PANOS PANAYIOTOU In Person v SOUTH AUSTRALIA POLICE - [2026] SASC 28

On Appeal from SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (TRIBUNAL MEMBER) 2025/SA001716 Appellant: PANOS PANAYIOTOU In Person Respondent: SOUTH AUSTRALIA POLICE - Solicitor: CROWN SOLICITORS OFFICE (CSO) Hearing Date/s: 27/11/2026 File No/s: CIV-25-009395 B SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. PANAYIOTOU v COMMISSIONER OF POLICE [2026] SASC 28 Judgment of the Honourable Justice McIntyre 17 March 2026 APPEAL AND NEW TRIAL - APPEAL ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - REVIEW OF DECISIONS ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS This is an application for permission to appeal a decision of the South Australian Civil and Administrative Tribunal (‘SACAT’). The appellant made an application to the respondent under the Freedom of Information Act 1991 (SA) (‘FOI Act’) for access to a document of the Department of Home Affairs. The respondent determined not to release the document on the basis that it is exempt under the FOI Act. The appellant sought internal review of that determination which the respondent refused, in part, because the application was made out of time. Subsequently, the appellant lodged an application with SACAT for review of the internal review decision. SACAT dismissed the application for want of jurisdiction. The appellant contends that the SACAT order, dismissing the application, is invalid as it fails to the name the Tribunal member issuing the order and counsel for the respondent. The appellant further contends that SACAT has jurisdiction to hear the review and that the Tribunal did not consider relevant evidence in its reasons. The respondent contends that the appellant has not demonstrated any error and that SACAT correctly determined that it lacked jurisdiction. It is said that evidence adduced by the appellant was irrelevant to the question of jurisdiction. The respondent further contends that SACAT validly omitted to disclose information pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013 (SA). -- 1 of 8 -- Held, refusing the application for leave to appeal: 1. The appellant’s notice of appeal does not disclose error on the part of SACAT, nor does it raise a question of legal significance or a potential miscarriage of justice. South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 31, 33, 34, 60, 71; Freedom of Information Act 1991 (SA) ss 18(8), 19, 20, 29(2), 40(2) sch 1, s 3, referred to. Varricchio v Wentzel (2016) 125 SASR 191; Aldridge v The Registrar of Firearms [2022] SASC 5; House v The King (1936) 55 CLR 499; Draoui v Le [2021] SASCA 33; El Shafei v Central Adelaide Local Health Network [2017] SACAT 5, considered. -- 2 of 8 -- PANAYIOTOU v COMMISSIONER OF POLICE [2026] SASC 28 Single Judge Appeal: Civil 1 This is an application for permission to appeal under s 71 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (‘SACAT Act’) against a decision by a member of the South Australian Civil and Administrative Tribunal (‘SACAT’). That decision concluded that SACAT did not have jurisdiction to hear the appellant’s application, which concerned an application to the respondent under the Freedom of Information Act 1991 (SA) (‘FOI Act’). 2 For the reasons that follow, I decline to grant permission to appeal. Background 3 The appellant made an application to the respondent under the FOI Act for access to the following information: … copy of reports completed by Senior Border Force Officer pertaining to the interview that evidently occurred on 29 April 2021 with Senior Border Force Officer. These reports were emailed to three SAPOL officers on 20 May 2021. 4 In response, the respondent’s Freedom of Information Unit located a document comprising seven pages relating to the application. On 23 September 2024, the respondent determined not to release that document on the basis that it was exempt under cl 3, sch 1 of the FOI Act (‘the Initial Determination’). 5 On 14 November 2024, the appellant made an application for an internal review of the respondent’s Initial Determination. On the same day, and confirmed again to the appellant on 15 November 2024, the respondent refused to conduct an internal review of the Initial Determination (‘the Respondent’s Determination’) on the basis that: 1. The appellant’s internal review application was lodged 23 days outside the legislated time frame for review set out in s 29(2)(e) of the FOI Act; 2. The appellant’s reason for the late application was not a ‘good reason’ to accept the late application; and 3. The review requested concerned a search and determination undertaken by the Commonwealth Department of Home Affairs, and not by the respondent. 6 On 26 May 2025, the appellant lodged an application with SACAT contending that he was aggrieved by the Respondent’s Determination under s 40(2)(a) of the FOI Act. -- 3 of 8 -- [2026] SASC 28 McIntyre J 2 7 On 18 July 2025, SACAT determined that it did not have jurisdiction to hear the appellant’s application for review of the Respondent’s Determination and, accordingly, dismissed the application (‘the Tribunal’s Determination’). 8 On 8 August 2025, the appellant lodged a notice of appeal in this Court identifying two grounds of appeal in respect of the Tribunal’s Determination:1 1. The order issued by the Tribunal is invalid. The order issued fails the reasonable accountability test. There is no name of the Member issuing the order and no name of the respondent who appeared at the hearing. 