Zonnevylle v Secretary, Department of Education; Zonnevylle v Secretary, Department of Education

A recusal application

1. Earlier this morning, I dealt with an application made by the appellant to record today's proceedings under the Court Security Act. I refused that application and gave oral reasons. The appellant then, although he had foreshadowed it earlier but asked that I deal with his Court Security Act application first, made an application that I recuse myself for bias.
2. The principles governing a recusal application are well established. A Judge, or a Tribunal Member in this case, should not determine proceedings if a fair minded lay observer might reasonably apprehend that they might not bring an impartial mind to the resolution of the question that they are required to decide. The citation for that proposition is a decision of Ebner v Official Trustee in Bankruptcy [2000] HCA 63, although it was recently re-affirmed in matter of Charisteas v Charisteas [2021] HCA 29.
3. The application of the principle, insofar as it relates to an apprehension of bias, requires two steps as set out in Ebner at [8]. First, it requires the identification of what is said might lead the Judge to decide the case other than on the legal and factual merits. The second step is that it is necessary to articulate the logical connection between that matter and the feared deviation from the course of deciding the case on its own merits. That second step is equally as important as the first, in that the applicant for recusal must ensure that they have addressed both of those issues. It is also the case that in considering such an application, a fair minded lay observer's reasonable view is taken in the context of ordinary judicial practice, as set out Charisteas at [12].
4. The test in relation to actual bias is that the Judicial Officer or Tribunal Member has brought a closed mind to the application or have pre-judged it and in that respect I refer to Collier v Country Women's Association of New South Wales [2018] NSWCA 36 at [27] which confirmed a decision of Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68-73]: "If actual bias is asserted to arise from a form of prejudgment, the appellant has to establish that relevantly for present circumstances I was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented."
5. Mr Zonnevylle did not in his submissions make it clear whether he says that I am actually biased or that there is a reasonable apprehension that I might be thought to be so, although he does seem to indicate that my prior determination of similar applications leads to a conclusion that I might not deal with these applications fairly. To that extent I will treat it as an application on the basis of actual bias.
6. I think it relevant that in no respect has Mr Zonnevylle ever appealed from any of the interlocutory decisions which I have made in respect of my determination of like matters of previous occasions. Mr Zonnevylle has made his intention clear, that he will renew his application under the Court Security Act in every Tribunal hearing he participates in. The relevance of that is, whilst I may have dismissed similar applications Mr Zonnevylle has made in the past, which were argued on similar grounds, it should not be assumed that I have done so because I brought a closed mind to them. Rather, I took the view on each occasion that on their merits they ought be dismissed. In the absence of it being demonstrated that I have erred, for example by the application of some wrong principle which I have failed to remedy, or the subsequent applications being argued on some materially novel basis, I do not think my reaching a similar conclusion on each occasion is indicative of bias. I am not required to have a mind which is blank, simply one which is open to persuasion: Minister for Immigration & Multicultural Affairs v Jia Legeng 205 CLR 507; [2001] HCA 17 at [71] per Gleeson CJ and Gummow J.
7. A similar situation arose in relation to the applicant's application under the Court Security Act this morning. Mr Zonnevylle says that I failed to have regard to the concerns that he raised about difficulty in obtaining recordings from the Tribunal in the past. I referred in my earlier reasons to a decision I made on 7 November 2022, in the appeal ending 935, where I granted an application for an adjournment by Mr Zonnevylle and dealt with his concerns, in part about his ability to obtain the sound recording in that matter.
8. On the second page of that decision, I recorded that the appellant was concerned that he had not received the sound recording of the hearing at first instance, in order to support his appeal. I noted that he placed the blame for that on the Appeal Registry, and particularly the Deputy Divisional Registrar. I indicated that I had reviewed what occurred in determining that application and that there was relevant correspondence from the Registry to Mr Zonnevylle in respect of the issue, including a letter dated 8 July 2022. It indicated that a request for a fee waiver was rejected. There was then an email to the appellant dated 23 August 2022, referrable to his application for the sound recording required for that appeal, about the issue method of payment of fees, and I quoted a passage from that letter. It said: "As you have been previously advised NCAT does not accept credit card authority via email. We do accept the credit card authority by post. Fees can also be paid at any NCAT Registry or Service NSW or by using the Secure Payment Portal or by cheque/money order. I note you attach a fee waiver request and a credit card authority form with your applications for service (sound recording) and your applications to initiate proceedings. In the event the fee waiver is refused you do not give clear instructions that Registry is authorised to process the fee using the credit card authority. On two occasions after Registry processed the fee and provided you sound recording by express post you contacted your bank and advised that the transactions were unauthorised because "Documentation not supplied in timeframe". As a result, NCAT will only accept payment from you by cheque/money order, use of the Secure payment portal or you may pay at an NCAT Registry or Service NSW. NCAT will not accept or process payment using the credit card authority form. I acknowledge the information provided to you on 10 August 2022 regarding the credit card payment form was not explained fully."
