On 19 May 2021 the applicant applied to the Tribunal under s 110 of the Government Information (Public Access) Act 2009 (the GIPA Act) for approval to the making of an application for access to information held by the respondent (the Application). That approval was required as a consequence of orders made by the Tribunal on 3 April 2020: Department of Education v Zonnevylle [2020] NSWCATAD 96.
[2]
Background
The Application has been the subject of multiple previous directions hearings, which I have summarised below.
At the first listing, on 1 June 2021, the applicant was not available when contacted by telephone, and the matter was adjourned to a directions hearing on 15 June 2021.
On 15 June 2021, directions were made for the parties to file and serve evidence and submissions, the applicant by 16 July 2021 and the respondent by 17 August 2021, with a reply by the applicant by 31 August 2021. The matter was next listed for directions on 7 September 2021. On that occasion the matter was adjourned, the Tribunal noting that the applicant had lodged an internal appeal in relation to an interlocutory decision made in this application.
At the next directions listing on 7 December 2021 the Tribunal refused the applicant's request to record the proceedings on a personal device; refused his application for the Member to recuse himself; and listed the matter for directions on 8 February 2022, noting that the matter was stood over "pending determination of an appeal to the Appeal Panel".
On 6 February 2022, the applicant filed an application seeking six orders (the referral application):
1. to refer the Department to the Information Commissioner under s 111 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 (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; and
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.
That application went beyond seeking a referral of questions of law to the Supreme Court, for which leave was granted on 20 December 2021. The Respondent did not object to the inclusion of the other matters and the Tribunal decided to deal with the entirety of the application.
On 8 February 2022 the Tribunal refused the applicant's application for the Member to recuse himself, and listed the matter for directions on 22 February 2022. The Tribunal noted that the applicant had advised that he had filed an application for orders relevant to the proceedings (the referral application); the respondent had advised it had not been served with that application; and the matter was adjourned to allow the respondent to obtain the application and consider its position.
On 10 February 2022, the applicant emailed the Tribunal a further application which he stated "applies to each and every hearing in these proceedings". Under that application, he sought permission under s 9(2)(a) of the Court Security Act 2005 (NSW) (the CS Act) to record the hearing on a personal recording device. In that application, he 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.
The applicant 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".
The applicant 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 complained of 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. He also referred to a case where he relied on the sound recording for evidence against another Member in relation to conduct issues. He also complained that sound recordings are inadequately packaged which does not guarantee they won't get damaged in transport. He also referred to an email that he had sent to the Tribunal's Principal Registrar on 6 January 2022 and complained that he had received no response. This appeared to relate to a sound recording that was unable to be provided to him for a hearing that was conducted during 2015.
On 15 February 2022, directions were made in relation to the referral application. The applicant filed submissions in support when he filed the referral application and the Respondent was directed to provide any submissions in response on or before 22 February 2022 and the applicant was directed to file any submissions in reply on or before 1 March 2022. The referral application was listed for hearing in the interim matters list on 8 March 2022.
On 15 February 2022 the applicant filed a general application, seeking orders for permission under s 9(2)(a) of the CS Act). On 16 February 2022, he filed a document headed "Clarification/Amendment to Application", stating that the application for permission to record the hearing was required to be (a) addressed & decided by (b) each & every presiding member whether the hearing is either a: (i) directions hearing or (ii) case conference or (iii) substantive hearing or otherwise for this matter. He provided 10 pages of submissions including the grounds on which that application was made. Grounds for the amendment were set out in the Clarification/Amendment document.
At the directions hearing before Senior Member Ransome on 22 February 2022, the applicant was invited to provide any further submissions in support of his application to record the proceedings. He applied for the recusal of the Senior Member on grounds that he had previously made a formal complaint about her relating to procedural orders made in a 2018 matter, and that she had a previous decision declining a request by him to record proceedings; and that he had no faith in her decision-making, and she lacked integrity. The respondent's representative opposed the application, submitting that there was no proper basis for recusal. In reply the applicant stated that the respondent's representative had made a false statement and was in breach of s 71 of the NCAT Act.
