Minister for Education and Early Childhood Learning v Zonnevylle

[2020] NSWCA 232

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232

Hearing dates:

26 June 2020

Decision date:

24 September 2020

Before:

Macfarlan JA at [1];
Leeming JA at [2];
McCallum JA at [3]

Decision:

1. Grant leave to appeal.

2. Set aside the orders of the Appeal Panel of the New South Wales Civil and Administrative Tribunal made on 14 November 2019 and in their place order that the appeal to the Appeal Panel be dismissed.

3. Each party to bear his or her own costs of the appeal.

Catchwords:

ADMINISTRATIVE LAW — administrative tribunals – scope of authority of the NSW Civil and Administrative Tribunal to dismiss proceedings as vexatious – where respondent sought review of a decision determining his application for access to information held by a government agency – where respondent persisted in allegations of misconduct against officers of the agency after those allegations had been dismissed by the Tribunal – relevance of history of making similar allegations in other proceedings – where Tribunal’s decision dismissing proceedings as vexatious overturned by Appeal Panel – whether Appeal Panel erred in regarding persistence in claims that were bad in law as being outside the scope of the collateral purpose principle – whether Appeal Panel erred in declining to have regard to previous litigation brought by the respondent

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 55(1), 60, 80, 83(1)

Government Information (Public Access) Act 2009 (NSW), ss 3, 63, 80

High Court Rules 2004 (Cth)

Judiciary Act 1903 (Cth), s 77RN

Supreme Court Act 1970 (NSW), s 48(2)

Uniform Civil Procedure Rules 2005 (NSW), r 51.39A

Vexatious Proceedings Act 2008 (NSW)

Cases Cited:

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Attorney-General v Wentworth (1988) 14 NSWLR 481

Batistatos v Roadsand Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27

BDK v Department of Education and Communities [2015] NSWCATAP 129

Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125

Transcript of Proceedings, Conomy v Maden [2019] HCATrans 49

Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77

Zonnevylle v Minister for Education [2019] NSWCATAD 28

Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAP 274

Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAD 108

Category:

Principal judgment

Parties:

Minister for Education and Early Childhood Learning (applicant)
Peter Zonnevylle (respondent)

Representation:

Counsel:
S Chordia (applicant)
Respondent self-represented

Solicitors:
Crown Solicitor’s Office (applicant)

File Number(s):

2019/392094

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

New South Wales Civil and Administrative Tribunal

Jurisdiction:

Appeal Panel

Citation:

[2019] NSWCATAP 274

Date of Decision:

14 November 2019

Before:

Hennessy ADCJ, Deputy President
G Walker, Senior Member

File Number(s):

AP 19/30680

HEADNOTE

[This headnote is not to be read as part of the judgment]

Peter Zonnevylle made an application to the NSW Civil and Administrative Tribunal for review of a decision by the Minister for Education determining an application under the Government Information (Public Access) Act 2009 (NSW). The Minister sought to have the review proceedings summarily dismissed on the ground that the proceedings were being maintained for a collateral purpose, namely, to re-litigate allegations of misconduct, illegality and lack of good faith on the part of the Minister and officers of the Department. The Tribunal acceded to that application and dismissed the proceedings under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW). Mr Zonnevylle appealed that decision to the Appeal Panel of the Tribunal. The appeal was upheld. The Minister sought leave to appeal from the Appeal Panel’s decision.

The central issue in the appeal was whether Mr Zonnevylle’s conduct in persisting in making claims which were “bad in law” and which had previously been dismissed fell within the meaning and scope of the principle of collateral purpose. Leave to appeal was sought on the basis that the appeal would clarify the scope of the Tribunal’s authority to dismiss proceedings as vexatious.

Held (per McCallum JA; Macfarlan JA and Leeming JA agreeing), allowing the appeal:

(1) The Appeal Panel erred in holding that Mr Zonnevylle’s persistence in making claims which are “bad in law” (and had been held to be so by the Tribunal) did not fall within the collateral purpose principle. It is well established that an attempt to re-litigate a matter that has already been determined may amount to an abuse of process: at [44], [48].

Walton v Gardiner (1993) 177 CLR 378 at 383; [1993] HCA 77; Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 193 [33]; [2009] HCA 27 cited.

