Hariz v Commissioner of Police

Background

1. Eight of Mr Hariz's external review applications were lodged with the Tribunal on 26 February 2020 (file numbers 2020/00062231, 2020/00062234, 2020/00062237, 2020/00062239, 2020/00062655 2020/00062665, 2020/0006267 and 2020/00062669). These applications first came before the Tribunal on 14 April 2020, at a case conference, where the Tribunal made an order that the six applications of Mr Hariz that had been lodged outside the time prescribed in s 101(1) of the GIPA Act were to run together The applications that were to run together were file number 2020/00062231, 2020/00062234, 2020/00062237, 2020/00062239, 2020/00062655 and 2020/00062677 ('the applications lodged out of time/out of time applications').
2. On the same day (14 April 2020) the Tribunal made an order that, by 28 April 2020, Mr Hariz was to file and serve an application, under s 101(4) of the GIPA Act, for an extension of time in regard to his applications that were lodged out of time. An order that the Commissioner file and serve submissions in reply by 5 May 2020 was also made. Mr Hariz and the Commissioner were also ordered to provide the Tribunal and each other with any submissions they wanted to make as to whether Mr Hariz's application for an extension of time could be dealt with on the papers.
3. The six application Mr Hariz had lodged out of time were listed for a further case conference on 2 June 2020.
4. On 14 April 2020, the Tribunal also listed the remaining applications of Mr Hariz (file number 2020/00062665 and 2020/00062669) for a further case conference on 23 April 2020.
5. On 18 March 2020, three weeks after having lodged the abovementioned applications, Mr Hariz made a further application for external review of another administratively reviewable decision of the Commissioner (file number 2020/00086251). That application was also listed for case conference, on 23 April 2020, together with Mr Hariz's applications that are file number 2020/00062665 and 2020/00062669.
6. At the case conference on this day (23 April 2020) the Tribunal listed application file number 2020/00062665 for hearing on 29 July 2020 and made orders for the filing and serving of evidence and submissions by Mr Hariz and the Commissioner prior to this day. The remaining applications, application file number 2020/00062669 and 2020/00086251, were adjourned for a further case conference on 2 June 2020.

The out of time applications

1. In regard to his six out of time applications, at the request of Mr Hariz, the Tribunal granted him a number of extensions of time within which to comply with the order 1, made on 14 April 2020, that he file and serve an application for an extension of time, under s 101(4) of the GIPA Act.
2. On 26 July 2020, having been granted a number of adjournments and extension of time, Mr Hariz made yet another application for adjournment and extension of time in regard to all matters because he was ill. In support of that application Mr Hariz forwarded to the Tribunal a copy of a medical certificate (dated 23 July 2020) from his general practitioner, Dr Harry Johnson and a letter from his treating psychologist (dated 24 July 2020), Mina Candalepas, and his treating psychiatrist (dated 24 July 2020), Dr Robert Reznik.
3. On 28 July 2020, at a directions hearing, on the basis of the medical certificate and the letters form Mr Hariz's doctors, the Tribunal granted Mr Hariz a further adjournment and a further extension of time, to 25 August 2020, to file and serve his s 101(4) application. The Tribunal also noted that: 1. the Commissioner opposed any further extension of time applications by Mr Hariz in regard to his six out of time applications; and 2. Mr Hariz was on notice that if he failed to comply with the amended timetable the Commissioner may seek to have his out of time applications dismissed.
4. On 10 September 2020, after Mr Hariz had failed to comply with the orders made on 28 July 2020, the Commissioner filed and served an application seeking dismissal of Mr Hariz's six out of time applications under s 55(1)(b) and (d) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
5. On 11 September 2020, the Tribunal made an order that by 23 September 2020, Mr Hariz was to file and serve any written submissions he wished to make in regard to the Commissioner's dismissal application and an order dispensing with a hearing and determining the Commissioner's application on the papers (NCAT Act, s 50(2)). The Tribunal also made an order that the Commissioner file and serve any submissions in reply by 30 September 2020.
6. As I have noted above, having failed to comply with the orders made by the Tribunal on 28 July 2020 and 11 September 2020, Mr Hariz seeks a further adjournment and that time be extended within which to comply with the orders made to sometime in February 2021.

