Department of Education v Zonnevylle

[2020] NSWCATAD 96

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Department of Education v Zonnevylle [2020] NSWCATAD 96
Hearing dates:	11 April 2019
Date of orders:	03 April 2020
Decision date:	03 April 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member
Decision:	1. Pursuant to s.110(1) of the Government Information (Public Access) Act 2009 (Act) Peter Zonnevylle is not permitted to make an access application under the Act to an agency listed in paragraph 2 without first obtaining the approval of the Civil and Administrative Tribunal of New South Wales. 2. The order in paragraph 1 is limited by reference to: (a) Department of Education; (b) Department of Finance, Services and Innovation; (c) Department of Justice; (d) every other agency, insofar as an application requests government information concerning the operation, administration or personnel of any agency carrying out the functions of an agency listed in (a) – (c), regardless of machinery of government changes.
Catchwords:	ADMINISTRATIVE LAW – FOI – access applications -application for restraint order under section 110 – exercise of discretion - held conduct of person making applications justified the making of a restraint order-order made.
Legislation Cited:	Civil and Administration Tribunal Act 2013 Government Information (Public Access) Act 2009
Cases Cited:	CEU v University of Technology Sydney; University of Technology Sydney v CEU [2019] NSWCATAD 11 CEU v University of Technology Sydney [2020] NSWCATAP 37 Esber v The Commonwealth (1991) 174 CLR 430 Independent Liquor and Gaming Authority v Auld [2018] NSWCATAP 68 Maxwell v Murphy (1957) 96 CLR 261 Palerang Council, Queanbeyan City Council and Goulburn Mulwaree Council v Powell [2015] NSWCATAD 44 Pittwater Council v Walker [2015] NSWCATAD 34 Port Stephens Council v Webb [2017] NSWCATAD 341 QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATOD 191 Re a Solicitor's Clerk [1957] 1 WLR 1219 Re Zimmax Co Pty Ltd v Collector of Customs, New South Wales (1979) 2 ALD 120 Robertson v City of Nunawading [1973] VR 819 at 824 Walker v Pittwater Council [2016] NSWCATAD 78 Webb v Port Stephens Council; Webb v Port Stephens Council; Port Stephens Council v Webb [2020] NSWCATAD 81 Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10 Zonnevylle v NSW Department of Finance and Services [2015] NSWCATAD 175 Zonnevylle v NSW Department of Finance and Services [2016] NSWCATAD 47 Zonnevylle v NSW Department of Education and Communities [2016] NSWCATAD 49 Zonnevylle v Department of Education [2017] NSWCATAD 101 Zonnevylle v Department of Education [2017] NSWCADAT 214 Zonnevylle v NSW Department of Finance, Services and Innovation [2017] NSWCATAD 186 Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 Zonnevylle v Department of Justice [2018] NSWCATAD 158 Zonnevylle v Minister for Education [2019] NSWCATAD 28 Zonnevylle v Department of Justice [2019] NSWCATAP 44
Texts Cited:	(Second Reading Speech, Government Information (Public Access) Amendment Bill 2018, Legislative Council, 20 November 2018 (the Hon Scott Farlow))
Category:	Principal judgment
Parties:	Department of Education (Applicant) Peter Zonnevylle (Respondent) Information Commissioner (Intervenor)
Representation:	Counsel: T Brennan (Applicant)   Solicitors: Hicksons Lawyers (Applicant) Respondent in person Office of the Information Commissioner (Intervenor)
File Number(s):	2018/322532

reasons for decision

1. By application dated 22 October 2018 the Department of Education (the Applicant) applied for an order pursuant to s 110 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) restraining Peter Zonnevylle (the Respondent) from making an access application under the GIPA Act without first obtaining the approval of the Tribunal.

Legal Principles

2. Section 110 of the GIPA Act provides:

110 ORDERS TO RESTRAIN MAKING OF UNMERITORIOUS ACCESS APPLICATIONS

(1) NCAT may order that a person is not permitted to make an access application without first obtaining the approval of NCAT (a "restraint order") if NCAT is satisfied that--

(a) at least 3 access applications (to one or more agencies) in the previous 2 years have been made that lack merit, and

(b) the applications were made by the same person or by any other person acting in concert with the person.

(2) An access application is to be regarded as lacking merit if--

(a) the agency decided the application by refusing to deal with the application in its entirety, or

(b) the agency decided the application by deciding that none of the information applied for is held by the agency, or

(c) the access applicant's entitlement to access lapsed without that access being provided (including as a result of failure to pay any processing charge payable).

(3) A restraint order may be made to apply to all access applications made by the person the subject of the order or may be limited by reference to any one or more of the following--

(a) a specific time period,

(b) a specific number of applications, whether in total or to particular agencies,

(c) particular kinds of information,

(d) particular agencies.

(4) A person who is subject to a restraint order cannot apply to NCAT for approval to the making of an access application by the person without first serving notice of the application for approval on the agency concerned and the Information Commissioner.

(5) An application for a restraint order against a person may be made by an agency that receives an access application from the person (whether or not the agency has decided the application) or by the Minister or the Information Commissioner.

(5A) In deciding whether to approve the making of an access application by a person the subject of a restraint order, NCAT is to consider, without limitation, any of the following--

(a) whether the proposed application is lacking in merit,

(b) whether the proposed application is frivolous, vexatious, misconceived or lacking in substance,

(c) whether the applicant has engaged in conduct designed to harass, to cause delay or detriment, or to achieve another wrongful purpose.

(6) NCAT may order that a person who is the subject of a restraint order is not permitted to apply to NCAT for approval to make an access application if NCAT is satisfied that the person has repeatedly made applications for approval that are lacking in substance.

(7) While a restraint order is in force against a person, any application for government information made to an agency in contravention of the order is not a valid access application.

3. In determining whether it is satisfied that any access application lacks merit the Tribunal does not enquire into the merits of the application. Rather s 110(2) is a “deeming” provision the effect of which is that an application lacks merit if in fact it was decided or resolved on a basis set out in the three sub-paragraphs of s 110(2):

1. that the agency refused to deal with the application in its entirety; or

2. the agency decided that none of the information applied for was held by the agency; or

3. the entitlement to access lapsed without access having been provided (including as a result of a failure by the applicant to pay any processing charge payable).

4. In Port Stephens Council v Webb [2017] NSWCATAD 341 (Webb) the Tribunal identified the following principles that inform the exercise of the discretion under s 110(1):

1. if the preconditions for making an order are satisfied, the discretion is a broad one: at [24];

2. factors which in any particular case might be relevant include (at [25 and 26]):

1. the total number of access applications (including but not limited to applications which lacked merit) that have been made.

2. the fact that the applications were all in one way or another seeking information about the same thing.

3. the amount of information the agencies have provided in response to those applications.

4. the resources of the agencies; and

5. the conduct of the access applicant.

3. the focus is upon the conduct of the applicant for information not upon the character of the agency to which the applications were made: at [40];

4. the power is not to be exercised for the purpose of controlling or punishing individuals who take up a lot of agency time or for the reason that the person might be regarded by the agency as vexatious: at [47];

5. the focus of the power is to control the making of access applications which would lack merit if made: at [47].

6. the making of at least three access applications which lack merit in a 2 year period is itself a reason which supports the making of an order: at [52].

7. whether the making and prosecution of the access applications, considered as a whole, was vexatious: at [57].

