Zonnevylle v Secretary, Department of Education

The hearing

1. As soon the hearing was convened, the applicant asked to be permitted to audio-record the proceedings on his personal recording device. His written and oral submissions in support of this request are: 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".
2. Having heard these submissions from the applicant, I refused his request to audio-record the proceedings.
3. The applicant then asked me to recuse myself for bias. I declined to do so. The applicant asked for oral reasons for my rulings on his requests. I advised the applicant that I would provide written reasons for these two refusals as part of my reserved decision on this application for review.
4. I informed the applicant of the Registry's advice to me after my receipt of his email submission that morning and quoted above at paragraph 6, that there is no valid appeal before the Tribunal related to these proceedings. I offered to briefly adjourn the proceedings to make further inquiries with the Registry concerning the appeals that he said he had lodged. He declined that offer.
5. Thereupon, the applicant raised his voice, accused me of lacking integrity, said that he refused to go on with the hearing and hung up the telephone.
6. The respondent said this behaviour by the applicant was part of a pattern of conduct that resulted consistently in the substance of the application never being properly ventilated and addressed. The respondent submitted that it was ready to proceed. To that end, the respondent submitted there was sufficient material before the Tribunal to proceed to a decision on the application for review and relied upon previous submissions and in particular on the affidavit of Ms Hargans.
7. Having reviewed the documentation, I am satisfied that is the appropriate course of action in the circumstances. In this regard I note the applicant's refusal to participate further in the proceedings and his email to me post-hearing to that effect.

Material before the Tribunal

1. The respondent relied on the following material: 1. An affidavit of Sarah Hargans dated on 18 February 2022. 2. A confidential bundle of documents. 3. A written outline of submissions received by the Tribunal on 21 February 2022 and oral submissions made in open hearing.
2. The applicant provided voluminous written submissions to the Tribunal by post and email but made no oral submissions relevant to the substantive application at the hearing. I note that one of the objects of the Civil and Administrative Tribunal (NSW) Act 2013, at section 3(d,) is "to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible". To that end, I do not consider it necessary, or helpful, to describe in detail the hundreds of pages of submissions made by the applicant, much of which is concerned with impugning the character of Ms Hargans and other named officials of the Department and several Tribunal members.
3. I will however, give my reasons at the outset for refusing his requests to record the proceedings, for me to give oral reasons and for me to recuse myself for bias.

Personal recording of proceedings

1. Audio recording of Tribunal proceedings is dealt with under the Court Security Act (NSW) 2005. As stated by Principal Member Pearson in Zonnevylle v Secretary, NSW Department of Education [2022] NSWCATAD 74: 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 I am, as the member constituting the Tribunal for the purposes of the directions hearing, a "judicial officer" for the purposes of considering whether to grant permission pursuant to s 9(2)(a) of the CS Act. As confirmed by the Appeal Panel 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. The Tribunal notes that while the applicant expressed concerns as to delays and damage caused in posting copies of sound recordings, the Tribunal has since 1 October 2021 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 directions list was, as is the usual practice, recorded by the Tribunal. The availability of a sound recording enables a party to consider whether or not to exercise any rights, including of appeal, in respect of a Tribunal proceeding, 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 a proceeding does not require any further approval for use of the sound recording or any transcript obtained for the purposes of the proceeding 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. 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.
2. I have considered the applicant's submissions. I am not persuaded by them. In the present circumstances, I am not satisfied the applicant has established a reasonable basis on which it would be appropriate for me to depart from the general principle that use of a recording device to record a Tribunal proceeding is prohibited.

Recusal for bias

1. The applicant stated I had demonstrated bias against him by refusing his request to audio-record the proceedings and asked me to recuse myself. I declined to do so. My reasons are the same as those expressed by Principal member Pearson in Zonnevylle v Secretary, NSW Department of Education [2022] NSWCATAD 74 and I respectfully adopt them as a correct statement of the law as follows: A decision maker has an obligation to hear and determine a matter unless a reasonable apprehension of bias can be established: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [19]; Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [35]-[36]; see also Charisteas v Charisteas [2021] HCA 29. The general test for apprehended bias, whether in a court or in a tribunal, is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [11]. The two step process involved was explained by the High Court in Ebner v Official Trustee in Bankruptcy at [8]: First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. For a decision-maker to disqualify himself or herself for apprehended bias, there must be an objective connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the decision-maker might not bring an impartial mind to bear on the issues that are to be decided: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [67], per Gummow ACJ, Hayne, Crennan and Bell JJ.
2. My decision not to allow the applicant to audio-record the proceedings was a preliminary procedural matter that arose almost at the outset of the hearing. It was unrelated to the substance of his application for review. I have had no previous dealings with the applicant and made no prior determinations relating to him. In these circumstances, I am satisfied there is no basis for a reasonable apprehension of bias on this issue, or on my decision to refuse his request for oral reasons, on which the applicant also based his request that I recuse myself.