9. I pointed out that the appellant's application did not engage with that correspondence and that, in any event, he would receive the sound recording from the respondent in the particular circumstances of this appeal.
10. The appellant says that I "lied" in my decision rejecting his application under the Court Security Act. I refute that suggestion. What I said was words to the effect that he had not satisfied me that there was a basis to find that his concerns about difficulty in obtaining sound recordings in the past were sufficient to persuade me that I should grant his application on this occasion. (Having now having reviewed the transcript, I referred to a "lack of any systemic difficulty or inappropriate impediment put before the appellant", and that "perhaps there were simply procedural matters he needed to comply with in order to obtain the sound recordings". That, to me, seems an accurate reflection of the position).
11. Mr Zonnevylle also suggested that I have acted to "protect" Ms Mattes who represents the respondent in these proceedings today. Again, I reject that allegation. As I made clear in my reasons in respect of the application under the Court Security Act, there were aspects of the submissions made by Ms Mattes with which I disagreed. Those findings do not, on any version of events, rise to a suggestion that I have in fact protected Ms Mattes in some way, nor does the appellant explain what I am supposed to have protected her from.
12. The appellant also says that my giving him specific time limits in order to progress his applications and make submissions is indicative of bias. That is a power granted to me under the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 38(6)(c). I was satisfied on each occasion that the time I allowed to Mr Zonnevylle was sufficient to enable him to make submissions. I see nothing in what I have done which would lead a fair minded lay observer to the potential reasonable concern that I might not bring an unbiased or impartial mind to determining the matters. The suggestion of actual bias, which is a higher standard, must be rejected for the same reasons.
13. In those circumstances, the application for recusal is dismissed.

The interlocutory applications in appeal 2022/00196935

1. In his first application dated 30 October 2022, Mr Zonnevylle applies for an order that the Appeal Panel, where constituted by a single member, require him to provide the Tribunal with only one copy of his submissions, instead of three. He does not point to any currently extant directions where that applies, such that I cannot really be satisfied that there is any prejudice to him in terms of the decisions I need to make today. In any event, where parties are directed to lodge material, there is more than one copy required for various reasons, including so that a copy can be provided to the member or members dealing with the matter, in addition to a copy to be retained on the Tribunal's file. This is not an application which I think, firstly, needs to be dealt with in this appeal because there are no such extant directions that the appellant has pointed me to, but, in any event, I think it is appropriate and a usual aspect of the Tribunal's reasonable requirements that more than one copy be provided for the reasons I have set out.
2. What Mr Zonnevylle seeks by order 3 is that the Tribunal apply the requirements of procedural fairness. That is, clearly, an obligation on the Tribunal, as has been found in many cases, I do not need to cite them here. It is not something that the Tribunal can make an order about but rather is something which the Tribunal is obliged to undertake on each occasion.
3. In respect of orders 6B to 6Z1, the appellant seeks to have a member who presides over a matter, and by inference me in respect of this matter, declare various things numbered in sub-paragraphs as to their views or experience in respect of various issues.
4. It is not necessary that I read them each into the record. The nature of the matters are similar in a respect which I will come to. By way of example the appellant asks that the member "declare": 1. at sub para (c) - whether they "use 'cheap' resolution of real issues as bias against a SRNLPA [an acronym the appellant uses to describe his position in the proceedings] whose costs the Tribunal does not recognise"; 2. at (r) - "whether the member has denied a party their legislative rights in proceedings."; 3. At (u) - "whether the member has prejudice a party (sic) because they dislike the party"; and 4. At (y) - "whether the Tribunal member has backdated evidence or used material which was not before it in proceedings prior to either; 1. making a substantive decision and/or 2. Any other [Civil and Administrative Tribunal Act] or [Administrative Decisions Review Act], including CSAP decisions" (an acronym for his repeated requests to independently record proceedings in the Tribunal).
