Zonnevylle v Secretary, Department of Education

NCAT Administrative and Equal Opportunity|2022-03-08

REASONS FOR DECISION

Peter Zonnevylle sought review by the Tribunal of a deemed refusal by the Secretary, Department of Education (the respondent) to deal with an application under the Government Information (Public Access) Act 2009 (NSW)(GIPA Act). That application was filed with the Tribunal on 19 November 2021. At a case conference held on 20 December 2021 Mr Zonnevylle was given leave to file on or before 1 February 2022 an application for referral of questions of law to the Supreme Court, specifying the question or questions of law to be referred along with submissions in support of the application.
Other directions were made at the case conference to ready the substantive matter for hearing. The substantive matter is listed for hearing on 6 May 2022.
On 6 February 2022 Mr Zonnevylle filed by email an application seeking six orders (the referral application): 1. to refer the respondent to the Information Commissioner under s111 of the GIPA Act; 2. to seek permission from the President of the Tribunal for a referral to the Ombudsman under s 35 of the Ombudsman Act 1974; 3. to seek permission of the President of the Tribunal to refer questions of law to the Supreme Court under s 54 of the Civil and Administrative Tribunal Act 2013 (NSW)(CAT Act); 4. Tribunal to answer those questions of law in detail (including references to relevant legislation); 5. Tribunal to request the Information Commissioner appear/provide assistance/make submissions in these proceedings; 6. provide detailed written reasons under s 62 of the CAT Act for any decisions in accordance with s 5 of the CAT Act deemed to have been made regarding this application.
The matter was listed for a directions hearing on 15 February 2022 to deal with a range of issues that had arisen during the proceedings. On that date directions were made extending the time for compliance with the earlier directions of the Tribunal made on 20 December 2021. Directions were also made in relation to the 6 February 2022 referral application. The respondent was directed to provide any submissions on the referral application on or before 22 February 2022 and Mr Zonnevylle was directed to file any submissions in reply on or before 1 March 2022. The referral application was listed for hearing on 8 March 2022 at 2:00 pm for 30 minutes.