2. The Tribunal has jurisdiction and the reasoning which describes why there is no jurisdiction does not mention any of the relevant evidence supplied by the applicant prior to the hearing. 9 At the hearing of the appeal, the appellant abandoned ground one. General principles 10 Section 71 of the SACAT Act provides for appeals from SACAT to the Supreme Court. The appellant requires leave to appeal. The respondent opposes the application for leave. 11 The SACAT Act provides processes and procedures for the timely and cost- efficient disposition of reviews such as those under the FOI Act. Accordingly, consistent with the authorities, this Court ought not readily grant leave to appeal. As Doyle J (as he then was) said in Varricchio v Wentzel:2 As the decisions of Pix v South Australian Housing Trust and Jackson v Lepp Investments illustrate, this Court will not routinely grant leave to appeal in cases such as the present. To my mind, the Court should not readily grant leave to appeal in cases where to do so would tend to undermine the legislative intention of the South Australian Civil and Administrative Tribunal Act that tenancy disputes be dealt with by a specialist tribunal which is better equipped to deal with such disputes in a timely and cost efficient way. Granting leave to appeal too readily would tend to undermine this objective, and serve only to add a further layer of expense and delay. [Citations omitted] 12 In determining the issue of whether it is appropriate to grant leave, it is necessary to consider whether the subject matter is of sufficient substance, or whether there is a potential injustice to the appellant, sufficient to justify the grant of leave. In Aldridge v The Registrar of Firearms,3 Parker J reiterated the principle that leave to appeal will not readily be granted: 1 FDN 1. 2 (2016) 125 SASR 191 at [37]. 3 [2022] SASC 5 at [33]. -- 4 of 8 -- [2026] SASC 28 McIntyre J 3 That principle is intended to screen out cases where the disputed question has little or no practical or legal significance and there is no issue of principle nor a potential miscarriage of justice. 13 If leave is granted, the appeal is by way of rehearing. The Court may draw inferences of fact from evidence or material that was before SACAT and may, as it thinks fit, allow further evidence or materials to be presented to it. The Court may affirm, vary or set aside the decision appealed against and, if it thinks fit, may remit the matter back to SACAT with any directions that the Court considers appropriate. 14 In deciding whether an appealable error is established for the purpose of s 71 of the SACAT Act, the Court must determine whether the decision was infected by a process error or an outcome error of the kind identified in House v The King.4 Error will be established if the Tribunal Member acted on a wrong principle, took into account irrelevant matters, mistook the facts or failed to take into account relevant matters. The Court should exercise appellate restraint with respect to the factual findings. These findings should not be interfered with unless glaringly improbable or contrary to compelling inferences. 15 Accordingly, the principles relevant to the question of leave to appeal and House v King restrictions are similar. The appellant needs to demonstrate not only that an error occurred, but also that there was a specific or process error. I will consider both the question of leave to appeal and the appeal grounds with these principles in mind. The contentions 16 The appellant says that there is both an error of law and a process error apparent from the SACAT reasons. The error of law relates to the Tribunal Member’s application of ss 18(8) and 40(2)(a) of the FOI Act and her ultimate finding that the appellant was not entitled to apply to SACAT for a review of the respondent’s Determination under s 34 of the SACAT Act. The process error is outlined at page two of the appellant’s written submissions5 in which he sets out a sequence of events that he contends were not considered or commented upon by the Tribunal Member. In particular, the Tribunal Member did not comment upon his application for an extension of time in respect of an internal review. 17 In further written submissions filed after the hearing, the appellant makes two propositions. First, he invites me to consider:6 … that there is a possible correlation between the Tribunal’s error and the lack of name of the decision of the Tribunal’s decision document (which had not occurred for any other decisions issued from the Tribunal to the applicant). In other words, because of the error articulated, there was/is no ownership from the Tribunal to account for that error. This is 4 (1936) 55 CLR 499 at 505; Draoui v Le [2021] SASCA 33. 5 FDN 28. 6 FDN 31. -- 5 of 8 -- [2026] SASC 28 McIntyre J 4 to shield the connection between the document under contest and the failed abuse of INTERPOL systems with malice/greedy intentions with respect to the applicant. 18 This submission appears to reagitate ground one of the appeal which the appellant abandoned at the hearing. I do not consider that the omission of the Tribunal Member’s name constitutes a valid ground of review. The name was omitted under s 60 of the SACAT Act which permits the Tribunal to direct that certain information is not disclosed to any party to the proceedings. The absence of the name does not affect the adequacy of the reasons provided for the decision. 