Christopher Sheehy v Commissioner of Police, NSW Police Force; Steven Rapisarda v Commissioner of Police, NSW Police Force; Christian McDonald v Commissioner of Police, NSW Police Force; Shane Housego v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2017-05-19

Solicitors: Dowson Turco (Applicants) K & L Gates (Respondent) File Number(s): 2016/00378368, 2016/00378369, 2016/00378371 & 2016/00378372

REASON FOR DECISION

This set of four proceedings are applications for review of decisions made under the Government Information (Public Access) Act 2009 (the GIPA Act). They were listed together for hearing on 19 May 2017. When the hearing commenced the parties raised a preliminary issue requiring determination, namely, whether at a planning meeting held on 7 March 2017, the applicants had effectively narrowed the scope of their applications to a single legal issue.
That legal issue was said to be the application of s 169A of the Police Act 1990, under s 14 and Clause 1 of Schedule 1 of the GIPA Act to the information in question.
The Applicants' position was that no such concession had been made at the planning meeting.
The Respondent's position was that it had been made and the hearing should be conducted on that basis.

The applications

The Applicants are four serving police officers. They lodged applications under the GIPA Act seeking review of an internal review decision made by the respondent to refuse (in full and in part) access to the information sought. The information consisted of investigation files concerning an investigation into their conduct.
On the Tribunal application forms after the words "I am seeking a review of the decision on the following grounds" appear the words: "Please see attached factual statement." Among other matters, the attached statements dealt with issues concerning claims of workplace discrimination and work health and safety breaches. There are concurrent proceedings under the Anti-Discrimination Act in this Tribunal which, I understand, relate to those claims.

The evidence

The evidence before the Tribunal on this preliminary issue consisted of: 1. A transcript of the planning meeting on 7 March 2017; 2. The following affidavits filed by the applicants: 1. Nicholas Stewart 7 April 2017 2. Nicholas Stewart 8 April 2017 3. Shane Housego 10 April 2017 4. Shane Housego 1 May 2017.
The parties did not dispute the accuracy of the transcript.
The affidavits were relied upon by the applicants to show that they had always requested the entire file.

The issue for determination

The parties agreed that the issue for determination by the Tribunal was whether there was an express and unambiguous confinement of the issues by the Applicant at the planning meeting on 7 March 2017. The Tribunal's finding on this issue would have consequences for the conduct of the hearing.
It was clear from the evidence before the Tribunal that these proceedings have a protracted history and there has been abundant, if not particularly fruitful, correspondence between the parties regarding the issues in dispute.

