Foxman v Commissioner of Police, NSW Police Force

The Parties

1. As noted above, the Applicants are a company and its director.
2. The Tribunal's standard form for applications is one which is intended to be completed electronically and, most unfortunately in this case, the section in which the names of respondents is to be completed is limited. On the form as filed, the Applicants state that the respondents to the Application are: 1. NSW Police Prosecution; 2. Commonwealth Department of Public Prospections; and 3. a name which was unable to be printed in the electronic format provided by the usual Tribunal Form but which starts with the word "Magistrate".
3. The electronic format provided by the Tribunal's form for interim application seems to allow further characters. On the form as filed, and in addition to the respondents already described above, the additional respondents stated in the Interim Application are; 1. the Magistrates Courts of Tamworth, Downing Centre and Waverly.
4. The limitation on the forms submitted as the Application and Interim Application and the way in which some of the prospective respondents are identified requires that the Tribunal determine who are, in fact, the respondent or respondents in these proceedings.
5. The Commissioner of Police, NSW Police Force includes a Prosecutions branch. The Commissioner is the only other party to have taken any step in these proceedings. Since the commencement of these proceedings, the First Applicant has directly corresponded with the relevant office of the NSW Police Force.
6. None of the other prospective respondents have taken any step in the proceedings. It is not apparent whether any other of the named respondents, aside from the Commissioner of Police, have in fact been served or are formally aware of the Application or the Interim Application.
7. I consider that the prospective respondents or other entities listed in the Application and the Interim Application are not intended to be respondents but are instead named by the Applicants in an intention to cover the field and avoid having the Applications rejected without due consideration. This is not intended as any criticism of the First Applicant who, in his written submission encouraged the Tribunal to consider the plight of an Applicant who does not have a legal background stating, in part: "… I am not a lawyer and a tribunal should not be established so as to prevent a layman having ease of access and use, specific performance expectations of the NCAT".
8. I have concluded therefore that the Commissioner of Police, NSW Police Force is the sole respondent in these proceedings.
9. As to the other prospective respondents, I find that: 1. A Commonwealth Department of Public Prosecutions does not technically exist, I have inferred that the Applicants intend to name the Commonwealth Director of Public Prosecutions (CDPP) and the Office of the Commonwealth Director of Public Prosecutions (OCDPP) as prospective respondents. 2. The Applicants have not specified any decision made by the CDPP or the OCDPP as the subject to the Application. 3. The Magistrates Courts of Tamworth, Downing Centre and Waverley are not separate bodies, they are addresses of court houses and registries of the NSW Local Court. I am unable to identify a respondent by reference to these addresses. The Local Court Act 2007 (NSW) provides that that Local Court is constituted by the Chief Magistrate and such other magistrates as necessary to be appointed. I have therefore inferred that the Applicants intend, when referring to the Local Court, to in fact refer to the Chief Magistrate of NSW or another Magistrate so appointed as a prospective respondent. 4. The Applicants have not specified any decision made by either the Chief Magistrate of NSW or any other Magistrate so appointed as the subject to the Application.
10. If I have erred in the identification of the proper respondent to these proceedings, the Application and Interim Application suffer from a more fundamental problem being that no decision has been identified which could enliven the Tribunal's jurisdiction.

The Jurisdiction Question

1. On 28 September 2021, the Applicants were directed to make submissions identifying the following two matters: 1. the decision to be sought to be reviewed by the Tribunal; and 1. the Tribunal's jurisdiction to deal with that review.
2. The Applicants were required to provide that material by 8 October 2021. The Tribunal directed that the application would be referred for determination on 15 October 2021. Nothing was received from the Applicants by the date they were required to provide material. However, as I will later describe submissions were later received, and these were considered despite being filed and served outside of the directed dates.
3. On behalf of the Commissioner of Police, a short set of written submissions and a small bundle of documents, mainly comprising emails from the First Applicant was filed and served in accordance with the directions on 15 October 2021.

