Zonnevylle v Department of Justice - [2019] NSWCATAP 44 - NSWCATAP 2018 case summary — Zoe

NSWNSWCATAP

Zonnevylle v Department of Justice

[2019] NSWCATAP 44

NCAT Appeal Panel|2018-11-30

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2018-11-30

Catchwords

205 CLR 337 Gallo v Dawson [1990] HCA 30
[2018] NSWCATAD 96 Date of Decision: 26 July 2018
3 May 2018 Before: K Ransome, Senior MemberR Titterton, Principal Member File Number(s): 2017/00319363

Source

Original judgment source is linked above.

Catchwords

205 CLR 337 Gallo v Dawson [1990] HCA 30[2018] NSWCATAD 96 Date of Decision: 26 July 20183 May 2018 Before: K Ransome, Senior MemberR Titterton, Principal Member File Number(s): 2017/00319363

Judgment (26 paragraphs)

[1]

[2013] NSWCA 318 Zonnevylle v NSW Department of Finance and Services [2016] NSWCATAD 47 Texts Cited: Aronson, Dyer and Groves, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Lawbook Co) NSW Legislative Council, Parliamentary Debates (Hansard), 2 March 2005 Category: Principal judgment Parties: Peter Zonnevylle (Appellant) Department of Justice (Respondent) Information Commissioner (Interested Party) Representation: Appellant (self-represented) Office of the General Counsel, Department of Justice (Respondent) A Chetty (Office of the Information Commissioner) (Interested Party) File Number(s): AP 18/36891 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Citation: [2018] NSWCATAD 158; [2018] NSWCATAD 96 Date of Decision: 26 July 2018; 3 May 2018 Before: K Ransome, Senior MemberR Titterton, Principal Member File Number(s): 2017/00319363

[2]

[3]

Summons decision

The Tribunal refused Mr Zonnevylle's application to issue summonses to produce documents and to appear and give evidence to each of the following: the Information Access officer, NCAT; Ms Katherine Forbes, Ms Rebecca Jeyasingham and the "Information Access Officer, Crown Solicitors Office". Ms Forbes was the person who made the decision to refuse to deal with Mr Zonnevylle's application. We understand that Ms Jeyasingham was the person who produced some information to the Tribunal. One reason for requesting that these summonses be issued was an allegation that, "these officers have exercised functions with a lack of good faith and breached sections of the GIPA Act therefore compromising the integrity of the access application". We understand the words "good faith" to be a reference to s 112 of the GIPA Act. That provision allows the Tribunal to bring to the attention of the Attorney General any failure of an officer of an agency to exercise a function under the GIPA Act in good faith.
The Tribunal noted that it has power to issue or refuse to issue a summons: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 48(1). At [9], the Tribunal identified the overriding principle to be that the evidence sought to be obtained has apparent, as distinct from actual, relevance to the case. The Tribunal identified the decision under review to be the decision not to process the application any further because Mr Zonnevylle had not paid the requested processing fee. The Tribunal characterised that issue as being a legal question as to whether the Department was entitled to impose the fee or not.
The Tribunal concluded that the evidence to be given by the witnesses and the documents they had been asked to produce have no relevance to that issue. The Tribunal rejected Mr Zonnevylle's submission that allegations that officers of the Department and NCAT had engaged in improper conduct or committed offences under the GIPA Act were relevant to any issue in the proceedings. For those reasons, the Tribunal refused to issue the summonses.

[4]

Final decision

In the substantive decision at [13], the Tribunal summarised the information sought by Mr Zonnevylle: 1. information from the Department of Justice, including expenses of the Head of the Department over the past three years, codes of conduct and certain policy documents referrable to codes of conduct and other guidelines; 2. information from the Crown Solicitor's Office, including expenses of the Crown Solicitor over the past three years, documents concerning an aspect of particular proceedings in the Tribunal, codes of conduct and guidelines, income received by the Crown Solicitor's Office when representing government agencies in certain specified proceedings before the Tribunal, some statistics and details of the remuneration of certain officers; 3. information from the Tribunal, including documents concerning a particular proceeding, policy documents, remuneration and contracts of employment of Tribunal members, and various statistics.
The Tribunal rejected Mr Zonnevylle's application that he be allowed to record the hearing on a personal recording device. After making that decision, the Tribunal Member rejected a further application from Mr Zonnevylle to disqualify herself for bias.
Mr Zonnevylle contended that the Department had made various reviewable decisions. The Tribunal decided that the only reviewable decisions that the Department had made were the decisions to: 1. impose a processing charge and to require an advance deposit of the processing charge: GIPA Act, s 80(j); and 2. refuse to further deal with the access application because an applicant has failed to pay an advance deposit within the time required for payment; GIPA Act, s 80(l).
The Tribunal found that these decisions were lawful and reasonable and affirmed them.
The Tribunal decided that the Department had not made any of the other decisions that Mr Zonnevylle said were decisions that the Tribunal had power to review. For example, the Department had not decided that his application was not a valid access application; it had not decided to provide or refuse access to information; and it had not made a "deemed" decision to refuse to provide him with access to information.
Mr Zonnevylle requested that the Tribunal bring to the attention of the Attorney General allegations that particular officers of the Department had failed to exercise in good faith various functions under the GIPA Act: GIPA Act, s 112. The Tribunal declined to do so, finding that Departmental officers exercised their functions under the GIPA Act in a fair and considered way. That was the case despite the fact that Departmental officers had not made a decision as to the validity of the application within five working days as required by s 51(2) of the GIPA Act.
Mr Zonnevylle also requested that the Tribunal refer matters to the Information Commissioner that he alleged were indicative of a systemic issue relating to the determination of access applications: GIPA Act, s 111. The Tribunal was not satisfied that Mr Zonnevylle had established any matter indicative of a systemic issue which warranted referral to the Information Commissioner. Mr Zonnevylle alleged that various people had committed offences set out in the GIPA Act. The Tribunal found that it had no power to investigate or prosecute offences any alleged offence.