(2) The Appeal Panel erred in holding that the history of Mr Zonnevylle’s prior litigation was not logically probative in determining whether the review proceedings were vexatious: at [53].

Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [50] distinguished; Transcript of Proceedings, Conomy v Maden [2019] HCATrans 49 cited.

Judgment

1. MACFARLAN JA: I agree with McCallum JA.

2. LEEMING JA: I agree with McCallum JA.

3. McCALLUM JA: The issue in this appeal is the scope of the power of the Civil and Administrative Tribunal to dismiss proceedings it considers to be vexatious.

4. Peter Zonnevylle made an application to the Tribunal for review of a decision under the Government Information (Public Access) Act 2009 (NSW). As the name suggests, the object of that Act is to provide public access to government information in the interests of advancing a system of responsible and representative democratic Government that is open, accountable, fair and effective: s 3(1) of the Act. At the time Mr Zonnevylle filed the review application it was based on the deemed refusal of an access application he had made, the relevant agency (the Minister for Education) having failed to determine the application within the required period: s 63(1) of the Act. However, less than a week after the review application was filed, the Minister proceeded to decide the access application, as allowed under s 63(2) of the Act.

5. While some documents were provided, the decision as to most of the categories of information sought by Mr Zonnevylle was that the information was “not held” by the Minister. That was a reviewable decision under s 80(e) of the Act.

6. Mr Zonnevylle’s grounds for review in the Tribunal were obscure:

“Breach of GIPA Act and failure to promote GIPA Act

• Breach of applicant’s right to access personal information (Information relating to the applicant)

• Alleged offences under the Act

• Section 112 improper conduct complaint

• The Minister is causing the applicant a deliberate detriment = unlawful discrimination against the applicant”

7. After deciding the access application, the Minister sought to have the review proceedings in the Tribunal summarily dismissed. Owing to a misunderstanding as to the scope of that application, the Tribunal determined it in two separate decisions. In the first decision, the Tribunal dismissed part of the proceedings on the basis that it did not have jurisdiction to deal with some of the grounds for review: Zonnevylle v Minister for Education [2019] NSWCATAD 28. The only ground that survived that decision was the second bullet point set out above (breach of the right to access personal information). As to that ground, the Tribunal was satisfied that Mr Zonnevylle was raising an issue as to the reasonableness of the Minister’s searches for the information sought, which the Tribunal accepted was within its jurisdiction.

8. That decision remains unchallenged by either party. However, following its publication, the Minister renewed the application to have the whole of the proceedings dismissed on the ground that they were vexatious. The basis for the application was the contention that the proceedings were being maintained for a collateral purpose, namely, to re-litigate allegations of misconduct, illegality and lack of good faith on the part of the Minister and officers of the Department. The Tribunal had previously understood that aspect of the dismissal application to have been abandoned by the Minister. In the second decision, the Tribunal acceded to that application and dismissed the proceedings under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW): Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAD 108.

9. Mr Zonnevylle appealed against the second decision to the Appeal Panel of the Tribunal, as allowed under s 80 of the Civil and Administrative Tribunal Act. The Appeal Panel upheld the appeal and set aside the order dismissing the review application: Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAP 274.

10. The Minister seeks leave to appeal from the Appeal Panel’s decision. An appeal lies to the Supreme Court with leave on a question of law: s 83(1) of the Civil and Administrative Tribunal Act. As the Appeal Panel included a judge as one of its two members, the appeal is assigned to this Court: s 48(2)(f) of the Supreme Court Act 1970 (NSW).

11. The Appeal Panel accepted that the Tribunal had correctly stated the law as to the test to be applied, namely, whether a collateral purpose, determined objectively, was the predominant purpose of the proceedings. The Appeal Panel also accepted the correctness of the Tribunal’s approach that proceedings may be vexatious even if they invoke an available legal right. However, the Appeal Panel considered that Mr Zonnevylle’s impugned conduct, which it characterised as “persisting in making claims which are ‘bad in law’”, was “not the kind of conduct that comes within the meaning and scope of the principle of collateral purpose”. The central issue in the appeal is the correctness of that conclusion.

12. I consider that the Minister should have leave to appeal; that the orders of the Appeal Panel should be set aside and that the appeal to the Appeal Panel should instead be dismissed. Before stating my reasons for that conclusion, it is necessary to address two preliminary matters that arose during the hearing in this Court.

