Zonnevylle v Secretary, Department of Education

Information / Documents sought: 1. Detailing DEC authorizing the engagement of: a. Crown Solicitors Office (CSO) or their officers a. any barristers b. any lawyers (Hicksons etc) c. any other external legal services / consultation requiring the use of public funds concerning any issues / matters concerning Zonnevylle / issco / isscoed 2. Detailing public funds used for any matter related to Zonnevylle between 2010 & 2019 a. Invoices and other documents for services of any barristers b. Invoices and other documents for services of any lawyers c. Invoices and other documents for services of CSO / CSO officers c. Invoices and other documents detailing any other costs associated with the above (NCAT application fees,consultation fees,other services,etc) concerning Zonnevylle / issco / isscoed 3. Ref.DEC Alerts & Notices List (page 7 & 8 GIPA 19 235) a. All email activity from ISSCOED email addresses between 2010 & March 7, 2013 b. All email activity from ISSCO email addresses between 2010 & March 7, 2013 c. All emails to the dept between 2010 & March 7,2013 where any email address associated with: issco.co; issco.com.au isscoed.com; isscoed.com.au has been cc'd to the dept. d. DOC 18/29221 & any associated / related documents 12 months prior to DOC18/29221 concerning Zonnevylle / issco / isscoed e. Correspondence / emails to & from Ron Paras concerning Zonnevylle / issco / isscoed between 2016 and 2019 4 a. Minutes / correspondence / documents related to Alerts & Notices List Committee Nov.2,2017 concerning Zonnevylle / issco / isscoed b. Correspondence between i. Andrea Patrick ii. Victoria Abigail iii. Ron Parras iv. any other committee members concerning Zonnevylle / issco / isscoed 6 months prior & 6 months after the above committee meeting. c. Documents identifying all above committee members Formal GIPA access application for personal information 5. All blocked emails sent from NSW schools or Dept.of Education workplace email addresses to any email address associated with the applicants websites: issco.com.au ; isscoed.com.au ; sciencelabsupplies.com.au ; sciencesupplies.com.au To include all attachments Between: a. 2015 and 2016 b. 2016 to 2017 c. 2017 to 2018 d. 2018 to 2019 e. Jan 2019 to July 2019 6. All documents held by DEC for evidence of either: i. spamming ii. fraudulent activities iii. phishing or any other activities from Zonnevylle / issco / isscoed including email addresses: sales@issco.com.au ; sales@isscoed.com.au ; support@issco.com.au support@isscoed.com.au 7. Emails between: a. Joanne Bailey b. Paul Hopkins c. Emma Malcolm d. Brett Kyle e. Peter Riordan concerning Zonnevylle / issco / isscoed between f. 2012 - 2013 g. 2013 - 2014 h. 2014 - 2015 8. Documents used / submitted by Joanne Bailey,Chief procurement Officer to the NSW Police for a complaint against Zonnevylle / issco / isscoed 9. Reference GIPA application database excel spreadsheet Spreadsheet entries between: a. 2010 - 2011 b. 2011 - 2012 c. 2012 - 2013 d. 2013 - 2014 e. 2014 - 2015 f. 2015 - 2016 g. 2016 - 2017 h. 2017 - 2018 i. 2018 - 2019 with only the following entries: GIPA File No. Legal File No. Case officer Search officer name Total amount Processing hours Decision maker name 10. List of all GIPA applications made on DEC between Dec 31,2015 & Dec.31,2018 with a description of the information sought access to (prefer acces to be a document in electronic form (excel database) with GIPA number & as many fields as possible a. I request confirmation that this information can be provided as an excel file (excel database) b. I require advice as to what fields are required to be excluded and reasons why they are to be excluded Alternatively I request access to records which provide substantially the same information (in electronic form such as an excel file) NOTE: These records will also include my own personal access applications"

1. It is readily apparent from the terms of the "information/documents sought" that, in most instances, the Respondent would have needed to make extensive enquiries, and exercise judgement in order to determine what documents fell within the scope of each of the 10 categories of information or documents sought. That is particularly so given that the request covered a period of 9 to 10 years, from 2010 to 2019. It follows from the nature of the enquiries and exercise of judgement required of the Respondent that considerable time and effort would have been required to first determine what it was that was being sought and secondly, to determine whether such documentation existed.
2. The Appellant's review application contained a "note" requesting that "the processing time be advised for each item/sub item so that should any rescoping be required, the Applicant can make an informed decision". The Appellant concluded the review application by stating that he: "claims those rights given under the GIPA Act: 1 An enforceable right to access government information 2 The right that the Respondent's officers act and exercise their functions in accordance with their conduct obligations 3 Conduct which does not breach the GIPA Act 4 Conduct which promotes the object of the Act".
3. The Appellant attached a blank Tribunal form to his application. That document could not advance the review application.
4. In submissions in support of the dismissal application dated 19 October 2020, after setting out the procedural history, which the Tribunal accurately reiterated in the reasons for its decision of 3 December 2021, the Respondent referred to the, at that time, recent decision of the Court of Appeal to which the Tribunal earlier referred. Under the heading "The Applicant's dominant purpose in maintaining these proceedings is a collateral purpose and therefore vexatious" the Respondent submitted at [17]-[43] the basis upon which it submitted at [32] that the "grounds of review are, almost word for word, identical to those which were summarily dismissed as constituting an abuse of process in Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAD 108". That decision, on appeal from the Appeal Panel, was affirmed by the Court of Appeal at [38]. As will be seen, save to the extent that, albeit not materially, the Appellant's requests have remained essentially unchanged, that submission has force in the present circumstances.
5. The Respondent conceded at [40] that it was "possible, with considerable effort, to extract aspects of the submissions (of the Appellant) which are directed to a matter within jurisdiction" but that, where that occurred, such as with complaints about processing times, the Appellant's allegations were "infected with allegations of offences and corruption". As will be seen, that submission had merit. That issue was submitted at [41] to have "dominated all case conferences and much of the procedural correspondence in the proceedings". Although that submission appears well founded in fact, it is of quite limited relevance for present purposes.