[5]

Scope of the appeals

Rather than hearing and determining the appeal ourselves, Mr Zonnevylle asked us to refer all the "questions of law" he identified as arising in the proceedings to the Supreme Court for the opinion of the Court. For the reasons which we give at the end of this decision, we have decided not to do so.
Mr Zonnevylle has identified several grounds of appeal which the Tribunal constituted as the Appeal Panel does not have power to consider. The Tribunal, constituted as the Appeal Panel, has internal appeal jurisdiction over "any decision made by the Tribunal in proceedings for a … administrative review decision, and any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable …": NCAT Act, s 32. An example of a decision that a registrar may make is a decision concerning the setting aside of a summons: Civil and Administrative Tribunal Rules 2014, cl 41(1)(h).
Examples of decisions that are not within the internal appeal jurisdiction are: 1. interlocutory decisions made by the Appeal Panel in these proceedings; 2. decisions by Tribunal Members in proceedings from which Mr Zonnevylle has not appealed; 3. decisions which have been overtaken by other decisions so that they are not the operative decision; 4. comments or findings which are not legally relevant to the Tribunal's decision; and 5. complaints about the conduct of Members unless they relate to Mr Zonnevylle's applications for disqualification.
The Principal Member who case managed Mr Zonnevylle's appeal made several interlocutory decisions before the matter came on for hearing. The Tribunal's internal appeal jurisdiction does not extend to decisions of an Appeal Panel whether those decisions are interlocutory or final: NCAT Act, s 32(3)(a). Consequently, we have not addressed Mr Zonnevylle's grounds of appeal that are about interlocutory decisions of the Appeal Panel made in these proceedings.
In his submissions on appeal, Mr Zonnevylle referred to decisions or conduct of Tribunal Members other than the two Members who made the summons decision and the final decision. As he has not appealed from any decisions made by those other Members, we have not addressed those grounds of appeal.
Mr Zonnevylle purported to appeal from a registrar's decision not to issue summonses to the four people who he says had dealt with his application under the GIPA Act. Mr Zonnevylle claims he is aggrieved not only by that refusal, but also by the registrar's inability to produce to him a system-generated email advising him of that decision. He submitted that the registrar refused to confirm that the email was not sent and consequently he has been denied procedural fairness.
A registrar may issue a summons: NCAT Act, s 48. In accordance with NCAT Procedural Direction 2, if a registrar decides not to issue a summons, the party applying for the summons can ask to have a Tribunal Member decide whether the summons should be issued. Mr Zonnevylle did so in this case. The Tribunal's decision is the operative or internally appealable decision, not the registrar's decision. For that reason, neither the registrar's refusal nor the way Mr Zonnevylle was notified of that refusal, is within the Appeal Panel's internal appeal jurisdiction.
Mr Zonnevylle identified several comments or observations that the Tribunal made which were not material to the ultimate decision. For example, Mr Zonnevylle took issue with the Senior Members' comment at [1] of the final decision that, "As a result, on 24 August 2017 a reduced scope was agreed upon". That comment was made after recording that the Department had advised Mr Zonnevylle that it may refuse to deal with his access application if dealing with it would require an unreasonable and substantial diversion of resources. Mr Zonnevylle submitted that this statement fails to mention that he only agreed reluctantly. Whether a reduced scope was agreed on reluctantly or otherwise is not a legally relevant fact. As authors Aronson, Dyer and Groves write in Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Lawbook Co) at 210, "Fact finding inevitably involves a prior knowledge of which facts might be legally relevant. We cannot know which facts to look for unless we know why we are looking, and it is the law which tells us that." We have not addressed Mr Zonnevylle's grounds of appeal that relate to facts that are not legally relevant.
Complaints about the conduct of Members or non-compliance with codes of conduct, which do not warrant changing a decision or removing a Member, do not come within the Appeal Panel's internal appeal jurisdiction. Any such complaints should be made in accordance with the NCAT Factsheet, Complaints about NCAT.
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 made 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.
An appeal may be made from an "internally appealable decision": NCAT Act, s 80(1). Mr Zonnevylle can appeal, as of right, from any such decision on "a question of law": NCAT Act, s 80(2)(b). As the Tribunal's Guideline 1 points out, there is no simple test to determine whether an appeal is or is not 'on a question of law'. That term is explained in Attorney-General (NSW) v X [2000] NSWCA 199; 49 NSWLR 653 (Spigelman CJ, Priestley JA agreeing). It has also been considered by the Court of Appeal in Commissioner of Police v Mohamed [2009] NSWCA 432 and B & L Linings Pty Limited v Chief Commissioner of State Revenue [2008] NSWCA 187.
If the Appeal Panel gives him permission, Mr Zonnevylle can also appeal from any "internally appealable decision" on grounds other than a question of law: NCAT Act, s 80(2)(b). Those grounds include a dispute about relevant facts.
An internal appeal must be lodged "within 28 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later)": Civil and Administrative Tribunal Rules, cl 25(4)(c). The Appeal Panel may extend the time: NCAT Act, s 41. Mr Zonnevylle applied for an extension of time to lodge the summons appeal. Because the summons decision is an interlocutory decision, even if we extend the time, Mr Zonnevylle also needs our further permission to appeal from that decision.
The Tribunal may make such orders as it considers appropriate in light of its decision on appeal. But that does not mean that the Appeal Panel may make any order whatsoever. It may only make orders which the NCAT Act, enabling legislation or other relevant legislation empowers it to make. Mr Zonnevylle did not identify the any legislation which gives the Tribunal power to: 1. to compensate him for breach of duty or misconduct by the Tribunal members and Registry officers; 2. dismiss, discipline or otherwise sanction Tribunal members and officers of the Department of Justice for misconduct.

