Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Zonnevylle v Department of Education [2020] NSWCATAP 162 Hearing dates: On the Papers Date of orders: 30 July 2020 Decision date: 30 July 2020 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member Decision: (1) The application for Order 2 in the Application for Stay or Interim Order dated 27 May 2020, repeated as Order 2 in the General Application form dated 27 May 2020, is dismissed. (2) The application for Order 3 in the General Application form dated 27 May 2020 is dismissed. Catchwords: APPEALS – access to government information – matters which may properly be the subject of interlocutory applications – requirement to give reasons for procedural directions Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 Cases Cited: Gaynor v Burns [2015] NSWCATAP 184 Rediffusion (Hong Kong) Limited v Attorney General [1970] AC 1136 Texts Cited: Ritchie's Uniform Civil Procedure Category: Procedural and other rulings Parties: Peter Zonnevylle (Appellant) Department of Education (Respondent) Representation: Solicitors: Appellant (Self Represented) Hicksons Lawyers (Respondent) File Number(s): AP 20/19814 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2020] NSWCATAD 96. Date of Decision: 3 April 2020 Before: D Dinnen, Senior Member File Number(s): 2018/00322532 REASONS FOR DECISION 1. The appellant challenges a decision of the Tribunal that, pursuant to s 110 of the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act), he is not permitted to make an access application to various named government departments and related agencies, without first obtaining the approval of the Tribunal (the Decision). The Decision required the Tribunal to exercise its discretion in respect of whether such an order should be made, after the Tribunal was satisfied that the appellant had made at least three access applications (to one or more agencies) in the previous two years that lack merit: GIPA Act, s 110. The Decision was made on 3 April 2020: Department of Education v Zonnevylle [2020] NSWCATAD 96. 2. The appellant lodged his Notice of Appeal on 1 May 2020, together with an Application for a Stay. In support of the Notice of Appeal and the Application for a Stay, the appellant annexed over 100 collated documents he saw as relevant to the issues in dispute. 3. On 12 May 2020, I made directions to list the appeal for a call-over and hearing of the Application for a Stay on 26 May 2020. 4. As part of those directions, I directed the appellant to lodge in the Tribunal and serve any further evidence and submissions in support of his Application for a Stay by 15 May 2020. I directed that the respondent lodge in the Tribunal and serve any evidence and submissions in opposition to the Application for a Stay by 21 May 2020. 5. In accordance with those directions, the respondent lodged submissions and evidence including an affidavit of some 69 pages which sought to address, amongst other things, the nature and extent of applications made under the GIPA Act by the appellant for information held by the respondent and other government departments. 6. On 26 May 2020, I made directions in the appeal, which was listed for hearing on 4 September 2020. I also dealt with and dismissed an oral application by the appellant that I recuse myself from making directions in the appeal, and gave oral reasons. The Application for a Stay was not reached and I adjourned it for hearing on 2 June 2020. 7. Apparently as a result of the material lodged by the respondent in opposition to the Application for a Stay, the appellant brought an Application for "stay or interim order" and an application on a general application form, dated 27 May 2020 but not filed until 1 June 2020, wherein he sought, in substance, that the hearing of the stay be adjourned for a period of approximately six weeks to enable him to respond to the material lodged by the respondent in the stay application and, further, that I make orders that: The Tribunal is required to address fundamental questions of law relating to these proceedings prior to the stay hearing. (Order 2); and Tribunal to effect those miscellaneous orders, attached. (Order 3). 1. The Tribunal sought submissions from the parties as to whether they consented to the applications being dealt with on the papers. The respondent consented. The appellant did not object. I was satisfied that the issues arising from the applications could be adequately determined in the absence of the parties on the basis of the material and submissions lodged by them and dispensed with a hearing of the applications: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), ss 50(1)(c) and 50(3). 2. I granted the adjournment of the hearing of the Application for a Stay, which was not opposed by the respondent. I reserved determination of the balance of the applications (Orders 2 and 3) on the papers. 3. This is the decision and reasons in relation to Orders 2 and 3, sought in the applications. 4. In order to gain an understanding of what is sought by the appellant, it is helpful to set out that he has been involved in a substantial number of proceedings in the Tribunal regarding or arising from access applications made by him pursuant to the GIPA Act. 5. Several decisions in respect of those applications, interlocutory applications in relation to their conduct, and appeals from decisions of the Tribunal are reported: Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10; Zonnevylle v NSW Department of Finance & Services [2015] NSWCATAD 175; Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47; Zonnevylle v Department of Education and Communities [2016] NSWCATAD 49; Zonnevylle v Department of Education [2017] NSWCATAD 101; Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCATAD 186; Zonnevylle v Department of Education [2017] NSWCATAD 214; Zonnevylle v Department of Justice [2018] NSWCATAD 96; Peter Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139; Zonnevylle v Department of Justice [2018] NSWCATAD 158; Zonnevylle v Department of Justice [2018] NSWCATAP 230; Zonnevylle v Minister for Education [2019] NSWCATAD 28; Zonnevylle v Department of Justice [2019] NSWCATAP 44; Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAD 108; Zonnevylle v NSW Department of Justice [2019] NSWCATAD 215; Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAP 274; Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 8; Zonnevylle v Minister for Education and Early Childhood Learning [2020] NSWCATAD 76; Zonnevylle v Secretary, Department of Education [2020] NSWCATAD 110; Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 126. 