Sheehy v NSW Police Force; Rapisarda v NSW Police Force; Housego v NSW Police Force

Issues

1. The issues that arise on appeal and our conclusions can be summarised as follows: 1. Who is the correct respondent? The NSW Police Force. 2. Is the disclosed information still in dispute? Yes. 3. Must the Appeal Panel find an error of law before deciding to deal with an internal appeal by way of a new hearing? No. 4. Do the grounds of appeal warrant a new hearing or justify the Appeal Panel setting aside the decision? No. 5. Does the "fresh evidence" warrant a new hearing? No. 6. Did the Tribunal make a legal error in determining that the police officers should pay part of the costs of the proceedings? No.

Who is the correct respondent?

1. This issue was not raised on appeal, but in our view, the correct respondent is the NSW Police Force, not the Commissioner of Police, NSW Police Force. A person aggrieved by certain decisions of an "agency" are reviewable by the Tribunal: GIPA Act, s 5. An "agency" is defined in s 4(1) of the GIPA Act to include "a public authority". That term is defined in Schedule 4 Clause 2 of the GIPA Act to include "the NSW Police Force". The NSW Police Force made the reviewable decision in this case.
2. The Appeal Panel has power to order that a person be removed as a party to proceedings and to join a party to proceedings: NCAT Act, s 44(1) and (2). The Commissioner of Police, NSW Police Force is removed as a party. The NSW Police Force is joined as a respondent to the proceedings.

Is the disclosed information still in dispute?

1. The "disclosed information" is the two complaints made by Superintendent Hardman and the Investigation Plan and Report prepared by Detective Sergeant Volpe. The issue of whether this information is still in dispute did not arise at the hearing. Even so, it is necessary for us to clarify that issue before addressing the remaining issues.
2. The Commissioner of Police has not provided access to the disclosed information under the GIPA Act, nor has the Commissioner decided that the information is already available to the police officers: GIPA Act, s 59. The police officers have not withdrawn their application for the disclosed information. Given those circumstances, we have assumed that the police officers are pressing their claim for access to the disclosed information under the GIPA Act.

Must the Appeal Panel find an error of law before deciding to deal with an internal appeal by way of a new hearing?

Relevant provisions and submissions

1. An appeal from a final decision can only be made in one of two ways: "as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds": NCAT Act, s 80(2). Section 80(3) describes how the Appeal Panel may deal with an internal appeal once it has been made. That provision gives the Tribunal discretion to deal with an internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing. It also permits the Tribunal to take into account fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, if it considers it appropriate in the circumstances.
2. The NSW Police Force opposed the Appeal Panel dealing with the appeal by way of a new hearing submitting that we need to find an error of law before considering whether to deal with the appeal in that way: NCAT Act, s 80(2).

Consideration

1. The Appeal Panel can only exercise the powers given to it by statute. The nature and scope of the Appeal Panel's powers depend on the words in s 80(3) and s 81 of the NCAT Act read in the context of the Act as a whole. The test set out in s 80(3) is that the Appeal Panel may decide to deal with an internal appeal by way of a new hearing "if it considers that the grounds of appeal warrant a new hearing". The ordinary meaning of these words is that the Appeal Panel must examine the nature and strength of the grounds of appeal and decide whether it considers that those grounds warrant a new hearing. Nothing in the text of the provision, or in the context of the NCAT Act as a whole, supports the proposition that the Appeal Panel must find that the Tribunal has made an error of law before it can exercise the discretion to deal with an appeal by way of a new hearing.
2. Even if that is not the correct interpretation, the Appeal Panel has power to give leave to appeal on grounds other than a question of law. If leave were given, the Panel would have power to deal with the appeal by way of a new hearing.
3. The Appeal Panel impliedly took the same view in DHQ v DHR [2018] NSWCATAP 128 at [60]. The Panel concluded that none of the grounds of appeal on questions of law had been established but expressed the view that it would be open for the Panel to deal with the appeal by way of a new hearing.

Do the grounds of appeal warrant a new hearing or justify the Appeal Panel setting aside the decision?

Introduction

1. The Notice of Appeal sets out six grounds of appeal. The police officers did not rely on grounds 1 or 5 relating to procedural fairness. We begin by addressing ground 6 - that the Tribunal did not correctly identify and apply the public interest test when determining the application. We go on to consider grounds 2 and 4 - that the Tribunal misdirected itself in various ways. Finally, we address ground 3 - that the Tribunal gave inadequate reasons for its decision that the NSW Police Force had conducted a thorough search for the requested information.

Ground 6 - did the Tribunal correctly identify and apply the public interest test?

