Zonnevylle v Secretary, Department of Education

NCAT Appeal Panel|2023-07-07

Introduction

By Notice of Appeal filed 3 August 2022, the Appellant appeals the decision of the Tribunal in Zonnevylle v Secretary, Department of Education [2022] NSWCATAD 187 (Decision).
In that Decision, the Tribunal affirmed the Respondent's determination under the Government Information (Public) Access Act 2009 (NSW) (GIPA Act) to refuse access to certain information, and that no further information was held.
The proceedings have taken a protracted course.
The Appellant filed multiple interlocutory applications since the filing of the Appellant's Notice of Appeal. Those applications have been dealt with by the Appeal Panel over the course of two days of hearing, with all applications being dismissed for the reasons set out in Zonnevylle v Secretary, Department of Education [2023] NSWCATAP 53 and Zonnevylle v Secretary, Department of Education [2023] NSWCATAP 80.
By orders made on 19 May 2023, the Appeal Panel directed that the Appellant file any material in support of his appeal by 2 June 2023.
A bundle of documents from the Appellant presented as the Appellant's submissions was received by the Appeal Panel.
We note that the Respondent in its written submissions in reply lodged on 27 June 2023 stated that it was responding based upon its understanding of the Appellant's submissions based upon the written material filed and the Notice of Appeal.
We assume this continued to be the position during the oral hearing of the appeal.
Subsequent to the hearing of the appeal, the Appellant, without the leave of the Tribunal, purported to file a vast amount of additional material.
A party has no right to file submissions after the conclusion of a hearing of an appeal without the leave of the Appeal Panel. No leave has been sought by the Appellant to rely upon this late material. We have not received any submissions from the Respondent replying to this material.
In our view, for us to have any regard to this additional material would prejudice the interests of the Respondent and would not be conducive to the just, quick and cheap resolution of the dispute between the parties.

Extension of time for the filing of the Notice of Appeal

At the hearing, the Appeal Panel raised the issue of whether or not the Appellant required an extension of time for the filing of the Notice of Appeal. The Appellant had sought an extension of time.
The Notice of Appeal before the Appeal Panel is date stamped as having been received on 6 July 2022. As agreed by the Respondent that would make the appeal one day late.
The Appellant contended however that it was posted on 4 July 2022 and that he had evidence of it being received on 5 July 2022.
The Respondent did not oppose leave to extend time for the one day if required.
It may well be that the Appellant's statement of the factual position is correct. In light of the circumstances, the Appeal Panel decided that the just, quick and cheap resolution of the issue would be to grant an extension of time to the extent required for lodging the Notice of Appeal to 6 July 2022.

The hearing before and the decision of the Tribunal at first instance

The Appellant applied to be permitted to audio record the proceedings on his personal recording device. The Tribunal refused the application.
The Appellant then asked the Senior Member to recuse himself for bias which the Senior Member declined to do.
The Appellant then asked for oral reasons for the rulings given by the Tribunal. The Tribunal advised the Appellant that it would provide written reasons for the two refused applications as part of the Tribunal's reserved decisions on the application for review.
The Tribunal had prior to the hearing received an email from the Appellant which stated in part, 'the Tribunal is required to confirm that a valid appeal application is been received which is related to these proceedings. The Tribunal is required to adjourn today's hearing pending the appeal decision'.
The Tribunal informed the Appellant of advice the Tribunal had received from the Registry that morning that there is no valid appeal before the Tribunal related to these proceedings. The Tribunal offered to briefly adjourn the proceedings to make further enquiries with the Registry concerning the appeal that the Appellant said he had lodged.
The Appellant declined that offer.
Thereupon, the Appellant raised his voice, accused the Senior Member of lacking integrity, said that he refused to go on with the hearing and hung up on the telephone.
The Respondent submitted that there was sufficient material before the Tribunal to proceed to its decision on the application for review and that the Tribunal ought to do so. Having reviewed the documentation, the Tribunal was satisfied that it was the appropriate course of action in the circumstances to proceed with the application.
The Tribunal then dealt with the material that was before it.
The Tribunal then delivered its reserved decision.
The Tribunal recorded its reasons for declining to permit the audio recording of the Tribunal proceedings at [17]-[18] as follows: 17 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 ins 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. 18 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.
The Tribunal then considered the application that the Senior Member recuse himself for bias. This was dealt with by the Tribunal at [19]-[20] as follows: 19 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 [2011J HCA 48; (2011) 244 CLR 427 at [67], per Gummow ACJ, Hayne, Grennan and Bell JJ. 20 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.
The Tribunal also dealt with the application by the Appellant that the Tribunal provide oral reasons for its procedural decisions at the hearing. The Tribunal did this at [21]-[23] as follows: 21 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. 22 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. 23 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.
The Tribunal then dealt with the eight items that remained in dispute. The Appellant's application had been filed on the basis of there being a 'deemed refused' by the Respondent. After that the Respondent produced some documents and the Tribunal dealt with the remaining eight items that remained in dispute.
The Tribunal decided that the correct and preferable course was to affirm the decision of the Respondent not to produce those remaining eight items.
The order of the Tribunal was as follows: 1. The Tribunal affirms the Respondent's decision of 14 and 18 February 2022.