6. It is apparent from the nature of the application for Orders 2 and 3, that the appellant remains dissatisfied by many aspects of those prior applications and the conduct of various officers of the departments from which he has sought government information in the past. It appears that the questions proposed by the appellant were intended by him to address, at least in part, that dissatisfaction. 7. The first order sought by Order 3 (other than in relation to the adjournment of the Application for a Stay and the 'Questions of Law' referred to below) by the appellant is: The member is required to explain how he formulates fairness in time application for submissions by both the appellant and the respondent. 1. The appellant goes on to comment on what he experiences as the disparate availability of resources, including access to legal assistance, between him and the respondent, apparently in support of that application. I will describe this as the "Reasons Question". 2. The other orders sought by the appellant are: The member is required to summons the details of the DEC officer authorising the s 110 proceedings. The member is to state categorically whether those reviewable decisions related to offences under the GIPA Act (refer to questions of law included with the appeal applications any of those reviewable decisions in sect. 80 and why the Tribunal does not have authority over those reviewable decisions in the review / appeal application. 1. In support of this aspect of the application, the appellant goes on to allege that the application which is the subject of the Decision was made either corruptly or for an improper purpose. The appellant refers to having "already provided evidence of alleged corrupt conduct / serious misconduct by senior DEC officers who are alleged to have committed offences under the GIPA Act." That evidence is not specified. 2. The appellant asks that I make an order for the Tribunal to address the following "fundamental questions of law relating to these proceedings": What are the statutory obligations conferred on the Tribunal? What are the statutory obligations conferred on the respondent & agencies? What are the effective rights of an applicant seeking access to government information under beneficial legislation such as the GIPA Act? Does an applicant have the basic / fundamental right to "good faith"? Does an applicant have the basic right to question the "advice and assistance" or conduct of an officer exercising functions related to an access application? What are the statutory obligations of the Tribunal? Does the Tribunal have the implicit statutory obligations to ensure that: i. the applicant's basic / fundamental GIPA act rights are protected? and ii. officers exercising any / all functions related to an access application are done in: a. "good faith"? and b. in accordance with their required conduct obligations? And c. in accordance with the mandatory requirements imposed on those officers by the Act? and d. in a way that is required to promote the object of the GIPA Act? iii. the "good faith" / conduct standards used by the Tribunal are clear / transparent to the public and impose high standards of conduct on agency officers? iv. the "good faith" / conduct standards used by the Tribunal are clear / transparent to the public and impose high standards of conduct on agency officers? (Sic) v. the Tribunal decisions promote the object of the GIPA act? vi. authorities used as "evidence" in proceedings are not redundant as a result of new / fresh evidence provided in proceedings which contradicts those authorities? What are the statutory obligations of the agency officers? Do agency officers have the implicit statutory obligation to ensure that: i. the applicant's basic / fundamental GIPA Act rights are protected? and ii. officers exercising any / all functions related to an access application are done in: a. "good faith"? and b. In accordance with their required conduct obligations? and c. In accordance with the mandatory requirements imposed on those officers by the Act? And d. in a way that is required to promote the object of the GIPA Act? iii. the "good faith" / conduct standards used by the officers are clear / transparent to the public and are of a high standard? iii. the "good faith" / conduct standards used by the officers are consistent and are of a high standard? iv. the officer's decisions promote the objects of the GIPA Act? Are authorities "evidence" and to be used as unimpeachable evidence? Do authorities used in proceedings: i. establish "fact" beyond reasonable doubt and therefore constitute "evidence"? ii. constitute "evidence" that can be cross-examined? iii. ever become outdated / redundant or superseded / irrelevant by further evidence contradicting those authorities? 1. As can be seen from the above, save in respect of the Reasons Question, what the appellant asks is that I order that the Tribunal resolve a number of issues: 1. not apparently relevant to the matter before the Tribunal in the appeal, when one considers the issues the Tribunal needed to consider in making the Decision, set out at [1] above; or 2. only relevant to the conduct of previously determined applications made by the appellant which are not the subject of this appeal; or 3. by, in effect, conducting aspects of the appeal for the appellant. 