In Fraud Detection and Reporting Pty Ltd v Department of Justice [2018] NSWCATAP 191 we considered an appeal instituted by Fraud Detection and Reporting Pty Limited ("Fraud Detection") against a decision by a Senior Member of this Tribunal. The effect of that decision,as we described it in those proceedings, "was to preclude [the appellant] from gaining access to material concerning two complaints which had been referred to the Office of the Legal Services Commissioner ("OLSC"). Those complaints related to two solicitors who had some involvement in the estate of the late grandfather of Joe Zidar, who is said to be a director of the appellant. The details concerning the making of the complaints are complicated, as will be shortly seen, and the interaction between Mr Zidar and the OLSC has been difficult, for reasons which we shall shortly describe. The applications were made by him under the Government Information (Public Access) Act 2009 ("the GIPA Act")."
We dismissed the appeal and, in doing so, granted liberty to apply with respect to costs. Both the successful respondent and the unsuccessful appellant have sought costs orders, and these reasons consider those applications.
[2]
Who is the appellant?
Before determining these matters, it is first necessary to refer to a matter which we raised in the course of determining the substantive appeal.
At [4] and following of the appeal decision we said:
The original applications the subject of these proceedings were made by Mr Zidar in his name. However, when filing an application in this Tribunal to review the decisions to refuse his applications under section 100 of the GIPA Act, Mr Zidar completed the first page by naming Fraud Detection and Reporting Pty Limited as the applicant party. When he came to complete that part of the second page entitled "Party Details", Mr Zidar named himself as the applicant and made no mention of the corporate entity. Mr Zidar said that he had used the appellant corporate entity as an 'agent' representing those members of the family other than his uncle, with whom he was aligned. It is possible that the named corporate appellant has become a party to these proceedings because the Registry in processing the original application for review naturally utilised the corporate name which appeared on the front page of the document under the heading "Parties".
We note that section 100 of the GIPA Act might arguably have permitted the application to have been made in the name of the corporation if, as asserted by Mr Zidar, it indeed acted in some way as agent for members of the family other than the uncle. That section is in the following terms;
A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision (referred to in this Division as an NCAT administrative review).
In the same way, section 104 might arguably provide the corporate appellant an opportunity to participate in these proceedings. Its provisions are in the following terms;
104 Right of appearance before NCAT
(1) The Information Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division.
(2) The Privacy Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division of a decision that concerns a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to section 14).
(3) Any person who could be aggrieved by a decision of NCAT on a review under this Division has a right to appear and be heard in any proceedings before NCAT in relation to the review.
On one view, the name of the appellant may be irrelevant, because, as will be seen, we have determined to dismiss the appeal. However, it is arguable that the name of the appellant might be relevant if any application for costs is made by the respondent and ultimately granted, pursuant to the leave to apply which we shall grant. We are content to proceed on the basis that the proceedings remain constituted as they have been, particularly as Mr Zidar has always claimed that the corporate entity was his agent, and that by participating in the proceedings he was personally representing it as a director. For clarity, we shall refer to the participation of the corporate entity in these proceedings by reference to Mr Zidar.
The relevance of identifying the correct name of the party to these proceedings by reference to a possible adverse costs order which we referred to in the above extract has now come to pass and it is necessary to deal with this matter. It is clear that the original GIPA applications were made by Mr Zidar in his name. It is also clear from the manner in which he completed the original application before this Tribunal that even though he nominated Fraud Detection as the applicant party, he really intended that that company act as his agent only, and that he personally was to be the applicant party to the proceedings. This was confirmed by Mr Zidar during the course of the hearing before us on 5 November, 2018 when he pursued his application to be substituted as the party to these proceedings in lieu of Fraud Detection. He repeated that he had made a mistake when completing the application form. The respondent offered no resistance to this application.
It is important that the names by which proceedings are known should reflect the names of the real parties. In these circumstances it is appropriate that the name of the proceedings be altered by substituting Mr Zidar's name, Joseph John Zidar, for Fraud Detection and Reporting Pty Limited as the appellant in these proceedings. We so ordered during the course of the hearing on 5 November, 2018. We appreciate that the nature and extent of this order will necessitate the Registrar taking whatever action is appropriate in connection with the citation of the proceedings on Caselaw.
[3]
The application by the appellant to record the appeal proceedings.