5. There can be no doubt that members are required to declare known issues which might lead to a reasonable apprehension of bias, or of actual bias. However, I agree with the respondent that these are not applications which can be properly brought seeking orders. Rather than seeking to resolve issues in dispute between the parties in the appeal, they are an application to dictate to the Tribunal how it will conduct its proceedings and, to that extent, I find that the applications are brought for an illegitimate collateral purpose and are an abuse of process. It does not seem to me that the appellant necessarily intends them in that manner, however that is the legal effect of the applications which are not properly brought before the Tribunal and cannot be determined in the appellant's favour. It is the objectively ascertained purpose of the applications, and not the appellant's subjective intent, which is relevant in that regard: Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232 at [28].

An application for an order in respect of fee waivers

1. Mr Zonnevylle applies for an order that any future fee waiver is required to be decided by the Principal Registrar and that any previously refused fee waiver is to be reviewed and decided by the Principal Registrar.
2. In that regard, Mr Zonnevylle refers to the Civil and Administrative Tribunal Regulation 2022 (NSW) at cl 6, which points out at sub part (5) that if the Principal Registrar considers that there are special reasons for doing so, the Principal Registrar may direct that a fee be waived wholly, or in part, and that any part of the fee waived that has been paid is refunded and made subject to any conditions the Principal Registrar thinks fit to postpone the time for payment of the whole or a part of any fee.
3. The concern raised by Mr Zonnevylle is that he has received decisions in respect of fee waivers or non-waivers authorised by persons other than the Principal Registrar. He has not directed my attention in making submissions about the application to any specific occasion, however I am aware from previous matters which I have dealt with today already that there have been occasions when he has been refused fee waivers.
4. If it is the case that the fee waivers were dealt with by someone other than the Principal Registrar then either it must be the case that the Principal Registrar has delegated her authority to that other Registry officer, or, potentially, that the requirements of regulation cl 6 sub (4) have not been strictly complied with. In either event, however, it is not a proper matter for me to make a decision about. Either the Principal Registrar has an obligation to make those decisions personally or the Principal Registrar has the authority to delegate those decisions. If the Principal Registrar is not complying with her obligations then Mr Zonnevylle has other processes available to him to seek to have it dealt with in the appropriate way.
5. I do not have the information before me that could allow me to decide the matter but, in any event, as I have said, I do not think it is a proper application to be advanced in the proceedings between these parties. It is not a case where that is relevant to the resolution of the appeal between Mr Zonnevylle and the respondent in these proceedings. On that basis, it is properly described as an abuse of process (although as I have said earlier, I do not think the appellant intends it in that way) to seek orders which are not ones which can properly be made to resolve or progress the dispute between the parties.

An application for referral of questions of law to the Supreme Court

1. The appellant seeks orders that the Tribunal refer questions of law to the Supreme Court. As is clear from s 54 of the NCAT Act, the Tribunal has power, including when constituted as an Appeal Panel, of its own motion or at the request of a party to refer a question of law arising in the proceedings to the Supreme Court for its opinion. The power is conditional upon the President consenting in writing, although in a practical sense on most occasions that would really require the Tribunal to be satisfied that such questions exist and should potentially be referred, such that the President could consider whether to grant or refuse consent.
2. Subsection (3) to s 54 makes it clear that whilst the Supreme Court has jurisdiction to hear and determine any questions referred to it under the section it may also decline to exercise that jurisdiction if it considers it appropriate to do so.
3. The issue of referral of questions of law by the Tribunal to the Court was dealt with at length in a decision of the Appeal Panel in Registrar of Births, Deaths and Marriages v FJG and FJH and Attorney-General of New South Wales as Intervenor [2022] NSWCATAP 270. There, at [32] and onwards the Appeal Panel dealt with the undisputed power of the Tribunal and its Appeal Panel to refer questions of law to the Supreme Court providing they do not breach any obligations in respect of exercising federal jurisdiction or referring questions of federal jurisdiction. That Appeal Panel made it clear then that the next question to ask is whether questions of law have been identified and the specific nature of the questions of law (having regard to the terms of s 54) is that they must arise in the proceedings. Here, whilst the appellant lodged his appeal in July of 2022, and despite directions for him to do so, he has not lodged his submissions in support of the appeal. He says that that is because he has been unable to obtain the sound recording.
4. However, as I have dealt with in reasons for various aspects of the application already, it is apparent that the appellant has had an opportunity to resolve issues about that with the Registry and it seems from the submissions he has made that he has not done so. In any event, he accepts that the respondent has given him a transcript of the proceedings. He raises today, as I understand it for the first time, a concern that it may not be accurate but he does not say that he asked for a copy of the recording from the respondent, such that he could satisfy himself that any such inaccuracy in fact arises.