The Appellant's submissions and grounds of appeal

1. As we have earlier recorded, the Appellant filed more than 20 documents in purported support of his appeal. The overwhelming bulk of the contents of those documents repeated the claims of corrupt conduct against officers or members of the Respondent, the Respondent's solicitors and the Tribunal in terms which were in some instances identical, in others almost identical with complaints which he had made in proceedings decided against him by the Tribunal in 2019 which decision, as the Tribunal recorded on 3 December 2021, was ultimately upheld by the Court of Appeal. As those documents do not raise matters which could result in leave to appeal being granted, the Appeal Panel does not perceive that it is obliged to engage with them in order to discharge its obligation to adequately reveal the process of reasoning which led to its decision (Resource Pacific). That finding is made only after the Appeal Panel has taken the not inconsiderable time required to read the documents.
2. In his submissions filed 22 February 2024 the Appellant reiterated many of his previous complaints, and made additional complaints about the Senior Member who determined his review application on 3 December 2021. After recording the terms of a number of provisions of the GIPA Act, the Government Sector Employment Act 2013 (NSW), the ADR Act and the CAT Act, the Appellant included in his submissions an email of 18 February 2024 to the Members of the Appeal Panel which was part-heard in hearing his appeal recording, accurately, that we had not responded to his emails of January 20 2024 or February 9 2024. Quite apart from the inappropriateness of our doing so, nothing raised by the Appellant in any of those emails raised anything to which, as a matter of procedural fairness, the Appeal Panel should or may have considered it appropriate to respond.
3. The Appellant cited material which was said to be from the Independent Commission Against Corruption ("ICAC") website and (in Part B) under the heading "Appeal on question of law", set out challenges to the decision of the Tribunal of 3 December 2021 which raised matters requiring the Appeal Panel's consideration.
4. As is evident from their terms, most of the complaints articulated in the Appellant's Notice of Appeal cannot advance his application for leave to appeal, as they are no more than a reiteration of complaints about the conduct of the officers of a number of entities which the Tribunal has consistently, and correctly found do not fall within its jurisdiction.
5. Rather than attempt to summarise them, the Appellant's grounds of appeal are reproduced as follows, without correction of typographical errors: "4.B. GROUNDS FOR APPEAL 1. a. This appeal is made on grounds of questions of law arising from these proceedings b. Leave is sought to appeal the CAT Act Sect.55. 1.b decision 2. Questions of law arising from proceedings: a. Did Higgins properly interpret the words of the GIPA Act? i. Sect.3 requires of both the tribunal & the respondent 2.(a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate & encourage,promptly & at the lowest reasonable cost, access to gov. info. The applicant was clearly forced to seek an unwanted & unnecessary review application from a defective decision that the application was invalid ii. Sect.100 (1) A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision The applicant has legitimate & justified grounds for being aggrieved by the defective decision forcing the applicant to unwanted & unnecessary review application (That defective decision was required to be the correct & preferred decision) iii. Sect.50 Withdrawal of application (1) A person who has made an access application may withdraw it at any time before notice of the agency's decision on the application is given to the person Were the defective decision was the "correct & preferred" decision (supported by the requested evidence), the applicant had the right to withdraw from the application remitted decision (required by the tribunal) at any time. This would have been a just,quick,cheap solution for the tribunal & all parties iv. Sect.60 (3B) Any consideration under subsection (3A) must, on balance, outweigh - (a) the general public interest in favour of the disclosure of government information, and (b) the demonstrable importance of the information to the applicant, including whether the information - (i) is personal information that relates to the applicant, or (ii) could assist the applicant in exercising any rights under any Act or law. The information sought access to is substantially personal information & of significant importance to the applicant. On the applicants reading of Higgins decision, this information is not made clear (if in fact stated at all) v. Sect12 (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. [Note: The following are examples of public interest considerations in favour of disclosure of info. (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of any agency) had engaged in misconduct or negligent, improper or unlawful conduct. Higgins made no reference to the information sought access to in her decision and it's relevance to Sect. 12 v. Sect.16 Agencies to provide advice and assistance (1) An agency must provide advice and assistance to a person who requests or proposes to request access to government information, for the purpose of assisting the person to access, or seek access to,information that is or may be made publicly available. (2) An agency must provide the following specific advice and assistance to a person who requests access to government information: (a) advice as to whether or not the information is publicly available from the agency and (if it is) how the information can be accessed, (b) advice on how to make an access application for the information if the information is not publicly available from the agency but appears likely to be held by the agency, (c) if the information appears unlikely to be held by the agency but appears likely to relate to the functions of some other agency, the contact details of the other agency, (d) the contact details of the Information Commissioner and advice on the availability of and how to access any information published by the Information Commissioner that it appears may be relevant to the person's request. (3) An agency is only required to provide advice and assistance under this section that it would be reasonable to expect the agency to provide. A correct & preferred interpretation of the above is that (1). PRINCIPLE: An agency MUST provide advice & assistance (to promote the publics enforceable right (2). MINIMUM REQUIREMENTS of those obligations (3). QUALIFICATION OF (1) Reasobale advice & assistance would also permit the public to ask questions related to the processing,interpretation & application of the Act as well as any "good faith"/"conduct" concerns the public may have concerning the processing. Higgins decision fails to properly interpret these requirements vi. Sect.112 Report on improper conduct If NCAT is of the opinion on the completion of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may on its own initiative bring the matter to the attention of - (a) the Minister who appears to NCAT to have responsibility for the agency, or (b) if the Minister who appears to NCAT to have responsibility for the agency was a party to the proceedings, the Information Commissioner. Sect. 111, 112 (116, 117, 118, 19 & 120) are specifically in the Act to protect the publics enforceable GIPA Act rights from agency "lack of good faith" / "improper conduct" a. the authority to bring that discretionary opinion of the matter to the attention of the minister may be exercised specifically at the completion of the review b. that discretion is required to be exercised to promote the object of the Act (Sect.3) c. nothing in Sect. 112 prohibits the tribunal from making comments/statements/recommendations at any time in the proceedings to ensure that the publics enforceable rights are not being compromised at any stage by "lack of good faith" / "improper conduct" d. Any evidence of "lack of good faith" / "improper conduct" before the tribunal requires that the tribunal ensure that these issues do not compromise the correct & preferred decision. Given that: e. The applicant requested that the decision maker NOT exercise functions for the application AND f. That decision maker subsequently made a DEFECTIVE DECISION AND g. The applicant HAD NOT RECEIVED THAT DEFECTIVE DECISION PRIOR TO SEEKING AN ADMINISTRATIVE REVIEW AND h. The CSO provided that defective decision ON or JUST BEFORE the first directions hearing AND i. The applicant stated AT THE HEARING that the decision HAD NOT BEEN RECEIVED prior to proceedings AND j. The CSO REFUSED THE APPLICANTS OFFER TO WITHDRAW FROM THE PROCEEDINGS