Mr Zidar made application to record the proceedings. In doing so he commenced his submissions by an assertion that the Hansard report of proceedings in the Commonwealth Parliament had been interfered with by substituting a less offensive word for a really offensive word which he alleged to have been used by a member of Parliament during the course of the parliamentary proceedings. He said that this was an indication that, in some way, the transcript of these proceedings might be the subject of interference. Otherwise, Mr Zidar relied upon submissions which he had given in the appeal proceedings before us when he had made a similar application.
At [10] and following of our decision we said:
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;
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.
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.
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.
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.
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.
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.
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.
We asked the Monitor who was present during the course of the proceedings to inform us immediately if she detected any malfunction in the recording equipment. She indicated that she would do so.
On this basis we were satisfied that there was no necessity for Mr Zidar to record the proceedings and we so informed him when refusing his application during the course of the proceedings. Section 9 of the Court Security Act contains a general prohibition against the use of a recording device in court premises. One of the specific exceptions contained in subsection (2)(a) requires specific permission to be given to allow its use. This involves the exercise of a discretion whether to permit such use. In the context of a general prohibition there must be some valid and relevant reason why such permission should be given. The only reasons advanced by Mr Zidar concerned the possibility that a member or other person associated with this Tribunal might tamper with the recording and the possibility that the recording device might fail during the course of the hearing. The first possibility is remote and fanciful. The second possibility is just that, and we have taken precautions to preclude this from occurring, in the sense that the proceedings would be put on hold if a malfunction occurred. In these circumstances there can be no good reason for the exercise of the discretion as sought by Mr Zidar.
These are our reasons for declining his application.
During the course of Mr Zidar's application we sought information from the court monitor as to whether he would be able to detect any malfunction in the recording equipment. The monitor helpfully informed us that it was part of his function to stop the hearing if something went wrong with the equipment. He was continually listening as the proceedings were being recorded. Furthermore, the proceedings are recorded on an internal hard drive and contemporaneously on the RBS server.
Mr Zidar next complained that he had received a transcript of the appeal proceedings which indicated a total recording time in excess of the time shown on the transcript, and he suspected that some of the transcript of the hearing may have been deleted. In order to assist him the monitor explained that the recording inevitably commences before the proceedings commence and this would explain Mr Zidar's concerns. We add for completeness that we did not order a transcript or a sound recording of the appeal proceedings, a fact of which Mr Zidar was aware, and about which he informed us in the midst of criticism of our decision.
Mr Zidar demanded that if we did not accede to his request to record the proceedings we should make an order that all copyright in the transcript should be waived. We can see no basis for making any such order, if we had such a power, nor can there be any basis for having permitted him to privately record the proceedings.
We adopt the reasoning set out in our earlier decision which we have extracted above in dismissing Mr Zidar's application to privately record these proceedings.
[4]
The respondent's costs application
We now come to deal with the application by the respondent for a costs order in its favour. The power to award costs is provided by section 60 of the Civil and Administrative Tribunal Act 2013 ("the Act") which is in the following terms;
60 COSTS
(1) Each party to proceedings in the Tribunal is to pay the party's own costs.
(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.
(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,
(f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),
(g) any other matter that the Tribunal considers relevant.
(4) If costs are to be awarded by the Tribunal, the Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014 ) or on any other basis.
(5) In this section:
"costs" includes:
(a) the costs of, or incidental to, proceedings in the Tribunal, and
(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
We should first state that the application made by the respondent was for a costs order in its favour relevant to the appeal proceedings only. Arguably we are empowered to consider an application referable to the proceedings giving rise to the appeal, but in circumstances where no such application was made we shall confine our deliberations to a consideration of the appeal proceedings only.
We approach this matter by considering whether there are "special circumstances" which pertain to these appeal proceedings being matters which would not normally be encountered in proceedings of this kind, and ascertaining whether those special circumstances would justify an award of costs.
[5]
The respondent's submissions
It appears from the respondent's written submissions that the Crown Solicitor was retained on a limited basis to deal with so much of the appellant's appeal as concerned the non-publication order made in the substantive decision. The respondent seeks a costs order in its favour with respect to the costs charged by the Crown Solicitor. The respondent's submissions said that the Crown Solicitor had rendered an account in the sum of $7000 in connection with the appeal proceedings, but that it was satisfied to accept the sum of $5000 by way of a costs order. However, no information of any kind has been made available to us which would enable us to understand and assess whether $5000 or $7000 was a reasonable amount to award for costs. At the very least we would have expected that the respondent Department of Justice would have made available a copy of an account rendered by the Crown Solicitor. Such account should have contained some recital concerning the nature and extent of the work performed, the charge out rate of the legal practitioner involved, the time taken to perform the work and an itemised list of disbursements. In the absence of any such information we are not in a position to make any assessment of the quantum of costs.