5. In my view, it would be appropriate to refuse to exercise the discretion to refer the questions the appellant has sought to have referred on that basis alone. Without the appellant clearly setting out in submissions what it is that he says the Tribunal did in error at first instance it is difficult to be clear as to whether the questions sought to be referred arise in the proceedings. However, as the Tribunal went on to deal with in the Registrar of Births, Deaths and Marriages matter I referred to earlier, there are other factors at play. In particular, there is the issue of whether questions of law have in fact been identified. The appellant, l think quite properly, at least tacitly seems to acknowledge that many of the questions he has drafted may not be questions of law. In that regard, he says that as he is not legally trained the Appeal Panel or indeed the respondent should assist him in reframing the questions so that they do in fact meet that requirement.
6. I do not think that there is any obligation on either the respondent or the Appeal Panel to do so. Once the appellant identifies, if he intends to do that by making submissions, the Tribunal's error and if they in fact raise a question of law then the Appeal Panel which deals with the substantive appeal may decide to refer those questions to the Court if they feel it is appropriate, and the President consents.
7. However, on the application and the proposed questions as currently drafted, I am not satisfied that I should do so. In my view, the current drafting of the application does not raise questions of law. By way of example only, a question framed at question 3, "What is the statutory construction of the Civil and Administrative Tribunal Act section 3?" is not a question of law which can be considered or dealt with by the Court. Nor, in my view, could it properly be reframed by this Tribunal or the respondent on the information currently available from the appellant.
8. The questions in general seem to arise, as was again at least tacitly acknowledged in the appellant's submissions, from the appellant's concerns over an extended period as to decisions made by this Tribunal and officers of the Registry, wherein he says he has been denied procedural fairness. The question of procedural fairness seems to be a specific focus of the application in that regard. The appellant says that he has also been refused reasons for the Tribunal denying him procedural fairness. That seems to be a misapprehension on the appellant's part as to what has in fact occurred on the evidence and information available to me and the submissions the appellant has made.
9. If the appellant receives a 'decision' of the Tribunal for which reasons should be given, and he makes a request under s 62 of the NCAT Act, then the Tribunal is obliged to give its reasons. The appellant is well aware of this as he has exercised that right in respect of several previous decisions I have made. If the appellant asserts that he was denied procedural fairness, he has appeal rights in relation to that.
10. Even if I am wrong about the obligation to assist the appellant to redraft his proposed questions, I then need to consider the factors in favour of or against referral, again as set out in the Registrar of Births Deaths and Marriages decision. Factors in favour of referral may include a situation where there is no existing authoritative statement from an appellate Court on the question of law; that the decision may have an impact broader than on the immediate parties; and that a determination by the Court may truncate the legal process. None of those factors apply here.
11. Factors weighing against making such a referral are that the Appeal Panel may resolve all of the issues, which in my view is the case here. It can do it justly, quickly and cheaply in accordance with its obligations under the NCAT Act. These are matters which the Tribunal routinely determines and there is a remedy available to the appellant to appeal from a decision of the Appeal Panel if he is dissatisfied with the way that it deals with any questions of law he raises in respect of the matter.
12. Finally, experience has shown the procedures that fragment the hearing and the disposition of proceedings have generally been found to produce difficulty and delay rather than speed and efficiency. There have been many instances where procedures of that kind have produced unfortunate results as it is difficult to anticipate exactly what will be necessary for an efficient referral of a question. It is also to be borne in mind that referral of the question of law to the Court would be moving the matter into a jurisdiction where the usual rules as to costs apply, and I cite a decision of Milner v Commissioner of Police, NSW Police Force [2017] NSWCATOD 37.
13. It seems to me that it would be an inefficient use of the parties' time to attempt to refer the questions as currently framed to the Court and unlikely that the Court would accept that they are questions of law arising in the proceedings or seek to determine them. Weighing all of those factors, I am not satisfied that I should exercise my discretion to refer the questions proposed by the appellant to the Court, acknowledging that it would require the consent of the President in any event, had I formed a different view.
14. The application in that regard is dismissed.

An a priori recusal application about other members of the Tribunal

1. The next order sought by Mr Zonnevylle is an order that various Tribunal members are not to preside over any of his proceedings. It commences with a list of members of this Tribunal, many of whose names are prefaced by the phrase "the alleged corrupt congenital liar". He then adds the name of three other members, including me.