The Notice of Appeal

The Appellant prepared his own grounds of appeal and submissions. It is obvious they were prepared without legal assistance. Accordingly, we will act consistently with the approach of the Appeal Panel recorded in Ros v Commissioner of Police [2020] NSWCATAP 70 at [21]: In order to assist the appellant as a self-represented litigant in the articulation of his grounds of appeal, the Appeal Panel has considered whether it can discern any questions of law as grounds of appeal from the Notice of Appeal, the appellant's submissions and the first instance decision.
As an unrepresented litigant, the Appellant faces not only difficulty in identifying the difference between a question of law and any other question for determination on appeal, but also the discipline of putting forward discrete and intelligible claims or submissions which could ground the Appeal Panel finding that the Tribunal had fallen into any relevant error.
In this regard we note that the Appellant's submissions and grounds of appeal travel very widely and involve a great deal of scandalous material, including allegations made against various people. We see little point in going through these issues which have no relevance or bearing on the outcome of our determination as to whether or not the Tribunal erred in the making of its decision and orders.
In our view, it is conducive to the just, quick and cheap resolution of this appeal that we seek to discern the intelligible potential grounds of complaint raised by the Appellant being those that could possibly have relevance to our consideration as to whether or not the Tribunal erred in its decision and orders.
Taking the most beneficial view of the Appellant's submissions and grounds that we can, we discern the following potential areas of complaint that might have relevance on an appeal of this nature as follows: 1. That the Tribunal erred, including by failing to afford the Appellant procedural fairness, by failing to adjourn the hearing of the proceedings pending determination of his 'alleged appeal'; 2. That the Tribunal erred in the manner in which it considered the Respondent's 'deemed refusal' under the GIPA Act; 3. That the Tribunal failed to address the Appellant's allegations of misconduct and offences under the GIPA Act and conduct contrary to core values under the Government Sector Employment Act 2013 (NSW) (GSE Act) in its determination of the Appellant's review application; and 4. That the Tribunal denied the Appellant procedural fairness by determining the matter in his absence, when it was on notice that he wished to cross-examine a witness.
The general principles applicable to our obligation to provide adequate reasons have been explained in recent decisions, including New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [65]-[77]; Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182 at [215]-[219]; Meacham v Commissioner of Police [2020] NSWCATAP 107.
As explained by Bell P in Orr at [73]-[77], a detailed exposition of every element of the arguments put forward by an appellant is not necessary. Rather, what is required is a basic explanation of our view on the 'core controversies' to the extent they are relevant and put forward by the Appellant.
In this regard the fact that the Appellant is not legally represented does not alter this basic principle. As McCallum JA in Mendonca v Legal Services Commissioner [2020] NSWCA 84 held at [21]: [T]here may be cases in which it is appropriate for the Court to give the correct legal construction to an arguable point poorly articulated by a self-represented litigant. However, the Court is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point.
In our view, the description 'lengthy, unconstructed assertions and misconceptions' aptly summarises the vast majority of the Appellant's grounds of appeal and written and oral submissions. We have wherever possible sought to give a beneficial construction to these grounds of appeal and submissions and to distil the possibly relevant contentions.