5. In Pittwater Council v Walker [2015] NSWCATAD 34 (Walker) Hennessy DP reasoned that in exercise of the discretion both the number and frequency of access applications and the substance or merit of the applications were relevant: at [25]. Hennessy DP's reference to substance or merit appears not to be restricted to the matters referred to in the deeming provisions in s 110(2). Rather the Tribunal was concerned in the exercise of the broad discretion conferred by s 110 with an overall assessment of the number and frequency of access applications by the applicant for information and the substance or merit of those applications.

Legal Issues

6. A restraint order under s 110 of the GIPA Act is a significant measure because it has the effect of restricting an individual's right to access government information in the context of the objects of the GIPA Act, which provides the public with open access to government information. Those objects are to be realised by authorising and encouraging proactive public release of government information by agencies (s 3(1)(a)), by giving members of the public an enforceable right to access to government information (s 3(1)(b)) and by providing that access to government information is restricted only when there is an overriding public interest against disclosure (s 3(1)(c)). The discretions conferred by the GIPA Act are to be exercised, as far as possible, to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information (section 3(2)(b)). Section 110 provides an outcome to the extreme opposite of the GIPA Act’s objects.

7. Where a restraint order is in force, the individual must adhere to the process in section 110(4) of serving notice of the application for approval on the agency and Information Commissioner prior to applying to the Tribunal. Any application made in contravention of an order is invalid (section 110(7)). Further, the Tribunal may make a further order that a person who is the subject of a restraint order is not permitted to apply to the Tribunal for approval if the Tribunal is satisfied that a person has repeatedly made access applications for approval that are lacking in substance (section 110(6)). The effect of a further order would be to 'permanently prevent a person from making access applications to a particular agency or generally unless the Tribunal imposed a condition as to the period for which the restraint order was to operate': Walker at [15].

8. ln Palerang Council, Queanbeyan City Council and Goulburn Mulwaree Council v Powell [2015] NSWCATAD 44 (Powell), the Tribunal found at [63]:

The making of a restraint order has the practical effect of restricting the ability of a person to access government information in accordance with the GIPA Act. The right to seek access to government information is an important one and for that reason a restraint order will not be made lightly.

9. Amendments to s 110 of the GIPA Act intended to 'clarify NCAT's powers and functions with respect to restraint orders' (Second Reading Speech, Government Information (Public Access) Amendment Bill 2018, Legislative Council, 20 November 2018 (the Hon Scott Farlow)) (the 2018 Amendments) came into effect on 28 November 2018, after the date of this application, which was made on 22 October 2018. The 2018 amendments included:

1. Section 110(1)(b) introduces the concept of access applicants 'acting in concert' to the threshold test in section 110(1), discussed in detail below.

2. Section 110(3) now sets out the circumstances in which a restraint order may be limited, for example, by reference to a particular time period.

3. The new section 110(5A) sets out factors that the Tribunal may consider when deciding whether to approve an access application being made by a person subject to a restraint order.

10. The Information Commissioner submitted that the provisions that will be in effect at the date of the decision of the Tribunal on this application are applicable in this case. Although the conduct of the Respondent occurred in the past and the application predates the legislative amendments, an order under section 110 would have future operation only and be unaffected by the presumption against retrospectivity or the principle that legislation operates prospectively, absent clear parliamentary intent (Maxwell v Murphy (1957) 96 CLR 261), consistent with the position discussed in cases such as in Re a Solicitor's Clerk [1957] 1 WLR 1219 and Robertson v City of Nunawading [1973] VR 819 at 824:

... this principle is not concerned with the case where the enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more than that.

11. The Applicant was not so convinced, noting that:

the question is not free from doubt. Thus, Esber v The Commonwealth (1991) 174 CLR 430 at 440 is an example where the High Court reasoned that upon the making of an application to the Administrative Appeals Tribunal the Applicant accrued a right to have the question the subject of that application determined in accordance with the law as in force at the date of the application.

12. The Tribunal granted restraint orders under section 110 of the GIPA Act in two decisions that were made prior to the 2018 amendments: Walker and Powell. The Tribunal declined to make an order in Webb. Following the 2018 amendments, the Tribunal has made a restraint order by consent, where the Respondent was represented by a Guardian Ad Litem and provided brief reasons in CEU v University of Technology Sydney; University of Technology Sydney v CEU [2019] NSWCATAD 11 (CEU). An appeal against that order was dismissed: CEU v University of Technology Sydney [2020] NSWCATAP 37. Only one restraint order has been made since the 2018 amendments as the result of a contested hearing, in Webb v Port Stephens Council; Webb v Port Stephens Council; Port Stephens Council v Webb [2020] NSWCATAD 81 (Webb 2020).

Threshold criteria for the order

13. In Webb 2020 the Tribunal applied the two-year period referred to in s 110(1)(a) as running backwards from the date of the Tribunal’s order:

I state for completeness that I regard the two-year period as dating back to a period calculated by reference to the date of the making of the order. The date of the making of the order would appear to be the only focal point when reading subsection (1) and according to it a meaning consistent with the language used.

14. This conflicts with the submissions made by the Information Commissioner in these proceedings that the two-year period must refer to the date of the application for the order, rather than the date that the order was made:

29. The Information Commissioner submits that the reference to 'in the previous 2 years' in section 110(1)(a) is ambiguous in that it may refer to the date of the application for a restraint order or the date that the Tribunal determines whether it is empowered to make an order. In Walker, the Tribunal interpreted the provision to apply 'in the two years immediately prior to the application’ (at [11]; emphasis added).

30. The Information Commissioner submits that if it is necessary to resolve that issue in this case, a construction that would promote the purpose and object of the GIPA Act is to be preferred (section 3(2) of the GIPA Act; section 33 of the Interpretation Act 1987 (NSW)).

15. In written submissions, the Applicant stated:

Whether the two year period referred to in s.110(1) begins to run from two years prior to the application to the Tribunal for an order under s.110, or from the date two years prior to the date of the Tribunal's decision, is a question which need not be resolved: The preconditions to power are comfortably satisfied whatever be the answer to that question.

16. It is necessary for the interpretation of “in the previous two years” to be decided in these proceedings, because the GIPA applications relied on date beyond a two year timeframe from this decision. Contrary to the reasoning in Webb 2020, and following the decision in Walker, I consider that the two year period runs backwards from the date of the application for the order, rather than the date of the Tribunal’s decision to make the order. I don’t understand the “focal point” of subsection 110(1), as expressed in Webb 2020, to be the “making of the order” by the Tribunal, and nor do I consider this to be the determinative factor in interpretation of the phrase “in the previous two years”.

17. Principles of statutory interpretation require as a starting point that I look at the words, their context, and the purpose of the legislation. The context to be considered here is the whole of section 110, not just the words of the subsection. Whilst s 110(1) contains the power for the Tribunal to make an order of restraint against an individual, it is discretionary. The ability for the Tribunal to make an order under s110(1) is limited by the threshold criteria contained in s 110(1)(a) and (b) and the “deeming” provision at s 110(2). In context of the remainder of the provision, the number of access applications and the timeframe in which they were made are the threshold criteria for the making of the order under s 110(1), with the order by the Tribunal being an available consequence of reaching or surpassing those threshold criteria. It is not, however, an automatic consequence. Subsection 110(5) provides the mechanism by which the Tribunal may consider making a restraint order from “an application for a restraint order made by an agency that receives an access application from the person (whether or not the agency has decided the application) or by the Minister or the Information Commissioner”. Subsection 110(5A) identifies some of the relevant considerations for making of an order. Subsection 110(3), in both its original and amended form, provide parameters for the terms of the order. Subsections 110(4), (6) and (7) provide for additional consequences on an individual against whom a restraint order has been made.

