Zonnevylle v Minister for Education & Early Childhood Learning

Reply to Appeal

1. On 16 June 2021, the Respondent filed a Reply to Appeal. It may be summarised as follows: 1. In respect of the direction made on 14 May 2021 that the parties prepare the submissions identified above, the Respondent submits that direction is not a decision that may be the subject of an appeal. If, contrary to that submission, the Appeal Panel determines that the direction is a decision, it is an interlocutory decision requiring leave. In any event, the Respondent made a submission that the orders made in the other proceedings (referred to above) do not have any effect upon the conduct of these proceedings (ie. the proceedings at first instance). The Tribunal accepted that submission and therefore the issue raised by the direction of 14 May 2021 no longer has any operative effect. Accordingly, leave to appeal should be refused. 2. The order made on 19 May 2021 (adjourning the hearing until 28 May 2021) had no operative effect as it was superseded by an order of 25 May 2021 vacating the hearing on 28 May 2021 and adjourning the proceedings to 12 July 2021. 3. In respect of the decision of the Senior Member to refuse to recuse herself or provide oral reasons, the Respondent submitted that there was no application properly made by the Appellant for the Member to recuse herself. There was no relevant decision not to recuse herself in the absence of an application. If there had been a relevant decision, it would have been an interlocutory decision requiring leave. 4. In respect of the complaint that the Senior Member failed to remove the Crown Solicitor from the proceedings, the Respondent submitted that no application of that kind was made and therefore there was no relevant decision. If there had been such a decision, it would have been an interlocutory decision requiring leave. 5. In respect of the complaint that the Senior Member adjourned the proceedings, the Respondent submitted that the adjournment of the proceedings on 19 May 2021 is no longer an operative decision as it has been superseded by the order of 25 May 2021. Had there been such a decision, it would have been an interlocutory decision requiring leave. 6. In respect of the complaint that the Senior Member refused to answer a question as to whether she was a judicial officer, the Respondent submitted that the Senior Member did respond and that there was no relevant internally appellable decision. 7. In respect of the ground that the Tribunal refused the Appellant permission to record the hearing or give reasons for the refusal, the Respondent submitted that the decision to refuse to grant the Appellant permission is an interlocutory decision requiring leave. No error of law has been identified and leave should be refused. 8. In respect of the Appellant's assertions that he suffered procedural unfairness and that the adjournment was to a date that was inconvenient, the Respondent submitted that there was no relevant decision made on 19 May other than those already addressed above. 9. In respect of those decisions requiring leave, the Respondent relied upon the principles set out in Collins v Urban [2014] NSWCATAP 17. In particular, the Respondent submitted that there has been no injustice arising from the conduct of the proceedings and that the Appellant has not identified any matter that would lead the Appeal Panel to doubt the correctness of the actions of the Tribunal in managing the hearing. The Respondent submitted that the Appellant's grounds are frivolous and vexatious and that the appeal may be taken to be an abuse of the Tribunal's process. Leave should be refused consistent with the guiding principle described in s 36 of the Civil & Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

Reasons at First Instance

1. On 9 June 2021, the Tribunal provided a written statement of reasons in respect of the directions made on 14 May. In respect of the direction calling for submissions, the Tribunal stated that s 62 of the NCAT Act does not apply to that direction as it was not a decision which was either final, ancillary or interlocutory.
2. On 9 June 2021, the Tribunal also provided a written statement of reasons for the directions made on 19 May 2021. Those reasons refer to the conduct of the Appellant talking over the Senior Member, not allowing the Senior Member to speak uninterrupted and not allowing the Senior Member to have the opportunity to hear or consider the matters raised. Accordingly, the matter was adjourned for approximately fifteen minutes. On the resumption the Appellant did not reappear and the proceedings were adjourned to 28 May 2021. A further written statement of reasons was published on 25 June 2021. As stated earlier it concerned the recusal application and the application to record the hearing of 19 May 2021.