Refusal of adjournment application pending determination of the 'appeal'

We take it to be that the Appellant complaints about the way in which the Tribunal considered his application to adjourn the proceedings pending prosecution of his alleged appeal.
We accept that the Appellant's submissions focus, to a degree, on the Tribunal's consideration of whether a filing fee had been paid in connection with the purported appeal.
However, with respect to the Appellant, this is not a matter that is before the Tribunal for determination, or the subject of any decision by the Tribunal. Accordingly, we will consider the submissions in this regard put forward by the Appellant as relevantly raising whether the Tribunal should have adjourned the scheduled hearing to allow for determination of his alleged appeal.
We note that the Tribunal's decision to refuse the Appellant's adjournment application is an interlocutory decision which the Appellant requires leave to appeal: see s 80(2)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
The principles governing the grant of leave to appeal generally, and with respect to interlocutory decisions are well known: see, for example, Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35].
In our view, there is no basis for the grant of leave to appeal in respect of this part of the Tribunal's decision. In our view, not only is there no obvious error, the Tribunal's decision appears to be, with respect, perfectly correct.
The circumstances of the Appellant's adjournment application were outlined in the Tribunal's reasons at [6], [10]-[13] and [52] as follows: 6 The covering email of 9.04am 6 May 2022 states, in part, 'The tribunal is required to confirm that a valid appeal application has been received which is related to these proceedings. The tribunal is required to adjourn today's hearing pending the appeal decision". 10 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. 11 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. 12 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. 13 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. 52 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.
We have also been assisted by the transcript of the hearing which the Respondent has filed of the proceedings of 6 May 2022.
The factual circumstance in summary appears to be as follows: 1. The evening before the scheduled hearing, the Appellant forwarded the Tribunal an application seeking to adjourn the hearing of his administrative review application on 6 May 2022 to allow for determination of an appeal he claimed had been filed with the Tribunal. In the course of hearing the Appellant's application for permission to record the hearing (which was refused), the Appellant raised his concerns as to the matter proceeding in all of the circumstances where there was, as the Appellant put it, 'an appeal in play'. 2. After taking some clarification from the Appellant as to what he was referring to, the Senior Member informed the Appellant that he had been advised by the Registry that there was an issue with the filing of his appeal relating to payment of fees. The Tribunal offered to adjourn proceedings to seek further information or clarification of this issue. 3. The Appellant declined this offer, and instead withdrew from the hearing by hanging up the telephone connection. 4. The Respondent set out its understanding of the position with respect to the purported appeal as reflected in the transcript, as follows: a. that the appellant had served a document on 19 March 2022 purporting to be a Notice of Appeal challenging various interlocutory orders and case management decisions made in eight separate proceedings before the Tribunal (the Tribunal confirmed that this document had been stamped as being received on 22 March 2022); b. that the respondent had never received any correspondence from the Tribunal indicating that the document had been accepted for filing or that it was currently an active appeal; and c. that the types of orders that the purported appeal sought to challenge were orders that had been made in the context of case management of the proceedings, including refusal of permission to record, refusal of various Tribunal members to recuse themselves and associated refusals to provide oral reasons at the time of the decisions.
At the hearing, the Tribunal then confirmed that the Respondent's legal representative's summary of the position was accordant with its review of the documents.
We note that it is in fact the case that the purported appeal to which the Appellant refers has never been progressed or prosecuted as an active appeal before the Tribunal.
In our view, there was no error on the part of the Tribunal in continuing to deal with the hearing on 6 May 2022. In this regard we note, that even though the Appellant seeks to contend otherwise, there was in fact no active appeal on foot with respect to the proceedings.
Accordingly, there was no need for an adjournment.
Further and in any event, the Appellant voluntarily withdrew from the hearing and refused to engage with the Tribunal any further with respect to his adjournment application.
We note the guiding principle, set out in s 36(1) of the NCAT Act to 'facilitate the just, quick and cheap resolution of the real issues in the proceedings.' In our view, any adjournment would not have been consistent with this guiding principle.
Accordingly, we dismiss the Appellant's contentions in this regard and any related grounds of appeal.

