Zidar v Department of Justice

NCAT Administrative and Equal Opportunity|2018-09-04

Solicitors: Office of the General Counsel, Departmentt of Justice (Respondent) File Number(s): 2018/00233456

Introduction

The substantive matter in these proceedings involves an application by Mr Joe Zidar for review of a determination by the Department of Justice under the Government Information (Public Access) Act 2009.
The matter was listed before me for a case conference on 4 September 2018. At the commencement of the case conference Mr Zidar made an application to be able to record the conference. I refused that application. Mr Zidar then made an application for me to recuse myself from dealing with the matter. I also refused that application.
I also refused Mr Zidar's application for an adjournment of the case conference. I understood that this application was based on the fact that I had refused his application to be able to record the conference and the recusal application. I refused the application for an adjournment because of the potential inconvenience and expense of doing so. All parties were present and a timetable for the prosecution of the application could be set without interfering in any appeal processes that Mr Zidar may wish to pursue. He did not continue to press that application and participated in the case conference.
Mr Zidar has requested written reasons for my decisions. These are my reasons.

Sound recording

At the commencement of the case conference Mr Zidar made an application to use a recording device to record the proceedings. He put forward a number of reasons why he should be permitted to record the proceedings. These included the fact that there is no court monitor in attendance as well as his assertion that there have been instances of malfunctioning of the recording equipment and that there have been instances of tampering with official recordings in the past. Mr Zidar was concerned that the Tribunal could not guarantee the accuracy or security of the recording of the conference.
Mr Zidar also indicated that there have been issues regarding copyright attaching to the official recordings and he stated that he does not consent to the copyrighting of his part of the proceedings.
Mr Zidar also indicated that one of the Tribunal's Deputy Presidents had given approval for him to make his own recording in other proceedings.
The Respondent opposed Mr Zidar's application to record the proceedings.
Section 9(2)(a) of the Court Security Act 2005 permits proceedings to be recorded by a person if such recording is expressly permitted by a judicial officer. Section 9 of that Act is in the following terms: 9 USE OF RECORDING DEVICES IN COURT PREMISES (1) A person must not use a recording device to record sound or images (or both) in court premises. Maximum penalty: 200 penalty units or imprisonment for 12 months (or both). Note : This subsection only prohibits the use of a recording device to record sound or images (or both) and not any other use of the device. For example, this subsection would not prohibit a person from using a mobile phone with recording capabilities to make a telephone call, but would prohibit the use of the phone to record court proceedings. (2) Subsection (1) does not apply with respect to any of the following: (a) the use of a recording device that has been expressly permitted by a judicial officer, (b) the use by a lawyer of a recording device to record the lawyer's own voice in a part of court premises other than a room where a court is sitting, (c) the use of a recording device by a person for the purpose of transcribing court proceedings for the court, (d) the use of a recording device by a journalist while exercising a right referred to in section 6 (2), (e) the use of such recording devices in such other kinds of circumstances as may be prescribed by the regulations.
Notwithstanding his application to be permitted to record the proceedings Mr Zidar appeared to doubt whether I have the power to make such an order. He questioned whether I am a judicial officer for that purposes and insisted that I take a judicial oath which he would administer. I declined to do so.
The issue of whether a Tribunal Member is a Judicial Officer for the purposes of the Court Security Act 2005 was considered by the Appeal Panel in Fraud Detection and Reporting Pty Ltd v Department of Justice [2018] NSWCATAP 191. It appears that Mr Zidar made a similar application to the Appeal Panel as in this matter. The Appeal Panel stated: The application by the appellant to record the appeal proceedings. 10 At the commencement of the appeal proceedings Mr Zidar made application under section 9 of the Court Security Act 2005 to use a recording device to record the proceedings. Section 9 of that Act is in the following terms … 11 Having made the application, but before making any submissions in support, Mr Zidar immediately challenged our capacity to deal with it. We informed him that by section 4 of that Act, this Tribunal constitutes a court for the purpose of section 9. Section 4 also defines a "judicial officer" to include a person other than a judicial officer within the meaning of the Judicial Officers Act 1986 "who is, or who alone or with others constitutes, a court." On this basis we informed Mr Zidar that we would deal with his application. 