Fahda v Ogungbeje

Background and procedural history

1. On 23 March 2023, the tenant lodged an application under the RTA in the Consumer and Commercial Division of the Tribunal. The application sought 23 orders under the RTA. We note that the tenant and the landlord have at all material times, including before us, been self-represented. We note that both tenant and landlord are natural persons.
2. The matter first came before the Tribunal on 19 April 2023. On that occasion, the matter was adjourned for a formal hearing and directions were made for the filing and serving of documents. The matter was listed for hearing on 13 July 2023.
3. When the matter came on for hearing on that date, the tenant failed to comply with the directions of the Tribunal in respect of the filing and serving of documents. As a consequence, the matter was adjourned and the Presiding Member ordered that the tenant, 'must appear in person on the next hearing'.
4. The matter was next listed for hearing on 6 September 2023.
5. On 5 September 2023 (one day before the listed hearing), the tenant lodged a 'request for permission to attend NCAT hearing by telephone or video'. On the same day, the Tribunal made an order declining the request on the basis that on the last occasion, being 13 July 2023, the Tribunal ordered that the tenant must attend in person at the next hearing.
6. Later, on 5 September 2023, the tenant lodged a further 'request for permission to attend NCAT hearing by telephone or video'. The Tribunal in its reasons of 6 September 2023 declined that request for the second time on the following basis: 1. On the last occasion (13 July 2023), the Tribunal member ordered that the applicant must appear in person at the next hearing. 2. The only contemporaneous medical evidence in support of the applicant's request is a medical certificate from Austral Doctor's Surgery dated 4 September 2023 stating that the applicant is 'unfit for work from 04/09/2023 to 06/09/2023 inclusive'. I am not satisfied that this supports the applicant's contention that the applicant is unable to attend the hearing.
7. When the matter came on for hearing on 6 September 2023, there was no appearance by either party. The Tribunal then dismissed the matter pursuant to s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).
8. The Notice of Order of 6 September 2023, records the following: On 06-Sep- 2023 the following orders were made: 1. The application is dismissed, because: * There is no appearance of either party by 09:30 AM. No satisfactory explanation for non-attendance has been given to the Tribunal. NOTE: The proceedings may be re-instated on the application of the Applicant under section 55(2) of the Civil and Administrative Tribunal Act 2013 if the Tribunal considers that there is a reasonable explanation for the failure to appear and the application is made within 7 days after the Tribunal dismissed the proceedings that are sought to be re-instated, rule 36, subject to any extension granted under section 41.
9. The tenant failed to file the application to reinstate the matter within time, being seven days. The application to reinstate the matter was not made until 9 October 2023.

Material on appeal

1. The Tribunal ordered on 13 December 2023 that the tenant lodge with the Appeal Registry and give to the landlord by 10 January 2024, in hard copy: 1. All the documents attached to the Notice of Appeal and all evidence given to the Tribunal at first instance on which it is intended to rely; 2. Any evidence not provided to the Tribunal at first instance in making the decision under appeal, on which it is intended to seek leave to rely; 3. The Appellant's written submissions in support of the appeal, which clearly set out the decision being challenged (that is, whether it is the decision to dismiss his application for non-appearance or the decision to refuse to reinstate the application or both, the questions of law said to arise from the decision(s), the errors on a question of law said to have been made by the Tribunal, the basis on which leave (permission) to appeal is sought and the reason(s) the Tribunal should grant leave to appeal if a basis for it is established and why the Tribunal should extend time for the appeal; and 4. If what happened at the hearing at first instance is being relied on by the Appellant in the appeal, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing.
2. The Tribunal extended the time for which the tenant was to file his material in support of the appeal. This was extended to 15 January 2024.
3. The tenant filed extensive documents and submissions on 15 and 16 January 2024. The landlord did not object to this material being received on appeal. We have decided to accept this material on appeal and have considered its contents.
4. The landlord on 29 January 2024 filed submissions and two documents. The first document was a receipt of payment to a locksmith. The second document was a copy of the landlord's bank statement which highlighted the payment of $400 to the tenant in respect of a refund of the bond. The tenant did not object to this material being received on appeal. We also accept this material on appeal.
5. In breach of the Tribunal's orders, the tenant filed on 29 and 30 January 2024 a vast amount of material including in electronic format. The sheer volume of this material was large and extensive. It consisted of over 70 documents or electronic files. Many of these files were extensive. To obtain even a passing familiarity with this material would take several hours and to read and digest such material in detail would take days.
6. The landlord, who was self-represented before us, opposed us receiving this material, stating, quite understandably, that he had not had the ability to read the material before the hearing of the appeal.
7. It is plain that for us to receive this material at the hearing of the appeal would result in the landlord being denied procedural fairness.
8. The orders of 13 December 2023 included as its first notation to those orders the following: (1) If a party does not lodge with the Appeal Registry and give to the other party documents, sound recording, and submissions as directed above, that party may not be allowed to rely on those documents, sound recordings and submissions at the hearing of the appeal.
9. The only way in which the rights of the landlord could be protected would be to grant a lengthy adjournment of the hearing of the appeal to allow the landlord to read and digest the material and respond to it in an orderly fashion for a subsequent hearing.
10. In our view, to take such a course would not be conducive to the just, quick and cheap disposal of the real issues in these proceedings.
11. During the hearing, the Appeal Panel indicated to the parties that we would permit the tenant to make his submissions and refer to such documents as he wishes and we would permit the landlord to respond to those submissions and then a decision would be made as to whether or not the documents filed after 16 January 2024 would be received by the Appeal Panel.
12. The tenant addressed the Appeal Panel extensively and for the vast majority of the 2.5 hours allocated for the matter. At times, the tenant referred to some of the material filed outside the Tribunal's timetable. The landlord addressed us briefly in oral addresses and remained opposed to us receiving the material filed late.
13. In all of the circumstances, we have decided not to permit the tenant to rely upon any of the material filed after 16 January 2024.

