Zonnevylle v Secretary, Department of Education

NCAT Administrative and Equal Opportunity|2020-10-15

Reasons for Decision

On 8 November 2020, the applicant, Peter Zonnevylle, made a request for a written statement of reasons for the orders I made, in chambers, on 15 October 2020: Civil and Administrative Tribunal Act 2013 (NSW) ('NCAT Act'), s 62(2).
Set out below is my written statement of reasons.

15 October 2020 orders

On 15 October 2020, I made the following orders (and/or directions): 1. The respondent's request that the proceedings not be set down for hearing is refused. 2. The proceedings are set down for hearing, by telephone, on Monday 26 October 2020 for one day commencing at 10.00am. 3. By Monday 19 October 2020, the respondent is to file and serve its dismissal application (if any) together with any supporting evidence and legal arguments. 4. By midday Friday 23 October 2020, the applicant is to file a summary response (not exceeding five pages) to any dismissal application the respondent may file and serve in accordance with order 2. 5. In the event the respondent files and serves a dismissal application, that application will be heard at the commencement of the hearing on 26 October 2020. However, the respondent should also be prepared to proceed with the substantive application on that day, unless ordered otherwise.
Notice of the abovementioned orders were sent to the applicant and the respondent, the Secretary, Department of Education, on the same day: NCAT Act, s 62(1).

Background

The proceedings to which the abovementioned orders relate are those commenced by the applicant, on 12 February 2020. In that application, the applicant sought administrative review of the 'decision' of the respondent, made under the Government Information (Public Access) Act 2009 (NSW) ('GIPA Act'). The applicant's application was lodged on the basis of a 'deemed decision' of the respondent to refuse to deal with his application for access to government information because it had failed to deal with the applicant's access application within the time prescribed under s 57(1) of the GIPA Act: GIPA Act, s 63. Unbeknown to the applicant at the time he lodged his application, the respondent had in fact made a decision, within time, that his application for access was invalid: GIPA Act, s 51.
The proceedings have been before the Tribunal at a number of case conferences (i.e. 17 March 2020, 21 April 2020, 19 May 2020, and 9 June 2020). At the initial case conference (17 March 2020), the Tribunal, constituted by Senior Member Lonsdale, set aside the decision of the respondent and remitted it for reconsideration under s 65(1) of the Administrative Decisions Review Act (1997) (NSW) ('ADR Act'). As, on reconsideration, the respondent made a new decision in substitution of its original decision, it is the new decision that is now the subject of review in this application: ADR Act, s 65(4).
On 9 June 2020, at the case conference before Senior Member Lonsdale, an order was made listing the proceedings for hearing on 15 September 2020.
On 14 September 2020, the applicant sent an email to the Tribunal requesting that the hearing of his application be vacated, as his staff member was ill, which left him as the only person available conduct the day to day activities of his business. On the same day, I made orders, in chambers, vacating the hearing listed for the following day, but listed the matter for directions (by telephone), at 10.00am, on the following day.
On 15 September 2020, at the directions hearing, the applicant and Mr Bell, the solicitor for the respondent, appeared by telephone. The respondent did not oppose the hearing being adjourned, but requested that the matter be determined on the papers. The applicant opposed this course, as he sought to cross-examine the witnesses of the respondent. After hearing from the parties, I made an order listing the matter for hearing (by telephone) on 13 October 2020.
On 30 September 2020, the Registrar wrote to the applicant and the respondent and advised as follows: The hearing date of 13 October 2020 is no longer proceeding. The proceedings will be listed on one of the following dates: October 21, 23, 26 and 27. Please advise your unavailable dates by 2 October 2020. All issues arising out of this matter is stood over until the hearing.
On 1 October 2020, the applicant sent an email to Registry seeking reasons why the 13 October 2020 hearing date had been vacated. On the same day, the Registrar responded and said: … Unfortunately the hearing date is no longer available for the tribunal. There was no appeal or other request for the date to be moved. To ensure there are no further delays in this matter the Registrar wrote to the parties asking for available dates from dates the tribunal currently has available. It would be appreciated if you and the respondent could provide your availability from the dates (21, 23, 26 and 28 October) by 2 October 2020 to assist in having the matter listed promptly.
On 3 October 2020, the applicant sent an email to the Registry stating that 26 October 2020 was suitable to him.
On 7 October 2020, the solicitor for respondent sent an email to the Registry stating that the respondent did not consent to the relisting of the matter because: [The] respondent intends to file an application to dismiss this matter as an abuse of process in light of the following recent decision of the Court of Appeal: Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232. The respondent will apply for such application to be determined on the papers.
The respondent went on to say he did not consent to the relisting of the applicant's substantive application until its dismissal application had been determined. The respondent also indicated that its application for dismissal would be filed by Tuesday 13 October 2020.
In light of the responses of the applicant and the respondent to the adjourned hearing date, on 15 October 2020, I made the procedural directions set out at [3] above.

Reasons for 15 October 2020 procedural directions

Given the protracted history of the applicant's substantive application and there appeared to be very little, if any, likelihood of the matter being settled or withdrawn, I took the following matters into account in making the orders I made: 1. the role of the Tribunal in regard to the applicant's substantive application is to determine the correct and preferable decision, having regard to the material before it and the applicable law: ADR Act, s 63(1); 2. in the applicant's substantive application, the onus was on the respondent to establish that its decision, the subject of review, is justified: GIPA Act, s 105(1); 3. the applicant's substantive application was ready to proceed to a hearing, as the respondent had filed and served its evidence and written submissions prior to 15 September 2020; 4. the applicant had opposed his application being dealt with on the papers, as he sought to cross-examine the respondent's witnesses; 5. the respondent's application for dismissal, which had been made very late in the proceedings. However, that application was made on the basis of a decision of the Court of Appeal published on 24 September 2020, which post-dated the 15 September 2020 directions in this application. It was also a decision of which the applicant was familiar, being the respondent to that appeal; 6. the 'guiding principle' for the NCAT Act and the NCAT procedural rules, 'to facilitate the just, quick and cheap resolution of the real issues in the proceedings': NCAT Act, s 36(1); and 7. the requirements of s 38(2), (4), (5)(c) and (6) of the NCAT Act., in particular the Tribunal's obligation to 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.

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: 04 December 2020

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