Tribunal Sets Aside Summon To Internal Reviewer

The Tribunal set aside a summons to compel an internal reviewer to testify, finding no relevant evidence could be provided. The decision was based on the Administrative Decisions Tribunal Act 1997.

CITATION: [NAME] v Commissioner of Police, New South Wales Police [2004] NSWADT 292 DIVISION: General Division APPLICANT PARTIES: [NAME] RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 033337 HEARING DATES: 21/09/2004 SUBMISSIONS CLOSED: 09/21/2004 DATE OF DECISION: 12/17/2004

BEFORE: Montgomery S - Judicial Member APPLICATION: Summons - application to set aside MATTER FOR

DECISION: Preliminary matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 CASES CITED: [NAME] v [NAME] & Wildlife Service [2003] NSWADT 267 [NAME] v Commissioner of Police, NSW Police [2004] NSWADT 202 APPLICANT REPRESENTATION: [NAME], barrister RESPONDENT [NAME], barrister ORDERS: Order made: 23/09/2004 - The summons to attend and give evidence issued to [NAME] is set aside.

REASONS FOR

DECISION 1 This is an application to set aside a summons to attend and give evidence issued to [NAME] at the request of the Applicant. [NAME], is the internal reviewer of the decision that is under review in the substantive proceedings. [NAME]'s statement of reasons has been tendered in the Commissioner's brief in these proceedings. The Commissioner seeks to set aside the summons on the basis that it is an abuse of process. 2 At the hearing of this application on 21 September 2004 I made an order setting aside the summons. The Commissioner has requested reasons for my decision. These reasons are provided in response to that request. The Commissioner's case 3 The Commissioner's case is that [NAME] is an adjudicator, performing a statutory role under section 53 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") and he is not in a position to give material evidence in this case. He is not in a position to give direct evidence about any fact that is addressed in his statement of reasons. He was simply provided with facts and he analysed those facts, applied the applicable law and delivered a decision with his reasons. 4 [NAME] submitted that part of the answer surrounding whether or not [NAME] should be compelled to give evidence in these proceedings is found in the nature of the actual proceedings before the Tribunal. Section 63 of the ADT Act provides that in determining an application the Tribunal is to decide what the correct and preferable decision is. That essentially means that the Tribunal stands in the shoes of the Commissioner and makes its own decision in place of the Commissioner's decision. 5 The Applicant has not provided any evidence as to how [NAME]'s evidence would be relevant. [NAME] submitted that the summons has all the hallmarks of a fishing expedition in the sense that the Applicant is trying to go beyond [NAME]'s decision, beyond his reasons, to find out if there is perhaps something further. He argued that if a witness is to give evidence in these proceedings the witness has to give evidence about material facts and [NAME] is just not in a position to give evidence about any material fact. The Applicant's case 6 [NAME] submitted that the issue of the summons for [NAME] to appear and give evidence was not an abuse of process or a fishing expedition. The Applicant contends that [NAME] has apparently exceeded his authority in more than one way. He has exceeded his authority in creating policy within the firearms registry with respect to rural handgun permits. This has impacted adversely on a fairly significant group of people in the community. The way that [NAME] has apparently gone about the determinative process raises those issues. 7 The Applicant is concerned that there are policies or even unstated policies, in place at the firearms registry that affect the decision under review; that [NAME] might be taking into account a policy that is not a fair policy, or not in accordance with the legislation and not within his powers. The Applicant contends that the firearms registry has adopted a flawed approach to making these decisions; that there is a process that is not transparent and the decision makers are not really accountable. [NAME] confirmed that he seeks to cross-examine [NAME] about issues such as this. Decision and Reasons 8 I dealt with the issue of the Tribunal's power to set aside summonses in the matter of [NAME] v [NAME] & Wildlife Service [2003] NSWADT 267. A summons can be set aside on several grounds including where the summons was not issued for the purpose of obtaining relevant evidence or the summonsed witness is unable to give relevant evidence. 9 In [NAME] v Commissioner of Police, NSW Police [2004] NSWADT 202 I dealt with the issue of the Tribunal's power to deal with matters where it is alleged that the decision maker has exceeded their power. In that matter there was the issue of whether the person who had made the decision actually had the delegation to make the decision. I said that I was of the view that because of section 6 of the ADT Act it really doesn't matter whether the decision maker has exceeded their delegation, because it is still a reviewable decision. 10 In my view, if there is some issue about [NAME] exceeding his delegation it is a matter for submissions at the end of the day. If he has wrongly applied the law or acted outside his delegation it is a matter for submissions. It is not a matter for evidence. Once a matter comes before the Tribunal it begins afresh. If reference is made to a policy and the submission is that I have to take notice of that policy, I will hear argument on the issue. The Applicant will then know the argument that is being put to me. I cannot take into account any policy that is known only to the firearms registry and to nobody else. 11 I have to decide what the correct and preferable decision is, not whether or not [NAME] has exceeded his jurisdiction. I decide what should happen, not what [NAME] should have done. In that context I cannot see what evidence [NAME] could give that would assist. I am going to set aside this summons because I am of the belief that there is nothing that [NAME] would be able to contribute that would be relevant to these proceedings. Order 12 The summons to attend and give evidence issued to [NAME] is set aside.

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