The substantive matter in these proceedings involves an application by Mr Joe Zidar for review of a determination by the Department of Justice (Office of the General Counsel) ("the Department") under the Government Information (Public Access) Act 2009. He requested information concerning a decision within the Department to block emails from his email address.
The matter was listed before me for a hearing on 21 February 2019. At the commencement of the hearing Mr Zidar made an application to be able to record the hearing. I refused that application. Mr Zidar then made an application for Mr Peter Zonnevylle to be able to sit at the bar Table while offering Mr Zidar assistance as a 'McKenzie friend'. I also refused that application.
The Department also lodged an objection to a summons that had been issued, at Mr Zidar's request, for one of the Department's officers to attend the hearing and to give evidence. I granted the Department's application for the summons to be set aside.
Mr Zidar has requested written reasons for my decisions. These are my reasons.
[2]
Sound recording
At the commencement of the hearing 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 while the proceedings are officially recorded and a monitor is in attendance, there have been instances of malfunctioning of recording equipment and 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 hearing.
Mr Zidar also indicated that there have been issues regarding copyright attaching to the official recordings and he stated that by making his own recording of the proceedings those copyright issues could be avoided.
Mr Zidar also indicated that in other proceedings one of the Tribunal's Deputy Presidents had given approval for him to make his own recording.
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.
In Fraud Detection and Reporting Pty Ltd v Department of Justice [2018] NSWCATAP 191 the Appeal Panel confirmed that a Senior Member of this Tribunal is a judicial officer for the purposes of the Court Security Act 2005. Therefore, I am able to deal with this application.
The hearing is electronically recorded and a monitor is in the hearing room controlling the recording. The monitor confirmed that the recording equipment was functioning properly. There is no reason to believe that the recording equipment will malfunction or that it will not accurately record the hearing.
I refused Mr Zidar's request to record the hearing 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 hearing warranted a departure from the general prohibition against making such recordings as set out in section 9 of the Court Security Act.
[3]
Mr Zonnevylle as a 'McKenzie friend'.
As noted, Mr Zidar also made an application for leave to allow Mr Peter Zonnevylle to sit at the Bar Table while offering Mr Zidar assistance as a 'McKenzie friend': see McKenzie v McKenzie [1970] 3 All E.R. 1034.
Mr Zidar indicated that he wished to have Mr Zonnevylle assist him on a McKenzie friend basis. The Department's solicitor, Mr McDonnell, opposed the application.
Section 38 of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act") provides:
38 PROCEDURE OF TRIBUNAL GENERALLY
(1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.
In accordance with section 38 of the NCAT Act I formed the view that it would not assist the orderly conduct of proceedings if Mr Zonnevylle was permitted to sit at the Bar Table while offering Mr Zidar assistance. I indicated to Mr Zidar that Mr Zonnevylle could provide him assistance but that he could not sit at the Bar Table to do so and that Mr Zonnevylle did not have any right to speak. I anticipated that there was a high likelihood of disruption if Mr Zonnevylle interjected. This subsequently proved to be the case.
The role of a McKenzie Friend was discussed by the Administrative Decisions Tribunal Appeal Panel in McGuirk v Vice-Chancellor, University of New South Wales [2009] NSWADTAP 43. The Appeal Panel noted that a McKenzie friend is a person who is of assistance to the litigant in presenting his or her case to the Court, provided that that person does not disrupt the proper conduct of the proceedings. A person appointed as a McKenzie friend may not act as an advocate in the proceedings.
The Appeal Panel also noted that there could be no objection to any litigant in person having the assistance of a person who conducted himself or herself in a quiet and unobtrusive way and had a detached relationship to the issues in controversy and to the other party to the proceedings.
Consistent with this approach I informed Mr Zidar that Mr Zonnevylle could provide him assistance of that kind. However, he could not appear as an advocate for Mr Zidar or address the Tribunal on behalf of Mr Zidar.
[4]
The Summons
I note that the Tribunal has previously made orders restricting the disclosure of the names of various officers of the Department. I will refer to the officer who was the subject of the summons as "Officer 1".
The Tribunal's registrar issued a summons to Officer 1 requiring her to attend the hearing and give evidence. The Department was not consulted prior to the issue of the summons and has objected to it. It has applied for an order setting aside the summons.
Mr Zidar submitted that I have no power to deal with that issue as the decision to issue a summons is an interlocutory decision by the Tribunal. He relies on the Appeal panel decision in Zonnevylle v Department of Justice [2019] NSWCATAP 44. At paragraph [24] of that decision the Appeal Panel stated:
Decisions the Tribunal made in the summons decision and in the final decision come within the Tribunal's internal appeal jurisdiction. While Mr Zonnevylle has the right to appeal from final decisions, he needs the Appeal Panel's permission before he can appeal from interlocutory decisions: NCAT Act, s 80(2)(a). Examples of final decisions are: the decision that the Department had only made two reviewable decisions and that those decisions were correct; the decision not to refer certain matters to the Information Commissioner (GIPA Act, s 111); and the decision not to bring certain matters to the attention of the Attorney General (GIPA Act, s 112). Examples of interlocutory decisions within the Appeal Panel's internal appeal jurisdiction are the decision not to issue the summonses, the decision not to allow Mr Zonnevylle to record the proceedings and the Member's decision not to disqualify herself from hearing the case.