Adjournment application

13. The first was an adjournment application made by Mr Zonnevylle at the outset of the hearing. Three days before the hearing, the solicitor for the Minister sent to the Court and to Mr Zonnevylle by email the Minister’s list of authorities together with PDF copies of the unreported judgments and statutory provisions referred to in that list. Mr Zonnevylle sought an adjournment so as to have time to consider that material. He stated that he is a self-represented litigant who is not legally trained and who was “forced” to appeal to the Appeal Panel to refute the Tribunal’s decision that his proceedings were vexatious. He said he was overwhelmed by the material served.

14. We refused the adjournment application and indicated that we would give our reasons for that decision in this judgment. My reasons for joining in that decision may be stated briefly. The matter had been listed for hearing since 9 March 2020. Mr Zonnevylle received the Minister’s “white folder”, which included the Minister’s summary of argument, before that date. On 9 March, he consented to the hearing date of Friday 26 June 2020. The matter was listed on a Friday at his request. He sought “as much time as [he could] get” to prepare his written submissions. The Registrar allowed eight weeks, which was generous (the usual period is four weeks after receipt of the applicant’s submissions, as contemplated by Uniform Civil Procedure Rules 2005 (NSW) rule 51.39A). In the circumstances, we considered that Mr Zonnevylle had been afforded ample opportunity to prepare for the hearing and that his concern in relation to the bundle of authorities could be addressed by giving him leave to file supplementary submissions after the hearing concerning any authorities to which the Minister took the Court during argument. I note that Mr Zonnevylle availed himself of that opportunity (after being granted an extension of time to file the supplementary submissions).

Admissibility of Mr Zonnevylle’s white folder

15. The second issue reserved at the hearing was the admissibility of material relied upon by Mr Zonnevylle. As already noted, the appeal is confined to questions of law. The Minister’s white folder contained the documents necessary for the determination of the questions raised. Mr Zonnevylle subsequently filed a separate white folder containing numerous additional documents. The Minister wrote to Mr Zonnevylle seeking to ascertain the basis on which that material was relied upon. There was no response to that correspondence. At the hearing, the Minister objected to the tender of Mr Zonnevylle’s white folder. The Minister accepted that the Court would consider the documents behind tabs 1 and 2 of the folder on the assumption that those documents were relied upon by way of submission. However, it was submitted that the balance of the material should be disregarded because it was not before the Appeal Panel and not otherwise relevant to the proceedings in this Court. The Court indicated that the objection would be determined in this judgment.

16. While the Minister’s concession extended only to the documents behind tabs 1 and 2, it is clear that Mr Zonnevylle also intended the material behind tabs 0 and 3 to form part of his submissions in response to the appeal. Tabs 0, 1 and 2 should be received on that basis. However, the material behind tab 3, while clearly intended as a submission, is misconceived and not relevant to the issues in the appeal. That document and its attachments (which make up the balance of the folder) are directed to rebutting a submission Mr Zonnevylle attributes to the Minister: that Mr Zonnevylle has made “baseless” allegations of serious misconduct. It should be noted that the Minister did not make a submission in those terms in this appeal. Rather, the submissions recorded the finding of the Tribunal that Mr Zonnevylle’s previous litigation against the Minister and the Department demonstrated a pattern of making allegations which had repeatedly been found in those other proceedings to be baseless (at pars 14 and 28). The Minister did not herself assert that the allegations are baseless but instead pointed to findings in other proceedings to that effect. Mr Zonnevylle nonetheless sought to refute that proposition by repeating the allegations of misconduct and providing documents said to support them.

17. The fact that that material tends to confirm the correctness of the Tribunal’s conclusion as to Mr Zonnevylle’s collateral purpose in bringing the review application must be put out of mind. The documents are not relevant to the issues raised in the present appeal, which are confined to questions of law arising from the decision of the Appeal Panel.

18. I note, however, that the attachments to tab 3 include a copy of a Ministerial briefing note identified as DGS12/613. That document was central to Mr Zonnevylle’s submissions and to his underlying applications for access to information. For that reason, I would be inclined to admit the briefing note into evidence. The balance of the material in Mr Zonnevylle’s white folder has not been shown to have been before the Appeal Panel and is not relevant to the issues in the appeal. I would exclude that material.