The remaining applications (file number 2020/00062665, 2020/00062669 and 2020/00086251)

1. As I have already noted, on 23 April 2020, the Tribunal had listed Mr Hariz's application that is file number 2020/00062665 for hearing on 29 July 2020. Application file number 2020/00086251 was also listed for hearing on that day.
2. In accordance with orders made by the Tribunal in each of these matters, the Commissioner filed and served his evidence.
3. At the directions hearing of 28 July 2020 (see at [12] and [13] above), the Tribunal vacated the hearing of the abovementioned applications (file number 2020/00062665 and 2020/00086251) and made an order extending the time within which Mr Hariz was to file and serve his material in reply to the evidence filed and served by the Commissioner to 25 August 2020. Both matters and application file number 2020/00062669 were listed for directions on 3 September 2020.
4. In this application, Mr Hariz also seeks that these applications (file number 2020/00062665, 2020/00086251 and 2020/00062669) be adjourned until February 2021 and that time within which he is to comply with the order made for him to file and serve his evidence in reply to also be extended to a date around that time.

The legislative context in which Mr Hariz's review applications have been made

1. As I have already noted, each decision the subject of administrative review in Mr Hariz's nine applications is a decision of the Commissioner made under the GIPA Act. Set out below is an overview of the legislative context in which each decision was made and Mr Hariz's right to seek administrative review of each decision of the Commissioner in the Tribunal.
2. The GIPA Act gives every member of the public an enforceable right to access government information, where access to that information is restricted only when there is an 'overriding public interest against disclosure': GIPA Act, s 3(1)(b) and (c). Section 13 of the GIPA Act sets out the test as to when there is an overriding public interest consideration against disclosure, which provides as follows: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
3. Part 4 of the GIPA Act sets out how access applications are to be made (Division 1- ss 41 to 43), how the government agency is to deal with any such application that is made (Division 2 and 3 - in particular ss 51 to 52) and how the government agency is to determine that application (Division 4 - in particular ss 57, 58 and 60). Section 57, in Division 4 of the GIPA Act prescribes times within which a government agency is to determine an access application. Section 57(1) provides that an access application is to be determined within 20 working days, which can be extended up to 15 days or an additional period with the agreement of the access applicant: GIPA Act, s 57(2) and (4).
4. Part 5 of the GIPA Act makes provision for the review of decisions made by a government agency under Part 4 of the Act. Division 4 of that Part deals with administrative review by the Tribunal. Section 100 provides which decisions of an agency are reviewable by the Tribunal. There is no dispute that the decision of the Commissioner the subject of each of the nine applications of Mr Hariz is an administratively reviewable decision by the Tribunal: GIPA Act, ss 80 and 100.
5. The time for making an application to the Tribunal for administrative review of a decision made by the government agency under the GIPA Act is 40 working days after the person was notified of that decision: GIPA Act, s 101(1). Where an application for administrative review is made outside the prescribed 40 working days, s 101(4) and (5) provide as follows: (4) NCAT may, on application by a person wanting to make an application for NCAT administrative review out of time, extend the time for the making of such an application by the person if NCAT is of the opinion that the person has provided a reasonable excuse for the delay in making the application. (5) An application to extend the time for the making of an application for NCAT administrative review must be in writing unless NCAT dispenses with the requirement in a particular case.
6. As I have already noted, each administrative review application of Mr Hariz arises from an access application he made to the Commissioner, under s 41 of the GIPA Act, seeking access to information about him that was held by the Commissioner at the time he made his application. It is the Commissioner's determination, made pursuant to the GIPA Act, which is the subject of administrative review in each application before the Tribunal. Hence, in each application of Mr Hariz, the principal issue for determination by the Tribunal is the correct and preferable decision, having regard to the information before the Tribunal and the applicable law: Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 63 and the applicable provisions of the GIPA Act.
7. Normally, there is no onus in administrative review proceedings. However, in administrative review proceedings of decisions of a government agency made under the GIPA Act, s 105(1) of that Act provides that the onus is on the government agency (in this case the Commissioner) to establish that the decision the subject of review is justified. That is, there is no statutory onus on the access applicant in such proceedings.