Oral reasons

1. The applicant asked me to provide oral reasons for the procedural decisions that I made at the outset of the hearing refusing his requests to audio-record the proceedings and for me to recuse myself for bias. I declined to provide oral reasons. My reasons follow.
2. Section 62 of the NCAT Act imposes no statutory obligation on a Tribunal member to provide oral reasons at the request of a party. Whether or not oral ex tempore reasons should be delivered in any particular matter, or written reasons provided later, requires consideration of all of the relevant circumstances, including expediency, and the nature and complexity of the issues to be determined.
3. I have already noted the object of the NCAT Act for the Tribunal to "resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible". The applicant raised these procedural issues at the outset of the proceedings. They bore no evident relationship to the substance of his application for review. There was no reasonable basis for the requests and no reason to delay the hearing of the substantive application solely to provide oral reasons. Upon my refusal of his requests, the applicant promptly impugned my character, stated his refusal to go on with the hearing and proceeded to terminate the telephone connection.

Respondent's submissions

1. The respondent's submissions received at the Tribunal 21 February 2022, address the eight items raised in the access application and attaches the 18 February 2022 affidavit of Ms Sarah Hargans.
2. Ms Sarah Hargans is the General Counsel of the Department of Education. Her affidavit addresses the eight items in the access application. She states, in part, "On 14 February I authorised the release of information by way of letter to [the applicant]…Since 14 February, the Department has identified further information which is responsive to the access application…I am informed by Andrew Bell, of the Crown Solicitor's Office, that he has applied minor redactions…but that he intends to file the complete unredacted documents confidentially for the Tribunal's review." The Tribunal received those confidential documents.
3. In regards to the eight items sought by the applicant the respondents submits as follows:

Item 1

1. This item seeks documents identifying the instructing officer and the officer authorising the engagement of the Crown Solicitor's Office. The respondent has released the relevant Legal Services Order Form identifying those officials and also the related billing correspondence between the two agencies. The respondent has redacted the telephone and email details of the two Department officers identified, on the basis that the access application only seeks documents "identifying" the officials and not their personal details, and in the alternative, that it is personal information and there is an overriding public interest in not disclosing that personal information (s.14, cl. 3(a)(b) of the GIPA Act). Further, the respondent submits there is a risk of harassment for the two officials, by the applicant, if that personal information is disclosed to him, giving rise to the public interest against release of that information (s.14 cl. 3(f) GIPA Act).

Item 2

1. This item seeks "Documents provided to Zonnevylle prior to Jan 13, 2020 where the discretionary approval / additional facilities to receive GIPA access applications was denied to Zonnevylle". The respondent submits the material is not held and Ms Hargans states she consulted the author of the 13 January 2020 letter who confirmed, based on her knowledge and review of the relevant files "there is no correspondence from prior to 13 January 2020 which specifically states that Mr Zonnevylle may not submit access applications by email".

Item 3

1. This item seeks "Documents: those "notices" not received by Zonnevylle from IA unit / Pendergast / DEC "because of the confusion with you using several email addresses for the one matter" Pendergast notice GIPA 20-013 Jan. 13, 2020". Ms Hargans states she confirmed with the author of the 13 January 2020 letter that "the letter was drafted only by reference to the documents" that have been included in the 14 and 18 February 2022 release of information.

