Zonnevylle v Secretary, NSW Department of Education

NCAT Administrative and Equal Opportunity|2022-02-22

REASONS FOR DECISION

On 19 May 2021 the applicant applied to the Tribunal under s 110 of the Government Information (Public Access) Act 2009 (the GIPA Act) for approval to the making of an application for access to information held by the respondent (the Application). That approval was required as a consequence of orders made by the Tribunal on 3 April 2020: Department of Education v Zonnevylle [2020] NSWCATAD 96.
At a directions hearing on 22 February 2022 I made orders declining the applicant's requests that I recuse myself; declined his request that I provide oral reasons; and declined his application for permission to record the proceedings. I stated on that occasion that written reasons would be provided: these are those reasons.
The applicant has subsequently requested a written statement of reasons under s 62 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). These reasons are provided as required by s 62(2) of the NCAT Act.

Recusal applications

My reasons for declining the requests that I recuse myself are as follows.
A decision maker has an obligation to hear and determine a matter unless a reasonable apprehension of bias can be established: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [19]; Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [35]-[36]; see also Charisteas v Charisteas [2021] HCA 29. The general test for apprehended bias, whether in a court or in a tribunal, is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [11].
The two step process involved was explained by the High Court in Ebner v Official Trustee in Bankruptcy at [8]: First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
For a decision-maker to disqualify himself or herself for apprehended bias, there must be an objective connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the decision-maker might not bring an impartial mind to bear on the issues that are to be decided: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [67], per Gummow ACJ, Hayne, Crennan and Bell JJ.
As explained in the Information Sheet provided to the parties with the Notice of Listing-Directions, the purpose of a directions list is to make directions for each of the matters in that list as to what the parties need to do to resolve the case or prepare it for a hearing, including by setting a timetable and listing a hearing date. The fact that a decision-maker makes a ruling on a procedural issue in such a list against a party does not, of itself, demonstrate that the decision-maker does not bring an impartial mind to bear upon the determination of the issues in the matter: Zonnevylle v Secretary, NSW Department of Education [2022] NSWCATAD 56 at [12]. The fact that I have made procedural rulings on other matters in the Tribunal in which the applicant has been involved, and the fact that he has made a complaint about the way in which I have handled other matters in which he has been involved, or about particular directions given or decisions made in those matters, does not demonstrate the required connection between the facts and circumstances of any of those matters and the asserted conclusion that I might not bring an impartial mind to the resolution of the matters required to be addressed in a directions hearing in the present proceeding. That includes the question of whether there is an obligation, in a directions list, to provide oral reasons for any procedural direction or other decision, at the request of a party.
There is no basis for a reasonable apprehension of bias in any of the matters on which the applicant bases his requests that I recuse myself.

Oral reasons

The applicant requested oral reasons for the refusal of his requests for recusal and for the refusal of his request for oral reasons.
Section 62 of the NCAT Act requires the Tribunal to provide a written statement of reasons for a decision, at the request of a party, if a written statement of reasons has not already been provided to the party. Such a statement must set out the findings on material questions of fact, the Tribunal's understanding of the relevant law, and the reasoning processes that lead the Tribunal to the conclusions it made: NCAT Act, s 62(3). Section 62(4) provides: Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party.
In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel summarised the effect of s 62 of the NCAT Act: 47. Section 62 establishes a regime under which the Tribunal is not under an express statutory obligation to provide reasons for a decision unless a party makes a request for reasons under s 62(2) but the Tribunal may and in many cases does prepare and give reasons for decision, whether oral or written, without a request to do so from the parties, consistently with s 62(4).
As the Appeal Panel explained, s 62 does not define exhaustively when there is a duty to give reasons, or the extent of that duty. That question was considered by the Court of Appeal in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [65]-[77], Bell P noting (at [55]) that s 62(3) supplies important guidance as to what should be set out by the Tribunal in reasons which it chooses to give even without a request for reasons pursuant to s 62(2) of the NCAT Act.
Section 62 of the NCAT Act imposes no statutory obligation on a Tribunal member to provide oral reasons at the request of a party. Whether or not oral ex tempore reasons should be delivered in any particular matter, or written reasons provided later, requires consideration of all relevant circumstances, including expediency, and the nature and complexity of the issues to be determined.
Not all the procedural directions made in a directions hearing would be a "decision" as defined in s 5 of the NCAT Act to which the obligation imposed by s 62 of the NCAT Act would apply. As the Court of Appeal noted in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [68], even superior courts are not required to give reasons for every interlocutory decision (citing Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56], [98], Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [42]; Lodhi v Attorney General (NSW) [2013] NSWCA 433; 241 A Crim R 477 at [29]; R v Kay; Ex parte Attorney-General (Qld) [2017] 2 Qd R 522; [2016] QCA 269 at [27]).
The present proceeding was one of a number of matters in a regular directions list in the Administrative and Equal Opportunity Division of the Tribunal on 22 February 2022. In making procedural directions in each of the matters in that list the Tribunal is required to give effect to the guiding principle as stated in s 36(1) of the NCAT Act, namely "..to facilitate the just, quick and cheap resolution of the real issues in the proceedings". In doing so the "practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the costs to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings": NCAT Act, s36(5). Achieving a just, timely, and cost-effective resolution of a dispute has effects not only on the parties to that dispute, but on the Tribunal and on other litigants: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46.
The exercise of the discretion as to whether reasons are given orally at the time a decision or ruling is made in any particular matter, or written reasons provided later, requires a balancing of the factors identified in the guiding principle in s 36(1) of the NCAT Act. Those factors may be in conflict. In the case of a directions list with a number of other matters involving other litigants it is unlikely that time would permit the Tribunal to provide oral reasons that would satisfy the requirements of s 62(3), as discussed in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231. That was so in the directions list on 22 February 2022. The applicant was told that he would be provided with written reasons, and that has occurred.