WITHOUT SEEKING DIRECTIONS FROM THE RESPONDENT YET STATING THAT [57].4. "IT WAS NOT POSSIBLE TO PRODUCE SUCH A DOCUMENT BECAUSE THE RESPONDENT CONSIDERED NO SUCH DOCUMENT EXISTED" SHOULD HAVE REQUIRED HIGGINS TO RAISE QUESTIONS CONCERNING THE CONDUCT OF THAT OFFICER AND HER CONFLICT OF INTEREST IN EXERCISING ANY FURTHER FUNCTIONS RELATED TO THE APPLICATION This raises the relevant questions of law: b. Did Higgins fail in her interpretation of the publics GIPA Act rights? - the enforceable right to have applications where agency officers are required to exercise their functions under the Act in good faith / with proper conduct? - the public has the right to question those functions exercised for the processing of the application? (this would be reasonable for that reasonable advice & assistance required under Sect. 16) - the publics right to make informed decisions when required to amend or rescope an application (this would be reasonable for that reasonable advice & assistance required under Sect. 16) c. Did Higgins fail in her interpretation of the statutory obligation to protect the publics GIPA Act rights? d. Did Higgins fail in her obligation to promote the object of the GIPA Act by requiring a vulnerable "victim" (evidence of GIPA Act rights abuse) to be at the mercy of that same "abuser" e. Did Higgins fail in her obligation to protect the applicants GIPA Act rights by requiring a vulnerable "victim" (evidence of GIPA Acts rights abuse) to be at the mercy of that same "abuser" f. Did Higgins fail in her obligation to make a balanced decision in her Sect.55.1.b. decision? g. Did Higgins fail in her interpretation of the words of Sect. 116 and allow the respondent to make false claims: i. any offence under the Act is clearly a function which has been exercised at the very least with a "lack of good faith" / "improper conduct" and therefore is relevant to Sect.112 ii. Sect. 116 does not state that it is a "criminal offence" as implied by the respondent iii. the applicant has not required the tribunal to take proceedings for offences (unless it has the authority to do so) iv. the tribunal has the jurisdiction under Sect. 112 to form the opinion about improper conduct by the agency's officers and can deal with it per the discretionary referral h. Did Higgins fail in her interpretation of the Act that the aggrieved applicant has the right to i. make a Sect. 112 complaint ii. provide evidence to substantiate that Sect. 112 complaint iii. make a Sect. 111 complaint iv. provide evidence to substantiate that Sect. 111 complaint iii. make a Sect. 116 complaint iv. provide evidence to substantiate that Sect. 116 complaint particularly as they have a substantive effect on v. the applicants GIPA Act rights vi. a substantive effect on the correct & preferred decision (refer the Jan 13,2021 defective decision) vii. forcing the self-represented,non-legal professional,time poor,resource poor applicant to make an unwanted & unnecessary administrative review viii. unresolved real issues that infect future proceedings 3. Questions of law arising from proceedings: a. Did Higgins properly interpret the words of the CAT Act? i. The power to exercise a Sect.55.1.b. decision is discretionary. That discretion is required to promote the object of the Act. Did Higgins make a balanced decision when making the Sect.55.1.b. decision? b. Sect.3 The objects of this Act are: (c) to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and At the Oct.26,2020 hearing, the respondents dismissal application was heard At [16] Higgins stated that the applicant was to provide submissions in response to the Sect.55 application by Nov.13,2020. Higgins order on Mon.Oct.26,2020 fails the requirement of the tribunal to be responsive to the needs of all it's users including self-represented,non-legal professional,time poor,resource poor applicants. i. Higgins knows that the self-represented,non-legal professional,time poor,resource poor applicant is required to undertake his non-related work for his livelihood This requires the self-represented,non-legal professional,time poor,resource poor applicant to work extra & unnecessary long hours ii. Higgins order is made on a Monday. This leaves the self-represented,non-legal professional,time poor,resource poor applicant with: a. only one weekend b. at most,9 working days (one day at least lost for delivery of submissions in time) c. unreasonable time to make very important submissions d. unreasonable stress e. making submissions in an unreasonably short time to contest those of an exclusive, specialist legal service with unlimited resources,publicly funded & paid to do work during business hours (maybe penalty rates for after hours work). This fails the promotion of the CAT Act Sect.3.c. A fair minded lay observer could easily form the opinion that this obligation has been breached and that Higgins execises actual bias against the self-represented,non-legal professional,time poor,resource poor forced applicant. (d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and The defective decision made on Jan 13,2020 is supposed to be the correct & preferred decision. The self-represented,non-legal professional,time poor,resource poor applicant would be required to concede to that decision as the corect & preferred decision were the agency to provide that substantiating evidence requested. This negotiation would meet the above criteria, Higgins / Londsdale / McAteer showed no interest to seeking such a resolution of the matter. (e) to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality, Higgins abysmally failed to make a timely decision. The final submissions were received on Dec. 14,2020 yet it took i. the self-represented,non-legal professional,time poor,resource poor applicants complaint to the tribunal to require a decision ii. until Dec.3.2021 for Higgins to make that decision which should have been made within 12 weeks at most iii. Higgins decision is inconsistent with that of: Zonnevylle v NSW Department of Justice [2021] NSWCATAD 175 by member Christie (f) to ensure that the Tribunal is accountable and has processes that are open and transparent, Higgins interpretation of the obligations of the GIPA,CAT & ADR Acts does not provide accountability nor transparency. Other facts are believed to be associated with Higgins decision (g) to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members. The failure of Higgins interpretation of the obligations of the GIPA,CAT & ADR Acts does not promote punlic confidence in tribunal decision making or her conduct. c. Did Higgins properly interpret the words of the ADR Act? Sect.3 Objects of Act The objects of this Act are as follows: (c) to foster an atmosphere in which administrative review by the Tribunal is viewed positively as a means of enhancing the delivery of services and programs, Ref.2.iv.j. Higgins failure to address what appears to be a PRIMA FACIE example of improper conduct / lack of good faith which was complained against clearly fails this statutory obligation. Higgins failure to exercise those statutory obligations seeks to institutionalize & ensure that unchecked agency misconduct compromises & undermines the publics GIPA Act rights. (d) to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales. Ref.2.iv.j. Higgins defective Sect.55 decision i. contradicts the above obligations ii. utterly fails the required compliance required by agency officers iii. further erodes the publics legislative rights iv. further victimizes all self-represented,non-legal professional,time poor,resource poor applicants who have legitimate complaints,fears & anxiety concerning agency officer conduct. d. Did the Higgins fail to provide the applicant reasonable procedural fairness? i. Higgins is alleged to have denied the applicant procedural fairness when refusing to recuse herself. Procedural fairness requires: a submissions from the applicant b. submissions from the respondent c. further response from the applicant d. Higgins to make a decision with reasons Higgins is alleged to have failed this fundamental & required right. ii. Higgins did the same in NCAT 2021/000247292 There are know systemci issues with a failure by members to provide procedural fairness in proceedings Higgins is a typical recidivist Higgins failure to provide the applicant with reasonable & adequate procedural fairness substantiates the self-represented,non-legal professional,time poor,resource poor applicants complaints of actual bias exercised by the tribunal against the public. e. Did Higgins fail to have proper regard to evidence to support the self-represented,non-legal professional,time poor,resource poor applicants complaints / contentions? Higgins ignored the blatant improper conduct related to 2.iv.j. which clearly substantiates the self-represented,non-legal professional,time poor,resource