[11]

Legal principles

A decision about issuing a summons is an interlocutory decision: NCAT Act, s 4. Before a party can appeal from an interlocutory decision, the Appeal Panel must give that person permission or 'leave': NCAT Act, s 80(2)(a). The relevant principles were set out by the Appeal Panel in Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCATAP 24 at [18]-[19]: 18 The Appeal Panel has recently considered the principles which generally guide the consideration of whether leave to appeal should be granted under s 80(2) of the Act: see Collins v Urban [2014] NSWCATAP 17. At [84] the Panel summarised the principles as follows: 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there. 19 It is settled law that leave to appeal against an interlocutory decision is reserved for cases with special features warranting appellate review. The fact that the statute imposes a leave requirement makes it clear that such appeals are not to be brought as a matter of routine: Niemann v Electronic Industries Ltd [1978] VR 431 at 436. The High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 acknowledged, referring to the often cited passage of Sir Frederick Jordan in In re the Will of Gilbert, that "a tight rein" had to be kept on interlocutory appeals if all exercises of discretion in interlocutory applications were not to be transferred to a court of appeal. Nonetheless, the High Court also held that it was unnecessary and indeed unwise to lay down rigid and exhaustive criteria, and specifically stated that the requirement for an error of principle and a risk of substantial injustice were not cumulative. Of the same mind in this latter regard was the Victorian Full Court in Niemann, where their Honours pointed out that if the appellate court were expected to say in all cases that the decision below was clearly wrong and that substantial injustice would follow if it went undisturbed, "leave would never be granted by the primary judge" ([1978] VR at 441). The Full Court considered that the use of the word "wrong" in this context was itself misguided and that the requirement would be better expressed as "attended with sufficient doubt".
One key question in this case is whether the summons decision is "attended with sufficient doubt" to justify giving permission to appeal.
In the Tribunal's reasons at [2], the Member referred to an email to Mr Zonnevylle dated 13 April 2018 setting out the reasons a registrar had refused to issue the summonses. Mr Zonnevylle characterises this reference as a 'decision' by the Tribunal that an email was sent and purports to appeal from that 'decision'. There was no 'decision' by the Tribunal that an email was sent. The Tribunal was merely providing background information about how the application had come before the Tribunal. As we have explained, the Tribunal's decision is the operative or internally appealable decision, not the decision of a registrar to refuse to issue the summons. Neither the registrar's refusal nor the way Mr Zonnevylle was notified of that refusal, is within the Appeal Panel's internal appeal jurisdiction.
The Tribunal also noted that two of the summonses were "bad in form" because they were addressed to an office holder rather than a person. That was an additional reason for refusing to issue those summons. Although Mr Zonnevylle was also aggrieved by these observations, the Tribunal's decision would have been the same even if a particular person had been named. These kinds of observations are not internally appealable decisions.
One of Mr Zonnevylle's submissions to the Tribunal hearing the summons application was that summonsing the witnesses is relevant to the issue of whether the Tribunal should refer a matter to the Information Commissioner under s 111 or bring any matter to the attention of the Attorney General under s 112. Mr Zonnevylle also submitted to the Tribunal that summonsing the witnesses is relevant because those officers have beached codes of conduct and provisions of the GIPA Act.
The Appeal Panel has never considered the nature and extent of the Tribunal's powers to refer matters to the Information Commissioner or to bring matters to the attention of the Attorney General. These are questions which involve issues of principle and which might have general application.
Leave is granted for Mr Zonnevylle to appeal on the following question of law from the Zonnevylle v Department of Justice [2018] NSWCATAD 96 (the summons decision): Did the Tribunal misconstrue s 111 or s 112 of the GIPA Act?

