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Administrative Decisions Tribunal
New South Wales

Medium Neutral Citation:
Commissioner of Police, NSW Police Force v Roy (GD) [2013] NSWADTAP 6
Hearing dates:
19 November 2012
Decision date:
23 January 2013
Before:
Judge K P O'Connor, President
S Higgins, Deputy President
J McClelland, Non-judicial Member
Decision:

By consent:

1. Appeal allowed.

2. The decision of the Tribunal dated 19 June 2012, and reported as Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120, is set aside.

3. The decision of the Appellant dated 8 July 2011 is affirmed.

Catchwords:
Appeal - Respondent applies to withdraw from matter after hearing - disposal of proceedings - consent orders - no substantive reasons given by Appeal Panel - effect on decision below
Legislation Cited:
Administrative Decisions Tribunal Act 1997
Government Information (Public Access) Act 2009
Cases Cited:
Council of the New South Wales Bar Association v LI [2005] NSWCA 415
New South Wales Bar Association v 'LI' [2005] NSWADT 15
Category:
Principal judgment
Parties:
Commissioner of Police, NSW Police Force (Appellant)
Peter Roy (Respondent)
Representation:
Counsel
K Mantziaris (Appellant)
K Rose, Sparke Helmore (Appellant)
K Anderson, Nyman Gibson Stewart (Respondent)
File Number(s):
129019
Decision under appeal
Citation:
Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120
Date of Decision:
2012-06-19 00:00:00
Before:
General Division
File Number(s):
113252

REASONS FOR DECISION:

1The following orders are made by consent in the circumstances explained below:

1. Appeal allowed.

2. The decision of the Tribunal dated 19 June 2012, and reported as Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120, is set aside.

3. The decision of the Appellant dated 8 July 2011 is affirmed.

2The Commissioner lodged his Notice of Appeal on 17 July 2012, and lodged an Amended Notice of Appeal on 24 September 2012. The appeal hearing was fixed for 19 November 2012, and proceeded on that day. Mr Mantziaris appeared for the Commissioner, and Ms Anderson for the respondent.

3In the decision under appeal the Tribunal had set aside the Commissioner's decision made 8 July 2011 to refuse the respondent's application made under the Government Information (Public Access) Act 2009 for access to an internal document entitled 'Standard Operating Procedures Stationary Speed Enforcement - LIDAR & RADAR' dated March 2007.

4The appeal directions had not included the usual directions for the exchange of written submissions prior to hearing. The Panel gave the Commissioner leave to rely on the Amended Notice of Appeal. The Appeal Panel allowed the respondent to file any written submissions going to any issues raised by the amended notice or otherwise not later than 3 December 2012, with the Commissioner to file any reply by 10 December 2012. The respondent did not file submissions. On 11 December 2012 the respondent notified the Registrar that he had decided not to file any further submissions, and wished to 'withdraw from the matter'.

5An application of this kind from a review applicant who is a respondent to an appeal amounts, in effect, to a decision on the applicant's part to withdraw the underlying review application.

6The Tribunal has a discretion to dismiss at any time proceedings 'if the applicant ... withdraws the application to which the proceedings relate' (Administrative Decisions Tribunal Act 1997, s 73(g)(i)). The Tribunal is not bound to dismiss the application: see generally, New South Wales Bar Association v 'LI' [2005] NSWADT 15; Council of the New South Wales Bar Associaton v LI [2005] NSWCA 415.

7Directions hearings were held by the President on 14 and 18 December 2012. They gave rise to an agreement between the parties as to the above orders.

8The Commissioner reserved his right to apply for a costs order.

9In the circumstances, the Appeal Panel does not consider it appropriate to issue a substantive decision in relation to the Commissioner's appeal. It notes that the Commissioner vigorously opposed the decision of the Tribunal to grant access to the documents in issue; and presented an arguable case. We observe that in these circumstances the decision of the Tribunal below should not be treated as a precedent in relation to future similar access applications.

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: 24 January 2013