Miriani v Commissioner of Police

[2021] NSWCATAD 93

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Miriani v Commissioner of Police [2021] NSWCATAD 93

Hearing dates:

On the papers

Date of orders:

13 April 2021

Decision date:

13 April 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Gracie, Senior Member

Decision:

Proceedings nos 2020/00222792, 2020/00232954 and 2020/00256717 are dismissed pursuant to s 55 (1) (d) of the Civil and Administrative Tribunal Act 2013 (NSW).

Catchwords:

ADMINISTRATIVE REVIEW. Government Information (Public Access) –- access applications - applications for administrative review - reviewable decision - deemed refusals - failure to comply with directions for filing and service of evidence - no explanation for delay - want of prosecution - summary dismissal

Legislation Cited:

Bail Act 2013 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Police Act 1990 (NSW)

Surveillance Devices Act 2007 (NSW)

Cases Cited:

Bousgas v H D Constructions (Aust) Pty Ltd [2017] NSWCATAP 122

Braiding v Charles Sturt University [2016] NSWCATAD 90

Hariz v Commissioner of Police [2021] NSWCATAD 6.

Hoser v Hartcher [1999] NSWSC 527

Murabito v Commissioner for Fair Trading [2020] NSWCATAP 63

Texts Cited:

None

Category:

Principal judgment

Parties:

Joe Miriani (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2020/00222792; 2020/00232954; 2020/00256717

Publication restriction:

None

Reasons for decision

Introduction

1. There are three separate proceedings before the Tribunal for determination. The applicant is the same in each of them. They arise from access applications made by the applicant under s 9 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) seeking access to information from the respondent.

2. The first is proceeding no 2020/00222792 (the first proceeding), being an Application for Administrative Review of a decision made by the respondent dated 28 July 2020 (the first application) pursuant to an access application made by the applicant on 2 June 2020. The first application for review was filed in the Tribunal on 30 July 2020.

3. The second is proceeding no 2020/00232954 (the second proceeding) which involves an Application for Administrative Review based on a deemed refusal by the respondent to make a decision (the second application). In that matter, the respondent did not make a decision with respect to a second access application beyond informing the applicant that it regarded his request as "invalid" based on a lack of information provided with the second access application. The second application for review was filed in the Tribunal on 10 August 2020.

4. The third is proceeding no 2020/00256717 (the third proceeding) and involves an Application for Administrative Review by a deemed refusal to make a decision with respect to a third access application dated 27 May 2020 (the third application). The third application for review was filed in the Tribunal on 1 September 2020.

Brief History of the Three Proceedings

5. As I set out in more detail later in these reasons, various orders for the filing and service of evidence were made in each of the three proceedings.

6. On 11 November 2020, the respondent informed the applicant (and the Tribunal) that the applicant's non-compliance with the timetable set on 20 October 2020 in the first proceeding was causing the respondent to be unable to comply with the directions for the filing and service of its evidence in the second and third proceedings. The applicant did not provide any response to that communication.

7. From that date, the three proceedings were administratively and procedurally dealt with and heard together in the Tribunal.

8. In response to the respondent's request that the Tribunal vary the orders in the three proceedings on 13 November 2020, the Tribunal made directions on 16 November 2020 to vary the earlier timetables and ordered that in each of the three proceedings:

1. The applicant was to file and serve his material by 21 December 2020;

2. The respondent was to file and serve its material by 29 January 2021;

3. The applicant's material in reply was to be filed and served by 12 February 2021;

4. The matters were listed for hearing for 2 days commencing on 17 February 2021.

9. The applicant did not file or serve any material by 21 December 2020 in accordance with the revised directions. On 23 December 2020, the respondent informed the applicant (and the Tribunal) of its intention to apply for a dismissal of the three proceedings for want of prosecution under s 55 (1) (d) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The applicant did not provide any response to the respondent's communication.

