Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Miriani v Commissioner of Police, NSW Police Force [2018] NSWCATAD 207 Hearing dates: On the papers Date of orders: 05 September 2018 Decision date: 05 September 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: L Pearson, Principal Member Decision: (1) Proceedings 2017/321246: (a) Pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with; (b) The application to reinstate the proceedings is dismissed. (2) Proceedings 2017/338113: (a) Pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with; (b) The application to reinstate the proceedings is dismissed. (3) Proceedings 2018/03718: (a) Pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with; (b) The application to reinstate the proceedings is dismissed. Catchwords: ADMINISTRATIVE REVIEW – dismissal of proceedings for non-appearance – whether reasonable explanation for failure to appear Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Regulation 2013 Civil and Administrative Tribunal Rules 2014 Government Information (Public Access) Act 2009 Cases Cited: Habib v State of New South Wales (NSW Police Force) [2014] NSWCATAP 70 Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 Wallace v Price [2017] NSWCATAP 151 Category: Principal judgment Parties: Joe Miriani (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Applicant in person Sparke Helmore Lawyers (Respondent) File Number(s): 2017/00321246, 2017/00338113, 2018/00003718 Publication restriction: Nil REASONS FOR DECISION 1. Mr Joe Miriani has made three applications to the Tribunal for administrative review of decisions of the respondent in relation to three separate applications for access to information under the Government Information (Public Access) Act 2009 (GIPA Act). 2. Application 2017/321246 was lodged on 24 October 2017, seeking review of a deemed refusal of Mr Miriani's application made on 18 August 2017 (Ref 4154). Mr Miriani applied for internal review and a decision was made on internal review on 29 November 2017. 3. Application 2017/338113 was lodged on 8 November 2017, seeking administrative review of a decision in response to an access application made on 6 January 2017 (Ref 98); following review of the agency's decision by the Information and Privacy Commission, the respondent made a supplementary decision on 17 October 2017 which is the subject of the review application. 4. Application 2018/03718 was lodged on 4 January 2018, seeking administrative review of a deemed refusal on an internal review in relation to an access application made on 22 March 2017 (Ref 1510). A late decision was made in relation to that application on 20 October 2017. 5. The information to which access is sought in these applications relates, in summary, to the respondent's compliance with record management obligations, and its handling of GIPA applications (including applications Ref 98 and 1510); specific incidents involving officers of Surry Hills and Kings Cross Local Area Commands; and requests for access to directives, rules, guidelines, policies, practices and procedures for a range of functions including forensic samples, reporting of controlled activities, body-worn and in-car video, exhibits management, recorded video surveillance footage and audio recordings. 6. Matters 2017/338113 and 2017/321246 were listed for case conference on 23 January 2018. Mr Miriani did not attend, and directions were made, including in 2017/338113 that Mr Miriani respond to the respondent's material by 13 February 2018. All three matters have been listed together for further case conferences on 20 February 2018, 27 March 2018, and 12 June 2018. On 27 March 2018 directions were made for the applicant to file evidence including statements documents and submissions by 27 April 2018, and for the respondent to provide its evidence by 8 June 2018. On 12 June 2018 the time for the applicant to provide his material was extended to 6 July 2018, and the matters were listed for further case conference on 10 July 2018. 7. There was no appearance by the applicant on 10 July 2018 and the Tribunal Member listed the matters for directions on 17 July 2018. The Notice of Listing dated 11 July 2018 in each of the proceedings, sent to the applicant by email, stated: Please arrive at least 15 minutes before the start of the listing. It is important that you are on time as the Tribunal may decide the case in your absence. The decision made will be binding on you. Note: There was no appearance of the applicant on 10 July 2018. On 17 July 2018 the applicant must provide an explanation for his non-appearance. If he does not attend, the matter will be dismissed. 1. The applicant did not appear on 17 July 2018, and the three matters were dismissed pursuant to s55(1)(c) of the Civil and Administrative Tribunal Act 2013 (NCAT Act). Section 55(1) 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. … 1. The Notice of Order in each of the proceedings stated: The application is dismissed because Joe Miriani failed to appear. Note: The Tribunal may reinstate proceedings that have been dismissed under s 55(1)(c) of the NSW Civil and Administrative Tribunal Act 2013 if the Tribunal considers that there is a reasonable explanation for that failure to appear. 