Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 8 Hearing dates: 26 November 2019 Date of orders: 17 January 2020 Decision date: 17 January 2020 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member Decision: (1) Procedural directions as set out in these reasons. (2) A hearing of the substantive appeal is dispensed with. (3) The Respondent's application for A Suthers, Principal Member, to recuse himself for apprehended bias is refused. Catchwords: PRACTICE AND PROCEDURE - bias - whether appeal hearing should be dispensed with and appeal determined 'on the papers' without an oral hearing PRACTICE AND PROCEDURE – allegation of bias – application for recusal of member conducting call-over Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Cases Cited: None cited Texts Cited: None cited Category: Procedural and other rulings Parties: Department of Communities and Justice (Appellant) Peter Zonnevylle (Respondent) Representation: Solicitors: Crown Solicitor (Appellant) Respondent (Self Represented) File Number(s): AP 19/51762 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil & Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2019] NSWCATAD 215 Date of Decision: 22 October 2019 Before: D Robertson, Senior Member File Number(s): 2018/00356297 Background 1. On 19 November 2019, the Appellant lodged a Notice of Appeal against a decision of the Tribunal in its Administrative and Equal Opportunity Division. The decision appealed from had the effect of deciding that an application for access to documents by the Respondent to the appeal under the Government Information (Public Access) Act 2009 (NSW) ('the GIPA Act') was, in part, a valid access application which the Appellant had to comply with. 2. The crux of the Tribunal's reasoning, which the Appellant says was in error, was that "an application which, in a severable part, does not include sufficient information to enable the government information applied for to be identified is not thereby wholly invalid." The decision enlivened other sections of the GIPA Act, requiring the Appellant to comply with the access application. 3. The Appellant's challenge to that finding is the sole ground of its appeal. The appeal is, therefore, confined to a very discrete issue on the construction of the GIPA Act. Directions and Orders at a Call-over 1. On 26 November 2019, I conducted an interlocutory hearing at a call-over, to prepare the matter for the determination of the substantive appeal. 2. The Appellant was, as of right, legally represented. The Respondent represented himself. 3. I dealt with an application for a stay by the Appellant, for which I have given separate reasons, and made directions setting out a timetable for the parties to file their material in the appeal and made an order dispensing with a hearing of the appeal in accordance with s 50(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) ) ("the NCAT Act"). 4. I also dismissed an application from the respondent that I recuse myself from the conduct of the call-over. 5. The Respondent has requested reasons for those decisions. They are set out below. The timetable for the parties to file their material 1. After hearing the parties about a suitable timetable for the filing of their material in the appeal, which included discussion about the effect of the impending Christmas period, I directed that the Appellant lodge and serve its material in support of the appeal by 17 December 2019. 2. The Respondent asked that I allow him eight weeks from that date to lodge and serve his material. He pointed to his lack of legal training and the effect of the impending Christmas period. I directed the Respondent to lodge and serve his material in reply by 28 January 2020. I was satisfied that the timetable directed by me provided a sufficient and reasonable time for the Respondent to lodge his material and serve it on the Appellant. In particular, I had regard to the fact that the timetable I decided on gave the Respondent nearly four weeks to prepare his material, beyond the New Year's Day Public Holiday and that, as I explained to the Respondent at the hearing, he could commence preparing his submissions immediately in any event. That, in effect, allowed him over eight weeks from the call-over to prepare. 3. I proposed to allow the Appellant an opportunity to file submissions in response by 4 February 2020. The decision to dispense with a hearing of the Appeal 1. As noted above, the appeal relates to a discrete issue of construction of the GIPA Act. On that basis, it appeared to be amenable to determination on the papers and without a hearing. 2. Under s 50(2) of the NCAT Act, I could only make an order dispensing with a hearing if I was satisfied that: … the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. 1. Before making such an order, I was required, by s 50(3) of the NCAT Act, to first afford the parties an opportunity to make submissions about the proposed order, and take those submissions into account. 2. I did that at the interlocutory hearing. 3. The Appellant agreed that the matter was amenable to determination on the papers without a hearing and submitted that I should make an order dispensing with a hearing. 