Kiernan v Commissioner of Police, New South Wales Police [2007] NSWADTAP 27 | Case summary

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.

REASONS FOR DECISION 1 On 10 January 2006 the appellant made a request under the Freedom of Information Act 1989 (FOI Act) for access to documents held by New South Wales Police (the agency). Her request was a detailed one, divided into nine paragraphs. The agency did not finalise its determination within the statutory period (21 days), giving rise to a deemed refusal (see FOI Act, s 24(2)). (The agency had commenced dealing with the request: see affidavit of Senior Constable O'Neil quoted later in these reasons.) 2 The appellant applied for an internal review determination. The agency did not make an internal review determination within the statutory period (14 days) giving rise again to a deemed refusal (s 34(6)). 3 As permitted in these circumstances, the appellant applied on 27 February 2006 for external review by the Tribunal. On 12 April 2006 the matter was remitted by the Tribunal under s 65 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) to the agency for the making of a substantive determination. The determination issued on 6 July 2006. The appellant elected to proceed with her application for review (ADT Act, s 65(3)). 4 There were planning meetings on 12 July 2006 and 15 September 2006. The final hearing was held on 26 September 2006. The Tribunal affirmed the agency's determination: see Kiernan v Commissioner of Police, New South Wales Police [2007] NSWADT 18. The appellant now appeals. 5 While the agency's determination and the Tribunal's decision dealt with the whole of her original access application, the appeal concerns the Tribunal's determination as it related to paragraph 1 of the access application. There is no specific criticism of the Tribunal's decision as it relates to the remainder of the agency's determination. 6 Paragraph one asked: 'To personally inspect the original Police Notebook F365563, either within or without the presence of a supervising police officer …'. 7 The agency's determination, upheld by the Tribunal, was: 'To allow the Applicant supervised access by viewing of a photocopy of the Police Notebook 365563.' 8 Notebook F365563 covers the period 16 March 2005 to 3 September 2005. The appellant's interest in this notebook derives from events that occurred on 27 March 2005. 9 On that date, S/C O'Neil, then stationed at the Surry Hills Police Station, attended at a club in Surry Hills in response to a complaint. He arrested the appellant, took her into custody at the Surry Hills Police Station and charged her with breach of an apprehended domestic violence order, the alleged victim being the protected person, a man who had once been her partner. She was later convicted at the Local Court of an offence and fined, confirmed on appeal to the District Court with the fine reduced. 10 The appellant's position is that the agency's determination was not an adequate response to her request, and that she should have been provided with access to the original document. The Tribunal hearing was almost entirely consumed with the issue of the sufficiency of the agency's search for the original of the Notebook. 11 At the time of the appellant's arrest S/C O'Neil was stationed at the Surry Hills Police Station. By April 2006 he had been posted to the Police College at Goulburn. It is desirable, at this stage, to set out, in full, parts of his affidavit. '5. Subsequent to this [the court proceedings], the Applicant has made a number of applications for access to a police notebook on issue to me, No F365563, including the issuing of a subpoena, and the application which is now before the Administrative Decisions Tribunal. 6. The notebook was produced at the local court hearing and access to the original document was provided to both the Applicant and her solicitor at that time. 7. On 8 November 2005 I received a subpoena request from the Subpoena Section, Legal Services, forwarded by the Surry Hills Local Area Command. The subpoena was complied with, which included the photocopying of the relevant extract of my official police notebook. 8. On 1 February 2006 I received a fax (FOI Reference 61705) seeking all documents relating to the applicant's arrest. The application was complied with and the brief of evidence, including a photocopy of the relevant extracts from my Notebook numbered F365563 detailing the Applicant's arrest. 9. On the 31 March 2006 upon the request of Ms Alison WALTON, Executive Officer to the Commander, Surry Hills Local Area Command, I was again asked to provide a copy of the relevant parts of the notebook relating to the arrest and charging of the Applicant. This was complied with. At that time I was in possession of the notebook. 10. In early April I received a further telephone call from Ms WALTON and was informed that I had been asked to immediately forward my police notebook to the Compliance Law Division of Legal Services. I indicated that the notebook was currently the subject of ongoing investigations and other matters before the Court and would be required by me. I was told that this was to be considered a 'direction'. 