Permission to record proceedings on private device

On 10 February 2022 Mr Zonnevylle had emailed the Tribunal a further application which he stated "applies to each and every hearing in these proceedings". Under that application Mr Zonnevylle sought permission under s 9(2)(a) of the Court Security Act 2005 (NSW) to record the hearing on a personal recording device. In the application Mr Zonnevylle foreshadowed that, if his application was not dealt with fairly, or the Tribunal Member hearing the matter refused to provide detailed oral reasons he would ask the member to recuse themselves.
Mr Zonnevylle provided written submissions along with his application which set out the reasons in favour of permitting recording of the proceedings by him. These were: 1. The proceedings are to be in open court under s 49 of the CAT Act,; 2. There is no overriding public interest in refusing the permission; 3. There is no policy or directive from the Tribunal to require members to refuse permission; 4. Section 9 is a discretion exercised by the Tribunal and granting permission promotes the objects of the CAT Act; 5. Permission provides both the applicant and respondent immediate access to the same identical sound recording, and both parties can exercise their legislative rights with minimal delays; 6. Both parties are subject to the same restrictions of use for independent recordings; 7. Applicant and respondent resources are not wasted with the unnecessary formalities required for accessing the sound recording; 8. Tribunal resources are not wasted with unnecessary formalities required for providing the sound recording; 9. There are no delivery or access delays, which cause a self-represented party actual detriments; 10. Unnecessary fees to acquire the sound recording from the Tribunal are a direct economic detriment for a self-represented party; 11. Transcripts can be produced more quickly; 12. Independent recordings made with permission resolve any self-represented party disputes or contentions about tampering of sound recordings; 13. Availability and security is enhanced with up to three independent copies, being the Tribunal recording, the self-represented party recording and the respondent's recording; 14. There is actual evidence of Tribunal sound recordings failing or going missing; 15. No response from the Tribunal to this legitimate and serious issue; 16. The Tribunal cannot guarantee that a self-represented party's interests are ensured with only the Tribunal recording; 17. The presiding Tribunal member is not a sound engineer, or a computer specialist, has never made a GIPA application as a self-represented party, and cannot claim to be a "fair minded everyday lay observer".
Mr Zonnevylle also stated that he has legitimate concerns about bias by part-time Tribunal Members who accepted statements made by the respondent's legal representative requiring a self-represented party to provide substantiating evidence to contest those statements. He also referred to the disadvantage faced by self-represented parties when appearing at hearings where the respondent is represented by a legal specialist and stated that a self-represented party has a legitimate and greater requirement to rely on the sound recording. Mr Zonnevylle also referred to a case where he relied on the sound recording for evidence against another Member in relation to conduct issues. He also stated that sound recordings are inadequately packaged which does not guarantee they won't get damaged in transport. Mr Zonnevylle also referred to an email he had sent to the Tribunal's Principal Registrar on 6 January 2022 and stated there had been no response. This appears to relate to a sound recording which was not able to be provided to him for a hearing in 2015.
On 7 March 2022 Principal Member Pearson published a decision in Zonnevylle v Secretary, NSW Department of Education [2022] NSWCATAD 74. The substantive matter in that case concerned an application by Mr Zonnevylle for approval under s 110 of the GIPA Act to make an application for access to information held by the respondent. That matter had been listed before Principal Member Pearson on 22 February 2022 for directions. According to the published reasons, Mr Zonnevylle had also made an application in that matter that he be permitted to record the proceedings. His reasons in support of his application, as set out at [29] of the decision are identical to those put forward in this application. I note that the respondent submitted that Mr Zonnevylle had not raised any matter which would warrant any variation being made to the default position under s 9(1) of the Court Security Act that no private recordings are to be made.
Principal Member Pearson refused Mr Zonnevylle's request to record the proceedings on his own device and set out detailed reasons addressing Mr Zonnevylle's submissions.
On 7 March 2022 Mr Zonnevylle filed what was described as a "clarification/amendment" to his application for permission to record proceedings. This amendment was said to apply to the application which was listed before me on 8 March 2022 and to other applications currently before the Tribunal in which Mr Zonnevylle is the applicant. In this document Mr Zonnevylle reiterated much of what had been contained in his 10 February 2022 submissions. He also stated that many members of the Tribunal, including myself, have denied him procedural fairness in proceedings; that there is a conflict of interest in the Tribunal controlling evidence contained on sound recordings and that sound recordings are not available for all hearings, noting one matter before the Tribunal in 2018 and another before the Supreme Court in 2015 when a recording had not been available. Neither matter involved Mr Zonnevylle as a party.
These submissions also appear to address some matters which have been set out in the reasons for decision of Principal Member Pearson which had been published that day. Mr Zonnevylle referred to the cost of obtaining sound recordings from the Tribunal and his preference for obtaining a hard copy of the recording rather than downloading one. He raised concerns about the security of the file sharing service from which a recording can be downloaded. He also referred to the cost to the public purse arising out of reliance on the official recording rather than allowing parties to record the proceedings themselves. Mr Zonnevylle also expanded upon his allegations of misconduct in relation to another Tribunal Member.
At the beginning of the hearing on 8 March 2022 Mr Zonnevylle raised his request for permission to record the proceedings. He declined to make any oral submissions in support of his application stating that his written submissions contained all matters relied upon. The application was opposed by the respondent who submitted that nothing had been raised in the submissions of Mr Zonnevylle which would warrant a departure from the default position under the Court Security Act that a party must not use a recording device to record sounds or images in court premises. The respondent referred to the matters set out in Principal Member Pearson's decision of 7 March 2022 in support of its submissions.
Having taken into account the submissions made by both parties, I stated that I would not give permission for the proceedings to be privately recorded. I then commenced to give brief oral reasons for my decision. Unfortunately, Mr Zonnevylle proceeded to interrupt me and to make other demands. I therefore stated that I would provide him with written reasons at a later date. This was particularly the case as there was little time left to deal with the issues that had actually been listed for hearing that day.
My reasons for refusing permission to Mr Zonnevylle to record the proceedings on a private recording device were, in summary that none of the reasons advanced by Mr Zonnevylle persuaded me that I should exercise my discretion to permit him to record proceedings. In particular, the proceedings were being officially recorded and that recording would serve as the record of the proceedings to be relied upon by the Tribunal, by both parties and any appeal body. It is important that the integrity of the operation of the Tribunal (and the court system generally) be maintained through the provision of official recordings which are to be used for purposes associated with the proceedings. It is not apparent why allowing a private recording would enhance the principle of open justice - even though the hearing was being held by telephone there is no restriction on participation and members of the public may request to also attend. The fact that there have been a few instances of recording malfunction in the past does not mean that a party should be given permission to record on a private device.

