Zonnevylle v Secretary, Department of Education; Zonnevylle v Secretary, Department of Education - [2023] NSWCATAP 80 - NSWCATAP 2023 case summary — Zoe

NSWNSWCATAP

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

[2023] NSWCATAP 80

NCAT Appeal Panel|2023-02-21

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Source facts

Court

NCAT Appeal Panel

Decision date

2023-02-21

Catchwords

[2022] NSWCATAD 187 Date of Decision: 03 December 2021 Before: S Higgins, Senior Member
M Griffin, Senior Member File Number(s): 2020/00045500
2021/00337143

Source

Original judgment source is linked above.

Catchwords

[2022] NSWCATAD 187 Date of Decision: 03 December 2021 Before: S Higgins, Senior MemberM Griffin, Senior Member File Number(s): 2020/000455002021/00337143

Judgment (16 paragraphs)

[1]

Court Security Act 2005 (NSW) Cases Cited: Charisteas v Charisteas [2021] HCA 29 Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 Collier v Country Women's Association of New South Wales [2018] NSWCA 36 Ebner v Official Trustee in Bankruptcy [2000] HCA 63 Expense Reduction Analyst Group Pty Ltd v Armstrong Strategic Management Pty Ltd [2013] HCA 46 GR v The Secretary Department of Communities and Justice [2022] NSWSC 1029 Lombardi and Ryder [2021] FedCFamC2F 57; (2021) 64 Fam LR 103 Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Zonnevylle v Secretary, Department of Education [2022] NSWCATAD 187 Zonnevylle v Secretary, Department of Education [2022] NSWCATAD 157 Zonnevylle v Secretary, Department of Education [2022] NSWCATAD 120 Zonnevylle v Secretary, Department of Education [2022] NSWCATAD 225 Zonnevylle v Secretary, Department of Education [2022] NSWCATAP 297 Zonnevylle v Secretary, Department of Education; Zonnevylle v Secretary, Department of Education [2023] NSWCATAP 53 Texts Cited: None cited Category: Procedural rulings Parties: Peter Zonnevylle (Appellant in each appeal) Secretary, Department of Education (Respondent in each appeal) Representation: Solicitors: Self-represented (Appellant) Crown Solicitor (Respondent) File Number(s): 2022/00036436; 2022/00196935 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2021] NSWCATAD 361; [2022] NSWCATAD 187 Date of Decision: 03 December 2021 Before: S Higgins, Senior Member; M Griffin, Senior Member File Number(s): 2020/00045500; 2021/00337143

[3]

An application to independently record the hearing

These matters have come before me for the second day to deal with interlocutory applications made in appeals by the appellant, Mr Peter Zonnevylle, regarding decisions of the Tribunal in its Administrative and Equal Opportunity Division where the respondent is the Secretary of the Department of Education.
I heard some applications in the proceedings ending in 935 previously on 30 January 2023 and gave my decisions. I gave oral reasons in respect of all aspects of the decisions I made that day, other than in respect of applications, subsequent to the original application, wherein Mr Zonnevylle asked that I recuse myself. Mr Zonnevylle has asked for written reasons, as he is entitled to, however the time for me to provide those written reasons has not yet expired and they are not yet available.
Mr Zonnevylle has today, at the outset of the hearing, renewed an application under the Court Security Act 2005 (NSW) to independently record today's hearing. I refused that application and indicated I would give written reasons for that decision, which I now provide.
I indicated that I would take Mr Zonnevylle's submissions on the earlier application as read, and asked what, if anything, had changed since I refused the application on 30 January 2023.
Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46 laid down a principle, that has often been repeated, to the effect that even though there is no res judicata or issue estoppel that prevents an interlocutory order from being revisited and varied, there is an ordinary but not invariable rule of practice, founded on the interests of justice, that such an application should be founded on a material change in circumstances or discovery of new material.
Mr Zonnevylle pointed to a renewed concern about the Registry's ability and willingness to provide him with sound recordings of hearings in which he participates, and in particular raised a concern that he had applied for the sound recording of the hearing I conducted on 30 January 2023 in these proceedings, but had received no response from the Registry. As the relevant correspondence in that regard is not retained on the file for the substantive proceedings, and the appellant had lodged no evidence in that regard, I stood the matter down to investigate the appellant's concern. In my view, if it is established that there is a systemic, and unreasonable, impediment being placed before the appellant in this regard, it would be a relevant issue for me to consider in respect of the exercise of my discretion as to whether I should allow the appellant to independently record the hearings in which he is involved.
As it transpires: 1. The application for the sound recording was only processed as received by the Registry on 15 February 2023, some two weeks after the hearing on 30 January and only four working days prior to the hearing before me today; 2. The appellant had again lodged a fee waiver and a credit card authority in the event the waiver was not accepted, contrary to correspondence from the Registry to him which I have referred him to in my earlier decisions of 30 January 2023 and 7 November 2022. In that correspondence, dated 23 August 2022, the appellant was advised that the Tribunal will not accept or process payment from him using the credit card authority form due to his prior conduct. However, as was made plain, the appellant could provide payment by cheque/money order, use of the secure payment portal or he could pay at an NCAT Registry or Service NSW; and 3. If that issue required clarification, the appellant did not assist in facilitating clear communication between him and the Registry because he used an email address on the application itself which contained the name of a Member of the Tribunal, in circumstances where he had also been advised in the correspondence of 23 August 2022 that "…where any of the email addresses provided by you include the name of a registry officer or Tribunal Member your application or email will not be actioned."
Relying on the principles set out in my decision of 30 January 2023, which is now published (Zonnevylle v Secretary, Department of Education; Zonnevylle v Secretary, Department of Education [2023] NSWCATAP 53), and taking the appellant's position including his fresh concerns as a whole, I was not satisfied that I should exercise my discretion to allow the appellant to independently record the proceedings. I am satisfied that my earlier findings that there is 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", remain apposite.