11. Prior to the notebook being forwarded I photocopied the entire document as is an accepted practice. I placed the notebook into a blue interdepartmental envelope, writing the words 'Comp LD - Legal Services, Parramatta' or something similar on the envelope. I also included a typed letter outlining that the applicant not be permitted to touch the notebook as a means of accessing information outside that relating to her arrest. I also asked that [the protected person's] particulars be obscured and that as the notebook was required in other matters, it be returned to me as soon as the matter was concluded. I sealed the envelope and placed it in to a white box allocated for outgoing mail. This box is located in the outer office of the Manager's office, EI&Q [Education, Innovation and Quality], NSW Police College, Goulburn. 12. Prior to the 24th April, 2006 I was contacted by Ms Rebecca BURDICK of Legal Services and advised that the notebook had not been received at that Section. I was asked to make enquiries in to the whereabouts of the notebook and 'fax' through a copy of the document to Legal Services. 13. On the 26th April, 2006 I forwarded the entire photocopied version of the official police notebook by facsimile to Ms BURDICK at Legal Services, Parramatta. 14. I the[n] made enquiries about the tracking of mail from the EI&Q Office to the mailroom and was advised that mail from all of the sections within the College when received at this location are combined and forwarded to a main collection centre where it is sorted by location. 15. A cursory search of the mail room failed to locate the outstanding notebook.' 12 This affidavit was filed with the Tribunal on 22 August 2006, in anticipation of the hearing listed for 26 September 2006. Ms Burdick represented the agency at planning meetings. She says that she sent a copy of the affidavit by ordinary mail to the appellant at the same time as she sent the Tribunal its copy (18 August 2006). The appellant states that she only became aware of the affidavit at a planning meeting held on 15 September 2006, and it was given to her at the end of that meeting. 13 She was dissatisfied with the adequacy of the explanation given in the affidavit. On 19 September 2006 she applied to the Registrar for the issuance of a summons to the Commissioner to produce the following documents: - All blue interdepartmental envelopes with the words "Comp LD - Legal Services Parramatta" or similar - All typed letters within or related - All police issue notebooks within or related - All police issue notebooks and letters authored by O'Neil (Mathew) and blue interdepartmental envelopes at Police College, Goulburn referring to Teresa Kiernan, including in and out of that mail room or letter box or mail collection centre - All records, including sign-in entries and internal correspondence, concerning inquiries about mail by Mathew O'Neil - All records relating to searches by O'Neil of police mail rooms, including log records and diary entries and internal correspondence. [sic] 14 In accordance with Tribunal practice in cases where the application for the summons is not made through a solicitor, the Registry referred the application to the presiding member for advice as to the action to be taken. The presiding member advised that she would deal with the application at the beginning of the hearing. At hearing the presiding member decided to stand consideration of the application for the summons down until after she had heard S/C O'Neil's evidence. The Appeal 15 An appeal may be made in relation to a 'question of law', and, with the leave of the Appeal Panel, may extend to the merits: ADT Act, ss 112, 113. It is not necessary that an error of law be demonstrated before consideration can be given to extending the appeal to the merits: Lloyd v Veterinary Surgeons Investigating Committee (2005) 64 NSWLR 245. 16 The notice of appeal form is divided into a section which asks the appellant to identify questions of law, and another section for use if the appellant seeks leave to extend to the merits to give reasons in that regard. 17 The notice of appeal is written in a discursive style. It contains points of criticism and text in the nature of submissions. It is filled in under both the question of law and leave to extend to the merits headings. Without being too didactic on the questions of law/leave to extend distinction, we think the appellant's points can be organised as follows: 1. The Tribunal's conduct of the proceedings was unfair in not ensuring that the summons issue was dealt with in the context of the planning meeting process or at the beginning of the hearing. 2. The Tribunal interrupted the appellant's cross examination of S/C O'Neil at a strategic time, and the interruption could not be justified as necessary for case management. 3. The Tribunal's conduct gave rise, at least, to the appearance of bias. 4. If the above contentions are not accepted, the Tribunal was in error in its finding on the sufficiency of search issue; and in refusing, in the circumstances, to permit issuance of the summons. 5. Finally, it is in the interests of justice that there be close examination of instances where important police material disappears or is lost. Procedural Fairness: Points 1, 2, 3 18 We will deal first with Points 2 and 3, which go to issues of bias and case management. 