Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Zonnevylle v Secretary, Department of Education [2024] NSWCATAP 69 Hearing dates: 12 August 2022, 23 February 2024 Date of orders: 03 May 2024 Decision date: 03 May 2024 Jurisdiction: Appeal Panel Before: I R Coleman SC ADCJ, Principal Member Dr J Lucy, Senior Member Decision: (1) Extension of time to appeal refused. (2) Leave to appeal refused. (3) Appeal dismissed. Catchwords: APPEALS — whether time to file notice of appeal should be extended — whether leave to appeal should be granted — whether appellant demonstrated error on question of law or on any other ground Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Freedom of Information Act 1989 (NSW) (repealed) Government Information (Public Access) Act 2009 (NSW) Government Sector Employment Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Attorney General v Wentworth [1988] 14 NSWLR 481 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33; 94 ALR 11 Australian Postal Corporation v Forgie [2003] FCAFC 223; (2003) 130 FCR 279; 202 ALR 63 BDK v Department of Education and Communities [2015] NSWCATAP 129 Bull v Attorney General (NSW) (1913) 17 CLR 370; [1913] HCA 60 Chu v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 314 Cianfrano v Director General, Premier's Department [2006] NSWADT 137 Clark v Attorney General of New South Wales (Recusal Application No 2) [2023] NSWCA 209 Colefax v Department of Education and Communities (NSW) (No 2) [2013] NSWADT 130 Collins v Urban [2014] NSWCATAP 17 Conomy v Maden [2019] HCATrans 49 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Michael Wilson and Partners Ltd v Nicholls (2011) 244 CLR 427 [2011] HCA 48 Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232 Mohareb v State of New South Wales (No. 2) [2024] NSWCA 69 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50; 339 ALR 327 Re JRL; Ex parte CJL (1986) 161 CLR 342 [1986] HCA 39 Resource Pacific Pty Limited v Wilkinson [2013] NSWCA 33 SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 361 ALR 206 Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Williams v Spautz (1992) 174 CLR 509 [1992] HCA 34 Zonnevylle v Department of Education and Communities [2016] NSWCATAD 49 Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAD 108 Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAP 274 Zonnevylle v Secretary, Department of Education [2022] NSWCATAP 297 Texts Cited: Dennis Pearce, Statutory Interpretation in Australia (9th ed, 2019, Lexis Nexis) Category: Principal judgment Parties: Peter Zonnevylle (Appellant) Secretary, Department of Education (Respondent) Representation: Solicitors: Appellant (self-represented) Crown Solicitor (Respondent) File Number(s): 2022/00036436 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: Zonnevylle v Secretary, Department of Education [2021] NSWCATAD 361 Date of Decision: 03 December 2021 Before: S Higgins, Senior Member File Number(s): 2020/00045500 REASONS FOR DECISION 1. By Notice of Appeal filed on 7 February 2022 Peter Zonnevylle ("Appellant") sought an extension of time to appeal against a decision of the Tribunal of 3 December 2021, and if time were extended, leave to appeal the decision. The Secretary, Department of Education ("Respondent") resisted the application for an extension of time, and any grant of leave to appeal. 2. The appeal commenced to be heard on 12 August 2022, but for a variety of reasons, most involving interlocutory applications made by the Appellant subsequent to the commencement of the hearing, the hearing of the appeal did not resume until 23 February 2024. At the conclusion of the hearing of the appeal, the Appeal Panel reserved its decision. 3. The Appeal Panel finds that the various challenges agitated by the Appellant to the decision of the Tribunal of 3 December 2021 lack merit on any recognised legal basis. That being so, there is no justification for granting leave to appeal and, it would be inutile to extend the time in which to seek leave to appeal. These are the reasons for the Appeal Panel's decision. Material before Appeal Panel 1. The Appellant's Notice of Appeal filed on 7 February 2022 set out the grounds on which he challenged the decision of the Tribunal. The extensive material subsequently filed by the Appellant did not seek to amend those grounds. 2. The Respondent filed a Reply seeking the dismissal of the Appellant's Notice of Appeal. 3. The reasons for the Tribunal's decision have been before the Appeal Panel. 4. The Appellant filed more than 20 documents during the course of the appeal, some of which appear related predominantly if not entirely to interlocutory applications which he brought before a Principal Member of the Tribunal whilst the appeal was pending or after it became part-heard. Many of the documents comprised closely typed booklets. The content of the material was largely identical in substance. To the extent that the Appellant disagreed with any decisions made by the Principal Member determining interlocutory applications between the commencement and conclusion of the hearing of the appeal proceedings, there has been no application for leave to appeal any of those decisions. 5. Most recently, on 22 February 2024 the Appellant filed submissions in the form of a closely typed booklet. The Appeal Panel has read each of the documents filed by the Appellant in purported support of his Notice of Appeal. Save to some extent with respect to the document filed on 22 February 2024, the Appellant's previous documents engage predominantly with allegations of corrupt or inappropriate conduct in office by officers of the Respondent, the Respondent's solicitors and the Tribunal. As has been repeatedly held by the Tribunal and the Court of Appeal, the Appeal Panel lacks jurisdiction to consider such complaints. 6. The Respondent filed submissions on 8 July 2022, and further submissions on 23 October 2023. The former engaged directly with the Appellant's Notice of Appeal, the latter more with procedural matters which occurred subsequent to the Appeal Panel having become part-heard in the appeal in 2022. 7. The Appeal Panel has also had before it the following documents: 1. Respondent's application for summary dismissal dated 19 October 2020; 2. Respondent's submissions in support of application for summary dismissal; 3. Appellant's application for review and grounds of review filed on 12 February 2020; 4. Appellant's submissions document 1 dated 12 February 2020: Alleged serious systemic misconduct/corruption conduct complaint against senior NSW education officers including"; 5. Appellant's "alleged sect. 116 offence under the GIPA Act" directed to the Information Commissioner and dated 30 August 2020; 6. Appellant's submission document 2 dated 14 September 2020: Response; 7. Appellant's email dated 11 September 2022 to the Tribunal seeking the issue of summonses with respect to alleged corrupt conduct by persons named in the document; 8. letter from Crown Solicitor's Office to Appellant dated 28 September 2022. Preliminary matters 1. As he had done when the appeal first commenced to be heard, when the hearing of the appeal resumed the Appellant again sought leave to make his own sound recording of the proceedings. Doing so was opposed by the Respondent. The Appeal Panel again refused to grant the Appellant leave to make his own sound recording of the proceedings, and said that reasons for such refusal would be given with our decision in the appeal. 2. The Appeal Panel published its reasons for refusing the Appellant's first application for leave to record the proceedings in 2022 (see Zonnevylle v Secretary, Department of Education [2022] NSWCATAP 297). The reasons recorded in that decision, at [4] to [37] apply with equal force to the refusal decision on 23 February 2024. The Appeal Panel does not consider that we need to reiterate our earlier reasons in these reasons in those circumstances. Nothing raised by the Appellant on 23 February 2024 gave rise to different circumstances to those which applied at the time of the earlier ruling. 3. As he did on a number of occasions at the commencement of the hearing of the appeal, the Appellant sought that the Members of the Appeal Panel recuse themselves when the hearing resumed on 23 February 2024. As previously, the Members of the Appeal Panel declined to do so. 4. The Appellant asserted on 23 February 2024 that he had "new evidence" in relation to the issue of recusal. The Appeal Panel was not referred to any "evidence", new or otherwise, which gave rise to different circumstances to those which applied when the Appeal Panel members refused to recuse themselves during the hearing in 2022. The Tribunal published reasons for its recusal decision of 9 September 2022. Those reasons, at [38] to [54], applied to the refusal to recuse on 23 February 2024. We do not consider that it is necessary to reiterate in these reasons the reasons given previously as the circumstances in both instances were identical. 5. On 28 March 2024 the Court of Appeal gave Judgment in Mohareb v State of New South Wales (No 2) [2024] NSWCA 69. That was an application for leave to appeal, part of which involved an application that the appeal judges recuse themselves. Gleeson and Stern JJA dismissed a recusal application on the basis of their Honours' prior involvement in refusing Mr Mohareb's application for leave to appeal from a Judgment given against him by a Judge of the Supreme Court. 6. Their Honours reiterated at [9] the test for recusal for bias as the "double might" test, which their Honours said was "whether a fair minded lay observer might reasonably consider that the judicial officer might not carry out his or her judicial functions with an impartial and unprejudiced mind in the resolution of the issues on the motion". Their Honours cited in support of that statement the decisions of the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 and Michael Wilson and Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48. Their Honours also stated at [10] that the application of the apprehension of bias principle involved two steps, the first of which was "to identify what it is said might lead the judicial officer to decide a case other than on its legal and factual merits", the second of which was "to articulate the logical connection between the circumstances identified in that matter and the apprehension that the case may not be decided on the merits". 7. Mr Mohareb's submission was recorded at [11] as being that a hypothetical, reasonable bystander "would tend to be sceptical and dismissive of a self-represented litigant's casting aspersions on the findings of two Court of Appeal Judges". Their Honours held that the fact that they had previously made a decision adverse to Mr Mohareb's interests was not a sufficient basis upon which such an observer "might reasonably consider that we might not bring an impartial and unprejudiced mind to the resolution of the issues on the motion in these proceedings. The mere fact that a judge has made an adverse decision or decisions against a party is not a sufficient reason for the judge to disqualify himself or herself from dealing with subsequent applications concerning the same party" (Clark v Attorney General of New South Wales (Recusal Application No 2) [2023] NSWCA 209). Their Honours concluded that the test for apprehended bias was "concerned with prejudice and partiality, not an individual litigant's expectations or predictions as to the outcome of a case" (Chu v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 314). That observation resonates in this case. 8. Reference was also made by the Court in Mohareb at [12] to the statement by Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 that: "Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by according too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour." 1. Neither previously nor on 23 February 2024 has the Appellant made submissions which advanced his recusal application. Nothing to which he has referred satisfies either limb of the "double might" test which emerges from the authorities. 2. The Appellant referred to emails which he had, but should not have, purported to send directly to the Members of the Appeal Panel between the commencement of the hearing of the appeal and its resumption. The Appeal Panel confirmed to the Appellant that we had not read the emails and would not be doing so unless, in submissions in support of the appeal, the Appellant sought to rely upon the emails and established that they had some relevance, which he subsequently did. No mystery surrounds why the Members of the Appeal Panel did not read the Appellant's emails to us. The interests of open justice demand that what happens in Tribunal proceedings happens openly, transparently and in circumstances whereby each party has the opportunity to make submissions in response to matters relied upon by the other party. 3. The Appellant's emails to the members of the Appeal Panel did not advance either his recusal application, or any challenge which he raised to the decision under appeal. Whether time to appeal should be extended 1. The Appellant was obliged by rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) ("the Rules") to lodge his Notice of Appeal by 31 December 2021. The Appellant was five weeks out of time in filing his Notice of Appeal. The Respondent opposed the granting of an extension of time, primarily on the basis that the grounds of appeal were submitted to be "hopeless", but also on the basis that "beyond scandalous allegations of misconduct by the Registry, unsupported by any evidence" the Appellant had not provided any explanation, or acceptable explanation for the delay in filing his pleading. 