[13]

Tribunal's interpretation of s 111 and s 112

Section 111 states that: NCAT may refer any matter to the Information Commissioner that NCAT considers is indicative of a systemic issue in relation to the determination of access applications by a particular agency or by agencies generally.
Section 112 states that: If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency.
At [27] of the summons decision, the Tribunal interpreted s 112 as being confined to conduct which arises as part of the administrative review on the basis of materials already before the Tribunal: Section 112 does not give the Tribunal power to carry out an inquiry into the officer's conduct that is separate from or additional to the administrative review proceedings. While an applicant may lead evidence that relates to the administrative review of the administrator's decision, no evidence is to be led, cross-examination permitted or summonses issued in relation to conduct which does not arise as part of the administrative review. The Tribunal cannot compel the production of information for the sole purpose of determining whether a referral under s 112 should be made. Instead, the power in s 112 is only exercisable on the basis of materials already before the Tribunal in the course of conducting a review of a reviewable decision.
At [43] to [47] of the final decision, the Tribunal considered Mr Zonnevylle's submissions under s 111 and s 112 of the GIPA Act. The Tribunal examined the evidence but was not satisfied that any of the officers has failed to exercise a function under the GIPA Act in good faith. Similarly, the Senior Member was not satisfied that any matter indicative of a systemic issue in relation to the determination of access applications by the Department has been established which would warrant referral to the Information Commissioner. It was not necessary for the Tribunal to express a view on the scope of s 111 or s 112 except in response to Mr Zonnevylle's contention that various officers had committed offences. The Tribunal's response was to say that it had no power to investigate or prosecute offences.

[14]

Consideration

The Tribunal has administrative review jurisdiction to exercise the powers under s 111 and s 112 of the GIPA Act. The discretion to refer any matter to the Information Commissioner or to bring certain matters to the attention of the Attorney General are functions conferred on the Tribunal by 'enabling legislation' (the GIPA Act), in connection with the conduct or resolution of administrative review proceedings: NCAT Act, s 30(2).
Section 112 has four elements: 1. the formation of the opinion ("if NCAT is of the opinion"); 2. the circumstances in which the opinion may be formed ("as a result of an NCAT administrative review"); 3. the nature of the opinion ("that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act"); and 4. the fact that bringing the matter to the attention of the Minister is discretionary ("may bring the matter to the attention of the Minister").
The second element is that the opinion must be formed "as a result of an NCAT administrative review". The administrative review is the review of any reviewable decision the Department has made under the GIPA Act. We agree with the Tribunal's finding that s 112 does not give the Tribunal power to carry out an inquiry into the officer's conduct that is separate from or additional to the administrative review proceedings.
The Tribunal concluded that it could not compel the production of information for the sole purpose of determining whether a referral under s 112 should be made. By 'sole purpose' we understand the Tribunal to have meant for a purpose that does not relate to an issue in the administrative review proceedings. With that gloss, we agree with the Tribunal's conclusion. It follows that the Tribunal correctly construed s 112 of the GIPA Act.
The powers in s 111 are analogous to the power in s 112. As with s 112, the circumstances in which the Tribunal may form the relevant opinion is in relation to "the determination of access applications". Section 111 does not give the Tribunal power to carry out an inquiry into an agency's conduct that is separate from or additional to any administrative review proceedings.
Another question which arises from the grounds of appeal is whether the Tribunal should have regard to the offence provisions in the GIPA Act when determining whether to exercise the powers in s 111 or s 112. It is an offence for an officer of an agency to make a reviewable decision in relation to an access application that the officer knows to be contrary to the requirement of the GIPA Act: GIPA Act, s 116. Other offences by officers of an agency are set out in s 117 (offence of directing unlawful action) s 118 (offence of improperly influencing decision on access application); s 119 (offence of unlawful access) and s 120 (offence of concealing or destroying government information).
Mr Zonnevylle submitted that the Tribunal made various errors of law when it concluded in the final decision, that it had no power to investigate or prosecute offences. Mr Zonnevylle maintains that the intention of these provisions is to protect his enforceable right to access government information. He relies on s 64 of the Interpretation Act 1987 (NSW) which states that, "Every section of an Act has effect as a substantive enactment without introductory words".
The Court of Appeal explained the history and purpose of provisions like s 64 in Smalley v Motor Accident Authority of New South Wales [2013] NSWCA 318 at [43]: Allianz invoked s 64 of the Interpretation Act, which provides that "Every section of an Act has effect as a substantive enactment without introductory words." A provision to that effect was introduced by s 2 of the very first interpretation act (13 & 14 Vict c 21), which was promoted by Lord Brougham, whose purpose was to avoid verbiage arising from the custom of repeating the enacting formula before each clause or section. Francis Bennion has pointed out (Bennion on Statutory Interpretation, 5th ed (2008) at 719) that in the Act immediately preceding Lord Brougham's Act, s 8 provided "And for the Purposes of exempting the Metropolitan Police District as herein-before provided, be it enacted, That ...."
It is apparent from this passage that s 64 of the Interpretation Act does not support Mr Zonnevylle's submission that the Tribunal may inquire into whether a person may have committed an offence.
Proceedings for offences under the GIPA Act may be dealt with summarily before the Local Court: GIPA Act, s 128(1). Proceedings may only be taken by or with the authority of the Director of Public Prosecutions: GIPA Act, s 128(2). The Tribunal was correct to conclude that the Tribunal has no power to investigate or prosecute offences under the GIPA Act.
The Tribunal and the Appeal Panel have specific powers to take certain action in accordance with s 111 and s 112 of the GIPA Act. The power in s 111 is to refer any matter to the Information Commissioner that NCAT considers is indicative of a systemic issue in relation to the determination of access applications …". The power in s 112 is to bring to the Minister's attention a failure of an officer to exercise in good faith a function conferred on the officer. Although s 112 is headed 'improper conduct', headings to these sections are not part of the GIPA Act: Interpretation Act 1987, s 35(2). The Tribunal does not have power to bring to the attention of the Minister any conduct that the Tribunal may regard as improper. An opinion must be formed that the conduct is "a failure to exercise in good faith a function conferred on the officer". Nor does the Tribunal have the power under s 112 to bring to the attention of the Minister an alleged offence under the GIPA Act unless the conduct concerned also meets the test set out in s 112. The same reasoning applies to s 111.
The Tribunal has discussed what is meant by good faith in Saggers v Environment Protection Authority [2013] NSWADT 204 and Shoebridge v The Office of the Minister for Police and Emergency Services [2014] NSWCATAD 189 at [36]. We note that many of the submissions Mr Zonnevylle made in these proceedings were made and addressed by the Tribunal in previous proceedings: Zonnevylle v NSW Department of Finance and Services [2016] NSWCATAD 47.
The Tribunal did not misconstrue s 111 or s 112 of the GIPA Act in either the summons decision or the final decision.

