Solicitors:
Legal Office of the University of New South Wales (Respondent)
File Number(s): 2019/00404081
[2]
Introduction
This is an application for the reinstatement of the proceedings ("the reinstatement application"). On 11 December 2020 the Tribunal dismissed the matter on two bases:
1. Pursuant to section 55(1 )(c) of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act), on the basis that the Applicant failed to appear at the hearing; and
2. Pursuant to section 55(1)(d) of the NCAT Act, on the basis that the Tribunal considered that there had been a want of prosecution of the proceedings.
Section 55(2) of the NCAT Act states that "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."
The history of this matter does not appear to be in dispute. The Respondent provided a reasonable chronology of the background to the reinstatement application.
The substantive proceedings arise from the Applicant's access application under the Government Information (Public Access) Act 2009 ("the GIPA Act"). The Applicant sought access to information held by the Respondent. The Respondent determined the access application in March 2018. The Applicant was not satisfied with the determination and requested an internal review. He was not satisfied with the determination of the internal review and applied to the Tribunal for external review of the decision.
In October 2019 Senior Member Higgins delivered a decision in relation to that application: Jackson v University of New South Wales [2019] NSWCATAD 224 ("the October 2019 Decision"). She affirmed the Respondent's decision in respect of 194 records; granted the Applicant access to 60 records; and remitted the matter for reconsideration in relation to the remaining information.
The Applicant was provided access to the information that Senior Member Higgins determined were to be released.
The Respondent made a new decision in relation to the aspect of the application that had been remitted for redetermination ("the Remitted Decision"). In the Remitted Decision the Respondent determined that:
1. the Applicant was to be given full access to 49 records;
2. the Applicant was to be given partial access to 79 records; and
3. access to 27 records was refused.
The Applicant filed a Notice of Appeal in respect of the October 2019 Decision. Shortly afterwards the Applicant filed an application for review of the Remitted Decision. The application for review of the Remitted Decision is the basis of the current proceedings.
[3]
The hearing on 11 December 2020
On 1 December 2020 Principal Member Pearson confirmed that the matter was listed for hearing by telephone on 11 December 2020 at 10.00am. On 3 December 2020, the Tribunal emailed a Notice of Listing to the parties. The Notice of Listing relevantly stated:
"The case is listed for hearing on 11 December 2020 at 10.00am".
A copy of the 3 December 2020 Notice of Listing was sent to the Applicant by email. The email was addressed to the same email address that has been used by the Tribunal, the Applicant and the Respondent for communication throughout the course of these proceedings.
On 8 December 2020, the Tribunal sent the parties a document headed "Virtual Hearing Room access." The document contained instructions to participate in the hearing on 11 December 2020, by telephone. That email was also addressed to the Applicant at same email address that has been used by the Tribunal, the Applicant and the Respondent for communication throughout the course of these proceedings.
Also on 8 December 2020, the Applicant sent an email to the Tribunal from the same email address indicating that he would not be making submissions in the matter.
The hearing commenced by telephone at 10.00 am on 11 December 2020. Senior Member Gracie was the presiding member. There was no appearance on behalf of the Applicant at the commencement of the hearing.
At Senior Member Gracie's request, Mr Sheehy, the Respondent's legal counsel, sent an email to the Applicant 10.07 am. In the email Mr Sheehy reminded the Applicant of the hearing and inquired as to whether the Applicant would be attending the hearing.
Mr Sheehy did not receive a reply to the email that he sent at 10.07 am. The hearing resumed at 10.20 am. There was still no appearance for the Applicant and Mr Sheehy made an application for the proceedings to be dismissed.
Senior Member Gracie made the following order:
The matter is dismissed under s 55 (1) (c) and (d) of Civil and Administrative Tribunal Act.
[4]
The applicable legislation
Section 55(1) of the NCAT Act provides.
55 Dismissal of proceedings
(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances -
…
(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.
Section 55(2) of the NCAT Act provides:
(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.
It is clear from subsection 55(2) of the NCAT Act that the Tribunal can reinstate proceedings that have been dismissed under subsection (1)(c) but it does not give the Tribunal the power to reinstate proceedings that have been dismissed under subsection (1)(d).
