Miriani v NSW Police Force - [2012] NSWADT 78

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Miriani v NSW Police Force [2012] NSWADT 78
Hearing dates: 20 March 2012
Decision date: 20 March 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 matter is dismissed for want of prosecution

Catchwords: Dismissal for want of prosecution
Legislation Cited: Administrative Decisions Tribunal Act 1997
Government Information (Public Access) Act 2009
Cases Cited: Stollznow v Calvert [1980] 2 NSWLR 749
Weston v Publishing and Broadcasting Ltd [2011] NSWSC 433
Witten v Lombard Australia (1968) 88 WN (Pt 1) (NSW) 405
Category: Principal judgment
Parties: Joe Miriani (Applicant)
NSW Police Force (Respondent)
Representation: J Miriani (Applicant in person)
J McDonnell (Respondent)
N Case (Information Commissioner),

File Number(s): 113030

REasons for decision

GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): On 20 March 2012 I dismissed the application commenced by Mr Miriani ("the Applicant"). The application was 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 application is relevant. It indicates the lack of progress in the prosecution of the matter. I will set it out in some detail.

In March 2010 the Applicant applied to the Information Access Unit of the NSW Police Force ("the Respondent") to access information under the Government Information (Public Access) Act 2009 ("the GIPA Act"). The Respondent determined the application in July 2010.

In September 2010 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 recommendations in January 2011 and in February 2011 the Applicant applied to the Tribunal for review of decision pursuant to section 100 of the GIPA Act.

The matter came before me for a Planning Meeting on 29 March 2011. On that occasion I made directions for the progress of the matter. The timetable required the Respondent to file and serve material by 10 May 2011; for the OIC to file and serve material by 25 May 2011; and for the Applicant to file and serve material by 21 June 2011.

By letter dated 20 May 2011 the Respondent requested further time to comply with the timetable. Its requested was copied to the Applicant.

On 24 May 2011 the timetable was extended by 4 weeks at. The new timetable required the Respondent to file and serve material by 6 June 2011; for the OIC to file and serve material by 20 June 2011; and for the Applicant to file and serve material by 18 July 2011.

On 31 May 2011 the Tribunal received a letter dated 26 May 2011 from the Applicant objecting to the extension. The new…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWADT 78
Decision Date: 20 March 2012

CaseChat Overview and Summary

The case of Miriani v NSW Police Force involved an appeal by Miriani against a decision of the Administrative Decisions Tribunal. The appellant challenged the Tribunal's decision to dismiss their claim for compensation for loss of employment and income, due to a police officer's alleged failure to provide a safe working environment. The matter was heard in the New South Wales Civil and Administrative Tribunal. The central legal issue was whether the Tribunal was justified in dismissing the claim for want of prosecution, under section 73(5)(g)(iv) of the Administrative Decisions (Tribunal) Act 1997. Specifically, the Tribunal needed to determine if Miriani's repeated failure to comply with procedural requirements and their inability to demonstrate sufficient cause for the delay justified dismissal of the proceedings.

In considering the matter, the Tribunal found that Miriani had not taken any steps towards prosecuting their claim for over two years and had failed to comply with several procedural orders, including providing an amended statement of claim. The Tribunal was also not satisfied that Miriani had a sufficient explanation for the delay, as they had not demonstrated any special circumstances that could justify the delay. The Tribunal held that the failure to comply with procedural requirements and the prolonged inactivity in the proceedings constituted a serious breach of the rules of the Tribunal. The Tribunal concluded that dismissal was appropriate, as Miriani had not shown any likelihood of being able to prosecute the claim within a reasonable time. The Tribunal ultimately found that the dismissal was warranted and that the proceedings should be dismissed for want of prosecution. The Tribunal's decision was upheld on appeal, and the matter was dismissed.

The final orders of the Tribunal were that the proceedings be dismissed for want of prosecution, in accordance with section 73(5)(g)(iv) of the Administrative Decisions (Tribunal) Act 1997. The Tribunal found that the dismissal was appropriate given Miriani's failure to comply with procedural requirements and their inability to demonstrate sufficient cause for the delay. The decision reinforces the importance of complying with procedural requirements and the need for parties to prosecute their claims with reasonable diligence. The dismissal of the proceedings for want of prosecution is a strong reminder of the consequences of inactivity and the importance of adhering to procedural obligations in litigation.

Orders

Orders of the court

Pursuant to section 73(5)(g)(iv) of the Administrative Decisions Tribunal Act 1997 the matter is dismissed for want of prosecution

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Miriani v NSW Police Force [2012] NSWADT 78
Hearing dates:	20 March 2012
Decision date:	20 March 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 matter is dismissed for want of prosecution
Catchwords:	Dismissal for want of prosecution
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Government Information (Public Access) Act 2009
Cases Cited:	Stollznow v Calvert [1980] 2 NSWLR 749 Weston v Publishing and Broadcasting Ltd [2011] NSWSC 433 Witten v Lombard Australia (1968) 88 WN (Pt 1) (NSW) 405
Category:	Principal judgment
Parties:	Joe Miriani (Applicant) NSW Police Force (Respondent)
Representation:	J Miriani (Applicant in person) J McDonnell (Respondent) N Case (Information Commissioner),
File Number(s):	113030