1. During the hearing, the police officers' representative elaborated on this ground submitting that the balancing test in s 13 of the GIPA Act had not been correctly applied. The NSW Police Force did not object to the new characterisation.
2. The Tribunal summarised the relevant legal principles at [34] of the decision including that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: GIPA Act, s 5. Section 13 sets out the circumstances where there will be an overriding public interest against disclosure: 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. At 34, the Tribunal mentioned the principle set out in s 12(1), that "[T]here is a general public interest in favour of the disclosure of government information". The Tribunal did not expressly mention s 12(2) which provides that: (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.
4. A note to that provision gives five examples of public interest considerations in favour of disclosure of information: Note: The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
5. The crux of the Tribunal's reasoning in relation to the public interest test is set out at [60]-[68]. At [63] the Tribunal refers to the public interest considerations in favour of disclosure as 'speculative' and concludes that they do not tend to "establish" systemic failure or misconduct. In the final sentence of [63], the Tribunal goes on to state that, "Nor do I accept, on the evidence before me, that the applicants were 'wrongfully accused by a homophobic malicious and harmful Superintendent', or that 'system failures … allowed the situation to occur.'"
6. The criticism of these findings is that the examples given in the note s 12(2) merely require that disclosure of the information could reasonably be expected to have certain effects, not that it must be established that disclosure will have one of those effects.
7. The NSW Police Force submitted that the use of the word "Nor" at [63], makes it clear that both the penultimate and the final sentence of that paragraph are based on what the evidence "tends to establish". The last sentence is expressed as a finding that the police officers were not wrongfully accused but, according to the NSW Police Force, that is not what the Tribunal meant when the sentence is read in context. What the Tribunal meant was that disclosure of the information could not reasonably be expected to have any of the effects listed in the examples in the note to s 12(2).
8. The police officers relied on each of these examples. In their "Closing written submissions in Reply" to the Tribunal below filed on 28 February 2018, the police officers' representative listed those examples at [6]. At [12], the submissions state that all the information that has been withheld constitutes "evidence of the misconduct about which they have complained". This appears to be a reference to the public interest consideration in favour of disclosure in para (e) of the Note to s 12(2).
9. The Tribunal did not expressly mention the matter in para (e), or any of the other matters listed as examples in the note to s 12(2). Nor did the Tribunal express its findings in a way which was wholly consistent with the "could reasonably be expected" test.
10. These criticisms do not constitute errors of law. The "could reasonably be expected" test is an example; it is not a statutory test which must be applied. Consequently, the Tribunal has not made a mistake by not expressly applying that test.
11. Secondly, the police officers' case was not presented in a consistent way. At times, they appeared to be relying on the "could reasonably be expected" test but the main thrust of their evidence and submissions was that disclosure would reveal misconduct or unlawful conduct. Even on appeal, the police officers contended that the allegations in each investigation file were "patently and demonstrably false" and, in relation to the drug investigation file, "were made against them because they are homosexuals … ". The Tribunal's findings responded to those allegations. The mere mention of the examples in their written submissions does not change the fact that the police officers' focus was to prove misconduct or unlawful conduct, not to establish that such an outcome "could reasonably be expected".
12. This ground of appeal does not justify setting aside the Tribunal's decision, nor does it warrant a re-hearing.
13. The police officers also submitted that the Tribunal did not correctly carry out the balancing exercise set out in the public interest test. Section 13 requires the Tribunal to determine whether, "on balance" the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. The police officers submitted that the Tribunal did not demonstrate how it had undertaken that exercise.
14. The Tribunal correctly summarised the balancing exercise at 34. The balancing of competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [94].
15. At [64] the Tribunal accepted the police officers' "broad submissions that the public interest is better served by transparency and public scrutiny ... and that the community is entitled to know that police officers. … can be trusted not to abuse the trust reposed in them". We assume that that is an indirect reference to the public interest considerations in favour of disclosure in (a), (b) and (c) of the Note to s 12(2). The Tribunal concluded, at [67], "the statutory presumption in favour of disclosure is displaced by the public interest factors against disclosure". That statement reflects the fact that the Tribunal had rejected any other discrete public interest considerations in favour of disclosure.
16. When the Tribunal's reasoning at [60]-[67] is considered as a whole, we are satisfied that the Tribunal correctly carried out the balancing exercise set out in the public interest test. This ground of appeal does not justify setting aside the Tribunal's decision, nor does it warrant a re-hearing.

Grounds 2 and 4: did the Tribunal misdirect itself in various ways?

