Zonnevylle v Secretary, NSW Department of Education

[2022] NSWCATAD 56

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Zonneyville v Secretary, NSW Department of Education [2022] NSWCATAD 56

Hearing dates:

20 December 2021

Date of orders:

20 December 2021

Decision date:

18 February 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R Perrignon, Senior Member

Decision:

1) The Applicant’s application for permission to record the case conference is declined.

2) The Applicant’s application for recusal is declined.

Catchwords:

PRACTICE AND PROCEDURE – directions hearing – request to record hearing on own device refused - recusal

Cases Cited:

Zonnevylle v NSW Department of Justice [2021] NSWCATAD

Category:

Procedural rulings

Parties:

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

Representation:

Applicant (Self Represented)
Crown Solicitor (Respondent)

File Number(s):

2021/00337143

Publication restriction:

None

REASONS FOR DECISION

1. On 19 November 2021, Mr Zonnevylle commenced these proceedings, seeking orders that the Department of Education grant him access to certain information under the Government Information (Public Access) Act 2009.

2. He appeared at case conference on 20 December 2021. The conference was conducted by telephone as part of the Tribunal’s response to the COVID-19 pandemic.

3. Pursuant to section 62 of the Civil and Administrative Tribunal Act 2013 (CAT Act), Mr Zonnevylle requests a written statement of reasons for certain decisions made at the case conference. Of the decisions listed in his request, only the following were in fact made:

1. Decision to decline his application for permission to record the case conference pursuant section 9(2)(a) of the Court Security Act 2005.

2. Decision to decline his application that I recuse myself.

4. The background to, and reasons for those decisions, are set out below. Mr Zonnevylle requested that the Information Commissioner appear. To assist Mr Zonnevylle in that regard, the respondent agreed to notify the Commissioner of the proceedings. I noted that agreement and, as is usual for proceedings of this kind, the Commissioner’s right to be heard in the proceedings. No decision was made in respect of the respondent’s agreement to inform the Commissioner.

Application for permission to record proceedings

5. Mr Zonnevylle initially applied for permission to record the proceedings. In the absence of any reasons in support, the application was declined.

6. He then indicated that he had submissions to make. I invited him to make them, revoked the order dismissing his application, and heard his detailed oral submissions. Submissions in reply were heard from Mr Bell for the respondent. Mr Zonnevylle was given the opportunity to make further oral submissions, and did so.

7. In summary, he submitted that in the past recordings made by the Tribunal had on occasion been of poor quality, that on one occasion a recording could not be found, that the making of a ‘back-up copy’ would ensure the recording remained available, that a fee was payable for recordings, and that there had been some delay in obtaining copies of recordings particularly as the postal service was used to deliver them. He pointed out that the objects of the Act were promoted by permitting parties to record, because it was quick and cheap to do so.

8. Mr Bell objected to the grant of permission, on the basis that there was no utility as the proceedings were being recorded by the Tribunal, that recordings are routinely made available to parties by the Tribunal, and on the basis of a written undertaking not to use the recording for any purpose but for the purposes of the proceedings.

9. Having considered the submissions of both parties, and the guiding principle under section 36, which is to facilitate the just quick and cheap determination of the real issues in the proceedings, I declined to exercise my discretion to grant permission, on the basis that the proceedings were being recorded by the Tribunal, that the recording would in all likelihood be made available to the parties in the normal course and on the usual basis, and that the written undertaking on which such recordings are usually provided is the appropriate basis for doing so.

10. Even accepting, without deciding, that there may have been quality issues with one or more recordings in the past, and that a recording may not have been found in one case, there was no evidence before me that this was likely to occur in these proceedings, or that there was a significant risk of it. I was not satisfied of either.

11. There is no necessity for the recording of case conferences, because no final determinations are made at such conferences. Only procedural directions are made, which the Tribunal can revoke or alter for good cause - on the application of a party or of its own motion - at any time before final determination of the proceedings. They are recorded for convenience, rather than as a matter of necessity.

Recusal application

12. Mr Zonnevylle applied for my recusal. No reasons were initially offered. I considered that the likely basis for the application was that I had decided to decline his application for permission. As Senior Member Ransome observed in Zonnevylle v NSW Department of Justice [2021] NSWCATAD at [11]:

“The fact that a decision-maker makes a ruling on a procedural issue against a party does not, without anything more, demonstrate that the decision maker does not bring an impartial mind to bear upon the determination of the substantive issues of the case.”

13. On that basis. the application was declined.

14. The applicant then sought to make oral submissions, which I heard. Doing my best to appreciate their meaning, it seemed that the recusal application was indeed based on the refusal to grant permission to record, both at the outset and after submissions were heard. As the declinature of his application for permission to record was not a proper basis for recusal, I confirmed that the recusal application was declined.

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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: 18 February 2022