poor applicants legitimate & justified complaints against at least one of those officers exercising functions under the Act. On the basis of probabilities,it is should be apparent to Higgins that it is highly likely that that officers superiors are also complicit in this misconduct. Higgins has failed to have consideration of this real issue which has a particular public interest as it affects beneficial legislation required for the public. Further Higgins decision fails to contemplate any conflict of interest those agency officers have to prevent the release of information which may show those officers & their colleagues in a negative light. f. Did the Higgins misapply the law to the facts that she used? Higgins misused & misrepresented the self-represented,non-legal professional,time poor,resource poor applicants legitimate & justified complaints against those same officers exercising functions under the Act. The public has the right that those officers exercising their functions under that Act do so in good faith. The tribunal premise that those officers who have (substantiated by evidence) perpertated Sect. 112 breaches sould be and are to be allowed to continue to exercise those functions fails i. the public interest ii. to address serious issues such as conflicts of interes by those offciers iii. any reasonable or logical standards Higgins premise would logically permit: iv. animal abusers to own pets v. carers having abused their patients continue their "caring" of those victims vi. teachers having abused their students continue teaching vii. clergy having abused their paritioners continue their functions viii. financial advisors who have complaints against them for improper advice,continue advising ix. any service provider (builder,painter,mechanic,accountant) with credible complaints against them being allowed to perpetrate those same offences against other unsuspecting customers. Further,the self-represented,non-legal professional,time poor,resource poor applicants complaints which seek to ENSURE THAT THOSE GIPA ACT RIGHTS ARE NOT COMPROMISED OR ABUSED IS AN IMPROPER OR VEXATIOUS PURPOSE UTTERLY FAILS ANY REASONABLE MORAL STANDARDS. g. A fair minded lay observer could easily form the opinion that Higgins decision fails i. the public interest ii. those statutory obligations to promote the GIPA,CAT & ADR Acts iii. erodes the publics rights iv. perpetrates bias against the self-represented,non-legal professional,time poor,resource poor applicants 4 Questions of law arising from proceedings and / or Leave to appeal for related issues:. a. Was a valid appeal application received against Higgins which should have prevented her from deciding 2020 / 00045500? i. On Nov.9,2021, the tribunal received a bundle of documents from the applicant which included an appeal application against Higgins related to NCAT 2021/ 000247292 Item 3. NCAT 2021/000247292 a. Higgins sound recording application b. CAT Act Sect.62 written reasons c. Fee waiver application d. credit card authority for above e. general application form f. application for stay or interim order ii. A fee waiver for the appeal application 2021/000149117 Zonnevylle v NCAT / Dinnen was accepted on the grounds of misconduct by Dinnen (Dinnen refusing procedural fairness at the May 18,2021 hearing) iii. The Higgins appeal was based on subsatntially the same issue (Higgins refusing procedural fairness at the Nov. 1,2021 hearing) iv. A fee waiver was submitted & refused for the appeal against Higgins. The fee waiver was refused BUT NOT by the principal registrar v. The applciant sought a review of the fee waiver refusal by the principal registrar Civil & Administrative Tribunal Regulation (4) If the principal registrar considers that there are special reasons for doing so, the principal registrar- (a) may direct that any fee be waived wholly or in part, and that any part of the fee waived that has been paid be refunded, vi. the principal registrar has refused to response to this request. vii. The appeal documentation sought a restraining order on Higgins from deciding or presiding over the applicants proceedings. (one grounds being: If a tribunal member cannot provide or understand the basic obligation to provide parties with procedural fairness then they cannot be trusted by the public to make the correct & preferred decision nor uphold their conduct obligations) b. There is a relevant timeline to the following: i. Nov. 1,2021 Directions Hearing NCAT 2021 / 000247292 Zonnevylle v IPC ii. Prior to the hearing the applicant ntofied the member & registry of NCAT 2021/ 000149117 Zonnevylle v Dinnen Higgins knew that the substantive hearing for NCAT 2021 / 000149117 was set for Nov. 19,2021 iii. At the hearing,Higgins refused the applicant procedural fairness when making several applications iv. The applicant was forced to exit the hearing due to Higgins refusal to a. recuse herself (for two or more matters) and b. refusiong to provide the applicant procedural fairness v. The applicant,prior to exiting the hearing advised Higgins that an appeal would be made against her vi. After the appicant was forced to exit the hearing,Higgins proceeded to make further orders including: "On or before 15 November 2021, Peter Zonnevylle is to give to the Tribunal and the Information Commissioner the following material: any evidence including statements, documents and submissions in regard to the dismissal application of the respondent filed today. In his submissions, Peter Zonnevylle is to indicate whether the Information Commissioner's dismissal application can adequately be determined on the papers. As Higgins knew about the the self-represented,non-legal professional,time poor,resource poor applicants legitimate circumstances & commitments, Higgins order requiring submissions be submitted on or before Nov 15,2021 is alleged to be unjust / unfair / unreasonable / improper / inappropriate / and most likely malicious. Higgins decision blatantly breaches CAT Act Sect.3.c. vii. At 3.g Higgins confirms that she was aware that the applcant was going to appeal her decisions (Nov. 1,2021 order attached) viii. In addition to the above,the applicant made a complaint to the tribunal about the failure to provide Higgins 2020/00045500 decision in time ix. Not long after,Higgins made her 2020/00045500 decision to the detriment of the applicant. It is the applicants contention that a fair minded lay observer could easily form the opinion that Higgins made the adverse Sect..55 decision in retribution / to imposed an unjust punishment against the applicant. This conclusion is highly likely as Higgins has displayed a disregard for tribunal obligations & conduct (refusing basic legal rights such as procedural fairness). b. Did Higgins fail in her interpretation of the statutory obligation to promote the object of the GIPA,CAT & ADR Acts in proceedings? c. Did Higgins apply the correct legal test when deciding not to disqualify themself? d. Did Higgins err in the application for rules of evidence in proceedings? e. Did Higgins err in her exercising of statutory conduct obligations? f. Did Higgins err in correct legal test for actual bias / apprehended bias in proceedings? g. Did Higgins fail to apply any of those statutory obligations required of the CAT,ADR & GIPA Acts in proceedings h. Did Higgins err in her interpretation & application for the exercising of the CAT Act Sect.54 discretion to promote the object of the CAT,ADR & GIPA Acts? i. Did Higgins err in her application of the required statutory obligations to uphold those professional standards such as i. Legal Profession Uniform Conduct (Barristers) Rules 2015 ? ii. Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 ? iii. any other relevant professional standards? in any of the above proceedings? j. Did Higgins err in any other legislative obligation when making any of the decisions in proceedings k. Did Higgins fail to apply the relevant legal procedures / obligations for applications made by the applicant? l. Did Higgins err in any legal principles by allegedly making false statements to the tribunal? m. Did Higgins err in any legal principles to a;llegedly perpetrate CAT Act Sec.71 offence in proceedings? n. Did Higgins err in her application of statutory conduct obligations in proceedings? o. Did Higgins err in any legal principles in proceedings to breach public trust? p. Did Higgins breach the legal principles of bias (actual or apprehended bias) against the self-represented,non-legal professional applicant?"
6. We have considered the Appellant's appeal grounds, set out above. These are generally not framed as grounds, but rather as questions of law. Nevertheless, we have treated them as asserting that the Tribunal erred in various respects the subject of each question posed. We have considered these as informed by the Appellant's submissions.

