Zonnevylle v Minister for Education and Early Childhood Learning

Introduction

1. We have set out the detailed background to the proceedings to put Mr Zonnevylle's grievances in context, to identify the material facts and to help frame the issues on appeal.

The application for access to information

1. The Tribunal identified Mr Zonnevylle's application as being his 16 August 2018 application for access to the following information: "Ref document 'Dept. of Education & Training Briefing for the Minister' DGS12/613 1. a. Copy of document and all related documents/memos/directives associated with this document including evidence provided by Hopkins, CPO DEC or other officers for this proposal. b. Details on all recipients of this document (ie. Other Ministers, Agency executives, oversight agencies, etc who have been provided a copy of this document. 2. Documents/memos/correspondence between: a. The Minister & b. any DEC executives, including Bruniges/Riordan/Baily/Hopkins/Patrick/Southern referencing or concerning Zonnevylle. 3. Correspondence received by the Minister from DET/DEC or from any other agencies/Ministers/concerning Zonnevylle. 4. Documents between the Minister and the Premier & Cabinet concerning Zonnevylle 5. Complaints the Minister received concerning: a. Workplace Supplies Tender 1006c b. Tender: DETPR-35-11 c. Tender: DECPR-02-12 d. Premiers Memorandum 2006/11 e. DET/DEC procurement activities 6. Documents identifying any Education Minister's staff who dealt with any matters related to Zonnevylle when Picolli was Education Minister and the current Minister. Period for the above items: Between 2010 and June 2018 7. Correspondence/documents received by the Minister's office from Zonnevylle 8. Documents related to Australia Post item No 4961 8893 1012 Above documents to show which Ministerial staff took possession of items 7 & 8. 9. Documents related to Australia Post Items No. 4961 8893 2019 & 4961 8893 3016 Above documents to show which Ministerial staff took possession of items 9. 10. Documents identifying the name and position of the Education Ministry's (delegated) Information Access Manager / officer since Jan. 2010 & who currently holds that position. Period for items 7 to 10 between April 13, 2018 & August 16, 2018. 11. All codes of conduct applicable to all Ministerial Staff (Jan. 2017 to July 2018) 12. Documents received by the Ministry from the Applicant per Clipper Couriers Con. Note. G20014366 on 17-07-2018 & the Ministerial staff officer who took possession of these documents. 13. Documents detailing Statutes/Acts/Legislation for refusal to apply to the above applications."
2. Below this list is a statement by Mr Zonnevylle that certain public officers have been complicit in maladministration, disadvantaging state schools, breaching NSW procurement policies and guidelines, covering up maladministration and serious misconduct by "DEC officers", and complicity in wasting public funds. They are alleged to have breached their conduct obligations, acted in bad faith and with bias, abused their powers and breached "conflict of interest/bad faith/misfeasance/integrity guidelines." The document continues: Ministerial officers (possibly including the Minister himself) are alleged to have breached codes of conduct and possible unlawful/criminal offences as a result of their misconduct.

Events occurring before the application was lodged

1. Mr Zonnevylle asserts that he originally applied to the Minister for this information by post on 13 April 2018 and registered post on 27 April 2018. He says he then couriered a copy of the application on 17 July 2018 and faxed a copy on 16 and 30 August 2018. The application was allegedly faxed four more times before Mr Zonnevylle lodged his application for review with the Tribunal on 31 October 2018. None of these assertions is material to any issue on appeal.
2. Because the Minister for Education and Early Childhood Learning did not decide Mr Zonnevylle's access application under the GIPA Act within the prescribed time, the Minister was deemed to have decided to refuse to deal with the application. Mr Zonnevylle applied to the Tribunal for a review of the deemed decision: GIPA Act, s 80(c). The Tribunal's Administrative Review application form, which Mr Zonnevylle completed, asks an applicant to attach a copy of the decision to be reviewed and to indicate the date that the applicant was notified of the decision. Mr Zonnevylle wrote, "No acknowledgement received."
3. Under the heading "grounds for review", an applicant is asked to indicate the grounds on which he or she is seeking a review of the decision. In that section, Mr Zonnevylle wrote: Breach of GIPA Act and failure to promote GIPA Act Breach of applicant's right to access personal information (Information relating to the applicant) Alleged offences under the Act Sect. 112 Improper conduct complaint The Minister is causing the applicant a deliberate detriment = unlawful discrimination against the applicant.
4. In the same part of the application form, the handwritten words, "Refer Attached Sheet" are written. The first page of that attached sheet sets out a chronology of the instances from 31 April 2018 to 24 October 2018 when Mr Zonnevylle says he posted, couriered or faxed a copy of the access application to the Minister. Underneath the chronology, the following words appear: The Minister is alleged to be acting unlawfully. The Minister is required to promote the Act. The Minister has at least 5 original copies of these access applications complete with 5 cheques as payment for the application fees. The Minister is required to: a. return those original access applications b. return the respective cheques Should the Minister be unable to return these documents it is evidence that the Minister has breached Offences under the Act Sect.120 Furthermore the Minister has deliberately breached the Applicant's GIPA rights
5. Under the heading "late applications", Mr Zonnevylle wrote, "...no response from the respondent dating back from April 2018. This application has been resubmitted six times."

