AQK v Commissioner of Police, NSW Police Force [2016] NSWCATAD 223

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: AQK v Commissioner of Police, NSW Police Force [2016] NSWCATAD 223 Hearing dates: 2 August 2016 Date of orders: 02 August 2016 Decision date: 02 August 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: AQK's application for adjournment is refused. Catchwords: ADMINISTRATIVE LAW - application for adjournment – whether to await outcome of Ombudsman review on unrelated issues - interests of justice - delay Legislation Cited: Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Privacy and Personal Information Protection Act 1998 Cases Cited: Blacktown City Council v Wilkie (No 14) [2012] NSWLEC 252 Coady v Sutherland Shire Council [2016] NSWCATAD 95 Italiano v Carbone & Ors [2005] NSWCA 177 St George Wholesale Distributors Pty Ltd v Chief Commissioner for State Revenue [2014] NSWCATAD 134 Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323 Category: Procedural and other rulings Parties: AQK (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: AQK (Applicant in person) Crown Solicitors Office (Respondent) File Number(s): 1510276

REASONS FOR DECISION

The Application 1. In these reasons the names of private individuals, and other information which might identify them, have been anonymised so as to preserve the privacy of their personal affairs. In these reasons the Applicant is referred to as AQK. 2. This is an application by AQK to adjourn the substantive proceedings. He has requested that the Tribunal make the following order: These proceedings be adjourned pursuant to section 51 of the Civil and Administrative Tribunal Act 2013 (NSW), until a review is conducted regarding the finalisation and outcomes of Strike Force Wellwood by the NSW Ombudsman. 1. AQK has been employed within the NSW Police Force since September 2004. He has alleged that during his time of service he has endured victimisation, bullying and harassment from management within the NSW Police Force. 2. The process of investigating the concerns that he raised began in October 2013. Strike Force Wellwood was formed to investigate AQK's allegations of victimisation, bullying and harassment during the period 2004 - 2014. AQK has advised that the outcome of the Strike Force Wellwood investigation, provided in February 2016, was that none of the allegations had been sustained. He also advised that a review is yet to be conducted by the NSW Ombudsman. 3. AQK has requested adjournment of these proceedings pending review by the NSW Ombudsman. 4. AQK has also advised that the conduct that is under review in the substantive proceedings is also the subject of a referral to the Respondent's Professional Standards Command for an investigation of the criminal aspect of the behaviour. He contends that any criminal proceedings would need to be finalised prior to any civil proceedings as the outcome of the criminal proceedings could affect the proceedings before the Tribunal. 5. AQK has also advised that he has lodged an access application under the Government Information (Public Access) Act 2009 ("the GIPA Act") seeking to obtain information relating to Strike Force Wellwood and Twitter Posts that are the subject of the substantive proceedings before the Tribunal. He contends that proceeding with the matter before the Tribunal without the response from the Respondent would severely affect his ability to present a case to the Tribunal. 6. The Tribunal has adjourned these proceedings on two occasions. In July 2015 the proceedings were adjourned for a period of six months. The proceedings were adjourned for a further period of six months in February 2016. The Respondent did not oppose the adjournments on either of those occasions. 7. AQK contends that the reason for the adjournment application has not been altered. He referred to a number of authorities which have considered applications for adjournment. In Blacktown City Council v Wilkie (No 14) [2012] NSWLEC 252, Pepper J said: [12] Although these are Class 4 proceedings, the contempt charge that Mr Reid faces is very serious, with his imprisonment a potential outcome. Given this, and in light of the medical evidence presented to the Court verifying Ms Longin's sudden illness, the Court must accede to the application to adjourn the hearing of the notice of motion. Although to do so is neither "quick" nor "cheap", it is the "just" outcome in all the circumstances (see s 56 of the Civil Procedure Act2005), the council suffering no irremediable prejudice by the further protraction of the proceedings. 1. In Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323, Deane J stated that: A tribunal's obligation to accord procedural fairness can also require it to take the initiative to adjourn. That is, a failure to adjourn proceedings "may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment": Sullivan v Department of Transport (1978) 20 ALR 323, 343 1. In Italiano v Carbone & Ors [2005] NSWCA 177, Justice Einstein with whom Spigelman CJ agreed on this issue, stated: 175 The question which arises is as to whether an adjournment of the hearing ought to have been ordered in the particular circumstances which obtained, it being clear that "a refusal to grant an adjournment can constitute a failure to give a party...the opportunity of adequately presenting his case", Sullivan v Department of Transport (1978) 20 ALR 323 per Deane J; cf Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] cited by Basten JA. 1. The Respondent opposes the application for adjournment. 2. The application for adjournment came before me on 2 August 2016. On that occasion I determined that the application should be refused and I set a timetable for the matter to proceed to final determination. AQK has requested written reasons for my determination. These reasons are provided in response to that request.