Item 4

1. Item 4 seeks "Public monies used for any external legal services…concerning Zonnevylle Period Jan to April 2020". The Department released the relevant invoices for legal services. Redactions were made because: 1. The access application only seeks information as to the amount of public monies used for external legal services, and not the individual entries; and in any event, 2. They include descriptions of confidential communications made between the client (the Department) and the solicitor for the Department (Crown Solicitor's Office) and, 3. Each confidential document was prepared for the dominant purpose of the provision of legal services relating to the proceeding".
2. Ms Hargans states the information which has been redacted is confidential and she, as an authorised officer, does not waive privilege over that information. She also states the rates set by the Crown Solicitor's Office for those legal services have been redacted as that information is commercial-in-confidence and disclosure of that information would put the Crown Solicitor's Office at a commercial disadvantage against competitors. She also states "The rates are not necessary to understand the aggregate expenditure on the legal services provided to the Department, which is the information sought by this access item".

Item 5

1. This item seeks "Document / list detailing all workplace emails for staff of a. DEC IA Unit b. Legal directorate".
2. Ms Hargans states "Whilst it would be possible to individually extract the email addresses of staff members to compile a list, that would require the creation of a new record". The respondent submits this creation of a new record is not required under s. 75(2) of the GIPA Act. The respondent further submits there is a risk of harassment for the officials, by the applicant, if that personal contact information is disclosed to him, giving rise to the public interest against release of that information (s.14 cl. 3(f) GIPA Act).

Items 6 and 7

1. These items seek information relating to communications between a number of named or identified persons. Ms Hargans states ""I am aware that, well prior to January 2020, the Department implemented a policy of not responding or engaging with correspondence from Mr Zonnevylle…For that reason, my expectation is that there would be no information responsive to this item request…the Office of the Secretary has undertaken searches for the information…but produced nil results…the search officer declaration is annexed to this affidavit".

Item 8

1. This item seeks "All blocked emails sent from NSW schools or Dept. of Education workplace email addressed to any email address associated with the applicant's websites". The respondent submits ""The Department's Information Services team has used a Microsoft Exchange Online eDiscovery Service to extract any emails associated with the provided domains [the applicant's websites] in the relevant timeframe and provided them to the applicant in full…without redaction". And "the searches undertaken replicate the result of manual searches from each school" arranging for manual searches of each of the 2000 public schools in NSW would plainly "require an unreasonable and substantial diversion of the agency's resources… Accordingly, the Department is not obliged to conduct such a search: s.53(5) of the GIPA Act".

Item 9

1. Item 9 seeks Department spreadsheet records relating to GIPA matters. The respondent has identified and released the relevant spreadsheets, however the names of the officials have been redacted because the respondent submits there is a risk of harassment for the officials, by the applicant, if that personal contact information is disclosed to him, giving rise to the public interest against release of that information (s.14 cl. 3(f) GIPA Act).

Risk of harm or serious harassment

1. The respondent submits ""the applicant poses a risk of sending harassing or unsolicited correspondence to members of the Department…Mr Zonnevylle is alleged to conduct a website https://wall-of-shame.org. If this is denied by Mr Zonnevylle the Department reserves the right to call him to give sworn evidence in relation to the administration of the [website]. The website replicates the defamatory accusations of corruption which the applicant repeatedly levels at Department officers in his GIPA Act review proceedings".

Applicant's submissions

1. The applicant's written submissions commenced with the attachments to the original Administrative review application and increased over time. Each iteration rehearses the same matters but increases in volume, often duplicating prior submissions. In short compass, these submissions allege incompetence, negligence, corruption and bias against an array of Department officials, legal representatives, the Tribunal staff, Tribunal members and other persons.
2. I have not been able to extract a coherent statement of issues or submissions from this mass of material or any evidence to support the allegations.

Respondent's submissions in reply

1. At the hearing the respondent relied on the prior written submissions outlined above and particularly referred to the affidavit of Ms Hargans.