[4]

An adjournment application

The appellant then applied for an adjournment. He says that by listing this hearing within 28 days of the hearing on 30 January 2023, I am denying him his access to procedural rights. He raises concerns that I am overlooking evidence he has lodged by way of emails he has sent, as I understand it, by way of complaint to the Principal Registrar and he raises concerns, which I have dealt with in several ways on the last occasion, about the conduct of Registry staff in respect of various issues but predominantly his applications for sound recordings and fee waivers.
The principles regarding an adjournment are clear. The Tribunal has power to adjourn proceedings under s 51 of the Civil and Administrative Tribunal Act 2013 (NSW). The power is to be exercised according to the principles set out by the High Court in Expense Reduction Analyst Group Pty Ltd v Armstrong Strategic Management Pty Ltd [2013] HCA 46.
Procedural fairness may be denied if a decision maker fails to adjourn proceedings where such a failure has the effect of depriving a person from adequately presenting the person's case. Here, I firstly do not accept that I have in any way denied the appellant procedural fairness or the right to exercise his appeal rights against my decision by listing the continuation of the matter within 28 days. The appellant will receive my reasons in due course and it is from then that the time for him to lodge an appeal commences. Nor do I accept that there is any other denial of procedural fairness in listing the matter today.
The applications I am currently dealing with were lodged by the appellant some time ago. He has lodged another application seeking various orders yesterday which I am yet to deal with, but of course at this stage as I am yet to hear from the appellant as to why that application could not have been lodged earlier and from the respondent as to whether she is able to meet it, there can be no procedural unfairness at this stage in respect of those applications.
Furthermore, I am not satisfied that the appellant's concerns about the Registry, which I have described in terms of previous applications I dealt with on 30 January 2023 as involving an abuse of process, are matters which are necessary to determine to prosecute the appeal.
On that basis, there is no apparent reason why I should adjourn the hearing today for Mr Zonnevylle to continue agitating his concerns in that regard. However, if he raises in some of the applications I am yet to deal with, matters of any substance that might warrant an adjournment I will consider them at that time. For those reasons the application for an adjournment is refused.

[5]

