DQF v Department of Finance, Services and Innovation

NCAT Administrative and Equal Opportunity|2019-04-09

REASONS FOR DECISION

On 9 November 2018 the applicant, DQF, lodged an application to the Tribunal under s 55 of the Privacy and Personal Information Protection Act 1998 (the PPIP Act) in relation to provision of documents containing his name and contact details by the State Archives and Records Authority (SARA) to the respondent Department of Finance Services and Innovation, asserting a breach of ss 8, 9, 10 and 13 of the PPIP Act.
The matter was listed for a case conference on 18 December 2018. DQF and a representative of the respondent appeared. Directions were made for DQF to provide to the Tribunal and the Department and the Privacy Commissioner by 31 January 2019 evidence and submissions about the alleged conduct and any financial, psychological or physical harm suffered; for the respondent Department to provide to the Tribunal, the applicant and the Privacy Commissioner by 28 February 2019 evidence and submissions; and for the applicant to provide by 15 March 2019 any material in reply. The matter was listed for a further case conference on 19 March 2019.
On 26 February 2019 the respondent's representative emailed the Tribunal to advise that DQF had not provided his material by 31 January 2019, and that she had written to DQF on 14 February 2019 requesting confirmation that he did not intend to file any material. On 26 February 2019 she phoned DQF who told her he intended to file material. The respondent's representative proposed an amended timetable, for DQF to provide his material by 1 March 2019, the respondent by 15 March 2019, reply by 18 March 2019. DQF agreed to that timetable in an email on that date. On 4 March 2019 the timetable was amended in accordance with the agreed dates.
DQF did not provide any material to the Tribunal before the case conference listed for 19 March 2019. The respondent filed an affidavit affirmed by its Senior Adviser Ministerial Services, and an outline of legal arguments, on 15 March 2019. DQF did not appear at the case conference, and was not able to be contacted by telephone. The respondent foreshadowed making an application for dismissal for failure to appear and failure to prosecute. Directions were made at the case conference for the filing of any such application by 20 March 2019, and listing for hearing on 26 March 2019. The hearing was adjourned to 9 April 2019, when the application was heard and the decision reserved.

Application for Dismissal

The respondent seeks orders for dismissal of the proceedings for want of prosecution under s 55(1)(d) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act), or in the alternative, for failure to appear under s 55(1)(c) of the NCAT Act. In the event that an order is not made dismissing the proceedings, the respondent seeks an order for the costs of the case conference of 19 March 2019 and the costs of the dismissal application.
The grounds for the application are: 1. DQF failed to comply with the Tribunal orders of 18 December 2018; 2. DQF failed to comply with the Tribunal orders of 4 March 2019; 3. DQF has not filed or served any evidence and submissions; 4. DQF failed to attend the case conference on 19 March 2019 and failed to indicate that he would not attend or give reasons for his failure to attend.
The respondent relied on an affidavit of its representative Ms Katrina Sanders affirmed on 19 March 2019 recording details of the conversations referred to above, and copies of the correspondence between the parties, and an affidavit of Ms Sanders affirmed on 8 April 2019 itemising the costs claimed totalling $3,214.50. Those affidavits were admitted without objection.
The respondent submits that it has taken significant steps and incurred costs in attempting to resolve the matter, and in addition to its legal representative, a legal advisor and a Senior Adviser Ministerial Services attended the case conference. DQF has an obligation under s 36(3) of the NCAT Act to comply with Tribunal directions. The respondent accepted that there was no specific prejudice arising from DQF's non-compliance.
The respondent seeks costs on the basis that there are special circumstances as identified in s 60(3)(a), (b) and (f) of the NCAT Act.
DQF submits that it is an offence not to comply with Tribunal orders. He was unable to comply because he had been locked out of his residential premises, and he had other priorities to meet. In support he provided a copy of an order made in the Consumer and Commercial Division on 11 March 2019 in proceedings RT 19/11592 directing the landlord to provide to DQF a key and opening device to the residential premises on the basis that there was a valid residential tenancy agreement, no valid termination notice, and the lockout was not valid under the Residential Tenancies Act 2010. A further order was made on 15 March 2019 in proceedings RT 19/12140 after the earlier order had not been complied with.
DQF opposes an order for costs being made, on the basis that the other party had not contacted him to ask why he had not complied with the orders.
In reply, the Department submits that DQF had not complied with the direction to file and serve his material by 31 January 2019. These are the applicant's proceedings, and it was difficult for the respondent to reply in the absence of the specific documents required to be provided by DQF, however the respondent has attempted to respond to the application.

Consideration

The power of the Tribunal to dismiss proceedings is conferred by s 55 of the NCAT Act: 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.