Identification of the 'deemed refusal' as the relevant reviewable decision

To understand these submissions, it is necessary to trace the history of the review application.
The Appellant's application for administrative review involved a case of a deemed refusal by the Respondent to deal with this application for access to information: see the Decision at [1].
This 'deemed refusal' occurred by reason of s 63 of the GIPA Act because the Respondent had failed to determine the Applicant's access application on remittal by the Tribunal within the relevant period prescribed by the GIPA Act: see the Orders made in Zonnevylle v Department of Customer Service, Zonnevylle v Secretary, Department of Education [2021] NSWCATAD 35.
What then occurred was that the Respondent, under cover of letters of 14 and 18 February 2022, released information to the Appellant. With the release of such information the Respondent filed its evidence and submissions.
This included the affidavit of Ms Hargans. This affidavit set out certain evidentiary material with respect to the Respondent's response to each of the eight categories of information requested by the Appellant.
In the result, the release of the information, along with the evidence of Ms Hargans, constituted the Respondent's late determination of the Appellant's access application.
In this way the Respondent's decision was: (a) To release certain information; (b) To refuse access to certain information within the documents released, with such information being redacted from the released documents; and (c) To decide that no information was held with respect to certain categories of information requested by the Appellant.
The Tribunal's task was to decide what 'the correct and preferable decision is having regard to the material then before it': see s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act).
Because the obligation of the Tribunal is to decide the correct and preferable course having regard to the material 'then before it' the original deemed refusal which gave rise to the Tribunal's jurisdiction on appeal, became in substance, replaced by the subsequent release of information by the Respondent to the Appellant.
The material so released, along with the evidential submissions of the Respondent, was the material that the Tribunal was required to take into account in undertaking its task under s 63 of the ADR Act.
It would appear to the Appel Panel, that the complaint being made by the Appellant is that the Appellant took issue with the Tribunal, in conjunction with the course put forward by the Respondent, in deciding the balance of the issues between the parties rather than considering the original deemed refusal and the alleged misconduct of the Respondent in failing to respond within time.
To put it simply, we understand the Appellant submits the Tribunal should have considered the matter frozen as at the time of the deemed refusal rather than give the Respondent the benefit of its release of documents or material subsequent to the deemed refusal.
As we understand it, the complaint by the Appellant is that the Tribunal failed to deal adequately with his submissions that the failure to meet the prescribed time frames amounted to allegations of misconduct which needed to be dealt with.
For the reasons discussed below, this was not a relevant consideration. As we understand it, the Appellant complains that the Tribunal ought to have focused on the prescribed time frames for answering the original application and the alleged reasons for failing to meet the time frames and ought to have considered whether or not the officers acted appropriately in failing to meet the prescribed timeframes.
In other words, by not focussing on the deemed refusal, and instead focussing on the outstanding issues in respect of the balance of the documents sought after partial disclosure, the Tribunal did not address what the Appellant regarded as a key matter that ought to be addressed.
In our view, there is no discernible error in the manner in which the Tribunal approached its task in weighing up the material before it and deciding the Appellant's application for administrative review.
Accordingly, we dismiss the Appellant's grounds of appeal that relate to these contentions.

Failure of the Tribunal to properly consider the Appellant's allegations of misconduct

As discussed by us previously, a great deal of the Appellant's submissions concentrated on disparaging statements about various persons including making serious allegations of misconduct and breaches of the law.
The persons the subject of these allegations ranged widely. It included personnel at the Registry of the Tribunal and Members of the Tribunal.
Essentially, such matters fall outside the scope of the Tribunal's jurisdiction and are simply bad at law.
This has been remarked upon previously in various decisions of the Tribunal with respect to the Appellant: see Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAD 108 at [42]-[57], [67], Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232; Zonnevylle v Secretary, Department of Education [2021] NSWCATAD 361.
In our view, no more need be said about these submissions.
A subset of these allegations of misconduct made by the Appellant was directed to the Respondent and its failure to determine the Appellant's application for information within the time frames required by the GIPA Act.
In this regard, the Appellant sought to place particular emphasis upon the Government Sector Employment Act 2013 (NSW) (GSE Act) and in particular s 7 and the concept of Government Sector Core Values.
As we understood the Appellant's submission, he contended that the Tribunal failed to take into account 'relevant' or 'mandatory considerations' being the commission of GIPA Act offenses perpetrated by the Respondent's employees or officers and the breaches of the GSE Act by such employees and officers.
There are two fundamental flaws in this submission.
First, the task of the Tribunal is to determine the correct and preferable decision having regard to the material before it. The Tribunal did not have any jurisdiction, nor is it part of its task under the GIPA Act, to determine or make findings of unlawful conduct or for offences under the GIPA Act.
Second, and more fundamentally, there was a complete absence of any evidence supporting any claims of breaches of the GIPA Act, or other misconduct.
Accordingly, the Appeal Panel dismisses the grounds of appeal that relate to these contentions.