Procedural fairness

1. The Appellant asserted that the Tribunal had failed to afford him "reasonable procedural fairness". As the Tribunal recorded, the Appellant provided extensive written material. The Appellant has not identified any respect in which he was denied a reasonable opportunity to present his case. Procedural fairness does not involve the unfettered and unrestricted entitlement of a party to proceedings to raise and agitate every issue which the party considers to be relevant to proceedings before the Tribunal. As the Tribunal has repeatedly held in litigation involving the Appellant, and the Court of Appeal has affirmed, the vast bulk of the Appellant's complaints are not matters which fall within the jurisdiction of the Tribunal. The Appellant has not identified any matter of relevance to the proceedings before the Tribunal which he was prevented from adducing in those proceedings. The similarity between the matters agitated in the appeal proceedings and the matters raised in the Tribunal is supportive of finding that the Appellant was not denied procedural fairness by the Tribunal.

Personal information

1. In his submissions filed on 22 February 2024 section "B. Appeal on question of law", the Appellant submitted that he was "seeking substantially personal information" pursuant to his review application. That may or may not have been the case, having regard to the terms of the "information/documents sought" by the Appellant in his review application. It is by no means clear that, notwithstanding the repeated use of the expression "concerning Zonnevylle", the information/documents sought by him necessarily fell into that category. Even if all the information/documents sought by the Appellant comprised "substantially personal information" that would not advance his application for leave to appeal having regard to the basis of the Respondent's summary dismissal application and the Tribunal's reasons for upholding that application.