1. Ground 2 is that "[T]he Tribunal was misdirected as it failed to consider the question of whether the investigation files contained evidence that the investigation was motivated or otherwise influenced by matters which amount to unlawful discrimination in NSW". Ground 4 is that, "[T]he Tribunal misdirected itself that evidence of a cover up was contained within the investigation files rather than the exhibits tendered by the applicants, the latter being the submission advanced by the applicants". The police officers' representative did not elaborate on these grounds of appeal at the hearing.
2. In their written submissions the police officers make the point that in [3] and [10] of the reasons, the Tribunal appeared to be under the impression that both investigation files related to allegations that they were using illegal drugs. In fact, the second investigation file related only to Snr Constable Sheehy and was about an alleged breach of the Surveillance Devices Act 2007. While these paragraphs could have been more clearly expressed, it is apparent from reading the decision as a whole that the Tribunal knew that the investigation files contained separate allegations. This ground of appeal does not justify setting aside the Tribunal's decision, nor does it warrant a re-hearing.
3. At [61], the Tribunal concluded that it had seen "no material which founds the applicants' concern that the information reveals a co-ordinated effort by the respondent to stifle inquiry into allegations of serious corruption within the NSW Police Force". The police officers submitted on appeal that, while that conclusion "is likely correct" it does not respond to their case below. In their closing written submissions below dated 24 May 2018, the police officers wrote that a review of the drugs investigation file would reveal that they were targeted because they are homosexual.
4. The police officers submitted that the Tribunal misunderstood their case and did not address their submissions. Their case was, in part, that the information in each of the investigation files is expected to "reasonably support, if not confirm" that the conduct of NSW Police in investigating the complaints "was not consistent with its own policies, the expectation of the public, nor the expectations of the Appellants as employees, concerning complaints with (sic) a prejudicial motive arise". In summary, the police officers argued that "the public interest is better served by public disclosure and public scrutiny of the investigation files, where there is reasonable questions of maladministration by the Respondent".
5. It is apparent from the Tribunal's reasons that the Member understood all aspects of the police officers' case - including that that they were targetted because they were homosexual and that there was fraud, maladministration or a cover up on the part of the NSW Police Force during the investigation. At [63] the Tribunal rejected the proposition that the police officers were, in their words, "wrongfully accused by a homophobic, malicious and harmful Superintendent". At [61] the Tribunal rejected the police officers' claims about alleged corruption.
6. The main thrust of the police officers' case was that these assertions would be established by the disclosure of the disputed information, not that there were "reasonable questions" of maladministration. The Tribunal responded to the case put by the police officers. The Member did not misdirect himself in the ways suggested. This ground of appeal does not justify setting aside the Tribunal's decision, nor does it warrant a re-hearing.

Ground 3 - did the Tribunal give inadequate reasons for its decision that the NSW Police Force had conducted a thorough search for the requested information?

1. Appeal ground 3 was that "[T]he Tribunal failed to give any, or other adequate, reasons whether the Agency has conducted a thorough search for documents captured by the application". The police officers' representative did not elaborate on this ground of appeal at the hearing. Their written submissions are at [77] to [82] of the submissions dated 29 June 2018.
2. The Tribunal addressed the issue of whether the NSW Police Force undertook reasonable searches. That issue arose because one of the decisions the NSW Police Force made in response to the application under the GIPA Act was that certain information "is not held by the agency": GIPA Act, s 58(1)(b). As the Tribunal noted at [79], "Section 53 of the GIPA Act specifies the searches an agency is required to undertake if it seeks to rely on s 58(1)(b)". The agency "must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency." GIPA Act, s 53(2).
3. Firstly, the police officers' submitted that the decision appears to acknowledge at [87], that there was a missing document, but it is unclear whether the Tribunal found that such a document existed. The police officers contended that a document which they referred to as the "surveillance device complaint document" was 'held' by the agency. At [88], the Tribunal was "not satisfied that any order should be made in relation to this document".
4. It is not the Tribunal's role to determine whether a document exists. The issue is whether reasonable searches have been undertaken. Consequently, the Tribunal did not err by failing to make a finding as to whether the document existed.
5. Secondly, the police officers made the point that the Tribunal accepted Detective Chief Inspector Newton's evidence in circumstances where he was not involved in the searches. That ground does not disclose an error of law because there is no requirement that the person giving evidence had to be personally involved in conducting the search.
6. Thirdly, the police officers submitted that the agency did not undertake a reasonable search because the complaint by Superintendent Hardman, which triggered the drugs investigation file, was not identified in the list of documents. That fact, even if correct, does not disclose an error of law.
7. Finally, the police officers attached to their submissions on appeal, a list of arguments which suggests that the searches were inadequate. (Point 2 in Attachment B). These submissions go to the merits of the Tribunal's decision that certain information "is not held by the agency". That list does not identify a question of law. This ground of appeal does not justify setting aside the Tribunal's decision, nor does it warrant a re-hearing.

