Zonnevylle v Secretary, Department of Education

Should time be extended for the filing of submissions?

1. Mr Zonnevylle has not provided any detailed submissions or evidence to support his request for an extension of time. I note that he has had since 22 February 2022, the date the Department's submissions on the referral application were filed, to reply to the Department's submissions. As stated above, directions in relation to the filing of submissions were first made on 15 February 2022. Mr Zonnevylle failed to comply with those directions and was in fact granted an extension of time to 22 March 2022. To date no reply submissions have been filed by him.
2. The Department states that Mr Zonnevylle has had ample opportunity to file written submissions on his referral application. It notes that submissions were filed with the application itself. The Department states that oral submissions were not made at the hearing and there can be no matter which took Mr Zonnevylle by surprise which requires further submissions. The Department further states that, in any event, there would appear to be no specific topic which has been identified as requiring further submissions.
3. While I acknowledge that Mr Zonnevylle is self-represented, he is an experienced applicant before the Tribunal and, as he himself acknowledges, has multiple proceedings on foot before the Tribunal. A party before the Tribunal is not required to be legally represented and matters are routinely presented by persons without legal qualifications. It is unclear why the fact that Mr Zonnevylle would not be paid for writing his own submissions is relevant. Similarly, the relevance of his statement that he has been a victim of alleged corruption on the part of the Department of Education which has caused him and his (unnamed) employer to suffer detriment is not identified.
4. The fact that Mr Zonnevylle is assisting a relative with aged care requirements no doubt takes up some of his time. Again, however, it is not clear how this would have impeded his ability to make reply submissions in this matter. This is particularly the case as he states that on 17 March 2022 he lodged an appeal in relation to various matters with the Tribunal. In addition, Mr Zonnevylle made lengthy written submissions in relation to the other matters he raised at the hearing on 8 March 2022 and which were dealt with on that day. I also note that in this application he has attached submissions in relation to the orders that I made on 8 March 2022 about those other procedural matters.
5. The fact that Mr Zonnevylle has seen fit to make other applications and to provide written submissions on other matters would indicate that, rather than an inability to make any reply submissions on the referral application within time due to matters out of his control, he has chosen to prioritise other issues rather than comply with the timetable set in this matter.
6. Mr Zonnevylle has referred to the appeal that he lodged on 17 March 2022 and stated that it would be inappropriate for this matter to proceed in advance of decision on that appeal. No copy of the Notice of Appeal was provided or detail provided of the matters appealed against. The relevance of the appeal to the referral application is therefore not apparent.
7. Mr Zonnevylle provided written submissions in support of the referral application at the time that it was lodged on 7 February 2022 and I am satisfied that he will not suffer any substantial injustice if an extension of time is not granted. In addition, on 17 February 2022 Mr Zonnevylle sent an email to the Tribunal in relation to another matter before the Tribunal in which he is an applicant - NCAT proceedings 2020/283065. That is an application in which the Department of Communities and Justice is the respondent. In the body of the email, Mr Zonnevylle stated that the questions of law raised in an attached document referred to all proceedings before the Tribunal "now & in the future", including the matter before me. I have had regard to the submissions which appear to have been filed in matter 2020/283065 but said by Mr Zonnevylle in his email of 17 February 2022 to also apply to this matter. Those submissions are not materially different to those attached to his referral application of 6 February 2022.
8. Furthermore, the hearing on the substantive issues in this application is listed for 6 May 2022. Any further extension of time in relation to these interlocutory proceedings would interfere with that date and cause prejudice to the Department and to the Tribunal. For these reasons, an extension of time to file reply submissions is refused.

Should a hearing be dispensed with?

1. Section 50 of the CAT Act relevantly provides: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except: … (c) if the Tribunal makes an order under this section dispensing with a hearing, or … (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
2. Mr Zonnevylle, other than indicating in general terms at the hearing that he opposed the referral application being dealt with on the papers, has not provided any submissions in support of his statement. This is not a matter in which there are witnesses who are to be called to give evidence. The issues are confined and both parties have made written submissions. The matters raised in the referral application are not particularly complex. In the circumstances, I am satisfied that it is appropriate to make an order under s 50 of the CAT Act dispensing with a hearing as I am satisfied that the issues for determination can be adequately determined in the absence of the parties by considering their written submissions. I do not consider that Mr Zonnevylle would be prejudiced by this approach.
3. I now turn to deal with the matters raised in the referral application.