The respondent submitted that the provisions of section 60 (3) (a), (e) and (g) of the Civil and Administrative Tribunal Act were enlivened in considering the circumstances of the appeal proceedings.
It was first said that the appellant had failed to comply with timetable directions for the preparation of the appeal hearing which forced the respondent to prepare written submissions "with limited understanding" of the grounds of appeal. Without traversing in detail the particular circumstances applying to the preparation of the appeal proceedings we observe that much time and effort was wasted because the appellant pursued a number of irrelevant and inconsequential matters referable to the accuracy of the sound recordings of the substantive proceedings, and the refusal by the Tribunal to contemplate certain summonses for production which the appellant wish to pursue.
We have sympathy for the position of the respondent because, as we said in our decision at [32] and following;
The grounds of appeal as set out in the Notice of Appeal are difficult to follow. They make reference to details contained in a number of letters of complaint made by Mr Zidar to the President of this Tribunal. Some, and perhaps all of those letters are reproduced by Mr Zidar attached to a document consisting of 230 pages which was intended to represent the material upon which he sought to rely for the purpose of the appeal. The correspondence with the President indicate a number of complaints concerning the conduct of the Principal Registrar, a Deputy Registrar and certain named members of the Tribunal. They cover matters including apprehended bias, incorrect appreciation of factual matters, incorrect application of legal principles and the like all seemingly addressed to interlocutory proceedings associated with the underlying application made by Mr Zidar for access to certain documents.
During the course of the appeal hearing we asked Mr Zidar to clarify the reasons why the Senior Member's decision was "wrong" other than the fact that he plainly was unhappy with the outcome. He initially asserted that the decision was wrong because it was incorrect to read the exclusion provisions in the way which had been applied by the Senior Member. The result was that he was denied access to certain information which he required, and that this defeated the whole purpose of the GIPA Act. We endeavoured to explain to Mr Zidar in as plain terms as possible that it was still necessary, when applying that legislation, to make sure that all of its relevant provisions were complied with. Even though there was an overall intention to give the public access to documentation possessed by government agencies, the Act specifically provided exceptions and those exceptions had to be applied. We do not apprehend Mr Zidar to have understood and accepted this explanation.
Indeed, Mr Zidar repeated on a number of occasions that the OLSC through its officers had acted in bad faith when dealing with his complaints and if his applications were refused, this would allow the Act to be used to protect the wrongdoings of officers of the OLSC whilst exercising their duties and functions. We endeavoured to explain to Mr Zidar that whether or not these officers acted "in bad faith" would not of itself affect the application of the exclusion provided in Schedule 2. We do not apprehend that he accepted this approach.
Mr Zidar also complained that the Senior Member had not dealt with each and every factual matter which he had sought to raise. Furthermore the decision did not contain a detailed legal consideration of what was meant by the words "function" and "power" where applied in Schedule 2. Presumably the factual matters relate to all of the complaints made by Mr Zidar to various members of the Tribunal during the course of interlocutory proceedings leading up to the hearing of the appeal, and also to the non-publication issue, which we shall deal with later in these reasons for decision. Mr Zidar did refer to paragraphs 4, 15, 18, 28, 37, 39, 61, 63 and 64 of the decision under appeal as containing factual errors, but we are unable to ascertain with any precision the factual error which is alleged with respect to each of them. In any event, based on our appreciation of the factual background to these proceedings, we cannot detect any factual error, let alone one which would cause us to question the decision under appeal.
Mr Zidar also attempted to rely on inconsistency in the approach of the respondent as justifying his entitlement to all of the material sought. The inconsistency was said to have been created by the fact that the respondent disclosed to him all of the correspondence which he had initiated. This material was tendered to him by way of concession. We cannot attribute any entitlement otherwise to the material sought by reason of this sensible concession. Mr Zidar also complained, in this vein, that the respondent had not furnished him with logs of all the telephone calls which he had made to the respondent. In that the concession made by the respondent referred only to his correspondence, and not to any record of his telephone calls does not create any entitlement to the extension of the concession. We do not regard this submission as having any validity.