Recusal

After stating that I would provide written reasons rather than continue to give oral reasons for my refusal to grant permission to record the proceedings, Mr Zonnevylle then asked me to recuse myself on the basis that I had not provided him with procedural fairness because I hadn't provided him with oral reasons. He also stated that I had not promoted the objects of the Court Security Act which, among other things are to provide for the secure and orderly operation of courts. My understanding was that this failure was because I had refused him permission to record the proceedings.
The respondent declined to make any submissions in response to the recusal application.
I refused the application as I could not see any basis upon which making a ruling on a procedural issue, without anything more, demonstrated that I did not bring an impartial mind to bear upon the determination of the substantive issues of the case. Nor did Mr Zonnevylle identify any basis upon which an independent observer might reasonably apprehend that I might not be open to persuasion in relation to the substantive matters to be decided. He did not articulate any logical connection between my action in not permitting him to use his own recording device or to continue to give oral reasons and the possibility that I would not be impartial in deciding the issues to be determined in the proceedings. This was particularly the case as the hearing of the substantive matters had not in fact commenced and I had undertaken to provide him with written reasons after the hearing.
In this context, I note and fully agree with the conclusions of Principal Member Pearson that s 62 of the CAT Act imposes no statutory obligation on the Tribunal to provide oral reasons at the request of a party. As was stated at [25]: Whether or not oral ex tempore reasons should be given in any particular matter, or written reasons provided later, requires consideration of all relevant circumstances, including expediency, and the nature and complexity of the issues to be determined.
A clear consideration in this matter was the fact that Mr Zonnevylle had in fact interrupted the giving of oral reasons and that the hearing had been largely consumed by dealing with preliminary matters raised by him. As noted above, the matter had been set down for 30 minutes to deal with the referral application and the allotted time had already been considerably exceeded. I therefore proceeded to commence hearing the application for the orders requested in the referral application and set out at [3] above.
After commencing to hear argument on the first issue relating to referral of the respondent to the Information Commissioner, Mr Zonnevylle then sought an adjournment to provide further submissions. Those submissions had not been provided in accordance with the directions that had been made previously requiring him to provide submissions in reply by 1 March 2022. As it was apparent that the remaining issues could not be dealt with in the time available, I made a direction that Mr Zonnevylle was to provide any further written submissions on or before 22 March 2022. The respondent requested that the matter then be dealt with on the papers in the absence of the parties and I also made a direction that Mr Zonnevylle provide his views on whether he consents to the matter be dealt with on papers.
Mr Zonnevylle then made a further application that I recuse myself, this time on the basis that I had only given him until 22 March 2022 to provide written submissions and not the six weeks he had in fact requested. I refused the application. Mr Zonnevylle has had since 22 February 2022 to make any submissions in response to those filed by the respondent on that date. He had failed to do so and has now been given further time. In keeping with the guiding principle of the CAT Act, that is, "to facilitate the just, quick and cheap resolution of the real issues in the proceedings", he has been given a further two weeks to file submissions. Other than disagreeing with the timeframe, Mr Zonnevylle did not advance any cogent reason which would cause me to recuse myself.
On the day the orders set out below were made.

Orders 1. The applicant's request to record the proceedings on a personal device is refused. 2. The applicant's applications for recusal are refused. 3. The applicant's request for oral reasons is refused. 4. The time for Peter Zonnevylle to comply with direction 5 made on 15 February 2022 is extended to 22 March 2022. Any submissions are also to address whether the applicant consents to the matter being determined on the papers.

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: 11 April 2022

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