2. I agree with the respondent's submission that that application is not a competent one for determination by the Tribunal. Mr Zonnevylle effectively conceded as much in his submissions, other than in respect of me as he is aware he can ask me to recuse myself for bias in this hearing. He has done so already.
3. The application is, on that basis, an abuse of process and I will not make the order sought. I will, however, return to the issue of the appellant's descriptor of the named members as 'alleged corrupt congenital liars', later.

Other miscellaneous orders sought

1. I am satisfied in respect of order 10, that a hearing of the applications be conducted, that has occurred already and so there is no order I can properly make in that regard.
2. In respect of the order sought number 11, that no other orders or directions are made until the questions of law are answered, having determined that the questions of law will not be referred to the Supreme Court there is no appropriate order that I could make in that regard.
3. Order 12 seeks that I declare any alleged bias or apprehended bias or alleged misconduct perpetrated by "the member" (here me) in respect of these proceedings against a party. This is another order which seeks, in effect, to dictate terms to the Tribunal on how it will conduct its operations and the members, in particular, in how they will conduct hearings. As I indicated earlier, there can be no doubt that members are required to declare known issues which might lead to a reasonable apprehension of bias, or of actual bias. Seeking an order in those terms is not an application which is properly brought. It is, to use the term used commonly by courts, one which could properly be considered an incompetent application. That is, it is not an order the appellant is entitled to seek from the Tribunal in the resolution of the proceedings between these parties. It is refused.
4. The next group of orders sought which I need to deal with is the second application lodged by the appellant which was also dated 30 October 2022. In respect of that application it is sought that I set aside directions I made on 27 July 2022 to prepare the appeal, which I have already indicated will occur, and that a new hearing be scheduled, which I will also do. That has been caused by delay in respect of the appellant obtaining the sound recording of the hearing at first instance.
5. The third order sought was that the Tribunal "award exemplary costs against the Tribunal Registry." As the appellant correctly notes in his submissions the NCAT Act at s 60 sets out that the Tribunal may award costs in proceedings. The Tribunal has found on various occasions that non-parties can be the subject of costs orders: The Owners - Strata Plan No 79749 v Dunstan [2022] NSWCATAP 262; 203 Castlereagh Street Pty Ltd v Skybloo Holdings Pty Ltd (No 3) [2015] NSWCATAP 240.
6. The premise of the application, however, relates to the next order sought which is that the Tribunal refer Ms Skinner, a Deputy Divisional Registrar of the Tribunal, to various organisations, including the Legal Services Commission, the New South Wales Law Society, the Ombudsman, the Director of Public Prosecutions and others, and the appellant sets out his grounds for those orders.
7. The appellant's concerns relate to matters which I have dealt with already in various ways, although sometimes obliquely today, particularly about his concerns about how documents are lodged and fee waiver applications have been dealt with. The appellant has made submissions at length about his concerns about those issues. He says that he has made valid applications to the Tribunal for fee waivers and that they have been dealt with by persons other than the Principal Registrar. I dealt with that in reasons earlier.
8. The appellant also raises concerns, and has referred me to a significant set of correspondence he engaged in with the Tribunal in early to mid-2022 in respect of this appeal, where he sought to clarify with the Tribunal or have it agree that he had a credit in respect of fees that were paid that should be applied. It is apparent that the Tribunal Registry disagreed with him.
9. A similar, but not identical application, was made last year in respect of orders for referral of Deputy Divisional Registrar Skinner. That was dealt with by me on 7 November 2022. I referred to the email on file from Registry to the appellant dated 23 August 2022, referable to his application for the sound recording in this appeal, which is recorded above. I noted in my reasons of 7 November that the appellant's application in that regard did not engage with that correspondence. Nor did Mr Zonnevylle engage with that correspondence in argument today.
10. There is, on the material before me, a distinct lack of certainty about what has in fact occurred in respect of Mr Zonnevylle's applications for the sound recording in this appeal. However, what is apparent is that the Registry has attempted to engage with Mr Zonnevylle to clarify what it requires from him in order to obtain the sound recording. Nothing in that correspondence appears to me to warrant any such referral of Deputy Divisional Registrar Skinner as sought in the application but more fundamentally than that, nor did Mr Zonnevylle identify, and I am unaware of, any specific power of the Tribunal to make such a referral.
