Zonnevylle v Secretary, Department of Education

NCAT Appeal Panel|2022-08-12|Before: Dr J

REASONS FOR DECISION

By Notice of Appeal Peter Zonnevylle (Appellant) appealed against orders made by the Tribunal on 3 December 2021 in proceedings between the Appellant and the Secretary, Department of Education (Respondent). The Appellant also sought leave to appeal against those orders.
The Respondent resisted the Appellant's appeal and application for leave to appeal.
The appeal was listed for hearing on 12 August 2022. The proceedings were conducted by telephone link. The proceedings were open to the public. The Appellant appeared in person. The Respondent was represented.
At the commencement of the hearing and prior to the identification of the material in the appeal or the agitation of any submissions in the appeal, the Appellant sought an order pursuant to s 9(2)(a) of the Court Security Act 2005 (NSW) (Court Security Act) permitting him to record the hearing of the proceedings. That application was opposed by the Respondent.
The crux of the Appellant's submissions was, variously articulated, that the Appellant had concerns with respect to the reliability or integrity of the recording and transcription of the proceedings by the entity responsible for those tasks. In the course of his submissions, the Appellant described his wish to be able to record the proceedings himself as being in the nature of "an insurance policy" in case, as he feared, the proceedings were not transcribed accurately and/or in their entirety.
The Respondent submitted that nothing raised by the Appellant provided a basis for granting leave pursuant to s 9(2)(a) of the Court Security Act.
The Appeal Panel rejected the Appellant's application for leave to record the proceedings. The Appellant requested the Appeal Panel to provide its reasons for such refusal immediately after our ruling was indicated. The Appellant submitted that the Appeal Panel was obliged to publish reasons for its decision at the time the decision was made. The Appeal Panel rejected that assertion and informed the Appellant that it would, as soon as reasonably practicable, provide both its reasons for not delivering reasons when rejecting the Appellant's s 9(2)(a) application and the reasons for the rejection of that application. The Appeal Panel was influenced by the view that the Appellant's request was misconceived, and, importantly, that providing reasons in the hearing would reduce the time available for the parties to make oral submissions in the appeal.

The requirement to give reasons with respect to the rejection of the Appellant's s 9(2)(a) Court Security Act application

Section 62 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) provides the obligation of the Tribunal, or an Appeal Panel to "give notice of decision and provide written reasons on request".
Section 62(2) of the CAT Act provides that: "Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made."
It is clear that the obligation to provide a written statement of reasons arises upon a request for such reasons being made. As the Appeal Panel made clear to the Appellant on 19 August 2022, the 28 day period within which reasons were to be provided commenced then, the Appellant having clearly requested such reasons. In our view, nothing more needs to be said with respect to the timing of the reasons for the decision with respect to the Appellant's s 9 (2)(a) Court Security Act application.
In the Appeal Panel's view, these reasons satisfy the requirements of s 62(2) of the CAT Act.

