Miriani v NSW Police Force

Applicable law 23Section 73 of the ADT Act relevantly provides: 73 Procedure of the Tribunal generally (1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure. ... (4) The Tribunal is to take such measures as are reasonably practicable: ... (c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. (5) The Tribunal: (a) is to act as quickly as is practicable, and ... (g) may dismiss at any stage any proceedings before it in any of the following circumstances: ... (iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings, (iv) if the Tribunal considers that there has been a want of prosecution of the proceedings, and ... 24Section 763 of the ADT Act relevantly provides: 76 Circumstances in which hearing may be dispensed with The Tribunal may determine proceedings by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties. 25Section 105 of the GIPA Act provides: 105 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.

Submissions 26The Respondent contends that notwithstanding the onus placed on it by section 105 of the GIPA Act, the Applicant has an obligation to prosecute his matter and to comply with directions made by the Tribunal. Mr McDonnell submits that there is power to strike out a defence and not just an application. 27Mr McDonnell relies on the Court of Appeal decision in Stollznow v Calvert [1980] 2 NSWLR 749 where Moffitt P, referring to comments by Walsh J in Witten v Lombard Australia (1968) 88 WN (Pt 1) (NSW) 405 at page 411, stated at 751 - 752: "[A] balance must be struck as between the plaintiff and the defendant and, in the end, the Court must decide whether or not on balance justice demands that the action should be dismissed". He further said the exercise of the court's discretion should not be fettered "by rigid rules" but required "a decision to be reached upon a balance of the relevant circumstances". It is of assistance to quote again what he ultimately said "Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered is credible and satisfactory. It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay. When all relevant factors have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised ... The premise upon which an application is made in each case is that there has been delay in bringing or pursuing the plaintiff's claim. In each case the cause of, blame for and prejudice caused by the delay are relevant factors." [At page] ... As a matter of principle, the blamelessness of a plaintiff personally for the delay is a fact relevant to be considered, along with other relevant facts. 28Mr McDonnell also relies on the Supreme Court decision in Weston v Publishing and Broadcasting Ltd [2011] NSWSC 433 in which Ward J considered principles in relation to the exercise of the power to dismiss an application for want of prosecution. Her Honour stated: 498 A defendant may apply to the court for an order dismissing a proceeding for want of prosecution if the plaintiff fails to proceed expeditiously. The court has two sources of jurisdiction to dismiss for want of prosecution - the Rules (Rule 12.7) and the inherent jurisdiction. ... 499 The power to dismiss an action for want of prosecution is not confined by rigid guidelines (Stollznow v Calvert [1980] 2 NSWLR 749; Witten v Lombard Australia Ltd [1968] 2 NSWR 529; (1968) 88 WN (Pt 1) (NSW) 405 at [411] - [412]). Although delay is the threshold circumstance that potentially enlivens the discretion to dismiss an action, delay is a relative concept and the significance of any delay must depend on the particular circumstances of the case involved (Bishopsgate [Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863]). 500 The proposition that the power to dismiss an action for want of prosecution should be exercised only where the plaintiff's default has been intentional and contumelious or where there has been inordinate and inexcusable delay giving rise either to a substantial risk that a fair trial would not be possible, or to a risk of serious prejudice to the defendant (Birkett v James [ [1978] AC 297] at [318]) has been rejected as unduly restrictive of the true scope of the power (Stollznow; Micalleff v ICI Australia Operations Pty Ltd [2001] NSWCA 274). 501 The ultimate question (keeping in mind the overriding purposes mandated by ss 56-59 of the Civil Procedure Act) is whether, balancing the prejudice to the respective parties by making or not making an order dismissing the proceedings, justice demands that the action be dismissed (Hoser v Hatcher [1999] NSWSC 527 at [20]; Witten at [411]; Stollznow; Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1986) 4 NSWLR 491; McKenna v McKenna [1984] VicRp 58; [1984] VR 665; Hartigan v International Krishna Consciousness [1999] NSWSC 57; Ritchie's Commentary on Uniform Procedure Rules at [12.7.5]). 502 Simpson J in Hoser at [21] - [30], with whose analysis Levine J agreed in Gill v Eatts [1999] NSWSC 1056 at [61] said this of the balancing exercise to be undertaken on such an application: (2.) the discretion should be exercised only in a clear case where it is manifestly warranted; Razvan, per Kirby P; as is generally the case with discretionary decisions, each case depends upon its own facts. Rigid formulae should not be applied to the exercise of the discretion: Stollznow v Calvert at 751 D; (3.) any explanation offered by the plaintiff for the delay in proceeding must be considered: Burke v TCN Channel Nine Pty Ltd, unreported, 16 December 1994, per Levine J; (4.) personal blamelessness on the part of a plaintiff (as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant: Stollznow, p73. (5.) a defendant who takes no steps to secure progress in the proceedings, or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will ensure the quiet death of the proceedings or that the longer delay will strengthen the case for striking out, runs the risk that that very behaviour will operate to his/her/its disadvantage. A defendant has two choices: to attempt to prod the plaintiff into action, or to stand by, doing nothing, trusting that time will bring about the slow death of the action. Either choice represents something of a gamble, dependent upon future events that the defendant is unable with any degree of