Jaderi v Commissioner of Police

NCAT Administrative and Equal Opportunity|2021-09-13

Background

On 27 September 2013, the Applicant, Sarmad Jaderi, was issued with a Class IAC security licence under the Security lndustry Act 1997 (SI Act). On 22 May 2020 the Respondent decided to revoke that licence. The Applicant did not seek internal review of that decision and it was not until 19 May 2021 that the Applicant applied to this Tribunal for administrative review of the revocation decision.

Relevant legislation

Section 55 of the Civil and Administrative Tribunal Act 2013 (CAT Act) provides as follows: 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 … 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 … 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.

Progress of the application

On 19 May 2021 the Applicant applied to the Tribunal for administrative review of the revocation decision.
A Directions Hearing was conducted by telephone on 15 June 2021 but the Applicant did not answer his phone when called by the Member. The Applicant later telephoned the Registry and informed staff that he was the subject of charges before the Local Court which were to be heard on 25 June and 8 July 2021. The Orders adjourning the Directions Hearing to 13 July 2021 noted there were Local Court matters to be finalised.
On 13 July 2021 the Applicant appeared by telephone at the Directions Hearing. The Tribunal was informed in relation to the charges in the Local Court that the Applicant had been convicted in his absence. It was noted that the Applicant proposed to seek to have the convictions set aside. At that Directions Hearing a timetable was set for the filing of material in the matter - the Respondent was to file and serve documents under s 58 of the Administrative Decisions Review Act 1997 (ADR Act) and submissions by 16 July 2021, and the Applicant to file and serve material in reply by 23 July 2021. The matter was listed for further directions on 27 July 2021.
At the Directions Hearing on 27 July 2021, the Applicant failed to appear and the Respondent indicated that it would seek dismissal if the Applicant failed to appear on the next occasion. The matter was listed for further directions on 10 August 2021.
On 10 August 2021 the Applicant again failed to appear. The Respondent also raised as a preliminary issue that the Applicant had not sought an internal review, and that his Application for Review was filed out of time. Further, the Respondent submitted that the Applicant had a conviction for an offence which would be likely to lead to mandatory revocation of the Applicant's licence. The Respondent was directed to make a formal application for summary dismissal, and a timetable was set for the parties to file evidence and submissions. The Respondent was to file evidence and submissions by 17 August 2021, and the Applicant, by 31 August 2021.
The Tribunal received the Respondent's material late - on 25 August 2021. The Respondent wrote that it had provided the Applicant with the material by email on 20 August 2021 and by express post on 23 August 2021, and suggested the Applicant be allowed until 3 September 2021 to file his material.
Nothing further was filed by the Applicant by 3 September 2021, nor by the date of this decision.
The Respondent submitted that the Application for Review should be dismissed for want of jurisdiction or, in the alternative, dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (CAT Act).
The material I had before me consisted of: 1. (1) Application for Review dated 19 May 2021 2. (2) The Respondent's bundle filed pursuant to s 58 of the ADR Act and 2 supplementary bundles.
No evidence or submissions were filed by the Applicant in the substantive matter, nor in relation to the application by the Respondent to dismiss his application.

CONSIDERATION

The Applicant filed no material in this matter at all, other than what was attached to his Application for Review. That consisted of the Notice of Revocation of his licence and information that the notice had been served on him by Fairfield Police on 28 February 2020.
As observed above, s 55(1) of the CAT Act sets out circumstances in which an application may be dismissed, at any stage of proceedings. The Respondent's submission in relation to the CAT Act relied on s 55(1)(b), namely that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance.
Section 55(1)(d) provides that an application may be dismissed if the Tribunal considers that there has been a want of prosecution of the proceedings. I turned to first consider if this were the case. I observe that although this was not the basis on which the Respondent sought to have the substantive matter dismissed, I consider there is no procedural fairness detriment to either party. In particular, I observe that the Applicant was on notice that the Respondent proposed to seek dismissal of the application. It is immaterial that the precise ground was not specified at that time, nor that I have considered dismissal on a different basis.

Has there been a want of prosecution by the Applicant?