Circumstances in which the review application was brought

19. The briefing note was submitted to the then Minister for Education in April 2012. It proposed that Mr Zonnevylle be declared a “regular writer” and that no further communication be conducted with him by the Department except where sought through a formal request for information under the Government Information (Public Access) Act. The Minister approved the proposal.

20. Mr Zonnevylle evidently became aware of that decision only some years later. He submits that it has a “very oppressive effect” on him because it “enables any agency to disregard any complaints” made by him. He has made many access applications under the Government Information (Public Access) Act concerning the briefing note. He originally made an application in April 2018 which he told the Tribunal he had “resubmitted six times”. The sixth version (dated 16 August 2018) was the version attached to the review application. It appears that version was re-faxed to the Department 39 times over a period of about 2 months. Again, the fact that this history tends to confirm the correctness of the Minister’s characterisation of Mr Zonnevylle as a “regular writer” must be put out of mind.

21. In the application dated 16 August 2018, Mr Zonnevylle sought 13 categories of information all evidently related in one way or another to the briefing note, as follows:

“Ref document ‘Dept of Education & Training Briefing for the Minister’ DGS12/613

1.   a. Copy of document and all related documents/memos/directives associated with this document including evidence provided by Hopkins, CPO DEC or other officers for this proposal.

b.   Details on all recipients of this document (ie Other Ministers, Agency executives, oversight agencies, etc who have been provided a copy of this document.

2.   Documents/memos/correspondence between:

a. The Minister and

b.   any DEC executives including Brunges / Riordan / Baily / Hopkins / Patrick / Southern   referencing or concerning Zonnevylle.

3.   Correspondence received by the Minister from DET/DEC or from any other agencies / Ministers / concerning Zonnevylle.

4.   Documents between the Minister and the Premier & Cabinet concerning Zonnevylle.

5.   Complaints the Minister received concerning:

a.   Workplace Supplies Tender 1006c

b.   Tender DETPR-35-11

c.   Tender DECPR-02-12

d.   Premiers Memorandum 2006/11

e.   DET/DEC procurement activities

6.   Documents identifying any Education Minister’s staff who dealt with any matters related to Zonnevylle when Picoli was Education Minister and the current Minister.

Period for the above items: Between 2010 and June 2018.

7.   Correspondence/documents received by the Minister’s office from Zonnevylle.

8.   Documents related to Australia Post item no 4961 8893 1012

Above documents to show which Ministerial staff took possession of items 7 & 8.

9.   Documents related to Australia Post Items No 4961 8893 2019 & 4961 8893 3016

Above documents to show which Ministerial staff took possession of items 9.

10.   Documents identifying the name and position of the Education Ministry’s (delegated) Information Access Manager / officer since Jan 2010 & who currently holds that position.

Period for items 7 to 10 between April 13, 2018 and August 16, 2018.

11.   All codes of conduct applicable to all Ministerial Staff (Jan 2017 to July 2016).

12.   Documents received by the Ministry from the Applicant per Clipper Couriers Con Note G20014366 on 17-07-2018 & the Ministerial staff officer who took possession of these documents.

13.   Documents detailing Statutes / Acts / Legislation for refusal to apply to the above applications.”

22. The application also made a series of allegations of misconduct on the part of officers of the Department, summarised by the Tribunal as follows (at [2] of the Tribunal’s first decision, repeated at [22] of the second decision):

“Below this list is a statement that certain public officers have been complicit in maladministration, disadvantaging state schools, breaching NSW procurement policies and guidelines, covering up maladministration and serious misconduct by ‘DEC officers’, and complicity in wasting public funds. They are alleged to have breached their conduct obligations, acted in bad faith and with bias, abused their powers and breached ‘conflict of interest/bad faith/misfeasance/integrity guidelines’.”

23. The application further alleged that “Ministerial officers (possibly including the Minister himself)” had “breached codes of conduct and possible unlawful/criminal offences as a result of their misconduct”.

24. Those allegations were irrelevant to the access application. They may explain why it was made but they raised matters outside the scope of any function of the agency in deciding the access application.