1. The appellant also seeks comment from the Tribunal on the operation and effect of the application of the doctrine of precedent or res judicata; together with a general explanation of the role and functions of the Tribunal and declarations as to the obligations of various government departments in exercising functions under the GIPA Act. 2. I decline to make such an order. 3. Doing so would be: 1. beyond my jurisdiction in ordering the Tribunal to deal with matters not before it; or 2. contrary to the guiding principle of the Tribunal to resolve the real issues in dispute between the parties: NCAT Act, s 36 (1); and 3. contrary to long-standing principles in relation to the proper conduct of courts and quasi-judicial bodies, which promote the confinement of proceedings to the resolution of issues directly relevant to the matters in issue between the parties. As was said by Lord Diplock in Rediffusion (Hong Kong) Limited v Attorney General [1970] AC 1136, the courts "will not pronounce upon legal situations which may arise but generally upon those which have arisen". 1. Of course, to the extent that any of these questions become relevant issues in the conduct of the substantive appeal, the Appeal Panel will deal with them in resolving those issues. 2. In respect of the Reasons Question, I will treat that aspect of the application as a request for reasons for the directions I made on 13 May 2020, in relation to the timing of the parties' submissions and evidence on the application for a stay. 3. Pursuant to s 62(2) of the NCAT Act, a party may request that the Tribunal provide a written statement of reasons for "its decision". 4. Whilst those reasons must generally be provided within 28 days of a request, a recent amendment to the NCAT Act in response to the COVID-19 pandemic has temporarily extended the time for provision of the reasons to 90 days: NCAT Act, Sched. 1, Cl. 27. 5. Pursuant to ss 5 (i)(a) & (b) of the NCAT Act, a "decision" includes, relevantly, making an order or giving a direction. Prima facie, then, the appellant is entitled to request written reasons for how I exercised my discretion to set the timing of directions made to the parties for the filing of their material in the Application for a Stay. 6. However, in relation to courts, it has long been accepted that not every decision warrants the giving of reasons. Whilst I am unaware of binding authority that the same position applies to the Tribunal, I note the comments of an Appeal Panel of the Tribunal in Gaynor v Burns [2015] NSWCATAP 184, at [14] and [15], in relation to a request for reasons for making an order by consent that, relevantly: Even if we are wrong about the appellant's request for reasons being outside the time period, we do not think in this case it is either necessary or appropriate, or in accordance with practice, for the Tribunal to give reasons for making orders 1 to 3 by consent. We accept that in some limited circumstances a Tribunal may wish to give reasons why it is prepared to make, or to decline to make, orders by consent. But those matters are the exception to the general practice in respect of consent orders. We are satisfied that we were asked to make orders that effectively "settled" the appeal, and were within our power to make under s 59. We are fortified in our view having regard to the discussion found at 362.20 of Ritchie's Uniform Civil Procedure. There the learned authors note that "as a general proposition there is no requirement for a court to give reasons for the determination of merely procedural applications"… 1. I am similarly unconvinced that the Tribunal is required to give written reasons, on request, for every aspect of making directions in preparation of a matter for hearing, including the nomination of the timetable for the filing of material. 2. Were that to be the case, the burden on the Tribunal of complying with that requirement would be incompatible to its obligation to act with as little formality as the circumstances of the case permit (NCAT Act, s 38(4)) and to facilitate the just, quick and cheap resolution of the real issues in the proceedings: NCAT Act, s 36(1). 3. However, the parties made no submissions in this regard and in circumstances where reasons were required in respect of other aspects of this application it is sufficient, in my view, to record that in making directions for the lodgement and service of the parties' material on the Application for a Stay I was satisfied that: 1. The appellant is a self-represented, although not inexperienced litigant in the Tribunal, who had already had the period of approximately 38 days between receiving the Decision and me making directions in respect of the Application for a Stay to prepare his material in support of it; and 2. The respondent is a government department with the advantages that brings in the conduct of proceedings in terms of resourcing and experience. 1. I considered the guiding principle in s 36(1) of the NCAT Act, set out above, together with the obligation to provide the parties with a reasonable opportunity to be heard and have their submissions considered (NCAT Act s 38(5)(c)). I also considered the state of preparation of the appeal as evidenced by the material already filed by the appellant with the Application for a Stay. 2. I then set out a timetable which I was satisfied was achievable by the parties applying a reasonable level of diligence to the conduct of their case, having regard to those issues and the need to deal promptly with the Application for a Stay. 3. Orders: 1. The application for Order 2 in the Application for Stay or Interim Order dated 27 May 2020, repeated as Order 2 in the General Application form dated 27 May 2020, is dismissed. 2. The application for Order 3 in the General Application form dated 27 May 2020 is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 July 2020