confidence to predict. If the defendant opts for the former course, of prodding the plaintiff into action, it may succeed in doing so, precluding an application to strike out. On the other hand, if the plaintiff remains inert, the defendant's case for striking out strengthens with passing time. If the defendant chooses the latter option and takes no action, the plaintiff may take no further steps, or may take no further steps until such irremediable prejudice is caused to the defendant that the application to strike out will succeed; if, however, some other event galvanises the plaintiff into action the defendant, having done nothing to progress the matter, can hardly be heard to complain of the plaintiff's earlier inactivity: Calvert v Stollznow, 1 April 1980, Ritchie's Supreme Court Procedure, (NSW) Vol 2, para13,022, per Cross J (at first instance); and in the Court of Appeal per Moffitt J, p753; Vilo, p10; McBride v Australian Broadcasting Corporation, unreported 6 November 1998, per Levine J; Bass v TCN Channel Nine Ltd, unreported 25 July 1997, per Levine J; Hart v Herron, unreported, 3 June 1993, Court of Appeal per Priestley JA; (6.) delay between the date the cause of action arose and the commencement of the proceedings may be a relevant factor: Calvert v Stollznow, per Cross J; Burke v TCN. But in my view, this circumstance must be treated with some caution. The weight that can be accorded to that delay is limited. Where an action is commenced within the period provided for by an applicable statute of limitations, it would not ordinarily be appropriate to take that period into account. However, if a plaintiff has delayed significantly in the commencement of the proceedings, and that delay is followed by further lethargy in the advancement of the proceedings, the effect of the initial (but permissible) delay is compounded. The real question is not the length of the delay, but the impact that delay has upon the defendant's capacity properly to defend the plaintiff's claim. That will be a question of fact in each case. While there may be some prejudice presumed by reason of the passage of time, much will depend upon the nature of the proceedings, and the identification of the issues involved in the litigation. Where, for example, at the close of pleadings it can be seen that there are disputed questions of fact dependent upon the oral evidence of witnesses, or their recollections, the prejudice will plainly be greater than in cases that depend essentially upon the application of legal principle to largely undisputed facts, or upon disputed questions of fact that will be resolved by reference to documentary or other objective evidence not likely to be affected by the effluxion of time; (my emphasis) (7) the onus lies on the defendant to establish any prejudice upon which reliance is placed. The disappearance or death of witnesses, the fading of their recollections, or the destruction of records, are some obvious examples of the kind of prejudice that might arise; (8) prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim; delay in the commencement of proceedings by a plaintiff is sometimes taken as evidence contra-indicating prejudice to the plaintiff in the sense that he/she/it has evinced no interest in his/her/its own case: Burke, supra. Such an inference may be contra indicated by explanatory evidence; in this regard the plaintiff's personal responsibility for the delay is an important factor as is any explanation provided for the delay; (9) what the defendant has (or has not) done by way of preparation for trial may be a factor. This is a distinct question from that concerning any steps taken (or not taken) by the defendant in prompting the plaintiff to action. A defendant who has not interviewed witnesses, taken statements or collected documents, after being served with the claim, has a less meritorious complaint about the effect of prejudice caused or presumed by reason of delay: McBride v ABC, unreported, 6 November 1998, per Levine J; (10) the plaintiff's prospects of success is a relevant factor. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff's case is strong (absent the kind of prejudice to the defendant to which I have referred) it is less likely that justice will be done by striking the action out: Razvan, per Kirby P; (11) the exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics: Razvan, per Kirby P. The ultimate aim of a court is the attainment of justice: The State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146. To adapt the words of the High Court in that case, discretions such as that presently invoked ought not to be used to supplant the overall aim of the attainment of justice. (my emphasis) 29Mr McDonnell submitted that the Tribunal is entitled to find that the Applicant did not send the letter dated 21 February 2012. 30He noted that the Tribunal has previously found that the Applicant is a sophisticated litigant. He argues that if the Applicant were intending to prosecute the matter it would be expected that he would respond to the Tribunal's letter. The Applicant did not respond to either the Respondent's 23 February 2012 letter or the Tribunal's 8 March 2012 letter. 31Mr McDonnell submitted that the matter should either be dismissed or it should be determined on the papers. He stated that the Respondent has already been put to the expense of preparing its case and should not be placed in the position where it will incur the additional expense of having witnesses attend a hearing when no material has been filed contradicting the Respondent's evidence. 32The Applicant does not dispute the chronology of events set out above. He submits that the Respondent had sought two extensions of the timetable and he had only sought one extension. He also noted that there had been a listing problem in regard to the Planning Meeting on 29 November 2011 in that only one matter had been listed and not all four of his matters that are currently before the Tribunal. He did not elaborate on how these issues have affected his prosecution of the matter. 33The Applicant was adamant that he did not want the matter determined on the papers. He insisted that he required the Respondent's witnesses to be available for cross-examination.

