Kiernan v Commissioner of Police, New South Wales Police Force [2008] NSWCA 140 | Case summary

REASONS FOR DECISION 1 The Appeal Panel has before it an application made under s 73(5)(h) of the Administrative Decisions Tribunal Act 1997 (the Act) for reinstatement of an appeal. 2 Section 73(5)(h) provides: 'The Tribunal … (h) may reinstate proceedings that have been dismissed because of an applicant's failure to appear if the Tribunal considers that there is a reasonable explanation for that failure.' 3 The Appeal Panel forms part of the Tribunal: see definition of 'Appeal Panel', s 4(1), and generally, Chapter 7, ss 112 ff. 'Applicant' is not a defined term. 4 On 11 February 2009 the Appeal Panel dismissed an appeal following the failure of the appellant to appear at the appeal hearing. The appellant, Ms Kiernan, has applied for reinstatement of the appeal. The respondent agency, the Commissioner of Police, opposes reinstatement. 5 Ms Kiernan's appeal, no. 089053, relates to the Tribunal's dismissal of an application for review brought by her in relation to a determination made by the Commissioner of Police under the Freedom of Information Act 1989. The Tribunal heard the matter in three stages. At the end of each of the first and second stages it remitted the application for reconsideration: Kiernan v Commissioner of Police, NSW Police [2007] NSWADT 207; and Kiernan v Commissioner of Police, New South Wales Police (No. 2) [2008] NSWADT 52. The Commissioner took steps on each occasion to comply with the recommendations of the Tribunal that led to the remittals. 6 The review application came back to the Tribunal for a third time. On that occasion, 15 April 2008, Ms Kiernan did not appear. The Commissioner's legal representative advised the Tribunal that he considered that the orders and directions of the Tribunal made on the previous occasions had been fully met, and there were no issues left to agitate. He tendered an affidavit from an officer responsible for dealing with Ms Kiernan's access request that stated that the one outstanding matter had been dealt with, i.e. giving her full access to the one document that remained in dispute (a surveillance video tape of police dealings with Ms Kiernan on the evening of 27 March 2005 at the Surry Hills Police Station). The Tribunal proceeded to dismiss the application in the absence of Ms Kiernan. 7 Ms Kiernan applied for written reasons for decision, and they were provided on 18 June 2008. She lodged her appeal within 28 days of that date, on 21 July 2008. In the notice of appeal she raised issues relating to all three decisions, not simply the circumstances surrounding the entry of the dismissal order. The Commissioner opposed extension of the appeal to the earlier decisions. The President ruled at a directions hearing that the appeal could extend to the entirety of the decisions made by the Tribunal. Directions were made for submissions and the date, 11 February 2009, fixed for the hearing. 8 The appeal was listed for 10 am on 11 February 2009. The Commissioner appeared through his legal representatives, Ms Edwards of counsel instructed by Minter Ellison, solicitors. At approximately 10.30 am, there being no appearance by Ms Kiernan, the Appeal Panel proceeded to dismiss the appeal. The Act provides at s 73(5)(g) that the Tribunal 'may dismiss at any stage proceedings before it … (iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings'. 9 The respondent applied for costs pursuant to s 88. The general principle is that each party bears its own costs of proceedings, except as provided in the section. Sub-section (1A) refers to various circumstances justifying the making of a costs order if the Tribunal is satisfied that it is fair to make an order. The Appeal Panel was disposed to grant the application for the wasted costs. Because the appellant had not been given an opportunity to respond, it made a qualified order as follows: 'Appellant to pay the respondent's costs of the appeal as assessed; such order to take effect on 25 February 2009. The appellant to be notified of the proposed order and given an opportunity to file and serve any submission as to whether it should be vacated by 20 February 2009.' 10 Ms Kiernan arrived at the Registry of the Tribunal at approximately 10.50 am. By that time the members of the Appeal Panel and the representatives of the Commissioner had dispersed. She was informed of both the order dismissing the appeal and the costs order. 11 By letter dated the next day, 12 February 2009, she applied for the appeal to be reinstated and the costs order vacated. The President gave directions for the filing of submissions in reply, and directed that the application be determined by the Appeal Panel on the papers (see the Act, s 76) unless there was an objection from either party, in which case a hearing would be held to consider the objection. There has been no objection. 