Appellant's Written Submissions

1. The Appellant's written submissions constitute a wide-ranging attack on the Senior Member at first instance alleging bias, breach of statutory obligations and other conduct issues. Allegations of bias are also made against other members and those allegations do not appear to relate to matters concerning this appeal. Having carefully considered the written material including the transcript (as to which we will make reference later in these reasons) we see no need to record the Appellant's assertions and submissions any further. That is because they are not only irrelevant and wide-ranging (straying far from the decisions which are the subject of this appeal) but also unsupported by evidence.

Respondent's Written Submissions

1. The Respondent's submissions may be summarised as follows: 1. The Respondent's submissions repeat the substance of the matters raised in the Reply (summarised above). 2. In respect of the directions made on 14 May 2021, the Respondent submitted that in her written reasons of 9 June 2021, the Senior Member declined to provide written reasons as she did not consider the directions to be a decision to which s 62 of the NCAT Act applied. Further, the Respondent submitted that even if the direction of 14 May 2021 could be characterised as a decision, it is no longer an operative decision that remains in force as its operation has been superseded by subsequent events. 3. A copy of the transcript of the hearing of 19 May 2021 was provided to us. The Respondent relied upon it to demonstrate that at the hearing the Respondent had submitted that the order made in the proceedings, referred to in the direction had no application to the present proceedings because the present proceedings were constituted by an application made prior to the other order coming into effect. The transcript reveals that the Senior Member accepted that submission and considered the question to be resolved (transcript page 10). Accordingly, leave to appeal should be refused. 4. In respect of the order made on 19 May 2021 adjourning the proceedings, the Respondent referred to the Tribunal's written reasons of 9 June 2021 which set out the reason for the adjournment of the proceedings, namely the Appellant's conduct. There was a short adjournment of approximately 15 minutes and, on the resumption, the Appellant did not reappear. Accordingly, the Tribunal set the matter down for hearing on the next available date. 5. The Respondent submitted that it was open to the Tribunal to adjourn the hearing for a short period on 19 May 2021 and there was no error in so doing. Insofar as the Appellant challenges the relisting of the matter for a hearing "in person", the Respondent submitted that the Tribunal's order of 19 May 2021 is no longer operative having been superseded by the subsequent order of 25 May 2021. 6. In respect of the decision of the Senior Member to refuse to recuse herself the Respondent submitted that in her written reasons given on 25 June 2021 the Senior Member states that the Appellant did not provide any basis for the recusal application. The Respondent submitted that no application was properly made for the Senior Member to recuse herself in the sense that no substantive application was made with coherent reasons being put forward by the Appellant. In any event, the Senior Member's decision has been superseded by subsequent events. By correspondence from the Tribunal dated 15 September 2021, the Tribunal confirmed that the Tribunal has been reconstituted. Accordingly, the decision is moot and leave to appeal should not be granted. 7. With respect to the Appellant's challenge to the decision by the Senior Member not to remove the Crown Solicitor's Office from the proceedings, the Respondent submitted that no application was properly made by the Appellant and, accordingly, there was no relevant decision to refuse the application. In any event, the Respondent is entitled to legal representation (see Sch 3 cl 9 the NCAT Act), and there is no error identified on the part of the Tribunal allowing the continued representation of the Respondent by the Crown Solicitor. 8. In respect of the Tribunal's decision to refuse the Appellant permission to record the hearing, the Respondent relied upon the written reasons given on 25 June 2021 in which the Tribunal stated that the Appellant did not provide any basis for the application to record the proceedings independently. To the extent that the Appellant contends that there was a failure by the Senior Member to provide oral reasons, the Respondent submitted that the refusal to provide oral reasons as demanded by the Appellant is not a decision capable of internal appeal. In any event, the decision is an interlocutory decision requiring leave and no error has been identified.
2. In respect of other allegations made by the Appellant in the Notice of Appeal (identified in paragraphs r,s,t,u,v,w and x) they are not matters which constitute internally appellable decisions of the Tribunal. In respect of the allegations concerning the failure to provide a written statement of reasons, the Respondent submitted that the 28 day period set out in s 62 of the NCAT Act has been extended during the course of the COVID-19 pandemic to 90 days: see Sch 1, cl 27 of the NCAT Act.
3. The Respondent submitted that many of the Appellant's submissions are directed to pursuing grievances against the Senior Member at first instance and the Respondent submitted that those matters are not matters upon which the Appeal Panel has power to adjudicate.
4. There was also a submission by the Appellant that he wished to cross-examine the solicitor representing the Crown Solicitor's Office and the Respondent submitted that there was no basis for that application.