An application that I recuse myself for actual bias

The appellant, after I have dealt with two other interlocutory aspects of his applications today, asks that I recuse myself on the basis of actual bias.
He says that I have made my decisions in the matters without regard to evidence which is before me and, in particular, in respect of complaints he has made to directly to the Principal Registrar of this Tribunal. He says that I have ignored the evidence in that regard. He is concerned that Registry officers are acting in a way which is contrary to his legal interests and that, as they are the gateway to his access to the Tribunal, that is prejudicing his ability to progress his legal rights. He says that there are abuses of his rights in that regard and unlawful actions taken by the Registry.
It is clear that the appellant believes that in dealing with his applications I have brought a closed mind to each of them. I infer he says that is because I am inherently tied to the Registry in respect of those issues, and so I am unwilling to consider them fairly on their merits and that the evidence for that is my previous refusal of his applications, including the reasons I gave which he says are wrong.
The principles to be applied in respect of applications for recusal for actual bias (or apprehended bias which is a lesser test) were set out by me in the reasons given when the appellant asked that I recuse myself for the first time on 30 January. As they were known to the parties I indicated I would include them in these written reasons rather than read them into the record.
In my written reasons reflecting my oral reasons of 30 January 2023 I recorded that: The application of the principle, insofar as it relates to an apprehension of bias, requires two steps as set out in [Ebner v Official Trustee in Bankruptcy [2000] HCA 63 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 v Charisteas [2021] HCA 29] at [12]. 19. 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."
It is not the case, as asserted by the appellant, that I have ignored evidence which is before me.
It is important to differentiate between what the appellant sends to the Registry by way of complaint and what he lodges as evidence in respect of his applications.
The complaints which the appellant makes are not put before Members as evidence, and in my view that is entirely appropriate.
The appellant is obliged to lodge evidence in support of his applications and to do so separately from his complaints.
The appellant says that I lied on a previous occasion when I said that he had not engaged with earlier correspondence of 23 August 2022 regarding his requests for sound recordings.
I am confident that the record will reflect that I did not say that he never engaged with Registry about that correspondence. What I indicated was that he did not engage with that issue in making submissions before me in his application for leave to independently record the proceedings.
In any event, if I have made any errors in the decisions I have made up until this point, the appellant has rights to appeal. However, I am not satisfied that my conduct is in fact indicative of bias or that the appellant has demonstrated that my conduct of his previous applications indicates that I have not brought an open mind, willing to be persuaded, to the determination of the applications before me today.
On those bases, the application for recusal is refused.

[6]

Further interlocutory applications in appeal 2022/00196935

I am going to dismiss the application lodged by the appellant dated 22 January 2023. The application seeks orders that the Tribunal is "required" to refer various Registry officers to various government and semi-governmental bodies for "perverting the course of justice".
Firstly, the appellant has been unable to identify any specific power which the Tribunal has to do so and I am unaware of any such power. The appellant referred to s 75 of the Civil and Administrative Tribunal Act. As the appellant correctly read into the record, that section indicates the proceedings for an offence against a provision of that Act may be commenced by the Minister or a person with the written consent of either the Minister or another body or person authorised by the Minister. There is no suggestion that the appellant falls within either sub-part of that section.
In any event, even if I were satisfied that there was such a power I would still not make the orders sought because the application is in my view an abuse of process. The appellant's application is quite clearly being pursued for a collateral purpose.
The application does not seek to resolve issues which are in dispute between these parties in this appeal. Nor could they assist in quelling the dispute between these parties in this appeal. In Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 at [69], the Court indicated that where a putative matter arises, a conclusion that there is no question raised by a party may be reached in the exercise of inherent jurisdiction by considering whether it would be an abuse of process to address the question. The Court said, with citations omitted: …There are at least three established categories of abuse of process: (i) the use of the court's processes for an illegitimate purpose; (ii) the use of the court's processes in a manner that is unjustifiably oppressive to one of the parties; and (iii) the use of the court's processes in a manner that impairs the integrity of the court. In each category, issues that are abuses of process are sometimes also described as involving no "real question".
In my view, it is the case here that the application is brought in an attempt by the appellant to progress his concerns about the way the Registry has dealt with his applications in general, and in particular applications in respect of sound recordings being provided to him, fee waiver requests and payments where those fee waivers have not been granted. I dealt with a similar but not identical application on 30 January 2023.
I found on that occasion that the application was an abuse of process. Nothing in respect of this matter or any of the new documentation the appellant has sought to refer me to is capable of persuading me to a different view.
The Court of Appeal in the matter of Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232 referred to the following observation by this Tribunal in the proceedings at first instance relevant to that appeal, at [34]: "[Mr Zonnevylle's] submissions demonstrate an intention to continue to agitate for findings of a lack of good faith, illegality and misconduct on the part of the respondent and seek review of decisions which are outside the scope of his application regardless of the implications of my interim decision or the other decisions outlined above."
In determining that appeal, McCallum JA (as Her Honour then was) found (with Macfarlan JA and Leeming JA in agreement) at [44]: It did not follow from those premises that persistence in the claims that were bad in law could never warrant the dismissal of the proceedings. The vexation lay in the combination of the fact that the claims were bad in law; the fact that they had been dismissed on that basis in the first decision of the Tribunal; and Mr Zonnevylle's demonstrated determination to persist in maintaining the same allegations and urging the Tribunal to determine them. In my view, it was wrong to hold that persistence in making claims which are "bad in law" (and have been held to be so) does not fall within the collateral purpose principle.
Here, I have determined previously that the applications by Mr Zonnnevylle to have the Tribunal summons members of the Registry to provide evidence about how they have conducted the processing of his applications were abuses of process. This application in my view falls within the same category. The application is dismissed.