Appellant's s 9(2)(a) Court Security Act application

As is not in doubt, the Appellant's application for leave to record the proceedings is governed by the provisions of the Court Security Act.
Section 9(1) 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" and provides a maximum penalty of 200 penalty units or imprisonment for 12 months, or both.
Section 4 of the Court Security Act defines "Court" to include, in s 4(l), "the Civil and Administrative Tribunal".
Section 9(2) provides that s 9(1) of the Court Security Act: "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."
Section 4 of the Court Security Act defines "judicial officer" as a "judicial officer within the meaning of the Judicial Officers Act 1986 (NSW), or any other person "who is, or who alone or with others constitutes, a court".
Section 3(d) of the Judicial Officers Act 1986 (NSW) defines "judicial officer" to include "a judge of the District Court". By virtue of the definition of "Court" in the Court Security Act, the exception provided by s 9(2)(a) of the Court Security Act could be enlivened in the present circumstances.
The Appellant appeared to accept that s 9(2)(c) could not be enlivened. The "Court" has transcription services for that purpose.
Regulation 5 of the Court Security Regulation 2021 (NSW) provides for "permissible uses of recording devices." Relevantly for present purposes, and for the purposes of s 9(2)(e) of the Court Security Act, the use of recording devices is prescribed by Regulation 5(a) in the Court premises of the Civil and Administrative Tribunal with the approval of the Principal Registrar of the Tribunal.
Regulation 6 of the Court Security Regulation provides for the "permissible transmission of Court proceedings" in certain circumstances, none of which has, or could have present application.
In the circumstances, the only basis upon which the Appellant may have been granted permission to record the proceedings, or distribute any recording of them, is if s 9(2)(a) were enlivened.
In Kenny v Trip Up Deal Pty Limited [2021] NSWCATCD 60, the Tribunal closely considered ss 9(2)(a), 9A(2)(a) and 9B(2)(a) of the Court Security Act, at [30] to [45]. The Tribunal there observed [33] that the "starting point" pursuant to the Court Security Act is that there is a statutory prohibition on recording, transmitting or distributing the sound recordings of proceedings in accordance with the objects of the Court Security Act, which include, s 3(a) "to provide for the secure and orderly operation of courts." The Tribunal further accepted [34] that it could be accepted that "relevant considerations include issues of general security and the need to prevent people inappropriately photographing witnesses or recording proceedings. This might include protecting against inappropriate use through social media and other publication platforms".
The Tribunal accepted [35] that the "principle of open justice is relevant in determining whether permission should be granted" and that "guidance" as to the approach to be taken and how the principle of open justice might apply in determining a request for permission under the Court Security Act was provided by the decision in John Fairfax Publications Pty Limited v Ryde Local Council [2005] NSWCA 101; [2005] 62 NSWLR 512 (John Fairfax).
In John Fairfax, Spigelman CJ, with whom Mason P and Beazley JA (as her Excellency then was) agreed, said (at 29): "Neither the Claimants nor the public at large, have a right to access to court documents. The "principle of open justice" is a principle, it is not a freestanding right. It does not create some form of Freedom of Information Act applicable to courts. As a principle, it is of significance in guiding the court in determining a range of matters including, relevantly, when an application for access should be granted pursuant to an express or implied power to grant access. However it remains a principle and not a right."
In Smith v Harris [1996] 2VR 335; (1996) VicRp 70 at 350, Byrne JA of the Supreme Court of Victoria said that the "policy which demands that the judicial process be open to public scrutiny does not demand that the subject matter of that process be available except in so far as this is necessary for the public to scrutinise the process itself", a proposition with which Spigelman CJ agreed at 69.
The proceedings before the Appeal Panel on 12 August 2022 were open to the public, and thus open to "public scrutiny".