The planning meeting

The planning meeting on 7 March 2017 was conducted by Senior Member McAteer. The parties were represented by legal practitioners - Mr Stewart appeared for the applicants and Mr Watts appeared for the respondent. The Senior Member began by emphasising that the Tribunal attempted to implement "quick, efficient, just, cheap resolution."
The following exchange is recorded: "MCATEER: And ordinarily, my very quick reading of it is, sort of, the main argument being run is it not, Mr Watts, the secrecy provisions of the Police Act or something like that? WATTS: That's correct Senior Member. So, this is, you're not for the first time, I think that the Tribunal is going to be asked to look at 169A of the Police Act." (Transcript page 3 lines 2 to 6)
After some discussion the transcript records that the legal representative for the respondent (Mr Watts) later stated: "WATTS: I think, Senior Member, just to be clear, there's been disclosure of a number of documents to the applicant. It's not the case that the entirety of the complaint file which is, to use that term broadly, is what was requested by each of the applicants. It's not the case that the complaint file was resisted in full, it's just… MCATEER: Right. WATTS: … the case that, and when I say that 169A is relied upon, there are various other provisions of course, within section 14 of the GIPA Act… MCATEER: Yes. WATTS: …being not an overriding public interest against disclosure, but the balancing act that must occur under that legislation…." (Transcript page 4 lines 14 to 24)
A crucial part of the discussion, in my view, appears on pages 8 to 10 inclusive, after some discussion of the claim under the discrimination legislation and the mediation, which is not presently relevant. The Senior Member brought the discussion back to the evidence that each party would lead in the GIPA Act proceedings and asked questions relating to the nature of the dispute. He noted that the applicants had attached background information to their applications (which I find were most probably a reference to the statements identified above) and noted that review proceedings under the GIPA Act were not about conduct, but about a decision concerning information. The transcript then records the following: "MCATEER: …The other way this matter would ordinarily run is that the respondent would put on, following the procedural direction, the closed material on a confidential basis and have an index of all the documents released. Here they are. And, I suppose, would put on submissions and potentially evidence as to… Is it just an argument about what the meaning of that section is or…? STEWART: Yeah, it is pretty academic. WATTS: Well, I'm in my friend's hands about that. If he tells me that this case is about 169A, then I'm very happy to have that… MCATEER: Sirs, I'm happy to leave you to talk for 5 minutes. I'm sure you'll be civil about it.. .[inaudible] STEWART: Yeah. Well… MCATEER: Alright? STEWART: No, I think it's a waste of time. We've talked and we've had plenty of opportunities to talk. Yeah. MCATEER: But have you addressed this issue? Like the scope of what the case is? STEWART: Yeah we have but… MCATEER: Let me, let me have a look at the decision, cause that's what's under review. That's what you're appealing. STEWART: Sure. MCATEER: [Inaudible} So the, the information not held, that's not disputed, is that right? STEWART: Could you say that again please? MCATEER: Well, I'm looking at the decision, the information not held. So there's a notification of information not held and they say there's, search of the COPS database produced no records within the scope of the application about one of your clients. Just looking at Mr Sheehy's matter. STEWART: Yep. MCATEER: Professional Standards Command advised that no warrants exist or special surveillance. And then we have our secrecy laws. In relation to these complaints, the complainants specifically refuse to be identified. So is it just the complainant's identities? STEWART: It's yes, it's the complainants' identities. MCATEER: So, yeah. So presumably there's one or more persons… STEWART: That's right. MCATEER: Who, presumably, are serving officers or employees or something of that nature…. So it must just get down to that section, does it? WATTS: That's a submissions case. STEWART: It will, it will. MCATEER: Alright, we'll set all four of them down for one day. And it'll just require submissions, I think. Are you content with that Mr Stewart? STEWART: I am." (Transcript page 9 line 1 to page 10 line 11)
Senior Member McAteer went on to say that it would "just require submissions" and "this will be the substantive hearing… Even though it smells like a preliminary hearing."

The respondent's submissions

Mr Seck submitted that it was incumbent on the applicant to identify the grounds of its application, which it had failed to do. He submitted that at the planning meeting both parties were represented by competent legal practitioners. Therefore the applicants should not be able to argue that they inadvertently made a concession. He relied in particular on the following exchange between the Senior Member and Mr Stewart: "…So is it just the complainant's identities? STEWART: It's yes, it's the complainants' identities. MCATEER: So, yeah. So presumably there's one or more persons… STEWART: That's right. MCATEER: Who, presumably, are serving officers or employees or something of that nature…. So it must just get down to that section, does it? WATTS: That's a submissions case. STEWART: It will, it will."
From this he argued that the Tribunal should find that the applicants had clearly and knowingly agreed that the issue to be determined concerned only the identities of the informants. As a result, the matter was programmed expeditiously by the Senior Member.
He cited the decisions of Fuchs v Commissioner of Police [2016] NSWCATAD 198 and Fuchs v Commissioner of Police (No. 2) [2017] NSWCATAD 92 as authority for the proposition that where a party has narrowed the scope of its application and that indication has been acted upon by the Tribunal, the party cannot revisit it. He also cited the guiding principle in s 36 of the Civil and Administrative Tribunal Act 2013 (the CAT Act) that proceedings be just, quick and cheap.
He submitted that it was clear on the face of the transcript that the parties knew that the issues had been narrowed. This was clear by their agreement to directions made for a case that was based around submissions. It was the applicants' responsibility to identify what the grounds of their application was. In this regard he referred to CCB v Department of Education and Communities [2015] NSWCATAD 145.
If the applicants had wished to revisit the matters decided at the planning meeting, they should have applied to have the matter relisted before the Tribunal. They had not done so.
It was not submitted that the respondent would suffer prejudice if the applicants' case covered grounds other than s169A. However, the respondent had prepared for the hearing on the basis that s 169A was the only issue.

