Miriani v Commissioner of Police, NSW Police Force - [2018] NSWCATAD 207 - NSWCATAD 2018 case summary — Zoe

NSWNSWCATAD

Miriani v Commissioner of Police, NSW Police Force

[2018] NSWCATAD 207

NCAT Administrative and Equal Opportunity|2018-09-05

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2018-09-05

Source

Original judgment source is linked above.

Judgment (8 paragraphs)

[1]

REASONS FOR DECISION

Mr Joe Miriani has made three applications to the Tribunal for administrative review of decisions of the respondent in relation to three separate applications for access to information under the Government Information (Public Access) Act 2009 (GIPA Act).
Application 2017/321246 was lodged on 24 October 2017, seeking review of a deemed refusal of Mr Miriani's application made on 18 August 2017 (Ref 4154). Mr Miriani applied for internal review and a decision was made on internal review on 29 November 2017.
Application 2017/338113 was lodged on 8 November 2017, seeking administrative review of a decision in response to an access application made on 6 January 2017 (Ref 98); following review of the agency's decision by the Information and Privacy Commission, the respondent made a supplementary decision on 17 October 2017 which is the subject of the review application.
Application 2018/03718 was lodged on 4 January 2018, seeking administrative review of a deemed refusal on an internal review in relation to an access application made on 22 March 2017 (Ref 1510). A late decision was made in relation to that application on 20 October 2017.
The information to which access is sought in these applications relates, in summary, to the respondent's compliance with record management obligations, and its handling of GIPA applications (including applications Ref 98 and 1510); specific incidents involving officers of Surry Hills and Kings Cross Local Area Commands; and requests for access to directives, rules, guidelines, policies, practices and procedures for a range of functions including forensic samples, reporting of controlled activities, body-worn and in-car video, exhibits management, recorded video surveillance footage and audio recordings.
Matters 2017/338113 and 2017/321246 were listed for case conference on 23 January 2018. Mr Miriani did not attend, and directions were made, including in 2017/338113 that Mr Miriani respond to the respondent's material by 13 February 2018. All three matters have been listed together for further case conferences on 20 February 2018, 27 March 2018, and 12 June 2018. On 27 March 2018 directions were made for the applicant to file evidence including statements documents and submissions by 27 April 2018, and for the respondent to provide its evidence by 8 June 2018. On 12 June 2018 the time for the applicant to provide his material was extended to 6 July 2018, and the matters were listed for further case conference on 10 July 2018.

[2]

The Application

The first issue to determine is whether Mr Miriani is applying to have a decision of the Tribunal set aside under cl 9 of the Regulation, or for reinstatement under s55(2) of the NCAT Act. Whichever it was, the application was made within the 7 days specified in cl 9(3) for a set aside, or in rule 36 of the Civil and Administrative Tribunal Rules 2014, for a reinstatement application under s55(2).
Mr Miriani identified the decision he sought to have set aside as the decision of 10 July 2018. That was an interlocutory decision to list the three matters for directions on 17 July 2018. It was not a decision "that determines proceedings" as required by cl 9. The decision that determined each of the proceedings was the decision on 17 July 2018 to dismiss each application pursuant to s55(1)(c) of the NCAT Act.
In his written submissions Mr Miriani addresses the issue in the following terms: 12….It is now my understanding that only decisions that determine proceedings, including orders for dismissal of proceedings, can be set aside under clause 9 of the [Regulation]. 13.The Tribunal may, however, wholly or partly set aside the proceedings or a decision in the proceedings, under section 53(4) of the Act, in dealing with any irregularity involving compliance with a provision of the Act or the procedural rules. 14.There will be no need for reinstatement if the order for dismissal of proceedings made on 17 July 2018 by Senior Member Montgomery is set aside.
There is no procedural irregularity to which s53 might apply. The orders made on 10 July 2018 could not be the subject of an application under cl 9 of the Regulation. The orders made on 17 July 2018 could be subject to an application under cl 9, however in the context of an order of dismissal made pursuant to s55(1)(c), with the consequent entitlement to seek reinstatement under s55(2), and with express advice to that effect given in the Notice, the Tribunal is of the view that the application should be treated as one made under s55(2).
The issue then is whether the Tribunal can be satisfied that there is a reasonable explanation for Mr Miriani's failure to appear on 17 July 2018.

[3]

Mr Miriani's submissions

Mr Miriani states (paragraph 2) that on 11 July 2018 he attended the Registry for the purpose of filing statements, documents and submissions "but a registry officer brought to my attention that the matter was listed for dismissal because of my non-appearance the previous day", and that the officer printed a copy of the order of 10 July 2018. In paragraph 9 Mr Miriani states on 11 July 2018 he requested procedural advice from a registry officer for the purpose of understanding the options available to him "in order to stop the proceedings being dismissed". The registry officer provided a printout of the order made on 10 July 2018, but did not provide him with a printout of the notice of 11 July 2018 "and neglected to mention that I was required to provide an explanation for my non-appearance at the hearing".
Mr Miriani states: 11.I became aware of the existence of the Notice of Listing dated 11 July 2018 during the preparation of these submissions. Unfortunately, I receive quite a number of emails (junk emails included) every day and the email that the Registry sent containing that advice was overlooked.
He explains his non-appearance in the following terms: 18.My absence during the case conference on 10 July 2018 has been due to a mistake entering the date of the scheduled case conference into my electronic diary. The meeting was, to the best of my knowledge, scheduled to be held on 12 July 2018. 19.My absence during the directions hearing on 17 July 2018 has been due to the following reasons: -I understood that my presence was not required as settled matters have been dismissed by the Tribunal in the past without the attendance of the parties. -I sought to set aside the order made by Senior Member Montgomery on 10 July 2018 and any consequent orders. -The Registry did not provide me with a printout of the Notice of Listing for the directions hearing when I requested procedural advice. -The email containing the Notice of Listing for the directions hearing was overlooked due to the number of emails I receive every day.

