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. The underlying proceedings 1. The substantive proceedings concern alleged disclosure of AQK's personal information in contravention of the Privacy and Personal Information Protection Act 1998 ("the PPIP Act"). The alleged disclosure is said to have occurred in posts made on Twitter by an officer or officers within the NSW Police Force. 2. An internal review of AQK's complaint found that the NSW Police Force had not breached any provision of the PPIP Act because the posts made on Twitter were made in a personal, private capacity and outside the scope of the officer's official functions. It found that no liability arises on the part of the NSW Police Force for the conduct or actions of employees who are acting in their private capacity and not in the course of their employment. 3. However, the matter was referred to the Professional Standards Command of the NSW Police Force for consideration of whether a prosecution should be commenced for breach of section 62 of the PPIP Act. 4. AQK has sought external review of the alleged conduct. This is the subject of the substantive proceedings. Legislation 1. The Tribunal has a wide discretionary power to grant an adjournment by reason of section 51 of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act"). Section 51 provides: 51 Adjournment of proceedings The Tribunal may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement). 1. In matters of practice and procedure the Tribunal is required by section 36 of the NCAT Act to conduct proceedings with the following guiding principle: 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. 1. In St George Wholesale Distributors Pty Ltd v Chief Commissioner for State Revenue [2014] NSWCATAD 134, the Tribunal considered section 51 and the considerations relevant to its application. The Tribunal stated at paragraphs [10] - [22]: The power to adjourn 10 Pursuant to s 51 of the Civil and Administrative Tribunal Act 2013 (NSW), The Tribunal may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement). 11 Section 51 is in the same terms as former s 73(5)(f) of the Administrative Decisions Tribunal Act 1997 (NSW) - the latter provision was repealed at the time the Civil and Administrative Tribunal Act came into force: see Civil and Administrative Tribunal Amendment Act 2013 (NSW) No 94, Sch 2.2 [31]. Section 73(5)(f) was considered by the Administrative Decisions Tribunal, R L Seiden, Deputy President, in Complete Wardrobes & Showerscreens Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADT 67 and in Betta Industries Pty Ltd v Chief Commissioner of State Revenue (NSW) [2013] NSWADT 68. 12 On its terms the s 51 discretion to adjourn is unconfined save with respect to the subject matter, scope and purpose of the statutory regime: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505.2 per Dixon J; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; (1992) 67 ALJR 170; [1992] HCA 66. 13 Other relevant statutory provisions of the Civil and Administrative Tribunal Act include the following: (1) Section 3(c) provides that the objects of the Act include to ensure that the Tribunal is accessible and responsive to the needs of all of its users. (2) Section 3(d) provides that another object is to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible. (3) Section 3(e) provides that the Tribunal is to ensure that the decisions of the Tribunal are timely, fair, …. 14 Competing interests to be weighed would include- (1) The interest of the parties to have the issues in the case determined in a way that will be consistent with any future decision of the court in [Secom Australia Pty Ltd v Chief Commissioner of State Revenue, Case number 2014/148214]: City of Sydney Council v Satara [2007] NSWCA 148 (8 June 2007) at [32]. (2) The interest of the applicant to have its claims heard and determined as quickly as possible - although in this instance the adjournment is sought by the applicant and is not opposed by the Chief Commissioner. (3) A general public interest in the administration of justice: Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175 at 211. 15 Whilst a court (or Tribunal) deals with the law as it is, rather than speculates about changes in the law, there may be circumstances where it is appropriate to adjourn the proceeding pending the outcome of an appeal in an unrelated case: City of Sydney Council v Satara at [19], [20] and [32]. Level of certainty issue will be addressed in Secom 16 The level of certainty that the s 45(2) issue will be addressed in the Secom proceeding and when that is likely to occur are also considerations in exercising the discretion to adjourn: Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527. 17 I accept that it is likely the s 45(2A) issue will be addressed in Secom. Length of adjournment 18 In the current proceeding the application for review was filed 14 April 2014. No directions as to filing of evidence in the substantive proceeding have yet been made. In the Secom proceeding the defendant's appeal statement is due to be filed by 9 September 2014. The parties' counsel concur in the view that the Secom case likely will not be ready for a hearing date until early 2015. The length of the adjournment is therefore not insubstantial (Complete Wardrobes at [35]). Inconvenience to the Tribunal 19 The matter is in early stages of preparation and does not yet have a hearing date. The inconvenience to the Tribunal is therefore minimal (Complete Wardrobes at [36]). Interests of Justice 20 In addition to the interests of the parties there is a public interest in the efficiency of the legal system. On this matter the Tribunal in Complete Wardrobes (and Betta Industries at [39]-[46]) said- [40] In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (Aon), the court was considering an application, made on day three of a four week trial, to adjourn and make amendments to the statement of claim. Prejudice to the defendant was plain and the High Court noted that costs orders were no longer considered a panacea. Prejudice to the other party was not however the court's only concern. As French CJ noted at [5]: … the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. [41] At [23]-[24] the Chief Justice further noted: In this respect, however, the adversarial system has been qualified by changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources … … Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation. [42] No