Referral to the Information Commissioner

1. Under s 111 of the GIPA Act the Tribunal may refer any matter to the Information Commissioner that the Tribunal considers is indicative of a systemic issue in relation to the determination of access applications by a particular agency or by agencies generally. Mr Zonnevylle asks that the Department be so referred.
2. The basis of the referral request by Mr Zonnevylle as set out in his submissions attached to the referral application appears to be because: 1. the Department's officers have exercised their functions with a lack of good faith; 2. the Department's officers have failed their mandatory conduct obligations and 3. there are systemic issues related to the Department which require a referral to the Information Commissioner.
3. Mr Zonnevylle refers to three departmental officers by name and also seems to include other officers who may have been involved in dealing with his application in alleging that they have acted with a lack of good faith. He states that there have been: 1. deliberate breaches of mandatory obligations required under the GIPA Act; 2. officers have refused to exercise mandatory functions required under the GIPA Act; 3. deliberate refusal to provide the applicant with the right for an internal review; 4. deliberate refusal to conduct an internal review as requested; 5. refusal to accept the Information Commissioner's recommendation; 6. deliberately forcing the applicant to seek an unwanted and unnecessary Tribunal review; and 7. deliberately wasting the Tribunal's and applicant's valuable time and resources for an unwanted and unnecessary Tribunal review.
4. The history of this matter is that, after business hours on 2 April 2020, Mr Zonnevylle sent by email an application for access to government information to the Department. On 3 April 2020, the Tribunal made orders under s 110 of the GIPA Act, prohibiting the applicant from making access applications under the GIPA Act to the Department of Education (among others) without the prior approval of the Tribunal (Department of Education v Zonnevylle [2020] NSWCATAD 96). The Department decided that the access application received by email after business hours on 2 April 2020 was invalid as a result of the 3 April 2020 restraint orders and also because the application did not "include such information as is reasonably necessary to enable the government information applied for to be identified" as is required by s 41(1)(e) of the GIPA Act.
5. On 18 February 2021 in Zonnevylle v Department of Customer Service; Zonnevylle v Secretary, Department of Education [2021] NSWCATAD 35 the Tribunal determined that the access application was in fact valid and set aside that decision. On 8 June 2021 the Department made a deemed refusal decision as the application had not been decided within time. On 1 November 2021 the Information Commissioner recommended that the Department reconsider its decision. The Department declined to do so.
6. This application before the Tribunal is an application to review the deemed refusal of the access application. I understand that some information was in fact released to Mr Zonnevylle in February 2022. The substantive matter is listed for hearing on 6 May 2022 to deal with the balance of the access application.
7. The allegations made by Mr Zonnevylle appear to be that officers of the Department have behaved corruptly in dealing with this and other access applications made by him. In his submissions he refers to an application made in 2018 and other unspecified applications. No detail of those applications or the alleged conduct of the Department in those matters has been provided.
8. Mr Zonnevylle also refers to departmental officers not assisting him with his application and refusing to respond to correspondence. Again, no detail has been provided.
9. In Taylor v Destination NSW [2020] NSWCATAD 137 the Tribunal stated at [12] - [13]: Section 111 does not give the Tribunal power to carry out an inquiry into an agency's conduct that is separate from, or additional to, any administrative review proceedings: Zonnevylle v Department of Justice [2019] NSWCATAP 44 at [52]. Allegations of a breach of the GIPA Act, including systemic breaches of the GIPA Act, do not provide a source of jurisdiction for the Tribunal: Zonnevylle v Minister for Education [2019] NSWCATAD 28 at [58]. Similarly with respect to referral under s 112 (report on improper conduct), the Appeal Panel has confirmed that the "good faith" test in section 112 also applies to section 111: Zonnevylle v Department of Justice [2019] NSWCATAP 44 at [58]. The Tribunal has no power to refer allegations that an agency has committed an offence under the GIPA Act, unless the conduct concerned also meets the test set out in section 112; and this same reasoning applies to section 111.
10. In this matter Mr Zonnevylle has failed to identify any systemic issues which would warrant referral to the Information Commissioner. The fact that the Department may have made an error in determining that the access was invalid or that it failed to determine the access application within the statutory time limit are insufficient to point to anything which could be said to amount to corrupt conduct or that the relevant officers were not acting in good faith in relation to this application, let alone anything of a systemic nature. He has also not provided any information about how the Department failed to assist him with his application or what correspondence he sent to the Department which may have required a response was not answered.
11. I note that the Tribunal in Zonnevylle v Secretary, Department of Education [2021] NSWCATAD 361 (which dealt with an application by the Department for dismissal of other proceedings under the GIPA Act on the basis that the application was vexatious) referred to matters in which Mr Zonnevylle had made allegations of lack of good faith, misconduct and illegality by the Department and its senior officers. In that matter the Tribunal dismissed the application as it found that Mr Zonnevylle was predominantly maintaining those proceedings for a collateral purpose, namely, to re-agitate allegations of misconduct, lack of good faith and illegality on the part of the Department and certain senior officers (at [128]). At [137] the Tribunal stated that Mr Zonnevylle's persistence with this collateral purpose "serves no purpose other than to waste the [Tribunal's] time and resources in order indulge his unreasonable sense of grievance."
12. In this application Mr Zonnevylle again seeks to advance unsubstantiated allegations to support his request that the Tribunal refer the matter to the Information Commissioner under s 111 of the GIPA Act. There is no basis upon which such a referral could be made and the application is refused.