10. On 11 January 2021 the respondent requested the relisting of the three proceedings for directions to be made in relation to the application for summary dismissal. On 19 January 2021, the Tribunal listed the proceedings on 27 January 2021 for the making of directions with respect to the dismissal application.

11. On 21 January 2020 the applicant requested an adjournment of the directions hearing. The respondent objected to any adjournment. Apparently no reasons for the request for an adjournment were provided.

12. At the directions hearing on 27 January 2021, the Tribunal noted that the applicant filed in the Registry in person an application for an adjournment (in respect of all three proceedings) at 9:46am that same day but it was not served on the respondent.

13. The applicant's filed a letter dated 27 January 2021 addressed to the Registrar in support of the adjournment. That letter referred to an earlier request made by the applicant of the Registrar dated 19 January 2020 "seeking an explanation, pursuant to section 38 (5) (b) of the Civil and Administrative Tribunal Act 2013 (the Act), of all aspects of the procedure of the Tribunal relating to the listing of matters in chambers...."

14. The request of 19 January 2021 had stated:

Pursuant to section 38 (5) (b) of the Civil and Administrative Tribunal Act 2013,I request an explanation of all aspects of the procedure of the Tribunal relating to the listing of matters in chambers when the parties are not being given an opportunity to advise on suitability of listing.

I will unfortunately be unavailable on the time and date that the matters have been listed....".

15. There were also earlier communications from the applicant addressed to the Registrar to the same effect, namely on 26 November 2020 and 30 November 2020. The former requested under s 38 (5) (b) of the NCAT Act an explanation for the listing of the three proceedings together for hearing on 17 and 18 February 2021. The latter requested the Registrar to "explain every aspect of the Tribunal's procedures in relation to current case management issues".

16. Returning to the letter of 27 January 2021 in support of the adjournment, the applicant's letter further stated:

I note that the Tribunal is yet to provide the requested information and it was my intention to make an informed decision in relation to the timely prosecution of the above matters when that explanation was provided.

...

However, the prosecution of administrative review matters was brought to a halt because the Tribunal is not providing explanations when requested to do so, or is providing a response after ancillary or interlocutory decisions are made by the Tribunal."

17. It appears that the applicant appeared by telephone at the directions on 27 January 2021. The application for an adjournment was heard and refused.

18. The Tribunal relevantly ordered:

1. The respondent is to file and serve submissions in support of the application for dismissal of the proceedings by 10 February 2021;

2. The applicant is to file and serve any submissions in response by 24 February 2021.

19. The Tribunal noted that both parties agreed that a hearing was not required for the determination of the dismissal application. Accordingly, the Tribunal made an order under s 50 of the NCAT Act that a hearing be dispensed with and for the Tribunal to determine the dismissal application on the basis of the documents received by the Tribunal by 24 February 2021.

20. The 2 day hearing listed for 17 and 18 February 2021 was vacated.

21. On 10 February 2021, the respondent filed its submissions on the dismissal application, which included a chronology setting out the history of each of the three proceedings from the date of the filing in the Tribunal of each of the three applications for administrative review.

22. No submissions or other material has been received from the applicant either as at 24 February 2021 or thereafter.

Legislative Basis for Summary Dismissal

23. Relevant to the present application for dismissal, s 55 of the NCAT Act provides:

55 Dismissal of proceedings

1. The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances—

   (a)   if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,

   (b)   if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

   (c)   if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,

   (d)   if the Tribunal considers that there has been a want of prosecution of the proceedings.

2. The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure.

   24. In particular, s 55 (1) (d) of the NCAT Act was relied upon by the respondent on the grounds of "want of prosecution".

Access Applications and Applications for Review by the Tribunal

25. For the purpose of background only, I will summarise the nature of the three access applications and the three applications for review filed in the Tribunal.