In Wallace v Price [2017] NSWCATAP 151 the Appeal Panel discussed the approach to be taken in exercising the discretion under subsection 55(2) of the NCAT Act. Principal Member Harrowell stated at paragraphs [29] - [31]:
29. … the Appeal Panel is satisfied that there is a reasonable explanation for the appellant's failure to appear.
30. Notwithstanding there is an adequate explanation, the question is whether an order to reinstate the proceedings should be made as a matter of discretion.
31. Factors relevant in exercising of the discretion include:
1. The nature of the appeal and the issues raised;
2. The strength of the appeal and its likelihood of success;
3. Any injustice to the opposing party.
[5]
The Applicant's explanation
The Applicant provided submissions in support of his reinstatement application. His explanation for his non-attendance is essentially that he was confused in regard to whether the matter was to proceed. He also disputes that there was a lack of prosecution of the matter on his part. He submitted:
… I did not believe there would be a hearing. ... My recollection of those proceedings are that an agreement was reached to the effect that if I did not make further submissions, the matter would be decided on the papers. ... As such I did not believe that there would be a hearing, as the Senior Member stated:
"the hearing can proceed once the applicant's submissions are provided on 8 December 2020."
I did not construe this to mean that, if I did not make submissions, then the proceedings would be dismissed for want of prosecution, rather than the meaning I had left our last hearing with - that is, that it would be decided on the papers if I did not make a submission.
In summary, this was a simple misunderstanding. I am aware that valuable time was lost by the Tribunal as well as the respondent as a result of the misunderstanding. I regret that this misunderstanding caused a significant loss of time for the parties involved. However, my failure to attend was a simple misunderstanding and does not amount to a "failure to prosecute". Under the circumstances, I hope it is clear that I have made every effort to prosecute to the best of my abilities, albeit under difficult circumstances.
[6]
The Respondent's submissions
The Respondent's position is:
1. The Tribunal does not have the power to reinstate the proceedings. This is because the NCAT Act does not permit the Tribunal to reinstate proceedings which have been dismissed under section 55(1)(d). Section 55(2) of the Act provides that the Tribunal may only reinstate proceedings that have been dismissed pursuant to section 55(1)(c) alone; and
2. If the Tribunal is of the view that it has the power to reinstate the proceedings, the proceedings should not be reinstated because there is no reasonable explanation for the Applicant's failure to appear at the hearing on 11 December 2020.
The Respondent submits that the terms of section 55(2) mean the power given to the Tribunal to reinstate proceedings only applies where proceedings have been dismissed solely pursuant to section 55(1)(c). Where proceedings have been dismissed pursuant to subsections (1)(a), (b), or (d), either alone or in combination with subsection (1)(c), section 55(2) does not permit the Tribunal to reinstate the proceedings.
Accordingly, as the proceedings were dismissed pursuant to both section 55 (1) (c) and (d) of the NCAT Act, the Respondent submits that the Tribunal has no power to order the reinstatement of the proceedings.
[7]
Consideration
This is a matter in which there is a long history between the parties. The various orders that were made prior to the hearing on 11 December 2020 suggest that the Applicant intended the matter be determined. I also note that pursuant to section 105 of the GIPA Act the onus is on the Respondent, and not the Applicant, to establish that the there is an overriding public interest against disclosure of the information in issue.
I am satisfied that the Applicant has provided an adequate explanation for his failure to attend the hearing. However, as Principal Member Harrowell noted in Wallace v Price there is discretion in regard to whether an order to reinstate the proceedings should be made.
In the present matter, I agree with the Respondent that the Tribunal has no power to order the reinstatement of the proceedings if the proceedings were dismissed pursuant to section 55(1)(d) of the NCAT Act.
This is not the forum to determine an appeal from the decision to dismiss for want of prosecution.
In my view there is no utility in making the order that the Applicant is seeking in circumstances where there is no power to reinstate proceedings that were dismissed pursuant to section 55(1)(d) of the NCAT Act. Accordingly, the application must fail.
[8]
Order
The application to reinstate the proceedings is dismissed.
[9]
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: 16 August 2021