McCamish v Commissioner of Police

NCAT Administrative and Equal Opportunity|2022-02-28

Background

The Applicant, Maxwell Roy McCamish, has held a firearms licence since 2012. In December 2020 the Applicant's licence was suspended and, on 23 June 2021 the Respondent decided to revoke the Applicant's firearms licence. That decision was affirmed on internal review. The Applicant then sought review by this Tribunal.
The Respondent presently seeks an order that: 1. the Application for Review be dismissed pursuant to s 55(1)(d) of the Civil and Administrative Tribunal Act 2013 (CAT Act) for want of prosecution; or, alternatively 2. the Application for Review be dismissed pursuant to s 55(1)(c) of the CAT Act because the Applicant has failed to appear in the proceedings.
In support of the application the Respondent relied on an affidavit by Nathan John Roberts, the solicitor with the carriage of the matter for the Respondent, dated 2 February 2022. 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 for Review.

The Tribunal's power to dismiss the proceedings

Section 55 of the CAT 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 … 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.

History of the Application for Review

The Application for Review was lodged on the Applicant's behalf by Last and Maxwell, Solicitors. The Respondent filed documents on 11 October 2021, in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act).
On 12 October 2021, the matter listed for a directions hearing. On that occasion, the Applicant's solicitor was unavailable and the matter was listed for further directions 26 October 2021.
On 26 October 2021 the Applicant's solicitor informed the Tribunal that the Applicant wished to obtain a psychologist's report and the matter was listed for further directions on 23 November 2021.
On 17 November 2021, the Applicant's solicitor sent an email to the Tribunal and to the Respondent's representative advising that he was no longer representing the Applicant in the matter. At the directions hearing on 23 November 2021, there was no appearance by or on behalf of the Applicant. Pearson PM noted that neither the Tribunal nor the Respondent's representative had contact details for the Applicant. The matter was listed for further directions on 7 December 2021.
On 19 November 2021 the Tribunal wrote to the Applicant's former representative requesting contact details for the Applicant, and a response was provided the same day. Attempts were made by the Registry to contact the Applicant by phone on 30 November and 3 December 2021, and on each occasion a voicemail message was left for the Applicant to contact the Registry and, on the latter occasion informing him that he was required to attend the directions hearing on 7 December 2021.
At the directions hearing on 7 December 2021, notwithstanding that the Respondent had already filed s 58 documents, the Respondent was ordered to file and serve s 58 documents on or before 7 December 2021 (sic). The Applicant was ordered to file and serve evidence including statements, documents and submissions on or before 31 December 2021, and the Respondent was then to file and serve all evidence in reply, submissions and a summary of legal arguments on or before 31 January 2022. The matter was listed for hearing by telephone on 7 February 2022. On 8 December 2021 the Tribunal wrote to the Applicant informing him of the hearing date. On 10 January 2022 the Respondent's solicitor emailed the Applicant informing him of the orders made on 7 December 2021.
By 12 January 2022, neither the Tribunal nor NSW Police Force's Office of the General Counsel nor the solicitor acting for the Respondent had received any material from the Applicant in compliance with the orders made on 7 December 2021.
On 17 January 2022, the Respondent's solicitor identified the Applicant's telephone number from material associated with the Applicant's renewal of his firearms licence dated 20 April 2017. That number was the same as the Applicant's former solicitor had provided to the Tribunal. The Respondent's solicitor phoned that number (which the voicemail message identified the recipient as "Max from Max's Fencing and Rural Contracting"). The solicitor left a message for the Applicant to contact him. The following day he emailed the Applicant. On 20 January 2022, the Respondent's solicitor again called the Applicant's number and again left another message to return the call.
When he did not receive any response from the Applicant, the Respondent's solicitor emailed the Tribunal, with a copy to the Applicant, requesting that the matter be listed for telephone directions at the earliest opportunity. The Tribunal listed the matter for a directions hearing on 1 February 2022. At that directions hearing Pearson PM attempted to contact the Applicant but the calls went through to voicemail. The Principal Member left a message, the solicitor said, saying that she was "calling about the Respondent's request for directions as he {the Applicant) had filed and served no documents". Orders were made by the Principal Member vacating the hearing date of 7 February 2022 and the Respondent was directed to file and serve its application for summary dismissal the next day. Orders were also made that the Applicant file and serve his response to the dismissal application by 17 February 2022, after which, subject to submissions, the matter would be determined on the papers.
No communication from the Applicant has been received by the Tribunal or by the Respondent's representatives in respect of the application for dismissal, or at all, since the solicitor who lodged the Application for Review on his behalf has ceased to act for him.