26. By way of context, I interpolate here that all three access applications contained a submission said to be made by the applicant under s 42 of the GIPA Act, that was effectively in the same terms. The applicant contended that the information sought by the applicant "could reasonably be expected to reveal and substantiate that members of the NSW Police Force have engaged in misconduct or negligent, improper or unlawful conduct". The applicant contended, again in words to the same effect in all three access applications, that there "is a public interest to ensure that the processes surrounding the actions and decisions of the agency ... are not influenced by the police officers who are the subject of my allegations."

The first application and first proceeding: 2020/222792

27. In summary, the first access application dated 27 May 2020 sought the following (using my numbering for convenience only):

1. information relating to the applicant's eviction from his residential premises for the period February 2019 to the date of the first access application, in relation to eviction orders sought by the respondent and made by the Tribunal while he was in custody;

2. records relating to communications between the respondent and Corrective Services NSW concerning his time in custody at the Parklea Correctional Centre from 26 June 2019 to the date of the first access application;

3. documents relating to the seizure of property pursuant to a Search Warrant issued by the Downing Centre Local Court that were in the possession, custody or control of NSW Police but not recorded on the relevant Property Seizure/Exhibit Forms;

4. certain policy and related documents relating to search warrants and surveillance devices, including under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and the Surveillance Devices Act 2007 (NSW).

28. There were then some email exchanges between the parties to clarify the first access application and to reduce the scope in relation to the request for information relating to the eviction of the applicant from his premises.

29. The respondent's decision dated 28 July 2020 stated that searches for the documents under items 1-3 above did not reveal any documents held by the respondent in relation to such matters. In accordance with s 58 (1) (b) of the GIPA Act, the first access application was determined on the basis that "the information is not held by the agency".

30. In relation to the policy documents, the respondent (with the consent of Corrective Services NSW) released (in full) a memorandum of understanding between the NSW Police and Corrective Services NSW. The other policy documents sought were refused (in full) based on public interest considerations under clause 1 (h) and clause 2 (b) of the Table in section 14 of the GIPA Act (the s 14 Table).

31. Clause 1 (h) of the s 14 Table concerns "responsible and effective government". In reliance on clause 1 (h) of the s 14 Table, the respondent determined that in relation to the policy and other documents refused, the disclosure of information in those documents could reasonably be expected to prejudice the effectiveness of the methods and procedures used by the NSW Police relating to investigations.

32. Clause 2 (b) of the s 14 Table concerns "law enforcement and security". The respondent determined that disclosure of the policy and other documents that it refused to release could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of a law or prejudice the enforcement of a law.

33. On balance, the decision determined that the public interest in refusing access based on the considerations in clauses 1 (h) and 2 (b) of the s 14 Table outweighed the public interest in favour of disclosure provided under the GIPA Act. I am satisfied that it was open to the respondent to rely upon those particular grounds in its decision but I do not express any view as to whether the balancing exercise undertaken by the respondent was sound or correct. I need not do so for the purpose of determining the present application brought by the respondent for summary dismissal.

34. After the filing of the first application for review, on 3 September 2020 the Tribunal made orders for the applicant to file and serve any material to be relied upon by 24 September 2020. No evidence was filed or served by the applicant. No response was received from the applicant to the follow up communication to him from the respondent to him dated 28 September 2020.

35. On the relisting of the matter on 20 October 2020, which was at the request of the respondent, the Tribunal's earlier orders were amended to provide for the applicant to file and serve his material by 26 October 2020. The applicant had still not filed or served any material by 11 November 2020 when the respondent proposed amended orders to still allow for the applicant's material to be filed and served. The respondent sought the applicant's response to such a proposal by 13 November 2020. The applicant did not provide any response.

36. As mentioned above, the first proceeding was to then run and be heard together with the other two proceedings. On 16 November 2020, orders were made for the applicant to file and serve his evidence in all three proceedings by 21 December 2020, which he failed to do.

