel, Ms Choi contended that the Tribunal based that conclusion on the wrong facts. Noting that this was a ground of appeal that challenged only factual findings, the Appeal Panel refused leave to appeal on that ground. Question 7 again rehearses the same issues. Those issues are purely factual. No question of law is identified.
6. It is difficult to make sense of question 8, which is: "The Police provided a copy of the COPS report printed on 4 December 2016 responding to the access application dated 13 November 2018, which is a breach of s 53(1) of the [Government Information (Public Access) Act]. Or is the copy which was printed 2 years ago from the soft-based COPS system reasonable?"
7. Whatever the point sought to be made, it is one that clearly turns on factual contentions considered and rejected by the Appeal Panel at [22] of its decision. The reference to s 53(1) is obscure and in any event does not convert this into a question of law.
8. Question 11 asks whether the Tribunal's "refusal to exercise its jurisdiction under s 12(2)(e) of the Government Information (Public Access) Act" was reasonable considering the applicant's "serious circumstances". The question is based on at least two fundamental misconceptions: there is no s 12(2)(e) of the Government Information (Public Access) Act and s 12(2) confers no jurisdiction on the Tribunal. Section 12(2) is followed by a note which gives five examples of "public interest considerations in favour of disclosure of information", of which (e) is "Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct." Notwithstanding those misconceptions, the Appeal Panel at [55]-[60] gave careful consideration to the substance of Ms Choi's complaints under this head. No question of law warranting a grant of leave to challenge its conclusion has been identified.
9. Question 13 concerns evidence given to the Tribunal that the disclosure to Ms Choi of information given to police by a named person would prejudice the supply to police of such confidential information in the future. The Tribunal accepted that evidence, rejecting an argument by Ms Choi that a person suspected of a crime is not a "witness". The Appeal Panel concluded that there was no error in the Tribunal's reasoning on that issue. That conclusion is not attended by sufficient doubt to warrant a grant of leave.
10. Question 12 concerns the Tribunal's refusal to refer the matter to the Minister. Section 112 of the Government Information (Public Access) Act allows the Tribunal to refer a matter "on its own initiative" to the Minister or to the Information Commissioner if it is of the opinion than an officer of an agency has failed to exercise a function conferred under the Act in good faith. The Appeal Panel concluded that s 112 does not confer on an applicant the right to apply for a matter to be referred to the Minister: at [60].
11. The Commissioner accepted that the construction of s 112 is a question of law. A submission was also made concerning the authorities relied upon by Ms Choi but it is not necessary to address those. We accept, as further submitted by the Commissioner, that the factual findings of the Tribunal do not support any allegation of misconduct on the part of the Commissioner. Accordingly, the question of referral of the matter under s 112 is moot.
12. Question 18 raises the reasonableness of the Tribunal's failure to order the production of log reports in circumstances where the date of the report to police was in dispute. The Commissioner accepted that the question of whether a decision-maker acted reasonably is a question of law. Counsel noted, however, that the records referred to are the subject of separate proceedings in the Tribunal which are ongoing. As the Appeal Panel made no findings concerning those records, no question of reasonableness arises which could be grounds for appeal to this Court.
13. Question 19 is obscure. It concerns the correctness of the appearances recorded in reported decisions in this matter. It does not raise any question of law.
14. Question 20 (one of the four new questions added by the amended draft notice of appeal) is: "Does the respondent's providing the information in the submissions responding to an Item of the access application during the review proceedings at NCAT have the same meaning of the Respondent's notice of decision responding to an Item of the access application under the GIPA Act?"
15. Counsel for the Commissioner stated that she was not in a position to assist the Court in relation to that ground because she and those instructing her could not understand what it is directed to. We are in the same position.
16. Ms Choi also relied on a notice of motion (not filed but dated 20 May 2021). It is not appropriate to grant any of the relief sought in that motion.
17. For those reasons, we make the following orders: 1. Extend the time for filing the summons seeking leave to appeal to 19 January 2021. 2. Dismiss the applicant's notice of motion dated 20 May 2021 with costs. 3. Dismiss the summons with costs.

Amendments 31 May 2021 - Corrected typographical error on coversheet 01 June 2021 - Corrected typographical error on coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 June 2021