Zonnevylle v Secretary, Department of Communities and Justice (No 2)

"(1) The name of the respondent is amended to Secretary, Department of Communities and Justice.

(2) The application by the applicant to appear by telephone is refused.

(3) The application to grant an extension of time to lodge the appeal to 2 January 2025 is granted.

(4) The application by the applicant to cross-examine Michelle Chua Hua is refused as Ms Hua was not a witness in the Tribunal proceedings and is not a witness in the appeal.

(5) The respondent is to provide to the Tribunal and the applicant any evidence and submissions relating to any authorisation under s 9(3) of the Government Information (Public Access) Act 2009 of the person who made the decision of 29 May 2020 by 16 May 2025.

(6) The applicant is to provide any material in response to the evidence and submissions filed by the respondent in accordance with order 5 by 13 June 2025.

(7) The hearing is adjourned to 10:15 am on 3 July 2025 in Sydney for half a day to allow the applicant to appear in person."

1. On 30 May 2025, the Tribunal constituted by Principal Member K Ransome and Principal Member K Robinson provided their reasons for making the 9 May 2025 orders (Zonnevylle v Secretary, Department of Communities and Justice [2025] NSWCATAP 123) (the 30 May 2025 reasons) including:

"Order 3

12. Mr Zonnevylle's appeal was lodged slightly out of time. There was no objection by the respondent to an extension of time and we made an order extending the time for lodgement.

Order 4

13. This is an appeal from the decision that was made by the Tribunal. An appeal to the Appeal Panel does not provide a losing party in the Tribunal with the opportunity to run their case again: Bowers v Karai [2021] NSWCATAP 316 at [11]; Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. As stated in the order Ms Hua, the solicitor representing the respondent, was not a witness in the Tribunal proceedings and is not a witness in the appeal. Ms Hua has provided no evidence upon which she could be cross-examined and we were therefore not satisfied that cross-examination was appropriate or necessary."

1. On 6 June 2025, Mr Zonnevylle lodged a completed Application for summons to be issued form seeking the issue of the attached summons requiring the named officer of the Department of Communities and Justice to attend and give evidence at the hearing of the appeal (the 6 June 2025 Application). Mr Zonnevylle asserted there is a legitimate forensic purpose for the summons and provided extensive particularised grounds which it is unnecessary to set out or summarise.
2. On 10 June 2025, Registrar L Clegg made the following decision dismissing the 6 June 2025 Application with reasons (the 10 June 2025 decision):

"Your application for summons to be issued to [name omitted] to appear and give evidence and to produce documents in the internal appeal is refused.

The appeal is not a fresh hearing involving the questioning of witnesses or the production of new evidence other than in limited circumstances where leave has been given to rely on new documents or have witnesses attend and give evidence."

1. On 18 June 2025 at 6.59 PM, Mr Zonnevylle sent an email to the Appeal Registry attaching a general application, which the Registry treated as having been lodged on 19 June 2025 (the 19 June 2025 application), and in which:

"1. A review of GSE Act employed Cleggs Jun. 10,2025 decision to refuse the SRNLPA' s summons application

2. Leave granting the summons request

3. A review of GSE Act employed Cleggs Jun.10,2025 statement that:

The appeal is not a fresh hearing involving the questioning of witnesses or the production of new evidence other than in limited circumstances where leave has been given to rely on new documents or have witnesses attend and give evidence.

and it's legality in

a. refusing the SRNLPA the procedural right to have that decision reviewed by the tribunal

b. making an alleged false statement in the context of the SRNLPA appeal ground submissions

Decision to refuse to direct the NCAT registry to send all:

Notices / Correspondence / etc by email in order to minimize unwanted & unnecessarys in the delivery

5. Decision to refuse to direct the NCAT registry to send all:

Notices / Correspondence I etc

by email in order to avoid causing the SRNLPA any detriments in the exercising of any procedural or legislative rights

6. Decision to refuse to direct the NCAT registry to send all:

by email in order to avoid causing the SRNLPA an UNFAIR DISADVANTAGE IN PROCEEDINGS

