Zonnevylle v Secretary, Department of Education

[2020] NSWCATAD 110

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Zonnevylle v Secretary, Department of Education [2020] NSWCATAD 110
Hearing dates:	17 March 2020
Date of orders:	17 March 2020
Decision date:	21 April 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Lonsdale, Senior Member
Decision:	(1)   Application for recusal is refused.
Catchwords:	PRACTICE AND PROCEDURE – directions hearing – recusal
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Government Information (Public Access) Act 2009 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 SBBA v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 90
Texts Cited:	None cited
Category:	Procedural and other rulings
Parties:	Peter Zonnevylle (Applicant) Department of Education (Respondent)
Representation:	Solicitors: Applicant (Self Represented) Crown Solicitor (Respondent)
File Number(s):	2020/00045500
Publication restriction:	Nil

REASONS FOR DECISION

1. The applicant made an application to the Tribunal for a review of a decision of the respondent under s 100 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The application for review indicated that the respondent had failed to make a decision in respect of an access application made by the applicant to the respondent.

2. The matter came before me for a case conference on 17 March 2020. Both the applicant and the respondent appeared by telephone.

3. During the case conference the respondent identified that a letter had been sent from the respondent to the applicant notifying the applicant that the respondent had determined the access application was invalid because it had been made to the respondent by way of email not by post. There was some discussion between the applicant and the respondent as to whether the respondent accepted access applications by email (for example whether emails were an approved “additional facility for the making of an access application” as set out in s 41(3) of the GIPA Act).

4. The applicant advised that he did not receive the letter from the respondent and wished the matter be set down for a hearing as soon as possible. The applicant indicated it was important to him that he gets access to the information sought in the access application on the basis that he required the information for another matter. Despite this position, the applicant offered to withdraw his application for review by the Tribunal if the respondent produced a document confirming that the applicant was unable to make access applications by email. The respondent stated that it was possible to produce such a document because the respondent considered no such document existed.

5. The respondent proposed that the decision be remitted to the respondent for reconsideration under s 65 of the Administrative Decisions Review Act 1997 (NSW). The respondent proposed to clarify a number of issues the respondent saw with the validity of the access application in a letter as a means of providing assistance to the applicant and pursuant to s 16(1) of the GIPA Act.

6. The respondent requested two weeks to enable it to prepare a letter setting out the issues it considered there were with the validity of the access application. The respondent had previously identified there were a number of issues that needed to be addressed in the proposed letter. The respondent’s solicitor also identified his current workload as a further reason for the two week period requested. The applicant requested one week and indicated (and I summarise) that the respondent was well resourced and remunerated to carry out work of this kind and that one week was sufficient in circumstances where the applicant required the information to assist him in relation to a separate matter.

7. I identified that I would make orders that:

1. the respondent would be allowed a period of two weeks to write to the applicant to clarify the issues it considered there were with the access application.

2. the applicant would be allowed a period of two weeks to respond to the matters raised by the respondent.

3. A further case conference would be listed for the week following the date for the applicant’s response.

8. The respondent immediately requested that I recuse myself. When I asked the applicant why he considered I should recuse myself he stated that I was “blatantly biased in favour of the respondent” and that he had “enforceable legal rights” under the GIPA Act and that I was denying him those rights. I understood the application to be that I was either actually biased and/or there was a reasonable apprehension of bias.

9. I considered the application and refused to recuse myself.

10. On 22 March 2020, the applicant requested, by email, that I provide a written statement of reasons for my decision pursuant to s 63 of the CAT Act. The grounds contained in the applicant’s email on which the applicant considers I should have recused myself are broader than the matters the applicant raised at the case conference and I discuss this below.

11. In this matter, the applicant’s request that I recuse myself appears to have arisen once I indicated I would make orders that reflected the course of action proposed by the respondent, rather than that proposed by the applicant.

12. During the case conference, I identified that the validity of the access application would be a key preliminary issue for the matter. After hearing from both parties, I formed the view that it would be appropriate to have the decision remitted to the respondent as this (along with the respondent clarifying other issues it considered there were with the access application) would be the most appropriate means to “facilitate the just, quick and cheap resolution of the real issues in the proceedings” as required by s 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW).

13. There is no evidence or reason to believe that I prejudged the matter, or closed my mind to any argument in support of the applicant’s position (see SBBA v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 90 at [15]).

14. The High Court of Australia has given guidance on how to determine whether apprehended bias is established in various decisions. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at [19] the Court said:

“Judges have a duty to exercise the judicial functions when the jurisdiction is regularly invoked and they are assigned to cases in accordance with practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose the judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then the objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.”

15. I am satisfied that nothing about my orders at the case conference would give a fair-minded lay observer reasonable apprehension that I did not bring an impartial mind to the decisions required of me at the case conference.

16. As outlined above, the email from the applicant requesting written reasons for my decision contained broader grounds than those raised by the applicant at the case conference and in respect of which I have set out my reasons above. For completeness I make the following remarks on the broader grounds raised by the applicant:

1. The applicant considers that I refused to give the applicant more time to “make a response”. I understand this to relate to the two week period given to the applicant to respond to the letter from the respondent. During the case conference, I asked the applicant three times if he would like more time, but received no relevant response.

2. The applicant considers that I stated that the “tribunal has no jurisdiction over GIPA Act offences”. In the initial part of the case conference, the applicant made some unclear references to offence provisions in the GIPA Act. I drew the applicant’s attention to s 128(1) of the GIPA Act, which provides that offences may be dealt with summarily by the Local Court. It is unclear how this discussion could have any relevance to actual or apprehended bias.

17. The applicant established no basis for me to have recused myself from the case conference. Accordingly, the applicant’s application for me to recuse myself was refused.

Orders

1. 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: 21 April 2020