1. That is a reference to s55(2) of the NCAT Act: (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. 1. On 17 July 2018 Mr Miriani lodged an application in each of the three proceedings, using the Tribunal's form "Application to set aside or vary Tribunal decision". That form refers to cl 9 of the Civil and Administrative Tribunal Regulation 2013 (the Regulation), which relevantly states: 9 Additional power to set aside or vary decision determining proceedings (1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances: … (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. 1. Each application identified the decision to which it applied in the following terms: The following order made by Senior Member S H Montgomery on 10 July 2018 is to be set aside: 1.The proceeding is listed for hearing on 17 July 2018 at 12.30pm at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney for 30 minutes. 1. Mr Miriani stated that he sought to have the matter listed for further directions on the substantial issues before the Tribunal. 2. Mr Miriani stated that the reason he was absent, and the case he would have put, as: I made a mistake when entering the date of the joint case conference into my electronic diary and intended to attend the Tribunal on 12 July 2018. … I was intending to provide the Tribunal and the other parties with statements, document and submission during the case conference. That information was to provide a better understanding of my position concerning the issues in dispute and also propose feasible ways to resolve those issues. 1. Directions were made for the parties to provide submissions, including submissions as to whether the Tribunal should dispense with a hearing and determine the reinstatement application on the papers. Mr Miriani was directed to provide his submissions by 1 August 2018, including any comment on the note included with the Notice of Listing dated 11 July 2018. The respondent was to provide its submissions by 10 August 2018. 2. Mr Miriani provided his submissions on 9 August 2018. The respondent provided submissions in reply on 22 August 2018. Both submitted that the application could be adequately determined on the papers. The Tribunal is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions, and pursuant to s50(2) of the NCAT Act dispenses with a hearing. The Application 1. The first issue to determine is whether Mr Miriani is applying to have a decision of the Tribunal set aside under cl 9 of the Regulation, or for reinstatement under s55(2) of the NCAT Act. Whichever it was, the application was made within the 7 days specified in cl 9(3) for a set aside, or in rule 36 of the Civil and Administrative Tribunal Rules 2014, for a reinstatement application under s55(2). 2. Mr Miriani identified the decision he sought to have set aside as the decision of 10 July 2018. That was an interlocutory decision to list the three matters for directions on 17 July 2018. It was not a decision "that determines proceedings" as required by cl 9. The decision that determined each of the proceedings was the decision on 17 July 2018 to dismiss each application pursuant to s55(1)(c) of the NCAT Act. 3. In his written submissions Mr Miriani addresses the issue in the following terms: 12….It is now my understanding that only decisions that determine proceedings, including orders for dismissal of proceedings, can be set aside under clause 9 of the [Regulation]. 13.The Tribunal may, however, wholly or partly set aside the proceedings or a decision in the proceedings, under section 53(4) of the Act, in dealing with any irregularity involving compliance with a provision of the Act or the procedural rules. 14.There will be no need for reinstatement if the order for dismissal of proceedings made on 17 July 2018 by Senior Member Montgomery is set aside. 1. There is no procedural irregularity to which s53 might apply. The orders made on 10 July 2018 could not be the subject of an application under cl 9 of the Regulation. The orders made on 17 July 2018 could be subject to an application under cl 9, however in the context of an order of dismissal made pursuant to s55(1)(c), with the consequent entitlement to seek reinstatement under s55(2), and with express advice to that effect given in the Notice, the Tribunal is of the view that the application should be treated as one made under s55(2). 