Miriani v Secretary Department of Communities and Justice

[2021] NSWCATAD 40

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Miriani v Secretary Department of Communities and Justice [2021] NSWCATAD 40

Hearing dates:

15 December 2020

Date of orders:

15 December 2020

Decision date:

03 March 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Ludlow, Senior Member

Decision:

The proceedings are dismissed under s 55(1)(c) and (d) of the Civil and Administrative Tribunal Act 2013.

Catchwords:

CIVIL PROCEDURE – summary dismissal – failure to comply with directions – failure to appear - want of prosecution

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

Hoser v Hartcher [1999] NSWSC 527

Category:

Procedural rulings

Parties:

Joe Miriani (Applicant)
Secretary of the Department of Communities and Justice (Respondent)
Also heard:
Information Commissioner (see s 104(1), Government Information (Public Access) Act 2009).

Representation:

No appearance (Applicant)
Respondent (Self represented)

File Number(s):

2020/210505

Reasons for decision

1. In these proceedings the applicant sought a review of a decision made by the respondent under the Government Information (Public Access) Act 2009. His application was filed on 17 July 2020.

2. At the hearing of the application on 15 December 2020 before me (which was conducted by telephone) there was no appearance by the applicant at the hearing at 10 am. I adjourned the matter until 20 minutes past 10 am, but there was still no appearance by the applicant. I made enquiries and there was no record of the applicant having contacted the Registry about the hearing.

3. On the respondent’s application I dismissed the proceedings under s 55(1)(c) and (d) of the Civil and Administrative Tribunal Act 2013. At the applicant’s request, I provide these written reasons.

4. The following facts are taken from the Tribunal file. On 25 August 2020 the proceedings were listed for a case conference. The applicant advised the Tribunal on that day that he was unable to attend due to a conflicting court matter and the proceedings were listed for a further case conference on 6 October 2020. At that case conference, Senior Member McAteer listed the proceedings for hearing on 15 December 2020 at 10 am. Also on 6 October 2020 the applicant was directed to file and serve his evidence and any other material on or before 26 November 2020. The Information Commissioner and the respondent were directed to file submissions in reply.

5. The applicant did not file any material in compliance with that direction. He did not seek an extension of time in which to do so. There has been no recorded communication from the applicant since 6 October 2020.

6. Section 55 of the Civil and Administrative Tribunal Act 2013 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.”

7. Section 36 of that 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.”

8. Given the circumstances set out above, I was satisfied that the applicant failed to appear at the hearing, having been given reasonable notice of the date. His failure to comply with the directions and to attend the hearing and the failure to seek an extension of time, amounts to a want of prosecution in my view. There was no explanation by the applicant for the failure to appear or to file material as directed.

9. As identified by Simpson J in Hoser v Hartcher [1999] NSWSC 527 the exercise of the discretion to dismiss a matter for want of prosecution requires a consideration of whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed.

10. The other parties were prejudiced by having been required to file material without the applicant’s own material before them, and by being required to attend the hearing when the applicant filed to appear. They would be further prejudiced if the proceedings were adjourned and the applicant allowed further time in which to file material. There is prejudice to the applicant by having the proceedings dismissed (although, under s 55(2) they may be reinstated if a reasonable explanation is provided). The applicant is unrepresented but he has appeared in this jurisdiction on a number of occasions and I was satisfied that he had adequate notice of the directions and the hearing date.

11. Consequently I am satisfied that in this case justice requires the dismissal of the proceedings.

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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