The Applicants' Submissions

1. On 18 October 2021, Mr Foxman, the First Applicant sent an email which contained a set of submissions to the Tribunal. The submissions do not distinguish between the Application and the Interim Application, and I have taken these submissions as being applicable to both.
2. Further submissions were received by the Tribunal after that date, the latest set of materials being received on 13 December 2021. All material received from the Applicants with respect to the question of jurisdiction has been considered however it is apparent that the submissions dated 18 October 2021 are the most pertinent.
3. In his 18 October 2021 submissions, the First Applicant explained that the delay in submitting his submission arose from the fact that he could only prove misconduct by the NSW Police Force after receiving the submissions made on the First Respondent's behalf.
4. In the 18 October 2021 submissions, the First Applicant states that the purpose of the Applications to NCAT was three-fold; 1. Firstly, to finally make sure his complaints about various conduct of NSW Police, prosecutors and magistrates were officially on record. 1. In that regard, the First Applicant states that the Office of Liquor and Gaming is holding information which would reveal police misconduct, and that the Information and Privacy Commission had conspired with other parts of government not to share that information. Mr Foxman also states that this has prejudiced his legal standing in court where evidence has been tampered. 2. Also in regard to the first ground, the First Applicant sets out that the application in particular was directed to: 1. complaints he had made to the Integrity Unit of the NSW Police Force, "NSWPF LECC", the Offices of the NSW Ombudsman and the Commonwealth Ombudsman, 2. requests for information from the Office of Liquor and Gaming Administration and Independent Liquor and Gaming Administration. 3. the refusal to assist or provide the information by the Information Commissioner. 4. making a request that two local court magistrates provide the information the First Applicant has been asking for including information about charges which he states are fake and the documents which he seeks about those charges would include; charge sheets, statements, briefs, arrest details or information about proceedings taking place in court. 1. The First Applicant states that the second purpose of the Application was to demonstrate that law enforcement, prosecutors and magistrates have ignored the issues or put no value on the issues which have been brought to light. This second stated purpose contained a warning by the Applicants to the Tribunal concerning the ignoring of serious allegations. The submission then lists a number of pieces of legislation which impose on NSW government employees obligations to act legally, ethically and fairly, to report corruption, and to assist in public interest disclosures and investigations. 2. Summarising the third stated purpose, the Applicants submit that they are dissatisfied with the outcome of a review conducted by the Information and Privacy Commission (IPC). The Applicants further submitted that there were "quite literally over one hundred areas of the entire matter that falls within the NCAT jurisdiction." The Applicants then offered, in the course of this email, to submit about 2,000 pages of submissions if necessary.
5. The first and second purposes as set out in the Applicants' submissions are not relevant to the questions which the Applicants were directed to answer; that is neither identifies the decision to be reviewed nor the Tribunal's jurisdiction to undertake such a review.
6. The Applicants did not identify a specific decision or decisions made by particular agencies as they had been directed. Rather, the Applicants have referred to complaints and requests for information made to a range of agencies in a general way without particularising when the conduct complained of or any reviewable decision was made. It is not possible in those circumstances to identify the decision (or decisions) sought to be reviewed.
7. There can be no argument that employees of the NSW government are obliged to act in the ethical and fair manner which is described in Mr Foxman's email as the second purpose. However that is not a basis on which this Tribunal has its jurisdiction conferred.
8. The third purpose suggests that a review has been conducted by the Information Commissioner or IPC however it is unclear what review occurred. The Information Commissioner may review a reviewable decision of an agency and make recommendations pursuant to the Government Information (Public Access) Act 2009 (NSW), Part 5, Div 3 (GIPA Act) and make recommendations to that agency. The Tribunal does not have power in respect of a review conducted by the Information Commissioner. In this case, no reviewable decision of an agency, as defined by the GIPA Act, has been identified by the Applicants or the Commissioner of Police.

The Respondent's Submission

1. The Respondent's submission on jurisdiction may be shortly stated. It is that: 1. The Applicants have failed to identify a decision to be reviewed - though acknowledging that the Applicants appear to have a high level of dissatisfaction with the NSW Police Force relating to the First Applicant's arrest and other allegations of misconduct. 2. The Applicants have failed to identify the jurisdiction sought to be enlivened or any other legislation that would provide a basis for the Tribunal's jurisdiction to arise.
2. The Commissioner also "reserves his right to apply for costs". In this regard I note that costs in Tribunal proceedings are relevantly governed by the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), s 60. The primary position being that each party is to pay their own costs and that an award of costs may only be awarded if the Tribunal is satisfied that there are special circumstances warranting such an order. There is no right to a party to costs, however a party may apply for costs in the normal course.