Referral to the Ombudsman

1. Mr Zonnevylle asks that the Information Commissioner be referred to the Ombudsman and states that the Information Commissioner "has clearly acted in bad faith/with a lack of good faith/discrimination against the applicant and does not take her statutory obligations seriously". As far as I can understand it from the written submissions, the request for the referral stems from the fact that the Information Commissioner has determined not to exercise her right under s 104(1) of the GIPA Act to appear and be heard before the Tribunal in relation to the review application. In these proceedings, on two occasions the Information Commissioner has determined not to exercise her right to appear and be heard before the Tribunal in relation to the review.
2. Mr Zonnevylle also states that the Information Commissioner has failed to take any action against departmental officers despite clear evidence of conduct contrary to the GIPA Act. This appears to be a reference to conduct described above in relation to referral of departmental officers to the Information Commissioner.
3. Section 35 D of the Ombudsman Act provides: (1) The Ombudsman and President of the Civil and Administrative Tribunal may enter into arrangements regarding any of the following - (a) matters that the Tribunal will refer to the Ombudsman where it considers that the matter can be the subject of a complaint, inquiry, investigation or other action under the Ombudsman Act 1974 and that it would be more appropriate for the Ombudsman to deal with the matter, (b) matters that the Ombudsman will refer to the Tribunal where the Ombudsman considers that the matter can be the subject of an administrative review application and that it would be more appropriate for the Tribunal to deal with it, (c) matters that are the subject of an administrative review application and that are also the subject of a complaint, inquiry, investigation or other action under the Ombudsman Act 1974, (d) the co-operative exercise of the respective functions of the Ombudsman and the Tribunal.
4. Mr Zonnevylle has not identified any arrangement between the Ombudsman and the President of the Tribunal which would encompass any conduct on behalf of the Information Commissioner. It is also not apparent that any such arrangement could be entered into with respect to the Information Commissioner. In any event, the matters raised by Mr Zonnevylle, being matters within the discretion of the Information Commissioner, do not form any basis upon which such a referral, even if it could be made, should be made. This application is refused.