The Minister's determination

1. Less than a week later, in a letter dated 5 November 2018, the Minister apologised for the delay in determining his application "received on 18 July 2018". The Minister acknowledged that the decision is a "deemed refusal" and refunded the application fee of $30. The letter went on to say that, notwithstanding the deemed refusal, the Minister had considered the application and made a determination. That decision was that the information sought under items 1-6 and 8-10 was not held by his office.
2. In relation to Item 7 the Minister responded as follows: I have attached all correspondence held by this office from Zonnevylle, including the facsimiles listed below. I note that this search captured correspondence dated 9 April 2019 from yourself to this office which attached a number of documents, including one which makes reference to DGS12/613. I cannot ascertain whether or not this is the full document requested under search item 1.
3. In relation to item 11, the Minister advised that this information was publicly available and provided a link to that information. As to 39 "resubmitted applications" made between 24 August 2018 and 24 October 2018, the Minister considered that those applications "were substantially the same as your application received on 18 July 2018 with two additional search items." The Minister determined that the resubmitted applications were not valid applications, as they were not accompanied by a fee of $30.00. Nevertheless, the Minister made the following determination in relation to the two additional items: 12. I have attached a copy of your application that I received on 18 July 2018. 13. This information can be found at (link to website)

Interlocutory proceedings

1. On 7 January 2019, the Minister submitted that the only administratively reviewable decision is the decision that government information is not held by the respondent: GIPA Act, s 80(e). The only basis for challenging that decision is the adequacy of the searches undertaken by the respondent: GIPA Act, s 63. To the extent that Mr Zonnevylle's application related to alleged breaches of the GIPA Act, alleged offences under that Act or an application for the Tribunal to bring the matter to the attention of the responsible Minister (GIPA Act, s 112), the Minister submitted that those applications were not within the Tribunal's jurisdiction and should be dismissed.
2. In addition, the Minister submitted that the proceedings as a whole were an abuse of process and should be dismissed. The proceedings were said to be vexatious because they have been "brought and/or maintained for the predominant improper/collateral purpose of re-litigating his allegations of improper/serious misconduct and corruption by the respondent, his Department, its employees, the employees of another Department and the Tribunal itself."
3. Mr Zonnevylle provided submissions in response stating that the Tribunal has jurisdiction to review the decisions listed in s 80 of the GIPA Act. Mr Zonnevylle then pressed his submissions that the Tribunal should find that the Minister had breached various provisions of the GIPA Act including s 51 (relating to the required period for making initial decision as to validity of application) and s 57 (relating to the required period for deciding an application). Finally, Mr Zonnevylle submitted that there was evidence that the Minister had committed offences under various provisions of the GIPA Act including s 120 (offence of concealing or destroying government information).

Grounds of appeal and issues

1. Mr Zonnevylle set out the following three grounds of appeal in the Notice of Appeal: 1. Error of law. 2. Alleged misconduct by (the Tribunal Member) constituting bias against the applicant. 3. Vexatious conduct by (the solicitor for the Respondent).
2. Mr Zonnevylle elaborated on these grounds in his written and oral submissions. Mr Zonnevylle was not represented by a lawyer and, apart from the allegation of bias, failed to clearly identify a question of law. Instead, he focused on the same allegations which the Tribunal had decided it did not have jurisdiction to consider.
3. We must ensure that a self-represented party is not disadvantaged: Hamod v State of New South Wales [2011] NSWCA 375 at [309] - [316]. That may involve suggesting a question of law which the self-represented person has not articulated: XYZ v State Trustees Limited [2006] VSC 444; (2006) 25 VAR 402 at [43]; Donoghoe v Compass Housing Services [2015] NSWCATAP 97; Kendray v New South Wales Land and Housing Corporation [2015] NSWCATAP 139 at [30].
4. At the hearing we raised the following question: whether, to come within the principle of collateral purpose, the purpose of bringing the proceedings must be to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers: Williams v Spautz [1992] HCA 34; 174 CLR 509 at [36]. Even if Mr Zonnevylle's purpose was to "to attempt to re-litigate allegations of misconduct, illegality and lack of good faith", was that an advantage of the kind contemplated by the collateral purpose principle?
5. Mr Zonnevylle formally adopted this question as one on which he relied on appeal. We directed the parties to make further written submissions on that issue.
6. The issues on appeal may be summarised as follows: 1. Should the Appeal Panel grant leave to Mr Zonnevylle to appeal from an interlocutory decision? 2. If leave is granted, did the Tribunal make any error of law identified by Mr Zonnevylle or identified by the Tribunal and adopted by Mr Zonnevylle? In summary, those alleged errors are: 1. the evidence on which the Tribunal relied to make the findings at [71] and [72] was not 'evidence' of Mr Zonnevylle's purpose in bringing these proceedings because it was subjective and the Tribunal should have given him an opportunity to respond to and clarify the conduct the subject of the Tribunal's findings or observations; 2. the Tribunal misconstrued the meaning of collateral purpose by failing to ask itself whether or not Mr Zonnevylle had obtained some advantage; 3. there is an apprehension of bias because the Tribunal Member is a former work colleague of the Minister's solicitor, having been employed by the Crown Solicitor's Office. 1. Should the Appeal Panel uphold the Minister's contention that the Tribunal erred at [65] of the reasons by not admitting or taking into account evidence relating to decisions by the Tribunal other than decisions where Mr Zonnevylle was the applicant and the Minister for Education and Early Childhood Learning or the Department of Education was the respondent. (This issue is related to the issue identified at (2)(a) above and will be addressed together with that issue.) 2. Should leave be granted to appeal on questions other than questions of law? 3. Should Mr Zonnevylle pay the Minister's costs?

Minor issues

1. We will address the following minor issues briefly: 1. Should the 41 questions of law identified by Mr Zonnevylle be referred to the Supreme Court? 2. Should Mr Zidar be able to sit at the bar table with Mr Zonnevylle during the proceedings? 3. What is the material before the Appeal Panel? In particular, is a bundle sealed in clear plastic and lodged by Mr Zonnevylle, before the Appeal Panel? 4. Should Mr Zonnevylle be given an extension of time to lodge written submissions in reply?