Appellant's Submissions in Reply and Further Submissions

1. The Appellant has filed a response to the Respondent's submissions (received by the Tribunal on 19 November 2021). In our view there is no purpose served in recording those submissions in detail. Some submissions are repetitive of submissions already recorded earlier in this decision. Other submissions concern contentions which appear to have no basis. For example, the Appellant contends that the solicitor representing the Crown Solicitor's Office has not been given authority.
2. The Appellant also sent an email to the Tribunal, received on 18 November 2021, in which the Appellant requested the Members of the Appeal Panel to "contact the Registry and inform themselves with the following material". Then the email listed correspondence between the Appellant and the Tribunal's registry. There was also reference to a request to have the President and Deputy Presidents of NCAT and a Principal Member appear as expert witnesses concerning member conduct.

The Appeal Hearing

1. At the beginning of the hearing of the appeal, the Appellant made an application to make his own recording of the hearing of the appeal. After some difficulty occasioned by the Appellant's desire to control the proceedings by regular interruptions, objections and a disinterest in listening to the presiding member, the Appellant's basis for the application was heard and then refused. Reasons were given orally.
2. The Appellant also made an application for the Appeal Panel to draft a series of questions of law for submission to the Supreme Court concerning member conduct. The Tribunal gave brief oral reasons for rejecting that application.
3. The Appellant also made an application for the Crown Solicitor's Office to be removed from the proceedings as the representative of the Respondent. We refused that application and gave brief oral reasons.
4. Throughout the hearing, there were several applications made by the Appellant for the Members of the Appeal Panel to recuse themselves. Those applications were refused and oral reasons were given.
5. After hearing from the Appellant, the solicitor for the Respondent and the Appellant in reply, we adjourned the hearing and reserved our decision.

