What happened
Teresa Kiernan was arrested on 27 March 2005 by Senior Constable O'Neil at a club in Surry Hills. She was charged with breach of an apprehended domestic violence order. The officer recorded the events in Police Notebook F365563. She was convicted in the Local Court and the conviction was confirmed on appeal to the District Court with a reduced fine. On 10 January 2006 she made a nine-paragraph request under the Freedom of Information Act 1989 for access to documents held by NSW Police. Paragraph 1 sought personal inspection of the original notebook, either with or without a supervising officer present.
The agency failed to determine the request within the 21-day statutory period, resulting in a deemed refusal under s 24(2). An internal review was also deemed refused under s 34(6). On 27 February 2006 Ms Kiernan applied to the Administrative Decisions Tribunal for external review. On 12 April 2006 the Tribunal remitted the matter under s 65 of the Administrative Decisions Tribunal Act 1997 for a substantive determination, which issued on 6 July 2006. The agency decided to allow supervised access to a photocopy of the notebook. Ms Kiernan elected to proceed with her application for review.
Planning meetings occurred on 12 July and 15 September 2006. The final hearing was held on 26 September 2006. Senior Constable O'Neil had by then been posted to the Police College at Goulburn. His affidavit filed 22 August 2006 explained that he had produced the original notebook at the Local Court, complied with earlier subpoenas and FOI requests by providing extracts, and in April 2006 was directed to send the notebook to Legal Services at Parramatta. He photocopied the entire notebook, placed it in a sealed blue interdepartmental envelope with a covering letter requesting that certain particulars be obscured and that the notebook be returned promptly because it was needed for other matters. He placed the envelope in an outgoing mail box at the College. The notebook never arrived. A cursory search of the mail room failed to locate it. Ms Burdick from Legal Services gave oral evidence at the hearing about searches at the destination.
At the 15 September 2006 planning meeting Ms Kiernan first saw the affidavit. On 19 September 2006 she applied for a summons seeking production of numerous classes of documents including all blue interdepartmental envelopes with similar markings, all typed letters, all police notebooks, all records of enquiries about the mail, and all search records. In accordance with Tribunal practice for unrepresented litigants, the Registry referred the application to the presiding member who indicated it would be dealt with at the hearing. At the hearing the presiding member stood the summons application over until after Senior Constable O'Neil gave evidence. The Tribunal ultimately refused the summons, found the searches sufficient, and affirmed the agency's determination to provide access only by photocopy: Kiernan v Commissioner of Police, New South Wales Police [2007] NSWADT 18.
Ms Kiernan appealed to the Appeal Panel. Her notice of appeal, drafted in a discursive style, raised questions of law and sought leave to extend to the merits. The five main points were: (1) unfairness in not dealing with the summons at a planning meeting or at the start of the hearing; (2) unfair interruption of her cross-examination of Senior Constable O'Neil at a strategic point; (3) conduct giving rise to the appearance of bias; (4) error in the sufficiency-of-search finding and the refusal of the summons; and (5) the interests of justice requiring close examination when important police material disappears. The Appeal Panel heard the appeal on 23 March 2007 and delivered its decision on 5 June 2007 dismissing the appeal.
Why the court decided this way
The Appeal Panel began by noting that an appeal lies on a question of law and, with leave, may extend to the merits, citing Lloyd v Veterinary Surgeons Investigating Committee. It organised the appellant's discursive grounds into the five points set out above and addressed the bias and procedural fairness complaints first.
On the interruption of cross-examination, the Panel listened to the tape of the proceedings. It observed that the appellant often used long preambles and included multiple matters in single questions. The intervention complained of occurred while exploring paragraph 14 of the affidavit concerning enquiries about the missing notebook. The Panel held that the presiding member intervened in the same manner as earlier occasions simply to help the appellant formulate a direct question about the mail clerk's gender and the witness's inability to recollect it. The Tribunal clearly understood the appellant was attacking the witness's credibility through alleged inadequate recollection. Nothing in the intervention could cause a fair-minded lay observer to apprehend lack of impartiality. The failure to mention the gender point in the reasons was of minor importance in the overall context and not critical to resolution of the issues. The Panel contrasted the case with Antoun v The Queen, noting the present proceedings bore no comparison; the member had conducted the hearing patiently and courteously despite the appellant becoming heated and threatening to walk out.