Determination of the matter on the papers

1. To the extent that the Appellant complained that the Tribunal determined that it had "the authority to determine the sect. 55 decision on the papers", nothing to which the Appellant has referred the Tribunal establishes that the Tribunal erred by doing so. An order pursuant to s 50(2) of the CAT Act was, in the Appeal Panel's view, reasonably open to the Tribunal. Significantly, the Appellant has not identified any relevant matter raised by him in his extensive written submissions to the Tribunal which the Tribunal did not consider.

Principles in case law

1. The Appellant referred to the decision in Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5, at [120] in which it was said that the "power to refuse to deal with an application is a powerful one and should only be used as a last resort after making every attempt to assist the applicant in narrowing the request". As we have earlier recorded, the Respondent invited the Appellant to engage in a process which, had the Appellant adopted it, could have resulted in the "narrowing" of his request. He did not engage. The Respondent could not be found to have failed to have attempted to assist the Appellant to narrow his request when he refused to engage to seek to do so.
2. The Appellant relied on the statement in Singh that "agencies should not rely on the power of a refusal to process simply because their information management systems are poorly organised and documents take an unusually long time to identify and retrieve". Although, presumably, the Appellant would disagree, nothing to which the Appeal Panel has been referred suggests that the Respondent's failure to provide the information/documents sought by him was referable to any "poorly organised" information management system. The basis upon which the Respondent resisted the Appellant's initial and unchanged request was that, as provided by s 60(1)(a) of the GIPA Act, doing so would have required the Respondent to devote an unreasonable and substantial diversion of the agency's resources to responding to the request.
3. The Appellant also referred to the decisions in Cianfrano v Director General, Premier's Department [2006] NSWADT 137 and Colefax v Department of Education and Communities (NSW) (No 2) [2013] NSWADT 130 in support of his contention that the Respondent needed to "justify its position as regards calculation of the time and effort likely to be taken pursuant to s 60 GIPA Act and why this is an unreasonable burden on the Respondent". As those cases make clear, that occasion arises after a valid access request is made. As earlier recorded, the breadth and opacity of the Appellant's request for information/documents rendered appropriate the Respondent's attempts to engage with him in order to refine the request. Rather than simply refusing to accept the request, the Respondent sought, properly but unsuccessfully, to engage with the Appellant in order to narrow the scope of his request.

Alleged lack of assistance

1. The Appellant further complained that the Tribunal erred in failing to find that officers of the Respondent failed to "provide reasonable advice and assistance to allow" the Appellant to make a "reasonably informed decision to amend the application such that a sect. 60.1.a decision is not invoked". With respect to the Appellant, that contention is factually incorrect. The Respondent endeavoured to provide relevant and appropriate assistance to the Appellant, but he refused to engage with it in order to advance his request for information/documents. As the Appellant's submissions make abundantly clear, rather than engage with the Respondent and endeavour by "narrowing" the scope of his request for information/documents, the Appellant elected to bring a review application. The Appellant was entitled to do that, but, he cannot in our view avoid the consequences of the Respondent's deemed rejection of his request.
2. Save that it was adverse to him, nothing to which the Appellant has referred establishes that the Tribunal's decision was unbalanced or unfair in any respect recognised in law.

Alleged errors in weighing matters

1. The Appellant asserted that, in a number of respects, the Tribunal had failed to give the weight "required" to matters which he raised and failed to give "any weight to her statutory or implied statutory obligations to ensure that 'improper conduct' as raised in complaints" by the Appellant were dealt with in the s 55 decision. In its reasons, the Tribunal explained, consistent with Court of Appeal authority, why the Appellant's complaints about improper conduct of various officers associated with his GIPA request was not relevant to the proceedings. The Tribunal's determination involved no weighing of evidence. It turned on the Appellant's own documents. In any event, the Appellant has not identified any assertedly erroneous weighing of evidence before the Tribunal.
2. The Appellant summarised his complaints by submitting that the Tribunal failed what he asserted were its "obligations" requiring: 1. a fair and balanced decision; 2. giving weight to real issues that were relevant to the administrative review.
3. We do not consider that these complaints, formulated in very general terms, raise a question of law.

Dismissal of request for administrative review

1. The Appellant relied on the decision of the Appeal Panel in BDK v Department of Education and Communities [2015] NSWCATAP 129 in which it was stated that "In the absence of the respondent establishing that the administrative review application is frivolous and vexatious a legitimate request for administrative review (even if buried among other misconceived or lacking in substance claims) cannot be summarily dismissed". The Appeal Panel cannot disagree with that statement. The difficulty is that, in this case, the Tribunal found that there was no "legitimate request for administrative review" whether "buried among other misconceived or lacking in substance claims" or otherwise. It is for the Appellant to demonstrate that he had made a "legitimate request for administrative review" which the Tribunal failed to determine or erroneously determined. The basis upon which the Respondent declined to comply with the Appellant's request for information/documents is relevant in that regard. If the Appellant raised a legitimate ground for administrative review before the Tribunal which it failed to deal with, leave to appeal could be granted. Nothing to which the Appeal Panel has been referred, or discovered for itself, identifies a "legitimate" request for review by the Appellant. Nothing emerging from the material filed by the Appellant in the Tribunal, or before the Appeal Panel does either.

Other matters raised in appeal grounds

1. The appeal grounds raise a wide variety of issues, not all of which are dealt with in any detail in the Appellant's submissions. Many of the grounds are framed at a high level of generality.
2. We do not consider that there is any merit in any of the Appellant's challenges to the Tribunal's construction and application of the GIPA Act, the CAT Act and the ADR Act. The decision did not, in any event, turn in any significant way on the Tribunal's construction of those Acts.
3. The Appellant has not established that the Tribunal was subject to many of the alleged "obligations" referred to in the appeal grounds (such as the "obligation to promote the object of the GIPA Act" and the "obligation to protect the publics GIPA Act rights"), nor that, if it was, it "failed" in the manifest ways alleged.
4. The Appellant alleges in his appeal grounds that the Tribunal's decision "perpetrates bias against the self-represented,non-legal professional,time poor, resource poor applicants," and that the Tribunal was otherwise subject to a reasonable apprehension of bias. The test for apprehended bias is set out above. In our view, there is no proper basis for that allegation, and it is rejected.
5. The Appellant has not persuaded us that any of the other multiple appeal grounds advanced has any merit.