Mr Zidar submits that the decision to issue a summons is an interlocutory decision and therefore an application to set aside the summons must be determined by an Appeal Panel.
As noted by Principal Member Titterton in Zonnevylle v Department of Justice [2018] NSWCATAD 96:
8. Section 48(1) of the Civil and Administrative Tribunal Act 2013 (NSW) provides that a summons may be issued by a registrar on the application of a party to the proceedings, or at the direction of the Tribunal. …
9. The overriding principle in relation to summonses is that the evidence sought to be obtained (be it documentary or testimonial) has apparent, as distinct from actual, relevance to the case. In other words, the information sought needs to be able to "throw light on the issues in the case": Sharpe v Grobbel [2017] NSWSC 1065 at [35]. To put the matter another way, a summons must only be issued for a legitimate forensic purpose. The onus is on the party attempting to procure the evidence to demonstrate a legitimate forensic purpose by reference to the issues as disclosed in the pleadings: Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [27].
The Tribunal's President has issued procedural directions in relation to summonses pursuant to section 26 of the NCAT Act. Section 26 provides:
26 PROCEDURAL DIRECTIONS
(1) The President may give directions ("procedural directions") relating to the practice and procedures to be followed in, and to the actual conduct of, proceedings in the Tribunal.
(2) The procedural directions must be:
(a) publicly available, and
(b) consistent with this Act, enabling legislation and the procedural rules.
(3) Without limiting subsection (2) (a), it is sufficient compliance with that paragraph if procedural directions are published on the website of the Tribunal.
(4) Each member, and the parties to proceedings and their representatives, must comply with any applicable procedural directions.
The Tribunal's Procedural Direction 2 (Summonses) in turn provides:
10. A registrar will decide whether or not to issue the summons and is to notify the party applying for the summons of that decision.
11. If a registrar decides not to issue the summons, the party applying for the summons can ask to have a Tribunal Member decide whether or not the summons should be issued
Objections to a summons are addressed by paragraphs [31] to [33] of Procedural Direction 2.
31. If the person named in the summons objects to complying with the summons or if another person affected by the summons objects to the summons being complied with, they should try to resolve the objection with the party who applied for the summons to be issued before the time for compliance.
32. Common objections are:
(a) the summons is oppressive, for example because it is too wide in scope and imposes too great a burden on the person named in the summons;
(b) the summons is too vague so that the person named in the summons cannot clearly identify what documents or other things are required to be produced;
(c) the evidence, documents or other things are privileged from disclosure, for example because they are confidential communications between a lawyer and a client;
(d) the evidence, documents or other things identified in the summons are not relevant to any issue in dispute in the proceedings.
33. If the objector is unable to resolve the matter informally, the objector should:
(a) before the time for compliance, inform the registrar and the party who applied for the summons of the basis for the objection. This should be done in writing;
(b) attend the Tribunal on the date for compliance and be prepared to explain the basis for objection.
Mr McDonnell advised Mr Zidar that the Department objected to the summons issued to Officer 1 on the bases that:
1. It is not necessary or useful for Officer 1 to give evidence in the proceedings;
2. The summons lacks legitimate forensic purpose; and
3. The summons was issued for an improper purpose and not for the purpose of assisting in the determination of the issues before the Tribunal.
Mr McDonnell also invited Mr Zidar to withdraw the summons. Mr Zidar was not prepared to withdraw the summons.
In such circumstances Procedural Direction 2 anticipates that an application can be made to the Tribunal seeking to have the summons set aside. Paragraph [34] of Procedural Direction 2 states:
34. Objections that cannot be resolved by discussion and agreement will be referred to a Member for decision.
In my view, this provision anticipates that the matter will be dealt with by the Tribunal at first instance. It does not require an appeal to the Appeal Panel. That being the case, I have the power to deal with the application.
Mr Zidar's substantive application concerns a request for information held by the Department in relation to the blocking of emails. His application for the issue of the summons asserted that Officer 1 gave instructions for the blocking of his email address and that she is the only officer in the Department who has full knowledge of the matter.
The Department has provided evidence from Mr Michael McIntosh and Mr McIntosh was available for cross-examination. Mr Zidar submits that Mr McIntosh is not able to give relevant evidence in regard to all the issues that need to be considered in the proceedings and that Officer 1 is required to address that deficiency.