Should the Appeal Panel grant leave to Mr Zonnevylle to appeal from an interlocutory decision?

1. The Minister submitted that the Appeal Panel should not give Mr Zonnevylle permission to appeal because he has failed to articulate any unreasonable or unorthodox factual error arising from the Tribunal's decision. In addition, the Minister submitted that Mr Zonnevylle has failed to demonstrate any error of fact or law beyond mere argument that he disagrees with the conclusions reached by the Tribunal.
2. The Appeal Panel set out the following principles in Collins v Urban [2014] NSWCATAP 17 at [84]: 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.
3. We have decided to give permission for Mr Zonnevylle to appeal for three reasons. First, the decision under appeal has the practical effect of finally determining the rights of the parties. In Ex parte Bucknell (1936) 56 CLR 221 at 225-226 the High Court held that such cases raise "little difficulty". The High Court went on to state that: Although such a judgment would often be interlocutory, it might be final in determining the issue between the parties, and, in such a case, leave would be granted almost as of course.
4. Secondly, this appeal raises a question of public importance. That question is the factual circumstances in which open access to justice may be limited by the application of the principle of collateral purpose. If Mr Zonnevylle's application is summarily dismissed, it will not be determined according to law. As far as we are aware, this is the first case where this Tribunal has summarily dismissed the whole application because of a party's conduct in attempting "to re-litigate allegations of misconduct illegality and lack of good faith . . ."
5. Thirdly, for reasons which we give below, the Tribunal's decision discloses an error of law.

Evidence on which Tribunal's findings of fact were made

1. We deal first with the grounds of appeal relating to the Tribunal's findings of fact.
2. The Tribunal summarised its overall factual conclusion at [71]: Therefore, despite the possibility that the applicant may have a legitimate cause of action in seeking a review of the reasonableness of the respondent's searches, the evidence above indicates that these proceedings are a vehicle for a predominant purpose to attempt to re-litigate allegations of misconduct, illegality and lack of good faith on the part of the respondent, the respondent's Department and its employees.
3. The Tribunal decided to determine Mr Zonnevylle's purpose in maintaining the proceedings by examining four categories of material: 1. the application; 2. the decisions relevant to the applicant's litigation against the Minister for Education and the Department of Education; 3. Mr Zonnevylle's submissions in these proceedings; and 4. Mr Zonnevylle's Application for Miscellaneous Matters.
4. The Tribunal expressly did not rely on a fifth category of material - "decisions in proceedings brought by Mr Zonnevylle against other agencies". At [65], the Tribunal gave the following reason for not relying on this material: In my view the decisions in proceedings brought by the applicant against other agencies are not relevant to show the applicant's predominant purpose in these proceedings, because they relate to different parties, although the legal questions they decided may be relevant to the legal issues in the proceedings.
5. The Minister contends that this aspect of the Tribunal's decision is incorrect.
6. Mr Zonnevylle submitted that the evidence on which the Tribunal relied to make the ultimate findings at [71] of the decision, was not evidence of his purpose in bringing these proceedings. He said that that material was "subjective" and the Tribunal should have given him an opportunity to respond to and clarify the conduct the subject of the Tribunal's findings or observations. Mr Zonnevylle's submission challenges both the nature of the evidence and the fairness of the procedure afforded to him.

Tribunal not bound by rules of evidence

1. The Tribunal "is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice": NCAT Act, s 38(2). Despite not being bound by the rules of evidence, the Tribunal must determine whether to take into account evidence provided by the parties. Evidence means material which could rationally affect the decision-maker's assessment of the probability of the facts in issue: Roberts v Balancio (1987) 8 NSWLR 436 at 437. To constitute an error of law, we must be satisfied that there was an absence of logically probative evidence supporting the Tribunal's ultimate finding of fact set out in [71].

Content of application to Tribunal

1. The first category of evidence on which the Tribunal relied was the content of his application to the Tribunal. In that document, Mr Zonnevylle listed the grounds for the application. One of those grounds was, at least in a general sense, a legitimate ground for review, namely "breach of applicant's right to access personal information". In the first interlocutory decision, the Tribunal dismissed those parts of Mr Zonnevylle's application that sought a review of any breaches of the GIPA Act, failure to promote the GIPA act, alleged offences under the Act, an improper conduct complaint and an allegation of discrimination. At [66], the Tribunal discerned from the grounds of the application, "that his purpose is to establish that the respondent has breached the GIPA Act, breached his rights under the Act and committed offences under the Act."
2. The content of Mr Zonnevylle's application form is relevant to his purpose in commencing the proceedings. However, the Tribunal dismissed the application because it was being maintained for a collateral purpose. Consequently, the evidence as to why he commenced the proceedings is not logically probative when making findings as to why Mr Zonnevylle did not withdraw the proceedings after the Minister made a determination. Despite our conclusion on this point, Mr Zonnevylle's submissions in the proceedings before the Tribunal below provide ample probative evidence to support the Tribunal's ultimate finding that at least one of his purposes in maintaining the proceedings was to attempt to re-litigate allegations of misconduct, illegality and lack of good faith.