The reasons of the Tribunal

1. In respect of the application to extend time for the filing of the reinstatement application, the Tribunal stated that it considered s 41 of the NCAT Act and the principles set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson's case).
2. The Tribunal considered the tenant's reasons for failing to lodge the reinstatement application in time. The Tribunal noted the application was not made until 9 October 2023.
3. The Tribunal recorded that the tenant stated that the reason for the delay is 'severe medical relapse of crohn's and anxiety, in incomprehensible hardship and debt'. The Tribunal referred to the applicant's evidence in support which consisted of a medical certificate dated 7 September 2023, which stated: Mr Aiman Fahda has a medical condition [flaresup of Ulceraative Colitis, he has frequent diarrhea a day, abdominal spasm attacks] he will be unfit to attend court hearing in person, he's OK to attend online (virtual0, he is under treatment for the next two weeks.
4. The Tribunal accepted that the tenant is suffering from a serious medical condition, however, it noted, 'there is little evidence which supports the applicant's application to extend time for the making of the application due to his medical condition'. Accordingly, the Tribunal stated that it was 'not satisfied on the basis of the medical evidence that the applicant's medical condition prevented him from filing the reinstatement application in time.'
5. The Tribunal stated that it had considered the submissions filed by the tenant on 18 October 2023, which included four pdf files. The Tribunal stated that many of the documents attached to the pdf files could not be opened by the Tribunal.
6. The Tribunal nextly noted that the delay is significant and 'it is not supported by evidence'.
7. The Tribunal noted that the extension of time is opposed by the landlord.
8. The Tribunal referred to the landlord's submission as follows: The respondent states that the applicant has never appeared before the Tribunal since the matter was listed in March 2023. The respondent has appeared on each occasion before the Tribunal and this has impacted his work as he needs to apply for leave to attend the Tribunal on each occasion. The respondent states that the applicant failed to comply with the Tribunal's orders for the filing and serving of documents.
9. The Tribunal stated that it was not satisfied that the tenant had provided a reasonable explanation for his failure to comply with the Tribunal's directions.
10. The Tribunal also stated that it was not satisfied that the tenant had more than 'reasonable prospects of success in the application'.
11. The Tribunal also considered the tenant's explanation for his failure to attend the hearing on 6 September 2023. In this regard, it stated as follows: In the reinstatement application the applicant has provided a medical letter dated 7 September 2023 stating that due to the applicant's medical condition he is unable to attend a court hearing in person and that he is under treatment for the next three weeks. The medical evidence did not state that he was not able to attend the hearing on 6 September 2023 due to his medical condition. There is no explanation by the applicant as to why the medical certificate dated 7 September 2023 was not provided to the Tribunal prior to the hearing on 6 September 2023. … The Tribunal is not satisfied that the applicant provided a reasonable explanation for his failure to attend the hearing.