18. Applying principles of statutory interpretation including s 33 of the Interpretation Act 1987, a construction of s 110(1) that would promote the purpose or object underlying the Act is preferred to a construction that would not promote that purpose or object. The object of the GIPA Act as expressed at s 3(2)(b) is:

"It is the intention of Parliament that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information."

19. That statement of intention indicates that the discretion in s 110(1) is to be exercised to facilitate and encourage access to government information. Where an individual is making repeated or multiple access applications that are without merit, and therefore do not provide any access to government information, an order for restraint on that individual furthers the objects of the Act by ensuring that meritorious access applications by others can be facilitated “promptly and at the lowest reasonable cost”. In limited cases, the objects of the Act may thereby be served by restraining conduct that misuses the right of access to government information through the making of unmeritorious access applications. It is therefore an appropriate exercise of the discretion to free Departments and Agencies of the burden, otherwise directly imposed upon them by the GIPA Act, of responding to each and every GIPA application made by an individual with a specific history of making frequent and unmeritorious applications.

19. Rules of statutory interpretation provide that a purposive approach should be taken to the interpretation of an ambiguity, and should be applied to interpreting the ambiguity in s 110(1). Looking at the consequences of each interpretation, it can be implied that “the previous two years” refers to “the previous two years prior to the application for an order”, rather than “the previous two years prior to the Tribunal’s decision to make an order”. The obvious interpretation would be that the two year time period is tied to the making of the application, which has a specific date, rather than the making of the order, which neither has a specific date nor is an absolute consequence of the threshold criteria being met. This is supported by the basic principles of statutory interpretation in circumstances where the provision is to be construed in keeping with the objects of the Act, the Tribunal is exercising a discretion in making the order, and there is no specification of how long the Tribunal has to make the relevant order after an application is made.

Factual background

21. On 14 February 2019 the Applicant provided a useful summary of the factual background to the Respondent’s numerous GIPA applications and copies of the various GIPA applications via submissions, supported by seven volumes of material which I have reviewed. I recount the relevant parts of that factual background as follows:

1. The Respondent was the director and with his wife, the proprietor, of a company that carried on a business supplying scientific equipment. In 2010 a predecessor agency to the Department of Finance conducted a whole of government open tender process for State Contract 1006 for Workplace Supplies. The Respondent alleged misuse of government funds and corruption in the selection of suppliers for Contract 1006. The Respondent’s allegations were investigated internally and externally by ICAC. ICAC found the allegations unsubstantiated and the Department of Education concluded the procurement process had been conducted fairly and with full probity. The Respondent was informed of the outcomes of those investigations but did not accept those outcomes or the veracity of the substantiating information.

2. Following the award of Contract 1006, on 13 October 2010 the Respondent made an application under the GIPA Act for the provision of information regarding the contract. A processing charge to undertake searches was imposed but not paid, and consequently the GIPA application was refused on 9 December 2010. Between 12 November 2010 and 5 April 2011 over 2700 emails were sent by the Respondent addressed to the Minister for Education and several business units within the applicant Department. In that period the applicant Department provided nine substantive responses to the Respondent’s complaints. The Respondent was offered and refused a face to face meeting with the Applicant’s Chief Procurement Officer to discuss his complaints.

3. In May 2011 the applicant Department took steps to block the Respondent’s spam emails concerning Contract 1006 and advised him of those steps having been taken.

4. In late 2011, and following approval from the State Contracts Control Board the applicant department released Tender DETPR-35-11 ancillary to Contract 1006. Following certain errors in the documentation for that Tender it was withdrawn and replaced by DECPR-02-12. While the Respondent had initially inquired as a prospective tenderer in response to both DETPR-35-11 and DECPR-02-12, prior to the DECPR-02-12 closing date he first asserted that the tender process was corrupt.

5. In 2012 the Respondent made a further GIPA application seeking information on the award of Contract 1006 and also on the conduct of Tender DETPR-35-11. The applicant Department refused to deal further with the application because it constituted an unreasonable diversion of agency resources.

6. By 18 April 2012 the Respondent had sent over 3,000 emails to the applicant department and had also emailed government Ministers and other agencies resulting in a substantial number of briefs to Ministers and Directors-General.

7. The applicant Department advised the then Minister via a Minute identified as DGS12/613 that the Respondent should be identified as a “regular writer” and that no further correspondence would be entered into with him in response to complaints or information not lodged through a formal request under the GIPA Act. The Minister provided his approval of that recommendation and in June 2012 other affected agencies were advised of the applicant Department's decision.

22. The seven volumes of material provided by the Applicant to the Respondent and Tribunal on 14 February 2019 included the following:

APPLICATIONS FALLING WITHIN SECTION 110
Vol	Application		Page No.
1	GIPA Application 16-292 (Department of Education)		1-129D
1 & 2	NCAT Proceedings 2017/0060025 -Review of GIPA 16-292 (Department of Education)		130-658
3	GIPA Application 17-350 (Department of Education)		659-695
3	GIPA Application 18-106 (Department of Education)		696-803
3	GIPA Legal 2525/17 (Department of Justice)		804-975
4	NCAT File 2017/00319363 - Review of Legal 2525/17(Department of Justice)		976-1116
4	NCAT File AP/1836891 - Internal appeal reviewing NCAT decision of 26 July 2017 re Legal 2525/17) (Department of Justice)		1117-1315
5	FA 204 2017-18 (Department of Finance)	1316-1393
B	APPLICATIONS RELEVANT TO EXERCISE OF DISCRETION UNDER SECTION 110
Vol	Application	Page No.
5	FOI 10-229 (Department of Education)	1394-1411
5	GIPA Application 10-143 (Department of Education)	1412-1435
5	GIPA Application 12-021 (Department of Education)	1436-1481
5	GIPA Application 13-095 (Department of Education)	1482-1548
5	GIPA Application 13-098 (Department of Education)	1549-1572
5	GIPA Application 13-109 (Department of Education)	1573-1587
5	GIPA Application 13-212 (Department of Education)	1588-1601
6	GIPA Application 13-252 - NCAT file 1410331 (Department of Education)	1602-1805
6	GIPA Application 14-046 - NCAT file 1410329 (Department of Education)	1806-1879
6	GIPA Application 14-107 - NCAT file 1410330 (Department of Education)	1880-1951
6	GIPA Application 15-265 - NCAT file 1510696 (Department of Education)	1952-1987
6	GIPA Application 16-023 - NCAT file 2016/00378353 (Department of Education)	1988-2027
6	GIPA Application 18-328 (Department of Education)	2028-2036
6	GIPA Application 18-429 (Department of Education)	2037- 2044CC
7	FA 13 and FA 17 - NCAT file 1410273 (Department of Finance)	2045-2086
7	FA 94 2015-2016 (Department of Finance)	2087-2122
7	NCAT file 1610423 (review of FA 94) (Department of Finance)	2123-2166
7	FA 125 - 2016-2017 (Department of Finance)	2167-2178
7	GIPA Application 4177/18 (Department of Justice)-	2179-2235
7	GIPA LEGAL 44/19 (Department of Justice)		2236-2247
7	NCAT Proceedings 17/348629 (seeking review of 2013 decision by J Bailey) (Department of Education)		2248-2291
C.	BACKGROUND MATERIAL (Volume 7 - pages 2292 to 2346)

23. The Respondent filed evidence and submissions on 29 March 2019. His submissions were divided into four parts:

A Complaints concerning the tribunal; Complaints concerning the applicant

B Response to applicant’s Sect. 110 application

C Questions of Law to be referred to the Supreme Court

D Response to applicants submission

24. The Respondent’s submissions referred to documents provided by the Applicant, and attached additional documents.

25. Pursuant to clause 9(4)(a) of Schedule 3 to the Civil and Administrative Tribunal Act 2013 (NSW), the Information Commissioner provided submissions on 29 March 2019 addressing the application of the GIPA Act which were of assistance to the Tribunal. The Applicant provided submissions in reply on 5 April 2019, addressing both the substantive application and the Respondent’s various complaints and procedural matters raised.