Previous decisions involving Mr Zonnevylle and the Minister/Department

1. The second category of material on which the Tribunal relied were the decisions in proceedings brought by Mr Zonnevylle against the Minister and the Department of Education. The Tribunal held at [67] that that history "demonstrates a pattern of making allegations of improper conduct against the staff of agencies, which have been found to be baseless, and repeatedly urging the Tribunal to make findings of illegality which the Tribunal has determined in those proceedings, that it has no power to make."
2. In our opinion, having read the relevant decisions, that is an accurate summary of Mr Zonnevylle's conduct as described in those decisions. While he may disagree with the conclusions the various Tribunals reached in the earlier decisions, he did not deny that he has consistently made allegations of improper conduct against the staff of agencies and urged the Tribunal to make findings of illegality. It was not the Tribunal's role in the proceedings under appeal, nor is it our role on appeal, to express a view as to the correctness of the Tribunals' previous decisions about that conduct.
3. However, the question remains as to whether Mr Zonnevylle's conduct in other proceedings involving the same parties is logically probative of his reasons for maintaining the current proceedings. Our view is that evidence as to why he commenced or maintained other proceedings is not logically probative when making findings as to why Mr Zonnevylle maintained these proceedings. However, as we have said, there is other probative evidence to support those findings.
4. The Tribunal decided not to take into account "the decisions in proceedings brought by the applicant against other agencies" because they relate to different parties. The Minister indicated that he supported the original orders made by the Tribunal but that the Tribunal was wrong to have failed to take into account Mr Zonnevylle's conduct in other proceedings.
5. In the Reply to Appeal form, a respondent can indicate that he or she supports the original orders but for reasons other than those given by the Tribunal. A respondent may wish to do so where he or she agrees with the orders, but says there are other grounds supporting the Tribunal's decision. Such a contention is appropriate where the respondent believes that the grounds of appeal contained in the Notice of Appeal have merit, but there is another reason for upholding the first instance decision.
6. The Minister submitted that the Tribunal is entitled to consider any evidence of Mr Zonnevylle's conduct that is relevant to show his predominant purpose. Proceedings against other parties were said to be relevant "insofar as they disclose the applicant's pattern of behaviour in bringing and/or maintaining proceedings of a similar subject matter and, in turn, the applicant's predominant purpose in bringing and/or maintaining these proceedings."
7. In our opinion, this is not a case where the Minister has identified other grounds that support the Tribunal's decision. Rather, the Minister has submitted that the Tribunal has erred by not admitting, or taking into account, relevant evidence. That is not a question that the Appeal Panel should determine. The Minister does not disagree with the orders and has not cross-appealed. In any case, in our opinion, Mr Zonnevylle's reasons for commencing or maintaining previous proceedings involving different respondents is not logically probative of his reasons for maintaining these proceedings.

The content of Mr Zonnevylle's submissions to the Tribunal

1. The third category of material on which the Tribunal relied was Mr Zonnevylle's submissions in the proceedings under appeal. The Tribunal summarised those submissions at [58] - [61]. We set out that summary in full below. 58 The applicant's submissions ranged over a number of subjects and made a number of demands. The submissions did not recognise the effect of my earlier decision which identified that the scope of the Tribunal's jurisdiction in these proceedings was limited to reviewing conduct under s 80(e) of the GIPA Act. The submissions addressed: (1) The alleged failure of the respondent to facilitate and uphold the applicant's GIPA rights (2) An alleged false statement by the respondent with regard to non-payment of the fee (3) The failure to respond within the required time frame (4) Alleged lack of good faith and lack of integrity of the respondent (5) Alleged systemic issues, serious misconduct and lack of good faith on the part of the respondent (6) An application for costs against the respondent for having caused the applicant a "deliberate detriment" and "to protect the public from such alleged blatant misconduct that undermines the purpose of the Act". (7) Request for a referral of a question of law to the Supreme Court under s 54 of the Civil and Administrative Tribunal Act (this was not dealt with at the hearing and was deferred); (8) A complaint of professional misconduct against the respondent's legal representative and scandalous comments about him; (9) A claim that the applicant was entitled under s 100 of the ADR Act to have other decisions of the respondent reviewed by the Tribunal including: (a) a decision to refuse to deal with an application (b) a decision that an application was not valid (c) a decision to refuse access. (10) The grounds for the purported "review" in (9) above are said to be: "Breaches of the GiPA Act Failure of the respondent to uphold legal obligations to promote the object of the Act Breach of the applicant's GIPA rights Alleged offences under the Act Improper conduct complaint Adequacy of searches Failure to perform mandatory requirements of the Act" 59 The applicant detailed the points in the respondent's access decision which he challenged and alleged some of the statements in the decision were false. He stated that the Tribunal should examine whether the decisions in (9) were correct and proper and in whether the officers of the agency have not acted with a lack of good faith, committed offences under the GIPA Act, misinterpreted or misapplied the Act and fulfilled their legal obligations. 60 He submitted that his application was not vexatious and that he was attempting to get access to the information sought from the respondent. He said that it was evident from the number of times that he resubmitted his application to the respondent (a total of 44 times, in his submission) that he wanted a response to his application and did not want to have to file proceedings in the Tribunal but had been forced to do so. 61 He submitted that the respondent had not conducted adequate searches and he was sincere in wanting that to be done. He relied on material from Australia Post to show that the documents he sought should be in its possession and that the searches conducted had not been adequate.
2. On the basis of these submissions, the Tribunal made the following finding at [70]: The applicant's submissions demonstrate an intention to continue to agitate for findings of a lack of good faith, illegality and misconduct on the part of the respondent, and to seek review of decisions which are outside the scope of his application, regardless of the implications of my interim decision or the other decisions outlined above.
3. In our view, the conclusion at [70] was based on logically probative evidence.