The second application and second proceeding: 2020/232954

37. In summary, the second access application dated 22 June 2020 sought the release by the respondent of information relating to (my numbering for convenience only):

1. police checks of the applicant's bail compliance at premises in the Sydney CBD, including communications with the Owners Corporation of that address and any related investigation and surveillance activities undertaken by police at that location;

2. the facts and circumstances and any findings of any police investigation surrounding his arrest on an alleged breach of bail on 4 June 2020;

3. the facts and circumstances surrounding damage to a mobile phone (with a description and serial number provided);

4. certain policy documents relating to bail compliance checks, including under the Bail Act 2013 (NSW) and the safe-keeping of property held in police custody.

38. The respondent notified the applicant by an email on 1 July 2020 that the application was not a valid access application under s 51 (4) of the GIPA Act because it did not contain sufficient detail for the respondent to identify the type of information sought by the applicant in relation to item 1 above. The applicant was invited to withdraw the second access application with respect to the matters in item 1 above or provide further information, the particulars of which were set out by the respondent in its email. The respondent raised some other matters for clarification and further consideration by the applicant, specifically in relation to the matters sought in item 2 above.

39. There then followed exchanges between the parties leading to the applicant agreeing to reduce the scope in relation to his request for information surrounding the alleged breach of bail in item 1 above.

40. There was again a request by the respondent by an email on 6 July 2020 to clarify the matters concerning item 1 above and the issues concerning the police checks at the premises in the Sydney CBD. The applicant provided a "Notice of Amended Scope" with respect to those matters dated 8 July 2020.

41. On 17 July 2020 the respondent informed the applicant that it had received a "valid" access application on 15 July 2020, which was presumably a reference to the applicant's Notice of Amended Scope.

42. No decision was made by the respondent in relation to the "valid' access application and accordingly, as the applicant claimed in his second application for review filed in the Tribunal, there was a deemed refusal on the part of the respondent to deal with the second access application and that deemed refusal is open to review by the Tribunal.

43. After the filing of the second application for review on 10 August 2020, the Tribunal made orders on 29 September 2020 for the applicant to file and serve any material to be relied upon by 20 October 2020. No evidence was filed or served by the applicant. On 20 October 2020, the respondent proposed an amended timetable. No response was received from the applicant. The applicant had still not filed or served any evidence by 11 November 2020. On 16 November 2020, the timetable was varied by the Tribunal.

44. As mentioned above, the second proceeding was to then run and be heard together with the other two proceedings and on 16 November 2020, orders were made for the applicant to file and serve his evidence in all three proceedings by 21 December 2020, which he failed to do.

The third application and third proceeding: 2020/00256717

45. In summary, the third access application dated 29 July 2020 sought the release of information by the respondent relating to (my numbering for convenience only):

1. the handling and processing of the first access application dated 27 May 2020 (which is the subject of the first proceedings);

2. the facts and circumstances surrounding an allegation that the applicant was absent from his residential premises on 14 July 2020, when a bail compliance check was conducted by NSW police officers;

3. an instrument of appointment or assignment of duties with respect to the person currently discharging the role of Senior Responsible Officer for the management of archives and records under the State Records Act 1998 (NSW) and records stored on the respondent's intranet site;

4. policies, guidelines and rules governing the management of the respondent's InfoLink Unit and for searches which are to be conducted under the GIPA Act and the processing and handling of complaints under Part 8A of the Police Act 1990 (NSW).

46. It does not seem to be in issue that no decision was made by the respondent in respect of the third access application. Unlike the other two access applications, there were no subsequent exchanges of correspondence between the parties after the third access application was submitted. Therefore, I have satisfied myself that the third access application was in fact received by the respondent by reference to an extract from the respondent's "Community Portal" dated 4 August 2020 and which confirmed receipt of the third access application.

47. Accordingly, as the applicant claimed in the third application for review filed in the Tribunal, there was a deemed refusal on the part of the respondent to deal with the third access application and that deemed refusal is open to review by the Tribunal.

48. After the filing of the third application for review on 1 September 2020, the Tribunal made orders on 25 September 2020 for the parties to file and serve their evidence. The applicant was to file and serve any material to be relied upon by 6 November 2020. The matter was listed for hearing on 23 November 2020.