12 The Commissioner filed submissions in reply on 2 April 2009 together with an affidavit sworn by Katherine Gibbons, employee solicitor, Minter Ellison. The Commissioner opposed reinstatement and any variation of the costs order. Background 13 At the directions hearing before the President on 27 November 2008, Ms Kiernan was present in person, while the legal representative of the Commissioner, Ms Edwards, participated, with leave, by telephone. The written record of the direction fixing the date for hearing is 'List for hearing on 11 February 2009 at 10.00 am (for ½ day).' 14 Ms Kiernan's explanation for her non-attendance at 10 am on 11 February 2009 is that she was mistaken as to the starting time for the proceedings. She thought that the time was 11 am. She said that at the directions hearing the President merely fixed the matter for hearing on 11 February 2009, without orally stipulating a starting time. Secondly, she said that the Tribunal Registry wrongly advised her that the hearing was scheduled for 11 am. 15 The Commissioner conceded that at the directions hearing the President referred orally to the date but did not refer orally to the starting time. The Commissioner submitted that this point is only relevant insofar as the applicant proves that it made her non-attendance at 10 am reasonable. The Commissioner's submission is that the applicant should have made her own enquiries as to the precise start time, as the Commissioner did. 16 As to the question of the intended start time, Ms Kiernan states that when she contacted the Registry on 19 January 2009, she was told by the officer to whom she spoke that the starting time was 11 am. Her affidavit filed 15 April 2009 is to the same effect. Ms Gibbons' affidavit (for the Commissioner) deposed to a conversation Ms Gibbons had with a Registry officer on 30 March 2009, advising that there was nothing on the Registry file to indicate that any conversation had been held with Ms Kiernan on 19 January 2009 relating to the starting time. Ms Kiernan filed submissions in reply on 8 April 2009, and an affidavit sworn by her on 15 April 2009. 17 We accept that there was a conversation between Ms Kiernan and a Registry officer on 19 January 2009. The Registry file includes a copy of a 'with compliments' slip where the officer refers to Ms Kiernan having made a telephone request that day for the material filed by the respondent to be forwarded to her (19 January 2009), and shows a copy of the solicitor's letter to the Tribunal attaching the respondent's amended reply to her appeal and the respondent's submissions. There is no note suggesting any other matter was canvassed such as the start time for the hearing. 18 We note that the List published by the Tribunal the previous day on its Internet site and in the press covering 11 February 2009 shows the starting time as 10 am. Moreover, in our experience, it is very unusual for appeals to commence other than at the usual starting times of 10 am for morning hearings, and 2 pm for afternoon hearings. We think, if the matter was canvassed with Ms Kiernan as she claims, that a Registry officer would not have given 11 am as the starting time when the Registry file listing entry as at 19 January 2009 showed 10 am. 19 The Commissioner also referred to the way in which Ms Kiernan has conducted the litigation both at first instance and on appeal, seen as unduly contentious and drawn out, and as having contributed to increased costs for the Commissioner. The Commissioner also noted that Ms Kiernan has 'successfully attended numerous directions hearings and case conferences in relation to this matter'. Approach 20 The provision under which this application is made requires simply that consideration be given to whether the explanation is reasonable. In our view, it is not permissible to have regard to the general way in which the non-appearing party has conducted the litigation. 21 On the other hand, we do see it as permissible to take into account prior conduct involving failure to appear and prior explanations as to that issue in assessing the plausibility of the explanation on the present occasion. 22 In this case, for example, Ms Kiernan did not appear on 15 April 2008 at the hearing before the Tribunal below that gave rise to the order for dismissal. She considers that she was misled by the Registry as to the nature of the hearing. After a directions hearing held on 4 March 2008, she was informed by a letter from the Police legal unit that the matter was 'listed for dismissal' on 15 April 2008. She contacted the Tribunal Registry by e-mail on 7 April 2008. She queried why it was that the matter was listed for dismissal. A Registry officer's note of a conversation with her on 14 April 2008 indicates that she was advised it was a 'directions hearing', whereas the Tribunal Member's record of the hearing held 4 March 2008 refers to it as being for hearing of a dismissal application and directions. The Registry note also records that she advised she would be attending in person the next day. That did not occur. 