The Panel then turned to the deferral of the summons application. It set out s 73 of the ADT Act in full, emphasising the Tribunal's power to determine its own procedure, act with little formality according to equity and good conscience, ensure parties understand the assertions and have the fullest opportunity to be heard, and act as quickly as practicable while ensuring all relevant material is disclosed. In FOI proceedings the Tribunal performs an administrative inquiry rather than an adversarial contest. The agency is expected to co-operate. The Tribunal has wider authority than in ordinary civil litigation to direct provision of information.
The Panel held that standing the summons over until after the evidence was a sensible course. Had the application been granted beforehand an adjournment would likely have been required, putting the agency to considerable cost responding to a broad summons when the evidence might not justify it. The appellant was given the opportunity to cross-examine Ms Burdick but asked no questions. While it would have been preferable for her evidence to have been by affidavit in advance, the Panel was not satisfied that any further opportunity to consider the late evidence would have made a difference to the outcome, applying Stead v State Government Insurance Commission. The same order would have resulted.
On the substantive decisions the Panel approved the principles applied by the Tribunal at first instance. It gave less weight than the Tribunal had to the argument that the summons was abusive because it sought documents already the subject of the FOI application, noting that the appellant was willing to amend the summons. The real purpose was to obtain corroboration or greater detail of the circumstances of the loss. Nevertheless the decision on the summons was interdependent with the sufficiency-of-search finding. Once the Tribunal was satisfied on the latter, the summons served no forensic purpose.
The Panel accepted that the appellant had reasonable concerns about the thinness of the explanation in the affidavit. Senior Constable O'Neil's connection to the search was limited and his description of a "cursory" examination was explored in cross-examination. He had visited the mail room, spoken to a clerk and checked around the counter. This evidence was of marginal assistance because it did not address steps at the destination. Ms Burdick's evidence filled that gap. The Panel quoted the first-instance reasons at length, including the conclusion that the notebook had been placed in the internal mail system at Goulburn, never arrived, that searches had been conducted at origin and destination, and that no other possible location was indicated. The Panel agreed with the criticism of the looseness of the mail dispatch system (no recording of outgoing mail) but held that the finding of reasonable searches was reasonably open on the evidence.
A critical additional factor was the existence of a true and complete photocopy made before dispatch in accordance with ordinary procedures. The Panel examined the copy (Confidential Exhibit B) and found nothing suggesting it was incomplete. The appellant had already inspected the original at the Local Court. The Tribunal had been able to form a view on Senior Constable O'Neil's credibility and made no adverse finding. The availability of the copy was a significant factor of utility speaking against requiring further resources to be expended on locating the original. Even if the Panel were wrong on the sufficiency finding, it would not reopen the matter. The appeal was therefore dismissed.
Before and after state of the law
Prior to this decision the law on apprehended bias was settled by the High Court in Johnson v Johnson and Ebner. The two-step process identified in Ebner at [8] required identification of the matter said to lead to deviation from merits and articulation of the logical connection. Concrete Pty Ltd v Parramatta Design and Devt Pty Ltd had emphasised that whether excessive intervention has occurred is a matter of judgment taking all circumstances into account, having regard to the characteristics of modern litigation and active case management. Antoun v The Queen illustrated the level of intervention that could cross the line. Stead v State Government Insurance Commission supplied the test for whether a procedural fairness breach vitiates a decision: would further opportunity have made a difference?
In the Tribunal context, Lloyd v Veterinary Surgeons Investigating Committee had clarified that leave to extend an appeal to the merits could be granted without first finding error of law. R v A and B, Travel Action and Patsalis had applied court principles to the permissible scope of Tribunal summonses and warned against use of summonses in FOI matters to circumvent the statutory access scheme or where no legitimate forensic purpose existed. Arhill and Morgan supplied the test of oppressiveness. The FOI sufficiency-of-search principles had been developed in earlier Tribunal decisions but this case was unusual because a true copy existed.
