PC v University of New South Wales

[2010] NSWADT 139

CITATION:	PC V University of New South Wales [2010] NSWADT 139
DIVISION:	General Division
PARTIES:	Applicant: PC Respondent: University of New South Wales
FILE NUMBER:	083144
HEARING DATES:	21 December 2009
SUBMISSIONS CLOSED:	27 January 2010
DATE OF DECISION:	8 June 2010
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Summary dismissal of substantive application for failure to appear
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
REPRESENTATION:	Applicant Representative: No appearance Respondent Representative: Ms N Sharp of Counsel
ORDERS:	The substantive application is dismissed

REASONS FOR DECISION

1 The applicant commenced these proceeding pursuant to the provisions of the Privacy and Personal Information Protection Act 1998 following an unsuccessful internal review application. The applicant has other proceedings in the Tribunal against the same respondent, being proceedings 063193, which have been listed for interlocutory and final hearings at the same time as these current proceedings. The proceedings have remained separate however.

2 The respondent has now sought summary dismissal of both matters by reason of the circumstances that follow. The evidence and submissions upon these interlocutory applications are common to both proceedings.

3 Both matters were listed for further substantive hearing on 18, 21 and 22 December 2009. However, on 11 December 2009 the Tribunal Registry advised the parties that the first of these hearing days was no longer available, so that the hearings would commence on 21 December 2009 and continue for the next two days (exhibit ADT 1). The applicant subsequently advised by letter dated 15 December 2009 that she would be available for a directions hearing by telephone on 21 December 2009, impliedly asserting that she therefore would not attend the hearing on 21 December 2009 in person. In substance, by this letter, the applicant sought to vacate the substantive hearing and have it re-listed for further hearing at a later date. The applicant repeated that this was her position by letter dated 16 December 2009. On 16 December 2009 the respondent advised the applicant that it was ready to proceed with the hearing and that should the applicant press any adjournment application then the respondent would seek summary dismissal together with a costs order in its favour. On 17 December 2009 the Tribunal Registry advised the applicant that the substantive hearings would commence on 21 December 2009 as previously advised and that the applicant’s attendance in person was required.

4 On 21 December 2009 the respondent attended the hearing in readiness to proceed with the substantive hearing. The applicant however did not attend. Attempts were made that morning to contact the applicant by telephone and email communication, but these attempts were unsuccessful (exhibit ADT 2). Subsequently, during the course of the day the respondent sought summary dismissal of the proceedings together with an order for its legal costs.

5 The first question for consideration on the day was whether the Tribunal should commence to hear the respondent’s summary dismissal application instanter, given that the respondent had not previously served a copy of its submissions in this regard upon the applicant. After hearing argument on the point the Tribunal decided to do so upon condition that the respondent serve copies of the evidence and submissions it relied upon and the applicant be given an opportunity to respond thereto before any final determination be made. Directions were made in this regard which, in the Tribunal’s view, were sufficient to satisfy the principles of natural justice. These directions were complied with and the applicant responded by letters dated 27 December 2009 and 27 January 2010 (exhibit AA1).

6 The applicant’s submissions are twofold. In the first place they argue that the applicant has been deprived of the protection of the principles of natural justice. In this regard she asserts that she has, in the circumstances, been deprived of the opportunity to examine the evidence, of the opportunity to cross-examine witnesses and of the opportunity to be heard on the summary dismissal application. The first and third points are not correct: the applicant has been provided with the relevant evidence and submissions relied upon by the respondent and she has been given an opportunity to respond thereto. The second point is immaterial in the circumstances as the essential evidentiary issue is the failure of the applicant to attend at the hearing. It is incontrovertible that she did not attend. For the reasons that appear below, the other evidence adduced by the respondent on the summary dismissal applications has not been material to the Tribunal’s determination.

7 The respondent tendered evidence on its summary dismissal application and relied upon written submissions as well as oral argument. Much of the relevant factual material is set forth in the chronologies prepared by the respondent (exhibits RR2and RR3) and relevant communications from the Tribunal’s files are contained in exhibits ADT1 and ADT2.

8 The Tribunal’s power to summary dismiss proceedings is enlivened if, inter alia, a party does not attend at the scheduled hearing (s.73(5)(g)(iii) Administrative Decisions Tribunal Act 1997). Nothing more is needed, although the exercise of the power is of course discretionary.

9 The essential fact is that the applicant did not attend the hearing on 21 December 2009 and this suffices to enliven the Tribunal’s power of summary dismissal. Therefore the critical question is whether the applicant has any acceptable explanation for this non-attendance that would persuade the Tribunal to decline to exercise its summary dismissal powers. The second aspect of the applicant’s submission addresses this point. By her submissions the applicant asserts that she believed that the correspondence from the Tribunal outlined earlier actually vacated the three hearing days that had been set. The applicant makes this point most clearly in her later letter of 27.01.10 (exhibit AA1, paragraph 2 in particular). Clearly this is not so: the advice from the Tribunal Registry to the parties did no more than vacate the first day of hearing and it expressly advised that the hearing would continue on 21 and 22 December 2009 and could continue on 23 December if a third day was needed. The Tribunal does not accept that this communication from the Tribunal Registry could have misled the applicant in the way that she asserts in her submissions that it did. Whilst the applicant’s letter of 15 December 2009 (exhibit ADT 1) refers to a need for 3 days of hearing she does not suggest that she could not attend on the third day, being 23 December 2009, that had been allocated. The applicant proffers no other explanation for her non-attendance.

