Miriani v NSW Police Force
[2012] NSWADT 149
•03 July 2012
Administrative Decisions Tribunal
New South Wales
Case Title: Miriani v NSW Police Force Medium Neutral Citation: [2012] NSWADT 149 Hearing Date(s): 3 July 2012 Decision Date: 03 July 2012 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: Pursuant to section 73(5)(g)(iv) of the Administrative Decisions Tribunal Act 1997 the matters are dismissed for want of prosecution. Catchwords: Dismissal for want of prosecution Legislation Cited: Administrative Decisions Tribunal Act 1997
Government Information (Public Access) Act 2009Cases Cited: Miriani v NSW Police Force [2012] NSWADT 78
Witten v Lombard Australia (1968) 88 WN (Pt 1) (NSW) 405Texts Cited: Category: Principal judgment Parties: Joe Miriani (Applicant)
NSW Police Force (Respondent)Representation - Counsel: - Solicitors: No appearance for the Applicant
Sparke Helmore (Respondent)File number(s): 113153 & 113185 Publication Restriction:
REASONS FOR DECISION
GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): On 3 July 2012 I dismissed these applications commenced by Mr Miriani ("the Applicant"). The applications were dismissed pursuant to section 73(5)(g)(iv) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") for want of prosecution. On that occasion I gave brief reasons for the decision. The Applicant has sought written reasons for the decision and these reasons are provided in response to that request.
Background
The chronology of events leading up to the dismissal of the applications is relevant. It indicates the lack of progress in the prosecution of the matter. I will set it out in some detail.
Matter No. 113153
The Applicant applied to the Respondent under section 41 of the Government Information (Public Access) Act 2009 ("the GIPA Act") for access to 16 items of information.
On 7 October 2010, the Respondent wrote to the Applicant under section 58(1)(e) and section 60(1)(a) of the GIPA Act and asked him to provide further particulars in regard to the access application.
On 20 October 2010, the Applicant wrote to the Respondent and provided some further information with respect to some of the items of information sought, but did not otherwise refine or reduce the scope of the access application.
On 1 November 2010, the Respondent determined to release to the Applicant some of the information that he sought.
The Respondent to refused to provide the balance of the information sought on the basis that dealing with the access application would amount to an unreasonable and substantial diversion of the Respondent's resources, under section 60(1)(a) of the GIPA Act.
The Applicant exercised his right to have the decision reviewed by the Information Commissioner ("the OIC") pursuant to section 89 of the GIPA Act. The OIC made a final review on 20 May 2011 and agreed with the Respondent's decision to refuse to provide access to the majority of the information.
The Applicant did not make an application for internal review to the Respondent but lodged an application to the Tribunal for an external review of the Respondent's decision.
Matter No. 113185
The Applicant applied to the Respondent under section 41 of the GIPA Act for access to 15 items of information. On 22 September 2010, the Respondent wrote to the Applicant and asked him to provide further particulars in regard to this access application.
On 7 October 2010, the Applicant wrote to the Respondent and provided further particulars with respect to some of the items of information sought in the Access application, but did not otherwise refine or reduce the scope of the access application.
On 18 October 2010, the Respondent determined to release to the Applicant some of the information that he sought.
As with Matter No. 113153, the Respondent refused to provide the balance of the requested information on the basis that dealing with the access application would amount to an unreasonable and substantial diversion of the Respondent's resources.
The Applicant exercised his right to have the decision reviewed by the OIC. The OIC made a final review on 15 June 2011. The OIC made a number of recommendations but also agreed with the Respondent's decision to refuse to provide access to the withheld information.
The Applicant lodged an application to the Tribunal for an external review of the Respondent's decision.
Progress of the matters in the Tribunal
While the two matters were commenced separately, they have been the subjects of similar timetables. They first came before me for a Planning Meeting on 9 August 2011. There was no appearance by the Applicant on that occasion and I stood the matter over for another planning meeting on 6 September 2011.
The Applicant attended the planning meeting on 6 September 2011 and I made directions for the progress of the matters. The timetable required the Respondent to file and serve material by 4 November 2011; for the OIC to file and serve material by 18 November 2011; and for the Applicant to file and serve material by 9 December 2011. I also indicated that the matter was to be determined on the basis of the material filed by the parties without the need for a hearing.
That timetable was subsequently extended at the Respondent's request. The decision was also taken, at the Applicant's request, that the matter would not be determined on the basis of the material filed but would be listed for hearing. I directed that the matter be listed for another planning meeting to be held on 14 February 2012.
