Zonnevylle v Secretary, Department of Education

[2022] NSWCATAD 106

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Zonnevylle v Secretary, Department of Education [2022] NSWCATAD 106

Hearing dates:

8 February 2022

Date of orders:

8 February 2022

Decision date:

28 March 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The application for recusal is refused.

Catchwords:

PRACTICE AND PROCEDURE – directions hearing –application for recusal refused – directions made for further progress of the matter - no decisions regarding the substantive application

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Government Information (Public Access) Act 2009

Cases Cited:

Department of Education v Zonnevylle [2020] NSWCATAD 96

Zonnevylle v Secretary, NSW Department of Education [2022] NSWCATAD 74

Category:

Procedural rulings

Parties:

Peter Zonnevylle (Applicant)
Secretary, Department of Education (Respondent)

Representation:

Applicant (Self-Represented)
Crown Solicitor (Respondent)

File Number(s):

2021/00140934

Reasons for Decision

Introduction

1. Mr Zonnevylle brought an application in the Tribunal seeking leave to make an application for access to information under the Government Information (Public Access) Act 2009 (“the GIPA Act”). For the background to the need for that application see Department of Education v Zonnevylle [2020] NSWCATAD 96 in which the Tribunal made an order restraining Mr Zonnevylle from making an access application under the GIPA Act without first obtaining the approval of the Tribunal.

2. The matter was most recently discussed in Zonnevylle v Secretary, NSW Department of Education [2022] NSWCATAD 74. In that decision Principal Member Pearson set out the background to this application. As she observed, the application was filed with the Tribunal in May 2021. At paragraph [9] of here reasons she noted:

The position as at the date of the directions hearing on 22 February 2022 was that the applicant had provided submissions in support of the Application with the application on 19 May 2021; and the respondent had filed and served submissions on 17 August 2021. The applicant has not yet filed any evidence and submissions in reply to those of the respondent.

3. The matter came before me in a directions list on 8 February 2022. Mr Zonnevylle was self-represented and the Respondent was represented by Ms Mattes from the Crown Solicitor’s Office.

4. The purpose of a directions list is to make directions for each of the matters in the list as to what the parties need to do to resolve the case or prepare it for a hearing, including by setting a timetable and listing a hearing date.

5. The Tribunal has adopted a practice of conducting directions hearings by telephone as part of its response to the COVID-19 pandemic. No members of the public attended in person on 8 February 2022.

6. I telephoned each of the parties on the numbers that had been provided and the directions hearing was able to proceed by telephone.

7. At the commencement of the directions hearing Mr Zonnevylle expressed concern that the Tribunal has not set up a process which would allow the public to attend the directions hearing should they wish to do so and that therefore the matter was not open to the public.

8. Mr Zonnevylle requested that I recuse myself and I declined to do so. He has requested a written statement of reasons under section 62 of the Civil and Administrative Tribunal Act 2013 (NSW) (“the NCAT Act”). These reasons are provided as required by section 62(2) of the NCAT Act.

9. As I have noted above, the matter was before me for a directions hearing. I was determining the future progress of the application in the Tribunal. I was not determining the substantive issues of the case.

10. Several times during the directions hearing Mr Zonnevylle asked me to recuse myself. I understood that this was on the basis that I was not providing him with procedural fairness, that I was prejudiced against him because of directions or decisions that I have made in other matters in which he has been involved, that he has made complaints against me and that he has lodged appeals against my rulings.

11. Principal Member Pearson set out the law in relation to recusal applications in Zonnevylle v Secretary, NSW Department of Education [2022] NSWCATAD 74 at paragraphs [16] – [18] as follows:

1. A decision maker has an obligation to hear and determine a matter unless a reasonable apprehension of bias can be established: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [19]; Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [35]-[36]; see also Charisteas v Charisteas [2021] HCA 29. The general test for apprehended bias, whether in a court or in a tribunal, is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [11].

2. The two step process involved was explained by the High Court in Ebner v Official Trustee in Bankruptcy at [8]:

   First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

3. For a decision-maker to disqualify himself or herself for apprehended bias, there must be an objective connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the decision-maker might not bring an impartial mind to bear on the issues that are to be decided: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [67], per Gummow ACJ, Hayne, Crennan and Bell JJ.

   12. The fact that a decision-maker makes a ruling against a party on a procedural issue in a directions list does not, of itself, demonstrate that the decision-maker does not bring an impartial mind to bear upon the determination of the issues in the matter: Zonnevylle v Secretary, NSW Department of Education [2022] NSWCATAD 56 at paragraph [12].

   13. The fact that I have made rulings in other matters in the Tribunal in which Mr Zonnevylle has been involved, the fact that he has made complaints about the way in which I have handled other matters in which he has been involved, or the fact that he has made complaints about particular directions that I have given or decisions that I have made in those matters, does not demonstrate the required connection between the facts and circumstances of any of those matters and the asserted conclusion that I might not bring an impartial mind to the resolution of the matters required to be addressed in a directions hearing in the present proceeding.

   14. In the present matter I was making directions that were necessary to ensure that the matter progressed in an orderly fashion. As the record shows, I merely set a timetable for the filing of material and listed the matter for further directions.

   15. There is no basis for a reasonable apprehension of bias in any of the matters on which Mr Zonnevylle bases his requests that I recuse myself. That being the case, I declined to recuse myself.

Order

1. The application for recusal is 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: 28 March 2022