10 For these reasons the Tribunal is persuaded that it is appropriate to exercise its summary dismissal power and dismiss the proceedings. No satisfactory explanation has been put forward by the applicant for her failure to attend the hearing.

11 The respondent’s submissions also argue that, by reason of historical matters concerning the way that the applicant has progressed this matter, the proceedings ought to be dismissed for want of prosecution and abuse of process. Essentially this argument is put upon the basis of vexatious conduct arising from interlocutory applications, repeated applications for adjournment and the inference that the applicant has actually abandoned the proceedings. These issues need not be considered in light of the Tribunal’s abovementioned findings and determination. However, it should be noted that the Tribunal would not summarily dismiss the proceedings on any of these particular grounds outlined in the respondent’s submissions.

12 The respondent seeks an order for its costs in the proceedings. Practice Note 22 dated 30.04.10 sets out the relevant guidelines and principles to be applied. Normally a party will approach the Tribunal upon the basis that, provided the litigation is conducted reasonably and sensibly, there will be no adverse costs orders, even though the party may be unsuccessful. There is good reason for this view: the Tribunal’s role is to act as an independent entity which is capable of acting impartially when there is disagreement between a government agency and the subjects of the Crown. In this way the Tribunal facilitates the good government of the State of New South Wales. This serves a public interest in that subjects of the Crown will be confident that the dispute has been determined impartially and in accordance with the law. Costs are not apposite in such circumstances.

13 However, costs may be awarded against a party where their conduct is such that an award should be made as matter of fairness. The making of an award is of course discretionary, although subject to the requirement that the matters referred to in the Tribunal’s Practice note are taken into account. Part 5.4 of the respondent’s submissions set out the circumstances relied upon. However, the fact that costs awards have been made against the applicant in favour of the respondent in other proceedings, both in this Tribunal and in Courts of Law, are not relevant here. The same is true of the allegations that these several costs orders remain unpaid and that the respondent has incurred significant costs in the current proceedings. The latter point is only relevant to quantum should the Tribunal be minded to make an award of costs.

14 Of relevance though is the submission that the applicant has no intention of pursuing these proceedings and is simply acting so as to cause the respondent to incur excessive legal costs (submissions paragraph10). Essentially, this is put by reason of the prolonged nature of the proceedings, which the respondent lays at the feet of the applicant. If this were the case then there would be a proper basis upon which to order the applicant to pay the respondent’s legal costs, as a matter of fairness. This appears to be the basis upon which the respondent puts its application for costs. In the Tribunal’s view this conclusion is not the correct finding to make on the evidence.

15 It is true that the proceedings have taken significant time. However, the most reasonable explanation for this is the bringing of the earlier interlocutory application by the respondent (concerning the issue whether certain information was personal information as defined) and the subsequent need to appeal the decision at first instance, together with the fact that the applicant, for some considerable time, has resided and been employed overseas. Interlocutory steps and appeals necessarily slow the process down. Equally, the fact that a party is not present in this country for considerable periods of time will necessarily mean that travel and associated expense are involved in attending hearings. The delays that have occurred are easily explicable by these factors, rather than by attributing to the applicant a collateral motive to cause economic injury to the respondent by running up unnecessary legal costs. On the evidence the Tribunal is not persuaded that the inference should be drawn that the applicant was motivated by any such collateral purpose.

16 The respondent’s submissions also refer to a number of interlocutory applications made by the applicant which are described as spurious (respondent’s submissions section 5.2), two of which apply to these proceedings in particular. However, these applications were genuinely made by the applicant even though they may have been unsuccessful. Joinder of matters is commonplace, even if only to the extent that they run on the same hearing days, and the application seeking orders against the applicant’s trustee in bankruptcy was made in an attempt to alleviate a problem that the applicant was anticipating. Whilst the remedy sought was misconceived in law, the applicant was not to know this. Therefore, these several submissions do not persuade the Tribunal that it would be fair to make an award of costs in favour of the respondent.

17 One further aspect should be mentioned, although not specifically relied upon in the respondent’s submissions, no doubt because the respondent did not have the applicant’s response to the summary dismissal application at that stage. Where a party fails to attend a hearing and makes no satisfactory explanation, the party who does attend may fairly expect that the other side should meet the costs of the day thereby thrown away. This is the case here. However, the respondent in fact made good use of the day by bringing the summary dismissal application, upon which it has been successful. Therefore the costs of the day have not really been thrown away. Given this, the Tribunal is not persuaded that this aspect suffices to persuade it to award costs of the day to the respondent.

18 Consequently, the Tribunal is not persuaded that the applicant has acted in a way that would justify an order that she should pay the respondent’s costs in the proceedings.