26. The matter proceeded to hearing on 11 April 2019, during which the Applicant, Respondent and Information Commissioner provided extensive oral submissions.

27. Following the hearing, in correspondence dated 12 April 2019 the Respondent raised various matters regarding the conduct of the proceedings which will be addressed below in the “Complaints and procedural matters” section.

Complaints and procedural matters

28. Following the commencement of these proceedings and its case management conference in December 2018, the Respondent raised numerous complaints concerning the Applicant, the Applicant’s evidence and submissions, the conduct of the Tribunal and the general and specific application of the GIPA Act which diverged from and went beyond the substantive application for determination. Whilst each part of the Respondent’s submissions canvassed these allegations, Parts A and C in particular addressed these complaints and concerns regarding procedural matters, perceived conflicts of interest, apprehensions of bias, improper conduct and allegations of erroneous application of the GIPA Act by the Tribunal and the Applicant, both in these proceedings and other circumstances. As expressed above at [105], the nature, extent and content of the complaints raised by the Respondent throughout the course of these proceedings is not unusual for him.

29. The Applicant helpfully summarised the Respondent’s complaints, as made prior to the hearing, in its reply submissions:

2.   In Section A of the document dated 22 March 2019 are 12 separate "complaints" concerning the Tribunal.

3.   Those complaints fall into two categories:

(a)   submissions that the member constituting the Tribunal should recuse herself; and

(b)   submissions that the Tribunal is inappropriately constituted.

4.   The Tribunal is presently constituted by Lucy SM.

5.   By order of 4 December 2018 the Tribunal as so constituted refused the Respondent's application that Lucy SM recuse herself. There has been no application for leave to appeal from that decision. The further submissions to the same effect, based necessarily upon the same facts, are not to be entertained.

6. The power and function of determining the constitution of the Tribunal for a particular proceeding is conferred by s.27(2) and (3) of the Civil and Administrative Tribunal Act 2013 upon the President of the Tribunal. It forms no part of the powers or functions of the Tribunal as currently constituted to consider whether it is appropriately constituted and the submissions on those questions should not be entertained.

B.   Complaints concerning the Applicant

7.   The Respondent makes a number of complaints in the second part of Section A concerning the Applicant, including that this application for restraint order is brought for the improper purpose of harassing, annoying or causing financial cost to him, that the Applicant has made false statements in its Submissions, that the Applicant has attempted to mislead the Tribunal and that the Applicant has breached its own conduct codes in order to unlawfully influence the Tribunal.

8.   There is no evidence to support any of those contentions.

9.   To the contrary the Applicant has been careful to put before the Tribunal only material which is directly relevant to the legal issues raised by its application and to provide to the Tribunal and the Respondent very detailed written submissions identifying the findings of fact which the Applicant seeks based upon that material and the legal conclusions which the Applicant contends flow from those facts.

10. That the Respondent may disagree with the findings of fact or the legal conclusions for which the Applicant contends may be accepted. That does not begin to indicate any vexation or improper purpose on the part of the Applicant. Rather it identifies the scope of questions to be resolved by the Tribunal on the merits.

11.   The Respondent's complaints concerning the Applicant are therefore to be dismissed as unsupported by any evidence.

30. On my review of the Respondent’s extensive submissions I accept the Applicant’s characterisation of the Respondent’s complaints and its contentions as a result. I agree that the Respondent has not provided any evidence to support his complaints against the Applicant, that his assertions of corruption, misconduct and impropriety, false statements and misleading the Tribunal are unsupported by the material before me. I also consider they are irrelevant to the proceedings.

31. Senior Member Lucy conducted the case management of these proceedings and refused the Respondent’s application for her recusal, refused his application to issue summonses and also refused the Respondent’s application for additional time to deal with the documents filed by the Applicant. The Tribunal is entitled to determine its own procedure pursuant to s 38 of the Civil and Administrative Tribunal Act 2013 (CAT Act). There is no basis upon which those procedural directions and orders would be revisited.

32. During the hearing itself the Respondent acted in an offensive and verbally aggressive manner towards the Tribunal and the Applicant’s representative, including by responding inappropriately to the Tribunal’s request for his appearance, refusing to answer questions, talking over the Tribunal and Applicant’s representative on several occasions, refusing to accept procedural directions, arguing with the Tribunal and raising his voice, asking inappropriate personal questions and using inappropriate language to the Tribunal member and the Applicant’s representative. As a result, the Tribunal warned the Respondent about his inappropriate and rude behaviour.

33. The following issues were raised by the Respondent during the oral hearing and dealt with by the Tribunal in the course of the oral hearing pursuant to the Tribunal’s powers under s38(1), (2), (4), (5) and (6) and in accordance with s 36 of the CAT Act:

1. That he wanted a McKenzie Friend, Mr Joe Zidar, to be present at the bar table and be allowed to make statements and address the Tribunal. This was opposed by the Applicant. The Tribunal allowed Mr Zidar to be present but deferred making a decision on whether Mr Zidar could address the Tribunal: “It will be determined on the circumstances of the application in each circumstance where you wish Mr Zidar to speak on your behalf and as I understand it the applicant will be opposing those applications. We’ll address those when we come to it”. No applications were subsequently made for Mr Zidar to address the Tribunal.

2. That he requested permission under the Court Security Act s 9(2)(a) to record the proceedings, on the basis that “the copyright provisions that the Department puts on the hearing recordings are prohibitively oppressive”, that he wished to provide copies to “other interested parties” and there was a “clear public interest”. The Tribunal denied the request, noting that there was no public interest in dealing with the Copyright Act as submitted and that the proceedings were being recorded by a Court Reporter in the usual course.

3. That he didn’t have sufficient time to consider and respond to the seven volumes of documents filed by the Applicant; that he wished to make further written submissions; and that he wanted an adjournment of ten weeks to make further submissions.

4. The Tribunal noted that the Respondent had the seven volumes of material since the middle of February 2019 and had received extensive written submissions from the Respondent addressing the Applicant’s material on 29 March 2019. The Tribunal questioned the Respondent as to “what specifically do you wish to address the Tribunal on, in those 2200 pages, that you have not been able to?” but was not provided with a direct answer by the Respondent, who instead diverted to asking the Tribunal member personal questions. When asked again by the Tribunal “what do you need to allow you in your opinion to answer that material fairly?” the Respondent replied “I need 10 weeks to make further submissions”. When questioned by the Tribunal “You say 10 weeks and that’s because of your limited resources… why will 10 weeks allow you that time, why 10 weeks as opposed to six weeks or twelve weeks or eight weeks?” the Respondent replied “because there’s 2200 pages there”.

5. The Tribunal heard from the Applicant who submitted that the Respondent had not identified why the additional time was needed.

