Cameron Hotels Pty Ltd v Liquorland (Australia) Pty Ltd

Texts Cited: None cited

Category: Principal judgment

Parties: Cameron Hotels Pty Ltd (First Applicant for Joinder)
Cape View Wholesale Pty Ltd (Second Applicant for Joinder)
Liquorland (Australia) Pty Ltd (First Respondent)
Independent Liquor and Gaming Authority (Second Respondent)

Representation: Counsel:
E Elliott (Applicants for Joinder)
N L Sharp SC (First Respondent)
Solicitors:
BSV Liquor and Gaming Lawyers (Applicants for Joinder)
JDK Legal (First Respondent)
Submitting appearance (Second Respondent)

File Number(s): 2026/00316005

Publication restriction: Nil

REASONS FOR DECISION

1. On 16 July 2026 the Tribunal made a decision to refuse applications for joinder made by Cameron Hotels Pty Ltd and Cape View Wholesale Pty Ltd (joinder applicants): Liquorland (Australia) Pty Ltd v Independent Liquor and Gaming Authority [2026] NSWCATAD 211.

2. The joinder applicants each sought to be joined as a party to administrative review proceedings in the Administrative and Equal Opportunity Division of the Tribunal in which Liquorland (Australia) Pty Ltd (“the respondent”) seeks review of a decision of the Independent Liquor and Gaming Authority (“Authority”) to refuse the respondent’s application for a packaged liquor licence made under the Liquor Act 2007.

3. The joinder applicants lodged a Notice of Appeal on 31 July 2026 seeking to appeal the Tribunal’s decision to refuse to join them as parties to the administrative review proceedings. These proceedings were listed before the Appeal Panel for an interlocutory hearing to consider whether the appeal is competent.

4. For the following reasons, we have decided that the joinder applicants do not have standing under s 80(1) of the Civil and Administrative Tribunal Act 2013 (“NCAT Act”) to internally appeal the Tribunal’s decision. As a result, the appeal is not competent and must be dismissed.

Material before the Appeal Panel

5. The Notice of Appeal lodged 31 July 2026 was before the Appeal Panel. The joinder applicants provided to the Appeal Panel and the respondent written submissions lodged 18 August 2026 and 3 September 2026. The respondent provided to the Appeal Panel and the joinder applicants written submissions lodged 27 August 2026 and 7 September 2026. Both the joinder applicants and the respondent made oral submissions at the hearing on 26 August 2026 and provided a bundle of authorities.

6. The Authority made a submitting appearance in these proceedings.

Do the applicants for joinder have standing to make internal appeal?

Submissions of the applicants for joinder

7. The joinder applicants submit the appeal is competent and contend they are “parties to the proceedings in which the decision is made” under s 80(1) in summary because:

8. they made an application for joinder that they were entitled to make which made them “subject to the Tribunal's jurisdiction as parties to the proceeding in which orders were made”;

9. they were necessarily each a party to proceedings in which an interlocutory decision was made to refuse their applications for joinder;

10. the “proceedings” referred to in s 80(1) of the NCAT Act include the interlocutory decision proceedings that determined their application for joinder on the basis of:

(a) the words “in which the decision is made” used in s 80(1); (b) the structure of the NCAT Act; (c) in the absence of a statutory definition of “proceedings”, “proceedings” can have a meaning that includes “interlocutory proceedings”, relying on Hartnett Legal Services Pty Ltd v Ballantyne (No 2) [2015] FCA 1027 at [11] and Victoria Legal Aid v The County Court of Victoria [2004] VSCA 113, where, in the latter decision proceedings for the setting aside of a subpoena in the context of a costs application were considered to be interlocutory proceedings; (d) interlocutory proceedings includes proceedings where the decision was made to refuse to join an applicant for joinder to proceedings that was an “interlocutory decision” within the definition prescribed by s 4 of the NCAT Act that includes “a decision made by the Tribunal under legislation concerning…the joinder or misjoinder of a party to proceedings” (at (g)); (e) the functions allocated to the Administrative and Equal Opportunity Division of the Tribunal include reference to the making of interlocutory decisions in cl 3(2)(b) of Sch 3 to the NCAT Act; (f) reliance on cl 9 of Sch 3 to the NCAT Act to support a submission that any application for the exercise of a function in the Administrative and Equal Opportunity Division of the Tribunal is a “proceeding” in itself, which includes the interlocutory decision sought by them. Clause 9 relevantly provides:

9 Rights of representation and appearance

(1) Despite section 45 of this Act, a party to proceedings for the exercise of a Division function is entitled to be represented by an Australian legal practitioner without requiring the leave of the Tribunal.