2. The issue then is whether the Tribunal can be satisfied that there is a reasonable explanation for Mr Miriani's failure to appear on 17 July 2018. Mr Miriani's submissions 1. Mr Miriani states (paragraph 2) that on 11 July 2018 he attended the Registry for the purpose of filing statements, documents and submissions "but a registry officer brought to my attention that the matter was listed for dismissal because of my non-appearance the previous day", and that the officer printed a copy of the order of 10 July 2018. In paragraph 9 Mr Miriani states on 11 July 2018 he requested procedural advice from a registry officer for the purpose of understanding the options available to him "in order to stop the proceedings being dismissed". The registry officer provided a printout of the order made on 10 July 2018, but did not provide him with a printout of the notice of 11 July 2018 "and neglected to mention that I was required to provide an explanation for my non-appearance at the hearing". 2. Mr Miriani states: 11.I became aware of the existence of the Notice of Listing dated 11 July 2018 during the preparation of these submissions. Unfortunately, I receive quite a number of emails (junk emails included) every day and the email that the Registry sent containing that advice was overlooked. 1. He explains his non-appearance in the following terms: 18.My absence during the case conference on 10 July 2018 has been due to a mistake entering the date of the scheduled case conference into my electronic diary. The meeting was, to the best of my knowledge, scheduled to be held on 12 July 2018. 19.My absence during the directions hearing on 17 July 2018 has been due to the following reasons: -I understood that my presence was not required as settled matters have been dismissed by the Tribunal in the past without the attendance of the parties. -I sought to set aside the order made by Senior Member Montgomery on 10 July 2018 and any consequent orders. -The Registry did not provide me with a printout of the Notice of Listing for the directions hearing when I requested procedural advice. -The email containing the Notice of Listing for the directions hearing was overlooked due to the number of emails I receive every day. Respondent's submissions 1. The respondent submits that in view of Mr Miriani's submission that he was informed on 11 July 2018 of the listing on 17 July 2018, it is irrelevant whether or not the officer did not provide a copy of the 11 July 2018 notice. It is not a reasonable excuse for failing to attend that Mr Miriani overlooked the email, and in any event he was aware of the hearing listed on 17 July 2018. The respondent relies on the decision of the Appeal Panel in Habib v State of New South Wales (NSW Police Force) [2014] NSWCATAP 70, and submits that in light of Mr Miriani's history of failing to attend several case conferences and to comply with numerous Tribunal orders, the Tribunal should find that he has not provided a reasonable explanation for his failure to attend the directions hearing on 17 July 2018. 2. The respondent submits that even if the Tribunal considers there is a reasonable explanation for the failure to appear, the Tribunal should not exercise its discretion under s55(2), for three reasons: the proceedings do not affect Mr Miriani's legal rights or obligations in the way that proceedings under other legislation such as the Privacy and personal Information Protection Act 1998; in the absence of correspondence and submissions that the Tribunal has previously ordered Mr Miriani to file it is difficult for the Tribunal to assess his prospects of success in the substantive proceedings; and there would be injustice to the respondent given the history which shows that Mr Miriani has continually failed to comply with Tribunal orders, and the proceedings have been unnecessarily protracted due to those non-compliances. Findings 1. The Tribunal is not satisfied that Mr Miriani has provided a reasonable explanation for his failure to appear on 17 July 2018, for the following reasons. Mr Miriani has not disputed that the Notice of Listing dated 11 July 2018 was sent to him, just that he overlooked it. However it is clear that he was aware on 11 July 2018 that there was a prospect of the proceedings being dismissed on 17 July 2018. The point made in the first bullet point in paragraph 19 of his submissions is not applicable to the stage the three matters had reached: none had been settled, as acknowledged in paragraph 16 that "written submissions newly filed in this matter provide evidence that my case is not ready to proceed to hearing". Given that Mr Miriani was aware from his conversation with a registry officer on 11 July 2018 of the prospect of dismissal of the proceedings on 17 July 2018, there could be no obligation on that officer to provide a document which had already been sent to the applicant. 