25. As to categories 1 to 6 and 8 to 10 sought by Mr Zonnevylle, the Minister said that such information was “not held” by the Department. Categories 7 and 12 were answered by the provision of documents. Categories 11 and 13 were answered by identifying where the material sought was publicly available.

The review application before the Tribunal

26. Mr Zonnevylle’s grounds for review by the Tribunal of that decision are set out at the outset of this judgment. As already noted, at the time the review application was filed, the Minister had not decided the access application and it was accordingly deemed to have been refused. It may be inferred that the review application was originally directed to the Minister’s failure to determine the application within the required period. It appears nonetheless to have been argued on the basis that those grounds specified were maintained by Mr Zonnevylle even after the decision had been made.

27. Mr Zonnevylle’s position as to his purpose in maintaining the proceedings was recorded by the Tribunal at [61] as follows:

“He submitted that the respondent had not conducted adequate searches and he was sincere in wanting that to be done. He relied on material from Australia Post to show that the documents he sought should be in its possession and that the searches conducted had not been adequate.”

28. However, as correctly identified by the Tribunal, Mr Zonnevylle’s purpose in bringing the proceedings was to be determined objectively rather than subjectively. The Minister submitted that the proceedings were brought for the collateral purpose of establishing that the Minister and his staff had committed breaches of the Government Information (Public Access) Act. It was the Minister’s contention that the collateral purpose could be inferred from the documents filed by Mr Zonnevylle and the history of his litigation in the Tribunal.

29. It may be noted that there would be no vice in seeking access to government information for the purpose of obtaining support for a complaint to be made in another forum. The Minister’s contention is that Mr Zonnevylle has demonstrated his determination to urge the Tribunal to make findings of misconduct in the course of its review of the access decision and his refusal to accept that such findings would be beyond the authority of the Tribunal. That is an important distinction.

30. The material before the Tribunal included decisions in previous proceedings brought by Mr Zonnevylle against not only the Minister for Education but also other agencies. Taking a careful approach, the Tribunal considered it relevant to have regard to previous proceedings against the Minister for Education but not proceedings against other agencies. With respect, I do not think it was necessary for the Tribunal member to confine herself in that way in determining Mr Zonnevylle’s purpose in bringing the proceedings but if that was an error it was one that favoured Mr Zonnevylle.

31. The Tribunal began by considering the grounds specified by Mr Zonnevylle in his review application. From those grounds, she discerned that his purpose was “to establish that the respondent has breached the GIPA Act, breached his rights under the Act and committed offences under the Act”: at [66].

32. The Tribunal then had regard to the history of Mr Zonnevylle’s previous litigation against the Minister, which she found at [67] demonstrated:

“a pattern of making allegations of improper conduct against the staff of agencies, which have been found to be baseless, and repeatedly urging the Tribunal to make findings of illegality which the Tribunal has determined in those proceedings, that it has no power to make.”

33. The Tribunal noted that, on five previous occasions, the Tribunal had declined to make the findings of breach of the Government Information (Public Access) Act contended for by Mr Zonnevylle and that it had found that Mr Zonnevylle’s conduct towards certain officers of the Department amounted to harassment and raised issues outside the scope of the Act.

34. The Tribunal then analysed the submissions put by Mr Zonnevylle in opposition to the Minister’s application and found at [70]:

“[Mr Zonnevylle’s] submissions demonstrate an intention to continue to agitate for findings of a lack of good faith, illegality and misconduct on the part of the respondent, and to seek review of decisions which are outside the scope of his application, regardless of the implications of my interim decision or the other decisions outlined above.”

35. The Tribunal concluded at [71] that, although Mr Zonnevylle may have had a legitimate cause of action in seeking review of the reasonableness of the Minister’s searches, the proceedings were being used as a vehicle for a predominant purpose of attempting to re-litigate allegations of misconduct, illegality and lack of good faith on the part of the Minister and the Department. On that basis, the Tribunal was satisfied that the application was vexatious because it was being maintained for a collateral purpose and not for the purpose of having the Tribunal determine the issues to which it gave rise.

Ground 1: scope of the collateral purpose principle

36. The first proposed ground of appeal is:

“The Appeal Panel of the NSW Civil and Administrative Tribunal erred in its construction of s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) by determining that attempts by a party to re-litigate contentions that have previously been dismissed and are also ‘bad in law’ do not fall within the scope of the collateral purpose principle and therefore cannot establish that the proceedings are ‘vexatious’ for the purposes of that provision.”