Application for miscellaneous matters

1. The fourth category of material on which the Tribunal relied was an application for miscellaneous matters which Mr Zonnevylle had filed at the hearing. In that application, Mr Zonnevylle sought the following orders: That the Tribunal find that the respondent breached mandatory requirements of the GIPA Act on at least 4 occasions including in relation to its decision as to the validity of his applications (s 51(2)) and the period in which the decision was made (s 57).
2. An application for Miscellaneous Matters is on the Tribunal's website. A person should complete that form if he or she is seeking orders available under the NCAT Act but for which there is no another suitable form. Section 51(2) of the GIPA Act requires an agency to make an initial decision as to the validity of an application within 5 working days. The decision as to the validity of an application is reviewable under Part 5 of the GIPA Act. Subject to various qualifications, s 57 requires an agency to decide an application within 20 working days. We understand that by referring to these provisions, Mr Zonnevylle was asking the Tribunal to address his grievances about the Minister's failure to advise him as to whether his application was valid and the failure to determine his application within the required time frames.
3. Although the Tribunal did not make a discrete factual finding on the basis of this evidence, in our opinion, it was logically probative evidence supporting the Tribunal's ultimate finding at [71].

Findings about other purposes

1. As to Mr Zonnevylle's purpose in commencing these proceedings, he says that he was 'forced' to bring the proceedings because the Minister had failed to make a determination in relation to his application for 7 months. Mr Zonnevylle states that he "just wants his rights under the GIPA Act" and the only way he could get a response from the Minister was to lodge an application with the Tribunal. He says the Tribunal did not place any significance on the fact that he applied for a review of the deemed refusal decisions. We have found that the Tribunal's decision to dismiss the proceedings was based on Mr Zonnevylle's purpose in maintaining, rather than commencing the proceedings. In those circumstances, his stated purpose in bringing the proceedings is not directly relevant to any issue on appeal.
2. Within a week after lodging that application, the Minister made a determination. Given the fact that he says he originally applied for access to the information in April 2018 and re-applied in excess of 39 times after that, he has no faith in any decision that the Minister makes, particularly a decision that it does not hold the documents he has applied for. Mr Zonnevylle went on to submit that the information he is seeking is of "profound importance" to him.
3. The Tribunal recorded Mr Zonnevylle's submissions about his purpose in maintaining the proceedings at [61]: He submitted that the respondent had not conducted adequate searches and he was sincere in wanting that to be done. He relied on material from Australia Post to show that the documents he sought should be in its possession and that the searches conducted had not been adequate.
4. The Tribunal observed at [69], that Mr Zonnevylle's evidence showing delivery does not amount to evidence that the Minister should possess documents showing who took delivery of them. The Tribunal concluded that there was a ". . . possibility that the applicant may have a legitimate cause of action in seeking a review of the reasonableness of the respondent's searches."
5. It was not in dispute that Mr Zonnevylle was entitled to maintain his application as a review of the Minister's decision that he did not hold certain documents. The Tribunal expressed some doubt as to the merits of the substantive application at [69]. However, the Tribunal did not dismiss that part of the application because it was lacking in merit or because the Tribunal did not have jurisdiction to entertain it. Rather, the Tribunal dismissed the whole proceedings because of the finding that Mr Zonnevylle's predominant collateral purpose was to re-litigate allegations of misconduct, illegality and lack of good faith.

Fairness of the procedure

1. The second limb of Mr Zonnevylle's submissions about the evidence on which the Tribunal relied, relates to the fairness of the procedure. He says that the Tribunal should have given him an opportunity to respond to and clarify the conduct the subject of the Tribunal's findings or observations.
2. The Tribunal must take such measures as are reasonably practicable "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings": NCAT Act, s 38(5). That provision is a statement of the common law "hearing rule" which requires that a decision maker hear a person before making a decision affecting their interests. The obligation is flexible and depends, among other things, on the statutory context: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Mason J at 585.
3. Mr Zonnevylle was on notice of the categories of evidence on which the Minister relied in seeking to establish his purpose in maintaining the proceedings. He had an opportunity either in writing or at the hearing to respond to that evidence. Mr Zonnevylle did not deny that he had alleged, in his written submissions to the Tribunal, that the Minister, the Department and its employees had breached provisions of the GIPA Act, committed offences under that Act or failed to exercise, in good faith a function under that Act. Nor did he deny that he continued to agitate for findings of that kind. In our view, the Tribunal did not breach the rules of procedural fairness in making those findings of fact about Mr Zonnevylle's conduct.