Note.

The leave of the Tribunal will, however, be required under section 45 of this Act in other cases.

…

(4) The following persons have a right to appear and be heard in proceedings for the exercise of a Division function for the purposes of the Government Information (Public Access) Act 2009—

(a) the Information Commissioner,

(b) the Privacy Commissioner,

(c) any person who could be aggrieved by a decision of the Tribunal on an administrative review on an application made under Division 4 of Part 5 of that Act.

(g) reliance on rr 36A and 41(1) of the Civil and Administrative Tribunal Rules 2014 (“NCAT Rules”) to support the joinder applicants’ submission “that an application for an interlocutory order is in itself a ‘proceeding’”.

4. The joinder applicants also submit they should be considered a party for the purposes of the NCAT Act by operation of r 27(b) of the NCAT Rules that relevantly provides:

The parties to proceedings for a general decision or administrative review decision are—…

(b) if an order or other decision is sought from the Tribunal in respect of a person or body (other than the applicant)—the person or body in respect of whom the order or other decision is sought,…

They relied on Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 879 (“Bauhaus”), a decision as to whether subpoena recipients who unsuccessfully claimed privilege were a party and as a party could be subject to a costs order regarding the privilege claim, in support of the joinder applicants’ interpretation of r 27(b) of the NCAT Rules. The joinder applicants also submitted that the term “party”, not defined in the NCAT Act, should be interpreted broadly, also relying on Bauhaus at [24]-[25].

8. The joinder applicants submit the decision of the Appeal Panel in Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182 (*“*Rice Marketing Board”) is distinguishable, essentially because:

9. the decision related to administrative review proceedings under the Government Information (Public Access) Act 2009 (“GIPA Act”) where there were particular rights for third party and other intervenors in the proceedings, with the result that such persons were not considered to be parties for the purposes of s 80(1) of the NCAT Act; and

10. the joinder applicants were not seeking to exercise any similar statutory right of participation in the administrative review proceedings to which joinder was sought.

11. The joinder applicants also referred the Appeal Panel to the definition of “decision” in the NCAT Act (s 5) that relevantly provides:

(1) In this Act, decision includes any of the following—

(a) making, suspending, revoking or refusing to make an order or determination,

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission,

…

(g) doing or refusing to do any other act or thing.

…

to support a submission that the refusal of the joinder applications was a decision for the purposes of the NCAT Act.

10. The joinder applicants also relied on JPMorgan Chase Bank National Association v Fletcher [2014] NSWCA 31 (“JPMorgan”) to support a submission that “party” under the NCAT Act should be interpreted widely, by analogy, citing a statement by Beazley P at [144]:

“The language of the provision as a whole must, of course, be considered. Thus, the rule provides that an order, that has been entered, may be varied if "given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order". It thus refers to "the absence of a party" and "the absent party". Although the language of "party" tends to suggest that the rule is directed to a party joined to the proceedings, there are sufficient occasions in the procedural legislation where that is not the case. Accordingly, the matter is not concluded by reference solely to the text of the provision.”

11. The joinder applicants submitted a number of absurdities would arise if they were not considered to be a “party to proceedings”. These included that if the joinder applicants were not each a “party” to proceedings they would not have a duty to cooperate with the Tribunal nor to give effect to the guiding principle, nor be required to comply with the directions and orders of the Tribunal under s 36(3) of the NCAT Act. Nor would the Tribunal be required to notify them of the decision, nor give reasons on the request of the joinder applicants.

Submissions of the respondent

12. While the respondent accepts the decision made by the Tribunal was an “internally appealable decision”, the respondent submits the joinder applicants do not have standing to make the appeal because neither is “a party to the proceedings in which the decision is made” within the meaning of s 80(1) of the NCAT Act.

13. The respondent submits that the “proceedings in which the decision is made” referred to in s 80(1) of the NCAT Act are the “underlying” proceedings in which administrative review is sought by the respondent, to which the joinder applicants sought to be joined, and in which the interlocutory decision to refuse the applications for joinder was made. The joinder applicants were never parties to those underlying proceedings.

14. The respondent contends the joinder applicants’ submissions are contrary to the Appeal Panel analysis set out in the decision of Rice Marketing Board, that was correctly decided and should be followed as a matter of comity (unless the decision was clearly wrong, which it is not).