CONSIDERATION

The Respondent submitted that it is appropriate for the Tribunal to dismiss the Proceedings given that: 1. the Applicant failed to comply with the Order of the Tribunal made on 7 December 2021 that he "give to the Tribunal and all other parties the following material: evidence including statements, documents and submissions on or before 31 December 2021"; 2. the Applicant failed to respond to multiple attempts by the legal representative for the Respondent to contact the Applicant in relation to the matter; and 3. the Applicant failed to appear at the directions hearing on 1 February 2022, having also previously failed to appear at the directions hearing on 23 November 2021.
In the Respondent's submission, the Applicant has abandoned his prosecution of the matter. The Applicant filed no material in this matter at all, other than what was attached to his Application for Review, namely a brief outline of Grounds for the Application and a copy of the Statement of Reasons in the internal review.
Section 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)(d) or, in the alternative, s 55(1)(c) of the CAT Act. 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.

Has there been a want of prosecution by the Applicant?: s 55(1)(d) of the CAT Act

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. The Senior Member 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. In this matter, since he became unrepresented, the Applicant has failed to comply with the Tribunal's directions.
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, however, there have been four directions hearings. The Applicant's solicitor was to have participated in the first but was unavailable. In the second he informed the Tribunal that an adjournment was necessary in order for the Applicant to obtain medical evidence. Shortly afterwards the solicitor informed the Tribunal that he was no longer acting for the Applicant. Since that time the Applicant has not engaged with either the Tribunal or any representative of the Respondent. He did not comply with directions to file evidence and submissions and has offered no explanation for his failure to do so. 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. This is similar to the circumstances in the recent matter of Deeb v Commissioner for Fair Trading [2021] NSWCATAD 253. It is unclear if this failure is because the Applicant has concluded that his application is bound to fail, he has lost interest, or for some other reason. In any event, he has done nothing to advance his application, and I find there has been a failure to prosecute his administrative review application.
As to the Applicant's prospect of success in the substantive matter, the Applicant faces a number of significant hurdles. From the s 58 documents it appears his criminal record which includes a firearms offence, and convictions for fraud which he failed to disclose in his most recent firearms application. The Applicant may have mental health issues, including possible suicidal ideation.
I accept that summary dismissal is an extreme measure, but the Applicant's failure to comply with directions, and his failure to participate in the proceedings is continuing.

Should the Application for Review be dismissed?

I am satisfied that the Applicant was on notice that the Respondent proposed to seek dismissal of his Application for Review.
The "guiding principle" of the CAT Act and the Tribunal's procedural rules, 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. 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, on the available evidence, has a high probability of failure, is not in the interest of justice. I am satisfied that the Applicant's administrative review application should be dismissed under section s 55(1)(d) of the CAT Act.
Having come to that view it was unnecessary for me to consider dismissal under s 55(1)(c) of the CAT Act.

Orders 1. Being satisfied that the matter can be adequately determined in the absence of the parties, the Tribunal dispenses with a hearing pursuant to s 50(2) CAT Act. 2. The Application for Review is dismissed pursuant to s 55(1)(d) of the CAT Act.

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: 01 March 2022

At a glance

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Judgment (8 paragraphs)

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Cases Cited (4)