Meaning and scope of the collateral purpose principle

1. In Williams v Spautz (1992) 174 CLR 509 the abuse of process lay in the fact that Dr Spautz brought proceedings including criminal defamation proceedings against various persons as a threat to induce them to cause a third party (the University) to secure his reinstatement. At [33] the Tribunal set out the view of the majority (Mason CJ, Dawson, Toohey and McHugh JJ) at [36]: . . . the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed. . . or some collateral advantage beyond what the law offers..
2. This is the passage which prompted us to frame the question whether, to come within the principle of collateral purpose, the purpose of bringing the proceedings must be to use them as a means of obtaining some advantage. The Minister's written submissions in response to that question persuade us that there is no need to establish that the predominant purpose in maintaining the proceedings is to obtain an advantage. The concept of a collateral purpose is broader than that and the "categories of cases in which a permanent stay may be ordered are not closed": Ridgeway v R (1995) 184 CLR 19, Gaudron J at 74-5; Moubarak by his tutor Coorey v Holt (09 May 2019) [2019] NSWCA 102 at [71].
3. At [37], the Tribunal also adopted the view of the majority in Williams v Spautz that the collateral purpose must be the predominant purpose. It does not have to be the only purpose. In addition, the intention of the applicant is to be determined objectively, rather than subjectively. The Tribunal preferred this statement of the test to that of Brennan J in the same case. His Honour agreed with the majority but stated the test in a slightly different way.
4. The Tribunal quoted passages from the Appeal Panel's decision in BDK v Department of Education and Communities [2015] NSWCATAP 129. One proposition highlighted by the Tribunal was the conclusion that proceedings may be vexatious even if they invoke an available legal right: BDK v Department of Education and Communities [2015] NSWCATAP 129 at [72].
5. These are all correct statements of the law but, in our opinion, the Tribunal did not appreciate that despite the categories not being closed, there are significant limits on the collateral purpose principle. Courts have determined those limits by balancing the competing policy considerations of access to justice and ensuring that its processes are not abused. "Open access to justice is an important civil right, to which courts have long given high regard": Attila Boros v Pages Property Investments Pty Ltd (13 November 2018) [2018] NSWCA 269, per Leeming JA; Simpson AJA at [16]. The Appeal Panel has emphasised that the Tribunal must be "conscious always of the gravity for an applicant or plaintiff of summary dismissal proceedings": BDK v Department of Education and Communities [2015] NSWCATAP 129 at [66].
6. In Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 227 ALR 425; (2006) 80 ALJR 1100 (14 June 2006) at [8] the majority of the High Court (Gleeson CJ, Gummow, Hayne and Crennan JJ) distinguished between the policy considerations affecting abuse of process in criminal proceedings as opposed to civil proceedings. Their Honours quoted the following passage from Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 520 where the majority identified two fundamental policy considerations affecting abuse of process in criminal proceedings: The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice.
7. The majority of the High Court in Batistatos held that: These considerations are not present with the same force in civil litigation where the moving party is not the State enforcing the criminal law.
8. Their Honours went on to make an important point about the scope of the power to dismiss for abuse of process in civil proceedings. After referring to a passage by Lord Blackburn where the cause of action was a civil proceeding in tort (Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210 at 220-221) the majority of the High Court held that dismissal for abuse of process was justified when: . . . the issues to be considered go beyond a question as to whether the claim or defence in question is bad in law; the demurrer was developed to deal with that situation.
9. The demurrer is an objection or challenge to a pleading filed by an opposing party. Rule 27.07 of the High Court Rules 2004, set out the circumstances where a party may "demur" to a pleading: 27.07.1 A party may demur to a pleading of the opposite party or to so much of that pleading as sets up a distinct cause of action, a distinct and severable claim for damages, or a distinct ground of defence, set-off, counterclaim or reply.
10. In Tribunal proceedings for an administrative review of a reviewable decision, there are no formal pleadings or process for objecting or "demurring" to those pleadings. The closest equivalent is the Tribunal's power to dismiss proceedings if they are "misconceived or lacking in substance": NCAT Act, s 55(1)(b). A "cause of action" or a "claim for damages" in a civil proceeding in the courts is akin to an application to the Tribunal seeking a particular remedy or other orders. The respondent may object or, in the language used by courts, "demur" to the claim on the basis, for example, that the Tribunal has no jurisdiction to grant that particular remedy or to make the orders sought.
11. In the first interlocutory decision, the Tribunal upheld the Minister's objection to most of Mr Zonnevylle's "grounds for review". The Tribunal concluded that it did not have jurisdiction to grant the remedies or make the orders Mr Zonnevylle was seeking. Those matters were, to use the language of the High Court in Batistatos, "bad in law." In our view, that was the appropriate response. If Mr Zonnevylle persisted in making the same claims and allegations, other responses, including a costs order, may have been appropriate. In the circumstances of this case, persisting in making claims which are "bad in law" is not the kind of conduct that comes within the meaning and scope of the principle of collateral purpose. A review of relevant case law confirms this conclusion.
12. The Minister drew the Appeal Panel's attention to a passage from the High Court's decision in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. The salient facts were that on the third day of a four-week trial of a proceeding that had been ongoing for two years, the plaintiff applied for an adjournment and leave to amend its statement of claim to add a substantial new claim. French CJ held at [32] that the Court (below) "had no basis for inferring that, absent the amendments, there would be further proceedings." French CJ then went on to predict that the institution "of fresh proceedings, raising claims which could have been raised against Aon much earlier in the existing proceedings, would face the potential barrier of an abuse of process objection and, possibly . . . estoppel . . "
13. At [33] French CJ went on to observe that abuse of process principles may be invoked to prevent attempts to litigate that which should have been litigated in earlier proceedings as well as attempts to re-litigate that which has already been determined. His Honour cited with approval the decision of Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 in which their Honours said, at 393, that: . . . proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.
14. These observations are not applicable to the present proceedings because Mr Zonnevylle has applied to the Tribunal for a review of determinations made by the Minister under the GIPA Act. The Tribunal has jurisdiction to determine that application. These are not fresh proceedings nor has the question of whether the Minister holds the information Mr Zonnevylle has requested been disposed of in earlier proceedings. Mr Zonnevylle is attempting to litigate other issues which the Tribunal has decided that it does not have jurisdiction to entertain.
15. In Varawa v Howard Smith Company Ltd (1911) 13 CLR 35, the plaintiff's purpose in commencing proceedings was to coerce the plaintiff into paying the defendant monies which the defendant knew it was not entitled to. In a passage cited with approval in Williams v Spautz, Isaacs J said: The term 'abuse of process' denotes that the process is employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate they are regarded as an abuse of process for this purpose." (Emphasis added.)
16. Mr Zonnevylle has made an application that is within the Tribunal's jurisdiction. He is not attempting to coerce the Minister in a way that is entirely outside the ambit of the legal claim.
17. When responding to the Appeal Panel's question as to whether the obtaining of some advantage was a necessary element of the collateral purpose principle, the Minister cited the following passage from Australian Beverage Distributors Pty Ltd v Redrock Co Pty Ltd [2007] NSWSC 966 at [42] where White J concluded that: In the present case, one of Mr James' purposes, and hence one of ABD's purposes, is to obtain a collateral advantage for which the proceedings are not designed, namely, to put pressure on Redrock by embroiling it in litigation thereby causing it to incur expense and to consume executive time. However, the proceedings can only be dismissed as an abuse of process on this ground if that purpose is the predominant purpose (Williams v Spautz at 529).
18. The Minister submitted that, if Mr Zonnevylle's purpose was to seek an "advantage," that advantage is broadly similar to the advantage "established" in Australian Beverage Distributors Pty Ltd v Redrock Co Pty Ltd. However, we note that in that case, White J held that this was not Mr James' main or predominant purpose and the pursuit of winding-up proceedings did not constitute an abuse of process. Furthermore, a finding that a party's purpose, even if not the predominant purpose, is to put pressure on the other party by embroiling it in litigation, is not "broadly similar" to the purpose the Tribunal found to be Mr Zonnevylle's predominant purpose. It was not part of the Minister's case that Mr Zonnevylle's purpose was to put pressure on the Minister.
19. The Appeal Panel upheld the Tribunal's decision to dismiss an application for abuse of process in BDK v Department of Education and Communities [2015] NSWCATAP 129. The appellant had engaged in correspondence with the Department of Education and Communities over a four month period seeking to have a Report amended or altered. The appellant's daughter, Mrs K, had also been in dispute with the Department over the contents of the Report between 2009 and 2013. Section 15 of the Privacy and Personal Information Protection Act gave the appellant an 'available legal right' to commence proceedings. Despite that right, the Department submitted at [24], that the "sole object of the requests previously made by Mrs K, either alone or jointly with the appellant and those now made by the appellant was 'to overturn' the conclusions of the Report, and thereby obtain a revised version of the Report .
20. The Appeal Panel upheld the Tribunal's decision that the proceedings had been brought for a collateral purpose and were therefore vexatious. At [76] the Appeal Panel held that that purpose was "to attempt to have the Report's primary conclusions overturned." The Tribunal acknowledged that the appellant had an available legal right to request an amendment of the Report if, for example, it was not accurate. Nevertheless, in this case, the Appeal Panel held that the Tribunal did not err in concluding that the proceedings were brought for a collateral purpose. That conclusion was based, in part, on the length of time since the Report was published and the fact that there was only one reference in the report to the appellant. Neither the appellant's daughter (Mrs K) nor her husband had joined in the application.
21. These facts are clearly distinguishable from the facts in the present case where Mr Zonnevylle is persisting in making claims which are bad in law.
22. Finally, we refer to a passage cited by the Minister in Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at [24]: The appellant's attempt to use the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected in any event. The Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them. Compare Re Resch and Dept of Veterans' Affairs (1986) 9 ALD 380, 386, 387 (Hall DP) and Hewitt v Grabicki [1986] USCA9 1380; 794 F. 2d 1373 (9th Circuit 1986), 1378.
23. This was not a case about the collateral purpose principle, so has no bearing on the correctness of the Tribunal's decision.
24. In conclusion, the principle of collateral purpose does not extend to the facts of this case. It follows that we should uphold the appeal and set aside the Tribunal's decision. In those circumstances, we do not need to decide whether to give leave to appeal on grounds other than a question of law.

