EFB v Commissioner of Police

Legal Principles

1. Section 58 of the ADR Act obligates the Respondent to lodge with the Tribunal all documents which it considers relevant to the Tribunal's determination of the application for review: 58 DUTY OF ADMINISTRATOR TO LODGE MATERIAL DOCUMENTS WITH TRIBUNAL WHERE DECISION REVIEWED (1) An administrator whose administratively reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal: (a) a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 (3)), and (a1) a copy of any statement of reasons for a decision in an internal review conducted in respect of the administratively reviewable decision, and (b) a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal. (2) If the applicant has not been given a statement of reasons under section 49, the Tribunal may direct that a copy of the statement of reasons lodged with the Tribunal under subsection (1) (a) be given to the applicant within such period or periods as the Tribunal directs. (3) If the Tribunal or President considers that a party to the proceedings would or might suffer hardship if the period of 28 days provided by subsection (1) is not shortened or extended, the Tribunal or President may, at the request of the party, make an order directing that the copies referred to in that subsection be lodged with the Tribunal within such shorter or extended period as is specified in the order. (4) If the Tribunal or President considers that other particular documents (or that other documents included in a particular class of documents) may be relevant to the determination of the application, it may cause a notice in writing to be served on the administrator: (a) stating that the Tribunal or President is of that opinion, and (b) directing the administrator concerned to lodge with the Tribunal, before a date specified in the notice, a copy of each of those other documents that is in the possession, or under the control, of the administrator. (5) The principal registrar of the Tribunal is to grant reasonable access to the applicant in the proceedings to any copy of a document lodged under this section by an administrator. Reasonable access includes, but is not limited to, enabling the applicant to make a photocopy of a document during ordinary business hours. (6) If a party to proceedings before the Tribunal seeks a summons under the Civil and Administrative Tribunal Act 2013 against an administrator for the production of any document and a copy of that document has been lodged with the Tribunal under subsection (1) or (4), the Tribunal may (on such conditions as it considers appropriate) direct the principal registrar of the Tribunal to grant the party access to its copy of the document instead of issuing a summons if access to the document could lawfully be required by the issue of a summons. (7) Nothing in this section requires the disclosure of, or the granting of access to, any document (or a copy of a document) in contravention of any of the following: (a) an order made under section 59 (Objections to lodgment), (b) an order made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013 , (c) section 66 (Effect of Government Information (Public Access) Act 2009 ) or section 67 (Privileged documents) of the Civil and Administrative Tribunal Act 2013 (as applied by section 67 of this Act). (8) For the purposes of this section, a reference to a document in the possession of an administrator includes a reference to a document to which the administrator has an immediate right of access.
2. Section 59 of the ADR Act provides a mechanism by which the Respondent can withhold a document or documents from lodgement which it otherwise would be obligated to lodge with the Tribunal pursuant to s 58 of the ADR Act: 59 OBJECTIONS TO LODGMENT (1) An administrator may apply to the Tribunal before the expiry of the period referred to in section 58 (1) for an order that the administrator not be required to lodge a copy of a document under section 58. (2) On any such application, the Tribunal may make an order that a copy of a document not be lodged with the Tribunal if: (a) it is satisfied that section 67 (Privileged documents) of the Civil and Administrative Tribunal Act 2013 (as applied by section 67 of this Act) operates so as not to require the disclosure of the document, or (b) it considers that, if an application were made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013, it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document.
3. Section 64 of the CAT Act provides the Tribunal with powers to make non-disclosure orders over evidence, documents, and proceedings where "it is desirable to do so": 64 TRIBUNAL MAY RESTRICT DISCLOSURES CONCERNING PROCEEDINGS (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders-- (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Evidence and Submissions