19 The only matter of conduct to which the appellant draws specific attention is the alleged unfair interruption by the presiding member of her questioning of S/C O'Neil. The appellant put her objection in this way in the notice of appeal, and repeated it in similar terms in her oral submissions at hearing: 'Was the applicant denied natural justice here and also during her cross examination of Senior Constable O'Neil where [the tribunal member] interrupted the applicant at a strategic time where the applicant had just got S.C. O'Neil to deny that he had any memory of the gender of the mail room personnel he had supposedly spoke to, very significant as S.C. O'Neil had withheld any corroborating facts from his passage where he disappeared the notebook and the idea that he could remember that he spoke to a mail room personnel where he could not remember if that person is male or female indicated clearly that he is lying and is determined to continue not to reveal any corroborating facts, told the applicant that it was the Tribunal Member's job to decide if reasonable steps had been taken to find the notebook? Was the applicant in fact succeeding with the cross examination at this point and [the tribunal member's] interruption was not case management but dismaying [sic] bias?' 20 The notice continues: 'Did [the tribunal member] engage in bias by excluding the evidence in her reasons that S.C. O'Neil would not say which gender the witness was by pretending that he could not remember, where this in not believable and is not a reliable memory …, when this mail personnel was the only corroborating fact in S.C. O'Neil's passage where he accounted for the disappearance of the police notebook?' 21 The Tribunal must conduct itself in a procedurally fair way. Accordingly justice must not only be done but seen to be done. The submission of the appellant in this case is that the Tribunal conducted itself in a way that might not be seen to be impartial. 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] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ). 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.' 22 Where the allegation is that the court or tribunal intervened in the proceedings to such an extent as to raise a doubt as to its impartiality, it is important to give due regard to 'the characteristics of modern litigation' (Concrete Pty Ltd v Parramatta Design and Devt Pty Ltd [2006] HCA 55; (2006) 81 ALJR 352 at 374 per Kirby, Crennan JJ) with their emphasis on 'more active case management' (Johnson at [13]). Ultimately, whether a judge has excessively intervened to the point of raising in the mind of a fair minded lay observer a reasonable apprehension of bias 'is a matter of judgment taking into account all of the circumstances of the case' (Concrete Pty Ltd at [112] per Kirby, Crennan JJ). If that point is reached, the orders of the Tribunal must be set aside, and the matter reheard. 23 In this instance the appellant criticises the interventions by the Tribunal in her cross examination of S/C O'Neil. The Appeal Panel has listened to the tape of the proceedings. The intervention in issue occurred during the appellant's cross examination of S/C O'Neil in relation to para [14] of his affidavit. Often in cross examination, the appellant did not ask direct, clear questions but instead engaged in long preambles before coming to her question, and then including in the question a number of different matters. On the occasion in question, the Tribunal intervened in a similar manner to some previous interventions simply to help the appellant formulate a direct question going to the issues of the mail clerk's gender and the witness's inability to recollect. 24 The Tribunal, in our view, clearly understood that the appellant was seeking to demonstrate through this question and other questions she asked that the witness had an inadequate recollection, and this bore on his credibility. 25 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. 26 The appellant also refers in support of her bias submission to the failure of the Tribunal to allude in its reasons for decision to the inability of the witness to recollect the clerk's gender. In our view the matter was one of minor importance in the overall context of the case. It was not critical in any way to the resolution of the issue before the Tribunal. Had there been a pattern of inadequate recollection of details on the part of S/C O'Neil it may have had some importance. S/C O'Neil's oral evidence (in contrast to the written affidavit) was quite concrete as to the steps he took once he was advised that the Notebook had not been received. 27 For a recent case where the level of intervention by a trial judge was seen by the High Court as raising a reasonable apprehension of bias see Antoun v The Queen [2006] HCA 2; (2006) 80 ALJR 497. The present case bears no comparison to that case. 28 In the present case, the member, in our opinion, conducted herself in a most patient and courteous way in proceedings which were, at times, difficult to control. The appellant became quite heated on a number of occasions, and, in one instance, threatened to walk out. 29 Point 1 puts in issue the Tribunal's decision to delay dealing with the summons application until the end of the hearing. 