Saisanavong v Commissioner of Police

NCAT Occupational|2020-12-22

REASONS FOR DECISION.

The Commissioner of Police has made an interlocutory application to the Tribunal asking for the administrative review application made by Mr Spencer Saisanavong to be dismissed for want of prosecution under section 55(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act). That subsection states: (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - … (d) if the Tribunal considers that there has been a want of prosecution of the proceedings.
I have concluded that there has been a want of prosecution of the proceedings by Mr Saisanavong, and that, in the circumstances of this case, I should exercise my discretion to dismiss the application under that section.

The administrative review application.

On 15 July 2020 Mr Saisanavong lodged an administrative review application in the Tribunal seeking to review a decision of the Commissioner of Police (the Commissioner) to refuse him a security license under the Security Industry Act 1997 (NSW) (the SI Act). That decision was to the effect that the Commissioner must refuse an application for a license under the SI Act where the applicant has a conviction, recorded in the 10 years before the application is made, for assault in respect of which a penalty of, among other things, a fine of $200 or more is imposed. Mr Saisanavong had been convicted on 5 December 2014 of two counts of common assault and fined $500.

Procedural history in the Tribunal.

The first event following Mr Saisanavong filing his application for administrative review was a directions hearing on 18 August 2020. The Tribunal was unable to contact Mr Saisanavong at the number he had provided. The application was listed for further directions on 1 September 2020. In addition, the Tribunal made the following directions: 1, The Tribunal notes that it was unable to contact the applicant on the telephone number provided. The respondent's representative confirmed that she had advised the applicant that the basis for refusal of his application was a mandatory refusal, and that if that is correct the Tribunal will have no discretion to vary the decision to refuse the application. 2, The applicant is to advise the Tribunal (copied to the respondent) by 29 August 2020 if he wishes to withdraw his application for review, and request that the proceedings be dismissed and the next listing vacated.
The directions hearing on 1 September 2020 was adjourned to 29 September 2020. Notes indicate that adjournment was to allow Mr Saisanavong, who appeared by phone, to obtain legal advice.
On 29 September 2020, the matter was again adjourned, this time to 6 October 2020. Order 2, made by the Tribunal on that day, said:
The applicant was not available by telephone. If there is no appearance on the next occasion, the proceeding will be dismissed.
On 6 October 2020 both parties appeared by telephone. The application was adjourned for further directions on 10 November 2020. A note to the orders made that day reads: The matter is adjourned to allow the Applicant to obtain legal advice in regard to his options and to consider whether to appeal the Local Court conviction.
On 10 November 2020, only the Commissioner appeared by telephone. Mr Saisanavong could not be contacted. The Commissioner asked for the administrative review application to be dismissed for want of prosecution. The Tribunal made the following orders:
Commissioner of Police is to give to the Tribunal and the applicant its application under section 55 of the Civil and Administrative Tribunal Act 2013 for dismissal of the proceedings, including supporting documents and submissions on or before 17 November 2020.
Spencer Saisanavong is to give to the Tribunal and the respondent evidence including statements, documents and submissions in response to that application, on or before 1 December 2020.
Commissioner of Police is to give to the Tribunal and the applicant and (sic) material in reply, on or before 8 December 2020.
The party's submissions are to include any submission as to whether a hearing of the summary dismissal application is required. Subject to considering any such submissions, the Tribunal poses to dispense with a hearing and determine the summary dismissal application on the documents provided to the Tribunal, after 8 December 2020.
The Tribunal notes that the applicant was not available would call today, message left on voicemail for him to contact the Tribunal urgently.
The Commissioner filed submissions in support of the application for summary dismissal. These are stamped is received on 17 November 2020.
Nothing has been received from Mr Saisanavong.
The Commissioner filed final submissions on 7 December 2020.
The administrative review application has now been referred to me for consideration of the application for summary dismissal, and whether that application should be determined without a hearing.

Material before the Tribunal.

In considering this matter I have had access to the full Tribunal file with respect to Mr Saisanavong's administrative review application. Specifically, with respect to the application for dismissal pursuant to section 55(1)(d) of the CAT Act, I have had regard to the following documents: 1. Mr Saisanavong's application for administrative review and attachments; 2. the section 58 documents; the Commissioner's submissions filed on 17 November 2020 and attachments; 3. the Commissioner's submissions filed on 17 November 2020; and, 4. the Commissioner's submissions filed on 7 December 2020.