The Tribunal said [40] that the "principle of open justice is to allow the scrutiny of the decision making process and the court or tribunal entrusted to perform that role", and referred to the statement by Lonergan J in Application of Fairfax Media Publications Pty Limited; NSW Crime Commission v Yucel [2017] NSWSC 1779, at [16] that: "The policy to which I need to have regard is the requirement that the judicial process be open to public scrutiny, but only to the extent necessary for the public to scrutinise the judicial process itself … the principle of open justice needs to be balanced against other principles of justice which protect the interests of the parties to litigation."
The Tribunal observed that the principle was not "to be deployed so as to permit an aggrieved party to make use of evidence given in proceedings in a collateral attack on a party outside the hearing." The Tribunal referred to the Judgment of McHugh JA in John Fairfax & Sons Pty Limited v Police Tribunal of NSW [1986] 5 NSWLR 465, at 481, in which His Honour stated: "I think that the right to publish a fair and accurate report of court proceedings is a common law right of sufficient significance to fall within this preferred category. The importance which the common law has attached to a fair and accurate report of court proceedings is illustrated by the rule that its publication is not a contempt of court even though it is likely to prejudice the fair trial of pending proceedings … It is also illustrated by the rule that a fair and accurate report of court proceedings made in good faith is not an actionable defamation. Without the publication of the reports of court proceedings, the public would be ignorant of the workings of the courts whose proceedings would inevitably become the subject of the rumours, misunderstandings, exaggerations and falsehoods which are so often associated with secret decision making. The publication of fair and accurate reports of court proceedings is therefore vital to the proper working of an open and democratic society and to the maintenance of public confidence in the administration of justice."
The Tribunal also referred [43] to the Judgment of Toohey J in Esso Australia Resources Limited v Plowman [1995] HCA 19; (1995) 183 CLR 10 to similar effect.
Importantly for present purposes, the Tribunal said, at [44], that a: "third consideration is that once permission is given, the information is no longer subject to restriction or control by the Court or Tribunal under the CS Act. In this regard, there is no general or implied power to make orders that apply to all members of the public outside the confines of the proceedings: Attorney General v Leveller Magazine Ltd & Ors [1979] ACT 440 per Viscount Dilhorne at 456. Further, any condition that might be imposed under s58 of the NCAT Act to control use once permission is given could not bind the public at large."
The Tribunal referred [45] to other considerations which included: "(i) the purpose or purposes for which permission is sought; (ii) the possibility for misuse of information by the person who might be granted permission or others to who the information might be transmitted or published; (iii) the harm or possible detriment to the person whose information might be recorded, transmitted or published."
Finally, the Tribunal recorded [46], and we accept that "[t]he burden to establish such a grant is appropriate is on the applicant seeking permission to record, transmit or distribute a sound recording of proceedings in the Tribunal".
With respect to him, nothing to which the Appellant referred in his submissions provides support for his stated concerns if he is not permitted to record the proceedings.
The Appeal Panel was sitting in a hearing room in which a monitor was also present. At the commencement of the proceedings, as is customary, the Appeal Panel satisfied itself that the proceedings were being recorded. Particularly in view of the concerns expressed by the Appellant in support of his s 9(2)(a) application, the Appeal Panel was vigilant to ensure that, if there was any interruption to the recording of the proceedings, the monitor would have made that apparent to the Appeal Panel. At no time did the Appeal Panel receive any indication from the monitor that the proceedings were not being recorded in their entirety, or that anything said by members of the Appeal Panel or the Appellant, or the Respondent's solicitor was not being received and recorded clearly.
As is not in doubt, the sound recording of the proceedings is able to be accessed and listened to by parties to the proceedings.
In our view, the matters to which we have referred establish that everything which is said in the appeal will be recorded, and can be accessed, and this removes any necessity or desirability for a grant of permission to record the proceedings.
For the foregoing reasons, the Appellant has not discharged the onus he bears to establish that permission to record the proceedings should be granted pursuant to s 9(2)(a) of the Act.