15. The respondent submits the joinder applicants are each not a party within the meaning of any of the persons or bodies identified in r 27 of the NCAT Rules and that the joinder applicants are incorrect in their interpretation of r 27(b) of the NCAT Rules.

16. The respondent further submits that while “party” is not defined in the NCAT Act, s 44 of the NCAT Act provides for the joinder of parties to proceedings. The joinder applicants were not joined as parties to the proceedings and are therefore each not a party for the purposes of s 80(1).

Consideration

Law

17. Section 80 of the NCAT Act provides for the making of internal appeals relevantly as follows:

80 Making of internal appeals

(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made.

Note.

Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1).

(2) Any internal appeal may be made—

(a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and

(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.

…

18. Section 4 of the NCAT Act refers to s 32 of the NCAT Act for definitions of terms including "internally appealable decision" and s 32 of the NCAT Act provides:

32 Internal appeal jurisdiction of Tribunal

(1) The Tribunal has internal appeal jurisdiction over—

(a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and

(b) any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable for the purposes of this section.

(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its internal appeal jurisdiction—

(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,

(b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.

(3) However, the internal appeal jurisdiction of the Tribunal does not extend to—

(a) any decision of an Appeal Panel, or

(b) any decision of the Tribunal in an external appeal, or

(c) any decision of the Tribunal in proceedings for the exercise of its enforcement jurisdiction, or

(d) any decision of the Tribunal in proceedings for the imposition of a civil penalty in exercise of its general jurisdiction.

Note.

The decisions above may be appealable to the Supreme Court and, in some cases in relation to civil penalty decisions made by the Tribunal (whether under this Act or enabling legislation), the District Court. See section 73 and Part 6.

(4) An internally appealable decision is a decision of the Tribunal or a registrar over which the Tribunal has internal appeal jurisdiction.

(5) An internal appeal is an appeal to the Tribunal against an internally appealable decision.

19. Section 44 of the NCAT Act provides for the joinder and removal of parties to Tribunal proceedings, as well for certain persons to appear and be heard in Tribunal proceedings relevantly as follows:

44 Parties and intervention

(1) The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party.

(2) The Tribunal may order that a person be removed as a party to proceedings if the Tribunal considers that the person has—

(a) been improperly or unnecessarily joined, or

(b) ceased to be a proper or necessary party.

…

(4) The following persons may intervene and be heard in proceedings to which they are not already parties—

(a) the Attorney General,

(b) a Minister who administers the legislation that confers or imposes functions the exercise (or purported exercise) of which are in issue in the proceedings,

(c) any other person who is authorised by this Act, enabling legislation or the procedural rules to intervene in the proceedings.

…

20. Section 4 of the NCAT provides the following definition of “interlocutory decision”:

interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following—

(a) the granting of a stay or adjournment,

(b) the prohibition or restriction of the disclosure, broadcast or publication of matters,

(c) the issue of a summons,

(d) the extension of time for any matter (including for the lodgment of an application or appeal),

(e) an evidential matter,

(f) the disqualification of any member,

(g) the joinder or misjoinder of a party to proceedings,

(h) the summary dismissal of proceedings,

(h1) the granting of leave for a person to represent a party to proceedings,

(i) any other interlocutory issue before the Tribunal.

21. The principles of statutory construction to apply in this appeal are well settled and understood. We are required to give the text of s 80(1) of the NCAT Act its natural or ordinary meaning, taking into account the context and purpose of the legislation.

22. In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [78] the High Court stated (per McHugh, Gummow, Kirby and Hayne JJ):

“… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.” (citations omitted)

23. As set out by the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 (per Kiefel CJ, Nettle and Gordon JJ) at [14]:

“The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.” (citations omitted)

24. And further by Gageler J, in respect of context, (at [37):

“…The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility "if, and in so far as, it assists in fixing the meaning of the statutory text" Thiess v Collector of Customs (2014) 250 CLR 664 at 671 [22]; [2014] HCA 12, quoting Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519 [39]; [2012] HCA 55.”

25. For an internal appeal to be competent under s 80 of the NCAT Act, the appeal must:

26. be against an "internally appealable decision"; and

27. be brought by "a party to the proceedings in which the decision is made”.

Was the refusal of the application for joinder an “internally appealable decision”?