37. Section 55(1)(b) confers power on the Tribunal to 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.

38. The Appeal Panel noted the Tribunal’s finding that the proceedings were vexatious because they had been maintained “for collateral purposes and not for the purpose of having the court adjudicate on the issues to which they give rise”, citing Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491.

39. The Appeal Panel accepted that the Tribunal had correctly stated the law as to the test to be applied, namely, whether a collateral purpose, determined objectively, was the predominant purpose of the proceedings. The Appeal Panel also accepted the correctness of the Tribunal’s approach that proceedings may be vexatious even if they invoke an available legal right and that the categories of collateral purpose are not closed. However, the Appeal Panel continued at [77]:

“But, in our opinion, the Tribunal did not appreciate that despite the categories not being closed, there are significant limits on the collateral purpose principle. Courts have determined those limits by balancing the competing policy considerations of access to justice and ensuring that its processes are not abused.”

40. The Appeal Panel referred in that context to the decision of the High Court in Batistatos v Roadsand Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [8] where the majority emphasised the distinction between policy considerations affecting abuse of process in criminal proceedings as opposed to civil proceedings. The Appeal Panel emphasised that distinction, noting the statement in Batistatos that dismissal for abuse of process in a civil context was justified when “the issues to be considered go beyond a question as to whether the claim or defence in question is bad in law”. The Court explained that “the demurrer was developed to deal with that situation” (claims that were bad in law).

41. The Appeal Panel then explained the process of demurrer by reference to the High Court Rules 2004 and noted that, as there are no formal pleadings and no formal process for demurring to a pleading in proceedings in the Tribunal, the closest equivalent is the Tribunal’s power to dismiss proceedings if they are misconceived or lacking in substance. That may be so, but that is not the only circumstance in which the Tribunal’s power under s 55(1) is enlivened.

42. It is appropriate to set out the Appeal Panel’s conclusion in full at [83]:

“In the first interlocutory decision, the Tribunal upheld the Minister’s objection to most of Mr Zonnevylle’s ‘grounds for review’. The Tribunal concluded that it did not have jurisdiction to grant the remedies or make the orders Mr Zonnevylle was seeking. Those matters were, to use the language of the High Court in Batistatos, ‘bad in law’. In our view, that was the appropriate response. If Mr Zonnevylle persisted in making the same claims and allegations, other responses, including a costs order, may have been appropriate. In the circumstances of this case, 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. A review of relevant case law confirms this conclusion.”

43. The analysis assumed two premises. First, that Batistatos holds that dismissal for abuse of process is not justified where all that can be said is that the claim or defence is “bad in law”. The issues to be considered go beyond that question. Secondly, that the parts of the review application dismissed in the Tribunal’s first interlocutory decision were dismissed because they were “bad in law” in that sense.

44. It did not follow from those premises that persistence in the claims that were bad in law could never warrant the dismissal of the 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.

45. The Appeal Panel stated that, if Mr Zonnevylle persisted in making the same claims and allegations after they had been dismissed, “other responses including a costs order” may have been appropriate. That reflects an unduly narrow conception of the Tribunal’s authority to control (and prevent abuse of) its own process. As noted by the Minister in her written submissions, the Appeal Panel has previously construed s 55(1) as conferring a broad power to deal with abuses of its processes, correctly in my view: see BDK v Department of Education and Communities [2015] NSWCATAP 129 at [66].

46. It may be accepted that a party who persists in making claims which are “bad in law” may in an appropriate case be dealt with by the making of a costs order but that is not the only possible response. An important consideration that prompted the Tribunal to conclude that Mr Zonnevylle’s predominant purpose was collateral to the proper purpose of the proceedings was the fact that, after the first interlocutory decision, he persisted in the very allegations that had been dismissed.

47. An unduly narrow view of the Tribunal’s power to control its process was also hinted in the Appeal Panel’s observation at the outset of the decision that the Minister had not suggested there was any issue estoppel preventing Mr Zonnevylle from re-litigating an issue. That was true but it said little about whether the proceedings were vexatious.