Consideration

1. It is convenient to deal with the decision of 14 May 2021 and subsequently to deal with the hearing on 19 May 2021.
2. In respect of the hearing on 14 May 2021, the substantive direction was to the effect that the parties should file the submissions identified in the direction. It is clear from the transcript of 19 May 2021 (page 10) that the Respondent made the submission that the orders made in the other proceedings (ie. the proceedings dated 3 April 2020) requiring the Appellant to obtain approval of the Tribunal before making an access application were not applicable to this application because this application was made before the order was made in the other proceedings. In other words, this application was not restrained by the order in the other proceedings. The Senior Member replied "Okay. Thank you". There is no evidence to suggest that the Senior Member took a view contrary to the submission made by the Respondent. Therefore, in our view, the Respondent is correct in its submission that the direction for the parties to supply submissions is moot as it has no continuing effect or operation with respect to the Appellant's application for administrative review. Indeed, it was resolved favourably to the Appellant. In our view generally an Appeal Panel should not entertain an appeal if it concerns questions which have no foreseeable consequences for the parties ( see New South Wales Department of Premier and Cabinet v Cianfrano [2009]NSWADTAP15 where this view was stated) .This view was recently stated again in Secretary of Communities and Justice v Feaney [2021]NSWCATAP139 where the Appeal Panel stated that the Appeal Panel should not entertain appeals on legal questions that have no practical consequences for the parties[26].
3. The Appellant contends that the Senior Member should not have made the direction on the basis that she would have been aware that the restraint occasioned by the order made on 3 April 2020 could have no effect on this application for administrative review.
4. Because the direction made on 14 May 2021 for the parties to make a submission is of no continuing operative effect, it is unnecessary for us to consider the Respondent's submission to the effect that the direction is in fact not an appellable decision. Nevertheless, we are inclined to the view that a direction for the parties to make a submission is not a decision within the meaning of the definition of "decision" contained in s 5 the NCAT Act. That section defines a decision in inclusive terms and the direction does not, in our view, respond to any of the kinds of decisions described in subsections (1)(a) to (f). Subsection (g) includes the definition of a decision as "doing or refusing to do any other act or thing". In our view a direction to make a submission is not a decision requiring a party to do an act or thing. Rather it is a statement that a party has an opportunity to be heard, being a preliminary step before a decision is made.
5. We note that the word "direction" is contained within s5(1)(b). By that subsection a decision includes "giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission". We remain of the view that that subsection does not include a decision requiring a party to make a submission but is intended to include a direction of a more substantive nature. That is apparent from the other kinds of decisions referred to in the subsection, namely giving, suspending, revoking or refusing to give a certificate, approval, consent or permission
6. We now turn to the decision made on 19 May 2021. The decision on that occasion was to adjourn the proceedings. The definition of "interlocutory decision" is contained in s 4 of the NCAT Act. That definition includes a decision concerning an adjournment. However, that decision is also moot in that the adjournment has occurred and the proceedings were listed for directions subsequently in July. Directions made at the subsequent hearing are not the subject of this appeal.
7. To the extent that the Appellant complains that the order adjourning the hearing referred to a further "in person hearing" on 28 May we take that to mean that the Tribunal, consistent with its current practice during the pandemic, proposed a telephone hearing (as was the case on 19 May) rather than an order dispensing with the hearing and deciding what further directions ought be made "on the papers". In our view there is no error of law or an injustice arising by reason of the adjournment proposing the "in person" hearing.
8. Insofar as the Appellant complains about the fact that the Tribunal adjourned the proceedings, the position of the Tribunal is made clear by its written statement of reasons published on 9 June 2021. In that statement of reasons the Tribunal stated that the Appellant's conduct was such as to require the proceedings to be adjourned. The written statement of reasons refers to the Appellant talking over the Senior Member, not allowing the Member to announce the matter or to speak uninterrupted, talking loudly over the Senior Member and making various applications, but not allowing the Senior Member an opportunity to hear or consider the matters raised. We have been provided with a transcript of the hearing and a review of the transcript reveals, in our view, that the Senior Member's description of the Appellant's conduct was accurate. An appeal from an interlocutory decision requires leave (see s 80(2)(a) of the NCAT Act). The requirements and principles for the grant of leave have been referred to in the decision of Collins v Urban. It is not necessary to go into the detailed principles set out in that decision. All that needs to be said is that the decision to adjourn the proceedings did not result in any injustice or any matter of principle arising. In short, there is no basis for the Appellant to obtain leave to appeal.