On 7 March 2022, Principal Member Pearson published a decision: Zonnevylle v Secretary, NSW Department of Education [2022] NSWCATAD 74. I note that the substantive issue in that case concerned an application by the applicant for approval under s 110 of the GIPA Act to make an application for access to information held by the respondent. According to that decision, the applicant had also made an application in that matter that he be permitted to record the proceedings on his own device.
Senior Member Ransome referred to the reasons that the applicant provided in the hearing before the Principal Member, which are set out at [29] of that decision, and noted that these were identical to those put forward in the application before her. She noted that the respondent argued that the applicant had not raised any matter that would warrant any variation being made to the default position under s 9(1) of the CS Act that no private recordings are to be made. The Senior Member noted that Principal Member Pearson refused the applicant's application under the CS Act and set out detailed reasons addressing the applicant's submissions.
On 7 March 2022, which I note was the date upon which Principal Member Pearson's decision was published, the applicant filed a document described as a "clarification/amendment" to his application for permission to record proceedings. This application related to the proceedings that were listed for hearing before Senior Member Ransome on 8 March 2022, as well as other applications currently before the Tribunal involving himself as the applicant.
In this "clarification/amendment" document, the applicant reiterated much of his submissions dated 10 February 2022 submissions and also asserted that: (1) many members of the Tribunal, including Senior Member Ransome, had denied him procedural fairness in proceedings; and (2) 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. However, neither of those matters involved the applicant as a party.
Senior Member Ransome's decision indicates that the applicant's submissions appeared to address some of the matters that were addressed in Principal Member Pearson's decision. In particular, she noted that the applicant: (1) 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; (2) raised concerns about the security of the file sharing service from which a recording can be downloaded; (3) 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; and (4) expanded upon his allegations of misconduct in relation to another Tribunal Member.
Senior Member Ransome's decision indicates that at the commencement of the hearing on 8 March 2022, the applicant raised his request for permission to record the proceedings, but he declined to make any oral submissions in support of his application and relied upon his written submissions. The Respondent opposed the application and argued that that nothing had been raised in the applicant's submissions that would warrant a departure from the default position under the CS Act, that a party must not use a recording device to record sounds or images in court premises. The Respondent relied upon Principal Member Pearson's decision dated 7 March 2022.
Senior Member Ransome's decision indicates that she stated that she would not give the applicant permission to privately record the proceedings and she began to give brief oral reasons for her decision. However, the applicant proceeded to interrupt her and to make other demands and she therefore stated that she would provide written reasons at a later date. The reasons for decision indicate that the Senior Member refused permission to the applicant essentially because none of the reasons that he advanced persuaded her that she should exercise her 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.
The Senior Member stated that 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 and that it was not apparent why allowing a private recording would enhance the principle of open justice and that even though the hearing was being held by telephone, there is no restriction on participation and members of the public may request to 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.
Senior Member Ransome's decision also indicates that when the hearing commenced on 8 March 2022, and before the hearing of the referral application commenced, the applicant raised other procedural matters. As a result of time constraints, the hearing of the referral application could not be concluded on that day. The applicant sought further time to provide submissions in reply and the Senior Member I directed that he file any submissions on or before 22 March 2022. The Respondent requested that the referral application be determined on the papers and that a formal hearing be dispensed with. However, the applicant opposed this and the Senior Member directed that his submissions in reply should address whether that issue.
I note that Senior Member Ransome declined the recusal application and stated that she would provide written reasons. The applicant then made a second request for recusal, which the Senior Member declined. The applicant then requested oral reasons, which the Senior Member refused, which generated a further request for recusal.
On 8 March 2022, the Senior Member published reasons for her decision: Zonnevylle v Secretary, Department of Education [2022] NSWCATAD 120. I note that the Senior Member made the following 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; and (4) The time for the applicant 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.