26. The parties agree the decision to refuse an application for joinder is an interlocutory decision of the Tribunal.

27. We also consider this is the case by operation of (g) in the definition of “interlocutory decision” in s 4 of the NCAT Act (set out at [20] above). The decision of the Tribunal to refuse the applications for joinder made by the joinder applicants was a decision “concerning the joinder…of a party to proceedings”. The decision was made in the administrative review proceedings in which the respondent seeks review of an administrative decision of the Authority. The Tribunal’s decision was to refuse the applications for joinder to those administrative review proceedings.

28. The decision was therefore an "internally appealable decision" for the purpose of s 80(1) of the NCAT Act.

Are the joinder applicants each "a party to the proceedings in which the decision is made"?

29. The joinder applicants each applied to be a party to administrative review proceedings between the respondent and the Authority in the Tribunal. The joinder applicants’ applications were refused. The joinder applicants never were, nor became, parties to those administrative review proceedings.

30. In our view, it follows that neither of the joinder applicants became “a party to the proceedings in which the decision was made” for the purposes of s 80(1) of the NCAT Act.

31. Our view is consistent with previous decisions of the Appeal Panel and the Tribunal. In Rice Marketing Board a non-party to the Tribunal proceedings below sought to bring an appeal in its own right. The non-party had a statutory right to appear and be heard in the Tribunal proceedings as a third party objector in respect of an application for access to information under the GIPA Act. The Appeal Panel dismissed the appeal which the non-party sought to bring on the basis that, as it was not a party to the proceedings below, it had no appeal rights and could not properly bring any appeal: Rice Marketing Board (at [32] and [74]). The non-party could be, and was, however, joined to two appeals that were each brought by a party in the proceedings: Rice Marketing Board (at [100]).

32. Both the observations of the Tribunal in CBL v Sydney Water Corporation [2016] NSWCATAD 287 at [20] that:

“One negative consequence of joinder is that a party may be liable for costs: NCAT Act, s 60. A positive consequence is that a party may be entitled to appeal: NCAT Act, s 80.”

and the Appeal Panel in Office of Environment and Heritage v Scenic NSW Pty Ltd [2019] NSWCATAP 87 at [16] that:

“If Ms Kirkby and Mr Gibbs had appeared and been heard in the first instance proceedings, they would not have had the right to appeal from the Tribunal’s decision, but they would have had the same right to appear and be heard on appeal.”

were agreed with by the Appeal Panel in Rice Marketing Board (at [65]).

33. Our view is also consistent with Keevers v Sarraf Property Group Pty Ltd [2022] NSWSC 1017 where the Court stated (at [81]-[83]):

“There is no specific provision in the NCAT Act that provides for an appeal to be brought by a party which was not a party to the proceedings in which the decision was made. Even a party which actively participated, made submissions to and was an intervenor in the proceedings, cannot be characterised as a party in the Tribunal proceedings below for the purposes of NCAT internal appeal rights under s 80 of the NCAT Act: Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182 at [74] per Armstrong P and Senior Member Britton (“Rice Marketing Board”).

This is consistent with the more general principle that an appeal cannot be brought by an entity which was not a party to the proceedings in which the impugned decision was made. This in turn is supported by the following principles: it is parties, and parties alone, which have standing to conduct and appear in proceedings: see Australian Railways Union v Victorian Railways (1971) 125 CLR 319 at 331 per Dixon J. Any person who had an interest in and could make themselves a party to proceedings, but knowing what was passing, was content to stand by and see the battle fought by somebody else in the same interest, should be bound by the result, and not be allowed to re-open the case (or, it follows, appeal from the result): Administration of Papua New Guinea v Daera Guba (1972) 130 CLR 353 at 456 per Gibbs J; Osborne v Smith (1960) 105 CLR 153 at 155 per Kitto J; Nana Ofori Atta II v Nana Abu Bonsra II [1958] AC 95 at 102; House of Spring Gardens Ltd v Waite [1991] 1 QB 241 at 252-253.

There are sensible practical reasons for this. They are that if it were otherwise, it would be possible for an entity which may have a practical interest in the outcome of proceedings (such as a lot owner in a strata scheme) to decline an opportunity to participate as a party to proceedings (and thereby avoid any potential exposure to an adverse costs order) but still be able to appeal from a decision in those proceedings (to which it was not a party).”

34. We think it appropriate to apply the same caution when considering the authorities relied on by the joinder applicants as to the meaning of individual words such as “party”, “decision” and “proceedings” as in Rice Marketing Board at [50]:

“Authorities that have considered the meaning of “party” have been decided under different statutory provisions or rules, including as to costs and standing to appeal in superior courts, should be regarded with caution in the statutory context of administrative review by the Tribunal under the GIPA Act (Yakmor v Hamdoush (No 2) [2009] NSWCA 284 at [41]), particularly given that the definition of “party” is enunciated in the NCAT Rules.”

