Zonnevylle v Secretary, Department of Education

Judgment (5 paragraphs)

[1]

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.

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.

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Judgment (5 paragraphs)

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