9. The Appellant also appeals the decision of the Senior Member to refuse to recuse herself and her refusal to provide oral reasons for so doing. The Senior Member has provided a written statement of reasons in which she records that the Appellant provided no basis for the recusal application nor allowed her to question the Appellant as to the grounds upon which the application was based. The transcript of 19 May 2021 is consistent with that statement of reasons. In any event, the decision is moot in that all that occurred on 19 May 2021 was a decision to adjourn the directions hearing and since then the Tribunal has been reconstituted with the consequence that the Senior Member is no longer constituted to hear the Appellant's application.
10. The Appellant contends that the Senior Member failed to remove the Crown Solicitor from the proceedings. The transcript reveals that the Appellant requested the Tribunal to order the removal of the Crown Solicitor (page 5 line 10) and that the Senior Member denied that request at the same time as threatening to remove the Appellant from the proceedings if he continued to talk over the Senior Member. Later (line 40), the Senior Member states that when it is the Appellant's turn to talk "you can talk". Then the proceedings are adjourned following the Appellant's interruption (line 41). It is apparent that the application to have the Crown Solicitor removed was not adequately dealt with on 19 May because of the overbearing conduct of the Appellant. However, nothing turns on the fact that that application was not properly made and therefore not dealt with because there was the opportunity for the application to be renewed when the proceedings next came before the Tribunal. In our view, no question of law arises and to the extent that the Appellant needs leave to appeal, leave should not be granted because no injustice occurred on 19 May 2021.
11. The Appellant also appeals the alleged refusal of the Senior Member to answer a question of law as to whether she was or is a judicial officer. It is apparent from the transcript that that question was a precursor to the Appellant's application for permission to record the proceedings. The transcript reveals that the Appellant made an application under the Court Security Act 2005 (NSW) for permission to record the proceedings. Permission was denied and on 25 June 2021 the Tribunal provided a written statement of reasons for that refusal. The Tribunal stated that the Appellant did not provide any basis for the request to record the proceedings "independently" ( which we take to mean in addition to the recording arranged by the Tribunal) . The reasons state that the Tribunal found that the Appellant did not allow the Tribunal to question him as to the ground upon which those applications ( ie the recusal application and the recording application) were made.
12. Section 9 of the Court Security Act contains a prohibition upon a person from using a recording device to record sound or images in court proceedings (which includes Tribunal proceedings - see s 4). Section 9(2) provides that the prohibition does not apply with respect to the use of a recording device that has been "expressly permitted" by a judicial officer (which includes a Tribunal Member - see s 4). Thus, a Tribunal Member has a discretion as to whether to permit the recording of the Tribunal proceedings and in this case exercised the discretion against providing permission. As stated, the written statement of reasons record that the Appellant provided no basis for the request to record the proceedings. In our view that decision does not reveal any error of law, nor any ground upon which leave to appeal ought be granted. In particular, there is no question of principle, nor evidence of an injustice arising.
13. To the extent that the Appellant's Notice of Appeal and submissions refers to other matters they are, in our view, to be categorised as general complaints concerning the conduct of the Senior Member (and other Tribunal members) and are not relevant to our consideration of the particular decisions made by the Tribunal on 14 and 19 May 2021.
14. It follows from the conclusions we have reached that the appeal must be dismissed.
15. However, it would be remiss of us to omit to make some reference to the conduct of the Appellant. It is apparent from a reading of the transcript of 19 May 2021 that the Appellant conducted himself in a manner which was inconsistent with his obligations under s 36 of the NCAT Act. The Member's difficulty in managing the proceedings in a fashion that was fair to both parties was entirely occasioned by the disruptive conduct of the Appellant. The same conduct was experienced by us during the hearing of the appeal. Section 36 of the NCAT Act requires the Tribunal to facilitate the just, quick and cheap resolution of the real issues in the proceedings (called the "guiding principle") and s 36(3) provides that a party is under a duty to cooperate with the Tribunal to give effect to the guiding principle. This appeal is unnecessary in that it has wasted the resources of the Respondent and of the Tribunal in adjudicating upon the Appellant's grievances in circumstances where the orders and/or directions made on 14 and 19 May have had no substantive consequence upon the preparation and conduct of the Appellant's application for administrative review.
16. We make the following orders: 1. Leave to appeal refused. 2. Appeal dismissed. 3. If the Respondent seeks an order for costs of the appeal, submissions from the Respondent must be filed and served within seven days from the date hereof. 4. Within seven days thereafter, the Appellant must file and serve submissions in opposition to the Respondent's application for costs of the appeal. 5. The parties are to note that the submissions should address the question of whether the Tribunal may determine costs on the papers and dispense with a hearing on costs.

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: 10 December 2021