12 The basis of the application as asserted by Mr Zidar was twofold. Firstly, he said that Reporting Services had tampered with a previous sound recording made on 11 June, 2018. We note that he produced no evidence to substantiate this allegation. 13 Within the copious correspondence produced by Mr Zidar is a letter which he forwarded on the letterhead of the appellant to the NSW Crown Solicitor's Office dated 5 June, 2018. One of the many matters to which he adverted in that letter was the probity of five sound recording files which he had received and which related to proceedings before this Tribunal conducted on 11 May, 2018. He said that there was evidence that tampering had occurred in the production of the sound recordings because in three of the files there was no synchronisation and in addition the total duration in minutes of the five files did not reconcile with the run sheet provided with the CD containing the files. Furthermore, the files had not been made available for a period of 12 business days, whereas on a previous occasion the files had been made available within a period of five business days. By letter dated 6 June, 2018 a Deputy Secretary of Courts and Tribunal Services advised Mr Zidar that there was no ability to investigate his allegations based on the information provided. The letter continued "Unless you provide evidence of the tampering I will not be pursuing this complaint." There is no suggestion before us that this matter was pursued further by Mr Zidar. We are not satisfied that there is any evidence that any recording of proceedings in this Tribunal has been tampered with. 14 Mr Zidar did produce a letter written on the letterhead of the appellant to the NSW Department of Justice Reporting Services Branch dated 13 July, 2018 asking for copies of all requests and applications for all sound recordings for two divisions of this Tribunal from 1 January, 2016 to the date of processing of his application. That application includes a request for details of any system malfunction with respect to any of those recordings. He complained that that application had not been responded to by the date of the hearing of this appeal, namely 27 July, 2018. Secondly, Mr Zidar relied on a reply received by the appellant company from this Tribunal for a request for a copy of a sound recording of proceedings conducted by this Tribunal on 16 February 2018. That reply indicated that the copy could not be provided "due to an equipment malfunction." Accordingly, Mr Zidar said he was concerned that firstly this Tribunal would tamper with the recording of these appeal proceedings made by the Reporting Branch and secondly that in any event the reporting equipment might malfunction. 15 In the absence of any evidence of any kind that this Tribunal had previously tampered with the recording of any proceedings before it we were not prepared to accept this as forming any appropriate basis to grant Mr Zidar's request. We indicate for completeness that Mr Zidar produced to us during the course of the appeal hearing a copy of a letter forwarded to him dated 29 June, 2018 from the Principal Registrar and Executive Director of this Tribunal dealing with a number of complaints made by Mr Zidar to the Registry of this Tribunal, to the President of this Tribunal and to the Attorney General concerning various matters. One of those matters concerned a complaint alleging that this Tribunal had tampered with sound recordings which had been the subject of a response from the Deputy Secretary, Courts and Tribunal Services on 6 June, 2018. We repeat that no information or material of any kind has been produced to us to substantiate any such allegation. 16 Mr Zidar also included with his voluminous material a letter and other communications issued by a female person complaining that in 2016 a Magistrate in a Regional Local Court had interfered with a transcript of proceedings in which the author was the defendant. Apart from the bare allegation, there is simply no material which would form the basis of any relevant evidence or information supporting any concern that the transcript to be provided by the Reporting Service of these appeal proceedings would be anything other than accurate.
As the Appeal Panel observed, a Senior Member of this Tribunal is a judicial officer for the purposes of the Court Security Act 2005 and therefore I am able to deal with this application.
I agree with Mr Zidar's submission that there is no court monitor recording the case conference. However the conference is electronically recorded on a Tribunal laptop in the conference room. There is no reason to believe that the recording equipment will malfunction or that it will not accurately record the conference. Mr Zidar did not provide any evidence of the assertions that he made in support of his application other than correspondence of the kind referred to by the Appeal Panel in Fraud Detection and Reporting Pty Ltd v Department of Justice that I have quoted above.
I refused Mr Zidar's request to record the case conference on his personal device. I was not satisfied that any of the reasons he put forward in support of his application to be permitted to record the case conference warranted a departure from the general prohibition against making such recordings as set out in section 9 of the Court Security Act.