The recusal applications

Immediately after the Appeal Panel informed the Appellant that his application to record the proceedings was refused, and that his request that reasons for that refusal be given immediately was refused, the Appellant raised the first of a number of recusal applications.
At the time the Appellant made his first recusal application, the material which was before the Appeal Panel had not been identified and no submissions with respect to the appeal had been heard.
In substance, the Appellant's grounds for recusal asserted that he was being denied procedural fairness, that the Appeal Panel would not fairly and impartially determine his challenges to the decision at first instance on the merits and that the Appellant doubted that the Appeal Panel had the competence or integrity to fairly determine his appeal. Although it is not entirely clear whether the Appellant asserted actual or apprehended bias, the Appeal Panel considered the Appellant's application on both bases, with particular to the latter basis, which involved a lower standard of satisfaction.
The Appeal Panel having not embarked upon the hearing of the appeal in any way, and not, in our view, having said anything to the Appellant in the course of debate with respect to his application to record the proceedings or his first recusal application itself which bore any relationship to the appeal, it is difficult to see how a recusal application, on either basis, could succeed.
In Collier v Country Women's Association of New South Wales [2018] NSWCA 36 ("Collier"), at 27, Gleeson JA referred to the summary of principles governing applications for recusal for actual bias as they were stated by the Court of Appeal in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at 68 to 73. By reference to Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 ("Jia Legeng"), in which the High Court held at [72] that where actual bias was asserted to arise in the form of prejudgement the appellant had to establish that, relevantly for present purposes, the Appeal Panel was "so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented".
In Jia Legeng, Hayne J noted at [185] the elements underlying the assertion that a decision maker has prejudged or will prejudge an issue, or the assertion that there is a real likelihood that a reasonable observer might reach that conclusion.
The first element to which his Honour referred was the contention that the decision maker has an opinion on a relevant aspect of the matter in issue in the particular case. Nothing said by either Member of the Appeal Panel would convey to a reasonable observer that the Member had formed any opinion on any aspect of the appeal.
The second element referred to by Hayne J was the contention that the decision maker will apply his or her opinion to the matter in issue. Having revealed no opinion with respect to the present appeal, there could be no question of the opinion being applied to the determination of the appeal.
The third element was that the decision maker will apply his or her opinion to the appeal without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Again, having no opinion with respect to the presence or absence of merit in the present appeal, and having not heard submissions from either party, a reasonable observer would not conclude that the third element was established.
Although it is not relevant for present purposes, Hayne J observed at [186] in Jia Legeng that it does not follow that, because there has been some expression of preconceived opinions by the decision maker, that the evidence and/or submissions advanced in support of the appeal will be disregarded.
Nothing to which we have been referred persuades us that, to the extent that it might be based on actual bias, the Tribunal should recuse itself on that basis.
The principles governing an application for recusal in reliance upon apprehended bias were summarised by Gleeson JA at [23] to [26] in Collier. His Honour there said: "22 The test for recusal is whether a fair minded lay person, with knowledge of the matters relied upon by Mrs Collier, might reasonably consider that the judicial officer might not carry out his judicial functions with an impartial and unprejudiced mind (Johnson v Johnson [2000] HCA 48 [2000] 201 CLR 488; Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 [2000] 205 CLR 337; Michael Wilson & Partners Limited v Nicholls [2011] HCA48 [2011] 244 CLR 427). 24 The test for apprehension of bias is objective. It does not require an assessment of the state of mind of the judicial officer in question, as is necessary on an inquiry about actual bias. 25 The application of the apprehension of bias principle involves two steps. The first is to identify what it is said might lead the judicial officer to decide a case other than on its legal and factual merits. The second is to articulate the logical connection between the circumstances identified in that matter and the apprehension that the case might not be decided on its merits (Ebner; Michael Wilson & Partners; British American Tobacco Australia Services Limited v Laurie [2011] HCA 2 [2011] 242 CLR 283). 26 Accordingly, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judicial officer might not bring an impartial mind to bear upon the issues that are to be decided. The question is not whether the judicial officer had in fact prejudged an issue."
At the time the Appellant made the first of his recusal applications, all that had occurred was that the Appellant had unsuccessfully sought an order pursuant to s 9(2)(a) of the Court Security Act, and unsuccessfully sought that the Appeal Panel immediately provide its reasons for such refusal. Nothing was said or occurred between the Appeal Panel indicating those matters and the first of the Appellant's recusal applications. The Appellant did not identify anything in reliance upon which he asserted that the impartiality of the Appeal Panel might be problematic.
Objectively, other than by accepting a series of propositions which, by their terms, could apply to any member of an Appeal Panel seized with determining the Appellant's appeal and application for leave to appeal, nothing raised by the Appellant provides a basis for finding that a "fair minded lay person, with knowledge of the matters relied upon" by the Appellant might reasonably consider that a Member of the Appeal Panel might not carry out the functions required of the Appeal Panel. In those circumstances, as the first requirement for recusal for apprehended bias is not established, the "logical connection" between it and the apprehension that the case might not be decided on its merits cannot be made out.
For the foregoing reasons, the first of the Appellant's recusal applications was refused.
The Appellant then made a number of further recusal applications, each, in substance, arising from the refusal of his previous recusal application and refusal to immediately provide reasons for such decision.
We have earlier referred to the provisions of the CAT Act which govern the provision of reasons. Contrary to the submissions of the Appellant, in view of the terms of s 62 of the CAT Act, the Appeal Panel did not deny the Appellant procedural fairness by refusing to provide reasons for its decision immediately after announcing it, nor do or say anything which could reasonably support any of the Appellant's subsequent recusal applications.