Discussion 34As noted above, and as recorded in the Tribunal's letter dated 8 March 2012, I determined that no further material would be accepted from the Applicant. Given the history of this matter I do not propose to vary that decision. 35As noted, there is no material filed that contradicts the evidence provided on behalf of the Respondent. I agree with Mr McDonnell's submission that the Respondent should not be put to the additional expense of having its witnesses available for cross-examination. 36That being the case, I formed the view that that the issues for determination could be adequately determined in the absence of the parties. The matter could be determined by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing pursuant to section 76 of the ADT Act. 37As noted, the Applicant was adamant that he did not want the matter determined on the papers, without holding a hearing. 38I do not consider that there is merit in the Applicant's explanation for the delay in prosecuting the proceeding. I agree that the Respondent did not comply with the original timetable however it filed all its material in August 2011. The Applicant has been in a position to respond since that time but he has taken no steps to secure progress in the proceedings. I do not accept that any delay was caused by the listing problem in regard to the Planning Meeting on 29 November 2011. 39The timetable set following the filing of the Respondent's material required the Applicant to file and serve his material by 22 November 2011. No plausible explanation has been provided to explain why he was unable to reply to the Respondent's material. Under the amended timetable he could have replied to the Respondent's material prior to the final dated for reply and if necessary he could have responded to the OIC's material at a later date. He did neither. 40The Applicant is a sophisticated litigant and is experienced in prosecuting matters before the Tribunal. He is familiar of the Tribunal's procedures and the necessity that parties are to take all reasonable steps to comply with the Tribunal's directions. There is ample reason to conclude that he was aware of the directions that were made in relation to his filing of material. He was put on notice of his failure to comply with the set timetable and apparently took no steps to remedy the situation. 41As noted in Weston v Publishing and Broadcasting Ltd, the Applicant's prospects of success is a relevant factor. On the basis of the material before me it appears that the Applicant's prospects of success are minimal. 42In the circumstances, it is my view that when the prejudice to the Respondent is balanced against the prejudice to the Applicant, "on balance justice demands that the action should be dismissed": Witten v Lombard Australia. I therefore formally dismiss this matter for want of prosecution.

Order Pursuant to section 73(5)(g)(iv) of the Administrative Decisions Tribunal Act 1997 the matter is dismissed for want of prosecution.

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: 27 April 2012