11. To be clear, even if I thought the power existed I would not do so for the reasons I have set out. There are complaint procedures available to parties in this Tribunal. If Mr Zonnevylle wishes to avail himself of them, and it seems that he does, the information about how that can occur is dealt with on the Tribunal's website. The balance of that aspect of the application is refused on that basis.
12. Similarly, in relation to the awarding of "exemplary costs", having found that there is nothing which I am satisfied was untoward in the way the Registry has dealt with Mr Zonnevylle in relation to the sound recording or fee waivers, there is no proper basis upon which an award of costs could be warranted.
13. The next issue is another application lodged by Mr Zonnevylle and dated 30 October 2022. In respect of orders sought 1 to 7 the appellant seeks, firstly, an adjournment of the November 2022 hearing of the appeal which happened in any event for other reasons, but also that the hearing remain adjourned until the outcome of the associated Office of the Legal Service Commissioner complaints are finalised; that he is provided reasonable and adequate procedural fairness in which to make submissions; that the Tribunal is required to extend time for filing submissions prior to the substantive hearing; the Tribunal is required to order the Registry to provide him with the hearing sound recording within a period without payment in both CD and downloadable formats; the Tribunal is required to order the Registry to provide detailed and adequate reasons for the refusal/shredding of his credit card payments; that the Tribunal is required to order the Registry to provide details of all instances when his credit card payment authorities have been refused or shredded; the Tribunal is required to order the Registry to provide submissions detailing how the refusal or shredding of his credit payment authority is lawful and consistent with mandatory conduct obligations, consistent with "Uniform Procedures legal practitioner conduct obligations" and not a deliberate obstruction of his rights. Further, that the Tribunal is to order the Registry to provide details with evidence identifying which officer made any decisions to refuse his fee waivers associated with all of the above.
14. Firstly, I will be extending time for filing the submissions by Mr Zonnevylle. It is also the case that the respondent, who has obtained the official sound recording and previously provided Mr Zonnevylle with a transcript it has prepared or had prepared, has indicated that they are willing to provide the sound recording and have asked for seven days to do that. I will make a direction in that regard given that it is not opposed.
15. However, I will not delay the hearing of the appeal until such time as any associated complaints about Registry are dealt with. I am not making referrals for complaint, as I indicated earlier. Mr Zonnevylle has rights to make whatever complaints he wishes to in any appropriate forum but he has not identified any proper basis upon which the hearing of this appeal should be delayed until such time as that has occurred.
16. I will not order that the Tribunal provide the appellant with a sound recording without payment. It is clear, as I have said, from the material before me that the Tribunal has attempted to engage with Mr Zonnevylle to ensure that he has made payment. No matter what else he has submitted it is clear from his submissions, and in fact the terms of order sought number 3 itself, that the appellant has not, in fact, made payment for the sound recording. It is not appropriate that I order that the Tribunal provide it in those circumstances. If Mr Zonnevylle is satisfied with the copy of the recording provided by the respondent in accordance with the direction I will make, that is fine. If he is not, and is concerned that he needs an official copy, he will need to engage appropriately with the Registry to obtain one.
17. Similarly, the applications in respect of orders 5, 6 and 7 are not orders which are properly sought in respect of these proceedings in my view. They are not sought to progress the resolution of the appeal itself, but rather to deal with a collateral concern the appellant has as to the conduct of the Registry more broadly. The applications in that regard are an abuse of process and should be refused on that basis.
18. In respect of the balance of the orders sought in that application the appellant conceded that the vast majority of those orders had been previously dealt with in respect of other decisions I have made today or were not pressed. Order 25 sought, is that pursuant to the Civil and Administrative Tribunal Act, "for transparency, accountability and the public interest, the member is required to make reference to specific documents and evidence when making any statements or decisions in the substantive decision which seeks to malign, defame or damage the SRNLPA's reputation." As I have not sought to make any decisions or made any decisions which malign the appellant, defame him or damage his reputation, there is no substance to that application. However, what I would say is that the principles which the Tribunal works under in respect of the appropriate content and adequacy of its reasons are not issues which are in any way unclear. They were dealt with by the Court of Appeal in the decision of New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231. That decision makes clear what the Tribunal is or is not required to deal with in its written decisions and the appellant and any other party has appeal rights if that obligation is not met.
19. The balance of the applications before me today are applications lodged on 15 January 2022. The orders sought in that regard are that the substantive hearing is to be adjourned and a new timetable to be considered. That will occur for reasons I have given.