Application for permission to record

In the written submissions in support of his application made on 15 February 2022 for permission to record the applicant referred the objects in s 3 of the NCAT Act, and the objects stated in s 3 of the Administrative Decisions Review Act 1997. His reasons in favour of his application that he be permitted to record the proceeding were: 1. The proceedings are to be in open court: NCAT Act, s 49; 2. There is no overriding public interest in refusing the permission; 3. There is no policy or directive from the Tribunal to require members to refuse permission; 4. Section 9 is a discretion exercised by the Tribunal and granting permission promotes the objects of the NCAT Act; 5. Permission provides both the applicant and respondent immediate access to the same identical sound recording, and both parties can exercise their legislative rights with minimal delays; 6. Both parties are subject to the same restrictions of use for independent recordings; 7. Applicant and respondent resources are not wasted with the unnecessary formalities required for accessing the sound recording; 8. Tribunal resources are not wasted with unnecessary formalities required for providing the sound recording; 9. There are no delivery or access delays, which cause a self-represented party actual detriments; 10. Unnecessary fees to acquire the sound recording from the Tribunal are a direct economic detriment for a self-represented party; 11. Transcripts can be produced more quickly; 12. Independent recordings made with permission resolve any self-represented party disputes or contentions about tampering of sound recordings; 13. Availability and security is enhanced with up to 3 independent copies, being the Tribunal recording, the self-represented party recording and the respondent's recording; 14. There is actual evidence of Tribunal sound recordings failing or going missing; 15. No response from the Tribunal to this legitimate and serious issue; 16. The Tribunal cannot guarantee that a self-represented party's interests are ensured with only the Tribunal recording; 17. The presiding Tribunal member is not a sound engineer, or a computer specialist, has never made a GIPA application as a self-represented party, and cannot claim to be a "fair minded everyday lay observer".
Additional issues raised by the applicant include his concerns as to fear of apprehended bias by part-time tribunal members and the practice of the Tribunal of accepting statements made by the respondent's representative; requiring a self-represented party to provide substantiating evidence to contest statements made by the respondent's legal representative; imbalance of resources and disadvantage for self-represented party when appearing at hearings contested by the respondent's legal representative; and conflict of interest for a part-time Tribunal member in refusing to facilitate access to the sound recording. The applicant referred to the reliance on the sound recording for his complaints against a member in another matter; to delays because sound recordings are inadequately packaged; and the absence of a response to an email sent on 6 January 2022.
Part 5 of the application for permission to record is a list of 10 "Directions/Orders to the tribunal" as to how his application is to be addressed, and his requirements if the application for permission to record is refused.
At the directions hearing on 22 February 2022 the applicant was provided an opportunity to make any further submissions in support of his application for permission to record, in addition to those provided with the application. The applicant stated that he required written reasons for any refusal, and that he required the respondent's representative to provide evidence of any unfair advantage or detriment if he recorded the proceedings. In reply to the application, the respondent's representative submitted that the applicant had not raised any matter, or special circumstances, that would warrant any variation being made to the default position under s 9(1) of the CS Act that no private recordings are to be made. The respondent's position is that the interests of the applicant are adequately protected by the official record especially in procedural proceedings. The respondent's representative submitted that the applicant makes a request for permission to record on every occasion on which he appears in the Tribunal or in the Appeal Panel, and no such request has been granted.
The applicant was given an opportunity to reply to the respondent's submissions. No reply was provided, and the requests that I recuse myself and provide oral reasons were repeated, before the applicant stated he would appeal and hung up. I declined to exercise the discretion to grant permission for the applicant to record the proceeding. My reasons follow.