48. As noted in the Minister’s written submissions, it is well established that an attempt to re-litigate a matter that has already been determined may amount to an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 383; [1993] HCA 77; Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 193 [33]; [2009] HCA 27. The decision of the Appeal Panel does not explain why Mr Zonnevylle’s persistence in serious allegations 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.

Ground 2: consideration of previous litigation

49. The second proposed ground of appeal is:

“The Appeal Panel erred by failing to consider decisions in previous proceedings between the parties, and between the respondent and other government agencies, as relevant to any finding as to whether the proceedings are ‘vexatious’ under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).”

50. The Appeal Panel noted the Tribunal’s finding at [67] that the history of proceedings brought by Mr Zonnevylle against the Minister and the Department of Education “demonstrates a pattern of making allegations of improper conduct against the staff of agencies, which have been found to be baseless, and repeatedly urging the Tribunal to make findings of illegality which the Tribunal has determined in those proceedings, that it has no power to make.” Furthermore, the Appeal Panel considered that to be an accurate summary of Mr Zonnevylle’s conduct as described in those decisions. However, the Appeal Panel took the view that evidence as to why Mr Zonnevylle commenced or maintained other proceedings was not “logically probative” to the issue of his reason for maintaining the proceedings before it: at [54].

51. The Minister submitted that, in deciding whether proceedings are vexatious, “courts have considered the history of proceedings instituted by the party in question to be a relevant consideration”. In that context, the Minister relied on the decision of this Court in Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [50]. However, those remarks were concerned with an application under the Vexatious Proceedings Act 2008 (NSW), where the test is whether a person has frequently instituted or conducted vexatious proceedings. The passage from Teoh relied upon does not, with respect, explain the proper approach to determining a litigant’s purpose in bringing a particular case.

52. In my view, however, the Appeal Panel was wrong to disregard the earlier litigation. Its probative value is explained in another decision relied upon by the Minister 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). Although that order was made in the course of the dismissal of an application for special leave, the Court (Keane and Edelman JJ) published careful reasons which are recorded in the transcript of the determination of the leave application: Conomy v Maden [2019] HCATrans 49. It is clear that the Court in that case 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. Keane J said:

“The history of Mr Conomy’s proceedings demonstrates 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.”

53. 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 in 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.

Ground 3: alleged denial of procedural fairness

54. Proposed ground 3 is:

“The Appeal Panel denied the parties procedural fairness by not providing them with notice of or any opportunity to make submissions on the issue that was dispositive of the proceedings.”

55. It is not necessary to address this ground. While the Appeal Panel acknowledged at [97] that its ultimate conclusion had not been put to the parties at the hearing as a possible ground of appeal, that now has no practical consequence because the Minister has had a full opportunity to address the issue in this Court and indeed has been successful on the point.

Orders

56. In the proceedings before the Appeal Panel, the Minister sought an order for her costs. That application was refused. The Minister does not seek her costs of this appeal and instead seeks an order that each party bear their own costs. However, the draft notice of appeal seeks an order, in the event that the appeal is allowed, that the appeal to the Appeal Panel be dismissed “with costs”.

57. That issue was not addressed in the written or oral submissions and it is not clear whether the application is pressed. If it is, I would refuse it.

58. In dismissing the Minister’s application for costs below, the Appeal Panel noted at [99] that the general rule in proceedings before the Tribunal is that each party is to pay their own costs: s 60(1) of the Civil and Administrative Tribunal Act 2013. Costs may only be awarded if the Tribunal is satisfied that that course is warranted by “special circumstances”. Section 60(3)(e) provides that, in determining whether there are special circumstances, the Tribunal may have regard to whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance. Although the Appeal Panel reached a different conclusion, I am persuaded that the proceedings were maintained by Mr Zonnevylle for a predominantly collateral purpose. However, as the review application was initially brought in circumstances of a deemed refusal, and noting that the Appeal Panel in fact upheld the appeal, I am not persuaded that Mr Zonnevylle should bear the Minister’s costs.

59. For those reasons, I propose the following orders:

1. Grant leave to appeal.

2. Set aside the orders of the Appeal Panel of the New South Wales Civil and Administrative Tribunal made on 14 November 2019 and in their place order that the appeal to the Appeal Panel be dismissed.

3. Each party to bear his or her own costs of the appeal.

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Decision last updated: 24 September 2020