Application to independently record today's proceeding
This matter has come before me today to make directions in an appeal lodged by an appellant who was the applicant at first instance for release of information under the Government Information (Public Access) Act 2009 (NSW). At a hearing in the Administrative and Equal Opportunity Division on 6 May 2022, the appellant sought review of the decision of the respondent in respect of documents which had, or had not, been released to him.
The decision of the Administrative and Equal Opportunity Division was released to the parties on 7 June 2022 and is reported: Zonnevylle v Secretary, Department of Education [2022] NSWCATAD 187. The Tribunal confirmed the respondent's decision in respect of the release of documents to the appellant. It is apparent from reading the reasons of the Tribunal on that occasion that the appellant, Mr Zonnevylle, had brought an interlocutory application under the Court Security Act 2005 (NSW), s 9 for permission to independently record that proceeding. The Tribunal refused that application and gave reasons.
The appellant appeals, not only from that aspect of the decision, but from the decision in general. The reason it is relevant that such an application was made at first instance is that the Tribunal set out at some length, commencing at about [7] of its reasons, the submissions made by the appellant in that proceeding which are very similar to submissions the appellant has made in respect of an oral application he brought before me today, to independently record today's directions hearing.
The reason that is of assistance to me is because I do not need to repeat the submissions at length into the record now as they are available for reference elsewhere. I do not say that the submissions made by Mr Zonnevylle today were identical to those recorded at [7] of the reasons at first instance but they were thematically similar and certainly do not go beyond what was submitted in those proceedings.
In addition, the Tribunal in that proceeding recorded the relevant law to be applied by reference to a similar application made by Mr Zonnevylle in an earlier proceeding in the Tribunal, reported as Zonnevylle v Secretary, NSW Department of Education [2022] NSWCATAD 74. In that decision, the Tribunal recorded what I accept to be the relevant issues, which are that s 9 of the Court Security Act provides that "a person must not use a recording device to record sound or images (or both) in court premises" but does make provision for permission to be given by a judicial officer, which in the context of applications of this nature includes a Tribunal Member (by reference to the definitions of 'judicial officer' and 'court' at s 4 of the Court Security Act), to record the proceedings.
In short, the appellant says that this proceeding is conducted in open court; that there is no overriding public interest in refusing permission; there is no policy or directive which should be observed by refusing permission; that it is both cheaper, quicker and more likely to lead to the proper administration of justice if parties are allowed to independently record the proceedings, particularly because that will lead to there being multiple redundant copies, and there will be a corresponding reduction of arguments between parties about whether the Tribunal's recording is accurate.
I should record that, during submissions on this issue, the appellant also sought to have me make various statements as to whether the lawyer who seeks to represent the respondent today holds a particular statutory obligation and whether the Tribunal has knowledge of matters arising in other proceedings. Those are not applications properly brought in these proceedings, and I refuse to deal with those aspects of the application.
It is also important to record in these reasons that this matter was listed today solely for directions. There were no interlocutory applications lodged in advance of the hearing and listed before me. The matter was allocated half an hour, which it has now taken to deal with this application. There is no proper reason, particularly given the experience of Mr Zonnevylle in bringing such applications, which is apparent from the history I have outlined of earlier proceedings, why he did not bring an application, on notice, in the form of an Application for Miscellaneous Matters supporting his request to independently record the hearing. Doing so would have not only allowed the Tribunal to better allocate resources, but ensured that his arguments were clearly put.
Mr Zonnevylle has objected to my limiting the time allowable to him to make submissions on his application. That is a procedure which I am granted power to adopt under 38(6)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), and in any event I think it is a proper way to utilise the limited resources of this Tribunal, particularly having regard to the obligation, not only on the Tribunal but also upon the parties who appear before it, to try and give effect to the guiding principle of the Tribunal and ensure that the proceedings are dealt with in a way which is just, quick and cheap: Civil and Administrative Tribunal Act, s 36.
Weighing the issues raised by Mr Zonnevylle with the fact that this is not a proceeding wherein evidence is being given, and is simply a directions hearing, I am not persuaded that I should exercise my discretion to make a decision contrary to the prima facie position set out in s 9 of the Court Security Act that parties may not independently record the proceedings, and the application is refused.
[2]
Recusal for bias
After making a decision to refuse to allow the appellant to record the hearing today independently of the Tribunal, the appellant has asked that I recuse myself on the basis of bias. Whilst he did not stipulate what form the bias was said to take, I assume that he says that there is a reasonable apprehension that I might be biased, on the basis of his submissions.
In effect, Mr Zonnevylle says that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the decisions I need to make today (the test recently confirmed in Charisteas v Charisteas [2021] HCA 29) because I refused his application to record the hearing under the Court Security Act and that, in his view, it was clear that I was very well prepared for that application by virtue of the reasons I gave. I infer part of the allegation is that that was somehow inappropriate where the application had not been made before the hearing today.
Mr Zonnevylle says that I gave a lengthy decision orally and that I have refused to do so on other occasions which again, he says, leads to the inference that I had pre-prepared the decision such that I clearly intended to refuse the application before it was made and that this would be clear to a fair-minded lay observer.
Whilst it may be somewhat generous of the appellant to suggest that the length of my reasons indicated pre-preparation, that is simply not the case. I had the advantage, as I read into the record, of the fact that there had been a similar application made in the proceedings at first instance and that the Tribunal at first instance had given extensive written reasons setting out similar submissions in an application made by the appellant in similar circumstances, and the law to be applied.
The decision to give, or not to give, oral ex tempore reasons is not determined by the Civil and Administrative Tribunal Act. As a result, under s 38 of that Act the Tribunal may determine its own procedure in that regard. A similar allegation seems to have been made in the proceeding at first instance wherein Mr Zonnevylle apparently raised a similar issue. What the Tribunal said there, at [32], is:
"Whether or not oral ex tempore reasons should be delivered in any particular matter or written reasons provided later requires consideration of the relevant circumstances including expediency and the nature and complexity of the issues to be determined."
I agree with that sentiment and I should indicate, for completeness, that there have been other occasions where I have given oral ex tempore reasons when Mr Zonnevylle has made interlocutory applications to record other hearings and so, in my view, the basal factual foundation of his concern that my giving oral reasons here means I had them pre-prepared, is not made out.
I am not satisfied that giving thorough oral reasons causes any reasonable apprehension of bias. For the same reasons, any suggestion of actual bias because I came to the hearing with a mind closed to the application is unsubstantiated. The application that I recuse myself is refused.
[3]
A second recusal for bias application
Immediately after finishing my reasons for not recusing myself, Mr Zonnevylle made a second application that I recuse myself because I cannot put myself in the position of a fair-minded lay observer and due to his concerns as to how the Tribunal deals with his applications.
I was not satisfied that there was any substance in this renewed application, made immediately after and without any material change of circumstances arising since the first application. I refused it.
[4]
Orders
My orders are as follows:
1. The application by the appellant for leave to record the hearing, under the Court Security Act, is refused.
2. Each application that I recuse myself is refused.
[5]
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
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Decision last updated: 19 August 2022