Procedural fairness

1. We acknowledge that we did not put our ultimate conclusion to the parties as a possible ground of appeal at the hearing. We feel confident that Mr Zonnevylle would have adopted that view, as he adopted our preliminary view about the need for some 'advantage'. It was in his interests to do so.
2. Despite the fact that the Minister was not expressly on notice of the basis on which we have upheld the appeal, the legal representative's oral submissions did touch on the kinds of facts that might constitute evidence of collateral purpose. In all the circumstances, we are satisfied that he has been given "a reasonable opportunity to be heard or otherwise have (his) submissions considered in the proceedings": NCAT Act, s 38(5)(c).

Should Mr Zonnevylle pay the Minister's costs?

1. The Minister applied for its costs of the proceedings before the Appeal Panel. The general rule is that each party is to pay their own costs: NCAT Act, s 60(1). The Tribunal may award costs, but only if satisfied that there a "special circumstances" justifying an award of costs. Examples of circumstances, which may persuade the Tribunal to award costs, are set out in s 60(3).
2. The Minister submitted that the "special circumstances" in this case were: 1. "the relative strengths of the claims made by each of the parties . . .": NCAT Act s 60(3)(c); 2. "whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance": NCAT Act, s 60(3)(e); and 3. "whether a party has refused or failed to comply with the duty imposed by s 63(3)" to "co-operate with the Tribunal to give effect to the guiding principle", which is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings": NCAT Act, s 60(3)(f).
3. As we have upheld the appeal, the first two circumstances have not been established. While Mr Zonnevylle raised grounds of appeal which we did not uphold, as a self-represented litigant, the Appeal Panel must ensure that he is not disadvantaged: Hamod v State of New South Wales [2011] NSWCA 375 at [309] - [316]. We have concluded, on grounds not advanced by Mr Zonnevylle, that the Tribunal's decision should be set aside. While it is arguable that Mr Zonnevylle has not co-operated fully with the Tribunal's guiding principle, the appeal had merit, albeit on a basis that Mr Zonnevylle did not articulate. For those reasons, the Minister's application for costs is refused.

Was the Tribunal Member biased?

1. Mr Zonnevylle alleged that there was an apprehension of bias because the Tribunal Member is a former work colleague of the Minister's solicitor, having been employed by the Crown Solicitor's Office. We accept, for the purposes of determining this ground of appeal, that the Tribunal Member was employed by the Crown Solicitor's Office when the employee who had carriage of this matter was also an employee.
2. The High Court set out the test for determining apprehended bias in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 at [8]; [2000] HCA 63; 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.
3. Mr Zonnevylle has not addressed the second part of the test. He has not articulated any logical connection between the Minister's solicitor and the Tribunal Member having been employed by the same agency and "the feared deviation" from the course of deciding the case on its merits. While we have decided to set aside the Tribunal's decision, there is no basis for Mr Zonnevylle's assertion of apprehended bias.