19 The second proposition relates to the argument advanced by the appellant at the hearing concerning s 18(8) of the FOI Act and contends that it is not unreasonable to correlate the terms “access application” with “internal review request” for the reasons set out in his submissions. 20 The respondent contends that the appellant has not demonstrated any error in SACAT’s approach and that the Tribunal correctly determined that it lacked jurisdiction. In doing so, the respondent contends that SACAT was not required to consider evidence relating to the merits of the decision as such evidence is irrelevant to the jurisdictional question in this case. Legislation and consideration 21 SACAT is a creature of statute. It does not have an inherent jurisdiction whereby it can review any decision brought before it. 22 Section 31 of the SACAT Act is as follows: 31—Sources of jurisdiction (1) The Tribunal will have the jurisdiction conferred on it by or under this or any other Act. (2) Without limiting subsection (1), if a provision of an Act enables an application, referral or appeal to be made to the Tribunal, or a claim to be brought before the Tribunal, the Act will be taken to confer jurisdiction on the Tribunal to deal with the matter concerned. 23 This is not a matter falling within the original jurisdiction of SACAT as defined in s 33 of the SACAT Act. Accordingly, it is necessary to consider the Tribunal’s review jurisdiction as set out in div 3 of the SACAT Act. 24 Section 34 of the SACAT Act relevantly provides as follows: 34—Decisions within review jurisdiction (1) If the matter that a relevant Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision (a reviewable decision), the matter comes within the Tribunal's review jurisdiction. ……………….. -- 6 of 8 -- [2026] SASC 28 McIntyre J 5 25 The balance of div 3 sets out the procedure to be undertaken by SACAT and the obligations of the decisionmaker, once a valid review is before the Tribunal. To ascertain whether there is a valid review before the Tribunal, it is necessary to consider the provisions of the FOI Act. 26 Section 40(2) of the FOI Act confers review jurisdiction on SACAT in relation to determinations where a person, not being an agency, is dissatisfied, in the following circumstances: 40—Reviews by SACAT ……………….. (2) A person (other than an agency)— (a) who is aggrieved by a determination of an agency following an internal review; or (b) who is aggrieved by a determination that is not subject to internal review; or (c) who is aggrieved by a determination made on a review under Division 1, may apply for a review under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 of the determination by SACAT. ……………….. 27 Accordingly, s 40(2) of the FOI Act provides that a person such as the appellant may only seek a review of a determination of an agency. A “determination” is a decision of the kind identified in ss 19 and 20 of the FOI Act, relevantly a determination, to give or to refuse access to a document requested in the application. 28 The meaning of the term “determination” in the FOI Act was considered by SACAT in El Shafei v Central Adelaide Local Health Network7 in the context of an objection that SACAT did not have power to review an agency’s claim that it did not hold a document. SACAT stated, correctly in my view, that the FOI Act refers to a determination in “a very precise manner”8 and that Parliament was “at pains to identify what decisions are ‘determinations’ which are subject to review”.9 In that case, it was held that an agency claiming to not hold a document was not a determination for the purposes of the Act. 29 The term “determination” carries a specific and limited meaning under the FOI Act. The FOI Act does not confer any general supervisory jurisdiction on SACAT to review other steps or procedural actions taken by an agency in dealing with an application. Jurisdiction is confined to determinations as defined by the FOI Act. Further, SACAT may only review determinations that are subject to 7 [2017] SACAT 5. 8 Ibid at [19]. 9 Ibid at [25]. -- 7 of 8 -- [2026] SASC 28 McIntyre J 6 internal review, once an internal review has been conducted.10 Otherwise, SACAT does not have jurisdiction. There is no provision in the FOI Act that creates a right of review where an agency refuses to conduct an internal review because the application was made out of time. A refusal by an agency to exercise its discretion to grant an extension of time, or to dismiss the matter on that basis, is not a “determination” within the meaning of the FOI Act. It is not a refusal of access under s 19 of the FOI Act. 30 The appellant places reliance upon s 18(8) of the FOI Act which provides as follows: 18—Agencies may refuse to deal with certain applications ……………….. (8) A refusal to deal with, or to continue to deal with, an application under this section is a determination for the purposes of this Act. 31 This reliance is misconceived. SACAT found, correctly in my view, that s 18(8) only applied to applications for access to documents under pt 3 of the FOI Act and not to applications for internal review under s 29. 32 Accordingly, the appellant’s notice of appeal does not disclose error on the part of SACAT, nor does it raise a question of legal significance or a potential miscarriage of justice. In those circumstances, I decline to grant leave to appeal. 10 South Australian Civil and Administrative Tribunal Act 2013 (SA) s 40(2). -- 8 of 8 --