Mr Zidar was also critical of a Deputy Registrar and Registry staff of this Tribunal concerning the circumstances in which summonses to give evidence which he had issued had been dealt with. Included within his complaints was the fact that a summons had been issued at his request directed to the Commissioner of the OLSC and he had later been informed that the Commissioner was not compellable as a witness. He appears to have made numerous attempts to have secured a refund of the moneys paid for the issue of the summons, and seems to have raised that matter in the proceedings before the Senior Member. Certainly, he raised the matter again before us. It is possible that Mr Zidar has, in his mind, considered this a material matter to be taken into account in dealing with the original application and his appeal from its dismissal. We do not consider that this is a matter which has properly been raised before us on appeal. On one view, the summons was clearly issued at the request of Mr Zidar. If that summons is not capable of being enforced, any waste of money in its issue must arguably be borne by him. His expectation that in some way this Tribunal will refund him that money is misplaced.
Indeed, the gravamen of the appeal proceedings with which we were dealing is contained in the paragraph in our reasons for decision which followed the material extracted above. At [38] we said;
We repeat that the information sought by Mr Zidar from the OLSC all related to the complaints made by him concerning the two solicitors. Prima facie the material is excluded material under Schedule 2 of the GIPA Act. The Senior Member was correct to so hold. We cannot detect any merit in any of the arguments advanced by Mr Zidar. This aspect of his appeal must fail.
In effect, the appellant's appeal was always doomed to fail, as was his original application to this Tribunal. In his GIPA application the appellant was seeking access to information which was excluded material under Schedule 2 of the GIPA Act. Either the appellant was incapable of understanding this (although it was clearly set out in the substantive decision under appeal and we endeavoured to explain it to him in the course of the appeal hearing,) or notwithstanding his understanding he determined to proceed even though the appeal was doomed to fail. In either event, the appeal proceedings clearly fall to be considered under section 60 (3) (c) and (e). They had no tenable basis either in fact or in law, they were misconceived and lacking in substance.
During the course of the costs hearing we canvassed with the appellant whether he had access to legal advice. He told us that he chose not to obtain it.
It is apparent to us that the appellant was seeking to pursue the appeal proceedings for misconceived purposes. He told us during the costs hearing that he wished to pursue the persons who were protected by certain non-publication orders which we had made in our appeal decision, although this was totally irrelevant to the costs application. He alleged that this Tribunal may be engaging in fraud to his detriment. He criticised our appeal decision in certain respects, although this was clearly irrelevant to the question of costs.
The appellant also told us that he had made GIPA applications to the Attorney-General, the Premier, and the President of NCAT concerning statutory appointments and whether members were entitled to be appointed even though they exceeded the age of 77. We shall not dignify the other equally irrelevant matters to which the appellant referred us during the course of the costs hearing by repeating them. Suffice to say that they are irrelevant to any consideration which we are required to give in determining whether the provisions of section 60 of the Civil and Administrative Tribunal Act apply.
In normal circumstances the Appeal Panel would make some concessions to an unrepresented litigant in relation to the manner in which proceedings are conducted, and in considering irregularities, a failure to understand the law and the like. However, the appellant has deliberately eschewed the retention of assistance from anyone legally qualified to give it and has embarked upon what can only be described as "a frolic of his own" which could have limited relevance to any matter which this Tribunal was required to determine with respect to his GIPA application. The resources of this Tribunal are limited, as are the resources of the Department of Justice, and it is inappropriate that they be used to deal with and determine matters which are irrelevant, particularly where proceedings have no merit. In circumstances where the only matter for determination was whether or not a statutory exclusion applied to information which the appellant was seeking, and where it had been clearly explained to him that he was not entitled to that information by reason of the statutory exclusion, we have no hesitation in determining that the appeal proceedings had no tenable basis either in fact or in law, and they were misconceived and lacking in substance.
In all the circumstances, we are satisfied that there are special circumstances warranting an award of costs in favour of the respondent and we propose to so order. Because, as we have explained, we are not in a position to assess any lump sum as requested by the respondent, we shall order that the costs be assessed in the normal manner in default of agreement.