30 The Tribunal has a high degree of flexibility in the way it goes about conducting its deliberations: s 73, ADT Act. Provisions that are possibly relevant to the appellant's contentions are these: ' 73 Procedure of the Tribunal generally (1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) 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. (4) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. (5) The Tribunal: (a) is to act as quickly as is practicable, and (b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and (d) in the case of a hearing - may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases …' 31 The summons was the appellant's way of trying to get a more substantial investigation. The Tribunal has its own power to issue a summons, and it can give directions to a party. In FOI proceedings the Tribunal is engaged in the review of an administrative decision, with the object of ascertaining the correct and preferable decision. It is a form of administrative inquiry in which the agency is expected to co-operate without reservation. The Tribunal is empowered to have regard to 'any relevant material': ADT Act, s 63. It is not an adversarial contest in the way that might be true of traditional civil proceedings where the plaintiff is sometimes heavily reliant on processes of subpoena and discovery to prove their claim. In administrative review proceedings the Tribunal has a wider authority, we think, than might be apt to civil (or professional disciplinary) proceedings in directing the provision of information by a respondent agency to assist the resolution of a matter. 32 On this occasion, the Tribunal having initially indicated that it would deal with the appellant's application for a summons stood the matter down until it had heard the evidence of S/C O'Neil. The appellant is critical of the course that the Tribunal took. 33 The Tribunal heard the evidence of S/C O'Neil and the belated evidence of Ms Burdick. The appellant was given the opportunity to cross examine Ms Burdick. She did not ask any questions. Clearly, it would have been preferable for this evidence to have been given by affidavit filed and served in advance of the hearing. 34 We do not think that the deferral of the consideration of the appellant's application involved any unfairness. The Tribunal, in our view, took the sensible course of listening to the evidence of the agency before deciding how it would act in relation to the application for the summons. Had it granted the application for the summons ahead of hearing the evidence it would, necessarily we think, have had to adjourn the proceedings. It would also have involved putting the agency to the considerable cost in time and resources of responding to a broad summons when the evidence might not have justified that. 35 The appellant, who was representing herself, only had a limited opportunity to consider and respond to Ms Burdick's evidence. In some circumstances the failure to afford a party a reasonable opportunity to consider lately-received evidence might give rise to a denial of natural justice that vitiates the proceedings. In this instance, we are not satisfied that the giving of such an opportunity would have made any difference to the outcome of the case (see Stead v State Government Insurance Commission (1986) 161 CLR 141 at [11]). In our view, the same order would have resulted for reasons explained further below. The Substantive Decisions: Point 4 The Summons 36 As previously noted the application was considered at the end of the hearing. The agency objected outright to issuance of the summons on the grounds that it was too broad, oppressive and sought documents that were the subject of the FOI application. The Tribunal gave a provisional ruling refusing to issue the summons. 37 The Tribunal indicated in that ruling that it would first need to determine whether it was satisfied as to the evidence given by the agency on the sufficiency of search issue. If it was not satisfied it would convene a further hearing to give directions for full and better searches. The appellant said in reply that she should be given the opportunity through the summons to test the adequacy of S/C O'Neil's evidence, which had, she submitted, been deliberately vague. 38 In its decision the Tribunal found that the search had been sufficient and then went on to confirm its provisional ruling: ' Summons to produce documents 32 On 15 September 2006 the applicant requested the issue of a Summons to produce specified documents, as follows: [as set out above at para [13] of these reasons] 33 Consideration of this request was adjourned to the conclusion of the hearing on 26 September 2006. The respondent's representative opposed the issue of the summons on the basis that it was oppressive, too broad, and that it concerned documents sought in the FOI application. The applicant stated that paragraphs 10, 11, 14 and 15 of Const O'Neil's affidavit were the reason why she sought the summons, as the affidavit did not contain details of dates, places and times which were essential to establishing the disappearance of the notebook. 34 Under section 84 of the ADT Act the Tribunal has power to issue a summons on the application of a party to proceedings, and such a summons may require a person to attend and produce documents. The general principles that apply in the ordinary court system to the permissible scope of summons for the production of documents apply to summonses issued by the Tribunal: R v A and B [1999] NSWADTAP 2. 