Whether there has been a want of prosecution of the proceedings

The approach to be adopted to s 55(1)(d) was considered by Deputy President Hennessy in Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282: 9. The Tribunal has power to dismiss a complaint "if the Tribunal considers that there has been a want of prosecution of the proceedings": NCAT Act, s 55 (1)(d). The Tribunal's power to dismiss proceedings for want of prosecution is similar to the power in the Uniform Civil Procedure Rules 2005 (NSW), r 12.7 to dismiss proceedings if a plaintiff does not prosecute the proceedings with due despatch. 10. Historically, courts have been reluctant to dismiss proceedings unless there had been either an intentional and contumelious default on the part of the plaintiff or inordinate or inexcusable delay giving rise to a substantial risk that a fair trial would not be possible: Birkett v James [1978] AC 297at 318 cited in Green v Healthscope Ltd (t/as Hills Private Hospital) [2015] NSWCA 325 at [26]. The stringency of that principle has been diminished with the enactment of the "overriding purpose" in legislation: State of New South Wales v Plaintiff A [2012] NSWCA 248 at [17] (Basten JA). That purpose is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": Civil Procedure Act 2005 (NSW), s 56. 11. The "overriding purpose" in the Civil Procedure Act is identical to the "guiding principle" in s 36 of the NCAT Act. The scope of the Tribunal's power in s 55 (1)(d) must be determined in accordance with that principle and the general legislative context: Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 at [41]. There are no rigid rules. The Tribunal should undertake a "balancing exercise, in the course of which a variety of factors may be considered": Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [103]; Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 412. Relevant considerations include the length of the delay and associated costs, any explanation or excuse for the delay and any prejudice to the opposing party: Hoser v Hartcher [1999] NSWSC 527, per Simpson J at [19]-[30].
Other factors identified by Simpson J in Hoser v Hartcher [1999] NSWSC 527 include what the defendant has (or has not) done by way of preparation for trial, and the plaintiff's prospects of success. The exercise of the discretion to strike out "should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics": the ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed.
In addition to consideration of prejudice to the parties, the decision of the High Court in Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175 establishes that the public interest in the expeditious resolution of proceedings is a relevant consideration. In that decision, in the context of amendments to pleadings and adjournment of proceedings, French CJ held (at 182) that "there is an irreparable element of unfair prejudice" in unnecessarily delaying proceedings, and further: 5. …Moreover, 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.
Gummow, Hayne, Crennan, Kiefel and Bell JJ held (at 213): 98 .…a just resolution of proceedings remains the paramount purpose of r 21; but what is 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. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account.
The Tribunal finds, based on the documents provided by DQF at the hearing, that in March 2019 he was involved in proceedings in the Consumer and Commercial Division to obtain access to the residential premises he was renting, with hearings in that Division on 11 and 15 March 2019 to obtain urgent orders. That may explain his failure to appear at the case conference on 19 March 2019.
However, there is no explanation for his failure to contact either the Tribunal or the respondent to advise that he would not be attending, or his earlier failure to comply with the direction to file and serve his evidence and submissions by 31 January 2019, or by the extended time agreed with the respondent. The Tribunal accepts that the respondent has incurred costs in responding to DQF's application, including the cost for the agency and its legal representatives in preparing for and attending the case conference. The respondent could not point to any other relevant prejudice arising from DQF's failure to comply with the directions. However, there is the inefficiency in the use of the Tribunal's resources, as identified in Aon, and reflected in s 36(4) of the NCAT Act which directs that the Tribunal's practice and procedure should be implemented so as to facilitate the resolution of issues in such a way that the cost to the parties and to the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. The failure of DQF to appear at the case conference meant that discussion of the matter to facilitate resolution of the issues in dispute or a narrowing of the issues that required determination by the Tribunal could not occur; and further, an opportunity to list another matter at that time was lost. Those factors would point to making the order sought under s 55(1)(d).
Factors against such a course are that the delay occasioned by DQF's non-compliance is relatively short; that given the history of the matter and the provision of the internal review report, dismissal of this application would require an extension of time to commence further proceedings; and that while this is not the first matter brought by DQF in this Tribunal, he is self-represented.
On balance, the Tribunal is not satisfied that dismissal of these proceedings for want of prosecution is in the interests of justice. The application for dismissal under s 55(1)(d) is refused.