Legislation

1. Section 5 of the GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
2. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information (GIPA Act, s 9(1)).
3. Section 14(1) of the GIPA Act requires that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Sch 1 to the GIPA Act. Relevantly, Clause 5(1) of Sch 1 provides: It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.
4. The clause refers to legal professional privilege and uses the phrase "client legal privilege", that phrase is used in the Evidence Act 1995 (NSW) (Evidence Act). There remains an unresolved issue as to the appropriate test for privilege - that is s 122 of the Evidence Act or the common law position set out in Mann v Carnell (1999) 201 CLR 1. In Transport for NSW v Robinson [2018] NSWCATAP 123 at [43], the issue was raised before the Appeal Panel and the Appeal Panel determined in that case that it was not necessary to decide the issue.
5. I am satisfied that in this case the application of common law principles would not produce a different result in this matter and have considered the matter according to the test in the Evidence Act.
6. Section 118 of the Evidence Act deals with privilege in the context of the provision of legal advice and litigation and relevantly provides: 1. Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of - 1. a confidential communication made between the client and a lawyer, or 2. (b) a confidential communication made between 2 or more lawyers acting for the client, or 3. (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, 1. for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
7. Section 117 of the Evidence Act contains the following relevant definitions: client includes the following: (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), (b) an employee or agent of a client, (c) an employer of a lawyer if the employer is: (i) the Commonwealth or a State or Territory, or (ii) a body established by a law of the Commonwealth or a State or Territory, … confidential communication means a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. confidential document means a document prepared in such circumstances that, when it was prepared: (a) the person who prepared it, or (b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. lawyer means an Australian lawyer, a foreign lawyer, or an employee or agent of either of them. …
8. In Jackson v University of New South Wales [2019] NSWCATAD 224, the Tribunal provided the following summary of the position where the client is a government agency and the lawyer is employed by that agency: 105. Ultimately it is a question of fact as to whether a professional relationship exists between the client employer and the in-house lawyer and whether the in-house lawyer was consulted in his or her professional capacity: see and Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445, at [35] to [41]. Where advice is requested or given out-side this professional relationship the information is not privileged. 106. Even where a client-lawyer professional relationship is found to exist, this does not mean that every communication between the lawyer (including the employed legal practitioner) and the client (including a government agency) is thereby privileged. It is only those communications or documents that are confidential and made or prepared for the 'dominant purpose' of the lawyer (in his or her professional capacity) providing legal (professional) advice to the client, or for the dominant purpose of the client being provided with professional legal services relating to litigation.
9. The expression "dominant purpose" was considered in Archer Capital 4A Pty Ltd v Sage Group plc (No 2) [2013] FCA 1098; (2013) 306 ALR 384 at [11], Wigney J stated: A dominant purpose is a reference to "the ruling, prevailing, or most influential purpose": Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 416. It is a purpose that predominates over other purposes; the prevailing or paramount purpose: AWB Ltd v Cole (2006) 152 FCR 382 (AWB) at [105]-[106]. The purpose for which a document is brought into existence is a question of fact that must be determined objectively, however evidence of the subjective purpose will be relevant and often decisive: Esso at [172]; Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [6]. An appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 (Pratt) at [35].
10. Ms Hargans, being the relevant official has decided not to waive privilege in this matter.
11. Concerning public interest matters, the GIPA Act relevantly provides: 14 Public interest considerations against disclosure … (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. … Table … 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects - (a) reveal an individual's personal information, … (e) reveal false or unsubstantiated allegations about a person that are defamatory, (f) expose a person to a risk of harm or of serious harassment or serious intimidation,

Decision and findings

1. In his written submissions and at the hearing commencement, the applicant sought, inter alia, adjournment of the proceedings because of appeals that he had on foot, one of which was concerned with this particular matter, as identified by the registry file number. I informed the applicant of recent registry advice that there was no such appeal. He repeated that he had lodged and paid the requisite fee for the appeal. I offered to take a brief adjournment to ascertain its status. He declined the offer and subsequently terminated the hearing by hanging up. The latest advice from registry is that the applicant has one matter under appeal with the Tribunal, which is unrelated and there is no valid appeal filed in respect of this particular case file number.
2. The applicant's abrupt termination of the hearing meant that I was unable to explore the substance of his submissions and I must rely on the materials before me only. There is no valid reason for an adjournment of the matter as sought by the applicant. The applicant was present for the hearing, he had only that morning made further written submissions and had notice of the proceedings. There was no obvious disadvantage to the applicant in conducting the hearing. It is clear that he will not participate in any further consideration of the review application. In the circumstances, I am satisfied that "to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible", it is appropriate to proceed to determine this review application.
3. I accept the evidence of Ms Hargans. I have reviewed the bundle of confidential documents. I am satisfied the relevant redactions in those documents were appropriately made and in accordance with the relevant legislation, for the reasons stated in her affidavit.
4. In light of the above matters, I find that the respondent made the correct and preferable decision when it decided on 14 and 18 February 2022, to release information to the applicant and to refuse other information on the basis that information was subject to an overriding public interest against disclosure.

Order 1. The Tribunal affirms the respondent's decision of 14 and 18 February 2022.

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: 07 June 2022