[8]

Application to cross-examine the Respondent's solicitor dated 25 January 2023

The next aspect of the appellant's interlocutory applications I need to deal with is an application to cross‑examine the respondent's legal representative, be it Ms Mattes who appears for the respondent today, or any other officer representing the respondent at the hearing. The application was originally made before the hearing on 30 January, but not pressed on that date. It is pressed now in respect of today's hearing.
The application can be simply disposed of. There is no evidence being given by Ms Mattes or any other officer representing the respondent today. On that basis, there is nothing to cross‑examine them about. For those reasons I was satisfied I did not need to give Mr Zonnevylle an opportunity to make submissions in reply. I raised with him when he made his primary submissions the issue of whether there was any evidence from Ms Mattes and he was unable to identify any such evidence. It is clearly the case, then, that there is nothing upon which Ms Mattes could properly be cross‑examined.
I should record for completeness that Mr Zonnevylle seems to wish to cross‑examine Ms Mattes about whether she holds current and appropriate instructions to oppose the various applications he has made in these proceedings and his concern seems to primarily relate to the fact that the respondent is not here in person or, I infer, represented by anyone with appropriate delegated authority to provide those instructions.
A solicitor may have standing instructions in relation to applications which have been brought, to prosecute or defend them in the absence of their client. These applications have been brought before today and they are not coming as a surprise to the respondent. I have no concerns as to whether the respondent has provided appropriate instructions to the solicitor representing her, nor does the solicitor's ability to respond to those matters need to be dealt with by cross-examination.
On that basis, the application is refused.

[10]

Application dated 12 February 2023

In the next application the first issue raised by the appellant is an application that I recuse myself. I have dealt with that already today.
The next order sought is that a member more senior than I decide this application. Having declined to recuse myself, that is not an appropriate order for me to make. It is then sought that I provide a separate hearing on that issue prior to any further hearing for this application. The appellant did not address why that should be so and I cannot be satisfied there is any proper basis for that.
To the extent the appellant seeks that the hearing provide him with enough time to address the matter and exercise his rights, I am satisfied that has occurred.
By the specific orders sought there was also another application for an adjournment of this hearing. I have already heard and rejected that application today.
The next is that I am required to provide the appellant with the written reasons already requested from the hearing on 30 January 2023, prior to any further hearing. I gave oral reasons in respect of all but one aspect of my decision on that date. The appellant has requested written reasons. I am within the 28 days provided for me to provide those written reasons. I am confident that I will provide them within that time. The appellant has not addressed in this application why this application should not be dealt with before those written reasons are provided.
Earlier, in a previous application, he raised a concern that by listing this matter within the 28 days from the previous hearing I was infringing on his appeal rights. I have explained why that is not the case.
The next two orders sought are that I am to afford the appellant his legal rights, which I am satisfied that I have done.
The next order sought is that I am to waive the procedures established by the Civil and Adminiistrative Tribunal Act regarding the necessity that the appellant exercise his rights of appeal against interlocutory decisions made by me to the Supreme Court. The appellant has not addressed what power I would have to do so and I am not satisfied that I have any such power.
The next is that I am required to provide detailed and written reasons about why decisions made by me on 30 January do not constitute CAT/ADR, and I infer that means Civil and Administrative Tribunal Act or Administrative Decisions Review Act 1997 (NSW), decisions. My decisions are governed by the Civil and Administrative Tribunal Act, and I gave reasons for those decisions which will be delivered in writing in due course.
The next order sought is an order that I provide proper, written, detailed and full reasons why the decisions deemed to be made by me are not captured under the Civil and Administrative Tribunal Act. I do not think that is the case and I will be providing written reasons.
The next is an order seeking that I address specific issues in my written reasons in respect of the decisions I made previously. In those decisions I referred to a decision of New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231, where the Court of Appeal dealt with what the Tribunal is required to include in its written reasons. I am satisfied that I will do so in respect of the reasons I need to give in these proceedings.
The next order sought, numbered 9, is that I order the Principal Registrar to provide full details of "those systematic and unlawful breaches perpetrated by registry staff under her authority". I have now made clear on several occasions my view that the appellant's applications of that nature, although not of course identical, are abuses of process. The application in that regard is dismissed. For the same reason, so are the orders sought numbered 10, 11 and 12.