Whether the application should be dismissed for failure to appear

The power of the Tribunal to dismiss an application on the ground that the applicant has failed to appear is conferred by s 55(1)(c) of the NCAT Act. Section 55(2) enables the Tribunal to reinstate an application dismissed on that basis, if satisfied that there are reasonable grounds for the failure to appear. That context suggests that the power under s 55(1)(c) to dismiss is to be exercised on the occasion of the failure to appear, and not subsequently. The respondent submits that the dismissal power may be exercised at any stage in the proceedings.
Having regard to all the circumstances, the Tribunal is not satisfied that it is appropriate to dismiss the proceedings on the basis of DQF's failure to appear at the case conference on 19 March 2019. The documents provided by DQF at the hearing of the summary dismissal application confirm that on 11 and 15 March 2019 he was engaged in hearings in the Consumer and Commercial Division, having been locked out of his residential premises, and that there was a further listing in a residential tenancy matter on 27 March 2019. The Tribunal accepts that those circumstances may have contributed to his failure to appear at the case conference on 19 March 2019. In that context, the Tribunal is not satisfied that this single failure to appear would warrant dismissal of the proceedings.
The application to dismiss the proceedings under s 55(1)(c) of the NCAT Act is refused.

Costs

In the event that an order was not made dismissing the proceedings, the respondent sought an order for the costs of the case conference of 19 March 2019 and the costs of the dismissal application. The affidavit of Ms Sanders affirmed on 8 April 2019, annexing the relevant matter transaction report, explains the calculation of the costs incurred by the respondent for preparation for and attendance at the case conference on 19 March 2019, preparation of the application for dismissal and affidavit in support, and the subsequent order and telephone call regarding the listing on 26 March 2019, at $2,506.62. Together with the estimated cost of attendance on 9 April 2019, based on the cost of attendance at the case conference, the total is $3,214.50.
The general rule in the Tribunal is that each party pay its own costs: s 60(1) NCAT Act. However, the Tribunal may order a party to pay costs if satisfied that there are special circumstances warranting such an order: s 60(2). Section 60(3) lists a number of factors to which the Tribunal may have regard in determining whether there are special circumstances warranting an order for costs. The respondent relies on s 60(3)(a), (b) and (f): (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, … (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),
Special circumstances have been held to be circumstances which are out of the ordinary but not necessarily extraordinary or exceptional: see Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]. As discussed by Senior Member Lucy in Bayne v NSW Department of Premier and Cabinet [2016] NSWCATAD 233: 14. It does not necessarily follow that because some factors under s 60(3) are established, a costs order should be made. It is still "necessary for the Tribunal to weigh whether those circumstances are sufficient to amount to 'special' circumstances that justify departing from the ordinary rule that each party bear their own costs": Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [81]. 15. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs (eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [37] and [48]; Nguyen & Anor v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen & Anor (no 2) [2016] NSWCATAP 168 at [16]).
The Tribunal finds that DQF's failure to appear at the case conference prolonged the proceedings unnecessarily: T & S Nominees Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAP 6 at [76]. DQF failed to comply with the procedural directions made on 18 December 2018 and varied on 4 March 2019 with his agreement, and thereby failed to comply with his obligation under s 36(3) of the NCAT Act to comply with directions and orders of the Tribunal. The Tribunal further finds that the respondent was unnecessarily disadvantaged by DQF's conduct of the proceedings, not least because he failed to advise the respondent that he would not be complying with the direction to provide his evidence and submissions, requiring its legal representative to follow up, and because he failed to inform either the respondent or the Tribunal that he would not be attending the case conference. The respondent has complied with the directions requiring it to file its evidence and submissions, in filing its documents on 15 March 2019.
The Tribunal is satisfied that there are special circumstances warranting an award of costs, having regard to the applicant's conduct of the proceedings in a way that unnecessarily disadvantaged the respondent, and prolonged unreasonably the time taken to complete the proceedings, and where he had failed to comply with Tribunal directions (NCAT Act, s 60(3)(a), (b) and (g)). The purpose of the costs order is to compensate the respondent for the costs it has incurred, not to punish the applicant: Latoudis v Casey (1990) 170 CLR 534 at 543; Oshlack v Richmond River Council (1998) 193 CLR 72 at 97. The Tribunal is satisfied that the respondent has substantiated the costs incurred, and that DQF has had an opportunity in the hearing to respond. It is appropriate to make a costs order in a fixed amount, and order that DQF pay the respondent's costs of the case conference of 19 March 2019 and the costs of the dismissal application in the amount of $3,214.50.

Orders

The orders of the Tribunal are: 1.The application by the respondent for an order under s 55(1)(d) of the Civil and Administrative Tribunal Act 2013 that the proceedings be dismissed for want of prosecution is refused;
The application by the respondent for an order under s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 that the proceedings be dismissed for failure to appear is refused; 3.The applicant is to pay the costs of the respondent in the sum of $3,214.50 within 14 days; and 4.The proceedings are listed for a case conference at 2.00pm Tuesday 4 June 2019.

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: 13 May 2019

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