Referral of questions of law to the Supreme Court

1. Mr Zonnevylle asks that I seek permission of the President of the Tribunal that certain questions of law to be referred to the Supreme Court. Section 54 of the CAT Act empowers the Tribunal to "refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court". Any referral requires the consent of the President in writing (s 54(2)).
2. In his submissions attached to the application Mr Zonnevylle over a number of pages sets out what he describes as questions of law which he seeks to be referred to the Supreme Court. A number of these questions are said to arise from circumstances in which Mr Zonnevylle has been refused permission under the Court Security Act 2005 to record Tribunal proceedings on a personal recording device. Others arise in relation to the refusal on the part of Members of the Tribunal in various proceedings to make other orders at Mr Zonnevylle's request, including asking that a Member recuse themselves, that a Member refer questions of law to the Supreme Court, that written reasons be provided for certain "decisions" et cetera. Mr Zonnevylle refers to these matters as a denial of his procedural rights.
3. Mr Zonnevylle also asked that certain general questions be referred to the Supreme Court concerning the statutory obligations of Tribunal Members in accordance with the objects of the CAT Act. He also refers to obligations under the GIPA Act and how these affect various decision-makers including Tribunal Members, the Information Commissioner, the Ombudsman, officers of the Crown Solicitor's Office, judicial officers and others. Other questions he states arise out of conduct he alleges has been engaged in by officers of agencies to whom he has made an access request.
4. The power to refer a question of law to the Supreme Court is discretionary. In Milner v Commissioner of Police, NSW Police Force [2017] NSWCATOD 37 the Tribunal said at [14] and following: There is a wide range of circumstances in which the power to refer may be exercised. In particular, it is not confined to those cases where "there is no existing authoritative statement on the particular question of law": Urban Consolidation and Development Pty Ltd v Commissioner of State Revenue [2010] VCAT 2124 at [15] - [16]. Situations where the outcome of a number of other pending cases may turn on the answer to the question of law, as is true in the present instance, may be appropriate for referral. A party may also take the view that ultimately the question is likely to find its way to the Supreme Court in any event. It is accepted that the court expects referrals to be accompanied by a statement of agreed facts and that the question of law referred must be formulated with precision and care. The question of the appropriateness of referring a question of law to the Supreme Court has received some attention from the tribunal and its predecessor, the Administrative Decisions Tribunal. Legal Services Commissioner v Bryden [2009] NSWADT 76 dealt with s 79A of the Administrative Decisions Tribunal Act 1997, which for present purposes is very similar to s 54. In it the tribunal said: The Tribunal has a very clear view about its duty and its role in the judicial process and, in particular, the role of the Tribunal in exercising power in this Division. The Tribunal is clearly of the opinion that the proper process is through this Tribunal. After all, that is the job of this Tribunal.... Whether a regulation is ultra vires or not is to be determined in accordance with law, precedent and statutory interpretation. This Tribunal is as well-placed as anyone to determine matters of public importance. Indeed, such matters are often determined in this and other Divisions of this Tribunal. A good example is Watt v Forests NSW [2007] NSWADT 197 (at [22]). "Indeed", it continued, "[the Division's] constituted members are of long standing and seniority and we are of the view that it is in the interests of justice that the proceedings continue before us and questions of law not be referred pursuant to Section 79A" (at [25]).
5. It is not clear that the myriad questions that Mr Zonnevylle seeks to be referred to the Supreme Court actually arise in these proceedings as required by s 54. Many of the questions purport to arise out of certain "facts". These are not, however, facts as agreed or found by the Tribunal but are "facts" as asserted by Mr Zonnevylle. The majority of questions are hypothetical in nature and Mr Zonnevylle has not set out with any precision how they are relevant to or arise out of the current proceedings. Many of the questions as framed are not appropriate for referral to the Supreme Court, containing as they do mixed questions of fact and law.
6. Some questions as posed by Mr Zonnevylle relate to his allegations of bad faith or misconduct on the part of departmental officers. Others refer to matters in past proceedings which are now concluded. Most concern procedural issues and none appear to address the substantive issues which arise in the review application itself. Rather, the majority of questions go to whether the Tribunal has made an error in determining procedural applications made by Mr Zonnevylle in this and other matters. The appropriate course would be for Mr Zonnevylle to file an appeal with the Appeal Panel should he wish to challenge those rulings on the basis of error.
7. The matters which actually arise in the substantive application - such as whether information is within scope, whether information is privileged and whether release of information would expose individuals to harassment - are matters this Tribunal and its predecessor have dealt with in many decisions over the years. They are not novel. Should there be any questions of law which arise in the proceedings, they may be dealt with in Mr Zonnevylle's submissions (which were due to be filed on 28 March 2022) and by the Tribunal at the hearing of the matter on 6 May 2020.
8. The application to refer questions of law to the Supreme Court under s 54 of the CAT Act (including seeking the President's consent) is refused.