20. The second order sought really relates to what the Tribunal is obliged to do and is, again, not an appropriate order for the Tribunal to make but rather deals with issues of principle which the appellant says the Tribunal ought to engage with. To the extent that it he says that the Tribunal should ensure that the Tribunal is accessible and responsive to the needs of all of its users, that is an appropriate issue for the Tribunal to aspire to but it is not something which can properly be ordered, as applied for.
21. The other orders sought in 2(c) to 2(g) and then as a renumbered (c) and (d) in my view fall within similar bounds.
22. The next aspect of the application is that the Tribunal is required to make findings of fact in terms set out by the appellant. It is not appropriate that the appellant attempt to dictate to the Tribunal what findings of fact it will make, nor is the Tribunal required to engage with making findings which are not necessary for the determination of applications which are properly before it. I am not satisfied that the applications which are made in that regard warrant findings as sought by the appellant and the reasons for that are dealt with by the reasons I have given in respect of earlier decisions today. In short, the order sought is an abuse of process.
23. The next aspect of the application is that the Tribunal is "required" to summons various members of the Registry including the former Principal Registrar and the current Principal Registrar, amongst others. The summons is for the Registry officers to appear and it also seeks "all records" from the NCAT Registry where fee waivers have been refused; documents identifying those fee waiver decision-makers; and details of when the appellant's payment authorities have been refused or destroyed, amongst other things. I am not satisfied that there is merit in the request that the Tribunal issue summonses to those Registry officers in that regard.
24. Section 48(1) of the NCAT Act provides that a summons may be issued by a Registrar on the application of a party or at the direction of the Tribunal. There is no doubt, then, that the Tribunal has power to issue such summonses. However, the overriding principle in relation to the issue of a summons is the evidence sought to be obtained, whether it be documentary or testimonial, must have apparent (as distinct from actual) relevance to the case. In other words, the information needs to be able to throw light on the issues of the case and I cite Sharpe v Grobbel [2017] NSWSC 1065 at [35]. The technical term used is that the summons must be issued for a legitimate forensic purpose. The onus is on the party attempting to procure the evidence to demonstrate a legitimate forensic purpose by reference to the issues as disclosed in the pleadings.
25. The nature of this proceeding is that it is an appeal from a decision of a member of the Tribunal. Absent an order made by the Appeal Panel under s 80(3) of the NCAT Act, the appeal is by way of re-hearing rather than hearing de novo and there has been no such order made by the Appeal Panel at this time. On that basis the appeal is prima facie to be determined on the information before the decision-maker at the time the decision was made.
26. There is no reason to accept that there is any likelihood that, even if the summonses were issued, the Appeal Panel would allow evidence from the appellant returned on the proposed summonses, or through examination of the summons recipients in respect of the matter because it would not serve a legitimate forensic purpose in respect of the determination of the appeal. The appellant's concerns relate to his issues about the Registry's conduct of his fee waiver applications. Those are not matters which are relevant to the determination of the appeal and the summonses could serve no legitimate forensic purpose in those circumstances.
27. In Brand v Digi-tech [2001] NSWSC 425 the Court stated at 36: I think it is indisputable that, if the subpoenaed documents are by their description arguably relevant or capable of providing a legitimate basis for cross examination on credit matters, then an application to set aside a subpoena on the grounds of irrelevance of the documents to the proceedings is misconceived. It is equally clear, in my view, that, if the description of the documents is such as to admit of a finding that the documents are manifestly irrelevant and incapable of touching matters of credit, then the issuing of such a subpoena represents an abuse of process.
28. In respect of the application for summonses to Registry officers I am satisfied that last description is apposite and the applications for summons should be refused as an abuse of process.
29. It was then raised in the hearing that, in respect of this appeal there is also an application that various officers of the Department of Education be summonsed. That was not clearly set out in the application made by the appellant on 15 January and, having reviewed the file, it appears that they were only in fact lodged in respect of the other appeal proceedings which I was to deal with interlocutory applications in today, but have run out of time to do so.
30. Those are appeal proceedings 2022/00036436. The appellant was unable to assist me to identify when he lodged the applications for summons in respect of this proceedings, if he did so. If the appellant can demonstrate that the applications for a summons to the officers of the Department of Education are properly before the Tribunal in this appeal, then I will deal with them at a later date because, unfortunately, as I have run out of time there will need to be another date allocated in respect of these matters.
31. I am also told that there was a further application lodged by the appellant over the weekend. That was only raised with me late in the hearing today. It has not been put before me. Nor, due to the lack of time, am I going to be in a position to deal with it today.