Failure to afford procedural fairness

As the Appeal Panel understands it, the Appellant contends that the Tribunal failed to afford procedural fairness, and, in particular, because the Appellant did not have the opportunity to cross-examine Ms Hargans.
The main flaw of this submission is the fact that the Appellant in fact had the opportunity to cross-examine Ms Hargans at the hearing on 6 May 2022. Ms Hargans was available and could have been cross-examined if the Appellant had availed himself to this opportunity and not voluntarily withdrawn from the hearing.
Prior to that point in time, the Tribunal afforded the Appellant ample opportunity to be heard. It allowed for the provision of written material and an oral hearing was held at which the Appellant was in a position to make any oral submissions he wished.
We have reviewed the transcript of the hearing on 6 May 2022 and it is apparent that it was only the Appellant's own conduct that prevented him from having any greater involvement in the proceedings, including being able to cross-examine Ms Hargans.
The principle is clear, that no denial of procedural fairness arises in a case where a litigant by reason of his own voluntary decision, decides to withdraw from the hearing. For example, the principle was stated by the Supreme Court of Victoria in Cathcart v Wang [2021] VSC 685 at [136] as follows: Sometimes, what might appear to be a lack of procedural fairness will, in truth, be no such thing because the affected party may be the author of his or her own misfortune. A party might deliberately hang up during a phone hearing, or switch off a computer in a Zoom hearing, or walk out of the hearing room in a huff during an in-person hearing. While each case will turn on its own facts, this Court would be slow to countenance the grave step of setting aside an otherwise error-free order when a party has behaved in that fashion but thought better of it later.
Further, some analogy can be drawn from the remarks of the Court of Appeal in Collier v Attorney General for NSW [2021] NSWCA 16. In that case the plaintiff terminated her participation in the telephone hearing by hanging up. The Court found at [19]-[20] as follows: Before the primary judge Mrs Collier was granted leave to appear by telephone, which she did. She agrees that she terminated the call and thus her participation in the hearing. Such an action is equivalent to walking out of court, or not returning after an adjournment. Sometimes such conduct is explained by, for example, a medical emergency. However, a party, including an unrepresented party, cannot terminate proceedings by simply failing to attend without excuse or justification. If an excuse or justification is proffered promptly, it may on occasion result in a hearing being reopened or resumed. However, a party who acts in this way without justification cannot complain of procedural unfairness if the judge decides that the hearing should proceed in his or her absence. Were it otherwise, the court process could be manipulated at the whim of a disaffected party, with consequential prejudice to other parties in the proceedings and, consequentially, those involved in other proceedings. Although Mrs Collier appeared to be suggesting that there was error on the part of the primary judge in proceeding once she had terminated the telephone call, that was not so. The judge immediately took steps to seek to re-establish contact, no doubt to ensure that the disconnection was not accidental or the result of a technical fault. Concededly, in this case, it was deliberate on the part of Mrs Collier. In the circumstances, and having sought to re-establish contact, there was no unfairness or other form of error involved in the judge proceeding with the hearing.
Finally, it is worth referring to the remarks made by the Supreme Court in Antonio Di Liristi v NSW Public Trustee [2021] NSWSC 1347. Whilst the facts are not directly analogous, the general observations made by the Court (at [164]) are instructive as follows: As a general comment I would wish to state that both Tribunal members acted with consummate professionalism. The plaintiff, even though a litigant in person, made it abundantly clear in both hearings when he was not arguing belligerently with someone or other that the Tribunal was in effect an obstacle in his way to the Supreme Court. Apart from the obvious disrespect clearly intended by the exchanges only some of which I have made reference to, it ill behoves any person, litigant in person or otherwise claiming a denial of procedural fairness to so blatantly insult and obstruct the very body attempting to conduct a hearing so as to render almost futile the very right he now asserts he was denied. The plaintiff in both hearings displayed a clear contempt for the Tribunal and its workings. When he was not insulting the Tribunal he was insulting his brother, the Trustee and Guardian and/or his parents' representative. His attitude showed a complete disregard for any genuine desire to be accorded a right simply to be heard. Rather he promised in both Tribunal hearings an appeal to the Supreme Court would be pursued so the Tribunal could be put in its place. A hearing before the Tribunal was it seems in fact the last thing he wanted.
In conclusion, the Appeal Panel is of the opinion that there has been no denial of procedural fairness arising from the Tribunal proceeding to determine the Appellant's application without the Appellant having cross-examined Ms Hargans or otherwise in the absence of the Appellant.
Accordingly, we dismiss the grounds of appeal which relate to this contention.

Conclusion

To the extent the Appellant requires leave to bring his appeal, we refuse to grant leave to appeal.
Otherwise, the appeal will be dismissed.

Disposition

The orders of the Appeal Panel will be: 1. To the extent required, extend the time for the filing of the Notice of Appeal to 6 July 2022. 2. Leave to appeal is refused. 3. Notice of Appeal 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: 31 July 2023

Government Information (Public) Access Act 2009(NSW)

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Judgment (11 paragraphs)

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Legislation Cited (5)

Cases Cited (26)

Cited By (2)