The applicants' submissions

Mr Eurell submitted that the evidence showed that the applicant had always requested the entire files sought, and did not alter that position at the planning meeting. His clients had been provided with documents which had been severely redacted, and the respondent was required to justify those redactions. The applicant's rights to access to any part of the information should not be found to have been waived without clear unambiguous evidence. The decision in Fuchs could be distinguished, in his submission, on the basis of different facts; as in that case the applicant's solicitors had conveyed his position in writing and it was the Tribunal which had adopted it (in the absence of the applicant) as the basis on which to proceed.
In his submission, nothing adverse to the applicants could be inferred from the directions made at the planning meeting. They reflected that no witnesses were required to be called, which was consistent with his clients' position. He noted that in the passage cited above, Mr Stewart did not agree that the applicants' case was "just" the identity of the complainants. Correspondence after the planning meeting indicated that the applicants maintained their rights.
Mr Eurell sought to resist the burden the respondent wished to place on the applicants, of identifying the grounds of their applications. He maintained it was the respondent's role to defend its decision and referred to s 105 of the GIPA Act.

Consideration

I agree that the issue for determination is whether there was an express and unambiguous confinement of the issues by the applicants at the planning meeting on 7 March 2017.
Section 5 of the GIPA Act provides: "5 Presumption in favour of disclosure of government information There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure."
The applications sought access to the information in two investigation files concerning complaints made about them. Section 14(1) of the Act provides: "14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1."
Clause 1 of Schedule 1 provides: "1 Overriding secrecy laws (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information the disclosure of which is prohibited by any of the following laws (which are referred to in this Act as overriding secrecy laws), whether or not the prohibition is subject to specified qualifications or exceptions and whether or not a breach of the prohibition constitutes an offence: … Police Act 1990 - section 169A (Identity of complainant not to be disclosed)".
Section 105 of the GIPA Act provides: "105 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section." …
Section 36 of the CAT Act provides: "Section 36 Guiding principle to be applied to practice and procedure (1) 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) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions."
At the planning meeting, where the parties were both represented by legal representatives, the Senior Member attempted to identify the real issues in dispute so far as possible, in accordance with s 36 of the CAT Act and the Administrative and Equal Opportunity Division Procedural Direction 6. In accordance with s 36 it was the duty of both legal practitioners present, and the parties, to participate in this process.
I find that in the exchange on page 4 of the transcript cited above, Mr Watts drew the Senior Member's attention to the fact that the respondent had relied upon grounds other than s 169A in its decision, including the existence of an overriding public interest against disclosure as referred to in s 14 of the GIPA Act. He did not ask the Senior Member to direct that the applicants provide an outline of their grounds.
At no point did Mr Stewart expressly state that the application could be narrowed. While he made some comments which could be taken to indicate agreement with the Senior Member's suggestion that the case would be a legal argument about s 169A, he also made others which are not consistent with that view. For example when the Senior Member offered them the opportunity to discuss the matter, Mr Stewart responded: "No, I think it's a waste of time." That does not suggest he was planning to make concessions. He did not even agree with the Senior Member's suggestion that the fact that no information was held in the COPS database was not part of the application.
Later he is recorded as saying: "It's yes, it's the complainant's identities" But this could have been said in response to the Senior Member's mention of the issue of the "secrecy laws" or in regard to the whole decision, which the Senior Member had mentioned earlier. Given the context of that exchange, and the fact that the Senior Member had just been referring to the entire decision under review which was "what you're appealing" and then to different parts of that decision, I find that it is more probable that his comment about the identities of the complainants was made in response to the Senior Member's reference to the secrecy laws. In reliance on this finding and the other findings I have made I conclude that Mr Stewart did not expressly confine the scope of his clients' applications to the issue of whether the identities were protected by s 169A.

Conclusion

I find that the applicants have not expressly confined the scope of their application to the issue of the application of s 169A of the Police Act 1990 to the information.
It is incumbent on both parties and their legal representatives "to co-operate with the Tribunal to give effect to the guiding principle" which is, the just, quick and cheap resolution of the real issues in the proceedings (s 36(3) CAT Act). To this end, more needs to be done by the parties and their legal representatives.
Appropriate directions will be made for the further conduct of the proceedings. 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 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: 23 May 2017

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