49. No evidence was filed or served by the applicant. Therefore, on 20 October 2020, as in the case of the second application, the respondent proposed an amended timetable to enable a variation to the date for filing and service of the applicant's evidence in the first proceeding. Again, no response was received from the applicant. The applicant had still not filed or served any evidence by 11 November 2020.

50. On 16 November 2020, the timetable was varied by the Tribunal. As mentioned above, from that date the third proceeding was to then run and be heard together with the other two proceedings. On 16 November 2020, orders were made for the applicant to file and serve his evidence in all three proceedings by 21 December 2020, which he failed to do.

51. No evidence in respect of any of the three applications for review had been filed and served by the applicant. No evidence or submissions have been filed and served by the applicant in opposition to the respondent's application for summary dismissal for want of prosecution under s 55 (1) of the NCAT Act.

Respondent's Submissions

52. The respondent provided written submissions together with a chronology covering each of the three proceedings from the date of each of the applications for review being lodged in the Tribunal. The submissions set out numerous grounds in support of the dismissal application, which I will summarise later in these reasons, and concluded:

The Respondent submits to dismiss the proceedings in circumstances where 7 months have passed since NCAT reference 2020/222792 [the first proceeding] was commenced and the Applicant has failed to expeditiously prosecute the proceedings would be consistent with the overriding principle in section 36 (1) of the CAT Act, the duty to comply with orders and directions made (s 36 (3) of the CAT Act) and the requirements of section 36 (4) of the CAT Act.

Consideration

Legal Principles

53. Sections 36 (1), (3) and (4) and s 38 (5) (c) of the NCAT Act imposes obligations on the Tribunal and parties "which must be taken into account of [sic] in considering whether to make an order to dismiss proceedings for want of prosecution under s 55(1) (d) of the NCAT Act": Bousgas v H D Constructions (Aust) Pty Ltd [2017] NSWCATAP 122 (Bousgas) at [33]. These same considerations have been applied to the dismissal of an application for review brought under the GIPA Act: eg Hariz v Commissioner of Police [2021] NSWCATAD 6.

54. Section 36 of the NCAT Act provides:

36 Guiding principle to be applied to practice and procedure

1. The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

2. The Tribunal must seek to give effect to the guiding principle when it—

   (a)   exercises any power given to it by this Act or the procedural rules, or

   (b)   interprets any provision of this Act or the procedural rules.

3. Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal—

   (a)   a party to proceedings in the Tribunal,

   (b)   an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.

4. In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

5. However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.

   55. Section 38 (5) of the NCAT Act provides:

6. 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 proceedings, 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 a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

   56. In Braiding v Charles Sturt University [2016] NSWCATAD 90, Deputy President Hennessy discussed the exercise of the discretionary power under s 55 (1)(d) in the following terms at [18]-[20]:

7. The Tribunal has power to dismiss a complaint “if the Tribunal considers that there has been a want of prosecution of the proceedings”: NCAT Act, s 55(1)(d). The Tribunal’s power to dismiss proceedings for want of prosecution is similar to the power in the Uniform Civil Procedure Rules 2005 (NSW), r 12.7 to dismiss proceedings if a plaintiff does not prosecute the proceedings with due despatch.

8. Historically, courts have been reluctant to dismiss proceedings unless there had been either an intentional and contumelious default on the part of the plaintiff or inordinate or inexcusable delay giving rise to a substantial risk that a fair trial would not be possible: Birkett v James [1978] AC 297at 318 cited in Green v Healthscope Ltd(t/as Hills Private Hospital) [2015] NSWCA 325 at [26]. The stringency of that principle has been diminished with the enactment of the “overriding purpose” in legislation: State of New South Wales v Plaintiff A [2012] NSWCA 248 at [17] (Basten JA). That purpose is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”: Civil Procedure Act 2005 (NSW), s 56.