The Appellant's application pursuant to s 46 of the CAT Act

The Appellant filed an application pursuant to s 46 of the CAT Act seeking that the Appeal Panel call a number of witnesses identified by the Appellant in his application to give evidence in the appeal. The Respondent opposed the granting of the relief sought by the Appellant.
We refuse that application. Our reasons for doing so follow
Section 46 of the CAT Act provides that: "(1) The Tribunal may - (a) call any witness of its own motion, and (b) examine any witness on oath or affirmation or require evidence to be verified by a statutory declaration, and (c) examine or cross-examine any witness to such extent as the Tribunal thinks proper in order to elicit information relevant to the exercise of the functions of the Tribunal in any proceedings, and (d) compel any witness to answer questions which the Tribunal considers to be relevant in the proceedings. (2) If the Tribunal decides to call a person as a witness under subsection (1)(a), the Tribunal may - (a) seek to procure the voluntary attendance of the witness before it by notifying the person in such manner as it thinks appropriate in the circumstances, or (b) issue a summons (or direct a registrar to issue a summons) to compel the attendance of the person before it. (2) Nothing in subsection (1) enables the Tribunal to compel a witness to answer a question if the witness has a reasonable excuse for refusing to answer the question."
The Appeal Panel has not been referred to, or discovered for itself, any authority which provides support for the Appellant's application, or assistance with respect to this issue.
The explanatory note to the Civil and Administrative Tribunal Bill 2012 sheds no light on the reasons for the inclusion of s 46 in the CAT Act. The second reading speech in the Legislative Assembly of the New South Wales Parliament of 22 November 2012 does not shed any light on the reasons for the inclusion of s 46 in the CAT Act. Nor does the second reading speech in the Legislative Council of 27 February 2013. Neither the Supreme Court Act 1970 (NSW), nor the District Court Act 1973 (NSW), nor the Local Court Act 2007 (NSW) confers the power to call witnesses on the Court's own motion. The power in s 46 of the CAT Act replicates the former s 83 of the Administrative Decisions Tribunal Act 1997 (NSW) (now renamed the Administrative Decisions Review Act 1997 (NSW)). It is a power most appropriate for use in merits review and inquisitorial proceedings. It may be inferred that when the Administrative Decisions Tribunal was abolished, and this Tribunal created, the legislature decided to confer some of the former Tribunal's powers on this Tribunal.
As is not in doubt, the Appellant could have sought the issue of a summons to each of the witnesses referred to in his application pursuant to s 48 of the CAT Act. The Appellant has not done this, or advanced any basis upon which he could reasonably decline to seek the issue of a summons for each of those persons.
Nothing to which the Appellant has referred identifies the potential relevance in this appeal of any evidence which might be given by the persons who he seeks to have the Appeal Panel call as witnesses. To the extent that the Appellant's motivation for seeking to have the Appeal Panel accede to his application emerges, nothing to which the Appellant has referred demonstrates that any evidence which might be given by the persons who he seeks that the Tribunal call as witnesses has, or could have apparent relevance to the appeal.
It is unsurprising that there do not appear to be any recorded cases in which the power of the Tribunal to call a witness pursuant to s 46 of the CAT Act has been considered. There are numerous reasons why the power is likely to be exercised sparingly, and only in rare cases in which the Tribunal's processes appear to have been abused, or its authority challenged. Even in those circumstances, in view of the terms of s 73 of the CAT Act, recourse to s 46 would be improbable.
The ability to seek the issue of a Summons to compel the attendance of a witness whose evidence a party considers may be relevant to the issues for determination provides the most obvious and appropriate means by which a party wishing to do that should proceed. Significantly, other than in cases where a witness called by the Tribunal pursuant to s 46 appears voluntarily, the summons provisions of the CAT Act and Regulations need to be successfully invoked to achieve that objective.
Inherent in the Tribunal, or the Appeal Panel exercising the power created by s 46 of the CAT Act in the present circumstances is a very real risk that so doing would result in the decision-maker being seen to be "descending into the arena", thereby giving rise to, at least, a reasonable apprehension of bias (Jones v National Coal Board [1975] 2 QB 55; The Queen v Colin Bouwer [2002] NZCA 146; Serafin v Malkiewicz & Ors [2020] UKSC 23).
It is difficult to imagine in what circumstances an Appeal Panel would purport to exercise the power conferred by s 46 of the CAT Act, and unnecessary to speculate in any event, given that nothing to which we have been referred persuades us that doing so would be appropriate. Without suggesting that anything referred to by the Appellant would, or should incline a Registrar to issue a summons to any of the persons named by him, if the Appellant wishes to call any witness in the proceedings, that is the course which he should pursue.

Order 1. The Appellant's application for leave to record the hearing of the proceedings is dismissed. 2. The Appellant's applications that Principal Member Coleman recuse himself are dismissed. 3. The Appellant's applications that Senior Member Lucy recuse herself are dismissed. 4. The Appellant's application that the Tribunal call witnesses under s 46 of the Civil and Administrative Tribunal Act 2013 (NSW) is dismissed.

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: 09 September 2022

Administrative Decisions Tribunal Act 1997(NSW)

Neither the Supreme Court Act 1970(NSW)

At a glance

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Legislation Cited (10)

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Cited By (4)