question of deliberate tactical change or tardy behaviour by a litigant arises in this case. However, the interests of justice are plainly served by the timely disposition of maters in the Tribunal. As stated by the Chief Justice in Aon, at [27]: However, the mischief engendered by unwarranted adjournments and consequent delays in the resolution of civil proceedings goes beyond their particular effects on the court in which those delays occur … the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn. [43] Unnecessary delay risks eroding the public confidence in the legal system. As stated by the Chief Justice in Aon, at [30]: Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes. [44] As the Plurality in Aon, (Gummow, Hayne , Crennan, Kiefel and Bell JJ) noted (at [98]): a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. [45] Rules of court (and of the Tribunal) minimising delay recognise the "ill-effects" of delay not only on the parties, but to litigants generally (Aon at [101]). [46] These concepts are given application in the Tribunal's [statutory] objects …. As Heydon J noted in Aon (at [156]). The court (and by analogy a Tribunal) has a duty to achieve its objects. [47] To grant an adjournment at this stage because there is a mere suggestion that the Tribunal will deliver a decision that turns out to be inconsistent with a subsequent court of Appeal decision would not pay due regard to the important concepts the High Court emphasised in Aon and before that decision, in Sali v SPC Ltd (1993) 67 ALJR 841 at 843-844 (Brennan, Deane, McHugh JJ) and at 849 (Toohey, Gaudron JJ). …. The Respondent's position 1. Mr McDonnell made written submissions on behalf of the Respondent opposing the adjournment application. 2. The Respondent opposes the application on the basis that the reasons for AQK's adjournment applications on 7 July 2015 and 16 February 2016 are no longer applicable and that the interests of justice require that the matter be finalised. 3. AQK has indicated that the Ombudsman is conducting a review of Strike Force Wellwood and that he has made an application to the Respondent under the Government Information (Public Access) Act 2009 ("the GIPA Act") to obtain information relating to the disciplinary complaint and the Twitter posts. 4. The Respondent submits that the Tribunal need not and ought not await further attempts by AQK to scrutinise and/or find evidence in relation to the unrelated disciplinary complaint, and that any documents relevant to the proceedings could be obtained through the Tribunal's own processes in these proceedings. 5. The Respondent submits that: * there is no "level of certainty" that the Ombudsman's review of the unrelated disciplinary proceedings would assist the applicant in these proceedings: St George Wholesale Distributors at paragraph [16] – [17]; * the matter has already been adjourned for more than one year: St George Wholesale Distributors at paragraph [18]; * whilst the inconvenience to the Tribunal may be minimal as it has been to the Respondent, it is not in the interests of justice that there be any further adjournment for the reasons set out in St George Wholesale Distributors. 1. The Respondent also submits that AQK's case is lacking in substance: Coady v Sutherland Shire Council [2016] NSWCATAD 95 at [1], [26] - [36]. The Respondent submits that its internal review correctly identified that the officer who is alleged to have disclosed AQK's personal information in the Twitter posts was engaged in a frolic of his own and there is no reason to think that the Ombudsman's review will assist AQK in addressing this issue. Discussion 1. I have taken into account the submissions that I have been made by AQK and by Mr McDonnell. I have also considered the authorities referred to by the parties and factors discussed in St George Wholesale Distributors. 2. I agree with the Respondent that the matter should proceed to final determination. This matter was commenced in May 2015 and has not yet progressed past the initial planning stages. For the reasons set out in St George Wholesale Distributors, undue delay can undermine the interests of justice. In my view, it is not in the interests of justice that there is any further adjournment. 3. I note the authorities to which AQK has referred. I do not agree that the adjournment is necessary to allow AQK the opportunity of properly presenting his case. In my view, this issue can be addressed by an appropriate timetable allowing time for preparation and service of evidence and submissions. This would be in accordance with the guiding principle of the NCAT Act which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 4. I do not consider that the outcome of any review undertaken by the Ombudsman would assist in the resolution of the substantive matter in this case. Any review of Strike Force Wellwood is not going to address the issues of whether or not the posts made on Twitter were made in a personal, private capacity and outside the scope of the officer's official functions or whether the Respondent is liable for breaches of any provision of the PPIP Act. 5. While AQK has sought the adjournment "until a review is conducted regarding the finalisation and outcomes of Strike Force Wellwood by the NSW Ombudsman" I note that he has also referred to possible criminal proceedings and an access application under the GIPA Act. 6. I do not agree with AQK that any criminal proceedings would need to be finalised prior to any civil proceedings. The Tribunal has no role to play in any possible criminal proceedings and proceedings before the Tribunal are independent of those proceedings. I do not agree that the outcome of any possible criminal proceedings is necessary in order for the Tribunal to determine whether or not the Respondent is liable for breaches of any provision of the PPIP Act. 7. Similarly, I do not consider that it is necessary to wait until the GIPA application has been finalised before this matter can proceed. I agree with Mr McDonnell that any documents relevant to the proceedings could be obtained through the Tribunal's own processes. 8. In my view, AQK has sufficient material available to him to allow him to present his case. In the circumstances the adjournment application should be refused and the matter should proceed to determination Orders AQK's application for adjournment is refused. ********** 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 October 2016