Tribunal to request the assistance of the Information Commissioner

1. Mr Zonnevylle states that the Tribunal has a discretion to request the Information Commissioner assist it in the proceedings. As noted above, s 104 of the GIPA Act provides the Information Commissioner with a right to appear and be heard in proceedings before the Tribunal.
2. As is the usual practice, the Information Commissioner was notified of the review application lodged with the Tribunal on 19 November 2021 by Mr Zonnevylle. On 6 December 2021 the Information Commissioner advised that she had determined not to exercise her right to appear and be heard before the Tribunal in respect of the application for review.
3. It seems that on 20 December 2021 at a case conference Mr Zonnevylle expressed the view that he believed the Information Commissioner should appear in the proceedings. The Department wrote to the Information Commissioner on 24 December 2021 notifying her of the proceedings. It seems that Mr Zonnevylle also wrote to the Information Commissioner on 15 January 2022 expressing his view that it was appropriate for the Information Commissioner to exercise her right of appearance. On 19 January 2022 the Tribunal received a further communication from the Information Commissioner in which she maintained her position to not appear and be heard on this application for administrative review. In that letter it was stated that, if the Tribunal considers that the Information Commissioner's appearance would benefit the proceedings, the Information Commissioner would revisit the decision.
4. In his submissions Mr Zonnevylle states that the evidence in these proceedings substantiates his view that there are serious and systemic issues in relation to the Department. In particular, these are the Department's failure to exercise mandatory functions under the GIPA Act and its refusal to implement the Information Commissioner's recommendation to submit a new decision.
5. Mr Zonnevylle has not set out what mandatory functions the Department has failed to exercise. I presume it is those matters referred to above in relation to his request to refer the Department to the Information Commissioner under s 111 of the GIPA Act. As noted above, Mr Zonnevylle has in fact failed to establish any systemic conduct on the part of the Department. In relation to his reference to the failure of the Department to act on the Information Commissioner's recommendation that a new decision be made, an agency has a discretion whether to reconsider the decision and make a new decision when such a recommendation is made (s 93(2) GIPA Act). It is not unusual for an agency to decline to reconsider its decision in these circumstances.
6. The Information Commissioner has twice declined to participate in these proceedings. One of those requests was in fact made by Mr Zonnevylle. No important principles or novel issues have been identified in relation to which the Tribunal may be assisted by her appearance. I am not satisfied that, particularly in light of the Information Commissioner's previous refusal to appear and be heard, that a further request should be made by the Tribunal. This application is refused.

Other applications

1. Mr Zonnevylle also asked that the Tribunal answer, in detail, the questions of law he has asked to be referred to the Supreme Court. It is not the Tribunal's role to answer legal questions in the abstract. Any legal issues which arise during the course of the proceedings can be addressed in the Tribunal's decision.
2. Mr Zonnevylle also asked that he be provided with 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 the referral application. These are those reasons.

Orders 1. The application for an extension of time within which reply submissions are to be filed by the applicant is refused. 2. A hearing is dispensed with under s 50 of the Civil and Administrative Tribunal Act 2013. 3. The application for referral of questions of law to the Supreme Court under s 54 of the Civil and Administrative Tribunal Act 2013 is refused. 4. The application that the Information Commissioner be referred to the Ombudsman is refused. 5. The application by the applicant that the Tribunal request the Information Commissioner to exercise her right to appear and be heard in these proceedings 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: 12 April 2022