In Fei v Director-General, Department of Commerce (No 2) [2009] NSW ADT 109 at [49] Montgomery SM, after referring to the decision of the Supreme Court in Hoser v Hartcher [1999] NSWSC 527 at [20-34] where Simpson J set out a non-exhaustive list of principles relevant to the strike out discretion, summarised at [58], the principles that he considered helpful in that matter. Not all of the principles are relevant in every matter. He noted, for example, a distinction between the failure to comply with directions and a general failure to comply with obligations. He observed that summary dismissal is an extreme measure especially where the past defaults are not continuing, and requires a cautious approach, especially if the applicant has a reasonable prospect of success. He looked at whether the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the [Tribunal]. He considered if, where the non-compliance is continuing and occasioning unnecessary delay, if there is expense or other prejudice to the Respondent.
In DQF v Department of Finance, Services and Innovation [2019] NSWCATAD 82 at [16], Pearson PM pointed out that the public interest in the expeditious disposal proceedings is a factor to be considered. In the context of proceedings in this Tribunal, s 36(1) of the CAT Act provides that the guiding principle for the 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. In determining whether to exercise the power of summary dismissal, I must seek to give effect to the guiding principle.
Parties are also under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to comply with directions and orders of the Tribunal: see s 36(3) of the CAT Act. The extent to which a party makes efforts to co-operate in giving effect to the guiding principle are, in my view, relevant to a consideration of whether there has been a want of prosecution.
Recently, in DQF v Legal Aid Commission of New South Wales [2021] NSWCATAD 9, Ludlow SM discussed the scope of s 55(1)(d) of the CAT Act, noting the failure of the applicant in that matter to comply with directions and orders of the Tribunal. At least in that matter there was some evidence before the Tribunal filed on the applicant's behalf and the applicant had participated to a degree in some aspect of the proceedings.
In this matter there have been four Directions Hearings with respect to a matter which would usually be able to be managed by one, or two at most. Of the Direction Hearings the Applicant participated in only one, and on another occasion contacted the Registry after the scheduled time. The Applicant did not comply with the directions to file evidence and submissions. In fact, since filing his Application for Review, the Applicant has not filed any material or submissions with respect to the application for summary dismissal, nor in the substantive matter, despite being given ample opportunity to do so. It is unclear if this is because he has concluded that his application is bound to fail, he has lost interest, or for some other reason. In any event, there has been a failure to prosecute his administrative review application; he has done nothing to prosecute or advance his application.
I accept that summary dismissal is an extreme measure, but the Applicant's failure to comply with directions, or to participate in the proceedings are continuing.
As to the Applicant's prospect of success, the Applicant faces a number of significant hurdles.
Firstly, notwithstanding that the Notice of Revocation clearly referred to the Applicant's right to seek an internal review of the revocation decision, he did not do so. The Tribunal may nonetheless deal with the Application under s 55(4) of the ADR Act even though the Applicant has not applied for internal review. The Applicant however has filed no material on which a consideration may be made in the exercise of the Tribunal's discretion.
Secondly, as the Sl Act does not specify the time period within which an Application for Review is to be made, the relevant time period within which the application for review was to be made is set out in Rule 23(3)(b) of the CAT Rules - that is within 28 days of receipt of the decision, which would be by about 25 June 2020. He did not do so - it was not filed until 19 May 2021, some eleven and a half months after the personal service of the Notice. Under s 41 of the CAT Act the Tribunal has the power to grant an extension of time in which to file an application for review, but the Applicant has filed no material such that an application for extension of time could be properly considered in the exercise of the Tribunal's discretion.
Thirdly, and perhaps most significantly, is a consideration of the Applicant's prospect of success. The Respondent submitted that the Application has no prospects of success as the Applicant has been convicted of a mandatory disqualifying offence.
Under s 26 of the SI Act a licence must be revoked if, had the licensee been applying for a new licence, the application would be required to be refused. Under s 16(1)(a) of the SI Act the Commissioner must refuse to grant a licence in circumstances where the Applicant has been convicted of a prescribed offence. Regulation 15(1)(d) refers to offences for fraud, dishonesty or stealing, which attract a penalty of 3 months or more. On 25 June 2021 the Applicant was convicted of "larceny as a bailee property values >$5000 & < = $15000 - T1". This offence attracts a penalty of 5 years.
The determination in the substantive matter is whether the "objective facts" relating to the Applicant satisfy s 16(1)(a) of the Sl Act: Bourke & Ors v The New South Wales Commissioner of Police [1998] ADT, 17 December 1998 (unreported) (Bourke). The "objective facts" to which the Tribunal was referring are "... whether there was a conviction or a finding of a charge proven of a kind which fits within the parameters of section 16". Here the relevant "objective facts" are:

on 25 June 2021, the Applicant was convicted of an offence against s 125 of the Crimes Act of larceny by bailee;
larceny by bailee is an offence involving stealing;
the conviction was recorded within the last 10 years; and
the offence carries as a maximum penalty of 3 months or more (i.e. imprisonment for 5 years).

Bourke was followed in Rogers v Commissioner of Police [2019] NSWCATAD 93 where Professor Walker SM affirmed the Respondent's decision to cancel the applicant's licence noted that the Tribunal must refuse to grant a licence where the Act mandates refusal on the basis of certain offences set out in the regulation to that Act. The Tribunal had no discretion in the matter.
Similarly, in El-Ahmad v Commissioner of Police [2020] NSWCATOD 118 (El-Ahmad), Dr Lucy SM observed that the Tribunal had no discretion in circumstances where, ss 16(1)(a) and 26(1A) of the SI Act, read with the relevant subclause in cl 15(1) of the Regulation, require the Commissioner to revoke the applicant's licence, and that the Tribunal, on review, if satisfied of the fact of the conviction, does not have any discretion to come to a different conclusion.
I am satisfied as to the objective facts set out in paragraph [27] above. In accordance with the principles discussed above, the Applicant's application cannot succeed.

Should the application be dismissed?

The "guiding principle" of the CAT 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. The Applicant has not facilitated the just, quick and cheap resolution of his application. I am satisfied that the Applicant's administrative review application should be dismissed under section s 55(1)(d) of the CAT Act. Given his failure to prosecute the matter, allowing the application to continue will only lead to additional cost to, and inconvenience of, the Respondent, and frustrate the Tribunal in complying with its guiding principle. Allowing the application to proceed further when the Applicant has taken no action to advance it, and in circumstances where his application must fail, is not in the interest of justice.

Order 1. The Applicant's application for administrative review 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: 13 September 2021

At a glance

Court

Decision date

Source

Judgment (8 paragraphs)

Parties

Cases Cited (5)

Cited By (1)