1. The "closed bundle" over which the Respondent sought an order under s 59 of the ADR Act included three event reports, body-worn video footage and a triage form. The Respondent submitted that because this material was available to the decision maker who made the reviewable decision, it had an obligation under s 58 of the ADR Act to provide it with the material being provided to the Applicant and the Tribunal. It therefore was required to seek an order under s 59(1) of the ADR Act that it be excluded from the s 58 material filed, on the basis that, pursuant to s 59(2)(b), if an application were made under section 64 of the CAT Act, it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of that material.
2. The respondent relied on the affidavit of Chief Inspector (CI) Marc Holgate dated 20 March 2020. CI Holgate explained the processing and management of misconduct complaints under Part 8A of the Police Act 1990 and the particular sensitivities involved in the documents which form part of those processes. His evidence was specific to the "triage form" which is created and completed for the purposes of Part 8A of the Police Act 1990. CI Holgate opined that the disclosure of the triage form discloses the process for NSW Police Force to deal with a complaint, records the decision-making deliberative process at an early stage and its disclosure would likely prejudice the performance of this "important integrity function under Part 8A of the Police Act". Its disclosure would hinder and inhibit the ability of the triage officer to engage in frank and honest deliberations. Disclosure could also result in complainants deliberately tailoring their complaints to "engineer a specific outcome" and complainants may not utilise the process as much if they believed it was not strictly confidential. I accept that evidence.
3. The Respondent noted at hearing that it did not intend to rely on the body-worn footage or triage form in the substantive proceedings, and that the event reports referred to in the Confidential Report were also not relied on. When questioned by the Tribunal how that material would therefore be considered "relevant" to the Tribunal's determination of the application for review, the Respondent submitted that because the material had been consulted during the review, it was required to include it in the s 58 material lodged with the Tribunal.
4. The Applicant's submissions included a repetition of her jurisdictional objections which were dismissed by the Tribunal on 12 March 2021. These will not be reconsidered in these proceedings by the Tribunal. Additionally, the Applicant submitted that Part IV of the CAT Act concerning the Tribunal's practice and procedure did not apply to these proceedings, and that s 34C(4)(d) and (e) of the CAT Act should apply instead. Section 34D of the CAT Act concerns the procedure for applications or appeals involving federal jurisdiction and is not applicable to these proceedings because there is no exercise of federal jurisdiction, for the reasons explained in EFB v Commissioner of Police, NSW Police Force [2021] NSWCATAD 55.
5. The Applicant's other submissions were extensive and are summarised by the Tribunal as follows: 1. the Respondent had failed to make the application for an order under s 59 of the ADR Act within the 28 days allowed by s 58 of the ADR Act, and there was no hardship suffered by the Respondent to warrant the extension in accordance with s 58(3) of the ADR Act; 2. the confidentiality orders sought by the Respondent would result in a denial of procedural fairness towards her; 3. The "gag orders" sought under s 64 of the CAT Act involved wide powers which should be applied cautiously, balancing the need for confidentiality with procedural fairness so that they should only be used in "extraordinary circumstances", in the context of narrowly drafted orders; 4. "if you make gag orders it will be used against me in GIPA proceedings", constituting an abuse of process. The gag orders were an attempt by the Respondent to circumvent the considerations for and against disclosure in (concurrent) proceedings under the Government Information (Public Access) Act 2009 (GIPA Act), and the Tribunal should wait until the matters had been considered in the GIPA Act proceedings. The Applicant referred to s 10(1) and 10(2) of the GIPA Act in the context of this submission, which provide: 10 DISCLOSURE AND ACCESS UNDER OTHER LAWS (1) This Act is not intended to prevent or discourage the publication or giving of access to government information as permitted or required by or under any other Act or law that enables a member of the public to obtain access to government information. (2) This Act does not affect the operation of any other Act or law that requires government information to be made available to the public or that enables a member of the public to obtain access to government information. 1. The triage forms were given to the public by the Tribunal under the GIPA Act before; 2. Triage forms were not admissible except regarding the conduct of police officers, because documents created under Part 8A of the Police Act 1990 were not admissible in evidence, which should prevent a gag order. Either the documents were admissible or not admissible; 3. The Applicant's complaint was not investigated by the Police because it was "trivial", which would be inconsistent with s 121 of the Police Act 1990; 4. The documents were not created for the purpose of s 170 of the Police Act 1990, but were only purported to be created for the purpose of s 170 of the Police Act 1990. The documents were falsified;
6. Despite declining the opportunity to cross examine the Respondent's witness, the Applicant objected to his affidavit and made submissions as to the weight which should be afforded almost every paragraph of that affidavit, in addition to the headers used therein. Broadly, the Applicant submitted that several parts of the affidavit were confusing, and contained opinion or hearsay evidence, so there should be no weight afforded to the affidavit evidence by the Tribunal for anything, or very little weight, because the deponent "hasn't said how he knows it", being the opinions and factual matters contained in that affidavit.
7. The Applicant stated that she was the complainant who was the subject of the material in the closed bundle, and she did not wish for that material to be confidential. She believed it would enhance the Respondent's integrity for it to disclose that material, and that disclosure by the Tribunal would encourage proper management of complaints by the Respondent.
8. In reply, the Respondent submitted: 1. The applicant was forewarned by the Tribunal but chose not to clarify or cross examine the deponent on any matters or opinions contained in the affidavit; 2. The applicant did not dispute that the Chief Inspector's opinions were genuinely held. The opinions and material in the affidavit involve cogent opinion which should be given significant weight; 3. The applicant did not point to any real prejudice in the confidential filing of the material. Rather, she suggests the respondent does not consider the documents to be relevant and that this application is brought for a collateral purpose. There is no evidence for that claim. The respondent only places very limited reliance on the documents, which were filed early in the proceedings and in order to strictly comply with his s 58 obligations; 4. Any prejudice arising from this application would be negligible. However, there would be significant prejudice to the functions of the NSW Police Force's integrity and anti-corruption processes arising from disclosure of the material; 5. The applicant complains that there was no evidence of hardship causing the slightly delayed filing of the s 59 application. The s 59 application, signed by the solicitor for the respondent, apologised that the application was not prepared by 28 February 2020 and was filed on 4 March 2020. That is a brief extension, dwarfed by reference to the delays in this matter occasioned by the jurisdictional challenges raised by the Applicant and the vacation of the original hearing date. On the other hand, it would work significant hardship on the respondent if the Tribunal did not determine this application on the merits, given the sensitivity of the information sought to be protected.
9. In reply the Applicant objected to the Respondent's filing of the transcript of the hearing on 25 May 2021 on the grounds that it was inaccurate, which she claimed demonstrated bias. She reiterated that no hardship had been demonstrated by the Respondent to warrant an extension of time for the filing of the s59 application, and that the Respondent had failed to engage with her submissions. She submitted again that the body worn video footage and triage form should be provided to her "if they are relevant" on the basis that such records had been released or disclosed to the public previously, referring to Page v Commissioner of Police [2020] NSWCATAD 163 in relation to triage forms being released by the Tribunal.