[5]

Findings

The Tribunal is not satisfied that Mr Miriani has provided a reasonable explanation for his failure to appear on 17 July 2018, for the following reasons. Mr Miriani has not disputed that the Notice of Listing dated 11 July 2018 was sent to him, just that he overlooked it. However it is clear that he was aware on 11 July 2018 that there was a prospect of the proceedings being dismissed on 17 July 2018. The point made in the first bullet point in paragraph 19 of his submissions is not applicable to the stage the three matters had reached: none had been settled, as acknowledged in paragraph 16 that "written submissions newly filed in this matter provide evidence that my case is not ready to proceed to hearing". Given that Mr Miriani was aware from his conversation with a registry officer on 11 July 2018 of the prospect of dismissal of the proceedings on 17 July 2018, there could be no obligation on that officer to provide a document which had already been sent to the applicant.
In Habib the Appeal Panel addressed the issue of a history of non-compliance in the following terms: 114….The application turned on whether or not the Tribunal considered there was a reasonable explanation for the failure of the appellant to appear on only one single occasion on 19 February 2014 and not a history of non-appearance. As there was only one instance of non-appearance it was submitted that the Tribunal ought not to have refused to reinstate. Even though there may be only one instance of non-appearance, if the proceedings are dismissed under s 55(1)(c), the Appeal Panel has to be satisfied that there is a reasonable explanation for that one instance of failure to appear before the power to reinstate is enlivened. In considering whether any explanation is reasonable, the history of the matter may be relevant matter both in assessing whether the evidence and submissions put before the Tribunal should be accepted and in determining whether the facts found amounted to a reasonable explanation. It is noted that on 25 March 2014 Ms Burrows took no issue with the procedural history of non-compliance put before the Tribunal on the application, by way of Ms Howell's affidavit. Furthermore, the Tribunal was entitled to take into account that its directions to file and serve material by 18 February 2014 had not been complied with and that Ms Burrows had been aware of those directions. On the material before the Tribunal and its knowledge of the matter, it was open for the Tribunal to come to the view in those circumstances that it did not accept all Ms Burrows' submissions and that a reasonable explanation had not been established even though there had only been a single instance of non-appearance. The Appeal Panel is satisfied that there was no arguable error by the Tribunal in this regard.
It should be noted that that discussion was in the context of whether an appellant who had lodged his Notice of Appeal late and thus needed an extension of time under s41 of the NCAT Act had demonstrated that the appeal had reasonable prospects of success. In that case there was one instance of non-appearance. To the extent that it is relevant to consider the history of the matter, in contrast to the facts in Habib, Mr Miriani's non appearance on 17 July 2018 was not his first, and he was on notice on 11 July 2018 both that the three matters were listed for 17 July 2018 and that there was a prospect that they would be dismissed. That makes Mr Miriani's explanation that he overlooked the correspondence even less reasonable.
The Tribunal is not satisfied that there was a reasonable explanation for Mr Miriani's non-appearance on 17 July 2018. That means that the power to reinstate was not enlivened.
In Wallace v Price [2017] NSWCATAP 151 the Appeal Panel considered factors that might be relevant in the exercise of discretion to reinstate a matter. It is not necessary to consider those factors, which are addressed in the respondent's submissions at [27] above, as the power to reinstate is not engaged.

[6]

Clause 9 Regulation

If the above analysis is incorrect and the applications should be considered under cl 9 of the Regulation, and not s55(2) of the NCAT Act, the Tribunal would be required to consider first, whether cl 9(1)(b) is satisfied, namely that the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal, and secondly, if so, whether in the exercise of discretion the decision should be set aside.
It is not in dispute that the decision to dismiss the three proceedings was made in the absence of Mr Miriani. He submits that that resulted in his case not being adequately put to the Tribunal on 10 July 2018 as "written submissions newly filed in this matter provide evidence that my case is not ready to proceed to hearing", and on 17 July 2018 his failure to provide an explanation for his non-appearance resulted in the dismissal of the proceedings. Mr Miriani has since, on 7 August 2018, filed submissions in 2018/03718 and 2017/338113. Those submissions do not appear to take either matter further than is apparent from the Tribunal file. However, regardless of the case that might have been put by Mr Miriani, even if the requirements of cl9(1)(b) are met, a relevant factor in the exercise of discretion to set aside a decision is why the party was absent. For the reasons above, Mr Miriani's explanation for his non appearance is not reasonable. Mr Miriani was given an opportunity to be heard and have his submissions considered in the context of a further case conference in all three matters, and did not take it, and the Tribunal is not satisfied that there is any relevant injustice if the decision to dismiss each of the proceedings is allowed to stand: Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [78]. If the application before the Tribunal is an application under cl9 of the Regulation to set aside the orders made on 17 July to dismiss each of the proceedings, that application is dismissed.