9. The “overriding purpose” in the Civil Procedure Act is identical to the “guiding principle” in s 36 of the NCAT Act. The scope of the Tribunal’s power in s 55(1)(d) must be determined in accordance with that principle and the general legislative context: Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 at [41]. There are no rigid rules. the Tribunal should undertake a “balancing exercise, in the course of which a variety of factors may be considered”: Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [103]; Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 412. Relevant considerations include the length of the delay and associated costs, any explanation or excuse for the delay and any prejudice to the opposing party: Hoser v Hartcher [1999] NSWSC 527, per Simpson J at [19]–[30].

   57. In Murabito v Commissioner for Fair Trading [2020] NSWCATAP 63, the Appeal Panel followed the reasoning in Bousgas. The Appeal Panel also set out the following extracts from an earlier decision of Simpson J in Hoser v Hartcher [1999] NSWSC 527, which had also been set out in Boulgas (and cited in Braiding) and said at [33]:

10. While decided before the introduction of s 56 [of the Civil Procedure Act 2005 (NSW)], the identification by Simpson J in Hoser v Hartcher [1999] NSWSC 527 of relevant factors to be taken into consideration remains a useful summary:

    19.   It seems to me that the following principles are relevant to the exercise of the discretion to strike out for want of prosecution. The list is not intended to be exhaustive:

    (1.)   the ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed: Stollznow v Calvert (1980) 2 NSWLR 749 at 751 F (Court of Appeal); Razvan v Berechet, unreported Court of Appeal, 23 February 1990; Vilo v John Fairfax and Sons Limited, unreported, 19 November 1995, per Sperling J;

    (2.)   the discretion should be exercised only in a clear case where it is manifestly warranted; Razvan, per Kirby P; as is generally the case with discretionary decisions, each case depends upon its own facts. Rigid formulae should not be applied to the exercise of the discretion: Stollznow v Calvert at 751 D;

    (3.)   any explanation offered by the plaintiff for the delay in proceeding must be considered: Burke v TCN Channel Nine Pty Limited, unreported, 16 December 1994, per Levine J;

    (4.)   personal blamelessness on the part of a plaintiff(as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant: Stollznow, p73.

    (5.)   a defendant who takes no steps to secure progress in the proceedings, or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will ensure the quiet death of the proceedings or that the longer delay will strengthen the case for striking out, runs the risk that that very behaviour will operate to his/her/its disadvantage. A defendant has two choices: to attempt to prod the plaintiff into action, or to stand by, doing nothing, trusting that time will bring about the slow death of the action. Either choice represents something of a gamble, dependent upon future events that the defendant is unable with any degree of confidence to predict. If the defendant opts for the former course, of prodding the plaintiff into action, it may succeed in doing so, precluding an application to strike out. On the other hand, if the plaintiff remains inert, the defendant’s case for striking out strengthens with passing time. If the defendant chooses the latter option and takes no action, the plaintiff may take no further steps, or may take no further steps until such irremediable prejudice is caused to the defendant that the application to strike out will succeed; if, however, some other event galvanises the plaintiff into action the defendant, having done nothing to progress the matter, can hardly be heard to complain of the plaintiff’s earlier inactivity: Calvert v Stollznow, 1 April 1980, Ritchie’s Supreme Court Procedure, (NSW) Vol 2, para 13, 022, per Cross J (at first instance); and in the Court of Appeal per Moffitt J, p 753; Vilo, p 10; McBride v Australian Broadcasting Corporation, unreported 6 November 1998, per Levine J; Bass v TCN Channel Nine Limited, unreported 25 July 1997, per Levine J; Hart v Herron, unreported, 3 June 1993, Court of Appeal per Priestley JA;