On 19 March 2022, the applicant wrote to the Tribunal stating that he was not able to meet the timetable and that he required an extension of at least six weeks to file any submissions. He stated that he had not been able to file his submissions due to: (a) multiple forced proceedings before the Tribunal; (b) being self-represented, non-legal professional, time poor, resource poor; (c) unpaid for submissions etc. associated with proceedings; (d) victim of alleged Department of Education corruption which has caused himself and his employer a deliberate financial and economic detriment; and (e) he is assisting an elderly relative with aged care requirements. He also stated that he forwarded an appeal application to the Tribunal on 17 March 2022, which related to this and other proceedings, which raise important matters of Tribunal statutory obligations and conduct and he argued that it was inappropriate for these proceedings to continue until the appeal had been determined.
On 12 April 2022, Senior Member Ransome published further reasons for her decision: Zonnevylle v Secretary, Department of Education [2022] NSWCATAD 121. I note that the Senior Member: (1) refused the applicant an extension of time in which to file submissions in reply; (2) dispensed with a hearing under s 50 of the Civil and Administrative Tribunal Act 2013 (the CAT Act); (3) the application for referral of questions of law to the Supreme Court under s 54 of the CAT Act (including seeking the President's consent); (4) refused the application that the Information Commissioner be referred to the Ombudsman; and (5) refused the application that the Tribunal request the Information Commissioner to exercise her right to appear and be heard in these proceedings.
[3]
The current application
On 30 March 2022, the applicant filed the current application, again seeking permission to record proceedings on a personal recording device under s 9(2)(a) of the CS Act.
I note that in his written submissions filed on 30 March 2022, the applicant repeated many of the matters that were raised before Principal Member Pearson and Senior Member Ransome. Principal Member Pearson summarised the applicant's submissions at para 29 of her decision as follows:
(1) The proceedings are to be in open court: NCAT Act, s 49;
(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 NCAT 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;
(5) Both parties are subject to the same restrictions of use for independent recordings;
(6) Applicant and respondent resources are not wasted with the unnecessary formalities required for accessing the sound recording;
(7) Tribunal resources are not wasted with unnecessary formalities required for providing the sound recording;
(8) There are no delivery or access delays, which cause a self-represented party actual detriments;
(9) Unnecessary fees to acquire the sound recording from the Tribunal are a direct economic detriment for a self-represented party;
(10) Transcripts can be produced more quickly;
(11) Independent recordings made with permission resolve any self-represented party disputes or contentions about tampering of sound recordings;
(12) Availability and security is enhanced with up to 3 independent copies, being the Tribunal recording, the self-represented party recording and the respondent's recording;
(13) There is actual evidence of Tribunal sound recordings failing or going missing;
(14) No response from the Tribunal to this legitimate and serious issue;
(15) The Tribunal cannot guarantee that a self-represented party's interests are ensured with only the Tribunal recording;
(16) 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".
(17) Additional issues raised by the applicant include his concerns as to fear of apprehended bias by part-time tribunal members and the practice of the Tribunal of accepting statements made by the respondent's representative; requiring a self-represented party to provide substantiating evidence to contest statements made by the respondent's legal representative; imbalance of resources and disadvantage for self-represented party when appearing at hearings contested by the respondent's legal representative; and conflict of interest for a part-time Tribunal member in refusing to facilitate access to the sound recording. The applicant referred to the reliance on the sound recording for his complaints against a member in another matter; to delays because sound recordings are inadequately packaged; and the absence of a response to an email sent on 6 January 2022.
However, the applicant also stated:
12. NCAT procedures allow parties to "request" a copy of the sound recording
a. the provision of the sound recording is a discretion provided by the Tribunal.
b. this discretion is exercised by the Registry.
c. there is no mandatory requirement for the registry to provide the sound recording copy.
d. the decision to refuse a request for a sound recording is not an appealable decision
A registry refusal to provide access to a hearing sound recording would require the SRNLPRPA to:
e. request a review of the refusal, or
f. make an informal complaint to the Principal Registrar, or
g. lodge a formal complaint
In the above situations, the registry still makes the decision.