6. The Tribunal took into account the parties’ submissions as well as the previous orders during the case management process where the same issue had been raised before Lucy SM who had allowed the Respondent a period of four weeks to respond to the material filed. The Tribunal noted that the large volume of material comprising seven folders included material entirely derived from the Respondent’s access applications and correspondence from and to the Respondent, so that the Respondent could not rightfully submit that he was unaware of or unfamiliar with its contents, and that the Respondent had already provided extensive written submissions in response to the material. In circumstances where the Respondent had not identified anything he specifically additionally wished to respond to or address in the adjournment sought, and the Respondent had ample opportunity to make oral submissions at hearing, the Tribunal refused the application for an adjournment and refused to allow the Respondent additional time to provide further written submissions.

7. That he considered a half an hour tea break to be excessive, which was noted by the Tribunal.

8. That he objected to the presence of an officer of the Sherriff in the room, which was explained to the Respondent as usual procedure.

9. That he required an order from the Tribunal to obtain the name of the officer who had authorised the proceedings, and he had attempted to obtain this via summons which was refused. The Tribunal declined to reopen the Respondent’s application for summonses which had been declined by Lucy SM.

10. That I should recuse myself from the proceedings. This application was made via unfocussed oral submissions rather than a formal application, more than half-way through the Respondent’s submissions, after I questioned him as to why he was seeking an adjournment and an additional ten weeks to provide additional written submissions. The basis for the application was put as, variously:

1. that I was not impartial;

2. that I lied in my reasons for decision in previous proceedings;

3. that I was not capable of determining the issues or properly considering the evidence;

4. that I was biased;

5. that I had no credibility in the Respondent’s eyes;

6. that my actions did not promote the Act or show any “transparency or accountability by the Tribunal”;

7. that I had refused to refer certain Questions of Law to the Supreme Court;

8. that I had represented a corrupt individual; and

9. that I had a financial incentive.

10. The Applicant submitted that the recusal application seemed to be put on two bases: that I had not requested the President to agree to refer certain questions of law to the Supreme Court, and that the Respondent disagreed with my findings in an earlier decision on an application made by him. The Applicant submitted that neither was relevant to the determination of a recusal application.

11. I refused the application to recuse myself on the basis that none of the reasons expressed by the Respondent had any factual evidentiary support, and I saw no logical connection between the matters raised by the Respondent and any fear to deviation on the course of deciding the case on its merits.

34. The Respondent additionally raised concerns that he had requested the Tribunal refer certain Questions of Law to the Supreme Court, which I had not done. These concerns were expressed in oral submissions at the hearing, repeating the substance of written submissions at Part C and pervasive throughout Parts B and D of the Respondent’s submissions filed 29 March 2019 as a basis for the subject access applications having merit. The Respondent identified the following 26 Questions of Law for referral:

1. Are all NSW government agencies, by law, required to promote the object of the GIPA Act?

2. Are NCAT tribunal members (including the President)); the Crown Solicitor & CSO officers; the Ombudsman & OMBO officers; the Information Commissioner & IPC officers; judicial members, by law, required to promote the object of the GIPA Act?

3. Is the promotion of the GIPA Act a discretionary requirement or a mandatory requirement?

4. Does an applicant seeking access to government information have the right to the processing of the access application in good faith?

5. Does "lack of good" faith constitute "improper conduct" as specifically implied by Sect.112? (Sect.112 is titled "Report on improper conduct")

6. Is "improper conduct" defined by the agency's / agency's officer's conduct obligations? (conduct obligations including agency codes of conduct,GSE / PSC conduct obligations.etc)

7. What are the protections in the GIPA Act are there to protect the public from improper conduct in the functions exercised by agencies/ agency officer's when processing a GIPA access application?

an agency I agency's officers?

8. Does improper conduct/ lack of good faith in any function exercised by any agency I officer of an agency processing a GIPA access application promote the object of the GIPA Act?

9. Does improper conduct/ lack of good faith in any function exercised by any agency I officer of an agency have a possible substantive effect on the reviewable decisions made by that agency?

10. If there is the possibillity that IMPROPER CONDUCT has compromised a GIPA access application, is the tribunal to have regard to the agency's conduct when reviewing the GIPA access application? (particularly when complaints of IMPROPER CONDUCT/ lack of good faith have been made against the agency I agency's officers?)

11. Do the correct & preferred reviewable decisions rely on the correct interpretation & application of each section of the GIPA Act?

12. Do breaches of mandatory requirements of the GIPA Act have a potential substantive effect on the reviewable decisions?Do deliberate breaches promote the object of the GIPA Act?

13. Are there sections of the GIPA Act which can be / allowed to be or required to be effectively "excised" when the GIPA access application is being reviewed by the tribunal?

14. Are those reviewable decisions associated with the GIPA Act offences relevant to the tribunals review of the GIPA access aplication?

15. Is the excising sections of the GIPA Act (which directly relate to reviewable decisions) by the tribunal deemed to be an error of law?

16. Does the applicant have the right to summons :

-the decision maker of a GIPA access application who has made reviewable decisions

-the officers/ persons who exercised functions for the GIPA access application which have a substantive enactment on the reviewable decisions

where there are

-conduct complaints and I or

-questions / complaints concerning functions exercised by officers

-questions / complaints concerning their interpretation & application of the Act

concerning the GIPA access application processing for the review of the GIPA access application?

17. Does the applicant have a right to summons the decision maker who has made reviewable decisions concerning the GIPA access application regardless of the position that decision maker holds within the agency?

Particularly where there are

-conduct complaints and / or

-questions/ complaints concerning functions exercised by officers

-questions/ complaints concerning their interpretation & application of the Act

concerning the GIPA access application processing and reviewable decisions under review by the tribunal?

18. Are the above grounds relevant & sufficient to enable the summonsing of those officers/ persons?

19. In GIPA Act Sect.16,the respondent has a MANDATORY obligation to provide advice & assistance to enable the applicant access the government information sought.

a. Is it reasonable to expect that "reasonable advice & assistance" would be for the agency to assist the applicant access as much of the sought information as possible subject to the caveats of the GIPA Act?

b. Is it reasonable for the applicant to ask questions related to the "advice & assistance" or any other aspect related to the GIPA access application?

Particularly where

i. statements/ decisions/ functions made which appear to be contrary to the object of the GIPA Act

ii. Conduct/ functions exercised which appear to "lack good faith" or appear to be "improper conduct" that may compromise the uintegrity of the GIPA access application?

c. Does the GIPA Act specifically prohibit or exclude the applicant from asking questions related to the GIPA access application processing during the processing period?

d. Is the applicant required to accept any "lack of good faith" exercised during the GIPA access application processing and rely on a NCAT review without raising questions during the processing?

20. (a) How is the literal interpretation of Sect.64 limited to a statement by Lord Brougham that it's purpose is only to prevent the repetition of sentences in Acts?

(b) Are these the exact words as used by Lord Brougham

(c) How does the literal interpretation of Sect.64 NOT require all sections of an Act to have a "substantive effect" on the object of the Act

21. In a GIPA access application,should an agency review and redact information from

a.   documents that the agency received from the applicant

b.   documents that the applicant holds the originals of and then proceed to

c.   redact information from those above documents in a.

d.   take approx. 7 extra hours of processing time

d.   charge the applicant for the extra processing time when the above processing

e.   takes up almost 20% of a stated "GIPA Act processing time limit of 40 hours"

f.   and voluntarily takes the total processing time to over a stated "processing time limit of 40 hours" to 47 hours

Does the above function performed by the agency

i.   have merit?

ii.   serve in the public interest?

iii. promote the GIPA Act?

iv. promote the object of the GIPA Act?

v.   lack good faith?

vi.   set a precendence where the agency,by virtue of it's voluntary nature (processing apparnely lacking merit?),that an acceptable processing time limit is 47 hours?