35. We consider the text of s 80(1) of the NCAT Act to be clear. The persons who can bring an internal appeal under s 80(1) are required to be a party to the proceedings “in which” the decision, sought to be internally appealed, was made. The proceedings in which the decision was made in this case are the administrative review proceedings in which the respondent seeks review of a decision of the Authority. Only the respondent and the Authority have the capacity to bring an internal appeal to the Appeal Panel from a decision made in those proceedings. For example, either of those parties could internally appeal to the Appeal Panel under s 80(1) against an interlocutory decision joining the joinder applicants to the proceedings. The converse does not, however, apply. In short, s 80(1) does not permit an internal appeal by an unsuccessful joinder applicant against the adverse joinder decision.

36. We are unable to infer s 80(1) of the NCAT Act contemplates some other ‘proceedings within proceedings’ to which the joinder applicants were parties for the period their applications were being considered within the administrative review proceedings.

37. We also consider the clear text of s 80(1) to be supported by the context and purpose of the NCAT Act, where s 80 governs (and limits) who can bring an internal appeal and where not all decisions of the Tribunal may be the subject of internal appeal to the Appeal Panel (see for example cl 15 of Sch 3 to the NCAT Act). Further, s 44 of the NCAT Act both governs who may intervene in proceedings and empowers the Tribunal to determine who may be (or may no longer be) parties to proceedings, while r 27 of the NCAT Rules prescribes who may be a “party” to Tribunal proceedings.

38. We have analogous concerns to the Appeal Panel in Rice Marketing Board where at [73] the Appeal Panel stated:

“We are also conscious that conflating the participation right conferred by s 104(3) [of the GIPA Act] on a third party with the usual rights of parties would result in a potentially large number of third-party objectors having automatic “party” status and thus a right to appeal pursuant to s 80 of the NCAT Act. As the Tribunal indicated at [14] in CBL v Sydney Water Corporation [2016] NSWCATAD 287*,* the test for a “person aggrieved” for the purpose of s 104(3) is not an onerous one. We do not consider there to be any basis in the legislative scheme for applying the principles which govern the right to appear in Tribunal proceedings to party status.”

If the joinder applicants’ submissions were accepted, anyone who bears no connection to proceedings could make a baseless application to be joined to proceedings, be refused (as they must be) and then have a right to make an internal appeal to the Appeal Panel. We do not consider such a result is intended, nor would it be consistent with the objects of the NCAT Act (NCAT Act, s 3) nor the guiding principle (NCAT Act, s 36(1)).

39. We consider the applicants for joinder were only ever applicants for joinder to the administrative review proceedings in the same way as in Rice Marketing Board the non-party was only ever a third party objector with a right to appear and be heard in the GIPA Act proceedings. Unlike in Rice Marketing Board no other appeal proceedings currently exist to which the joinder applicants could seek to be joined.

40. It follows that we consider the joinder applicants do not have standing to bring an internal appeal under s 80(1) of the NCAT Act because neither are, nor were, a party to the administrative review proceedings in which the interlocutory decision (i.e. the decision to refuse the applications for joinder) was made. The appeal is therefore incompetent.

41. Further, the joinder applicants are not without remedy because they could seek judicial review in the Supreme Court (as contended at [26] of the respondent’s submissions and acknowledged at [29] of the joinder applicants’ first submissions).

Additional matters raised by the joinder applicants

42. For completeness we will also address matters raised by the joinder applicants as we consider may be relevant.

43. First, in respect of submissions as to r 27 of the NCAT Rules that provides:

“27 Parties to proceedings for general decision or administrative review decision

The parties to proceedings for a general decision or administrative review decision are—

(a) the applicant, and

(b) if an order or other decision is sought from the Tribunal in respect of a person or body (other than the applicant)—the person or body in respect of whom the order or other decision is sought, and

(c) if the Attorney General or another Minister intervenes in the proceedings under section 44 of the Act—the Attorney General or Minister, and

(d) any other person who is made a party to the proceedings by the Tribunal under section 44 of the Act, and

(e) any other person required to be joined or treated as a party to the proceedings by a Division Schedule for a Division of the Tribunal, enabling legislation or the procedural rules.