Analysis

1. The Tribunal has jurisdiction only in respect of those matters for which legislation, referred to in the CAT Act, s 4 as "enabling legislation", has conferred such jurisdiction.
2. The CAT Act expressly identifies some of the legislation to which jurisdiction is conferred, for example CAT Act, Sch 3, cl 1(1) and 3(1)(a).
3. The Tribunal has jurisdiction in respect of matters provided in the CAT Act or other enabling legislation; CAT Act, s 28(3).
4. The circumstances upon which the administrative review jurisdiction is conferred on the Tribunal is provided under the Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 9, which provides, relevantly, that: (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. …
5. The ADR Act, s 7 defines an administratively reviewable decision as: (1) … a decision of an administrator over which the Tribunal has administrative review jurisdiction. (2) For the avoidance of doubt (and without limiting subsection (1) or section 6): (a) the conduct of an administrator (or a refusal by an administrator to engage in conduct) is an administratively reviewable decision if enabling legislation identifies that conduct or refusal as conduct or refusal over which the Tribunal has administrative review jurisdiction, and (b) in its application to any such conduct or refusal by an administrator, any reference in this Act (however expressed) to an administrator making an administratively reviewable decision includes a reference to an administrator engaging or refusing to engage in the conduct. (Emphasis added)
6. The effect of sections 7 and 9 of the ADR Act is that the Tribunal's administrative review jurisdiction only arises on, and is concerned with, the exercise of specific functions imposed or conferred on an administrator by legislation and the decisions, conduct or refusal of an administrator to exercise the functions conferred on them under specific legislation.
7. In proceedings for the exercise of its administrative review jurisdiction, the Tribunal also has jurisdiction to make ancillary decisions; CAT Act, s 30(2)(a). An ancillary decision of the Tribunal includes a preliminary decision made under legislation that is preliminary to a decision determining proceedings including a decision concerning whether the Tribunal has jurisdiction to deal with a matter; CAT Act, s 4.
8. The Tribunal may dismiss proceedings at any stage where it considers the proceedings are, among other matters, misconceived or lacking in substance; CAT Act, s 55(1)(b).
9. In Fox v Commissioner of Police, NSW [2016] NSWCATAD 77 at [26], the Tribunal, considering the meaning of the words of s 55(1)(b) observed that: "…The term "misconceived" represents a claim that does not "disclose a cause of action", while "lacking in substance" may be seen as referring to a claim where the defendant could obtain summary judgment: Alchin v Rail Corporation of New South Wales [2012] NSWADT 142. There is also an overlap between the concepts identified in s 55(1)(b). For example, a proceeding may be frivolous or misconceived because it is lacking in substance: Worldwide Enterprises Pty Ltd v Westpac Banking Corporation [2010] VCAT 1125, [39]."
10. Where an application is made for which the jurisdiction of the Tribunal is found to be wanting, such an application may be considered as misconceived or otherwise lacking in substance: Alchin v Rail Corporation of New South Wales [2012] NSWADT 142 at [25]; Long v Metromix Pty Ltd [2019] NSWCATAP 198 at [77]. This does not mean the Applicants is not aggrieved by some form of governmental conduct, it simply means the Tribunal has no power to intervene or review that conduct.
11. In White v Sutherland Shire Council [2019] NSWCATAD 100 at [8], the Tribunal stated: The CAT Act sets out the Tribunal's jurisdiction. One of those jurisdictions is the "administrative review jurisdiction": s 29(2)(b) CAT Act. The Tribunal has administrative review jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the ADR Act: s 30 CAT Act, and s 9 ADR Act. Section 30 of the CAT Act provides that, with respect to the Tribunal's administrative review jurisdiction, in effect that the Tribunal has no jurisdiction unless there is a legislative instrument conferring jurisdiction. Therefore, in order to determine whether the Tribunal has jurisdiction to review a particular decision, reference must be made to the legislation governing the original decision. While there are many pieces of legislation which give jurisdiction to the Tribunal, however, they may not give jurisdiction for every decision made under each piece of legislation.

Determination

1. In this case the Applicants have been unable to answer two fundamental questions pertaining to the Application and the Interim Application.
2. Specifically, and despite lengthy submissions, the Applicants have been unable to say: 1. What is the decision, or decisions, of which they are aggrieved; and 2. What is the source of the power, given to the Tribunal, to review such a decision or decisions?
3. Contrary to the date of decision specified on the form submitted as the Application, there is nothing in the materials which identifies a reviewable decision made in or about June 2019. Further, I have been unable to identify a reviewable decision regardless of the date.
4. As such, the Tribunal's jurisdiction is not enlivened with respect to the matters raised in the Application and the Interim Application.
5. The Applications are misconceived pursuant to the CAT Act, s 55(1)(b) and should be dismissed.
6. The Commissioner of Police has foreshadowed an intention to apply for costs against the Applicants, I will also allow some time for brief submissions to be made on that question in the event the Commissioner wishes to make such an application.

Decision

1. Consequently, I make the following orders: 1. The Application for Stay or Interim Order filed on 12 August 2021 is dismissed. 2. The Application for Review filed on 12 August 2021 is dismissed. 3. By 14 February 2022, the Commissioner of Police is to file and serve submissions not exceeding two pages on the question of costs. 4. By 28 February 2022, the Applicants are to file and serve submissions not exceeding two pages on the question of costs. Such submissions will only be required if the Commissioner of Police has served submissions in accordance with order 3 above.

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: 13 January 2022