Recusal

As noted, Mr Zidar also made an application for me to recuse myself from dealing with this matter. I understood this application to be brought on the basis of apprehended bias. I do not understand this application to be brought on the basis of actual bias. In my view, the issues Mr Zidar has raised do not support a view that I am actually biased against him.
The principles to be applied in determining such an application based on apprehended bias have been considered in numerous matters before this Tribunal and in other forums. I considered them in Singh v Legal Aid Commission [2014] NSWCATAD 28 and ALZ v SafeWork NSW (No 3) [2016] NSWCATAD 156. Deputy President Hennessy considered them in Turner v Commissioner, Corrective Services NSW [2016] NSWCATAD 15. The Deputy president stated at paragraphs [6] - [9] 6 The general test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: Johnson v Johnson (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [11]. The two step process involved was explained by the High Court in Ebner v Official Trustee in Bankruptcy in the following way at [8]: First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. 7 For a decision-maker to disqualify himself or herself for apprehended bias, there must be an objective connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the decision-maker must not bring an impartial mind to bear on the issues that are to be decided: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [67] Gummow ACJ, Hayne, Crennan and Bell JJ. 8 A decision maker has an obligation to hear and determine the matter unless reasonable apprehension of bias can be established: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [19]; Bienstein v Bienstein (2003) 195 ALR 225 at [35]-[36] 9 An application for disqualification should be determined by the decision-maker whose disqualification is sought, and should not involve a contest on the facts: Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 436; Wentworth v Graham [2003] NSWCA 240.
Mr Zidar's application is based on the fact that I refused his application to be able to record the conference. As I understand it, Mr Zidar's position is that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of these proceedings.
A judicial officer should disqualify themselves only if there are facts which raise a reasonable apprehension of bias on his or her part: Attorney General of NSW v Lucy Klewer [2003] NSWCA 295 at paragraph [20].
It is incumbent upon the party seeking recusal to identify the issues which will need to be determined, the conduct which gives rise to the apprehension and the logical connection between the conduct and the issues: Barakat v Goritsas (No 2) [2012] NSWCA 36 at paragraph [12].
Mr Zidar must show that an independent observer might reasonably apprehend that I might not be open to persuasion. In my view he has not done so. The issues that he has raised do not provide a ground for disqualification.
The fact that a decision maker makes a decision adverse to a party is not sufficient to show that the decision maker is biased or in some other way prejudicial towards that party, is abusing the decision maker's power or that the decision maker could not fairly and impartially determine the matter. I fail to see how the decisions that I have made in this matter or in any other matter involving Mr Zidar in any way indicate an abuse of my power or that a reasonably fair minded lay observer with a knowledge of the material and facts in the proceedings, would reasonably apprehend that I might not bring an impartial and unprejudiced mind to the adjudication of this case. In any event, the case conference was an opportunity to set a timetable for the prosecution of the application, not for the adjudication of the case.
In my view, the issues raised by the Applicant do not provide a ground for disqualification. In my opinion, there is no proper basis for disqualification. For that reason I have given I declined to disqualify myself.

Orders 1. Mr Zidar's application to use a recording device to record the case conference on 4 September 2018 is refused. 2. Mr Zidar's application for me to disqualify myself from conducting the case conference on 4 September 2018 is refused.

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 September 2018

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Judgment (6 paragraphs)

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Cases Cited (13)