23 In her notice of appeal she gives reasons as to why she did not appear at the appeal hearing, basically to the effect that her non-appearance was not her fault, as she was misinformed by the Tribunal (the alleged reference to a 11 am start by the Registry officer, the omission to specify a starting time when the hearing date was fixed on 27 November 2008). 24 We agree with observations made in the Victorian Civil and Administrative Tribunal (VCAT), in connection with a like power (see Victorian Civil and Administrative Tribunal 1998, s 120 - power to reopen order if applicant had 'reasonable excuse' for not attending the hearing) that an explanation does not have to be 'particularly satisfactory' (see Avonwood Homes v Milodanovic [2005] VCAT 1297 (Walker SM)). We also note that the Supreme Court of Victoria (Bongiorno J) has stated that such powers should be 'construed liberally', and that '[a]n order affecting a person's rights in the absence of that person should be set aside unless the interests of justice demand otherwise' (Alesci v Salisbury [2002] VSC 475 at [6] and [11]). On the other hand, a pattern of conduct of delay and non-appearance ought not be tolerated. 25 The Commonwealth Administrative Appeals Tribunal has wide powers to dismiss matters at any stage of the proceedings, and powers of reinstatement: see Administrative Appeals Tribunal Act 1975, s 42A. The power to dismiss for non-appearance is given by s 42A(2). Sub-section (7) provides: 'Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, conference, mediation or hearing, as the case may be'. A person may apply for reinstatement of a matter dismissed for non-appearance within 28 days of being given notification of the decision: s 42A(8). Section 42A(9) provides: 'If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances'. 26 The way this power should be exercised has been canvassed in some detail in a series of decisions by Forgie DP: see Re Kerferd and Secretary, Dept of Families, Community Services and Indigenous Affairs [2007] AATA 1730, Re White and Secretary, Dept of Families, Community Services and Indigenous Affairs [2007] AATA 1712 and Re Oates and Secretary, Department of Social Security (1994) 37 ALD 241. 27 We note that the AAT discretion is expressed broadly ('if appropriate to do so') whereas our discretion simply refers to whether there is a 'reasonable explanation'. 28 One of the matters to which Forgie DP gives emphasis in relation to the exercise of the AAT's discretion is whether the material discloses that the party seeking reinstatement has any arguable case to pursue. After referring to two other considerations, she puts the matter this way in Re White at para [25]: '25. I would add to these two principles, a third. That is whether the application, if reinstated, would have merits. That does not require an exhaustive consideration of the merits but it does require a consideration of whether the application would have any chance of success if reinstated. To reinstate an application in circumstances in which there can be no chance at all of its being successful is to give false hope to an applicant as well as to waste the resources of both parties let alone of the Tribunal.' 29 To similar effect, VCAT, in one of its 'reasonable excuse' cases states that an application to set aside a strike-out order should not be granted if there was no triable or arguable issue: see Gosbell v Radovanovic [2005] VCAT 1594 (Cremean SM). 30 We do not think s 73(5)(h) is the kind of provision where, if the condition is satisfied (i.e. reasonable explanation for non-appearance), the Tribunal is, despite the use of the word 'may', obliged to reinstate the matter. The Tribunal retains a discretion. It is a power that operates in the context of the process of litigation. If it is evident no purpose is to be served by reinstatement then it is in the interests of justice (which includes a respondent's interest in closure and the avoidance of further costs), that the power not be exercised. 31 We note in that regard that the two substantive decisions of the Tribunal below dealt to a significant extent with a matter that, it now transpires, was outside the jurisdiction of the Tribunal, i.e. sufficiency of search. See Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 (19 June 2008). The Tribunal decision of 10 September 2007 remitted the matter to the Commissioner for reconsideration to enable a further search to occur. The Tribunal was satisfied that there was no other video surveillance footage of the charge room and cells at Surry Hills Police Station for the night of 27 March 2005 other than the tapes identified as tapes 52, 53, 54 and 55. Further, it is arguable that the application for access has been fully satisfied, as a result of two opportunities given to Ms Kiernan to view the tapes. 