7. Decision that refusing to direct the NCAT registry to send all:

is consistent with:

a. the NCAT registrys CAT Act Sect.3 obligations AND

b. the NCAT registrys obligations as "officers of the court" AND

c. the tribunals CAT Act Sect.3 obligations AND

d. the NCAT registrys DCJ Code of Ethical Conduct obligations AND

e. the tribunals Member Conduct obligations

8. Decision to publish FALSE FACTs / a false narrative in Zonnevylle v DCJ [2025] NSWCATAP 123

Order 3

12. Mr Zonnevylle's appeal was lodged slightly out of time.

9. Decision to publish an allegedly deliberately false narrative which ignores the context in which the summons was made

Order 4

13. This is an appeal from the decision that was made by the Tribunal. An appeal to the Appeal Panel does not provide a losing party in the Tribunal with the opportunity to run their case again: Bowers v Karai [2021] NSWCATAP 316 at [11]; Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. As stated in the order Ms Hua, the solicitor representing the respondent, was not a witness in the Tribunal proceedings and is not a witness in the appeal. Ms Hua has provided no evidence upon which she could be cross-examined and we were therefore not satisfied that cross-examination was appropriate or necessary."

(2) he sets out grounds for the 19 June 2025 application.

1. On 26 June 2025, the Register sent a letter to Mr Zonnevylle by email (the 26 June 2025 NCAT letter) which is in the following terms:

"I refer to the General application form lodged on 19 June 2025 in which you relevantly seek a review of the Registrar made on 10 June 2025 to refuse your application for the issue of a Summons (the 19 June 2025 Application).

I advise that the Tribunal has no power to review the decision of a registrar to refuse the issue of a summons.

Your attention is drawn to paragraph 11 of NCAT Procedural Direction 2 Summonses issued on 5 March 2025 which can be found on the NCAT website.

Please advise whether you wish to withdraw, or have the Tribunal decide, the 19 June 2025 Application."

1. On 26 June 2025 at 6.59 PM, Mr Zonnevylle sent an email to the Appeal Registry (the 26 June 2025 at 6.59 PM Zonnevylle email) in which he relevantly stated:

"I refer to your correspondence of today

...

I require the tribunal decide the 19 June 2025 application which was received by the tribunal on 18 June,2025"

1. Section 32 deals with the Internal appeal jurisdiction of the Tribunal and relevantly provides:

(1) The Tribunal has internal appeal jurisdiction over -

...

(b) any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable for the purposes of this section.

...

(3) However, the internal appeal jurisdiction of the Tribunal does not extend to -

(a) any decision of an Appeal Panel, or

...

1. Section 48 deals with the issue of a summons and relevantly provides:

(1) A summons for the purposes of this Act may be issued by a registrar -

(a) on the application of a party to the proceedings, or

(b) at the direction of the Tribunal.

1. The President may give procedural directions) relating to the practice and procedures to be followed in, and to the actual conduct of, proceedings in the Tribunal. Each member, and the parties to proceedings and their representatives, must comply with any applicable procedural directions: s 26(1) and (4) of the NCAT Act.
2. Paragraph 11 of NCAT Procedural Direction 2 Summonses issued on 5 March 2025 provides:

"11. If a registrar decides not to issue the summons, the party applying for the summons can reapply for the issue of the summons and request that a Tribunal Member decide whether to direct a registrar to issue the summons (under s 48(1)(b) of the Act)."

1. The Registrar in making the 10 June 2025 decision exercised the power under s 48(1)(a) of the NCAT Act which on its proper construction includes the power to refuse to issue a summons.
2. Rule 41(4) of Civil and Administrative Tribunal Rules 2014 (NSW) does not declare the decision made by a registrar under s 48(1)(a) of the NCAT Act to be internally appealable for the purposes of s 32 of the NCAT Act.
3. There is no power under s 32(1)(b) of the NCAT Act for the Appeal Panel to exercise the internal appeal jurisdiction of the Tribunal to review the 10 June 2025 decision. It follows that the 19 June 2025 application so far as orders 1 and 3 should be dismissed.