2. Properly, the Respondent did not advance any suggestion that the Appellant's delay had caused the Respondent prejudice. Consistent with the approach which courts and tribunals traditionally take (Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30) the Appeal Panel proposes considering whether time to appeal should be extended in the light of its conclusions with respect to the merits of the Appellant's challenges to the decision of the Tribunal of 3 December 2021. If the Appellant's case lacks merit, an extension of time would be refused. If it has merit, given that he is a litigant in person, and that doing so would not seriously prejudice the Respondent, the extension of time would likely be granted, notwithstanding that the Appellant has failed to adequately explain the failure to file his appeal pleading within time. Whether leave to appeal is required 1. The Respondent submitted that the decision of 3 December 2021 was an interlocutory decision summarily dismissing the proceedings. It is not in doubt that the Tribunal's order of 3 December 2021 was made pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). That section provides that the Tribunal "may dismiss at any stage any proceedings before it" if the Tribunal "considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance". 2. Section 4(1)(h) of the CAT Act includes in the definition of "interlocutory decision" "the summary dismissal of proceedings". By virtue of s 80(2)(a) of the CAT Act leave of the Appeal Panel is required to appeal an interlocutory decision. The Appeal Panel is satisfied that the Appellant requires a grant of leave to appeal. The Appellant's notice of appeal recognised that need, and sought leave to appeal. 3. The Respondent submitted that leave to appeal should be refused, essentially on the basis that the Appellant's challenges to the decision of 3 December 2021 raised no matter of substance, and failed to satisfy any of the criteria identified by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17. As with the question of extending time to appeal, the Appeal Panel approaches the question of leave to appeal by reference to the merit or otherwise of the Appellant's challenges to the decision of 3 December 2021. If the Appellant raises, on a question of law or otherwise, a successful challenge to the Tribunal's decision then leave to appeal would generally be granted. If he does not, there would be no utility in granting leave to appeal. Reasons for the decision of the Tribunal of 3 December 2021 1. The Tribunal identified, accurately there is no doubt, that, on 19 October 2020 the Respondent applied to have the Appellant's administrative review application filed on 12 February 2020 dismissed pursuant to the provisions of s 55(1)(b) of the CAT Act at [1]. 2. The Tribunal summarised at [4] the Respondent's contention as being that the Appellant's administrative review application was vexatious "because the Applicant is predominantly maintaining these proceedings for a collateral purpose, namely to relitigate allegations of corruption, illegality and lack of good faith on the part of specifically named senior officers of the Respondent department, and to urge the Tribunal to make findings which it has no power to make". 3. The Tribunal recorded at [5], accurately, that the Appellant denied that there was any "predominant or improper collateral purpose in pursuing his administrative review application and asserts that the allegations he makes directly relate to the matters in issue in that application". 4. The Tribunal identified at [6] the Appellant's application as arising from an access request which he emailed to the Respondent on 22 December 2019 seeking access to government information under s 41 of the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act"). 5. The Appellant requested access to 10 specific categories of information which were found to relate to GIPA access requests which he had made to the Respondent between 2012 and December 2019, in respect of which the Appellant had lodged an external review application. The Tribunal identified at [7] the administratively reviewable decision for which the Appellant sought review as being a deemed decision of the Respondent to refuse to deal with his access request having failed to do so within the prescribed 20 days after receipt of the request (GIPA Act, ss 57 and 63). 6. The Tribunal referred at [8] to the history of proceedings in the Tribunal which commenced on 17 March 2020 at which time the Tribunal remitted the decision of the Respondent for reconsideration. The Respondent made a new decision on 8 July 2020, setting aside the deemed decision of 13 January 2020, and substituting it with a new decision to refuse to deal with the Appellant's access request because "dealing with that request would require an unreasonable and substantial diversion of the Respondent's resources" (GIPA Act s 60(1)(a)). 7. Under the heading "26 October 2020 Dismissal Hearing" the Tribunal referred at [11]-[18] to the hearing of a number of applications, including the Respondent's dismissal application and the history of submissions during November and December 2020. 8. The Tribunal identified at [19] the main issue for determination in the proceedings before it as being whether the proceedings were vexatious, and, if so, whether the Tribunal should exercise its discretion under s 55(1)(b) of the CAT Act and dismiss the application. The Tribunal referred at [20] to the Judgment of Roden J in Attorney General v Wentworth [1988] 14 NSWLR 481, at [491] in which his Honour observed that the term "vexatious" as it appears in provisions such as s 55(1)(b) included proceedings that are found to be maintained "for collateral purposes and not for the purposes of having the court adjudicate on the issues to which they gave rise". 9. The Tribunal accepted at [21] that "the collateral purpose must be the predominant purpose and does not need to be the only purpose" (Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34). The Tribunal further recorded that the intention of the applicant "must be determined objectively, and not subjectively". The Tribunal recorded that proceedings may be vexatious even if they invoked an available legal right (referring to BDK v Department of Education and Communities [2015] NSWCATAP 129). 10. The Tribunal recorded at [23] the onus of the Respondent in the proceedings before it to establish on the balance of probabilities that: "(i) the proceedings are vexatious because the Applicant is maintaining his administrative review proceedings for a collateral purpose, to be determined objectively, and that purpose is the predominant purpose of the proceedings; and (ii) in the circumstances, the Tribunal should exercise its discretion and dismiss the Applicant's administrative proceedings on the grounds that they are vexatious." 1. The Tribunal recorded at [24] its satisfaction that the Respondent had established each of those matters and that it was thus appropriate to dismiss the Applicant's administrative review application pursuant to s 55(1)(b) of the CAT Act. The Tribunal proceeded to expose the process of reasoning which led it to that conclusion. 2. By way of introduction to its reasons, the Tribunal set out the terms of a number of provisions of the GIPA Act, including at [27] s 41 of the GIPA Act which articulated the requirements for a valid access application. The Tribunal referred at [28] to s 51 of the GIPA Act which provided that, within 5 days of its receipt of an application for access, a government agency was required within 5 working days from the date of receipt to decide and notify the access applicant whether the access application was valid or not. The Tribunal referred at [29] to s 52(3) of the GIPA Act which provides that an agency must provide advice and assistance so far as it would be reasonable to expect it to do so to assist an applicant to provide such information as may be necessary to enable the applicant to make a valid access application. Reference was made at [30] to the provisions of s 57(1) of the GIPA Act which provides that an agency must decide and notify an access applicant of its decision within 20 working days after receiving the access application. Time could be extended in consultation with the access applicant (GIPA Act s 57(2) and (3)). Section 63 of the GIPA Act, which provides that the agency is deemed to have decided to refuse to deal with the access application and any application fee paid by the applicant is to be refunded if the agency fails to make a decision within the prescribed time: at [31]. 3. The Tribunal referred at [32] to the decisions which an agency could make in regard to the information sought by the access applicant pursuant to s 58(1) and (2) of the GIPA Act. Those grounds included (2) "deciding that the information is not held by the agency", (4) deciding to refuse to provide access in reliance upon an asserted "overriding public interest" against disclosure, and (5) refusing to deal with the application on the grounds that doing so would require an unreasonable and substantial diversion of the agency's resources, or that the agency has already decided a previous application for the information sought (s 60(1) GIPA Act). 4. The Tribunal then referred at [33] to the provisions of s 60 and at [34] to Part 5 of the GIPA Act which provides for the review of administratively reviewable decisions made by an agency in regard to an access application. Section 80 of the GIPA Act was referred to by the Tribunal at [35]. The Tribunal recorded that it prescribed "which decisions are reviewable decisions of an agency made under the Act which includes a decision by the agency that the access request is not a valid access request and a decision to refuse to deal with an access application". The Tribunal recorded at [36] that where an access applicant seeks external review by the Tribunal, s 105(1) of the GIPA Act provides that the burden of establishing that the decision, the subject of the review, was justified fell on the agency. 5. The Tribunal then set out the legislative scheme created by the CAT Act and the Administrative Decisions Review Act 1997 (NSW) ("ADR Act") and recorded at [42] that the role of the Tribunal on administrative review of an administratively reviewable decision was to "decide the correct and preferable decision having regard to any relevant factual material and any applicable law: ADR Act, s 63(1)". The Tribunal said that "for this purpose, the Tribunal sits in the shoes of the agency and decides the matter afresh" (ADR Act, s 63(2) and (3) and s 66). 6. The Tribunal identified "other GIPA Act provisions". Section 111 of the GIPA Act makes provision for the Tribunal to refer systemic issues to the Information Commissioner whilst s 112 of the GIPA Act makes provision for the report of improper conduct if such conduct is found during the course of administrative review proceedings. The Tribunal referred at [45] to the provisions of sections 116 to 120 of the GIPA Act creating offences, proceedings for which could only be taken by or with the authority of the Director of Public Prosecutions or the Attorney-General. 7. The Tribunal then turned its attention to the merits of the Applicant's administrative review application filed on 12 February 2020. The Tribunal recorded at [48] that the Appellant asserted that as a consequence of breaches of multiple sections of the GIPA Act (including s 116) and the failure to promote the obligations of the Act he was making formal complaints under ss 111 and 112 of the GIPA Act. 8. With respect to "possible further offences" the Tribunal recorded at [49] the Appellant as alleging that the Deputy Secretary, Corporate Services of the Respondent Department and the former Chief Procurement Officer of the Respondent Department had engaged in corrupt conduct. The Tribunal identified at [50] a document attached to the Appellant's administrative review application headed "Alleged serious systemic misconduct/corruption conduct complaint against senior NSW education officers" in which the Tribunal said that the Appellant "particularised a number of past and ongoing allegations of misconduct and corrupt conduct" made by him against "a number of named senior officers of the Respondent Department". The Appellant asserted that the alleged misconduct of corruption was ongoing, and was included in the context of decisions made by the Respondent in dealing with the Appellant's GIPA access requests since 2014. 9. The Tribunal set out in detail the history of the Appellant's administrative review application before it, commencing with a court event on 17 March 2020. A second case conference on 21 April 2020 was referred to at [59]-[60]. A third case conference on 19 May 2020 was then referred to at [60]-[61]. Reference was made at [65]-[66] to the fourth case conference on 9 June 2020. The Tribunal referred at [67] to the Respondent's decision on reconsideration of the Appellant's access application which decision was to refuse to deal with the application because dealing with it would require an unreasonable and substantial diversion of the Respondent's resources (GIPA Act, s 60(1)(a)). 10. The Tribunal referred at [68] to the Respondent providing the Tribunal and the Appellant with its evidence and submissions on 27 August 2020, as the Tribunal's orders of 9 June 2020 provided. The Tribunal referred at [69] to the Appellant's five applications to the Tribunal for the issue of summonses for the production of documents and to attend the hearing of his administrative review application to give evidence, such summonses being addressed to the then Manager for Information Access and the Deputy Secretary of the Respondent Department and the Respondent. The Tribunal identified at [76] the documents for which the Appellant sought production under the summonses which included "notices, directives, memos and correspondence relating to access applications made by the Applicant up to and including September 2020" and, at least in one summons, "all documents substantiating those statements made by (the Manager for Information Access) in her 13 January 2020 invalid access application notice". 11. By reference to the documents which the Appellant had filed, the Tribunal identified the basis of the Appellant's request for summonses as being that the addressees could give evidence and produce documents to demonstrate that the officer had failed to exercise his/her functions under the GIPA Act in good faith. That assertion was considered to have been made to "every GIPA access request" which the Appellant had made to the Respondent. 