22. If an offer made in a GIPA access application Notice of Decision

from the GIPA access application decision maker for the applicant to contact the GIPA access application decision maker in relation to questions the applicant may have about the GIPA access application Notice of Decision

is the offer a

a.   function conferred on an officer by or under the Act? (Le.reasons for notice?)

b. function related to the GIPA Act?

c. matter otherwise related to the GIPA Act access application?

d. Does this contradict the IA Unit's interpretation & application of the GIPA Act such that the "GIPA Act does not require the answering of questions"?

The applicant believes such offers are genuine and would accept this in good faith

e.   Is the offer consequently not made "in good faith"?

f.   Is the refusal to respond a "lack of good faith" by the decision maker

23.   

a) Does Notice DGS12/613 have effect on any issue related to a formal GIPA Access application?

b) What are the rights of the person affected by such a notice

i) Is a person affected by such a notice be required to be provided with a copy of that notice?

ii) Does the person affected by that notice have the right to appeal that notice / decision?

iii) If that person is not provided with that notice.how can he/she appeal that notice or have it reviewed?

iii) Is the right for procedural fairness refused to a person affected by such a notice?

iv) Does the person affected by such a notice have the right to

a) to challenge the alleged conflict of interest of the author/ proposer?

b) challenge alleged false statements / factual erros made in the proposal?

c) Does the effect of such a notice have the effect of prejudicing the persons legitimate right to make legitimate complaints unrelated to the previous issues raised by that person?

d) Does the effect of that notice also prejudice that persons right if that notice is provided to oversight agencies?

e) What is the"sentence" for a person affected by such a notice?

f) What review oversight/ probity is required for such a notice?

g) Does the agency have the right to abuse the notice to affect the legitimate commercial interests of that person affected by such a notice which are unrelated to the complaints to those parties referenced in the notice?

h) Is the author of that notice required to have regard to his/ herconflict of interest in authoring/ proposing such a notice & declaring those conflicts of interest?

24. Has the applicant perpetated an injurous falsehood / misfeasance / malfeasance I nonfeasance on the respondent where :

a) a senior agency officer makes an alleged false statement to the tribunal

that officer provides no substantiating evidence for that false atatement

b) that officer has no substantiating evidence for that false statement held by the agency

c) the false statement is repeated by other senior agency officers

d) when challenged those senior officers provide no substantiating evidence for the false statement

e) seniors officers are alleged to obstruct an impartial internal investigation

f) the senior officer uses that false statement to justify what that officer knows to be an action which will prejudice the repondent's legitimate financial and commercial interest?

i).   where that senior officer is alleged to have a clear conflict of interest?

25.   RELATED TO 024 Are the documents released under "GIPA 15-265 Item 1.

All UNREDACTED emails and other correspondence sent by NSW state schoos or any other

educational institution (inclduing TAFEs,etc) to any of the Applicant's email addresses   "

which includes the following email addresses:

[email protected] [email protected]

[email protected] [email protected]

evidence that the respondent has perpetrated spamming,fraud or phishing from these email addresses?

26.

a) Are GIPA Notices "legal documents"?

b) As the IA Units/ GIPA Units are part of theLegal Directorate,how can the Legal Directorate give "legal advice" to itself?

c) Is the "legal advice" purported to have been given to the IA Unit/ GIPA Unit by the Legal Directorate be deemed "legally privileged information" and therefore exempt from disclosure?

d) Does "legal professional privilege" apply to the tribunal,a statutory position?

That is,does the tribunal have the power to view content of documents that may be claimed as being "legal professional privileged" related to proceedings before the tribunal?

e) Does the tribunal have the authority to review documents claimed to be "legally privileged" which are related to proceedings before the tribunal?

f) If the tribunal has the authority/ power (say under CAT Act Sect.38 to inform itself) to review "legally privileged documents", does the tribunal have the obligation to ensure that functions exercised by GSE legal officers

i) complies with their required codes of conduct/ conduct obligations?

ii) complies with their legal requirement TO PROMOTE THE GIPA ACT?

g) If the claimed "legally privileged documents" show evidence of misconduct

-improper conduct

-lack of good faith

-professional misconduct

,is the tribunal required to have regard to the effect of these factors on the substantive decisions and/ or GIPA Act Sect.112 in the review

h) Does an agency document authorizing:

i) legal action against a person

ii) the engagement of legal services to be provided for legal action against a person constitute "legally professional privilege" over that document

i) Have the following officers (McDonnell/ Chandler) breached

i) their required GSE / PSC conduct obligations

ii) professional misconduct

iii) GIPA Act Sect.112 (lack of good faith / improper conduct)

iv) any other Acts,statutes or otherwise

as a consequence of their alleged improper action?

35. The Tribunal has power to “refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court”: CAT Act s 54. Before a question of law can be referred to the Supreme Court, it must arise in the proceedings: CAT Act, s 54. Issues which may be relevant to the exercise of the discretion were discussed in Independent Liquor and Gaming Authority v Auld [2018] NSWCATAP 68 and QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATOD 191 and can be summarised as follows:

1. A referral may be appropriate where there is no existing statement from an appellate court on the particular question of law, where the issues are novel or where there are matters of public interest not previously determined by the Tribunal;

2. The power to refer is not confined to cases where there is no existing authoritative statement;

3. Referral may be appropriate where there is a public policy benefit of having an issue determined authoritatively, including where individuals, beyond the parties to the proceedings, are potentially affected by the determination of the question of law;

4. Referral may be appropriate where an appeal is likely;

5. The question of law must be material to the proceedings;

6. The question of law must be raised in circumstances where there is an “adequate factual matrix” or necessary findings of fact been determined or agreed. In this regard the question of law must not be hypothetical or moot;

7. The Tribunal may take into account other available procedural options, including whether or not proceedings have already reached the internal appeal stage.

8. Referral may also be appropriate where an issue concerns questions that precede the existence of the Tribunal’s jurisdiction and that would require the Tribunal to make an authoritative determination of law or fact: Re Zimmax Co Pty Ltd v Collector of Customs, New South Wales (1979) 2 ALD 120.

36. The Applicant submitted:

22. Questions 1 to 15, 19, 21, 23, 24 and 26 identified by the Respondent do not arise on the present application. Each appears to be a question that the Respondent might have wished to have raised on an appeal from a decision of this Tribunal on his various access applications. Indeed it may be that a number have already been raised and addressed in such appeals. Each is immaterial to the questions that arise under s.110(1) and (2).

23. Further, to the extent that any are said to inform any question that arises under s.110 there is no reason to think that they could not be appropriately raised on any appeal from a decision of this Tribunal, should the Applicant be successful in persuading the Tribunal to make the order it seeks.

24. Questions 16 to 18 concern a party's right to summons a witness in Tribunal proceedings. There can be no question a party has a right to apply to the Tribunal for the Tribunal to issue a Summons and that the Tribunal has a discretion to be exercised in accordance with the Civil and Administrative Tribunal Act 2013.

25.   On 4 December 2018 the Tribunal dealt with an application by the Respondent for Summonses to issue and refused it with reasons. The Respondent has not appealed from that decision. No question of law is shown to thereby arise.