2. In Habib the Appeal Panel addressed the issue of a history of non-compliance in the following terms: 114….The application turned on whether or not the Tribunal considered there was a reasonable explanation for the failure of the appellant to appear on only one single occasion on 19 February 2014 and not a history of non-appearance. As there was only one instance of non-appearance it was submitted that the Tribunal ought not to have refused to reinstate. Even though there may be only one instance of non-appearance, if the proceedings are dismissed under s 55(1)(c), the Appeal Panel has to be satisfied that there is a reasonable explanation for that one instance of failure to appear before the power to reinstate is enlivened. In considering whether any explanation is reasonable, the history of the matter may be relevant matter both in assessing whether the evidence and submissions put before the Tribunal should be accepted and in determining whether the facts found amounted to a reasonable explanation. It is noted that on 25 March 2014 Ms Burrows took no issue with the procedural history of non-compliance put before the Tribunal on the application, by way of Ms Howell's affidavit. Furthermore, the Tribunal was entitled to take into account that its directions to file and serve material by 18 February 2014 had not been complied with and that Ms Burrows had been aware of those directions. On the material before the Tribunal and its knowledge of the matter, it was open for the Tribunal to come to the view in those circumstances that it did not accept all Ms Burrows' submissions and that a reasonable explanation had not been established even though there had only been a single instance of non-appearance. The Appeal Panel is satisfied that there was no arguable error by the Tribunal in this regard. 1. It should be noted that that discussion was in the context of whether an appellant who had lodged his Notice of Appeal late and thus needed an extension of time under s41 of the NCAT Act had demonstrated that the appeal had reasonable prospects of success. In that case there was one instance of non-appearance. To the extent that it is relevant to consider the history of the matter, in contrast to the facts in Habib, Mr Miriani's non appearance on 17 July 2018 was not his first, and he was on notice on 11 July 2018 both that the three matters were listed for 17 July 2018 and that there was a prospect that they would be dismissed. That makes Mr Miriani's explanation that he overlooked the correspondence even less reasonable. 2. The Tribunal is not satisfied that there was a reasonable explanation for Mr Miriani's non-appearance on 17 July 2018. That means that the power to reinstate was not enlivened. 3. In Wallace v Price [2017] NSWCATAP 151 the Appeal Panel considered factors that might be relevant in the exercise of discretion to reinstate a matter. It is not necessary to consider those factors, which are addressed in the respondent's submissions at [27] above, as the power to reinstate is not engaged. Clause 9 Regulation 1. If the above analysis is incorrect and the applications should be considered under cl 9 of the Regulation, and not s55(2) of the NCAT Act, the Tribunal would be required to consider first, whether cl 9(1)(b) is satisfied, namely that the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal, and secondly, if so, whether in the exercise of discretion the decision should be set aside. 2. It is not in dispute that the decision to dismiss the three proceedings was made in the absence of Mr Miriani. He submits that that resulted in his case not being adequately put to the Tribunal on 10 July 2018 as "written submissions newly filed in this matter provide evidence that my case is not ready to proceed to hearing", and on 17 July 2018 his failure to provide an explanation for his non-appearance resulted in the dismissal of the proceedings. Mr Miriani has since, on 7 August 2018, filed submissions in 2018/03718 and 2017/338113. Those submissions do not appear to take either matter further than is apparent from the Tribunal file. However, regardless of the case that might have been put by Mr Miriani, even if the requirements of cl9(1)(b) are met, a relevant factor in the exercise of discretion to set aside a decision is why the party was absent. For the reasons above, Mr Miriani's explanation for his non appearance is not reasonable. Mr Miriani was given an opportunity to be heard and have his submissions considered in the context of a further case conference in all three matters, and did not take it, and the Tribunal is not satisfied that there is any relevant injustice if the decision to dismiss each of the proceedings is allowed to stand: Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [78]. If the application before the Tribunal is an application under cl9 of the Regulation to set aside the orders made on 17 July to dismiss each of the proceedings, that application is dismissed. Orders 1. The Tribunal orders: 1. Proceedings 2017/00321246: 1. Pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with; 2. The application to reinstate the proceedings is dismissed. 1. Proceedings 2017/00338113: 1. Pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with; 2. The application to reinstate the proceedings is dismissed. 1. Proceedings 2018/00003718: 1. Pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with; 2. The application to reinstate the proceedings is dismissed. ********** 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: 05 September 2018