[17]

Legal principles

The refusal to allow Mr Zonnevylle to record the hearing is an interlocutory decision. We have set out the principles for determining whether to grant leave above. One key question is whether the decision is "attended with sufficient doubt" to justify permission being given to appeal from that decision. In other words, is there sufficient doubt about the legal correctness of the decision to justify an appeal.
It is an offence for a person to use a recording device to record sound or images in court premises: Court Security Act 2005 (NSW), s 9(1). It is not an offence to do so if the use of a recording device has been expressly permitted by a judicial officer: Court Security Act, s 9(2)(a). (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). (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 …
These provisions apply to NCAT because it is included in the definition of a "court" and a "judicial officer" is defined to include "any other person who is, or who alone or with others constitutes, a court". Consequently, a person will not be committing an offence if a Member of the Tribunal expressly permits that person to use a recording device in tribunal premises.
One of Mr Zonnevylle's grounds of appeal was that the Tribunal was wrong to base the decision on her view that there was no immediate benefit to be gained to Mr Zonnevylle or the Tribunal in him recording the proceedings. This ground of appeal is likely to fail because any benefit to Mr Zonnevylle or to the Tribunal is a relevant consideration when deciding whether to give permission to use a recording device or to refuse permission. Nothing Mr Zonnevylle has put to the Appeal Panel persuades us that the Senior Member has acted on any wrong principle, taken into account an irrelevant consideration or made any other error of law as described in House v The King (1936) 55 CLR 499 at 505.
The second ground of appeal was that the Senior Member did not respond specifically to each of the reasons he gave for the application. If this is an adequacy of reasons ground it is likely to fail. It is essential for the Tribunal to expose the reasoning on a point critical to the contest between the parties: Keith v Gal [2013] NSWCA 339 at [117]. Mr Zonnevylle has not persuaded us that any of the points that the Tribunal did not expressly refer to, were critical to the issue in dispute. Reasons for decision need not be highly detailed and they should not be examined with an overly critical eye: O'Brien v Twyman [2016] NSWCATAP 125 at [51].
There is not sufficient doubt about the correctness of the Tribunal's decision to justify us giving leave for the appeal from this decision to go ahead. For that reason, leave to appeal from the Tribunal's interlocutory decision to refuse to allow Mr Zonnevylle to record the hearing is refused.

[18]

Should leave be granted to appeal from the Senior Member's interlocutory decision to refuse to disqualify herself for bias?