Extension of time

1. On my review of the file the Applicant's application for review was filed on 4 December 2019. On 20 December 2019 the matter was listed for case conference by the Tribunal on 21 January 2020. On 21 January 2020 the Tribunal made orders for the filing and service of all material as follows: 1. Commissioner of Police is to give to the Tribunal and the other party the following material: documents under S 58 of the Administrative Decisions Review Act 1997 on or before 28 February 2020. 2. Any application by the Commissioner of Police under Section 59 of the Administrative Decisions Review Act 1997 is to be filed and served on or before 28 February 2020. 3. Any application by the Commissioner of Police regarding the Tribunal's jurisdiction to deal with the matter is to be filed and served by 28 February 2020. 4. [EFB] is to give to the Tribunal and all other parties the following material: evidence including statements, documents and a summary of legal arguments about the alleged conduct and about any financial, psychological or physical harm suffered because of the conduct by 13 March 2020. 5. Commissioner of Police is to give to the Tribunal and all other parties the following material: all evidence including statements, documents and a summary of legal arguments by 20 March 2020. 6. [EFB] is to give to the Tribunal and all other parties the following material: all evidence in reply by 27 March 2020. 7. The proceeding is listed for hearing on 07 April 2020 at 10 at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney for 1/2 day. Notes: The Tribunal notes that the parties will communicate informally in an attempt to resolve the matter. The Applicant will write to the respondent by 14 February 2020 and the Respondent will respond by 21 February 2020.
2. The Respondent was 3 business days late in filing the documents required by orders 1 and 2. The respondent apologised for the delay in its application for miscellaneous matters to both the Tribunal and the Applicant, and offered its consent to the Applicant to extend the timetable of 21 January 2020 in relation to the time for her to file her evidence.
3. Section 58(3) of the ADR Act provides for an extension of time by the Tribunal if "a party to the proceedings would or might suffer hardship" if the 28 days allowed by s58(1) was not extended. Section 41 of the CAT Act also allows the Tribunal to extend that time period: 41 EXTENSIONS OF TIME (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
4. I accept the Respondent's submission that it would suffer significant hardship if an extension of time was not granted for the filing of the material documents pursuant to s 58 of the ADR Act, and the application under s 59 of the ADR Act for the closed bundle to be excluded from that obligation. Excluding that material and application from the Tribunal because of a short delay in complying with the Tribunal's orders would create an enormous difficulty for the Tribunal in ensuring that all relevant material was before it for the purpose of considering and determining the review application. The Applicant has not demonstrated any difficulties or prejudice suffered by her if the brief extension was to be granted. In the circumstances, the Tribunal grants the extension of time for the filing of material under s 58 of the ADR Act and the filing of an application under s59(1) of the ADR Act pursuant to s 58(3) of the ADR Act and s 41 of the CAT Act.