    (6.)   delay between the date the cause of action arose and the commencement of the proceedings may be a relevant factor: Calvert v Stollznow, per Cross J; Burke v TCN. But in my view, this circumstance must be treated with some caution. The weight that can be accorded to that delay is limited. Where an action is commenced within the period provided for by an applicable statute of limitations, it would not ordinarily be appropriate to take that period into account. However, if a plaintiff has delayed significantly in the commencement of the proceedings, and that delay is followed by further lethargy in the advancement of the proceedings, the effect of the initial (but permissible) delay is compounded. The real question is not the length of the delay, but the impact that delay has upon the defendant’s capacity properly to defend the plaintiff’s claim. That will be a question of fact in each case. While there may be some prejudice presumed by reason of the passage of time, much will depend upon the nature of the proceedings, and the identification of the issues involved in the litigation. Where, for example, at the close of pleadings it can be seen that there are disputed questions of fact dependent upon the oral evidence of witnesses, or their recollections, the prejudice will plainly be greater than in cases that depend essentially upon the application of legal principle to largely undisputed facts, or upon disputed questions of fact that will be resolved by reference to documentary or other objective evidence not likely to be affected by the effluxion of time;

    (7)   the onus lies on the defendant to establish any prejudice upon which reliance is placed. The disappearance or death of witnesses, the fading of their recollections, or the destruction of records, are some obvious examples of the kind of prejudice that might arise;

    (8)   prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim; delay in the commencement of proceedings by a plaintiff is sometimes taken as evidence contra-indicating prejudice to the plaintiff in the sense that he/she/it has evinced no interest in his/her/its own case: Burke, supra. Such an inference may be contra indicated by explanatory evidence; in this regard the plaintiff’s personal responsibility for the delay is an important factor as is any explanation provided for the delay;

    (9)   what the defendant has (or has not) done by way of preparation for trial may be a factor. This is a distinct question from that concerning any steps taken (or not taken) by the defendant in prompting the plaintiff to action. A defendant who has not interviewed witnesses, taken statements or collected documents, after being served with the claim, has a less meritorious complaint about the effect of prejudice caused or presumed by reason of delay: McBride v ABC, unreported, 6 November 1998, per Levine J;

    (10)   the plaintiff’s prospects of success is a relevant factor. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff’s case is strong (absent the kind of prejudice to the defendant to which I have referred) it is less likely that justice will be done by striking the action out: Razvan, per Kirby P;

    (11)   the exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics: Razvan, per Kirby P. The ultimate aim of a court is the attainment of justice: The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146. To adapt the words of the High Court in that case, discretions such as that presently invoked ought not to be used to supplant the overall aim of the attainment of justice.

    58. I have had regard to the above principles discussed in the authorities when considering the evidence and submissions of the respondent in its application for summary dismissal.

Grounds in Support of Dismissal

59. I accept the following grounds relied upon by the respondent and which I have summarised, and find that there has been an unexplained want of prosecution by the applicant across all three proceedings so as to justify the making of an order for dismissal of the three proceedings pursuant to s 55 (1) (d) of the NCAT Act:

1. the applicant has not taken any steps to progress any of the three proceedings which have been before the Tribunal since July, August and September 2020;

2. collectively, the three proceedings have had three case conferences and two directions hearings. The respondent has attended on each occasion and has incurred costs associated with such attendances;

3. across the three proceedings, five hearing dates have been vacated and the two day hearing set down on 17 and 18 February 2021 was also vacated;

4. in the first proceeding, the applicant sought an adjournment which was granted on 20 October 2020 but thereafter, he again failed to take any steps to progress the matter;

5. the applicant has failed to respond to any of the respondent's correspondence in relation to the applicant's delays and proposed revised timetables for evidence, comprising letters dated 28 September 2020, 20 October 2020, 11 November 2020 and 23 December 2020. This caused the relisting of the proceedings at two directions hearings, resulting in further costs incurred by the respondent;

6. the respondent has been represented by an external legal services provider since 18 September 2020 and has incurred costs associated with the three proceedings. In addition, the respondent has incurred costs in preparing evidence and submissions in the second and third proceedings in accordance with the timetable set by the Tribunal but it remains unable to finalise its material in the first proceeding until the applicant has filed and served its evidence, and which he has not done to date;

7. the applicant has been on notice of the respondent's intention to apply for summary dismissal since 23 December 2020 and has taken no steps to protect his position or oppose the respondent's application;

8. although the applicant is unrepresented he is "an experienced litigant in this jurisdiction."