After declining to give Mr Zonnevylle permission to record the proceedings, he asked the Senior Member to disqualify herself for bias. The Senior Member refused that application. That decision is an interlocutory decision which requires the Appeal Panel's leave before it can go ahead: NCAT Act, s 4.
We have set out the principles for determining whether to grant leave above.
At [10] and [11], the Senior Member rejected Mr Zonnevylle's submission that she was actually biased or that there was a reasonable apprehension of bias. In relation to apprehended bias, the Senior Member set out what Mr Zonnevylle had to establish and her view that he had failed to establish those matters: Mr Zonnevylle did not identify any basis on which an independent observer might reasonably apprehend that I might not be open to persuasion in relation to the substantive matters to be decided. He did not articulate any logical connection between my action in not permitting him to use his own recording device and the possibility that I would not be impartial in deciding the issues to be determined in the proceedings. That was particularly the case as the hearing of the substantive matters had not in fact commenced and I had not given either party any indication of my views on any issue other than that concerning Mr Zonnevylle's request to record the hearing.
This is an accurate summary of the test set out by the High Court in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 at [8]; 205 CLR 337 at 345 (Gleeson CJ, McHugh, Gummow and Hayne JJ: 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.
Mr Zonnevylle's grounds of appeal were firstly that the Senior Member misrepresented her status and was biased when, in reply to his question: "Are you a judicial officer", she said, "I am." Mr Zonnevylle submitted that if the Senior Member is unable to make truthful statements and that clearly constitutes actual bias. Mr Zonnevylle did not raise this issue with the Senior Member at the time, so she did not consider it when deciding whether to disqualify herself.
The Senior Member is not a judicial officer as that term is defined in s 3 of the Judicial Officers Act 1986 (NSW). She is a judicial officer as that term is defined in s 4 of the Court Security Act 2005. The only basis on which Mr Zonnevylle suggests that the Senior Member's answer to the question means that she might not decide the case on its legal and factual merits is that the answer is not correct. In our view Mr Zonnevylle is unlikely to succeed on this ground of appeal because there is no logical connection between the fact that the Senior Member's answer is not correct (if the definition in the Judicial Officers Act is applied) and any feared deviation from the course of deciding the case on its merits. The Member had power to determine the issue raised by Mr Zonnevylle, that is whether she should allow him to record the proceedings. The Member did not mislead Mr Zonnevylle about any matter relevant to the exercise of that power.
The second ground of appeal was that the Senior Member was obliged to advise him that she had a conflict of interest when determining his application for disqualification. That conflict was said to be that if she disqualified herself, she would not hear the case and she would not be paid. Consequently, she had a financial interest in presiding over the hearing. Mr Zonnevylle did not raise this issue with the Senior Member at the time, so she did not consider it when deciding whether to disqualify herself.
The basis on which Mr Zonnevylle says that the Senior Member might not decide the case on its legal and factual merits is that she will not be paid, or would not be paid as much, if she disqualifies herself. No evidence supporting this assertion was before the Tribunal but Mr Zonnevylle referred to the rates of pay that Tribunal Members receive in his submissions on appeal. We assume that this is a reference to the current Remuneration Determination for part-time Members of the Tribunal dated 29 May 2017 and signed by the Attorney-General. Under the heading "Part day payments", the following text appears: Part time members may only be entitled to a quarter day, half day or hourly payment where they undertake duties for a period that is less than a full day, as set out in the NCAT Members Terms and Conditions Handbook.
The NCAT Members Terms and Conditions Handbook was not in evidence. As there was no evidence before the Tribunal or the Appeal Panel as to the policy for paying Members who have commenced a hearing but then recuse themselves, this ground of appeal is unlikely to succeed.
There is not sufficient doubt about the correctness of the Tribunal's decision to justify us giving leave for the appeal to go ahead. For that reason, leave to appeal from the Senior Member's interlocutory decision to refuse to disqualify herself is refused.

[19]

Did the Senior Member err by finding that there were only two reviewable decisions and that those decisions were the correct and preferable decisions?