The Tribunal's power to grant an adjournment

1. The Tribunal's power to adjourn proceedings is in s 51 of the Civil and Administrative Tribunal Act 2013 (NSW)(NCAT Act). That section provides that the Tribunal 'may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement)'.
2. Mr Hariz's application for adjournment is an interlocutory application made in the course of the management of his applications before the Tribunal: NCAT Act, s 4(1). His current application is no different.
3. In Zepinic v Health Care Complaints Commission [2018] NSWCATOD 92, at [14], the Tribunal noted that the adjournment power in s 51 is to be exercised: 14. … [bearing] in mind the statement of principle by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management Pty Ltd [2013] HCA 46; (2013) 250 CLR 303, where French CJ, Kiefel, Bell, Gageler and Keane JJ at 321 [51] referred to the importance of the achievement of a just but timely and cost-effective resolution of a dispute. That goal is reflected in the guiding principle for the Tribunal stated in s 36(1) of the NCAT Act.
4. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management Pty Ltd [2013] HCA 46; (2013) 250 CLR 303, at 321 [51], the High Court noted that the decision of the Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at 211 [92]-[93] had pointed out that case management was an accepted aspect of the system of civil justice administered by the courts in Australia, and: 51. … [It] had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice.
5. The case management rules with which the Court was concerned in Aon are similar to those in the NCAT Act. For example, the guiding principle of the NCAT Act in s 36(1) is in similar terms to the overriding purpose of the ACT Court Procedures Rule, namely: 'to facilitate the just, quick and cheap resolution of the real issues in the proceedings'.
6. In order to achieve that purpose, s 36(2) of the NCAT Act provides that: (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.
7. Section 36(3) of the NCAT Act goes on to provide that a party to proceedings before the Tribunal and an Australian legal practitioner or other person representing a party to proceedings 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.
8. Section 36(4) of the NCAT Act provides that 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.' However, s 36(5) of the NCAT Act provides that nothing in s 36 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 and principles which that legislation provides. In this case, the 'enabling legislation' is the GIPA Act: NCAT Act s 4(1) and s 30, Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 7 and s 9 and the GIPA Act s 100.
9. At the same time the Tribunal is required to comply with procedural fairness and is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: NCAT Act, s 38(2) and (4).

Submissions and evidence of Mr Hariz

1. Mr Hariz asserts that his current circumstances are such that he is unable prepare his case until after his other court proceedings are completed. He says he is homeless and ill and unable to gain access to documents due to restrictions placed on him in making contact with his former partner and mother of his children. He explained that his other court proceedings are proceedings in the Children's Court which are listed for hearing on 7, 8 and 9 December 2020. I understand Mr Hariz and his former partner are both separately represented in those proceedings and the current restrictions placed on him in regard to contacting his former partner and his children are those imposed by the Children's Court.
2. Mr Hariz is hopeful that the Children's Court proceedings will be finalised by February 2021 and that the restrictions placed on him by the Court will also be lifted by then.
3. In support of his application, Mr Hariz again relied on a letter (dated 24 July 2020) from his treating psychiatrist, Dr Robert Reznik ('Dr Reznik'). He also relies on a letter (dated 14 October 2020) from his general practitioner, Dr Harry Johnson ('Dr Johnson').
4. Mr Hariz also sought to rely on a statutory declaration of his former partner, Alba Ramli, declared on 15 October 2020. That statutory declaration was sent, by Ms Ramli, to the Tribunal on the morning of the applicant's case conferences. However, a copy was not provided to the Commissioner. Mr Hariz asserted that Ms Ramli had been advised that the Tribunal would forward it to the Commissioner. However, the email Ms Ramli sent to the Tribunal that morning did not support such an assertion. Nor is it the practice of the Tribunal to forward material of this kind. This is the responsibility of the party who seeks to rely on that material at a hearing, case conference or directions hearing. I note Mr Hariz has previously provided such material to the Commissioner's solicitor in these proceedings and has at no time hesitated to communicate with her by email.
5. Hence, in the absence of the Commissioner not having been provided with a copy of Ms Ramli's statutory declaration prior to the 20 October 2020 case conference, I did not accept it into evidence for the purpose of Mr Hariz's adjournment application. Even if I had accepted it into evidence, I can indicate my decision to refuse Mr Hariz's adjournment application would not have differed.

Consideration

1. I reiterate, the only issue for determination in this application is whether Mr Hariz's application for an adjournment of all matters to February 2021 should or should not be granted.