It would be highly unlikely that the registry would make a different decision.
The above options subject the SRNLPRPA to unnecessary formalities & delays.
Further, SRNLPRPAs can be subjected to abuses by the registry where the SRNLPRPA has virtually no leverage or rights.
The Tribunal/registry can blatantly abuse their conduct & statutory obligations with impunity.
Supporting evidence is attached.
13. It is not clear whether a registry decision to refuse access to the sound recording is an interlocutory/appealable decision.
a. there may be the provision for a party to summons the sound recording.
b. that summons decision is decided by the registry.
c. the summons decision may be reviewed by the tribunal.
d. the decision of the tribunal maybe & highly likely refused on grounds of no legitimate forensic or no relevance to proceedings.
In any case, for the above options the SRNLPRPA would be subjected to unnecessary costs, formalities & delays.
14. The sound recording may contain evidence which could be adduced for
a. substantiating complaints of member bias/misconduct
b. disputes concerning statements / interlocutory / ancillary decisions made by the tribunal
c. statements / misconduct of "officers of the court"
d. claims of a parties inappropriate conduct
This may be important and significant evidence to a SRNLPRPA who's legislative/procedural rights may be abused in proceedings.
It is the SRNLPRPAs contention that a lay observer could legitimately & reasonably form the opinion that the control of such evidence constitutes a significant conflict of interest.
Tribunal members could be perceived as having an interest in obstructing/delaying that evidence which may be detrimental to that member from being facilitated for legitimate & required complaints by an SRNLPRPA. ("foxes guarding the hen house").
The applicant also appears to have expanded his assertions of actual bias/conflict of interest by NCAT members, which he referred to his Statutory Declaration dated 14 March 2022 in relation to his prior complaint made against another Senior Member of the Tribunal. I have not set out its contents of this Statutory Declaration given the nature of the allegations and the fact that I do not consider that these are relevant to the question before me, namely whether permission should be granted for the applicant to record the proceedings on his own device under s 9(2)(a) of the CS Act.
The applicant concluded his submissions as follows:
17. Important notes for the Tribunal:
a. The SRNLPRPA has justifiable grounds to be gravely concerned about:
A. the Impartiality
B. the standard of decision making
C. the conduct
of Tribunal members.
b. the SRNLPRPA has justifiable grounds to take any action deemed necessary to protect the SRNLPRPAs
A. legislative rights
B. procedural rights
C. concerns about misconduct
D. concerns of bias
This includes ensuring that the4 hearing sound recording is:
E. guaranteed to be available
F. available with minimal delay
G. available with minimal formalities
H. available with minimal costs
c. The SRNLPRPA does not make the CSAP application lightly this is a legislative right.
d. The SRNLPRPA does not make any recusal application lightly.
The SRNLPRPA has justifiable grounds to be gravely concerned about the Tribunal processes & procedures.
[4]
Dispense with a hearing
The parties were given the opportunity to make submissions as to whether the Tribunal should dispense with a hearing.
I am satisfied that the matter can be adequately determined in the absence of the parties and I dispense with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
[5]
Recusal
Although the applicant's submissions refer to a recusal application (see: para 17d), the current application does not expressly seek an order that I should recuse myself from determining it.
[6]
Recording Tribunal proceedings
Section 9 of the CS Act provides:
9 Use of recording devices in court premises
(1) A person must not use a recording device to record sound or images (or both) in court premises.
Maximum penalty - 200 penalty units or imprisonment for 12 months (or both).
Note -
This subsection only prohibits the use of a recording device to record sound or images (or both) and not any other use of the device. For example, this subsection would not prohibit a person from using a mobile phone with recording capabilities to make a telephone call, but would prohibit the use of the phone to record court proceedings.