When an agency such as the Department receives an application for access to information it must decide whether the application is valid and notify the applicant of that decision within 5 working days of receiving the application: GIPA Act, s 51(1) and (2). A decision that an access application is not valid, is a decision that the Tribunal has power to review: GIPA Act, s 80(a). The Department did not notify Mr Zonnevylle of their decision that the application was valid until the ninth working day after it had received the application. They gave the following explanation for the delay: The Applicant's formal access application was received by the Department on 26 June 2017. Due to the size and complexity of the initial scope, the Department was required to make several enquiries with agencies within the Department holding the information to ascertain whether the information was available and also whether some of the information sought was already publicly available. The Department worked with the Applicant in order to assist the Applicant and refine the very large scope of the application. For these reasons, an initial decision as to the validity of the applicant's access application was not made within the 5 working day time period required by s 51(2) of the GIPA Act. On 7 July 2017 (day 9 of 20) the Applicant was notified as to the validity of the access application and advised the date for determination of the matter would be 24 July 2017. On 19 July 2017 (at day 17 of 20) a request was sent to the Applicant seeking agreement to amend the scope of his access application on the basis that it constituted an unreasonable and substantial diversion of the Department's resources.
Mr Zonnevylle disputes this version of events. He says that the Department did not "work with the applicant" during the time from when the application was received and the notice of validity provided. Mr Zonnevylle also contends that "by the Department's own admission, the size and complexity of the access application was an unreasonable and substantial diversion of resources to be completed within the mandatory working days as required by s 51(2)".
Mr Zonnevylle submitted to the Tribunal below that because the Department had not responded within 5 working days, they had made a 'deemed' decision to refuse to deal with his application: GIPA Act, s 63. The consequence of a deemed decision under s 63 is that any application fee paid by the applicant is to be refunded and no processing charge can be imposed for dealing with an access application.
According to Mr Zonnevylle, "a broad interpretation of the Act, (as required by s 33 of the Interpretation Act 1987) is that the initial and final decisions (to decide an access application) are substantially the same". If we understand Mr Zonnevylle correctly, he submits that if the Department decided that his application is valid, that means that he will be given access to the information he seeks. If the initial decision is that his application is invalid, that means that he will not be given access to the information. He says the same applies to the final decision as to whether he gets access to documents. Both decisions are subject to a time period - 5 working days and 20 working days respectively.
With respect, this analysis is incorrect. A decision that the application is valid, does not mean that an applicant will be given access to the information being sought.
The Tribunal's reasons for not accepting Mr Zonnevylle's interpretation are set out at [21] and [22]: The Department, correctly in my view, submits that s 63 applies to a decision on the access application, that is, a decision on whether access to information is granted or refused, and not to an "initial decision" as to the validity of the access application. This is apparent from the wording of s 63 and its position in the GIPA Act. Section 51 on validity is contained within Division 3 of Part 4 of the GIPA Act which sets out the process for dealing with access applications, while s 63 is contained in Division 4 of Part 4 which contains provisions relevant to deciding access applications. It is clear that a decision on an access application can only be made with respect to a valid application. Section 63 has no role to play with respect to an initial decision by the Department concerning the validity of Mr Zonnevylleonnevylle's application. Indeed, as there has been no substantive decision on the access application (because the Department decided to refuse to deal with the application), s 63 has no role to play at all with respect to this application. Mr Zonnevylleonnevylle's contentions, therefore, that he should be refunded the application fee and that the Department was not entitled to impose a processing charge because of a "deemed decision" are not legally correct.
Mr Zonnevylle submitted to the Appeal Panel that this reasoning was wrong because s 51(2) uses the word "must" and therefore imposes a duty that must be performed: Interpretation Act 1987, s 9. Mr Zonnevylle submits that his interpretation promotes the objects set out in s 3 of the GIPA Act. He submits that the Tribunal's interpretation penalises the public for breaches of the Act by agencies and encourages further breaches of the Act if it suits the Department. We do not accept this interpretation because the meaning words of the legislation is clear and the Tribunal interpreted the substantive provisions of the GIPA Act correctly. While we accept that the legislation imposes a limit of 5 working days to tell an applicant whether the application is valid, a decision made after the time, is a valid decision.
The Tribunal found that given the circumstances, and the fact that the decision was made only four days' late, there was no justification for exercising the powers under s 111 or s 112 of the GIPA Act. For the reasons which we gave above, the Tribunal did not err in the way it applied those provisions.
Mr Zonnevylle also sought a reduction in the processing charge imposed by the Department: GIPA Act, s 66. The Department refused that application but later told Mr Zonnevylle that a decision on that matter could only be made after the access application had been determined: National Tertiary Education Union v Southern Cross University [2015] NSWCATAD 151. The Tribunal regarded itself as being bound by an Appeal Panel decision which agreed with that proposition: Page v Southern Cross University [2017] NSWCATAP 80. Mr Zonnevylle has not put forward any submissions that persuade us to depart from the interpretation of the legislation given in those cases.

[22]

Should the Appeal Panel refer certain questions of law to the Supreme Court?