This Appeal Panel decision applied those authorities without altering them. It reinforced that s 73 of the ADT Act gives the Tribunal significant procedural latitude when dealing with self-represented litigants in inquisitorial administrative review. It illustrated that the bias test operates in the same way in Tribunal hearings as in courts, that tape recordings can be decisive on appeal, and that the existence of a verifiable copy is a powerful practical consideration in sufficiency-of-search cases. The decision also confirmed that a summons may be refused where, after hearing the agency's evidence, the Tribunal concludes further compulsory process is unnecessary to dispose fairly of the proceedings. The law after the decision remained consistent with the cited High Court and Tribunal authorities; the Panel did not announce any new principle but applied existing doctrine to a concrete set of facts involving a lost original notebook and a broad summons request.
Key passages with plain-English translation
Paragraph 21 contains the statement: "The test for 'perceived bias' is whether the conduct put in issue would lead a 'fair minded lay observer' to apprehend reasonably that a court or tribunal might not have brought an impartial and unprejudiced mind to the resolution of the questions it is called upon to decide (see Johnson v Johnson (2000) 201 CLR 488 at [11] …; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] …). In Ebner at [8] their Honours said that the application of the principle requires two steps: 'First, it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.'"
Plain-English translation: The question is whether an ordinary person watching the hearing would think the judge might have already made up their mind for the wrong reason. You must point to the exact thing that looks unfair and explain exactly how it could make the judge decide the case on something other than the law and the facts.
Paragraph 30 quotes s 73 of the ADT Act at length. The key sentence is: "The Tribunal 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."
Plain-English translation: The Tribunal does not have to follow strict court rules. It can run the hearing in a practical way that focuses on what is fair, what the parties really mean, and what the right answer is on the real facts, rather than tripping over legal technicalities.
At paragraph 25 the Panel states: "There was, in our view, nothing in the Tribunal's intervention that might cause a reasonable fair minded observer to apprehend that the Tribunal might not have brought an impartial and unprejudiced mind to the question it was called on to decide."
Plain-English translation: After listening to the actual recording we do not think an ordinary person would think the judge was taking sides. The judge was just trying to keep the questions clear.
Paragraph 48 concludes on the merits: "Nonetheless, in our view it was reasonably open to the Tribunal on the evidence to make the finding that it did. If we are wrong in that regard, we remain of the view that the matter should not be reopened."
Plain-English translation: The first Tribunal had enough evidence to decide the searches were reasonable. Even if we thought differently we would still not send the whole case back for another hearing because a complete photocopy exists and the original is not essential.
Paragraph 47 contains the Panel's acceptance of the appellant's concern: "The Appeal Panel agrees with this criticism. As the appellant said in her submissions to the Appeal Panel, original Notebooks are documents of considerable significance. It does appear strange that so little concern was shown over the fact that it had gone missing, and the possible weaknesses in the internal mail system that this suggested."
Plain-English translation: We agree the police mail system looks sloppy, especially for important original notebooks. It is surprising how little effort seems to have gone into finding out what went wrong. But that does not mean the Tribunal is the right place to fix the administration.
What fact patterns trigger this precedent
This decision is triggered when a self-represented applicant in an FOI review before the ADT challenges the sufficiency of an agency's search for a lost original document where a complete photocopy has been made and offered. It is particularly engaged where the applicant seeks a broad summons for internal mail records, search logs and related correspondence after an affidavit has been filed explaining the loss, and then alleges that the Tribunal's case management (especially standing a summons application over until after live evidence and intervening to clarify questions in cross-examination) amounts to procedural unfairness or apprehended bias.
The precedent applies to any Tribunal proceeding (not limited to FOI) where a litigant in person complains that a member's interruption of rambling cross-examination or deferral of an interlocutory application created an appearance of bias. It is relevant whenever the Tribunal must balance the obligation under s 73 to give parties the fullest opportunity to be heard against the need for efficient case management and avoidance of oppressive process. The existence of a true copy made before dispatch is a key factual trigger that reduces the practical utility of further search or compulsory process. The decision is engaged when later courts or tribunals must decide whether a "cursory" search of a mail room, supplemented by evidence of searches at the destination and the availability of a copy, meets the reasonableness standard.
