Zonnevylle v Minister for Education and Early Childhood Learning

[2020] NSWCATAD 76

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Zonnevylle v Minister for Education and Early Childhood Learning [2020] NSWCATAD 76
Hearing dates:	18 February 2020
Date of orders:	18 February 2020
Decision date:	05 March 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	K Ransome, Senior Member
Decision:	Application for recusal refused.
Catchwords:	PRACTICE AND PROCEDURE – directions hearing - recusal – no point of principle
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Court Security Act 2005 Government Information (Public Access) Act 2009
Cases Cited:	Zonnevylle v Department of Justice [2018] NSWCATAD 158 Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAP 274
Category:	Procedural and other rulings
Parties:	Peter Zonnevylle (Applicant) Minister for Education and Early Childhood Learning (Respondent)
Representation:	Solicitors: Applicant (Self Represented) Crown Solicitor (Respondent)
File Number(s):	2018/00333885
Publication restriction:	Nil

REASONS FOR DECISION

1. Mr Zonnevylle sought review by the Tribunal of a decision of the Minister for Education and Early Childhood Learning (the respondent) under the Government Information (Public Access) Act 2009. On 4 June 2019 the Tribunal made an interlocutory decision summarily dismissing the proceedings on the basis that the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance: s 55(1)(b), Civil and Administrative Tribunal Act 2013.

2. Mr Zonnevylle appealed to the Appeal Panel from the decision to dismiss the proceedings and, on 14 November 2019, the Appeal Panel upheld his appeal and set the dismissal decision aside: Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAP 274. The matter then came back before the Tribunal for determination. At a directions hearing on 18 December 2019 the respondent flagged that it was considering an appeal from the decision of the Appeal Panel. The matter was adjourned to 18 February 2020 for further directions.

3. The matter came before me for directions on 18 February 2020. Mr Zonnevylle appeared at the directions hearing by telephone and the respondent was represented by a solicitor from the Crown Solicitor’s Office. Mr Zonnevylle said that he had not been notified of the directions hearing, although notice had been given on 18 December 2019. He did not, however, object to the directions hearing proceeding. At the beginning of the directions hearing I introduced myself and Mr Zonnevylle accused me of having lied to him in the past by stating I was a judicial officer and immediately asked me to recuse myself from continuing with the directions hearing. I declined to recuse myself.

4. The directions hearing proceeded and, as the respondent had the day before (17 February 2020) sought leave to appeal to the Court of Appeal from the Appeal Panel’s decision, a direction was made that the proceedings before the Tribunal be adjourned pending the outcome of the appeal. Mr Zonnevylle agreed that that this was the correct course for the Tribunal to take in the circumstances.

5. Mr Zonnevylle has sought written reasons for me not stating whether I am a judicial officer and for not recusing myself.

6. Mr Zonnevylle’s reference to “judicial officer” seems to stem from a decision I made in another matter in which Mr Zonnevylle was an applicant in 2018. In that matter I refused a request from Mr Zonnevylle that he be permitted to record the hearing on a personal recording device. Mr Zonnevylle in making his request to record that hearing had referred to s 9 of the Court Security Act 2005 which permits proceedings to be recorded by a person if such recording is expressly permitted by a judicial officer. I refused the request for the reasons I gave at the time: see Zonnevylle v Department of Justice [2018] NSWCATAD 158.

7. Under s 4 of the Court Security Act a “judicial officer” is defined to mean:

1. a judicial officer within the meaning of the Judicial Officers Act 1986, or

2. any other person who is, or who alone or with others constitutes, a court.

8. A court is defined in s 4 to include this Tribunal. For the purposes of the Court Security Act, therefore, a member who constitutes the Tribunal is a judicial officer.

9. In this matter Mr Zonnevylle’s request that I recuse myself seems to have arisen from his belief that I had lied to him in the past about a being a judicial officer. The only time I have referred to being a judicial officer was in the context of Mr Zonnevylle’s application under the Court Security Act which, as set out above, for the purposes of that Act defined a judicial officer to include a member of this Tribunal. Any request he made at the directions hearing in this matter for me to say that I was or was not a judicial officer was not relevant to any issue arising in the directions hearing which was solely concerned with the future progress of the matter before the Tribunal. I therefore declined to make any statement about my status.

10. Mr Zonnevylle did not raise any matters which would indicate that I had a pre-existing state of mind or was prejudiced against him in any way which meant that I was unable to deal with his matter adequately and fairly in determining its future progress through the Tribunal. That being the case, I declined to recuse myself. I note that Mr Zonnevylle agreed that the only appropriate direction to be made in this case was the direction made to adjourn the proceedings pending the outcome of the appeal.

Orders

1. Application for recusal refused.

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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: 05 March 2020