The submissions of the Respondent

1. The Respondent submitted that no ground of appeal raised by the Appellant "tenably challenges that the proceedings were maintained for the dominant improper purpose of ventilating corruption allegations and seeking findings which were bad in law and outside the jurisdiction of the Tribunal". It was further submitted that the Tribunal had "conscientiously made detailed and accurate findings over the course of its decision, including as to the applicant's conduct in relation to the narrowing of the access application".
2. The Respondent relied in that context on the findings of the Tribunal at [122], [127] and [128]. The Tribunal there said: "122 It is a matter for the applicant if he chooses to narrow the scope of his access request. His reasons for not doing so, in my opinion, when objectively assessed, also forms part of his predominant purpose of pursuing these proceedings so as to have the Tribunal make findings of misconduct, illegality and lack of good faith by the respondent, when he is fully aware that such matters do not fall within the Administrative Tribunal's review jurisdiction. … 127 In my opinion, the applicant's 14 December 2020 written submissions demonstrate an intention to continue to agitate for findings of lack of good faith, misconduct and illegality on the part of the respondent and the officers of the respondent department, and to seek findings and orders that fall outside the scope of the jurisdiction of the Tribunal to review the decision made by the respondent on 8 July 2020 (i.e. to determine the correct and preferable decision. 128 Therefore, despite the applicant having a right to seek review of the decision of the respondent, made on 8 July 2020, I am satisfied, on the material before me, that the applicant's predominant purpose, objectively determined, in maintaining his review application is to reagitate allegations of misconduct, lack of good faith and illegality on the part of the respondent and the senior officers of the respondent department. That purpose being a collateral purpose and an abuse of process."
3. The Respondent submitted, correctly in our view, that "far from identifying error, the grounds of appeal fortify" the observations of the Tribunal, at [137] that the Appellant "will continue to persist with this collateral purpose" suggesting that "such vexatious conduct will continue in the Appeal Panel".
4. The Respondent advanced at [21] numerous reasons why it was submitted that the findings of the Tribunal were "amply supported" by the evidence to which the Tribunal referred in its reasons. Particular reference was made to the findings of the Tribunal at [122] to which we have referred. The Respondent submitted that the Appellant "had ample opportunity to amend his application to make it workable, following correspondence from the Respondent which explained that it was a manifestly and unreasonable diversion of resources. The Applicant did not do so despite having the opportunity on 3 occasions" to do so. The Respondent relied on the finding of the Tribunal at [119] that "on 3 occasions the Tribunal made orders giving the Applicant an opportunity to amend his access request, in the light of the Respondent's proposed decision, on reconsideration, to refuse to deal with his access request on the grounds of an unreasonable and substantial diversion of resources".
5. Nothing to which the Appellant has referred the Appeal Panel demonstrates that the finding of the Tribunal with respect to the Appellant's opportunities to refine his request was erroneous or not open to it. Nothing to which the Appellant has referred establishes that the Tribunal erred in finding that the Appellant did not avail himself of any of those opportunities, or that such failure was because his "predominant purpose" in pursuing the proceedings was to have the Tribunal made findings of "misconduct, illegality and lack of good faith by the Respondent".
6. The Respondent relied on the finding of the Tribunal, which the Appellant has not challenged, at [118] that the Appellant's persistence with an offer to withdraw the proceedings if the Department would provide evidence of its "officers' misconduct", and submitted that to have "demonstrated a distinct lack of interest in the process of reviewing the GIPA decision, and an unrelenting focus on attempting to establish the commission of offences outside the jurisdiction of the Tribunal". There is force in that submission. If the dominant purpose of the Appellant's information request was to obtain personal information, it is inconceivable that he would have proposed such a "trade-off", and provides compelling support for finding that his review application was for the ulterior purpose found by the Tribunal.
7. As no other submissions advanced by the Appellant, to which we have not specifically referred, could possibly advance his case, we do not consider that it is necessary or instructive to refer to those submissions.