32. Going back to the application made on 15 January, at order sought number 4 the appellant sought to have the Tribunal refer various questions of law to the Supreme Court. I gave reasons in respect of another application in similar terms earlier today, albeit that they were different questions of law which the appellant sought to have referred.
33. The purported questions of law in this application refer to the obligations on the Tribunal in respect of how it deals with various matters with a particular focus on questions of procedural fairness and the provision of sound recordings, which I have been dealing with in various ways throughout the course of the day.
34. The reasons I gave in respect of those earlier applications should be considered in respect of this one, in terms of the principles to be applied.
35. It is sufficient, in my view, to note that the purported questions of law which have been drafted by the appellant are not questions of law which arise in the proceedings or need to be answered by the Supreme Court. For example, a question is drafted in terms of "Does a party to NCAT proceedings have a legislative right or procedural fairness for any fee waiver application to be decided by the Principal Member?"
36. There is nothing which has been referred to which indicates that a Principal Member should or does have any power to deal with fee waiver applications. The legislation, in particular cl 6 of the Regulations, indicates that it is the Principal Registrar who deals with such matters. The proposed questions of law are not ones which, in my view, there is any likelihood that the Court would accept as being valid questions of law or feel that it was necessary to answer.
37. To the extent that the appellant is later able to demonstrate that the issues are relevant to his appeal, the Appeal Panel when determining the substantive matter will no doubt give reasons in respect of relevant issues and the appellant will have rights of appeal to the Court in that regard.
38. The other orders sought in the formal applications I dealt with today which have not been specifically addressed were either subsumed into my consideration of other orders or not pressed.

Addendum

1. Throughout the hearing today, the appellant made several further applications that I recuse myself. I refused each of them. They were made, variously, on the bases that I: 1. "baited" him whist giving oral reasons; 2. made "absolutely corrupt, false, misleading statements"; 3. am a "company man," focussed on protecting the Registry and Ms Mattes; 4. "abuse my position" and my authority; 5. insulted him by putting him on mute when he refused to stop speaking when directed or whilst I was giving oral reasons; 6. am a bully; 7. have no integrity; and 8. failed to allude to an academic article in his material headed "After Heydon and Carmody, does Australia need a new test for judicial recusal" when dealing with his recusal applications.
2. On each further occasion the applications were renewed, it was clear that the basis for the renewal was my determination of the previous aspect of the applications in a way unfavourable to the appellant. Certainly, I found it necessary to place the appellant on mute on several occasions during the hearing. I did so on occasions where the appellant, who appeared at his request, by leave, via telephone, refused to stop interjecting and refused to stop making submissions after the time I had allocated for him to do so had finished. My oral reasons could, therefore, not be recorded without interruption. Dealing with the interlocutory applications today took a full day of the parties' time, where the substantive appeal could reasonably be expected to be conducted in a half day.
3. My conduct of the hearing was appropriate, proportional and responsive to the need to have a hearing which was fair to both parties, having regard to the conduct of the appellant. I am not persuaded that anything in my decision making involved actual bias, or would lead a fair-minded lay observer to the point where they might reasonably think that I might not bring an impartial mind to the determination of the applications. In respect of the article concerning "…does Australia need a new test for judicial recusal", as I have indicated to the appellant previously, I am required to apply the law as it stands unless and until we have one.
4. I reject the assertion that I "lied" in my reasons. I reject the other assertions made by Mr Zonnevylle as to my integrity, made whilst I was attempting to fairly determine and give reasons for each application made in the proceedings on its merits.
5. In that regard, and as I have recorded above, the appellant has made several unsubstantiated allegations which are not only serious but malicious. They were put in a way that goes well beyond the appellant pursuing his legitimate interests in these appeals. They are also potentially both legally scandalous and in contempt of the Tribunal.
6. However, I have decided to treat the appellant's potentially contemptuous comments about me as a misguided choice of language, driven by his lack of legal training and difficulties he has demonstrated in maintaining his composure in the hearing process. As I record above, however, the appellant also repeatedly refers to other members of this Tribunal, amongst others, in his applications and written submissions as 'alleged corrupt congenital liars.' It may be that those comments, made outside the hearing context, would not attract the same generosity of approach in other proceedings. It may be that the use of "alleged" by the appellant would not inoculate him from a finding of contempt, in such a context.
7. I record these matters simply so that the appellant is appropriately forewarned of the possible consequences of his conduct, and of any similar conduct in the future.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 24 February 2023