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.