Consideration

Section 50 (2) to (4) of the CAT Act provide: (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
In this case I am satisfied that both parties have been given an opportunity of making submissions with respect to whether a hearing is necessary. Only the Commissioner has seen fit to respond to that invitation and has submitted that the matter is one that can be determined without a hearing. Mr Saisanavong has not taken advantage of the opportunity to make submissions on that issue.
Having reviewed all the materials I am satisfied that this is matter than can be determined in the absence of the parties by considering the materials lodged by the parties. The facts relating to the matter are clear. I therefore dispense with a hearing.
Section 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Commissioner but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

Has there been a want of prosecution by Mr Saisanavong?

The first question to be determined by the Tribunal when considering a dismissal application under s 55(1)(d) of the CAT Act is whether there has been a want of prosecution by the applicant: see Sullivan v. State of New South Wales (NSW Police Force) [2009] NSW ADT AT [17] per Britton SM (as she then was). In Fei v. Director-General, Department of Commerce (No 2) [2009] NSW ADT 109 at [58] Montgomery SM referred 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. Senior Member Montgomery summarised the principles of from Fei that he considered helpful, at [58]:
In DQF v Department of Finance, Services and Innovation [2019] NSWCATAD 82 Principal Member Pearson pointed out that the public interest in the expeditious disposal proceedings is a factor to be considered. She said at [16]: In addition to consideration of prejudice to the parties, the decision of the High Court in Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175 establishes that the public interest in the expeditious resolution of proceedings is a relevant consideration. In that decision, in the context of amendments to pleadings and adjournment of proceedings, French CJ held (at 182) that "there is an irreparable element of unfair prejudice" in unnecessarily delaying proceedings, and further: ...Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Gummow, Hayne, Crennan, Kiefel and Bell JJ held (at 213): 98 ....a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account.
In the context of proceedings in this Tribunal section 36(1) of the CAT Act provides that: (1) The guiding principle for this 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.
Further, section 36(3) provides that a party to proceedings: …is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal.
The achievement of the Tribunal's guiding principle and the efforts by a party to co-operate in giving effect to it are, in my view, relevant to a considerations of whether there has been a want of prosecution.
In Mr Saisanavong's case the Commissioner correctly points out that: 1. there is no evidence that he is sought any legal advice despite the matter twice being adjourned, at his request, to enable him to do so; 2. of the five directions hearing held in this matter, Mr Saisanavong has only participated in two; 3. Mr Saisanavong has been told by both the Tribunal and the Commissioner that if the Commissioner's conclusions of fact, regarding his conviction for assault are correct, then the Tribunal has no discretion but to dismiss his application for administrative review as the SI Act requires a mandatory refuse; and, 4. Mr Saisanavong has not filed any material or submissions with respect to the application for summary dismissal, despite being given the opportunity to do so.
In those circumstances I am satisfied that Mr Saisanavong has not taken advantage of any of the opportunities afforded to him to advance his case. Aside from filing his initial application, there is nothing that indicates that he has done anything to prosecute or advance the application. There have been five directions hearing with respect to a matter which properly would require only one. Of these he participated in two. He has not facilitated the just, quick and cheap resolution of his application. Whether this is because he has concluded that his application is bound to fail, or for some other reason, is not clear to me. No matter what the reason, there has been a failure to prosecute his administrative review application.

Should the application be dismissed?

In my opinion Mr Saisanavong's administrative review application should be dismissed under section s 55(1)(d) of the CAT Act. Given Mr Saisanavong's failure to prosecute it, allowing the application to continue will only lead to additional cost and inconvenience for the Commissioner, and frustrate the Tribunal in complying with its guiding principle. The fact that the proceedings appear likely to end with a mandatory refusal, may well explain Mr Saisanavong's failure to actively participate in the proceedings. Allowing the application to proceed further when Mr Saisanavong has taken no action to advance it is not in the interest of justice.
If in the future Mr Saisanavong wishes to try to pursue a career in the security industry, there is nothing to prevent him making a fresh application to the Commissioner for a security license.

Orders.

The Tribunal makes the following orders: 1. Pursuant to section 55(2) the Tribunal dispenses with a hearing of the application for summary dismissal. 2. The application is dismissed for want of prosecution. 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: 07 March 2023

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