Mr McDonnell submitted that the onus is on the Department to prove its case and it is for the Department to determine how it runs its case. He said that there is a long history of mistrust and abuse on Mr Zidar's part. He referred to comments by the Appeal Panel in Fraud Detection and Reporting Pty Ltd v Department of Justice. The Appeal panel stated:
44. We must emphasise that the material contained within the submissions of Mr Zidar which we have referred to above constitutes a summary only of some of the documents which he produced. They are enough, however, to indicate that Mr Zidar is a person who has, and is likely to engage in conduct which consists of a repeated, continuing and unrelenting barrage of requests and spurious observations which have little if any relevance to a considered, rational approach to the determination of his problems. It is obvious that some of these concerns arise out of abject ignorance. He has failed to appreciate that a member of this Tribunal is empowered to undertake a range of functions which might otherwise be undertaken by a judicial officer. He clearly does not understand many of the procedures and processes of the Tribunal and readily applies a sinister and malevolent consideration to anything which he does not understand. However, there is evidence that Mr Zidar has an obsessive mistrust of the legal system and those who are involved in it. He readily ascribes notions of bribery and corruption to members of this Tribunal, to officers of the Department of Justice and even to the Attorney General. He justified the request of the respondent for the non-publication order by informing us that he ran a website exposing fraud and corruption, and that the officers concerned did not want to be exposed on that website. He described one of the named officers as a solicitor who did not need protection by a non-publication order. He described such orders as not being designed "to protect government solicitors in exposing their wrongdoings." Furthermore, Mr Zidar produced material about one of the named officers and her career in the public service. It is obvious that, at least in the case of this one officer, Mr Zidar has gone to some trouble to collect personal information about her.
45. If any further proof be necessary of the obsessive nature of Mr Zidar's attitude to officers of the respondent and to this Tribunal it is sufficient to refer to background information commencing on page 1 of the applicant's submissions filed on 17 July, 2018. The submissions commence by complaining of the failure to extend the timetable for preparation of the appeal proceedings (presumably by reference to the failure of the President to respond to a number of requests for information). The submission then refers to the "scandalous" obstacles to the preparation and filing of submissions and by way of example, the notation of the proceedings by reference to the corporate appellant rather than Mr Zidar personally. The submission then continues "It is the writer's submission that Officers of the NSW Department of Justice, including those that are employed by (NCAT) are trying to sabotage the Appellants ability to obtain the correct and preferable decision. The extent of the wrongdoings is vast and almost beyond comprehension. Furthermore, it is evident that all measures are being taken to protect Mr John McKenzie, Commissioner of the Office of the Legal Services Commissioner. Moreover, various Summons have been wilfully rejected so that "forensic" evidence could not be obtained and to safeguard Officers of the NSW Department of Justice, including the Legal Services Commissioner, Mr John McKenzie."
...
48. There is reference in the extract from the decision of the Senior member set out above to Mr Zidar representing a "material risk" to the officers of the Department of Justice with whom he was involved coupled with a threat that they would lose their jobs. He then referred to the prospective receipt by him of a certificate stating that he would be a "blackbelt qualified in Six Sigma." During the course of submissions Mr Zidar stated that the officers concerned were threatened by this reference. He then referred to a page contained within his volume of material which he said indicated that the Six Sigma system was a business process system, and that it contained a number of "belts" including a blackbelt. When he explained this, Mr Zidar referred in a laughing, derisory manner to any discomfort felt by any officer who had mistakenly referred to a blackbelt by reference to a martial arts qualification. We would comment that in the context that we understood the reference to a blackbelt having been used by Mr Zidar, and having been confronted by his aggressive and antagonistic manner, we have sympathy for any adverse reaction on the part of any officer within the Department of Justice to the use of the reference made by him. If Mr Zidar had not intended to make that reference by way of a threat, we do not understand how any business process system would have any relevance to his dealings with the Department.
...
50. Mr Zidar complained that the terms of the non-publication order were unduly vague which, in some unspecified manner, may have caused him difficulty in complying with it. We do not agree with this submission. We agree that this order was justified in all the circumstances to protect the persons concerned from the insidious and constant attacks on their integrity made by Mr Zidar personally and on behalf of the appellant.
Mr McDonnell also referred to comments by the Appeal Panel in Zidar v Department of Justice (No 4) [2018] NSWCATAP 266 at paragraph [22]:
22. 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.
Mr McDonnell submits that the Appeal Panel comments support the view that if Mr Zidar were permitted to cross-examine Officer 1 it is reasonable to expect that he would engage in similar inappropriate conduct.
Mr McDonnell noted that Mr McIntosh has provided a statement and is available as a witness. Officer 1 has not provided and is not a witness. He submitted that in this matter Mr Zidar was seeking to cross-examine Officer 1 for misconceived purposes.
After hearing argument on the issue I determined to proceed on the basis that I would form a view in regard to the summons after Mr McIntosh's evidence had been completed. I ultimately formed the view that further evidence was needed in the Department's case. However I was also of the view that Officer 1 is not the most appropriate person to provide that evidence.
In my view, it is unlikely that any evidence that Officer 1 could give would assist in the determination of the issues before the Tribunal. Accordingly, I formed the view that the summons issued to Officer 1 to attend the hearing and give evidence should be set aside.
[5]
Orders
1. Mr Zidar's application to use a recording device to record the hearing on 21 February 2019 is refused.
2. Mr Zidar's applications for leave to have Mr Zonnevylle sit at the Bar Table while assisting Mr Zidar at the hearing on 21 February 2019 is refused.
3. The summons issued to Officer 1 to attend the hearing and give evidence is set aside.
[6]
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: 14 March 2019