Miriani v Secretary, Department of Communities and Justice [2022] NSWCATAD 44

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Miriani v Secretary, Department of Communities and Justice [2022] NSWCATAD 44 Hearing dates: 7 February 2022 Date of orders: 09 February 2022 Decision date: 09 February 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: P French, Senior Member Decision: The application is dismissed pursuant to section 55(1)(c) of the Civil and Administrative Tribunal Act 2013 Catchwords: ADMINISTRATIVE LAW – Government Information (Public Access) Act 2009 – administrative review of a reviewable decision – administrative review of a decision that information is not held – dismissal on the ground that the applicant has failed to appear at the final hearing Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Cases Cited: nil Category: Principal judgment Parties: Joe Miriani, (Applicant) Department of Communities and Justice (Respondent) Representation: Joe Miriani, no appearance Department of Communities and Justice (Respondent) File Number(s): 2020/00016936 Publication restriction: Nil

REASONS FOR DECISION 1. This is an application by Joe Miriani (the applicant) under section 55 of the Administrative Decisions Review Act 1997 for an administrative review of a decision made by the delegate of the Secretary, Department of Communities and Justice (the agency) on 12 December 2019 under the Government Information (Public Access) Act 2009 (NSW) that it did not hold any further government information within the scope of the applicant's access request. This application was made to the Tribunal on 20 January 2020 (the application). 2. The application was listed for final hearing in a Virtual Meeting Room (VMR) on 7 February 2021 at 10:00am. Hearing Notices advising the parties and the Information Commissioner of that listing were issued by the Divisional Registrar on 27 January 2022. In the applicant's case, this Notice was sent to his email address, which is the address for service shown on the application form he filed with the Tribunal on 20 January 2020 and at which it is apparent from a file review the Registrar had successfully corresponded with him over the course of the proceedings to date. There is no indication on the Tribunal file that this Notice was not delivered (that is, that it did not fail to transmit or that it has been returned). I am thus satisfied that the applicant has been served with notice of the hearing. 3. At the appointed time for the hearing there was no appearance by or on behalf of the applicant. At 10:10am the case was called for the first time. There was no appearance by or on behalf of the applicant. Mr Michael McIntosh, Principal Solicitor, announced his appearance for the agency. The case was stood down until 10:15am and called for a second time. There was no appearance by or on behalf of the applicant. The case was stood down again while inquiries were made of the Registry. I ascertained from those inquiries that no call or other communication had been received from the applicant to indicate that he was experiencing difficulty connecting to the hearing or that he had experienced any misadventure that prevented him from attending the hearing. At 10:20am I called the case for a third time. There was no appearance by or on behalf of the applicant. 4. I proceeded to hear from the agency what order(s) it sought in the circumstances. The agency submitted that the Tribunal ought to dismiss the application pursuant to s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (NCAT Act). 5. Section 55(1)(c) of the NCAT Act provides, in summary, that the Tribunal may dismiss at any stage any proceedings before it if the applicant has failed to appear in the proceedings. Section 55(1)(c) operates in association with s 55(2) of that Act. Section 55(2) provides that the Tribunal may reinstate proceedings that have been dismissed under section 55(1)(c) if the Tribunal considers there is a reasonable explanation for the applicant's failure to appear. 6. In circumstances where it is not possible for the Tribunal to know if the applicant's failure to appear at the hearing constitutes or manifests an abandonment of the application, or alternatively, if the applicant has suffered some misadventure or disability which has prevented him from attending the hearing, dismissal under s 55(1)(c) is the appropriate order. It will not prevent the applicant from making a re-instatement application if he wishes to pursue the application and is capable of providing a reasonable explanation for his failure to appear today.