35 The Tribunal has issued a Practice Note in relation to issuing summonses. Relevantly, Practice Note No. 7 provides: "The purpose of this Practice Note is to provide information to parties to matters before the Tribunal as to Tribunal practice in relation to issuing summonses. The relevant legislation is found at section 84 of the Administrative Decisions Tribunal Act 1997 and rules 20 and 46 of the Administrative Decisions Tribunal (Interim) Rules 1998 which are set out in Schedule 1 to the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998. … 12. Special provisions for issuing summonses in Freedom of Information, Privacy, Anti-Discrimination, Guardianship and Protected Estates and Appeal Panel matters: Parties to applications under the Freedom of Information Act, Privacy Act, parties to complaints referred to the Equal Opportunity Division under the Anti-Discrimination Act, parties to applications under the Guardianship Act 1987 or Protected Estates Act 1983 or parties to internal or external appeal to the Appeal Panel are required to submit, at the planning meeting, case conference or directions hearing, a list of summonses they intend to issue, and to identify the relevance of the evidence, document or thing to the proceedings. The judicial member allocated to the case will consider the list of summonses. Where the judicial member approves of the issuing of some or all of the summonses listed in submission by a party, that party can then apply to the Registrar for the approved summonses to be issued for the purposes described in paragraph 3 of this Practice Note. Where the list of summonses is submitted after the planning meeting, case conference or directions hearing, or where such a preliminary stage is not being conducted, application to issue the summonses should be filed at the registry. The registry will then submit the material to the judicial member for consideration." 36 In Travel Action Pty Ltd and Suzanne Frugtniet v Director General, Department of Fair Trading [2003] NSWADT 73 Deputy President Hennessy held that the overriding principle in relation to documents produced under summons is that access may be refused if the Tribunal is not satisfied that access is required for any legitimate forensic purpose. In Patsalis v Commissioner of Police, New South Wales Police [2003] NSWADT 171 President O'Connor DCJ commented on a summons requesting production of documents the subject of an FOI request in the following terms: The summons might therefore be said to lack any legitimate forensic purpose, and also to be an abuse of the process that the Parliament has contemplated will be followed in respect of FOI proceedings. … But nevertheless, the whole point of FOI proceedings is to permit a structured environment to apply to disputes over requests by members of the community for access to official documents. The Parliament has laid down a detailed code as to the way in which those requests are to be dealt with and determined. It would put the whole FOI scheme on its head if people who had brought forward their request within an FOI framework then within the context of those very proceedings started issuing summonses with the same objective. So, it seems to me that both of the principal submissions of Mr Waters (counsel for the Commissioner) are made out, in particular that it is an abuse of process within the environment of FOI proceedings to issue summonses which have as their object essentially the same documents that are the subject of the FOI request. And secondly, it does not serve any legitimate forensic purpose to do that because the documents which are the subject of the summons are already the subject of the proceedings, so it is impossible to see what added value the summons provides. 37 As discussed above, one of the issues for determination was whether or not I am satisfied that original Police Notebook F365563 should be held by the agency, and whether the agency has taken all reasonable steps to find it. In my view, in this instance the summons was an attempt by the applicant to obtain evidence which might cast doubt on, or corroborate, the sequence of events as outlined by Const O'Neil in his affidavit. Const O'Neil was cross examined at length on the contents of his affidavit. I concluded that the issuing of the summons in the form requested by the applicant was not necessary for disposing fairly of the proceedings, and in that sense, was oppressive: Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545; Morgan v Director General, Department of Education and Training [2000] NSWADTAP 3. Accordingly, I decided not to approve the issue of the summons.' 39 In our view, these reasons refer to the correct principles. We would, however, not be inclined to give as much weight to the point that the summons sought to retrieve documents already the subject of the FOI application, and was abusive for that reason. The reservations expressed by the Tribunal in the past relate to cases where a document said to be lost is then made the subject of a summons to produce in the hope that by that means it will be uncovered. 40 The appellant indicated at hearing that she was happy to limit or amend the summons if it was deficient in that way. What she was clearly trying to do was to obtain corroborating or more detailed information in connection with the circumstances recounted by S/C O'Neil as to how the document got lost and the investigations he made. 41 The decision on the summons is interdependent with the decision on sufficiency of search. In effect the Tribunal is saying that the summons served no forensic purpose in light of its decision on sufficiency of search. Sufficiency of Search 42 The Appeal Panel accepts that the appellant felt reasonably concerned at the thinness of the explanation given by the agency via the affidavit of S/C O'Neil as to its efforts in trying to track down the original Notebook. S/C O'Neil only had a limited connection to the search. 