Additional consideration

1. The Appellant sought to advance his challenges to the Tribunal's decision in part in reliance upon the principles of statutory interpretation applicable to "remedial", or as they are often called "beneficial", statutes. Such provisions are "interpreted having regard to the fact that they are intended to remedy a perceived injustice or provide a benefit to the persons to whom they apply. It is unlikely that their legislative purpose will be given effect if they are interpreted in a way that overlooks that intention" (Dennis Pearce, Statutory Interpretation in Australia (9th ed, 2019, Lexis Nexis) at para 9.1).
2. Statutory provisions for administrative review have consistently been held to be remedial (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33; 94 ALR 11; Australian Postal Corporation v Forgie (2003) FCAFC 223; (2003) 130 FCR 279; 202 ALR 63).
3. The "orthodox view" of the approach to be adopted in relation to interpretation of remedial legislative provisions was stated by Isaacs J in Bull v Attorney General (NSW) (1913) 17 CLR 370; [1913] HCA 60 in the following terms: "This is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially … this means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow."
4. As later authorities make clear, beneficial interpretation of remedial legislation does not only apply where there is an ambiguity in the legislation. In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50; 339 ALR 327, Gageler J (as Gageler CJ then was) said that: "The principle that beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively. Application of that more general principle in New South Wales legislation is mandated by the requirement of s 33 of the Interpretation Act 1987 (NSW) that a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not. Neither in its general application nor in its particular manifestation can that principle be applied other than on the understanding that legislation "rarely pursues a single purpose at all costs" and that "ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling."
5. In SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 361 ALR 206, Edelman J said that: "The task of statutory construction must begin and end with the text of the statute. That statement does not mean that the text of a statute must be interpreted only according to the range of semantic meanings of the individual words. It means only that the interpretation of a statute, like any other legal instrument, is an interpretation of its words. Those words are interpreted in their context and in the light of their purpose although legal rules can sometimes exclude or restrict the use of some context. In ascertaining the reasonably intended meaning of parliament context is, literally, those matters to be considered (simultaneously) together with the text. Context can give words an interpretation that is the opposite of their ordinary meaning and grammatical sense. Context can also permit a construction of words that excludes their application to matters that would have fallen within the application of their literal meaning. However, as with contractual interpretation, where "the clearer the natural meaning the more difficult it is to justify departing from it", so too in statutory interpretation "questions of degree arise" and it would be more difficult to displace an interpretation that "has a powerful advantage in ordinary meaning and grammatical sense"."
6. The Appellant appears to suggest, but not provide submissions in support of such suggestion, that his review application should not have been summarily dismissed because the Respondent had not discharged its obligation pursuant to s 60(3) of the GIPA Act, by demonstrating that compliance with his request for documents/information would involve an unreasonable and substantial diversion of resources pursuant to s 60(1)(a) of the GIPA Act. Having considered the Appellant's challenges to the Tribunal's decision that the review application was predominantly for a collateral purpose, and that, accordingly, there was no need for the Respondent to satisfy s 60(1)(a), it is strictly unnecessary to record obiter dicta with respect to those complaints. Having regard to the history of the Appellant's review applications, and his determination to persist with such applications, notwithstanding their persistent rejection by the Tribunal and the Court of Appeal, it is considered appropriate that the Appeal Panel says something about this issue.
7. Although the Respondent did not refuse to do so in reliance upon s 60(1)(a) of the GIPA Act, or need to in the circumstances of this case, it is instructive to refer briefly to the principles applicable to the operation of that provision. In Zonnevylle v Department of Education and Communities [2016] NSWCATAD 49, the Tribunal considered and dismissed the Appellant's application for review of several decisions by the Department of Education and Communities in relation to access applications brought under the GIPA Act. In the course of dismissing the Appellant's review applications, the Tribunal referred to the categories of documents or information sought by the Appellant in his access application. Having identified the "19 categories of documents" sought by the Appellant, the Tribunal said at [51] that "The breadth of this request suggests that a considerable degree of resources would be required to process the application. This is even more strongly suggested by the fact that it is difficult to comprehend what is being sought by many of the categories". The Tribunal further referred at [55] to the submission of the Department of Education and Communities that the categories were "inherently subjective", which accordingly "makes it difficult for any officer of the Respondent to locate information which answers the request. What the searching officer might regard as "'proof' may not necessarily be regarded as such by the Applicant, or by this Tribunal".
8. The Tribunal found at [57] that the Department was entitled to refuse to deal with the access application and was satisfied that doing so would represent a substantial and unreasonable diversion of resources. The Tribunal observed that "large parts of the access application are invalid as it is not possible to ascertain what information is sought. The access application did not include the information that is reasonably necessary to enable the information applied for to be identified. Further, many of the categories require the Respondent to create new documentation. The Respondent was correct to deal with the access application." Those findings are apposite in the present proceedings.
9. The Appellant referred to Cianfrano v Director General, Premier's Department [2006] NSWADT 137, a case concerning the former Freedom of Information Act 1989 (NSW) (repealed) ("FOI Act"). In that case, O'Connor DCJ said at [44] that "what scale of request may be seen as 'substantially and unreasonably diverting an agency's resources' admits of no ready or precise measure". His Honour referred at [47] to Victorian decisions which he said "affirmed frequently that broad 'fishing' requests in an ill defined form will not be granted, and that the Act's provisions seeking to contain the impact have as their basis the competing public interest in the efficient administration of government". His Honour further observed at [50] that whilst "FOI procedures" such as access requests "may allow for 'alternative discovery' of documents, the FOI Act expects the activity to be kept within reasonable, manageable bounds". The facts of this case readily invite findings in those terms.
10. O'Connor DCJ also recorded at [62] what he saw as "the factors that are relevant to an assessment of" a request for documents or information which was rejected in reliance upon provisions under the FOI Act, which are similar to s 60(1)(a) of the GIPA Act. The first matter to which His Honour referred was "the terms of the request, especially whether it is of a global kind or generally expressed request; and in that regard do the terms of the request offer a sufficiently precise description to permit an agency, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort". The second matter to which His Honour referred was that the "demonstrable importance of the document or documents to the applicant may be a factor in determining what in the particular case is a reasonable time and a reasonable effort". The other matters to which His Honour referred are not instructive for present purposes given that, understandably, the Respondent in this case did not adduce evidence of the time and effort that would be likely to deal with the Appellant's request.
11. The first two matters to which His Honour referred have relevance. As their terms make clear, the number of categories of requests for documents or information made by the Appellant and their terms do not reveal a sufficiently precise description to permit an agency, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort. As noted earlier, many of the requests involve consideration, or even speculation as to just what documents the Appellant is actually seeking, and, having determined what they are, investigating to ascertain whether they exist. The requests are, on their face, very much in the nature of "fishing" exercises which offend the principles emerging from the authorities to which O'Connor DCJ referred in Cianfrano.
12. Other than for the collateral purpose which has been consistently found to infect his requests, the Appellant has not demonstrated anything which suggests that there is, or may be, "demonstrable importance" of any document or information which may be in the possession of the Respondent. Even if, which he has not, the Appellant had sought to challenge the decision of the Tribunal on the basis that the Respondent had not discharged an onus pursuant to s 60(1)(a) of the GIPA Act, such challenge would fail.

Conclusion

1. As we do not consider any ground of appeal to have any merit, the Appellant's Notice of Appeal will be dismissed. No basis for granting leave to appeal has been demonstrated by the Appellant. That being so, there would be no utility in granting an extension of time in which to appeal or seek leave to appeal.

Order 1. Extension of time to appeal refused. 2. Leave to appeal refused. 3. Appeal 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: 03 May 2024