Section 9 of the CS Act provides: 9 Use of recording devices in court premises (1) A person must not use a recording device to record sound or images (or both) in court premises. Maximum penalty - 200 penalty units or imprisonment for 12 months (or both). Note - This subsection only prohibits the use of a recording device to record sound or images (or both) and not any other use of the device. For example, this subsection would not prohibit a person from using a mobile phone with recording capabilities to make a telephone call, but would prohibit the use of the phone to record court proceedings. (2) Subsection (1) does not apply with respect to any of the following - (a) the use of a recording device that has been expressly permitted by a judicial officer, (b) the use by a lawyer of a recording device to record the lawyer's own voice in a part of court premises other than a room where a court is sitting, (c) the use of a recording device by a person for the purpose of transcribing court proceedings for the court, (d) the use of a recording device by a journalist while exercising a right referred to in section 6 (2), (e) the use of such recording devices in such other kinds of circumstances as may be prescribed by the regulations.
The Tribunal is a "court" as defined in s 4(1) of the CS Act, and I am, as the member constituting the Tribunal for the purposes of the directions hearing, a "judicial officer" for the purposes of considering whether to grant permission pursuant to s 9(2)(a) of the CS Act.
As confirmed by the Appeal Panel in Zonnevylle v Minister for Education & Early Childhood Learning [2021] NSWCATAP 398 at [32], a Tribunal Member has a discretion as to whether to permit the recording of the Tribunal proceedings. Relevant to the exercise of that discretion are the objects of the CS Act, which are stated in s 3 to be: (a) to provide for the secure and orderly operation of courts, and (b) to confer certain functions on judicial officers and security officers for that purpose.
The fee for an application by a party for a copy of the sound recording of a Tribunal proceeding is $45, payable by any party seeking a copy of the recording. The Tribunal notes that while the applicant expressed concerns as to delays and damage caused in posting copies of sound recordings, the Tribunal has since 1 October 2021 introduced a process by which parties can request to receive a copy of the sound recording from NCAT by email, using a secure file sharing service.
The directions list was, as is the usual practice, recorded by the Tribunal. The availability of a sound recording enables a party to consider whether or not to exercise any rights, including of appeal, in respect of a Tribunal proceeding, and to substantiate any allegations of denial of procedural fairness or other errors of fact or law in the proceeding. Any recording obtained from the Tribunal would be identical to a recording provided to any other party. The fact that all parties have access to the same recording, and the consequential avoidance of disputes as to accuracy or completeness of the recording, or any transcript subsequently obtained, is consistent with the object of the CS Act to provide for the "orderly" operation of courts and the Tribunal.
A sound recording provided by the Tribunal is copyright, and a party receiving a copy is advised that: Transmission, distribution or reproduction of this audio recording is permitted for the following purposes only: a. to provide the audio recording to a party's legal representative for the purposes of these proceedings or an appeal of these proceedings, b. to provide the audio recording to a court or tribunal for the purposes of an appeal of these proceedings, or c. to provide the audio recording to a transcription service to order a transcript of these proceedings.
A party to a proceeding does not require any further approval for use of the sound recording or any transcript obtained for the purposes of the proceeding or an appeal.
The availability of a copy of a recording on request, and refusal of a request by a party to make their own recording, does not affect the general proposition expressed in s 49 of the NCAT Act that Tribunal hearings are open to the public unless the Tribunal otherwise orders.
The applicant submits that there is no overriding public interest in refusing permission. However, s 9(1) of the CS Act is a prohibition, subject to an exception being provided under s 9(2)(a) of the CS Act. I am not persuaded that the applicant has established a basis on which it would be appropriate to depart in the present proceeding from the general principle that use of a recording device to record a Tribunal proceeding is prohibited.

Conclusion

The above are the reasons for the decisions and procedural rulings I made during the directions hearing on 22 February 2022. As noted at the time, having refused the applications for recusal, the request for oral reasons, and the request for permission to record, the applicant stated that he would appeal, and took no further part in the directions hearing.
The Tribunal notes that while the Application was made to the Tribunal some nine months ago, it is yet to be listed for determination. Unless and until the Application is determined in his favour, the applicant is unable to make his proposed access application under the GIPA Act. There has been delay while the applicant pursued an appeal against an interlocutory decision made earlier in the proceeding, that appeal application having been rejected for non payment of the filing fee. The next listing is to make directions to progress the determination of the Application.

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: 07 March 2022

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