(2) Subsection (1) does not apply with respect to any of the following -
(a) the use of a recording device that has been expressly permitted by a judicial officer,
(b) the use by a lawyer of a recording device to record the lawyer's own voice in a part of court premises other than a room where a court is sitting,
(c) the use of a recording device by a person for the purpose of transcribing court proceedings for the court,
(d) the use of a recording device by a journalist while exercising a right referred to in section 6 (2),
(e) the use of such recording devices in such other kinds of circumstances as may be prescribed by the regulations.
The Tribunal is a "court" as defined in s 4(1) of the CS Act, and as a Senior Member constituting the Tribunal for the purposes of determining the current application, I am a "judicial officer" for the purposes of considering whether to grant permission pursuant to s 9(2)(a) of the CS Act.
As the Appeal Panel stated in in Zonnevylle v Minister for Education & Early Childhood Learning [2021] NSWCATAP 398 at [32], a Tribunal Member has a discretion as to whether to permit the recording of the Tribunal proceedings. Relevant to the exercise of that discretion are the objects of the CS Act, which are stated in s 3 to be:
(a) to provide for the secure and orderly operation of courts, and
(b) to confer certain functions on judicial officers and security officers for that purpose.
The fee for an application by a party for a copy of the sound recording of a Tribunal proceeding is $45, payable by any party seeking a copy of the recording. I note that while the applicant has expressed concerns about delays and damage caused in posting copies of sound recordings, on 1 October 2021, the Tribunal introduced a process by which parties can request to receive a copy of the sound recording from NCAT by email, using a secure file sharing service.
The availability of an official sound recording enables a party to consider whether or not to exercise any rights, including of appeal, in respect of Tribunal proceedings, and to substantiate any allegations of denial of procedural fairness or other errors of fact or law in the proceeding. Any recording obtained from the Tribunal would be identical to a recording provided to any other party. The fact that all parties have access to the same recording, and the consequential avoidance of disputes as to accuracy or completeness of the recording, or any transcript subsequently obtained, is consistent with the object of the CS Act to provide for the "orderly" operation of courts and the Tribunal.
A sound recording provided by the Tribunal is copyright, and a party receiving a copy is advised that:
Transmission, distribution or reproduction of this audio recording is permitted for the following purposes only:
a. to provide the audio recording to a party's legal representative for the purposes of these proceedings or an appeal of these proceedings,
b. to provide the audio recording to a court or tribunal for the purposes of an appeal of these proceedings, or
c. to provide the audio recording to a transcription service to order a transcript of these proceedings.
A party to proceedings does not require any further approval for use of the sound recording or any transcript obtained for the purposes of those proceedings or an appeal.
The availability of a copy of a recording on request, and refusal of a request by a party to make their own recording, does not affect the general proposition expressed in s 49 of the NCAT Act that Tribunal hearings are open to the public unless the Tribunal otherwise orders.
I am not satisfied that allowing a private recording would enhance the principle of open justice and even where a hearing was being held by telephone, there is no restriction on participation (unless the Tribunal orders that the proceedings or part of them must be conducted in private) and members of the public may request to attend.
The applicant submits that there is no overriding public interest in refusing permission. However, s 9(1) of the CS Act is a prohibition, subject to an exception being provided under s 9(2)(a) of the CS Act. I am not persuaded that the applicant has established a basis on which it would be appropriate to depart from the general principle that use of a recording device to record a Tribunal proceeding is prohibited.
Having considered the applicant's lengthy submissions and the documents that he relies upon in support of the current application, I am not persuaded that I should exercise my discretion to permit the applicant to record Tribunal proceedings on a personal recording device.
[7]
Orders
I make the following orders:
1. I dispense with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
2. The application for permission to record proceedings on a personal device under s 9(2)(a) of the CS Act is refused.
3. The substantive application is listed for directions on a date to be fixed by the Registrar.
[8]
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: 19 May 2022