12. The Tribunal recorded at [71] that the Appellant submitted that the matters in issue in his administrative review application were ss 111, 112, 116, 117, 118, 119 and 120 of the GIPA Act. 13. The Tribunal recorded at [73] that the Registrar refused to issue any of the summonses which the Appellant sought to have issued, and noted that the decision the subject of the Appellant's administrative review application was the decision of the Respondent to refuse to deal with his access request on the grounds that it would require an unreasonable and substantial diversion of the Respondent's resources and that the requested summonses were of no relevance to that application. The Tribunal observed that the Registrar had noted that the Respondent had filed and served its evidence in support of its case, which included statements made by other officers of the Respondent and not the officers for whom a summons was sought. 14. The Tribunal referred at [74] to the Appellant's application to review the Registrar's refusal to issue his summonses on 10 September 2020, and to the Tribunal's confirmation of the Registrar's decision on 11 September 2020. The Tribunal reiterated that the decision the subject of review by it pursuant to the Appellant's administrative review application was the 8 July 2020 decision of the Respondent made pursuant to s 60(1)(a) of the GIPA Act, that dealing with his access request would require an unreasonable and substantial diversion of resources. 15. The Tribunal provided responses to the reasons advanced by the Appellant in support of the issue of the summonses. The Tribunal identified at [75] the Appellant's submissions and at [76] his various allegations of corrupt conduct, a number of instances of which were then recorded. 16. The Tribunal referred to the submissions of the Respondent in support of the dismissal application at [84]-[93] and concluded at [94] by summarising the Respondent's contentions as being that it was "impossible to distinguish the applicant's purpose and conduct in these proceedings from that recognised by the Court of Appeal as an abuse of process in the administrative review proceedings that was [sic] before the Tribunal" in Zonnevylle v Minister [2019] NSWCATAD 108. The Tribunal then proceeded to consider the Appellant's submissions. 17. The Tribunal referred to the Appellant's submissions with respect to "alleged Tribunal bias against self-represented litigants" at [95] and recorded that they were of no relevance to the Respondent's dismissal application. We agree with that finding. Apart from the absence of any evidence establishing such bias, the Appellant's submissions do not identify any asserted connection between the conduct of the Respondent and any bias on the part of the Tribunal. 18. The Tribunal recorded at [96] the basis upon which the Appellant submitted that the Tribunal would not summarily dismiss his review application. 19. The Tribunal summarised at [99] the Appellant's complaints against senior officers of the Respondent as being concerned with conduct which he alleged to have been in contravention of the GIPA Act, thereby infringements of his GIPA Act rights, particularly in so far as the Appellant alleged that the Respondent had breached s 112 of the GIPA Act. The Appellant submitted that such breaches directly related to his review application and were within the jurisdiction of the Tribunal and that the Tribunal was thus required "in the review to ensure compliance with the legislation and protection of the Applicants/publics GIPA Act rights". 20. The Tribunal recorded at [100] the Appellant's contention that the summonses were sought in that context, and not in the context of the Tribunal making specific findings under s 116 of the GIPA Act against the officers the subject of his complaints which were unrelated to his review application. The Tribunal referred at [101] to paragraph 14 of the Appellant's submissions in reply in which it considered that the Appellant asserted "that his principal objective in his administrative review proceedings is to have his access request not undermined, compromised, blighted/infected by the serious issues he has raised so that he may lawfully access as much of the requested information as possible". The Tribunal added that the Appellant "asserted that he had provided sufficient evidence to support his request that specific officers of the Respondent department not decide his access request, yet that evidence was ignored". 21. The Tribunal concluded at [103] by saying that the Respondent's submissions were "otherwise repetitive of the matters he has raised in his earlier written submissions and of the various complaints he has made against the senior officers of the Respondent and its legal representatives. He concludes his submission by saying that he 'categorically and emphatically rejects that there is any predominant or improper collateral purpose' in pursuing his administrative review application". 22. The Tribunal then considered whether the Appellant was maintaining his administrative review proceedings "predominantly for a collateral purpose". The Tribunal reiterated at [104] that it was necessary for that purpose to examine the Appellant's purpose objectively, based on his conduct and the material before the Tribunal. 23. The Tribunal's decision in Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAP 274 was referred to at [105]. In that appeal, the Appeal Panel concluded that it did not have jurisdiction to grant the remedies or make the orders the Appellant was seeking, his application for such orders being "bad in law". The Appeal Panel held at [83] that "persisting in making claims which are 'bad in law' is not the kind of conduct that comes within the meaning and scope of the principle of collateral purpose". The Tribunal referred at [106] to the finding of the Appeal Panel at [54] that the evidence relied upon by the Appellant in support of his maintenance of other proceedings was "not logically probative" to the issue of his reasons for maintaining the proceedings that were before the Tribunal at first instance in that case. 24. The Tribunal then referred to a number of passages of the Judgment of the Court of Appeal in Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232 where the Court of Appeal overturned the findings and observations of the Appeal Panel and dismissed the Appellant's administrative review application. In passages to which the Tribunal referred at [107], the Court of Appeal said 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 a 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." 1. The observations of McCallum JA (as McCallum CJ of the ACT then was) were agreed with by Macfarlan and Leeming JJA. Her Honour said at [48] "As noted in the Minister's written submissions it is well established that an attempt to relitigate a matter that has already been determined may amount to an abuse of process" and that "the decision of the Appeal Panel does not explain why Mr Zonnevylle's persistence in serious allegation of misconduct which had already been dismissed by the same Tribunal for want of jurisdiction did not demonstrate use of the proceedings for a collateral purpose". 2. The Tribunal referred at [108] to the observations of McCallum JA at [52] in which her Honour said that "The Appeal Panel was wrong to disregard the earlier litigation. Its probative value is explained in another decision relied upon by the Ministry in which, on a special leave application, the High Court made a vexatious proceedings order under s 77RN(2) of the Judiciary Act 1903 (Cth)." McCallum JA considered that it was "clear" that the High Court in the special leave application in Conomy v Maden [2019] HCATrans 49 "accepted the history of previous vexatious litigation to be logically relevant to the issue of the applicant's purpose in bringing the special leave application". Her Honour referred to Keane J's comment in the special leave application that the history of Mr Comony's proceedings demonstrated "his determination to persist in the pursuit of what is evidently an unfortunate obsession that serves no purpose other than to waste the court's time and resources in order to indulge his unreasonable sense of grievance". McCallum JA said at [53] that: "The history of Mr Zonnevylle's proceedings similarly demonstrated a determination to persist in the pursuit of allegations previously found to have been baseless and to persist in wasting the Tribunal's time and resources by urging it to make findings it has no power to make. It enabled the Appeal Panel to assess whether Mr Zonnevylle persisted in those quests for want of a better understanding of the scope of the proceedings (as might have been inferred if it was his first appearance at the Tribunal) or whether (as suggested by the history) his persistence indicated vexatiousness. In my view, the history was plainly relevant and the Appeal Panel was, with respect, wrong to disregard that material." 1. As with other passages of the Judgment of McCallum JA, Macfarlan and Leeming JJA agreed with those statements. 2. Against the background of those references to the decision of the Court of Appeal, the Tribunal recorded at [109] that it "had regard to [the Appellant's] conduct in these proceedings, his application for review and subsequent submissions he has made in these proceedings and other relevant decisions of the Tribunal". The Tribunal further recorded at [110] that although he Appellant insisted that he "legitimately seeks access to 'as much of the requested information that is allowed under the GIPA Act' and there is no collateral purpose in bringing and prosecuting his administrative review application, in my opinion this is not demonstrated in the submissions he has made, the summonses he has sought, or in the manner in which he has conducted himself in these proceedings". The Tribunal then provided details of why it made those findings. 3. The Tribunal referred at [111] to the findings sought by the Appellant pursuant to ss 111, 112, 116 and 120 of the GIPA Act and recorded that they were "findings and orders of a kind that the Tribunal has found in earlier administrative review proceedings, brought by the Applicant for administrative review of a decision of an agency under the GIPA Act, it did not have jurisdiction to determine any administrative review application that was before it". We observe that nothing said by the Court of Appeal in its 2020 decisions to which we have referred was inconsistent with that finding. The Tribunal recorded at [112] that: "Regardless of these earlier decisions and rulings made by the Tribunal in these proceedings, the Applicant had persisted in agitating for findings of a lack of good faith, misconduct and illegality by the Respondent and senior officers of the Respondent, rather than dealing with the matters in issue arising from his administrative review application over which the Tribunal does have jurisdiction. These issues being whether the decision of the Respondent to refuse to deal with the Applicant's access request would require an unreasonable and substantial diversion of the agency's resources was the correct and preferable decision. The matters which must be taken into account in regard to that decision are those set out in s 60(3), (3A) and (3B) of the GIPA Act." 1. The Tribunal found at [113] that the Appellant's persistent offers of withdrawal and his assertion that the Respondent's solicitor had breached the GIPA Act were "also part of the same collateral purpose". With respect to the Appellant's contention that he had not amended his access request because the Respondent had refused to provide him with advice and assistance as required under the GIPA Act, the Tribunal noted at [119] that "on 3 occasions the Tribunal made orders giving the Applicant an opportunity to amend his access request, in the light of the Respondent's proposed decision, on reconsideration, to refuse to deal with his access request on the grounds of an unreasonable and substantial diversion of resources". The Tribunal set out the terms of s 16 of the GIPA Act at [120] and recorded at [121] that it had "considerable difficulty in seeking how s 16 is relevant, especially where the Applicant has made many access requests of the Respondent seeking access to information about which he is familiar". The Tribunal added that s 60(4) of the GIPA Act did not require an agency to provide any assistance to the access applicant in amending his or her access request but rather that "what is required is a reasonable opportunity to amend the access request". The Tribunal noted that the Respondent had provided the Appellant with a "preliminary estimate" of the time needed to deal with his access request. 2. The Tribunal noted at [122] that the Appellant could, if he chose to do so, "narrow the scope of his access request" and found that his reasons for not doing so "when objectively assessed, also forms part of his predominant purpose of pursuing these proceedings so as to have the Tribunal make findings of misconduct, illegality and lack of good faith by the Respondent, when he is fully aware that such matters do not fall within the Tribunal's administrative review jurisdiction". The Tribunal made a similar finding at [123] with respect to the Appellant's application for the issue of summonses. 3. The Tribunal referred at [124] to the finding of the Tribunal in a different matter in which the Appellant was a party in 2016 that, while the Tribunal does have jurisdiction to refer conduct under s 112 of the GIPA Act, it had no power to conduct a "satellite hearing to determine the issue" or have power to "issue a summons or require attendance for cross-examination of production of documents in order to form an opinion for the purposes of s 112" of the GIPA Act. 4. The Tribunal referred at [126] to the Appellant's "allegations that senior officers of the Respondent Department, which included some of the same officers against whom the Applicant has made allegations against in these proceedings, had breached s 16 and other provisions of the GIPA Act" in proceedings in 2016 brought by the Appellant against the NSW Department of Finance and Services in the Tribunal. As the Tribunal recorded, it was held in that case that the Tribunal lacked jurisdiction to deal with complaints against the conduct of officers of an agency. It was also held in that case that "[t]he fact that an officer may have a delegation to perform a function under the GIPA Act does not mean that every function exercised by that officer is subject to a referral under s 112 of the GIPA Act". 