Does the "fresh evidence" warrant a new hearing?

1. The fresh evidence is the transcript of evidence in the anti-discrimination proceedings and two statements (one from Superintendent Hardman dated 11 January 2016 and the other from Snr Constable Sheehy dated 13 January 2016) tendered in those proceedings. The Tribunal below has heard all the evidence, apart from the "fresh evidence".
2. The public interest test in s 13 of the GIPA Act requires the Tribunal to weigh the considerations for and against "disclosure of government information". The government information in this case is the withheld information in the drugs investigation file and the recorded conversation investigation file. The public interest test relates to the effects of disclosing that information. The fresh evidence may or may not establish that the NSW Police Force engaged in misconduct or unlawful conduct. That is not an issue before the Tribunal in these proceedings. The issue is whether disclosure of the withheld information could reasonably be expected to have that effect.
3. As we have said, the police officers applied to the Tribunal to re-open the proceedings and to admit the fresh evidence, apart from the transcript, which was not available at that stage. The Tribunal refused that application and the police officers have not appealed from that decision. Sheehy v Commissioner of Police [2017] NSWCATAD 349. In relation to the two statements, the police officers are attempting to agitate an issue which has already been determined.
4. In relation to the transcript, if there is conflicting evidence, we may need to make findings about the credibility of witnesses. We should not do so in circumstances where we have not heard that evidence and the Tribunal hearing the anti-discrimination matter has not handed down its decision.
5. For these reasons, we have decided not to re-hear the application with the fresh evidence.

Did the Tribunal make a legal error in determining that the police officers should pay part of the costs of the proceedings?

1. The police officers also appeal from a separate decision of the Tribunal that they pay part of the costs of the proceedings: Sheehy v Commissioner of Police [2018] NSWCATAD 107. In each of the proceedings relating to the three police officers, the Tribunal ordered that the officer pay the NSW Police Force's costs in the sum of $2,500. The costs rule is that each party pays their own costs unless there are "special circumstances warranting an award of costs": NCAT Act, s 60(1) and (2).
2. The Tribunal decided that costs were justified because of: the content and length of cross-examination of Chief Inspector Newton: the police officers' various irrelevant allegations of police misconduct; the content and length of voluminous evidence not relied on in submissions and which were irrelevant to any issue in dispute; and failure to comply with the Tribunal's directions.
3. At [23] of the Tribunal's decision on costs, the Tribunal held that: However, I think that there is some substance in the submission that the proceedings were designed to achieve a collateral purpose. The applicant's affidavits are a case in point. I noted above that the affidavits were largely, if not totally, irrelevant. Their use was said to be justified on the basis of establishing unlawful discriminatory conduct. This was accompanied by regular allegations throughout the hearing to similar effect, and repeated in the applicant's submissions …
4. The police officers contend that their evidence was relevant to the public interest test but that the Tribunal did not appreciate its relevance. In our view, the Tribunal understood that its task was to weigh the competing considerations for and against disclosure of the withheld information. Its task was not to determine whether the police officers had been unlawfully discriminated against on the ground of their homosexuality.
5. The Tribunal concluded at [33] that the matter could have been completed in one day of hearing had there not been the equivalent of a whole day of cross-examination of Inspector Newton. The police officers contend that this cross-examination was relevant and that it would have been completed more quickly if there were fewer improper objections taken by the solicitor for the NSW Police Force.
6. In relation to the directions which were said to have not been complied with, the only ones known to the police officers were short filing delays which did not cause the loss of hearing time.
7. None of these submissions identifies a question of law or discloses an error in the Tribunal's reasoning. Nor are we persuaded that leave should be granted for the appeal to proceed on any other ground. The appeals from the costs decisions are dismissed.

Orders

1. The Commissioner of Police, NSW Police Force is removed as a party to each of the proceedings.
2. The NSW Police Force is joined as a respondent to each of the proceedings.
3. The appeal from the Tribunal's decision in proceedings 2016/00378368 is dismissed.
4. The appeal from the Tribunal's decision in proceedings 2016/00378369 is dismissed.
5. The appeal from the Tribunal's decision in proceedings 2016/00378372 is dismissed.
6. The appeal from the Tribunal's decision in proceedings 2016/00378368, that Christopher Sheehy is to pay the respondent's costs in the sum of $2,500 is dismissed.
7. The appeal from the Tribunal's decision in proceedings 2016/00378369, that Steven Rapisarda is to pay the respondent's costs in the sum of $2,500 is dismissed.
8. The appeal from the Tribunal's decision in proceedings 2016/00378372, that Shane Housego is to pay the respondent's costs in the sum of $2,500 is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2018