Note—

In proceedings for an administrative review decision, the administrator who made (or is taken to have made) the administratively reviewable decision concerned would be the person or body referred to in paragraph (b).”

The joinder applicants are not “the person or body in respect of whom the order or other decision is sought”. The joinder applicants sought an order from the Tribunal to be joined to the administrative review proceedings in which the respondent is the applicant and the Authority is the respondent, no order was sought from the joinder applicants.

44. We therefore cannot accept the submissions of the joinder applicants in respect of r 27(b) of the NCAT Rules. As the Appeal Panel has consistently considered, the effect of r 27(b) is to make the relevant decision maker (in this case the Authority) a party to administrative review proceedings. For example, in Jeray v Information and Privacy Commission [2024] NSWCATAP 239 at [70] the Appeal Panel stated:

“Rule 27(b), together with the note at the end of the rule, make it clear that the decision-maker who made the administratively reviewable decision that is the subject of proceedings for an administrative review must be a party to the proceedings.”

45. Further, in Clickcar Australia Pty Ltd v Secretary, Department of Customer Service [2025] NSWCATAP 79 at [56] the Appeal Panel observed:

“The note in r 27 of NCAT Rules mirrors the language of s 8(1) of the ADR Act, which defines an administrator to be the person or body that makes (or is taken to have made) the decision under enabling legislation that is administratively reviewable. The note therefore recognises that the proper respondent in proceedings for an administrative review can, at least in some cases, be a person or body that is taken to have made the decision concerned rather than the person or body that actually made the decision. This scenario routinely arises where a decision is made by a delegate of the repository of the power to make the decision.”

46. On that basis r 27(b) of the NCAT Rules does not assist the joinder applicants. Further, the Tribunal did not make an order joining the joinder applicants to the proceedings, therefore they are unable to rely on r 27(d) of the NCAT Rules. Indeed, the very inclusion of r 27(d) is further support for our view above.

47. Second, the joinder applicants’ submission based on JPMorgan is also not of assistance, given Beazley P also considered use of the word “party” could be different to use of the compound expression “party in the proceedings” within the relevant UCPR rule under consideration (discussed at [100]-[147]). At [107]-[108] Her Honour observed:

“If "party" was only used in this way, it would indicate that its meaning was confined to mean "party in proceedings". However, the respondents pointed out that there were other occasions in the Civil Procedure Act where the term "party" was not encompassed in the phrase "party in proceedings". Rather, it appeared on its own. They contended, therefore, that it was apparent that the meaning of the word extended beyond a party to a proceeding. The respondents referred to the Civil Procedure Act, s 28 and s 29 by way of example. Sections 28 and 29 are contained in Pt 4 "Mediation of proceedings", as are ss 26 and 27. The terms of ss 26 and 27 are referred to above. Section 28 provides:

"The costs of mediation, including the costs payable to the mediator, are payable:

(a) if the court makes an order as to the payment of those costs, by one or more of the parties in such manner as the order may specify, or

(b) in any other case, by the parties in such proportions as they may agree among themselves."

In my opinion, the reference to "the parties" in this rule can only mean the parties that the court has ordered to mediation, that is, the party to the proceedings. This is the natural sense of the rule. That meaning is confirmed by the terms of the Civil Procedure Act, s 98, considered below. If, as the respondents contended, "parties" meant persons who engaged in the mediation, it would not be a natural meaning of that word to encompass those persons in the phrase "the parties". That would also not be consistent with the language of s 98.”

48. Third, the joinder applicants referred the Appeal Panel to Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCATAP 24 and Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCA 327. Those decisions dealt with a matter where the appellant had applied to be joined to Tribunal proceedings, an application refused both at first instance by the Tribunal and by the Appeal Panel on internal appeal but was subsequently successful before the Court of Appeal. We observe neither the Court of Appeal nor the Appeal Panel proceedings appear to have heard argument on the issue of standing under s 80(1) of the NCAT Act. We therefore do not consider that judgment and that decision to be of assistance in these proceedings on the basis that correctness was assumed in those proceedings without argument: see CSR L**td v Eddy [2005] HCA 64; (2005) 226 CLR 1 at [13]. As recently stated by Leeming JA in Hanna v Commissioner of Police [2026] NSWCA 120 at [130] (Bell CJ and Ward P agreeing):”[d]ecisions are not authority for what they do not decide”.

Conclusion

49. The appeal is incompetent and must be dismissed under s 55(1)(b) of the NCAT Act.

Order

50. We make the following order:

51. The appeal is dismissed.

**********

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