The Commissioner's dismissal application of the six applications lodged out of time

1. It is convenient to first deal with the Commissioner's application for dismissal of Mr Hariz's applications that were lodged out of time (i.e. application file number 2020/00062231, 2020/00062234, 2020/00062237, 2020/00062239, 2020/00062655 and 2020/00062677). In that application, the onus is on the Commissioner to establish the grounds on which his application is made and that the Tribunal should exercise its discretion and make the orders sought.
2. As a general rule, in accordance with the guiding principle in s 36(1) of the NCAT Act, an application of this kind is dealt with expeditiously after the party making the dismissal application has filed and served the material on which it relies in support of its application and the other party is given an opportunity to file and serve its response to that application. In this case, it is almost two months since the Commissioner filed and served the material on which he relies in support of his dismissal application. The question is whether, based on the material relied on by Mr Hariz, the determination of the Commissioner's dismissal application should be adjourned until after February 2021 and the time within which should he is to file and serve his material in response to that application should be extended to a date in February 2021.
3. I accept that Mr Hariz is involved in proceedings in the Children's Court concerning his children and that he has found those proceedings and the events leading up to it to be very stressful. I also accept that as a result of orders made by the Children's Court, Mr Hariz is subject to a number of conditions placed on him as to his contact with his children and former partner. However, a copy of the orders that were made are not before the Tribunal.
4. Other than identifying the Children's Court proceedings as having been listed for hearing on 7, 8 and 9 December 2020, Mr Hariz has not identified how he would be prejudiced if the Commissioner's dismissal application were to procced in the meantime. This is especially so, as on the material before the Tribunal the issue for determination in the Commissioner's dismissal application are very limited and totally unrelated to the issues for determination in the Children's Court.
5. As I have noted above, the Commissioner's dismissal application relates to the six administrative review proceedings Mr Hariz lodged outside the time prescribed in s 101(2) of the GIPA Act. While the information the subject of those applications for which Mr Hariz seeks access may be relevant to the matters in issue in the proceedings before the Children's Court, in these proceedings the only matter in issue is Mr Hariz's right to access the information sought under the terms of the GIPA Act. That right being subject to the provisions of the GIPA Act, including a determination as to where the balance lies between two competing public interests, namely those for and against disclosure. As I have explained below, at [61], while Mr Hariz's applications for access may have been motivated by concerns about alleged misconduct by specific police conduct towards him, this is not conduct the Tribunal has jurisdiction to address in his current administrative review applications.
6. Mr Hariz asserts that his current circumstances prevent him from responding to the Commissioner's dismissal application and his remaining substantive applications for administrative review. Yet he appears to have been able to find the time to respond, in writing and in some detail, when Ms Mattes has pressed the Commissioner's dismissal application and objected to his most recent adjournment applications. Nor has he found it difficult to communicate with the Tribunal by telephone or email.
7. Nevertheless, I accept that both Dr Reznik and Dr Johnson are concerned about Mr Hariz's mental health and the impact that the Children's Court proceedings, and what led to those proceedings, are having on his mental health. However, I am not persuaded that the concerns of Dr Reznik or Dr Johnson equally apply to these proceedings, including the Commissioner's dismissal application.
8. In his letter of 24 July 2020, Dr Reznik makes no mention of the proceedings before the Tribunal. Instead Dr Reznik's letter is directed to the Children's Court as he expressly requests the 'court' to grant Mr Hariz more time to prepare for his court matters. Hence, I have placed little weight on that letter for the purpose of this adjournment application of Mr Hariz.
9. While Dr Johnson specifically addressed his letter to the Tribunal, it is evident that he has little, if any, understanding of the nature of Mr Hariz's proceedings before the Tribunal, other than to note that he had written a letter to the Court seeking a relaxation of the conditions the Children's Court had imposed on him so that he and his ex-partner could put their best case forward in 'all matters'. Ms Ramli is not a party to the proceedings before the Tribunal and as I have already noted, the proceedings before the Tribunal are unrelated to the Children's Court proceedings.
10. In the absence of any record of the Children's Court proceedings it is difficult to accept Dr Johnson's assertion that the Children's Court was mindful of the NCAT matters when it made changes to the conditions it had imposed on Mr Hariz. I accept Dr Johnson's assertion was genuinely made. However, in my view it also demonstrates his lack of understanding of the very limited nature of the Tribunal's jurisdiction in regard to Mr Hariz's administrative review applications. Hence, I have given little weight to this assertion.
11. Accordingly, I am not satisfied that Mr Hariz has established a basis on which to grant an adjournment of the Commissioner's dismissal application to February 2021. In my opinion that application should be listed for a short hearing after Mr Hariz is given a further opportunity to file and serve his material in response. That opportunity should not be relatively short as the issues are so confined and the hearing should follow shortly thereafter. Hence, I will make orders for Mr Hariz to file and serve his response to the Commissioner's dismissal application by 19 November 2020. As Mr Hariz has indicated that he wishes to be heard and not have the matter determined on the papers and the matters in issue a very limited, I have decided list the Commissioner's dismissal application for a short hearing, by telephone, on 25 November 2020, commencing at 9.30am. I will also make an order that any further application by Mr Hariz for an extension of time or adjournment will not be granted unless he establishes that there are exceptional circumstances.