5. The Tribunal found at [127] that, by his written submissions, the Appellant had demonstrated "an intention to continue to agitate for findings of lack of good faith, misconduct and illegality on the part of the Respondent and the officers of the Respondent Department, and to seek findings and orders that fall outside the scope of the jurisdiction of the Tribunal to review the decision made by the Respondent on 8 July 2020 (i.e. to determine the correct and preferrable decision)". For those reasons, the Tribunal found at [128] that the Appellant's "predominant purpose, objectively determined, in maintaining his review application is to reagitate allegations of misconduct, lack of good faith and illegality on the part of the respondent and the senior officers of the respondent department. That purpose being a collateral purpose and an abuse of process". 6. The Tribunal was accordingly satisfied at [129] that the Respondent had made out its case. 7. The Tribunal then considered whether it should exercise its discretion to dismiss the Appellant's review application, noting the gravity for an applicant or plaintiff of summary dismissal [130]. The Tribunal was "conscious" of the objects of the GIPA Act and the reality that the Appellant was not legally represented at [132]. The Tribunal concluded at [136] that "considerable weight should be given to the fact that the Applicant has maintained his collateral purpose in these proceedings for a considerable period of time, despite the Tribunal and the Appeal Panel having held, prior to him commencing these proceedings, that the remedies and orders of the kind he seeks, in these proceedings, against the Respondent and the senior officers of the Respondent Department are 'bad in law' as they are not matters over which the Tribunal has jurisdiction in reviewing an administratively reviewable decision of an agency made under the GIPA Act". 8. The final matter to which the Tribunal referred at [137] was that to which Keane J referred in Conomy v Maden which was that prolonging the proceedings served no purpose other than to waste the Tribunal's time and resources in order to indulge the Appellant's unreasonable sense of grievance. For those reasons the Tribunal dismissed the Appellant's application. Principles governing the application for leave to appeal 1. As recorded earlier, the decision of the Tribunal was interlocutory. As such, leave to appeal is required. In Collins v Urban, at [84], the Appeal Panel summarised the principles governing an application for leave to appeal of the kind involved in this case. The Appeal Panel there recorded that, generally, in order to obtain a grant of leave to appeal an applicant needs to demonstrate something more than that the primary decision maker was "arguably wrong", or that there was a bona fide challenge to an issue of fact, that the grounds of appeal raise a question of principle or public importance or matters of administration or policy or that the Tribunal made an "error of fact which resulted in an injustice that is reasonably clear", or an approach to fact finding which was so unorthodox, or lacking in an evident and intelligible basis as to justify granting leave to appeal. 2. As is not in doubt, questions of principle, public importance or matters of administration or policy must arise within the context of the subject matter of the proceedings in which leave to appeal is sought. Because a party considers that complaints or grievances he or she wishes to agitate involve some or all of those matters does not mean that they do. As will be seen, that is particularly so in this case. 3. The Appellant articulated some of his submissions as involving errors on a "question of law". What constitutes an error of law is not in doubt. In Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45] Heydon JA identified a number of grounds which may establish success on a question of law: 1. an error of legal principle; 2. a material error of fact; 3. taking into account an irrelevant matter; 4. failing to take into account a relevant matter; 5. arriving at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning. To that list may be added actual or apprehended bias (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63); 6. failing to adequately expose the process of reasoning which led to the decision and/or constructive failure to exercise jurisdiction (Resource Pacific Pty Limited v Wilkinson [2013] NSWCA 33) ("Resource Pacific"); 7. failing to respond to a substantial, clearly articulated argument relying upon established facts (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26); 8. denying a party natural justice or procedural fairness in circumstances where the same result would not be inevitable if the appeal were allowed (Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54). 1. Nothing to which the Appellant has referred suggests ambiguity with respect to the interpretation of s 55(1)(b) of the CAT Act. What is clearly required is an evaluative determination that proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance. That evaluative determination is fact sensitive. If the Appellant contends that one or more of the provisions of s 55(1)(b) applied to him but that he should nevertheless be allowed to continue in reliance upon a beneficial interpretation of the provision, we cannot accept that such is the case. In any event, s 55 of the CAT Act is not a remedial provision. The remedial provisions are those which enable administrative review of an agency decision under the GIPA Act. The Appellant's case is not advanced by the principles of statutory interpretation with respect to the principles of interpretation of remedial legislation. The Tribunal did not misinterpret s 55 of the CAT Act. Background to the proceedings in the Tribunal 1. Other than as part of a clearly evident quest to prove misconduct in office by various agencies and/or individuals, the objectives of the Appellant's access to information request, and review application are not readily apparent to us. That is not said critically of the Tribunal, before which the Appellant gave little indication of any other objective. As the Appellant repeatedly asserted before the Appeal Panel that his allegations of misconduct were an integral part of his challenges to the Tribunal's decision, and not a stand-alone crusade, and as the Appellant has represented himself, we have not unquestioningly approached his case on the assumption that what has been found by the Tribunal and Court of Appeal in other proceedings involving the Appellant necessarily applies to these proceedings. To that end, we have carefully considered the material which was before the Tribunal to ascertain whether, howsoever articulated, the Appellant's complaints may have substance. 2. The review proceedings were commenced by the Appellant on 12 February 2020. In his review application the Appellant set out grounds on which he sought the review of the deemed refusal decision of the Respondent. After setting out the terms of s 63 of the ADR Act, which is concerned with "deemed refusal if application not decided within time", and s 80 of the GIPA Act, which is concerned with "which decisions are reviewable decisions", the Appellant referred to "relevant associated issues" which he identified as complaints pursuant to ss 111 and 112 of the GIPA Act and breaches of "multiple sections" of the GIPA Act, breaches of "statutory obligations to promote the object of the GIPA Act" and "breach of mandatory conduct obligations" under a number of legislative instruments. The Appellant also pleaded "sect. 116 offence of acting unlawfully" and "possible further offences under the Act". The Respondent did not suggest that there was not a reviewable decision within s 80. The issue which the Tribunal was required to, and did determine was that decision, and only that decision. 3. Of more relevance, the Appellant identified the "information/documents sought" by him in 10 numbered paragraphs. Rather than summarise those 10 categories of documents, we set out, without correction of typographical errors, the Appellant's review application in its entirety. "Formal GIPA access application for personal information Dec.21,2019 It is requested that neither the alleged cxrrxpt Stathis,Pendergast or Southern process this application due to substantial misconduct complaints from previous applications. All correspondence is to be sent by email to minimize both delays/causing the applicant a detriment. It is requested that the alleged cxrrxpt Riordan or Waterhouse not decide this application due to current serious complaints against him by the applicant Information / Documents sought: 1. Detailing DEC authorizing the engagement of: a. Crown Solicitors Office (CSO) or their officers a. any barristers b. any lawyers (Hicksons etc) c. any other external legal services / consultation requiring the use of public funds concerning any issues / matters concerning Zonnevylle / issco / isscoed 2. Detailing public funds used for any matter related to Zonnevylle between 2010 & 2019 a. Invoices and other documents for services of any barristers b. Invoices and other documents for services of any lawyers c. Invoices and other documents for services of CSO / CSO officers c. Invoices and other documents detailing any other costs associated with the above (NCAT application fees,consultation fees,other services,etc) concerning Zonnevylle / issco / isscoed 3. Ref.DEC Alerts & Notices List (page 7 & 8 GIPA 19 235) a. All email activity from ISSCOED email addresses between 2010 & March 7, 2013 b. All email activity from ISSCO email addresses between 2010 & March 7, 2013 c. All emails to the dept between 2010 & March 7,2013 where any email address associated with: issco.co; issco.com.au isscoed.com; isscoed.com.au has been cc'd to the dept. d. DOC 18/29221 & any associated / related documents 12 months prior to DOC18/29221 concerning Zonnevylle / issco / isscoed e. Correspondence / emails to & from Ron Paras concerning Zonnevylle / issco / isscoed between 2016 and 2019 4 a. Minutes / correspondence / documents related to Alerts & Notices List Committee Nov.2,2017 concerning Zonnevylle / issco / isscoed b. Correspondence between i. Andrea Patrick ii. Victoria Abigail iii. Ron Parras iv. any other committee members concerning Zonnevylle / issco / isscoed 6 months prior & 6 months after the above committee meeting. c. Documents identifying all above committee members Formal GIPA access application for personal information 5. All blocked emails sent from NSW schools or Dept.of Education workplace email addresses to any email address associated with the applicants websites: issco.com.au ; isscoed.com.au ; sciencelabsupplies.com.au ; sciencesupplies.com.au To include all attachments Between: a. 2015 and 2016 b. 2016 to 2017 c. 2017 to 2018 d. 2018 to 2019 e. Jan 2019 to July 2019 6. All documents held by DEC for evidence of either: i. spamming ii. fraudulent activities iii. phishing or any other activities from Zonnevylle / issco / isscoed including email addresses: sales@issco.com.au ; sales@isscoed.com.au ; support@issco.com.au support@isscoed.com.au 7. Emails between: a. Joanne Bailey b. Paul Hopkins c. Emma Malcolm d. Brett Kyle e. Peter Riordan concerning Zonnevylle / issco / isscoed between f. 2012 - 2013 g. 2013 – 2014 h. 2014 – 2015 8. Documents used / submitted by Joanne Bailey,Chief procurement Officer to the NSW Police for a complaint against Zonnevylle / issco / isscoed 9. Reference GIPA application database excel spreadsheet Spreadsheet entries between: a. 2010 – 2011 b. 2011 – 2012 c. 2012 – 2013 d. 2013 – 2014 e. 2014 – 2015 f. 2015 – 2016 g. 2016 – 2017 h. 2017 – 2018 i. 2018 – 2019 with only the following entries: GIPA File No. Legal File No. Case officer Search officer name Total amount Processing hours Decision maker name 10. List of all GIPA applications made on DEC between Dec 31,2015 & Dec.31,2018 with a description of the information sought access to (prefer acces to be a document in electronic form (excel database) with GIPA number & as many fields as possible a. I request confirmation that this information can be provided as an excel file (excel database) b. I require advice as to what fields are required to be excluded and reasons why they are to be excluded Alternatively I request access to records which provide substantially the same information (in electronic form such as an excel file) NOTE: These records will also include my own personal access applications" 1. It is readily apparent from the terms of the "information/documents sought" that, in most instances, the Respondent would have needed to make extensive enquiries, and exercise judgement in order to determine what documents fell within the scope of each of the 10 categories of information or documents sought. That is particularly so given that the request covered a period of 9 to 10 years, from 2010 to 2019. It follows from the nature of the enquiries and exercise of judgement required of the Respondent that considerable time and effort would have been required to first determine what it was that was being sought and secondly, to determine whether such documentation existed. 2. The Appellant's review application contained a "note" requesting that "the processing time be advised for each item/sub item so that should any rescoping be required, the Applicant can make an informed decision". The Appellant concluded the review application by stating that he: "claims those rights given under the GIPA Act: 1 An enforceable right to access government information 2 The right that the Respondent's officers act and exercise their functions in accordance with their conduct obligations 3 Conduct which does not breach the GIPA Act 4 Conduct which promotes the object of the Act". 