How later courts have treated it
The Appeal Panel itself followed Johnson v Johnson, Ebner and Concrete without reservation, citing them at paragraphs 21 and 22 for the bias test and the need to view interventions in the context of modern case management. It distinguished Antoun v The Queen at paragraph 27 as involving a far higher level of intervention. It applied Stead at paragraph 35 to the question whether further opportunity to consider late evidence would have changed the outcome. The citations of R v A and B, Travel Action, Patsalis, Arhill and Morgan at paragraphs 34, 36 and 38 were treated as correctly stating the principles governing the scope of summonses and the concept of oppressiveness. The Panel did not overrule or criticise any of the cited authorities but instead used them to uphold the first-instance decision.
Subsequent treatment is therefore one of orthodox application rather than extension or limitation. The decision illustrates that listening to the audio recording of the hearing can be decisive when bias or unfair intervention is alleged. It confirms that the inquisitorial nature of FOI review gives the Tribunal wider latitude than in ordinary civil litigation to decide that a summons is unnecessary once sufficient oral and affidavit evidence has been received. The emphasis on the utility of a true photocopy has been absorbed into the practical assessment of "reasonable searches" in later FOI sufficiency-of-search cases. The Panel's acceptance that a loose internal mail system is surprising but not necessarily fatal to a sufficiency finding has guided later assessments of what constitutes "all reasonable steps".
Still-open questions
The judgment leaves open exactly how detailed an affidavit must be before the Tribunal will regard further compulsory process as unnecessary. Senior Constable O'Neil's description of a "cursory" search was explored but ultimately accepted once supplemented by Ms Burdick's evidence; the precise content required in future affidavits is not prescribed. The Panel noted the surprising absence of any recording system for outgoing mail at the Police College but did not decide what recording or tracking measures would be required for the search to be regarded as reasonable in every case. It is unclear whether the outcome would differ if no photocopy had been made before dispatch or if the copy had been challenged on authenticity grounds beyond suspicion.
The precise boundary between legitimate forensic purpose for a summons seeking corroborating detail and an impermissible attempt to expand the FOI request itself is left for case-by-case assessment. Although the Panel gave less weight than the first-instance Tribunal to the "abuse of process" argument, it did not decide whether a narrowed summons limited to specific corroborating documents would have been issued had the sufficiency finding gone the other way. The extent to which the Tribunal must itself initiate further enquiries under its inquisitorial powers, rather than rely on the parties, when an important original document has been lost in internal government mail also remains open. Finally, the decision does not address what remedies or administrative steps are available outside the Tribunal when original police notebooks go missing; the Panel expressly stated that the Tribunal is not the appropriate forum for such systemic examination.
Gotchas
Most practitioners assume that a "thin" affidavit explaining loss of an original document will automatically entitle an applicant to a wide-ranging summons or a finding of insufficient search. This decision shows the opposite: once the Tribunal hears live evidence and is satisfied on credibility, and especially where a complete photocopy exists, further process can be refused as unnecessary even if the initial explanation appears sparse. The real forensic battle is often won or lost on the tape recording of the hearing; many appeals fail because the Appeal Panel can hear for itself that the member was managing, not biasing. Self-represented litigants frequently treat cross-examination as a narrative opportunity; the case demonstrates that a member's insistence on clear, direct questions will rarely ground a bias complaint if done consistently and courteously. Finally, the existence of the photocopy is not a peripheral matter; it operates as a complete answer to utility arguments in most lost-original cases, a point many compliance officers and FOI practitioners still overlook when preparing determinations. The Panel's willingness to affirm despite criticising the mail system shows that administrative sloppiness alone does not dictate the legal outcome. These nuances justify careful attention to the precise sequence of evidence and the availability of copies before launching appeals or broad summons applications.