26.   The question proposed by the Respondent as question 20 is so broad and theoretical as to have no prospect of being shown to arise from the application presently before the Tribunal. On the assumption, favourable to the Respondent, that that question is capable of an answer, the answer could not conceivably affect the outcome of the current application.

27. Question 22 concerns the appropriate standards of conduct of agencies, following the communication of a decision on a GIPA application. The question does not arise on the present application, which concerns the conduct of the Respondent in making his many GIPA applications, and the outcome of those applications.

28.   Question 25 raises a question of fact: whether the Respondent has successfully engaged in email communications with NSW Government schools which were not spam, fraud or phishing.

29. Assuming in the Respondent's favour that what he says with respect to question 25 is established by evidence, nothing turns on it. That is, it does not affect any aspect of the Respondent's conduct in making his numerous GIPA requests or any outcome of any of those requests.

37. On my review of the Questions of Law proposed by the Respondent and his supporting evidence and submissions, none of the questions are questions of law which arise in the proceedings pursuant to s54(1) of the CAT Act. They are the Respondent’s objections to findings made by agencies dealing with his access application, and findings made by the Tribunal on review of those decisions, couched as generalised or hypothetical questions of law. Further, none of the questions fall within the factors relevant to the exercise of the Tribunal’s discretion identified above at 35(1) to 35(8). I therefore decline to exercise my discretion in asking the President under s54(2) of the CAT Act to refer any of these questions to the Supreme Court.

38. My refusal to comply with the Respondent’s requests for the Tribunal to refer questions of law to the Supreme Court was raised by the Respondent as a basis for my recusal at hearing, irrespective of the fact that no such refusal had been made at the time the application for recusal was made. It can therefore not reasonably form a basis for that application.

39. Following the hearing on 11 April 2019, the Respondent sent additional correspondence to the Tribunal, purportedly requesting “reasons for the interlocutory decisions made by Dinnen in the proceedings” for the following:

1. Reasons for Dinnen to refuse the respondent the full two days scheduled for the hearing

2. Reasons for the member’s reservation of her decision within approx. 10-11 minutes after resumption of the hearing following the lunch break.

3. Reasons for refusing to reconsider her reserving of her decision knowing that the respondent required further issues to be addressed / further submissions to be made

4. Reasons the morning tea break to be 30 minutes instead of the typical 15 minutes

5. reasons for the refusal to allow the recording of the proceedings where:

a) the hearing was a   public hearing with no restrictions on those wishing to attend or hear the matter before the tribunal

b) the oppressive & restrictive nature of :

I. The way NCAT promotes these hearings (after 4pm the previous work day)

ii. the copyright & other restrictions related to a public hearing where there is public interest

5. Reasons for Dinnen’s refusal to be open & transparent about her apparent pecuniary conflict of interest in recusing herself from the hearing

6. Reasons why leave was not granted allowing my McKenzie friend Mr Joe Zidar, to engage to the Tribunal directly to articulate specific issues that would have assisted the Tribunal in forming the correct and preferable decision. (Dinnen was informed that she had previously identified the respondent being unable to articulate issues in a previous hearing (references provided to Dinnen at the hearing))

7. Reasons for Dinnen’s refusal to recuse herself. (I note that Ms Dinnen was smirking and laughing at me during the course of proceedings).

8. Reasons that leave was not granted / procedural fairness was not granted to the respondent to have an extra (10) weeks to file additional submissions in response to a bundle of documents received by the Applicant that exceeded 2200 pages.

9. Reasons why, after the Respondent stated that he did not have the time to respond to the majority of the 2200+ pages of documents which cover time periods of almost 9 years and advice that the respondent had mentioned this issues in the submission, Dinnen chose to contradict the respondent and proceed to deny the Respondent’s procedural rights.

10. Reasons why Dinnen hasn’t submitted the Questions of Law to the President for approval for the CAT Act of questions of law to the supreme court.

11.   Reasons why Dinnen would not address the questions of law at the hearing which is an appropriate time to address these issues if the Sect.54 referral is not approved

The Department was forced to respond to Mr Zonnevylle's accusations, found to amount to a series of allegations, without proof; and some of which were unrelated to the GIPA Act.

After all that effort, the processing charge (of $262.50) was not paid so that information requested, the majority of which was to be released to Mr Zonnevylle, was not released. The inference is inescapable that Mr Zonnevylle used the GIPA for purposes other than obtaining government information, and in doing so imposed very substantial costs on the applicant department and this Tribunal.

100. I accept those submissions and their application generally to the Respondent’s conduct, on the basis of my review of each of the access applications and the decisions of this Tribunal. I also agree that the Respondent’s conduct in each case supports the inference that if he be permitted to make access applications in the future, Departments and agencies will be required to engage in substantial consultation which will be rendered futile by the Respondent’s failure to substantively engage or meaningfully respond to the relevant issues.

101. On three occasions the Respondent has made GIPA applications (GIPA10-143, 16-292 and LEGAL2525/17), prosecuted those applications with vigour and then allowed them to lapse when notified of the requirement to pay a processing charge or advance deposit.

102. In the processing of GIPA14-046 the Respondent commenced a pattern of conduct, which has escalated over time, of alleging corruption or misconduct by the officers responsible for dealing with his GIPA applications. Without exception, each access application since 2014 has involved similar allegations and the Respondent’s correspondence with the Applicant or other agency has been primarily concerned with such allegations.

103. The Applicant submitted that correspondence on two of those applications, GIPA18-429 and LEGAL44/19, engaged in after the application for the restraint order was made by the Applicant, shows that unless the order is made the Respondent will continue to use GIPA applications as an occasion to abuse and harass departmental officers by email. The correspondence concerning making GIPA18-429 valid shows that the Respondent has, knowing of the s110 application by the Applicant, continued to make allegations of corruption against departmental officers. The correspondence concerning LEGAL44/19 shows that the Respondent, knowing of the s110 application by the Applicant, has sent harassing emails on a daily basis to officers, including those processing his application and refused to desist in the face of express requests to do so. Accordingly I agree with the Applicant’s submission that an inference to be drawn from the Respondent’s conduct is that unless a restraint order is made, the Respondent will continue to use GIPA applications as an occasion to attack the integrity of officials.

104. The Respondent’s applications to the Tribunal for review of access application decisions have been similarly infected, with voluminous submissions containing unfounded allegations against specific officers and complaints about agency processes. Decisions of this Tribunal on applications made by the Respondent against the decisions of the applicant Department include Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10; Zonnevylle v NSW Department of Education and Communities [2016] NSWCATAD 49; Zonnevylle v Department of Education [2017] NSWCATAD 101; Zonnevylle v Department of Education [2017] NSWCADAT 214; Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139; and Zonnevylle v Minister for Education [2019] NSWCATAD 28. The Respondent also made applications to this Tribunal for review of decisions of the Departments of Finance and Administration and Justice, including Zonnevylle v NSW Department of Finance and Services [2015] NSWCATAD 175; Zonnevylle v NSW Department of Finance and Services [2016] NSWCATAD 47; Zonnevylle v NSW Department of Finance, Services and Innovation [2017] NSWCATAD 186; Zonnevylle v Department of Justice [2018] NSWCATAD 158. In every case, the decision of the respondent Department has been affirmed.