Section 59 order

1. In order for the Tribunal to make an order that the Respondent can exclude the closed bundle from its filing of material pursuant to s 58 of the ADR Act, under s 59(2)(b) of the ADR Act I need to consider whether, if an application were made under section 64 of the CAT Act, it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document.
2. As discussed in Pendrick v Commissioner of Police, NSW Police Force [2021] NSWCATAD 326 at [29] and Pollard v Commissioner of Police, NSW Police Force [2021] NSWCATAD 227 at [32] the effect of an order under s 59 of the ADR Act is: …similar to that of an order which a court might make following a successful public immunity claim. It is that a party is relieved of its obligation to produce a document. It does not follow from the making of an order under s 59 that the administrator will be permitted to rely upon the documents the subject of that order in evidence, without the applicant having access to them. The questions of whether to admit the material into evidence, and whether to make orders under s 64(1)(d) of the NCAT Act prohibiting the disclosure of that material to a party, raise very different issues.
3. An order under s 59 of the ADR Act allowing the Respondent to exclude the subject material from its documents filed pursuant to s 58 of the ADR Act does not mean that the material subject of that order is, in fact, the subject of an order under s 64 of the CAT Act in the remainder of the proceedings. That is an issue that needs to be determined by the Tribunal during the substantive proceedings.
4. There are several issues with the Respondent's application. First is that if, as submitted by the Respondent, the material in the closed bundle will not be relied on by the Respondent in the substantive proceedings, it is difficult to understand how the Respondent would view the material as "relevant to the determination of the application by the Tribunal" within the meaning of s 58(1)(b) of the ADR Act. Second, the Respondent's evidence only goes so far as to attach confidentiality to the triage report, and does not address the body worn video footage or the COPS Event reports included in the closed bundle. Third, the confidentiality of the "closed bundle" has been the subject of the Tribunal's consideration and findings applications for review under the GIPA Act, as discussed above at [4].
5. It is unclear at this early stage in these proceedings, given the findings of the Tribunal in other proceedings brought by the Applicant concerning the material in the closed bundle, what confidentiality orders may ultimately be made in relation to that material in these proceedings. Despite the Applicant's submissions there is no evidence before me that any parts of the material contained in the closed bundle have, in fact, been released already. What is clear, however, that these issues are contested between the parties and that the disclosure of the material pursuant to s 58 of the ADR Act in these proceedings may circumvent or frustrate the Tribunal's findings or determinations made in other proceedings, including the GIPA Act applications for review brought by the Applicant.
6. In the circumstances the most appropriate course is for the Tribunal to make the order under s59 of the ADR Act so that any obligation the Respondent may have to file the closed bundle pursuant to s 58 of the ADR Act in these proceedings is alleviated, and to make the confidentiality orders under s 64(1)(c) and 64(1)(d) for the non-disclosure and non-publication of the material contained in the closed bundle, on an interim basis only.
7. The Respondent will need to clarify for the Tribunal in the substantive proceedings whether and to what extent confidentiality orders are sought in relation to the whole or part of the closed bundle for the remainder of the proceedings, and the Applicant will be given an opportunity at that time to make relevant submissions. It is also necessary for the Tribunal to make appropriate orders for the resumption of the substantive proceedings.

Orders 1. Pursuant to s 59 of the Administrative Decisions Review Act 1997 the Respondent is not required to lodge copies of the material contained in the "closed bundle" provided to the Tribunal with its application for miscellaneous matters dated 4 March 2021. 2. The time to comply with s 58 of the Administrative Decisions Review Act 1997 and orders 1 and 2 of the Tribunal's orders dated 21 January 2021 is extended until 4 March 2021. 3. Until further order, pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, publication of the material contained in the "closed bundle" filed 4 March 2021 is prohibited to the extent that material is not contained in the "open bundle" of s 58 documents lodged 4 March 2021; 4. Until further order, pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the material in the "closed bundle" is restricted to the Commissioner, the legal representatives for the Commissioner and the Tribunal, to the extent that material is not contained in the "open bundle" of s 58 documents lodged 4 March 2021. 5. Orders 4 to 7 of the Tribunal's orders dated 21 January 2021 are vacated. 6. Matter is listed for directions on a date to be fixed by the Registry after the publication of this decision.

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: 22 March 2022