[6]
The appellant's application for costs
In exercising the liberty to apply with respect to costs which we had granted, the appellant sought an order for costs in his favour totalling $592.25, relating to conduct of the Tribunal registry, to be payable either by the respondent or the Tribunal. The appellant appears to have misconceived the nature of the costs power, and of the special circumstances required, which generally relate to the conduct or case of the other party and not to the conduct of registry staff of the Tribunal.
The amount of costs claimed by the appellant was made up of a number of items. As we understand the appellant's written submissions as amplified in oral submissions, he said that he was required to pay the sum of $824 filing fee on the appeal because the appeal was instituted in the name of a corporate entity. He said that he should have been charged $412 only, because the Tribunal registry should have realized that the correct appellant was him as an individual, and said he was entitled to a refund together with interest. In addition, he had sought four orders in his appeal, one of which he said was necessitated by the Tribunal's registry wrongly issuing a summons at his request, and he therefore claimed a 25% reduction in the filing fee. The summons required the attendance of a former employee of the Department of Justice who, as it transpired, was not compellable to give evidence. He required a refund of the cost of issuing the summons of $45 together with interest at $6.75. Finally, the appellant complained that he had been required by a Principal Member during the course of a directions hearing in the appeal proceedings to file 6 copies of submissions but was told when he attended to filing at the Registry that it was only necessary to file 4 copies. He claimed a refund with respect to the costs of the excess copies provided of $23.
The appellant asserted that there were "special circumstances" which warranted him being awarded the amount of $592.25. He blamed the Principal Member and Registry officers all of whom should have been aware of the particular circumstances which pertained to his interaction with them.
We add for completeness that the appellant complained that this Tribunal was part of the Department of Justice, the respondent in these proceedings and that our substantive appeal decision had not correctly reflected the "obstacles" that he had incurred, and we had not captured the errors made by members and registry officers of this Tribunal.
We endeavoured to engage with the appellant during the course of his oral submissions concerning the relevance and appropriateness of making orders for a refund of disbursements as sought by him. These are matters not properly the subject of a costs application. Firstly, we are concerned only with the cost of these appeal proceedings. Accordingly, the circumstances in which the appellant had sought to issue a summons to give evidence at the initial hearing against a person who was not compellable do not concern us. Whether and to what extent the appellant paid the correct filing fee is not a matter with respect to which we are able to deal, nor is it appropriate that we do so. Whether and to what extent a Principal Member did in fact order the appellant to file 6 copies of his appeal papers is not known to us, nor are we aware whether there was any matter which was improper, assuming an order was made to this effect. Again, these are matters with which we are not empowered to deal in these proceedings.
We should add that this is not the first occasion upon which the appellant has sought to raise matters of this kind before us. In the course of our appeal decision we said;
[37] Mr Zidar was also critical of a Deputy Registrar and Registry staff of this Tribunal concerning the circumstances in which summonses to give evidence which he had issued had been dealt with. Included within his complaints was the fact that a summons had been issued at his request directed to the Commissioner of the OLSC and he had later been informed that the Commissioner was not compellable as a witness. He appears to have made numerous attempts to have secured a refund of the moneys paid for the issue of the summons, and seems to have raised that matter in the proceedings before the Senior Member. Certainly, he raised the matter again before us. It is possible that Mr Zidar has, in his mind, considered this a material matter to be taken into account in dealing with the original application and his appeal from its dismissal. We do not consider that this is a matter which has properly been raised before us on appeal. On one view, the summons was clearly issued at the request of Mr Zidar. If that summons is not capable of being enforced, any waste of money in its issue must arguably be borne by him. His expectation that in some way this Tribunal will refund him that money is misplaced.
During the course of the hearing the appellant handed to us copies of letters which he had forwarded to the Attorney-General and to the Premier seeking clarification as to the appointment of the presiding member as a Principal Member of this Tribunal. None of these matters appear to have any relevance to these costs proceedings, and they appear to us to be a continuing manifestation of the behaviour of the appellant we described in our appeal decision at [44] and [45].
We can see no justification in making any order as sought by the appellant. His costs application is dismissed.
[7]
Orders
We make the following orders;
1. Joseph John Zidar is substituted as the appellant party in these proceedings in lieu of Fraud Detection and Reporting Pty Limited.
2. The request of Joseph John Zidar to record the costs proceedings is dismissed.
3. The appellant is to pay the costs of the respondent of these appeal proceedings assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) in default of agreement
4. The application by the appellant for the payment of costs is dismissed.
[8]
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: 13 November 2018