[11]

Application dated 16 February 2023, lodged 20 February 2023

The next application I need to deal with seeks a series of orders in an application dated 16 February 2023.
The first order sought is that I order a statement of agreed facts in the proceedings. The appellant has attached a statement of facts which he suggests ought be agreed for that purpose. The respondent opposes any such order.
It is apparent from the appellant's submissions that the reason he proposes that such an order be made is so that there can be agreed facts which can then be the subject of questions of law either determined by the Appeal Panel or, I infer, on referral to the Supreme Court. The appellant has made previous applications for referral of questions of law to the Supreme Court in these proceedings. I have dismissed them and given oral reasons.
I decline to make the order sought by the appellant for these reasons: 1. Firstly, I do not see how I can properly order the respondent to agree to the "facts" that that appellant proposes; 2. Secondly, the matters which are listed by the appellant in his proposed statement of agreed facts are not simply or uniformly self-evident facts. By way of example only, at number 15 Mr Zonnevylle suggests that one proposed agreed fact is that an acronym he uses to describe himself in the proceedings (SRNLPA) "is prejudiced by the actions of the NCAT registry/tribunal". That is not a fact which could be agreed without consideration of a legal matrix to determine what the nature of that alleged prejudice was, a determination of what, relevantly, had occurred and then to reach a conclusion as to the legal issue of whether prejudice has been occasioned. Similarly, another "fact" is, at 21 - "A formal complaint against a GSE Act registry officer is to be decided by either the principal registrar or a more senior GSE Act officer or an appropriate oversight agency/officer". That proposed "fact" goes to the heart of an issue I have dealt with in this appeal now in respect of several applications by the appellant relating to his concerns about how the Registry processes his applications, request for sound recordings, fee waivers and his other dealings with Registry. As I have now determined on several occasions in related applications, in my view it is an abuse of process to seek to have those matters determined by the Tribunal or referred to the Supreme Court. They are not matters which arise in the proceedings between these parties and on that basis the application is refused.
The second order sought is that "evidence concerning "Brazel" [the surname of the current Principal Registrar of the Tribunal] complaint be accepted by tribunal".
As I have indicated earlier in these reasons the appellant has made it clear that he has sent a complaint about the Principal Registrar, as I understand it, to the Principal Registrar. It has not been lodged separately in support of any such application.
However, in due course today I hope to renew directions that I have made, but previously had to vacate due to issues of non-compliance, for the preparation of the substantive appeal for hearing.
If Mr Zonnevylle elects to lodge his complaints about the Principal Registrar as evidence in the substantive appeal, in accordance with the standard direction of the Tribunal that any new evidence be lodged and served so that the Appeal Panel understands what documents leave to rely on is sought, then the appellant will have the opportunity to do so. It will be a question for the Appeal Panel determining the matter whether the evidence is accepted (to use the words in the direction) or not and it is not appropriate that I make such an order today without the document before me.
The third order sought is an adjournment of this hearing. I have already dealt with that. Its renewal was not agitated in submissions on this application. I see no reason to adjourn.
The next order sought is that I refer Registry officers to oversight persons or agencies. I have dealt with applications which are identical in substance if not in form already today. I have found them to be abuses of process. The same applies to this aspect of this application.
The next order sought is that I recuse myself if I refuse any of the above applications. I decline to recuse myself. The appellant did not address any further reason why I should do so. I accept, of course, that he may say that he needed to wait until he knew whether I had refused the earlier aspects of the application or not, but in my view it is clear that the mere fact that a judicial officer or tribunal member refuses to accept or make orders in accordance with an application is not a proper basis for recusal. Nor am I satisfied that anything else has been raised since the last time I refused a recusal application to warrant me doing so.