105. Additionally in each proceedings before this Tribunal the Respondent has devoted a large proportion of his written and oral submissions to complaints about the Tribunal’s processes, allegations of the Tribunal’s incorrect application of the GIPA Act generally and with respect to his other proceedings (in circumstances where no appeal had been pursued), allegations of corruption, bias, and conflicts of interest, and applications for recusal. Recent Tribunal proceedings, including these and the appeal in Zonnevylle v Department of Justice [2019] NSWCATAP 44, have additionally included the Respondents’ repeated and unsupported applications for a “McKenzie friend”, to personally record the audio of proceedings, to refer purported questions of law to the Supreme Court, for personal information about sitting members’ salaries and allegations of corruption against Tribunal members. Although I address these above in the “Complaints and procedural matters” section, his conduct in making these complaints are also relevant factors in my consideration of whether to exercise my discretion under s110(1) of the GIPA Act.

Applicant’s resources

106. With respect to my consideration of the resources available to deal with the Respondent’s access applications, I have regard globally to the volume of material filed by the Applicant in support of this application. On my review, and despite the complaints of the Respondent, the volume of material filed was necessary to give the Tribunal relevant evidence upon which to make its findings. It included the relevant access applications, correspondence relevant to the narrowing or expansion of those requests, applications for review, and relevant submissions and decision. The documents in those folders show that Respondent is both a persistent and a prolific correspondent. A direct consequence of the persistence, volume and intensity of the Respondent’s correspondence is that if he be permitted to continue to make GIPA applications, Departments will be required to allocate resources to continue to respond to the extraordinary volume and intensity of correspondence generated. There is nothing in the evidence which would support the drawing of any inference other than that if the Respondent is permitted to continue to make GIPA applications he will continue to engage in correspondence with like volume and intensity. Those resources, though they may be available, should not have to continue to be diverted to deal with unmeritorious access applications made by the Respondent.

Conclusion

107. The Respondent has demonstrated by his conduct that, if he is permitted to continue to make applications under the GIPA Act, without the control of a restraint order, he will continue to impose costs upon respondent Agencies which are not reasonable within the meaning of s 3(2)(b) of the GIPA Act; and has thereby demonstrated that for him to be permitted to continue to make GIPA applications without the controls of a restraint order will prejudice the achievement of the object of the Act by imposing, at a systemic level, unnecessary burdens, including costs, on respondent Agencies.

108. As noted in Webb at [40], the focus is upon the conduct of the applicant for information, not upon the character of the agency to which the applications were made. I consider there is ample evidence to support a finding that the Respondent’s conduct throughout the course of his access applications to the Applicant, other agencies and their reviews to the Tribunal, warrants the exercise of this discretion. This is not exercised for the purpose of controlling or punishing the Respondent because he takes up the agency or Tribunal’s time, as expressed in Webb at [47], but because the evidence of his conduct indicates to me that if he is not appropriately restrained by reason of s 110(1) of the GIPA Act, he will continue to make access applications which would lack merit if made: Webb at [47]. .

109. Having regard to all of the matters to which I have referred above regarding the substantive application, I consider it appropriate for the Tribunal to exercise its discretion under s110 of the GIPA Act in the circumstances to restrain the Respondent from bringing future access applications.

110. It is appropriate that such an order be made to apply to all access applications which might be made by the Respondent to the Applicant and the other agencies to which he has addressed his previous access applications, voluminous correspondence and excessive communications.

Form of order

111. The 2018 Amendments to s 110 of the GIPA Act are relevant to these proceedings insofar as the Tribunal considers the limitations of any order (s 110(3)), and the contribution of someone “acting in concert” with the Respondent (s 110(1)(b)).

112. Prior to the 2018 Amendments, ss 110(3) provided:

A restraint order may be made to apply to all access applications made by the person the subject of the order or may be limited by reference to particular kinds of information or particular agencies.

113. Following the 2018 Amendments, ss110(3) provided:

3) A restraint order may be made to apply to all access applications made by the person the subject of the order or may be limited by reference to any one or more of the following--

(a) a specific time period,

(b) a specific number of applications, whether in total or to particular agencies,

(c) particular kinds of information,

(d) particular agencies.

114. The 2018 amendments therefore provided additional limitations of time periods and quantity of applications which could be expressed in the terms of the order. These amendments are not, however, relevant to the specific orders being sought by the Applicant. The final form of order sought by the Applicant was:

1. Pursuant to s.110(1) of the Government Information (Public Access) Act 2009 (Act) Peter Zonnevylle is not permitted to make an access application under the Act to an agency listed in paragraph 2 without first obtaining the approval of the Civil and Administrative Tribunal of New South Wales.

2. The order in paragraph 1 is limited by reference to:

(a) Department of Education;

(b) Department of Finance, Services and Innovation;

(c) Department of Justice;

(d) Civil and Administrative Tribunal of New South Wales;

(e) every other agency, insofar as an application requests government information concerning the operation, administration or personnel of any agency carrying out the functions of an agency listed in (a) – (d), regardless of machinery of government changes.

115. The Information Commissioner noted that the orders in Powell, Walker and CEU applied only to the applicant agencies in those cases. The orders in Walker and CEU are indefinite. The orders in Powell were of two years duration. In Powell, a joint application of three agencies, the Tribunal made a restraint order covering Goulburn Mulwaree Council, which had not processed any of the access applications made to it and therefore did not meet the criteria for section 110(1) on its own ([72]). In other decisions of the Tribunal to date, the relevant agencies for the purposes of section 110(1) have also been the applicants to the Tribunal.

116. The Information Commissioner, relying on s 110(3) as amended by the 2018 amendments, submitted that:

In determining the appropriate terms of an order, including its duration and whether it will extend to agencies other than the Applicant, the Tribunal should be guided by the principle that the impact on the individual should be proportionate to the interests which the decision maker is seeking to protect.

117. As submitted by the Information Commissioner, given the significance of restricting the important right of access of citizens to government information, a restraint order should be made only with strong justification, and the terms of any order should be proportionate to the interests which the decision maker is seeking to protect. I accept those submissions but note that the orders sought in these proceedings are not limited by duration.

118. In these proceedings I consider it appropriate to extend the terms of the order applied for to include the Applicant, the Department of Finance, Services and Innovation, and the Department of Justice, and allow for the order to include any other agency “insofar as an application requests government information concerning the operation, administration or personnel of any agency carrying out the functions of an agency listed in (a) – (d), regardless of machinery of government changes”, so that the Respondent cannot thereby expand the recipients of his access applications to agencies which have incorporated the personnel or functions of the named agencies in the same manner and for the same information. This is not intended to punish the Respondent, but to focus the order to achieve the objects of the Act with respect to those agencies that have previously been required, by reason of the Respondent’s conduct, to expend significant time and resources on responding to his unmeritorious applications and their associated correspondence. The breadth and content of his previous 24 access applications justify the order extending to those agencies. I do not, however, consider it necessary or appropriate in these proceedings to specifically refer to the Civil and Administrative Tribunal as a separate agency and note that none of the Respondent’s access applications were or could be directed at it.

Orders

1. Pursuant to s.110(1) of the Government Information (Public Access) Act 2009 (Act) Peter Zonnevylle is not permitted to make an access application under the Act to an agency listed in paragraph 2 without first obtaining the approval of the Civil and Administrative Tribunal of New South Wales.

2. The order in paragraph 1 is limited by reference to:

1. Department of Education;

2. Department of Finance, Services and Innovation;

3. Department of Justice;

4. every other agency, insofar as an application requests government information concerning the operation, administration or personnel of any agency carrying out the functions of an agency listed in (a) – (c), regardless of machinery of government changes. annexure a (101 KB, pdf)

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

Decision last updated: 03 April 2020