1. The Appellant attached a blank Tribunal form to his application. That document could not advance the review application. 2. In submissions in support of the dismissal application dated 19 October 2020, after setting out the procedural history, which the Tribunal accurately reiterated in the reasons for its decision of 3 December 2021, the Respondent referred to the, at that time, recent decision of the Court of Appeal to which the Tribunal earlier referred. Under the heading "The Applicant's dominant purpose in maintaining these proceedings is a collateral purpose and therefore vexatious" the Respondent submitted at [17]-[43] the basis upon which it submitted at [32] that the "grounds of review are, almost word for word, identical to those which were summarily dismissed as constituting an abuse of process in Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAD 108". That decision, on appeal from the Appeal Panel, was affirmed by the Court of Appeal at [38]. As will be seen, save to the extent that, albeit not materially, the Appellant's requests have remained essentially unchanged, that submission has force in the present circumstances. 3. The Respondent conceded at [40] that it was "possible, with considerable effort, to extract aspects of the submissions (of the Appellant) which are directed to a matter within jurisdiction" but that, where that occurred, such as with complaints about processing times, the Appellant's allegations were "infected with allegations of offences and corruption". As will be seen, that submission had merit. That issue was submitted at [41] to have "dominated all case conferences and much of the procedural correspondence in the proceedings". Although that submission appears well founded in fact, it is of quite limited relevance for present purposes. 4. The Respondent also submitted at [56] that "on 28 September 2020, the Respondent wrote to the Applicant to provide notice of intention to make this application. It raised the decision of the Court of Appeal and provided the Applicant with the opportunity to clarify any issues which might mean that this proceeding is not vexatious. The Applicant did not respond to that correspondence". 5. The document filed by the Appellant on 12 February 2020 headed "Alleged serious systemic misconduct/corruption conduct complaint against senior NSW officers including" comprised 22 pages of allegations against various officers of the Respondent. Nowhere in the document did the Appellant engage with the subject matter of his review application. 6. On 14 September 2020 the Appellant filed a "Response to Respondent's submission", inclusive of annexures, of 58 pages. In his submissions, the Appellant recorded his "grave concerns" and "grave concerns and inconsistencies" with respect to "processing time estimates". Other than making generalised complaints in that regard, nothing there referred to by the Appellant identified on what basis he contended that complying with his request for information/documents would have required the Respondent to devote an unreasonable and substantial diversion of the agency's resources. 7. Under the heading "Complaints" the Appellant recorded his grievances with respect to the Respondent's treatment of his request for information/documents. Under the heading "The substantive issue" the Appellant made a number of submissions. Notwithstanding that he identified the provisions of s 60(1)(a) of the GIPA Act, nothing raised by the Appellant engaged with the Respondent's contention that dealing with his application would require an unreasonable and substantial diversion of the agency's resources. By way of explanation for his asserted inability to "make an informed decision on the amending/rescoping of the application", the Appellant asserted that "alleged corrupt officers" of the agency had prevented him from doing so. The Appeal Panel has not been referred to any evidence supporting that contention, but to evidence suggesting the opposite. Not insignificantly, neither between that date and the hearing before the Tribunal or subsequently has the Appellant attempted to refine the category of "information/documents" sought by him, despite ample opportunity to do so. The Appellant did not seek to adduce a refined list of documents/information as new evidence in the appeal proceedings. The Appellant's submissions and grounds of appeal 1. As we have earlier recorded, the Appellant filed more than 20 documents in purported support of his appeal. The overwhelming bulk of the contents of those documents repeated the claims of corrupt conduct against officers or members of the Respondent, the Respondent's solicitors and the Tribunal in terms which were in some instances identical, in others almost identical with complaints which he had made in proceedings decided against him by the Tribunal in 2019 which decision, as the Tribunal recorded on 3 December 2021, was ultimately upheld by the Court of Appeal. As those documents do not raise matters which could result in leave to appeal being granted, the Appeal Panel does not perceive that it is obliged to engage with them in order to discharge its obligation to adequately reveal the process of reasoning which led to its decision (Resource Pacific). That finding is made only after the Appeal Panel has taken the not inconsiderable time required to read the documents. 2. In his submissions filed 22 February 2024 the Appellant reiterated many of his previous complaints, and made additional complaints about the Senior Member who determined his review application on 3 December 2021. After recording the terms of a number of provisions of the GIPA Act, the Government Sector Employment Act 2013 (NSW), the ADR Act and the CAT Act, the Appellant included in his submissions an email of 18 February 2024 to the Members of the Appeal Panel which was part-heard in hearing his appeal recording, accurately, that we had not responded to his emails of January 20 2024 or February 9 2024. Quite apart from the inappropriateness of our doing so, nothing raised by the Appellant in any of those emails raised anything to which, as a matter of procedural fairness, the Appeal Panel should or may have considered it appropriate to respond. 3. The Appellant cited material which was said to be from the Independent Commission Against Corruption ("ICAC") website and (in Part B) under the heading "Appeal on question of law", set out challenges to the decision of the Tribunal of 3 December 2021 which raised matters requiring the Appeal Panel's consideration. 4. As is evident from their terms, most of the complaints articulated in the Appellant's Notice of Appeal cannot advance his application for leave to appeal, as they are no more than a reiteration of complaints about the conduct of the officers of a number of entities which the Tribunal has consistently, and correctly found do not fall within its jurisdiction. 5. Rather than attempt to summarise them, the Appellant's grounds of appeal are reproduced as follows, without correction of typographical errors: "4.B. GROUNDS FOR APPEAL 1. a. This appeal is made on grounds of questions of law arising from these proceedings b. Leave is sought to appeal the CAT Act Sect.55. 1.b decision 2. Questions of law arising from proceedings: a. Did Higgins properly interpret the words of the GIPA Act? i. Sect.3 requires of both the tribunal & the respondent 2.(a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate & encourage,promptly & at the lowest reasonable cost, access to gov. info. The applicant was clearly forced to seek an unwanted & unnecessary review application from a defective decision that the application was invalid ii. Sect.100 (1) A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision The applicant has legitimate & justified grounds for being aggrieved by the defective decision forcing the applicant to unwanted & unnecessary review application (That defective decision was required to be the correct & preferred decision) iii. Sect.50 Withdrawal of application (1) A person who has made an access application may withdraw it at any time before notice of the agency's decision on the application is given to the person Were the defective decision was the "correct & preferred" decision (supported by the requested evidence), the applicant had the right to withdraw from the application remitted decision (required by the tribunal) at any time. This would have been a just,quick,cheap solution for the tribunal & all parties iv. Sect.60 (3B) Any consideration under subsection (3A) must, on balance, outweigh— (a) the general public interest in favour of the disclosure of government information, and (b) the demonstrable importance of the information to the applicant, including whether the information – (i) is personal information that relates to the applicant, or (ii) could assist the applicant in exercising any rights under any Act or law. The information sought access to is substantially personal information & of significant importance to the applicant. On the applicants reading of Higgins decision, this information is not made clear (if in fact stated at all) v. Sect12 (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. [Note: The following are examples of public interest considerations in favour of disclosure of info. (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of any agency) had engaged in misconduct or negligent, improper or unlawful conduct. Higgins made no reference to the information sought access to in her decision and it's relevance to Sect. 12 v. Sect.16 Agencies to provide advice and assistance (1) An agency must provide advice and assistance to a person who requests or proposes to request access to government information, for the purpose of assisting the person to access, or seek access to,information that is or may be made publicly available. (2) An agency must provide the following specific advice and assistance to a person who requests access to government information: (a) advice as to whether or not the information is publicly available from the agency and (if it is) how the information can be accessed, (b) advice on how to make an access application for the information if the information is not publicly available from the agency but appears likely to be held by the agency, (c) if the information appears unlikely to be held by the agency but appears likely to relate to the functions of some other agency, the contact details of the other agency, (d) the contact details of the Information Commissioner and advice on the availability of and how to access any information published by the Information Commissioner that it appears may be relevant to the person's request. (3) An agency is only required to provide advice and assistance under this section that it would be reasonable to expect the agency to provide. A correct & preferred interpretation of the above is that (1). PRINCIPLE: An agency MUST provide advice & assistance (to promote the publics enforceable right (2). MINIMUM REQUIREMENTS of those obligations (3). QUALIFICATION OF (1) Reasobale advice & assistance would also permit the public to ask questions related to the processing,interpretation & application of the Act as well as any "good faith"/"conduct" concerns the public may have concerning the processing. Higgins decision fails to properly interpret these requirements vi. Sect.112 Report on improper conduct If NCAT is of the opinion on the completion of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may on its own initiative bring the matter to the attention of— (a) the Minister who appears to NCAT to have responsibility for the agency, or (b) if the Minister who appears to NCAT to have responsibility for the agency was a party to the proceedings, the Information Commissioner. Sect. 111, 112 (116, 117, 118, 19 & 120) are specifically in the Act to protect the publics enforceable GIPA Act rights from agency "lack of good faith" / "improper conduct" a. the authority to bring that discretionary opinion of the matter to the attention of the minister may be exercised specifically at the completion of the review b. that discretion is required to be exercised to promote the object of the Act (Sect.3) c. nothing in Sect. 112 prohibits the tribunal from making comments/statements/recommendations at any time in the proceedings to ensure that the publics enforceable rights are not being compromised at any stage by "lack of good faith" / "improper conduct" d. Any evidence of "lack of good faith" / "improper conduct" before the tribunal requires that the tribunal ensure that these issues do not compromise the correct & preferred decision. Given that: e. The applicant requested that the decision maker NOT exercise functions for the application AND f. That decision maker subsequently made a DEFECTIVE DECISION AND g. The applicant HAD NOT RECEIVED THAT DEFECTIVE DECISION PRIOR TO SEEKING AN ADMINISTRATIVE REVIEW AND h. The CSO provided that defective decision ON or JUST BEFORE the first directions hearing AND i. The applicant stated AT THE HEARING that the decision HAD NOT BEEN RECEIVED prior to proceedings AND j. The CSO REFUSED THE APPLICANTS OFFER TO WITHDRAW FROM THE PROCEEDINGS WITHOUT SEEKING DIRECTIONS FROM THE RESPONDENT YET STATING THAT [57].4. "IT WAS NOT POSSIBLE TO PRODUCE SUCH A DOCUMENT BECAUSE THE RESPONDENT CONSIDERED NO SUCH DOCUMENT EXISTED" SHOULD HAVE REQUIRED HIGGINS TO RAISE QUESTIONS CONCERNING THE CONDUCT OF THAT OFFICER AND HER CONFLICT OF INTEREST IN EXERCISING ANY FURTHER FUNCTIONS RELATED TO THE APPLICATION This raises the relevant questions of law: b. Did Higgins fail in her interpretation of the publics GIPA Act rights? - the enforceable right to have applications where agency officers are required to exercise their functions under the Act in good faith / with proper conduct? - the public has the right to question those functions