60. The respondent identified and made submissions with respect to three additional matters raised by the applicant's application for an adjournment which was heard and refused on 27 January 2021, namely:

1. the applicant raised a medical condition which the applicant apparently had for over a year but which he has since recovered from, although it impacted on his sleep and his ability to progress the proceedings;

2. the applicant is involved in Local Court proceedings which requires his time and he no longer has pro bono legal advice to assist him;

3. the listing of the three proceedings together is contrary to his request. The proceedings have been halted until he obtains a "clear and detailed" response from the Tribunal in relation to his complaint and request for information about the conduct and procedure relating to those three proceedings. This is presumably a reference to the applicant's correspondence to the Registrar that I have referred to above.

61. I accept the respondent's submissions in relation to these matters which was to the effect:

1. there is no evidence of any medical condition relied upon in opposition to the present application for dismissal and any pre-existing condition cannot fully explain all of the adjournments and failures to comply with directions for the filing and service of his evidence;

2. proceedings running in another court or tribunal is not of itself a basis to excuse the delay in the conduct of the three proceedings in the Tribunal and which were said to be entirely unrelated to the court proceedings.

3. the fact that the applicant has taken issue with the Tribunal in respect of procedural matters and the listing of the three proceedings together is not a basis to explain the applicant's conduct or inaction which was causative of the ongoing delays in the three proceedings.

62. I would add some additional matters.

63. Firstly, the applicant has not expressed any opposition to the dismissal application.

64. Secondly, the applicant has not provided any submission or evidence which was to be filed and served by 24 February 2021. So there is no explanation of any kind offered to enable the Tribunal to exercise its discretion by a consideration of other factors or any new matters which the applicant may have sought to rely upon to explain the reasons for his delay and repeated non-compliance with the Tribunal's directions.

62. Thirdly, as set out above, in the applicant's letter to the Tribunal dated 27 January 2021, the applicant expressed his full awareness of the consequences of his conduct and inaction, saying:

... it was my intention to make an informed decision in relation to the timely prosecution of the above matters when that explanation was provided.

...

However, the prosecution of administrative review matters was brought to a halt because the Tribunal is not providing explanations when requested to do so, or is providing a response after ancillary or interlocutory decisions are made by the Tribunal." (emphasis added)

66. In my view, the matters requested of the Tribunal by the applicant - even assuming for present purposes there is a legitimate reason to ask them - do not provide any basis to justify the delays and the want of prosecution of which the applicant was fully aware would be the consequence of his decision to take no further steps while seeking an answer to his inquiries of the Tribunal. The applicant must be taken to have accepted the consequences of his unilateral decision to bring the proceedings to "a halt" for the reasons advanced in his correspondence of 27 January 2021, irrespective of whether they were legitimate questions or requests for information.

67. The listing and procedural arrangements of the Tribunal, which were the substance of the applicant's inquiry in his correspondence to the Registrar, have nothing to do with the applicant's failure to abide by numerous directions made for the filing and service of his evidence in any of the three proceedings, particularly when several of those directions provided further timetables for the applicant to remedy his defaults and he seems to have intentionally squandered those opportunities.

68. I am satisfied that on the unchallenged evidence relied upon by the respondent and based on my own analysis of the factual circumstances underpinning the respondent's application, each of the three proceedings should be summarily dismissed for want of prosecution.

Orders

69. I make the following order:

1. Proceedings nos 2020/00222792, 2020/00232954 and 2020/00256717 are dismissed pursuant to s 55 (1) (d) of the Civil and Administrative Tribunal Act 2013 (NSW).

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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

Decision last updated: 13 April 2021