1. I have treated the 19 June 2025 application so far as order 2 as the reapplication by Mr Zonnevylle for the issue of the summons attached to the 6 June 2025 Application pursuant to s 48(1)(b) of the NCAT Act as explained in cl 11 of NCAT Procedural Direction 2 Summonses.
2. Internal appeals against an internally appealable decision may be made in the case of an interlocutory decision with leave of the Appeal Panel, and in the case of any other kind of decision (including an ancillary decision) as of right on a question of law, or with the leave of the Appeal Panel, on any other grounds. The Appeal Panel may decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances: s 80(1), (2) and (3) of the NCAT Act.
3. A new hearing under s 80(3)(a) of the NCAT Act is where the Appeal Panel hears the matter afresh. However, an appeal is conducted on such a basis only where, in its discretion, the Appeal Panel decides to conduct it as a "new hearing" because it is satisfied that "the grounds of appeal warrant a new hearing". Otherwise, internal appeals to the Appeal Panel are not determined by way of a new hearing but by way of rehearing on the materials before the Tribunal below in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error, and has power to receive additional evidence: Yuen v Thom [2016] NSWCATAP 243 at [15]- [17]; cited in ZOF v NSW Trustee and Guardian [2020] NSWCATAP 167 (ZOF) at [102]. In ZOF at [103]-[107], the Appeal Panel decided to exercise the discretion to deal with the appeal by way of a new hearing permitting the new evidence filed in the appeal to be considered after first having concluded that the Tribunal below made a material error, and adjourned the appeal to a date to be fixed by the Registrar.
4. It is not clear whether Mr Zonnevylle is seeking for the Appeal Panel to conduct the appeal as a new hearing or a rehearing. If Mr Zonnevylle is seeking for the Appeal Panel to conduct the appeal as a new hearing under s 80(3)(a) of the NCAT Act, then the 19 June 2025 application so far as order 2 is premature. In view of the approach in ZOF at [103]-[107], it will first be necessary for Mr Zonnevylle to establish the Senior Member made a material error, and for the Appeal Panel in the exercise of its discretion to decide to conduct a new hearing and to grant any application by Mr Zonnevylle for a summons to the named officer to give evidence and produce documents to be issued. If Mr Zonnevylle is seeking for the Appeal Panel to conduct the appeal as a rehearing, then the documents sought to be produced and evidence sought to be adduced from the named officer can have no relevance to the determination of the appeal. It follows that the 19 June 2025 application so far as order 2 should be dismissed.

1. I have treated the 19 June 2025 application so far as orders 4 to 7 as a request for reasons for the decision referred to in each of those paragraphs.
2. Mr Zonnevylle has not identified the decision of the Tribunal to which he is referring in the 19 June 2025 application so far as orders 4 to 7. Even if Mr Zonnevylle had identified a decision, I am satisfied that there is no requirement to provide a written statement of reasons for the decision under s 62 of the NCAT Act as it is a minor procedural decision that does not have a final or determinative impact on the rights of Mr Zonnevylle within s 62(2A)(f). It follows that the 19 June 2025 application so far as orders 4 to 7 should be dismissed.

1. It is unclear what orders Mr Zonnevylle is seeking in the 19 June 2025 application so far as orders 8 and 9. If Mr Zonnevylle is seeking reasons for orders 3 and 4 the 9 May 2025 orders, then reasons have been provided in the 30 May 2025 reasons at [12] and [13]. If Mr Zonnevylle is seeking to challenge the findings in the 30 May 2025 reasons at [12] and [13], then the internal appeal jurisdiction of the Tribunal does not extend to these orders and reasons pursuant to s 32(3)(a) of the NCAT Act. It follows that the 18 June 2025 application so far as orders 8 and 9 should be dismissed.

(1) The general application of the appellant lodged on 19 June 2025 is dismissed.

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.