The Appeal Panel has power to "refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court": NCAT Act s 54. Before a question of law can be referred to the Supreme Court, it must arise in the proceedings: NCAT Act, s 54. A question can only arise in Appeal Panel proceedings if it concerns an "internally appealable decision": NCAT Act, s 80(1). Unless a question is a question of law that arises from an interlocutory or final decision, we have no power to refer it. If we have internal appeal jurisdiction in relation to a question, we have a discretion to refer that question. Issues which may be relevant to the exercise of the discretion were discussed in Independent Liquor and Gaming Authority v Auld [2018] NSWCATAP 68; and Khalaf v Commissioner of Police; QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATOD 191.
The first question formulated by Mr Zonnevylle was as follows: What legislation prevents the tribunal member answering questions from an applicant when the questions concern: a. The integrity of the hearing/impartiality of the member b. The health and fitness of the presiding member particularly when that member is over 75 years old c. Questions regarding procedural fairness and procedures d. The apparent pecuniary conflict of interest at the hearing when a tribunal member is required/requested to disqualify themselves from the hearing.
We understand that the question about health and fitness does not relate to either of the Members who heard the summons application or the substantive application, so that question does not concern an internally appealable decision. The other questions appear to relate to Mr Zonnevylle's application for the Senior Member hearing to disqualify herself. The questions are not framed as questions of law. It is not relevant to any issue in dispute to ask what legislation prevents the Tribunal from doing something. A relevant question of law relating to that decision is whether the Member applied the correct legal test when deciding not to disqualify herself. Mr Zonnevylle did not raise that issue. As no question of law is identified, we decline to refer those questions to the Supreme Court.
The second question was as follows: a. Does a part time member have a pecuniary conflict of interest at the hearing when a tribunal member is required/requested to disqualify themselves from the hearing; b. Is a tribunal member required by law to declare that conflict of interest?
Again, these questions relate to the Senior Member's decision not to disqualify herself from hearing Mr Zonnevylle's application. We have explained above, these questions are not questions of law that arise in the appeal.
The third question is as follows: What authority does the Deputy Secretary of Courts and Services have over an independent statutory body such as NCAT? a. Does the Deputy Secretary have the authority to decide disputes between the NCAT registry and the applicant? b. Does the Deputy Secretary have the authority to interfere in procedural fairness whereby notices which may have/have not been provided to the applicant which relate to summons applications regarding a matter before NCAT?
As we have already explained, the Tribunal's decision to refuse to issue the summonses is the operative or internally appealable decision, not the decision of a registrar to refuse to issue the summonses. For that reason, the way Mr Zonnevylle was notified of the registrar's decision is not within the Appeal Panel's internal appeal jurisdiction and cannot be the subject of a referral to the Supreme Court.
The fourth question is: Does the President of NCAT have authority over all NCAT registry issues/procedures including: a. summons applications? b. fee waiver applications? c. general applications?
These questions do not concern an internally appealable decision or identify a question of law.
The fifth question is: a. Does the GIPA Act provide the applicant the right to the processing of an access application that is free from improper conduct? b. What standards of conduct are expected and required of those officers who exercise functions conferred on them by or under the GIPA Act?
These questions relate to the Tribunal's decisions not to bring to the attention of the Attorney General, allegations that particular officers of the Department had failed to exercise in good faith various functions under the GIPA Act. Expressed in that way, they relate to an internally appealable decision, but they are not framed as questions of law. The second part of the question is hypothetical. Mr Zonnevylle would need to identify the agreed findings of fact about an officer's conduct before the Supreme Court could address that question. In addition, as we have explained "improper conduct" are not the words used in s 112.
The sixth question is: a. What sections of the GIPA Act are not applicable to the substantive decision made by the Tribunal? b. Are breaches of mandatory requirements of the Act deemed to be 'improper conduct'? c. Does the Tribunal have authority over those reviewable decisions associated with offences under the Act (ss 116, 117, 118, 119, 120)? d. Do those reviewable decisions concerning offences under the Act have a substantive effect on the substantive decision?
We have addressed Mr Zonnevylle's grounds of appeal to the extent they relate to the meaning of s 111 and s 112 of the GIPA Act. None of the questions listed above is a question of law arising in the proceedings.

[23]

Should we allow Mr Zonnevylle to record the proceedings?

At the beginning of the hearing, Mr Zonnevylle asked to record the proceedings on his own recording device. When we refused that application, Mr Zonnevylle applied for us to disqualify ourselves. We also refused that application.
It is an offence for a person to use a recording device to record sound or images in court premises: Court Security Act 2005, s 9(1). It is not an offence to do so if the use of a recording device has been expressly permitted by a judicial officer: Court Security Act, s 9(2)(a). These provisions apply to NCAT because it is included in the definition of a "court" and a "judicial officer" is defined to include "any other person who is, or who alone or with others constitutes, a court".
In the Second Reading Speech introducing the Bill into Parliament, the Hon Eric Roozendaal said that the prohibition in s 9 "is a general security measure and is designed to prevent people inappropriately photographing witnesses or recording proceedings": NSW Legislative Council, Parliamentary Debates (Hansard), 2 March 2005 at 14435.
The reasons which Mr Zonnevylle gave for requesting permission to record the proceedings were that: he has a greater need to protect his interests than the Department; he has complained about alleged misconduct of named Members of the Tribunal and Registry staff;, he requires a personal guarantee that the recording will not be manipulated; it takes four weeks to obtain a copy of the recording and that delay is a detriment to him especially if a Member gives oral reasons for a decision; and we cannot guarantee that the recording system will not fail.
Hearings in the Administrative and Equal Opportunity Division of NCAT are generally open to the public and are recorded by Reporting Services Branch (RSB) of the Department. NCAT Policy 4 titled, Access to, and Publication of, Information Derived from Proceedings in the Tribunal sets out some of the legislative provisions and procedures that apply where a person wishes to gain access to, record or publish, information derived from proceedings in the Tribunal. That policy notes the terms of s 9 of the Court Security Act 2005. Transcripts prepared by RSB are the official transcript of the proceedings.
Judicial officers sometimes give representatives from media organisations express permission to record sound and images in court proceedings. For example, the Local Court has a Practice Note titled "Recording of Court proceedings". That Practice Note sets out the circumstances where a presiding magistrate may permit a media representative to record court proceedings for the purpose of preparing a fair and accurate report of those proceedings. Recordings must be deleted within 24 hours of the recording being made.
Publication of fair and accurate reports of court proceedings by the media is a fundamental principle of open justice: John Fairfax & Sons Pty Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465, per McHugh JA at 481.
Mr Zonnevylle provided no basis for suggesting that the official recoding could or would be manipulated; he did not point out how any delay in obtaining the sound recording or transcript would adversely affect his rights and he did not say how giving him permission to record the proceedings would promote any fundamental principle, such as the principle of open justice. In those circumstances we refuse to give him permission to record the proceedings.

Zonnevylle v Department of Justice

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