exercised for the processing of the application? (this would be reasonable for that reasonable advice & assistance required under Sect. 16) - the publics right to make informed decisions when required to amend or rescope an application (this would be reasonable for that reasonable advice & assistance required under Sect. 16) c. Did Higgins fail in her interpretation of the statutory obligation to protect the publics GIPA Act rights? d. Did Higgins fail in her obligation to promote the object of the GIPA Act by requiring a vulnerable "victim" (evidence of GIPA Act rights abuse) to be at the mercy of that same "abuser" e. Did Higgins fail in her obligation to protect the applicants GIPA Act rights by requiring a vulnerable "victim" (evidence of GIPA Acts rights abuse) to be at the mercy of that same "abuser" f. Did Higgins fail in her obligation to make a balanced decision in her Sect.55.1.b. decision? g. Did Higgins fail in her interpretation of the words of Sect. 116 and allow the respondent to make false claims: i. any offence under the Act is clearly a function which has been exercised at the very least with a "lack of good faith" / "improper conduct" and therefore is relevant to Sect.112 ii. Sect. 116 does not state that it is a "criminal offence" as implied by the respondent iii. the applicant has not required the tribunal to take proceedings for offences (unless it has the authority to do so) iv. the tribunal has the jurisdiction under Sect. 112 to form the opinion about improper conduct by the agency's officers and can deal with it per the discretionary referral h. Did Higgins fail in her interpretation of the Act that the aggrieved applicant has the right to i. make a Sect. 112 complaint ii. provide evidence to substantiate that Sect. 112 complaint iii. make a Sect. 111 complaint iv. provide evidence to substantiate that Sect. 111 complaint iii. make a Sect. 116 complaint iv. provide evidence to substantiate that Sect. 116 complaint particularly as they have a substantive effect on v. the applicants GIPA Act rights vi. a substantive effect on the correct & preferred decision (refer the Jan 13,2021 defective decision) vii. forcing the self-represented,non-legal professional,time poor,resource poor applicant to make an unwanted & unnecessary administrative review viii. unresolved real issues that infect future proceedings 3. Questions of law arising from proceedings: a. Did Higgins properly interpret the words of the CAT Act? i. The power to exercise a Sect.55.1.b. decision is discretionary. That discretion is required to promote the object of the Act. Did Higgins make a balanced decision when making the Sect.55.1.b. decision? b. Sect.3 The objects of this Act are: (c) to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and At the Oct.26,2020 hearing, the respondents dismissal application was heard At [16] Higgins stated that the applicant was to provide submissions in response to the Sect.55 application by Nov.13,2020. Higgins order on Mon.Oct.26,2020 fails the requirement of the tribunal to be responsive to the needs of all it's users including self-represented,non-legal professional,time poor,resource poor applicants. i. Higgins knows that the self-represented,non-legal professional,time poor,resource poor applicant is required to undertake his non-related work for his livelihood This requires the self-represented,non-legal professional,time poor,resource poor applicant to work extra & unnecessary long hours ii. Higgins order is made on a Monday. This leaves the self-represented,non-legal professional,time poor,resource poor applicant with: a. only one weekend b. at most,9 working days (one day at least lost for delivery of submissions in time) c. unreasonable time to make very important submissions d. unreasonable stress e. making submissions in an unreasonably short time to contest those of an exclusive, specialist legal service with unlimited resources,publicly funded & paid to do work during business hours (maybe penalty rates for after hours work). This fails the promotion of the CAT Act Sect.3.c. A fair minded lay observer could easily form the opinion that this obligation has been breached and that Higgins execises actual bias against the self-represented,non-legal professional,time poor,resource poor forced applicant. (d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and The defective decision made on Jan 13,2020 is supposed to be the correct & preferred decision. The self-represented,non-legal professional,time poor,resource poor applicant would be required to concede to that decision as the corect & preferred decision were the agency to provide that substantiating evidence requested. This negotiation would meet the above criteria, Higgins / Londsdale / McAteer showed no interest to seeking such a resolution of the matter. (e) to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality, Higgins abysmally failed to make a timely decision. The final submissions were received on Dec. 14,2020 yet it took i. the self-represented,non-legal professional,time poor,resource poor applicants complaint to the tribunal to require a decision ii. until Dec.3.2021 for Higgins to make that decision which should have been made within 12 weeks at most iii. Higgins decision is inconsistent with that of: Zonnevylle v NSW Department of Justice [2021] NSWCATAD 175 by member Christie (f) to ensure that the Tribunal is accountable and has processes that are open and transparent, Higgins interpretation of the obligations of the GIPA,CAT & ADR Acts does not provide accountability nor transparency. Other facts are believed to be associated with Higgins decision (g) to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members. The failure of Higgins interpretation of the obligations of the GIPA,CAT & ADR Acts does not promote punlic confidence in tribunal decision making or her conduct. c. Did Higgins properly interpret the words of the ADR Act? Sect.3 Objects of Act The objects of this Act are as follows: (c) to foster an atmosphere in which administrative review by the Tribunal is viewed positively as a means of enhancing the delivery of services and programs, Ref.2.iv.j. Higgins failure to address what appears to be a PRIMA FACIE example of improper conduct / lack of good faith which was complained against clearly fails this statutory obligation. Higgins failure to exercise those statutory obligations seeks to institutionalize & ensure that unchecked agency misconduct compromises & undermines the publics GIPA Act rights. (d) to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales. Ref.2.iv.j. Higgins defective Sect.55 decision i. contradicts the above obligations ii. utterly fails the required compliance required by agency officers iii. further erodes the publics legislative rights iv. further victimizes all self-represented,non-legal professional,time poor,resource poor applicants who have legitimate complaints,fears & anxiety concerning agency officer conduct. d. Did the Higgins fail to provide the applicant reasonable procedural fairness? i. Higgins is alleged to have denied the applicant procedural fairness when refusing to recuse herself. Procedural fairness requires: a submissions from the applicant b. submissions from the respondent c. further response from the applicant d. Higgins to make a decision with reasons Higgins is alleged to have failed this fundamental & required right. ii. Higgins did the same in NCAT 2021/000247292 There are know systemci issues with a failure by members to provide procedural fairness in proceedings Higgins is a typical recidivist Higgins failure to provide the applicant with reasonable & adequate procedural fairness substantiates the self-represented,non-legal professional,time poor,resource poor applicants complaints of actual bias exercised by the tribunal against the public. e. Did Higgins fail to have proper regard to evidence to support the self-represented,non-legal professional,time poor,resource poor applicants complaints / contentions? Higgins ignored the blatant improper conduct related to 2.iv.j. which clearly substantiates the self-represented,non-legal professional,time poor,resource poor applicants legitimate & justified complaints against at least one of those officers exercising functions under the Act. On the basis of probabilities,it is should be apparent to Higgins that it is highly likely that that officers superiors are also complicit in this misconduct. Higgins has failed to have consideration of this real issue which has a particular public interest as it affects beneficial legislation required for the public. Further Higgins decision fails to contemplate any conflict of interest those agency officers have to prevent the release of information which may show those officers & their colleagues in a negative light. f. Did the Higgins misapply the law to the facts that she used? Higgins misused & misrepresented the self-represented,non-legal professional,time poor,resource poor applicants legitimate & justified complaints against those same officers exercising functions under the Act. The public has the right that those officers exercising their functions under that Act do so in good faith. The tribunal premise that those officers who have (substantiated by evidence) perpertated Sect. 112 breaches sould be and are to be allowed to continue to exercise those functions fails i. the public interest ii. to address serious issues such as conflicts of interes by those offciers iii. any reasonable or logical standards Higgins premise would logically permit: iv. animal abusers to own pets v. carers having abused their patients continue their "caring" of those victims vi. teachers having abused their students continue teaching vii. clergy having abused their paritioners continue their functions viii. financial advisors who have complaints against them for improper advice,continue advising ix. any service provider (builder,painter,mechanic,accountant) with credible complaints against them being allowed to perpetrate those same offences against other unsuspecting customers. Further,the self-represented,non-legal professional,time poor,resource poor applicants complaints which seek to ENSURE THAT THOSE GIPA ACT RIGHTS ARE NOT COMPROMISED OR ABUSED IS AN IMPROPER OR VEXATIOUS PURPOSE UTTERLY FAILS ANY REASONABLE MORAL STANDARDS. g. A fair minded lay observer could easily form the opinion that Higgins decision fails i. the public interest ii. those statutory obligations to promote the GIPA,CAT & ADR Acts iii. erodes the publics rights iv. perpetrates bias against the self-represented,non-legal professional,time poor,resource poor applicants 4 Questions of law arising from proceedings and / or Leave to appeal for related issues:. a. Was a valid appeal application received against Higgins which should have prevented her from deciding 2020 / 00045500? i. On Nov.9,2021, the tribunal received a bundle of documents from the applicant which included an appeal application against Higgins related to NCAT 2021/ 000247292 Item 3. NCAT 2021/000247292 a. Higgins sound recording application b. CAT Act Sect.62 written reasons c. Fee waiver application d. credit card authority for above e. general application form f. application for stay or interim order ii. A fee waiver for the appeal application 2021/000149117 Zonnevylle v NCAT / Dinnen was accepted on the grounds of misconduct by Dinnen (Dinnen refusing procedural fairness at the May 18,2021 hearing) iii. The Higgins appeal was based on subsatntially the same issue (Higgins refusing procedural fairness at the Nov. 1,2021 hearing) iv. A fee waiver was submitted & refused for the appeal against Higgins. The fee waiver was refused BUT NOT by the principal registrar v. The applciant sought a review of the fee waiver refusal by the principal registrar Civil & Administrative Tribunal Regulation (4) If the principal registrar considers that there are special reasons for doing so, the principal registrar- (a) may direct that any fee be waived wholly or in part, and that any part of the fee waived that has been paid be refunded, vi. the principal registrar has refused to response to this request. vii. The appeal documentation sought a restraining order on Higgins from deciding or presiding over the applicants proceedings. (one grounds being: If a tribunal member cannot provide or understand the basic obligation to provide parties with procedural fairness then they cannot be trusted by the public to make the correct & preferred decision nor uphold their conduct obligations) b. There is a relevant timeline to the following: i. Nov. 1,2021 Directions Hearing NCAT 2021 / 000247292 Zonnevylle v IPC ii. Prior to the hearing the applicant ntofied the member & registry of NCAT 2021/ 000149117 Zonnevylle v Dinnen Higgins knew that the substantive hearing for NCAT 2021 / 000149117 was set for Nov. 19,2021 iii. At the hearing,Higgins refused the applicant procedural fairness when making several applications iv. The applicant was forced to exit the hearing due to Higgins refusal to a. recuse herself (for two or more matters) and b. refusiong to provide the applicant procedural fairness v. The applicant,prior to exiting the hearing advised Higgins that an appeal would be made against her vi. After the appicant was forced to exit the hearing,Higgins proceeded to make further orders including: "On or before 15 November 2021, Peter Zonnevylle is to give to the Tribunal and the Information Commissioner the following material: any evidence including statements, documents and submissions in regard to the dismissal application of the respondent filed today. In his submissions, Peter Zonnevylle is to indicate whether the Information Commissioner's dismissal application can adequately be determined on the papers. As Higgins knew about the the self-represented,non-legal professional,time poor,resource poor applicants legitimate circumstances & commitments, Higgins order requiring submissions be submitted on or before Nov 15,2021 is alleged to be unjust / unfair / unreasonable / improper / inappropriate / and most likely malicious. Higgins decision blatantly breaches CAT Act Sect.3.c. vii. At 3.g Higgins confirms that she was aware that the applcant was going to appeal her decisions (Nov. 1,2021 order attached) viii. In addition to the above,the applicant made a complaint to the tribunal about the failure to provide Higgins 2020/00045500 decision in time ix. Not long after,Higgins made her 2020/00045500 decision to the detriment of the applicant. It is the applicants contention that a fair minded lay observer could easily form the opinion that Higgins made the adverse Sect..55 decision in retribution / to imposed an unjust punishment against the applicant. This conclusion is highly likely as Higgins has displayed a disregard for tribunal obligations & conduct (refusing basic legal rights such as procedural fairness). b. Did Higgins fail in her interpretation of the statutory obligation to promote the object of the GIPA,CAT & ADR Acts in proceedings? c. Did Higgins apply the correct legal test when deciding not to disqualify themself? d. Did Higgins err in the application for rules of evidence in proceedings? e. Did Higgins err in her exercising of statutory conduct obligations? f. Did Higgins err in correct legal test for actual bias / apprehended bias in proceedings? g. Did Higgins fail to apply any of those statutory obligations required of the CAT,ADR & GIPA Acts in proceedings h. Did Higgins err in her interpretation & application for the exercising of the CAT Act Sect.54 discretion to promote the object of the CAT,ADR & GIPA Acts? i. Did Higgins err in her application of the required statutory obligations to uphold those professional standards such as i. Legal Profession Uniform Conduct (Barristers) Rules 2015 ? ii. Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 ? iii. any other relevant professional standards? in any of the above proceedings? j. Did Higgins err in any other legislative obligation when making any of the decisions in proceedings k. Did Higgins fail to apply the relevant legal procedures / obligations for applications made by the applicant? l. Did Higgins err in any legal principles by allegedly making false statements to the tribunal? m. Did Higgins err in any legal principles to a;llegedly perpetrate CAT Act Sec.71 offence in proceedings? n. Did Higgins err in her application of statutory conduct obligations in proceedings? o. Did Higgins err in any legal principles in proceedings to breach public trust? p. Did Higgins breach the legal principles of bias (actual or apprehended bias) against the self-represented,non-legal professional applicant?" 1. We have considered the Appellant's appeal grounds, set out above. These are generally not framed as grounds, but rather as questions of law. Nevertheless, we have treated them as asserting that the Tribunal erred in various respects the subject of each question posed. We have considered these as informed by the Appellant's submissions. Procedural fairness 1. The Appellant asserted that the Tribunal had failed to afford him "reasonable procedural fairness". As the Tribunal recorded, the Appellant provided extensive written material. The Appellant has not identified any respect in which he was denied a reasonable opportunity to present his case. Procedural fairness does not involve the unfettered and unrestricted entitlement of a party to proceedings to raise and agitate every issue which the party considers to be relevant to proceedings before the Tribunal. As the Tribunal has repeatedly held in litigation involving the Appellant, and the Court of Appeal has affirmed, the vast bulk of the Appellant's complaints are not matters which fall within the jurisdiction of the Tribunal. The Appellant has not identified any matter of relevance to the proceedings before the Tribunal which he was prevented from adducing in those proceedings. The similarity between the matters agitated in the appeal proceedings and the matters raised in the Tribunal is supportive of finding that the Appellant was not denied procedural fairness by the Tribunal. Personal information 1. In his submissions filed on 22 February 2024 section "B. Appeal on question of law", the Appellant submitted that he was "seeking substantially personal information" pursuant to his review application. That may or may not have been the case, having regard to the terms of the "information/documents sought" by the Appellant in his review application. It is by no means clear that, notwithstanding the repeated use of the expression "concerning Zonnevylle", the information/documents sought by him necessarily fell into that category. Even if all the information/documents sought by the Appellant comprised "substantially personal information" that would not advance his application for leave to appeal having regard to the basis of the Respondent's summary dismissal application and the Tribunal's reasons for upholding that application. Determination of the matter on the papers 1. To the extent that the Appellant complained that the Tribunal determined that it had "the authority to determine the sect. 55 decision on the papers", nothing to which the Appellant has referred the Tribunal establishes that the Tribunal erred by doing so. An order pursuant to s 50(2) of the CAT Act was, in the Appeal Panel's view, reasonably open to the Tribunal. Significantly, the Appellant has not identified any relevant matter raised by him in his extensive written submissions to the Tribunal which the Tribunal did not consider. Principles in case law 1. The Appellant referred to the decision in Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5, at [120] in which it was said that the "power to refuse to deal with an application is a powerful one and should only be used as a last resort after making every attempt to assist the applicant in narrowing the request". As we have earlier recorded, the Respondent invited the Appellant to engage in a process which, had the Appellant adopted it, could have resulted in the "narrowing" of his request. He did not engage. The Respondent could not be found to have failed to have attempted to assist the Appellant to narrow his request when he refused to engage to seek to do so. 2. The Appellant relied on the statement in Singh that "agencies should not rely on the power of a refusal to process simply because their information management systems are poorly organised and documents take an unusually long time to identify and retrieve". Although, presumably, the Appellant would disagree, nothing to which the Appeal Panel has been referred suggests that the Respondent's failure to provide the information/documents sought by him was referable to any "poorly organised" information management system. The basis upon which the Respondent resisted the Appellant's initial and unchanged request was that, as provided by s 60(1)(a) of the GIPA Act, doing so would have required the Respondent to devote an unreasonable and substantial diversion of the agency's resources to responding to the request. 3. The Appellant also referred to the decisions in Cianfrano v Director General, Premier's Department [2006] NSWADT 137 and Colefax v Department of Education and Communities (NSW) (No 2) [2013] NSWADT 130 in support of his contention that the Respondent needed to "justify its position as regards calculation of the time and effort likely to be taken pursuant to s 60 GIPA Act and why this is an unreasonable burden on the Respondent". As those cases make clear, that occasion arises after a valid access request is made. As earlier recorded, the breadth and opacity of the Appellant's request for information/documents rendered appropriate the Respondent's attempts to engage with him in order to refine the request. Rather than simply refusing to accept the request, the Respondent sought, properly but unsuccessfully, to engage with the Appellant in order to narrow the scope of his request. Alleged lack of assistance 1. The Appellant further complained that the Tribunal erred in failing to find that officers of the Respondent failed to "provide reasonable advice and assistance to allow" the Appellant to make a "reasonably informed decision to amend the application such that a sect. 60.1.a decision is not invoked". With respect to the Appellant, that contention is factually incorrect. The Respondent endeavoured to provide relevant and appropriate assistance to the Appellant, but he refused to engage with it in order to advance his request for information/documents. As the Appellant's submissions make abundantly clear, rather than engage with the Respondent and endeavour by "narrowing" the scope of his request for information/documents, the Appellant elected to bring a review application. The Appellant was entitled to do that, but, he cannot in our view avoid the consequences of the Respondent's deemed rejection of his request. 2. Save that it was adverse to him, nothing to which the Appellant has referred establishes that the Tribunal's decision was unbalanced or unfair in any respect recognised in law. Alleged errors in weighing matters 1. The Appellant asserted that, in a number of respects, the Tribunal had failed to give the weight "required" to matters which he raised and failed to give "any weight to her statutory or implied statutory obligations to ensure that 'improper conduct' as raised in complaints" by the Appellant were dealt with in the s 55 decision. In its reasons, the Tribunal explained, consistent with Court of Appeal authority, why the Appellant's complaints about improper conduct of various officers associated with his GIPA request was not relevant to the proceedings. The Tribunal's determination involved no weighing of evidence. It turned on the Appellant's own documents. In any event, the Appellant has not identified any assertedly erroneous weighing of evidence before the Tribunal. 2. The Appellant summarised his complaints by submitting that the Tribunal failed what he asserted were its "obligations" requiring: 1. a fair and balanced decision; 2. giving weight to real issues that were relevant to the administrative review. 1. We do not consider that these complaints, formulated in very general terms, raise a question of law. Dismissal of request for administrative review 1. The Appellant relied on the decision of the Appeal Panel in BDK v Department of Education and Communities [2015] NSWCATAP 129 in which it was stated that "In the absence of the respondent establishing that the administrative review application is frivolous and vexatious a legitimate request for administrative review (even if buried among other misconceived or lacking in substance claims) cannot be summarily dismissed". The Appeal Panel cannot disagree with that statement. The difficulty is that, in this case, the Tribunal found that there was no "legitimate request for administrative review" whether "buried among other misconceived or lacking in substance claims" or otherwise. It is for the Appellant to demonstrate that he had made a "legitimate request for administrative review" which the Tribunal failed to determine or erroneously determined. The basis upon which the Respondent declined to comply with the Appellant's request for information/documents is relevant in that regard. If the Appellant raised a legitimate ground for administrative review before the Tribunal which it failed to deal with, leave to appeal could be granted. Nothing to which the Appeal Panel has been referred, or discovered for itself, identifies a "legitimate" request for review by the Appellant. Nothing emerging from the material filed by the Appellant in the Tribunal, or before the Appeal Panel does either. Other matters raised in appeal grounds 1. The appeal grounds raise a wide variety of issues, not all of which are dealt with in any detail in the Appellant's submissions. Many of the grounds are framed at a high level of generality. 2. We do not consider that there is any merit in any of the Appellant's challenges to the Tribunal's construction and application of the GIPA Act, the CAT Act and the ADR Act. The decision did not, in any event, turn in any significant way on the Tribunal's construction of those Acts. 3. The Appellant has not established that the Tribunal was subject to many of the alleged "obligations" referred to in the appeal grounds (such as the "obligation to promote the object of the GIPA Act" and the "obligation to protect the publics GIPA Act rights"), nor that, if it was, it "failed" in the manifest ways alleged. 4. The Appellant alleges in his appeal grounds that the Tribunal's decision "perpetrates bias against the self-represented,non-legal professional,time poor, resource poor applicants," and that the Tribunal was otherwise subject to a reasonable apprehension of bias. The test for apprehended bias is set out above. In our view, there is no proper basis for that allegation, and it is rejected. 5. The Appellant has not persuaded us that any of the other multiple appeal grounds advanced has any merit. The submissions of the Respondent 1. The Respondent submitted that no ground of appeal raised by the Appellant "tenably challenges that the proceedings were maintained for the dominant improper purpose of ventilating corruption allegations and seeking findings which were bad in law and outside the jurisdiction of the Tribunal". It was further submitted that the Tribunal had "conscientiously made detailed and accurate findings over the course of its decision, including as to the applicant's conduct in relation to the narrowing of the access application". 2. The Respondent relied in that context on the findings of the Tribunal at [122], [127] and [128]. The Tribunal there said: "122 It is a matter for the applicant if he chooses to narrow the scope of his access request. His reasons for not doing so, in my opinion, when objectively assessed, also forms part of his predominant purpose of pursuing these proceedings so as to have the Tribunal make findings of misconduct, illegality and lack of good faith by the respondent, when he is fully aware that such matters do not fall within the Administrative Tribunal's review jurisdiction. … 127 In my opinion, the applicant's 14 December 2020 written submissions demonstrate an intention to continue to agitate for findings of lack of good faith, misconduct and illegality on the part of the respondent and the officers of the respondent department, and to seek findings and orders that fall outside the scope of the jurisdiction of the Tribunal to review the decision made by the respondent on 8 July 2020 (i.e. to determine the correct and preferable decision. 