32 The first of these opportunities occurred on 30 January 2009. In its decision of 15 February 2008, Kiernan v Commissioner of Police, New South Wales Police (No. 2) [2008] NSWADT 52, the Tribunal remitted the matter to the Commissioner for reconsideration for the following reasons: '21 It is apparent from the material filed by the parties that Ms Kiernan attended the Surry Hills Police Station on 30 January 2008 to view the tapes. She has asserted that part of one of the tapes (tape 52) was blacked out. As a consequence of that assertion I have reviewed the copies of the tapes that were filed with the Tribunal and I note that the Tribunal's copy of tape 52 is also blacked out in the identified section. I have no basis on which I can conclude whether or not the tape has been deliberately blacked out. The Commissioner has not addressed this issue. 22 That being the case, it is my view that neither the copy of the tape numbered 52 that was filed with the Tribunal nor the copy that Ms Kiernan viewed is the complete tape. In the circumstances I am not satisfied that Ms Kiernan has been provided with an opportunity to view all of the tapes. 23 It is appropriate that the matter be remitted to allow the Commissioner to locate a copy of tape 52 in which the period between 2.26 am and 2.28 am has not been blacked out and make arrangements for Ms Kiernan to view the tape. If the period between 2.26 am and 2.28 am has been deliberately blacked out, the Commissioner is to advise Ms Kiernan and the Tribunal as whether any exemption is claimed in relation to the identified section. 24 This process is to be finalised within 21 days of the date of this order.' 33 On 15 April 2008, when the order for dismissal of the proceedings was made in the absence of Ms Kiernan, the Tribunal was referred by Mr Sheather for the Commissioner to an affidavit from Inspector Burley. He deposed that Ms Kiernan had now viewed the footage the subject of the application. The Tribunal accepted the explanation and proceeded to dismiss the application as it was now lacking in substance. 34 In this case there may well be an issue of this kind, but it has not been fully ventilated at this point. Ms Kiernan did not address it in her application for reinstatement. Conclusion 35 Ms Kiernan states that she was not orally informed of the starting time at the directions hearing, which is accepted. We think it improbable that anything was said to her by a Registry officer on the matter in the course of the conversation of 19 January 2009, but little is to be gained from hearing evidence one way or the other to seek to resolve that question. Also standing against acceptance of her explanation is the circumstances surrounding the final Tribunal hearing of 15 April 2008 when she failed to attend even though she knew that a hearing event of some kind was listed for that day. 36 On the other hand she did attempt to attend the hearing now under notice, and arrived about 30 minutes late. 37 The Registry of the Tribunal does not as a matter of routine inform parties in writing of directions either by delivering the record in writing to the parties either at the time they are given (as occurs in many tribunals) or by mailing them out later. For example, VCAT routinely informs parties in writing by mail of dates fixed for hearing; see further, Avonwood at [29] ff; as does the Commonwealth AAT; see Re Oates at [3]. 38 While legal representatives are used to making records of oral directions, and confirming them closer to the day by scrutiny of the Law List, there is a possibility that a litigant in person may not take the same care. They may have difficulties of understanding or make mistakes in the heat of the moment. They may not be familiar with Tribunal processes such as the issuance of Law Lists and where there are to be found. In this instance there may have been the additional element of confusion as between the date 'the eleventh' and the time 'eleven'. 39 On balance, while Ms Kiernan's explanation for non-attendance is not particularly satisfactory, we have decided to grant her application for reinstatement. 40 For the reasons given above, we entertain a real doubt as to whether there is any issue, within jurisdiction, that remains arguable. Ms Kiernan did not address this point in her written submissions in support of her reinstatement application, one that has been dealt with on the papers. She should be given an opportunity to address that matter. 41 We have considered what the next step should be. One option is to set another timetable for the exchange of written submissions going to this point. The better course, we think, is to proceed directly to an oral appeal hearing, with the direction that the first issue to be addressed will be whether there is any properly arguable matter left to be addressed. 42 The costs order was provisional. In light of our decision to allow reinstatement, we will vacate that order. 43 However, we would remind Ms Kiernan that the Commissioner's reply includes an application for costs of the appeal, and that application remains on foot. The Commissioner asserts that the appeal has 'no basis in fact or law to bring this appeal'. She remains at risk of a costs order if this submission is made out.

Kiernan v Commissioner of Police, New South Wales Police Force

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