[13]

A delay in progressing the appeals to allow the appellant to appeal from my decisions

The appellant has indicated that, with some reluctance, he feels compelled to appeal from my interlocutory decisions made today and on 30 January 2023 to the Supreme Court. He asks that I delay any further determination of his appeal proceedings for that to occur.
I have now concluded determining all of the extant interlocutory applications in the proceedings ending 935. Many of those applications appear to have been duplicated in the other appeal proceeedings ending 436. Before proceeding to determine the applications in that appeal, I needed to hear from the parties about an issue peculiar to that appeal, which is that it has already commenced before a differently constituted Appeal Panel. It is possible that Appeal Panel may consider itself part heard, despite the decision indicating that the hearing did not proceed beyond an application by the appellant to independently record the proceeedings, subsequent applications for recusal and a preliminary decision regarding a request by the appellant that the Tribunal call witnesses of its own accord: Zonnevylle v Secretary, Department of Education [2022] NSWCATAP 297.
The respondent opposed any further delay, but did not strongly press any such opposition.
There is no requirement that proceedings be delayed so that a party may avail themselves of appeal rights in respect of interlocutory decisions. However, here, I think there are special features warranting my doing so now.
First, if I am wrong in the decisions I have made thus far, it is possible I will repeat those errors if I proceed to determine identical applications in the proceedings ending 436, unless there are differentiating features to be considered.
Second, if I am found to be right, the appellant may decide not to pursue his duplicated applications, saving the parties and the Tribunal time and expense.
Third, the appellant has now agitated his applications to independently record proceedings, to seek orders concerning the conduct of the Registry and for Members to recuse themselves on similar grounds in several matters before the Tribunal and Appeal Panel, differently constituted. In each case, he has been unsuccessful: see, for example, Zonnevylle v Secretary, Department of Education [2022] NSWCATAP 297; Zonnevylle v Secretary, Department of Education [2022] NSWCATAD 225; Zonnevylle v Secretary, Department of Education [2022] NSWCATAD 187; Zonnevylle v Secretary, Department of Education [2022] NSWCATAD 157; Zonnevylle v Secretary, Department of Education [2022] NSWCATAD 120.
If the Tribunal is acting on wrong principles, or making another material error, I think it best that be exposed by a decision of the Court now, so it can be corrected. That is particularly the case where the appellant regularly prefaces his similar or identical applications in each proceedings in which he is involved with the following, or similar, words: This application is required to be addressed / referred to in each & every hearing for these proceedings to minimize paperwork & formalities & to ensure that the Tribunal allows the SRNLPA to exercise those legislative & procedural rights available to the SRNLPA.

[16]

Addendum

After giving my decisions with oral reasons on 21 February 2023, I had cause to reflect on my understanding that the appellant had 28 days from receipt of my written reasons in which to lodge an appeal to the Court. It appears the position is not clear. As a result, I had the Registry issue a note in the following terms to the parties on the day of the hearing: During oral reasons today, the Principal Member indicated that his understanding was that the appellant had 28 days from receipt by him of the Appeal Panel's written reasons for the decisions on 30 January 2023 in which to seek leave to appeal. On review after the hearing, it appears that the law on that issue is not settled. The Principal Member refers to Jamal v State of New South Wales [2014] NSWCA 199 at [8]-[9]: 8. The notice of intention to appeal (or a notice of appeal) should have been filed and served within 28 days "after the material date": Uniform Civil Procedure Rules 2005 (NSW), r 51.8. According to the definition of the term "material date" in r 51.2, it is the date "on which the decision is pronounced or given" (not being a judgment, verdict or order in proceedings in the Supreme Court). The respondent submitted that time ran from the day on which the decision was delivered by the Appeal Panel in the presence of the applicant. That would be the correct analysis with respect to the judgment of a court. A notice of intention to appeal does no more than preserve for the prospective appellant a period within which to consider his or her position. Often that will allow a party to obtain (as in this case) written reasons before lodging an appeal. 9. On the other hand, where a party has a statutory entitlement to written reasons for a decision, it is arguable that the material date is the date on which those written reasons are given to the party, or even when they are received: cf Interpretation Act 1987 (NSW), s 76. The better view is that, at least when a decision and reasons are given in the presence of the party, that day is the "material date" under r 51.2. However, the matter was not fully argued by either party and the case can be disposed of without determining this issue. The Principal Member has asked that this information be conveyed to the parties so that the appellant can ensure that he is able to avail himself of any appeal rights within the required time.
That does not lead me to any different conclusion in respect of my substantive decisions. 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: 20 March 2023

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

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Judgment (16 paragraphs)

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Cases Cited (20)

Cited By (2)