The remaining administrative review applications (file number 2020/0062665, 2020/00062669 and 2020/00086251)

1. For the reasons set out above I am also not satisfied that Mr Hariz has established a basis for the adjournment of his remaining administrative review applications (i.e. file number 2020/0062665, 2020/00062669 and 2020/00086251).
2. Again, these are applications limited in scope and for which there is also an expectation that they will be dealt with expeditiously in accordance with s 36(1) of the NCAT Act.
3. In this case, application file number 2020/0062665 concerns the decision of the Commissioner, made under s 58(1)(e) and 60(1)(e) of the GIPA Act, to refuse to deal with Mr Hariz's access request the subject of that decision ('the refuse to deal decision').
4. Application file number 2020/00086251 concerns the decision of the Commissioner, made under s 58(1)(d) of the GIPA Act, to refuse to provide Mr Hariz access to the information he had sought in his request the subject of that decision, because there was an overriding public interest against the disclosure of that information ('the refusal to provide access decision').
5. As I have noted above, the Commissioner has filed and served his evidence and submissions in these applications and they had been listed for hearing on 29 July 2020. That hearing was vacated, on the application of Mr Hariz who had failed to file and serve his material as ordered by the Tribunal.
6. The remaining application, file number 2020/00062669 concerns the decision of the Commissioner, made pursuant to s 51(1)(b) of the GIPA Act, that Mr Hariz's access application is not a valid application because, as required under s 41(1)(e) of the GIPA Act, the application does not contain sufficient information to enable him to identify the information Mr Hariz is seeking access to ('the invalid access application decision'). At earlier case conferences, the Commissioner has indicated a willingness to mediate this matter. However, there has been no response from Mr Hariz.
7. I understand that Mr Hariz has a number of concerns about the manner in which he has been dealt with by police. While those concerns appear to have motivated him in seeking access to the information held by the Commissioner in regard to those incidents, this does not mean that the Tribunal has jurisdiction to deal with those concerns, other than to the extent they might be relevant to where the public interest lies in regard to the disclosure of the information sought by Mr Hariz that is the subject of his access application to the Commissioner. That is, the Tribunal's administrative review jurisdiction under the GIPA Act does not extend to dealing with alleged misconduct of the Commissioner, or any other officer of NSW Police, to which that information relates. To do so would be an abuse of process.
8. In my opinion, each of these three remaining access applications of Mr Hariz should be listed for directions at an early date so that the matters can be listed for hearing as soon as possible. At the same time orders can be made for the filing and serving of any outstanding evidence and submissions.

Conclusions and orders

1. For the reasons set out above, I have decided not to grant Mr Hariz the adjournment he seeks that time be extended within which he is to comply with the orders made by the Tribunal to sometime in February 2021 and thereby adjourn his nine administrative review proceedings to that date.
2. Hence, I make the following orders: 1. Mr Hariz's application that all matters be adjourned until February 2021 is refused. 2. By 19 November 2020, Mr Hariz is to file and serve written submissions in reply to the Commissioner's application for dismissal of the applications that are file no 2020/00062231, 2020/00062234, 2020/00062237, 2020/00062239, 2020/00062655 and 2020/00062677. No further extension of time for filing and serving these submissions will be granted unless Mr Hariz can establish that there are exceptional circumstances warranting an extension of time. 3. The Commissioner's dismissal application is listed for a short hearing, by telephone, on 25 November 2020, at 9.30am for 1 hour. 4. The proceedings in application file number 2020/0006265, 2020/00062669 and 2020/86251 are listed for directions on 1 December 2020 for the purpose of setting a hearing date and any other orders for the filing and serving of evidence and submissions. 5. Subject to exceptional circumstances, there should be no further adjournment of the 25 November 2020 hearing, or the 2 December 2020 directions hearing.

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

Amendments 10 November 2020 - Correction of typographical error in catchwords. 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: 10 November 2020