4. After explaining the process if I dispensed with a hearing of the Appeal, and before I made the order, the Respondent expressed a concern that it may be unfair to him to dispense with a hearing if the Appellant was given a right of reply to his material, effectively giving the Appellant the last opportunity to put material before the Tribunal. I considered that submission carefully, as it had some weight. In the course of further submissions on that issue, however, the Appellant indicated that it would be content to forgo the right of reply, given the nature of the appeal. 5. The Respondent then agreed that the matter could properly be dealt with on the papers and a hearing dispensed with, saying "Yeah, okay, that sounds reasonable. I must admit that would even the playing field for sure." 6. Having considered the Notice of Appeal, the discrete ground it contained, and the parties' submissions, I was satisfied that the issues for determination in the appeal could be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. I announced my intention to make an order dispensing with a hearing of the appeal. An application that I recuse myself 1. Later in the interlocutory hearing, the Respondent advised that he had reconsidered his position about agreeing that it would be appropriate for me to make an order dispensing with a hearing of the appeal. Whilst I considered his comments in that regard, it did not alter my satisfaction that I should make an order dispensing with a hearing. I advised the parties accordingly. 2. The Respondent then requested that I recuse myself, on the basis that he alleged that my decision not to reverse my decision to make an order dispensing with the hearing was cause for him to apprehend that I was biased against him. 3. The High Court of Australia has given guidance on how to determine whether apprehended bias is established in various decisions. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at [6] the Court said: Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that a tribunal be independent and impartial. 1. The Court went on, at [19] as follows: Judges have a duty to exercise the judicial functions when the jurisdiction is regularly invoked and they are assigned to cases in accordance with practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose the judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then the objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case. 1. In R v The Commonwealth Conciliation and Arbitration Commission and Ors; ex parte the Angliss Group (1969) 122 CLR 546 the High Court considered an application for a writ of prohibition against the Commission on the grounds of apprehended bias and a breach of the principles of natural justice. The Court said, at pages 553-554: [The] requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it. 1. I was satisfied that nothing about my declining to reverse my decision to make an order dispensing with a hearing of the appeal, solely based on the Respondent changing his mind about his support for it, would give a fair-minded lay observer reasonable apprehension that I might not bring an impartial mind to the decisions required of me in preparing the appeal for determination. 2. I refused the application that I recuse myself. 3. I should note, for completeness, that the Respondent's request for reasons sought that I deal, in addition to the above, with the following: (i) "written reasons are required for your decision to allegedly act with bias against the self-represented, non-legal professional, resource poor Respondent." As I understand this request, it appears to relate to the timetable I scheduled, which is dealt with above. (ii) "written reasons are required for your decision not to check / confirm that the appeal was lodged within the required time." Prima facie, the Notice of Appeal appears to have been lodged within time. However, nothing in the decisions made by me will prevent either party agitating their position in this regard in their written submissions, and I provided for the issue to be dealt with at the substantive hearing. (iii) "Written reasons are required for your decision to allegedly mislead the Respondent into choosing between two [scenarios]: i. where the Respondent would have the possibility to make a further submission after the Appellant's final submission. ii. the Appellant would only make one submission with the Respondent providing a following submission where it was not made clear that scenario b. would void a hearing after submissions." This request for reasons relates to the Respondent changing his position in relation to whether I should make an order dispensing with the appeal. To the extent that is goes beyond advocating for the Respondent's current position, I have given reasons for my decision to make an order dispensing with the hearing, above. To make the issue clear, it is not a situation where the Respondent's initial position "voided" a hearing. Rather, I considered the Respondent's submission, in addition to the other issues referred to in [17] and [19] above, in satisfying myself as to the requirements of s 50(2) of the NCAT Act. ********** 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 Amendments 20 January 2020 - Amended the spelling of the name of the Respondent. It was incorrectly spelled. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 January 2020