128 Therefore, despite the applicant having a right to seek review of the decision of the respondent, made on 8 July 2020, I am satisfied, on the material before me, that the applicant's predominant purpose, objectively determined, in maintaining his review application is to reagitate allegations of misconduct, lack of good faith and illegality on the part of the respondent and the senior officers of the respondent department. That purpose being a collateral purpose and an abuse of process." 1. The Respondent submitted, correctly in our view, that "far from identifying error, the grounds of appeal fortify" the observations of the Tribunal, at [137] that the Appellant "will continue to persist with this collateral purpose" suggesting that "such vexatious conduct will continue in the Appeal Panel". 2. The Respondent advanced at [21] numerous reasons why it was submitted that the findings of the Tribunal were "amply supported" by the evidence to which the Tribunal referred in its reasons. Particular reference was made to the findings of the Tribunal at [122] to which we have referred. The Respondent submitted that the Appellant "had ample opportunity to amend his application to make it workable, following correspondence from the Respondent which explained that it was a manifestly and unreasonable diversion of resources. The Applicant did not do so despite having the opportunity on 3 occasions" to do so. The Respondent relied on the finding of the Tribunal at [119] that "on 3 occasions the Tribunal made orders giving the Applicant an opportunity to amend his access request, in the light of the Respondent's proposed decision, on reconsideration, to refuse to deal with his access request on the grounds of an unreasonable and substantial diversion of resources". 3. Nothing to which the Appellant has referred the Appeal Panel demonstrates that the finding of the Tribunal with respect to the Appellant's opportunities to refine his request was erroneous or not open to it. Nothing to which the Appellant has referred establishes that the Tribunal erred in finding that the Appellant did not avail himself of any of those opportunities, or that such failure was because his "predominant purpose" in pursuing the proceedings was to have the Tribunal made findings of "misconduct, illegality and lack of good faith by the Respondent". 4. The Respondent relied on the finding of the Tribunal, which the Appellant has not challenged, at [118] that the Appellant's persistence with an offer to withdraw the proceedings if the Department would provide evidence of its "officers' misconduct", and submitted that to have "demonstrated a distinct lack of interest in the process of reviewing the GIPA decision, and an unrelenting focus on attempting to establish the commission of offences outside the jurisdiction of the Tribunal". There is force in that submission. If the dominant purpose of the Appellant's information request was to obtain personal information, it is inconceivable that he would have proposed such a "trade-off", and provides compelling support for finding that his review application was for the ulterior purpose found by the Tribunal. 5. As no other submissions advanced by the Appellant, to which we have not specifically referred, could possibly advance his case, we do not consider that it is necessary or instructive to refer to those submissions. Additional consideration 1. The Appellant sought to advance his challenges to the Tribunal's decision in part in reliance upon the principles of statutory interpretation applicable to "remedial", or as they are often called "beneficial", statutes. Such provisions are "interpreted having regard to the fact that they are intended to remedy a perceived injustice or provide a benefit to the persons to whom they apply. It is unlikely that their legislative purpose will be given effect if they are interpreted in a way that overlooks that intention" (Dennis Pearce, Statutory Interpretation in Australia (9th ed, 2019, Lexis Nexis) at para 9.1). 2. Statutory provisions for administrative review have consistently been held to be remedial (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33; 94 ALR 11; Australian Postal Corporation v Forgie (2003) FCAFC 223; (2003) 130 FCR 279; 202 ALR 63). 3. The "orthodox view" of the approach to be adopted in relation to interpretation of remedial legislative provisions was stated by Isaacs J in Bull v Attorney General (NSW) (1913) 17 CLR 370; [1913] HCA 60 in the following terms: "This is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially … this means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow." 1. As later authorities make clear, beneficial interpretation of remedial legislation does not only apply where there is an ambiguity in the legislation. In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50; 339 ALR 327, Gageler J (as Gageler CJ then was) said that: "The principle that beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively. Application of that more general principle in New South Wales legislation is mandated by the requirement of s 33 of the Interpretation Act 1987 (NSW) that a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not. Neither in its general application nor in its particular manifestation can that principle be applied other than on the understanding that legislation "rarely pursues a single purpose at all costs" and that "ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling." 1. In SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 361 ALR 206, Edelman J said that: "The task of statutory construction must begin and end with the text of the statute. That statement does not mean that the text of a statute must be interpreted only according to the range of semantic meanings of the individual words. It means only that the interpretation of a statute, like any other legal instrument, is an interpretation of its words. Those words are interpreted in their context and in the light of their purpose although legal rules can sometimes exclude or restrict the use of some context. In ascertaining the reasonably intended meaning of parliament context is, literally, those matters to be considered (simultaneously) together with the text. Context can give words an interpretation that is the opposite of their ordinary meaning and grammatical sense. Context can also permit a construction of words that excludes their application to matters that would have fallen within the application of their literal meaning. However, as with contractual interpretation, where "the clearer the natural meaning the more difficult it is to justify departing from it", so too in statutory interpretation "questions of degree arise" and it would be more difficult to displace an interpretation that "has a powerful advantage in ordinary meaning and grammatical sense"." 1. The Appellant appears to suggest, but not provide submissions in support of such suggestion, that his review application should not have been summarily dismissed because the Respondent had not discharged its obligation pursuant to s 60(3) of the GIPA Act, by demonstrating that compliance with his request for documents/information would involve an unreasonable and substantial diversion of resources pursuant to s 60(1)(a) of the GIPA Act. Having considered the Appellant's challenges to the Tribunal's decision that the review application was predominantly for a collateral purpose, and that, accordingly, there was no need for the Respondent to satisfy s 60(1)(a), it is strictly unnecessary to record obiter dicta with respect to those complaints. Having regard to the history of the Appellant's review applications, and his determination to persist with such applications, notwithstanding their persistent rejection by the Tribunal and the Court of Appeal, it is considered appropriate that the Appeal Panel says something about this issue. 2. Although the Respondent did not refuse to do so in reliance upon s 60(1)(a) of the GIPA Act, or need to in the circumstances of this case, it is instructive to refer briefly to the principles applicable to the operation of that provision. In Zonnevylle v Department of Education and Communities [2016] NSWCATAD 49, the Tribunal considered and dismissed the Appellant's application for review of several decisions by the Department of Education and Communities in relation to access applications brought under the GIPA Act. In the course of dismissing the Appellant's review applications, the Tribunal referred to the categories of documents or information sought by the Appellant in his access application. Having identified the "19 categories of documents" sought by the Appellant, the Tribunal said at [51] that "The breadth of this request suggests that a considerable degree of resources would be required to process the application. This is even more strongly suggested by the fact that it is difficult to comprehend what is being sought by many of the categories". The Tribunal further referred at [55] to the submission of the Department of Education and Communities that the categories were "inherently subjective", which accordingly "makes it difficult for any officer of the Respondent to locate information which answers the request. What the searching officer might regard as "'proof' may not necessarily be regarded as such by the Applicant, or by this Tribunal". 3. The Tribunal found at [57] that the Department was entitled to refuse to deal with the access application and was satisfied that doing so would represent a substantial and unreasonable diversion of resources. The Tribunal observed that "large parts of the access application are invalid as it is not possible to ascertain what information is sought. The access application did not include the information that is reasonably necessary to enable the information applied for to be identified. Further, many of the categories require the Respondent to create new documentation. The Respondent was correct to deal with the access application." Those findings are apposite in the present proceedings. 4. The Appellant referred to Cianfrano v Director General, Premier's Department [2006] NSWADT 137, a case concerning the former Freedom of Information Act 1989 (NSW) (repealed) ("FOI Act"). In that case, O'Connor DCJ said at [44] that "what scale of request may be seen as 'substantially and unreasonably diverting an agency's resources' admits of no ready or precise measure". His Honour referred at [47] to Victorian decisions which he said "affirmed frequently that broad 'fishing' requests in an ill defined form will not be granted, and that the Act's provisions seeking to contain the impact have as their basis the competing public interest in the efficient administration of government". His Honour further observed at [50] that whilst "FOI procedures" such as access requests "may allow for 'alternative discovery' of documents, the FOI Act expects the activity to be kept within reasonable, manageable bounds". The facts of this case readily invite findings in those terms. 5. O'Connor DCJ also recorded at [62] what he saw as "the factors that are relevant to an assessment of" a request for documents or information which was rejected in reliance upon provisions under the FOI Act, which are similar to s 60(1)(a) of the GIPA Act. The first matter to which His Honour referred was "the terms of the request, especially whether it is of a global kind or generally expressed request; and in that regard do the terms of the request offer a sufficiently precise description to permit an agency, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort". The second matter to which His Honour referred was that the "demonstrable importance of the document or documents to the applicant may be a factor in determining what in the particular case is a reasonable time and a reasonable effort". The other matters to which His Honour referred are not instructive for present purposes given that, understandably, the Respondent in this case did not adduce evidence of the time and effort that would be likely to deal with the Appellant's request. 6. The first two matters to which His Honour referred have relevance. As their terms make clear, the number of categories of requests for documents or information made by the Appellant and their terms do not reveal a sufficiently precise description to permit an agency, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort. As noted earlier, many of the requests involve consideration, or even speculation as to just what documents the Appellant is actually seeking, and, having determined what they are, investigating to ascertain whether they exist. The requests are, on their face, very much in the nature of "fishing" exercises which offend the principles emerging from the authorities to which O'Connor DCJ referred in Cianfrano. 7. Other than for the collateral purpose which has been consistently found to infect his requests, the Appellant has not demonstrated anything which suggests that there is, or may be, "demonstrable importance" of any document or information which may be in the possession of the Respondent. Even if, which he has not, the Appellant had sought to challenge the decision of the Tribunal on the basis that the Respondent had not discharged an onus pursuant to s 60(1)(a) of the GIPA Act, such challenge would fail. Conclusion 1. As we do not consider any ground of appeal to have any merit, the Appellant's Notice of Appeal will be dismissed. No basis for granting leave to appeal has been demonstrated by the Appellant. That being so, there would be no utility in granting an extension of time in which to appeal or seek leave to appeal. Order 1. Extension of time to appeal refused. 2. Leave to appeal refused. 3. Appeal dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 May 2024