Zidar v Office of the NSW Attorney General

[2019] NSWCATAD 97

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Zidar v Office of the NSW Attorney General [2019] NSWCATAD 97
Hearing dates:	30 April 2019
Date of orders:	14 May 2019
Decision date:	29 May 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R Perrignon, Senior Member
Decision:	1. Leave to record the case conference is refused. 2. The timetable directed on 30 April 2019 with respect to the respondent’s foreshadowed application for summary dismissal is confirmed. 3. All documentary evidence or submissions to be served on the applicant by the respondent in respect of its summary dismissal application are to be served in portable document format.
Catchwords:	ADMINISTRATIVE LAW – application to use a recording device to record a case conference – decision to list summary dismissal application for hearing
Legislation Cited:	Court Security Act 2005
Cases Cited:	Fraud Detection and Reporting Pty Ltd v Department of Justice [2018] NSWCATAP 191 Zidar v Department of Justice (No 2) [2018] NSWCATAD 214 Zidar v Department of Justice (No 4) [2018] NSWCATAD 266 Zidar v Department of Justice [2018] NSWCATAD 209 Zidar v NSW Department of Justice (Office of the General Counsel) [2019] NSWCATAD 38
Category:	Procedural and other rulings
Parties:	Joe Zidar (Applicant)   Office of the NSW Attorney General (Respondent)
Representation:	J Zidar (Applicant in person)   Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	2019/93180
Publication restriction:	Nil

REASONS FOR DECISION

1. The applicant, Mr Zidar, seeks written reasons for certain interlocutory decisions made at case conference on 30 April 2019.

2. By way of background, he has applied to the respondent for access to government information. On 25 March 2019, he commenced these proceedings, seeking review of the respondent’s decision in relation to his access application.

3. At case conference on 30 April 2019:

1. Mr Zidar applied for leave to record the proceedings using a handheld recording device.

2. The respondent indicated, by its solicitor, its intention to apply for summary dismissal of the proceedings, on the grounds that they were vexatious.

4. Mr Zidar’s application to record the case conference was declined.

5. The respondent was directed to file and serve its application for summary dismissal in writing. A timetable was set for the filing and service of evidence and submissions in respect of it, and the application was listed for hearing on 21 June 2019.

6. Later on 30 April 2019, Mr Zidar sought written reasons for the following decisions made at case conference:

1. to decline him leave to record the case conference, and

2. ‘not refusing the respondent’s Application’.

Application to record case conference

7. When he applied to record the case conference, Mr Zidar candidly informed the Tribunal that it was his practice to make such applications, at case conferences and hearings. In other proceedings, he has been declined leave:

1. to record a case conference: Zidar v Department of Justice [2018] NSWCATAD 209 (Zidar No 1),

2. to record hearings at first instance: Zidar v Department of Justice (No 2) [2018] NSWCATAD 214; Zidar v NSW Department of Justice (Office of the General Counsel) [2019] NWCATAD 38, and

3. to record hearings of the Appeal Panel: Fraud Detection and Reporting Pty Ltd v Department of Justice [2018] NSWCATAP 191; Zidar v Department of Justice (No 4) [2018] NSWCATAP 266.

8. In each case, it has been necessary for him to seek leave before activating the recording device, because:

1. it is an offence to record sound or images in court premises unless, among other things, the recording device is expressly permitted by a judicial officer: s9, Court Security Act 2005, and

2. for the purposes of that section, the words ‘court’ and ‘judicial officer’ include this Tribunal and its members respectively: Fraud Detection and Reporting Pty Ltd v Department of Justice [2018] NSWCATAP 191; Zidar v Department of Justice (No 4) [2018] NSWCATAP 266.

9. On 30 April 2019, he applied to record the case conference on essentially the same grounds as he did in Zidar (No 1), namely, a series of assertions, not supported by evidence, that in the past:

1. there have been malfunctions of recording equipment,

2. official recordings and transcripts have been tampered with, and

3. copyright attaches to official recordings and transcript.

10. The application was refused, as the case conference was being recorded by the Tribunal. Mr Zidar was reminded that he could apply to the Registrar for access to the recording if he wished. I was not satisfied that there was any real prospect that the recording would fail or be tampered with, or that for any other reason it was appropriate to depart from the normal procedure: namely, that proceedings are not recorded except by the Tribunal itself, or at its request by the Court Reporting Services Branch of the NSW Department of Justice.

11. In the absence of evidence and particulars, there was no basis for the making of any findings of fact with regard to the first two assertions listed in the preceding paragraph. The fact that there is copyright in any recording made by the Tribunal, or at its request, or in transcripts of such recordings, does not support the grant of leave to make an independent recording.

Not refusing the summary dismissal application

12. By his second request, Mr Zidar seeks reasons why the Tribunal did not dismiss the respondent’s application for summary dismissal. The Tribunal did not dismiss the respondent’s application at case conference, because it:

1. had not heard the application, and

2. decided to list it for hearing on 21 June 2019, after the application had been made in writing and the parties had an opportunity to file and serve evidence and submissions in respect of it.

13. An application for summary dismissal is an application for final relief. Contested applications for final relief are generally heard and determined at formal hearings, rather than at case conference.

14. In this Division, for the efficient disposal of its business, the Tribunal regularly lists for case conference applications for review of decisions regarding access to government information, shortly after those proceedings are first commenced.

15. A case conference is an informal procedure where the parties appear before a Tribunal member, and have an opportunity to identify the issues in dispute, and to explore whether some or all of them might be resolved, either on that occasion or at mediation. The Tribunal determines whether a date or dates should be set for mediation and/or final hearing, and what if any timetable for the exchange of evidence should be directed. Case conferences are listed for up to an hour.

16. The Tribunal does not normally make decisions on contested applications for final relief at case conference. Such determinations are more appropriately made at or following a formal hearing because, at a hearing, the parties:

1. are not subject to the considerable time constraint that operates at case conference, and

2. have a proper opportunity to adduce evidence and make submissions, orally or in writing as the Tribunal may allow, often in circumstances where, as here, they have been directed to serve them in advance to give the other party due notice of the basis for the application and the opposition to it.

17. Hearings are recorded by the Court Reporting Services Branch of the NSW Department of Justice.

18. Occasionally, applications for final relief are determined without a hearing, but only after the parties have had an opportunity to make submissions as to whether a decision ‘on the papers’ is appropriate. No application to determine a summary dismissal application ‘on the papers’ has been made in this case.

19. For the reasons above, it is preferable that the respondent’s foreshadowed application for summary dismissal be heard and determined at a formal hearing, rather than at case conference. As indicated, both parties have been directed to file and serve evidence and submissions in respect of that application, and will have the opportunity to be heard on 21 June 2019.

Documentary format

20. In addition to his request for reasons, Mr Zidar seeks an order that all documents to be served on him by the respondent be provided in a digital format: namely, portable document format. As the respondent indicated at case conference that it was prepared to do this, I will make that order.

Orders

1. Leave to record the case conference is refused.

2. The timetable directed on 30 April 2019 with respect to the respondent’s foreshadowed application for summary dismissal is confirmed.

3. All documentary evidence or submissions to be served by the respondent on the applicant in respect of the summary dismissal application are to be served in portable document format.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

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: 29 May 2019