43 The appellant quite properly questioned S/C O'Neil as to what he meant in para [14] of his affidavit by a 'cursory' examination. S/C O'Neil said that after being told that the Notebook had not been received, he visited the mail room at the Police College, spoke to a clerk and checked around the mail counter to see if the envelope containing the notebook might have fallen down the back. S/C O'Neil was unable to shed any light on why it had gone astray, other than to say that these things sometimes happen in such a big and complex organisation as the Police. Clearly this evidence is of marginal assistance in ascertaining whether the agency had undertaken a 'sufficient' search. This evidence did not address any steps taken to ascertain what happened in transit or at the end-point, the Legal Section at Parramatta. 44 Perhaps mindful of this, Ms Burdick, in closing submissions to the Tribunal, referred to steps taken in the Legal Section to find the Notebook, which led to her being asked to give evidence, as noted earlier. 45 The Tribunal summarised the evidence at paras [8] to [11] of its reasons. It referred at [12] to [13] to the relevant principles. It summarised the appellant's objections at paras [14] to [16] of its reasons. 46 The Tribunal concluded: '17 The respondent's case is that Const O'Neil put the notebook into the internal mail system at Goulburn, addressed to the Compliance Law Unit at Parramatta, and that it never arrived. Const O'Neil's evidence was that the system for collection of outgoing mail involved its deposit into an open box, the contents of which would either be collected by someone from the mail room, or delivered to the mail room in person by someone from the EI&Q Unit. There was no evidence of any system of recording outgoing mail. This is somewhat surprising, given the likelihood that important and sensitive documents may need to be forwarded within the system. However, having regard to the way in which the system is organised, it is not beyond the realms of possibility that one or more items of outgoing mail may not reach their destination. I am satisfied, based on the evidence of Ms Burdick, that the notebook did not arrive at the Compliance Law Unit. The evidence was that searches were conducted at the place of origin, and the intended destination. There is no indication as to any other possible location where the envelope may be located. I am satisfied that the respondent has undertaken reasonable searches for the notebook, and that it cannot be found. 18 On that basis, the decision of the respondent to provide access to the Police notebook F365563 in the form of a photocopy should be affirmed.' 47 The Tribunal noted its concern over the looseness of the mail dispatch system at Goulburn. 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. 48 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. 49 In the usual cases involving sufficiency of search the claim is either that a document of the kind sought by the application does not exist or, if it existed, it can no longer be located. This case is different in the important aspect that the agency says it is able to produce a true copy of the original. The existence of a true copy is an important factor of utility that speaks against requiring the agency to expend resources on searching for the original. 50 While the Tribunal did not make a formal finding on this matter, the evidence of S/C O'Neil was that he made a true and complete copy of the original document, in accordance with usual procedures, before sending on the original. The existence of procedures of this kind is itself a precaution designed to guard against the possibility of losing documents or other material of importance. 51 The Appeal Panel has examined the copy record (Confidential Exhibit B before the Tribunal). There is nothing on the face of the document to suggest otherwise than that it is a complete record (the pagination and diary records within it are in sequence). While the appellant is suspicious that the copy is not a genuine copy, it is difficult to see what motivation, if any, S/C O'Neil would have for trying to do otherwise than fulfil his duty. By the time of the April request from the FOI section he had regularly handled and supplied the original of the Notebook to the various processes that had occurred since arresting and charging the appellant. For example, his evidence included that the original Notebook had already been furnished to the District Court, and that the appellant and her solicitor had had an opportunity to see it at that time. This evidence was not challenged. 52 The Tribunal was in a position to form a view on the credibility of S/C O'Neil's core evidence that the copy he made prior to putting the original notebook in the mail was a true copy. There were a number of questions from the appellant in cross examination directed to the photocopying procedures followed by S/C O'Neil. The Tribunal made no criticism of his credibility. Interests of Justice: Point 5 53 As indicated at [47], we accept the thrust of the appellant's submission that it is odd that there was so limited an investigation into the loss of the Notebook. The Tribunal is not the appropriate place to pursue an examination of a matter of administration of this kind. Order Appeal dismissed.

Kiernan v Commissioner of Police, New South Wales Police

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