Should the 41 questions of law identified by the Respondent be referred to the Supreme Court?

1. Mr Zonnevylle agreed that if we were not minded to refer any questions of law to the Supreme Court, he did not press that application.

Should Mr Zidar be able to sit at the bar table with Mr Zonnevylle during the proceedings?

1. The Minister objected to Mr Zidar sitting at the bar table with Mr Zonnevylle and acting as a "McKenzie friend". We allowed Mr Zidar to sit at the bar table with Mr Zonnevylle as an adviser, on condition that he not take any active part in the proceedings.

What is the material before the Appeal Panel?

1. At the hearing, there was a brief discussion of the relevant material before the Appeal Panel. We raised the issue of whether we should take into account a bundle of documents filed by Mr Zonnevylle on 1 October 2019. The bundle was wrapped and sealed in clear plastic. The front page was visible through the plastic. The front page stated IMPORTANT Legally privileged documents for the Tribunal's reference only Ref.AP 19 30680 Zonnevylle v Stokes, Minister These original documents are to be returned to the appellant Peter Zonnevylle Do not dispose of. Not to be provided to any other party without written consent. Return Satchel enclosed Aust.Post No (number deleted) By opening this submission you are entering into a legally binding contract subject to the above conditions." (Words in brackets added)
2. Mr Zonnevylle's contact details were included at the bottom of the page.
3. Under s 40 of the NCAT Act, "An application or appeal to the Tribunal is to be made in the time and manner prescribed by enabling legislation or the procedural rules." In addition, under s 38, "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." NCAT Procedural Direction 1 contains the following relevant statements: When parties deliver or send documents to the Tribunal, this is called lodging the documents with the Tribunal. . . . Nothing in this Procedural Direction prevents the Tribunal from giving any directions concerning the lodgment or service of documents or the giving of notice of hearings that the Tribunal considers appropriate in any particular proceedings before the Tribunal.
4. On 4 September 2019, the Appeal Panel dismissed an application by Mr Zonnevylle to extend time to file and serve documents.
5. For the following reasons, we have not taken into account the bundle of documents wrapped in plastic and purportedly lodged on 1 October 2019. First, the material has not been lodged and served in accordance with the Tribunal's directions. Those directions were as follows: The appellant is to lodge with the Tribunal and provide to the Respondent by 30 august 2019: (a) all the evidence provided to the Tribunal below on which it is intended to rely; (b) the appellant's written submissions in support of the appeal; (c) the sound recording of the hearing at first instance, if what happened at the hearing is being relied on and a typed copy of the relevant parts.
6. There was no direction to provide fresh or new evidence. In short written reasons dated 4 September 2019, the Appeal Panel noted that: The nature of an appeal is not, usually, a new hearing. As such, new evidence which the appellant says he is seeking to adduce would not ordinarily be admissible."
7. Second, the material was not served on the Minister as required by the directions.
8. Thirdly, by opening the documents, Mr Zonnevylle declared that the Tribunal would be entering into a legally binding contract not to provide the documents to any other party without consent and to return them to the appellant. By purporting to lodge documents in this way, Mr Zonnevylle misunderstands the role of the Tribunal and its practice and procedure. There is no contractual relationship between the Mr Zonnevylle and the Tribunal when documents are lodged and Mr Zonnevylle cannot dictate the terms on which the documents are lodged.
9. Finally, because the nature of the documents is unknown, except that they are said to be legally privileged, their relevance to the appeal is also unknown.

Should Mr Zonnevylle be given an extension of time to lodge written submissions in reply?

1. At the hearing on 4 October 2019, the Appeal Panel directed the Minister to file and serve further written submissions on particular issues by 18 October 2019. There was no direction to file further evidence. Mr Zonnevylle requested more than the two weeks given to the Minister, to file and serve his submissions in reply. We directed that Mr Zonnevylle file and serve his submissions in reply within a further three weeks, that is by 8 November 2019. The Minister filed his submissions by the due date. On 28 October 2019, Mr Zonnevylle applied for a further four weeks to file his submissions.
2. The reasons Mr Zonnevylle gave included that "it is clearly oppressive for the Tribunal to allocate virtually the same time to the applicant for responses given the vast difference in capabilities/resources between the two parties." We decided to refuse Mr Zonnevylle's application for an extension of time to file written submissions. Our reason for doing so is that Mr Zonnevylle has not given any substantive reason relating to his personal circumstances or otherwise, for being unable to comply with the timetable. His reasoning related only to the perceived unfairness of giving him a similar period to the Minister, when the Minister's resources are superior to his. That is not a legitimate basis for granting an extension of time. Mr Zonnevylle must provide a persuasive reason as to why he cannot meet the timetable.
3. On the date the submissions were due, 8 November 2019, Mr Zonnevylle applied again for an extension of time. On this occasion he cited "work commitments and other matters" as the reasons for not lodging the submissions on time. He also said that he had repeatedly requested further relevant information from the Minister, which he had not received and that was further delaying the completion of his submissions.
4. No issue on appeal requires the provision of further information by the Minister. Furthermore, we are not satisfied that the general reasons of "work commitments and other matters" justifies an extension of time.

Orders 1. Leave is granted for the appellant to appeal from an interlocutory decision. 2. The appeal is upheld. 3. The Tribunal's order that the proceedings are dismissed pursuant to s 55(1)(b) of the Civil and administrative Tribunal Act 2013 (NSW) is set aside. 4. The respondent's application for costs is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 November 2019