The Respondent filed its material on 8 February 2012. This material included a number of affidavits that were provided to the Applicant as well as material filed on a confidential basis.
All the parties attended the planning meeting on 14 February 2012 and on that occasion I made new directions for the progress of the matters. The timetable required the Applicant to file and serve material by 27 March 2012 and any material in reply from the Respondent was to be filed and served by 3 April 2012. The OIC was to file and serve material by 23 April 2012. The matter was listed for further directions on 8 May 2012.
The OIC subsequently indicated that it would take no further role in the proceedings.
The Applicant did not file material in accordance with that timetable. At the Directions hearing on 8 May 2012 the Applicant requested further time to file and serve his material and I extended the time for him to do so until 22 May 2012. Any material in reply from the Respondent was to be filed and served by 5 June 2012. I directed that the matter be listed for another planning meeting to be held on 3 July 2012.
The Applicant did not file material in accordance with that new timetable. Ms Tipene gave the Applicant written notice that if he failed to file and serve his evidence and submissions, the Respondent would seek to have the proceedings dismissed.
The Applicant failed to file and serve any further material. At the Respondent's request, the matter was listed for a dismissal hearing on 3 July 2012.
The Respondent sought orders that the matters be dismissed. In support of that application Ms Tipene pointed to the Applicant's failure to attend the planning meeting held on 9 August 2011 and his failure to comply with several orders of the Tribunal to file and serve evidence and submissions:
·the Applicant did not comply with Orders made on 6 September 2011. The Applicant failed to file evidence or submissions in accordance with the Tribunal's timetable;
·the Applicant did not comply with Orders made on 14 February 2012. The Applicant failed to file evidence or submissions in accordance with the Tribunal's timetable; and
·the Applicant did not comply with Orders made on 8 May 2012. The Applicant failed to file evidence or submissions in accordance with the Tribunal's timetable.
There was no appearance by the Applicant at the hearing held on 3 July 2012. Ms Tipene pressed her application for the matter to be dismissed and I ordered that the applications be dismissed for want of prosecution.
Discussion
I have previously discussed the law in relation to similar issues as those of this case in another matter involving the Applicant and the Respondent: Miriani v NSW Police Force [2012] NSWADT 78 ("Miriani"). In that matter I also dismissed an application brought by the Applicant for want of prosecution.
I adopt the discussion and comments that I made in Miriani. It serves no purposes to restate them here.
The Tribunal's power to dismiss an application for want of prosecution is found in section 73 of the Administrative Decisions Tribunal Act 1997 which provides:
73 Procedure of the Tribunal generally
(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.
...
(4) The Tribunal is to take such measures as are reasonably practicable:
...
(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.
(5) The Tribunal:
(a) is to act as quickly as is practicable, and
...
(g) may dismiss at any stage any proceedings before it in any of the following circumstances:
...
(iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings,
(iv) if the Tribunal considers that there has been a want of prosecution of the proceedings, and
...
In my view the Applicant has had the fullest opportunity practicable to present his evidence and submissions and he has not taken advantage of the opportunity.
The Applicant has had access to the Respondent's material since it was filed on 8 February 2012. He has been in a position to respond since that time but he has taken no steps to secure progress in the proceedings. No plausible explanation has been provided to explain why he was unable to do so.
The Respondent has been put to the expense of preparing its case and should not be placed in the position where it will incur the additional expense of having witnesses attend a hearing when no material has been filed contradicting the Respondent's evidence.
As previously discussed, the Applicant is a sophisticated litigant and is experienced in prosecuting matters before the Tribunal. He is familiar with the Tribunal's procedures and the necessity that parties are to take all reasonable steps to comply with the Tribunal's directions. There is ample reason to conclude that he was aware of the directions that were made in relation to his filing of material. He was put on notice of his failure to comply with the set timetable and apparently took no steps to remedy the situation.
On the basis of the material before me it appears that the Applicant's prospects of success are minimal.
In the circumstances, it is my view that when the prejudice to the Respondent is balanced against the prejudice to the Applicant, "on balance justice demands that the action should be dismissed": Witten v Lombard Australia (1968) 88 WN (Pt 1) (NSW) 405. I therefore formally dismiss these matters for want of prosecution.
Order
Pursuant to section 73(5)(g)(iv) of the Administrative Decisions Tribunal Act 1997 the matters are dismissed for want of prosecution.
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