Scope and nature of appeals

1. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which may be argued as of right; or that permission (that is 'leave') to appeal should be granted to bring the appeal: NCAT Act, s 80(2).
2. Further, the exercise of a statutory discretion, such as whether or not to extend time for the filing of a reinstatement application under s 55(2) of the NCAT Act pursuant to the discretion under s 41 of the NCAT Act, may only be overturned in limited circumstances: House v The King (1936) 55 CLR 499 at 505 - 506.
3. In Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297, the Court of Appeal summarised the House v The King principles at [14] (Tobias AJA) and held that an attack on a discretionary decision must fail: … unless it can be demonstrated that the decision maker: (a) made an error of legal principle, (b) made a material error of fact, (c) took into account some irrelevant matter, (d) failed to take into account, or gave insufficient weight to, some relevant matter, or (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
4. In Cominos v Di Rico [2016] NSWCATAP 5 at [13], the Appeal Panel stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle in s 36(1) of the NCAT Act, it is appropriate for the Appeal Panel to review the appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal.
5. McCallum JA at Mendonca v Legal Services Commissioner [2020] NSWCA 84 held at [21] that: [T]here may be cases in which it is appropriate for the Court to give the correct legal construction to an arguable point poorly articulated by a self-represented litigant. However, the Court is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point.
6. We note the Appeal Panel has a discretion whether to grant leave under s 80(2) of the NCAT Act. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts.
7. It is enough as a summary to refer to the Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 where the Court said at [28] (citation omitted): Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.

Failure to consider all of the material before it as a result of being unable to open many of the documents attached to the pdf files filed by the applicant on 18 October 2023

1. Taking into account the fact that the tenant is self-represented, we interpret this submission to be to the effect that the Tribunal failed to afford the tenant procedural fairness. We accept that this raises a question of law and leave to appeal is not required: Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at 13.
2. In respect of the question of whether or not the tenant was denied procedural fairness, we note Gleeson CJ stated in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] … Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
3. In this regard we must have regard to the whole circumstances of the case (see National Companies & Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at [15] per Gibbs CJ where the ultimate question is whether the tenant has suffered any real detriment: see Simjanovska v Dogan [2023] NSWCATAP 69 at [98]; Commissioner of Police, NSW Police Force v Ireland [2024] NSWCATAP 1.
4. The substance of the tenant's submission was that the Tribunal failed to consider the documents he filed as to the reason for his reinstatement application being out of time, including, in particular, that he was advised that he could pursue a Notice of Appeal from the dismissal of 6 September 2023, which he commenced to do.
5. The tenant was given a Notice of Order by the Tribunal dated 10 October which included as order 1 the following: 1. The application to reinstate has not been made within 7 days of the dismissal of the proceedings. The parties are to address the issues of whether the Tribunal should grant an extension of time to make the application pursuant to section 41, Civil Administrative Tribunal Act 2013 in their submissions.
6. In response to order 1, the tenant filed seven pages. The first page consisted of five points made by way of submission as follows (in summary): 1. In accordance with free legal advice the tenant filed an appeal on 7 September 2023; 2. NCAT Appeals Registry advised the tenant he had an option to reinstate proceedings and over two weeks there were 'back and forth emails from 6 September onwards' (copies of emails were provided); 3. The tenant had medical issues preventing him from physical attendance for the period 4 - 6 September 2023 (medical certificate supplied); 4. The tenant had a pathology test on 6 September 2023 showing severe inflammation (copy of pathology test provided); and 5. The tenant had applied for virtual attendance with medical evidence in support, a copy of which was supplied.
7. In regard to submission (2), the tenant relied on communication from NCAT Appeals Registry dated 22 September 2023 which advised that in respect of the tenant's application for a waiver for the filing fee on his Notice of Appeal, the tenant may wish to consider filing a reinstatement application. Otherwise, the Registry advised that if the Notice of Appeal was to be proceeded with and if the tenant was in receipt of a pension, the tenant would be eligible to pay the reduced fee of a $122.
8. We were informed by the tenant on the hearing of the appeal that no fee was paid and accordingly the Notice of Appeal was not proceeded with.
9. In respect of submission (3), the tenant relied, firstly, upon the medical certificate of 7 September 2023 which was quoted by the Tribunal below in its reasons. Secondly, the tenant relied upon the medical certificate dated 4 September 2023, stating that the tenant was not fit for work from 4 September to 6 September inclusive. This certificate was referred to by the Tribunal in its reasons for dismissing the proceedings on 6 September 2023.
10. In respect of submission (4), the tenant tendered a pathology report dated 6 September, which showed that the tests done on 6 September showed 'the setting of infection'.
11. In respect of submission (5), the tenant tendered a medical certificate dated 16 August 2023 stating that the tenant has a chronic medical condition which means he is 'going to benefit from taking 10 - 40 mins break when needed'.
12. It is not clear to us that the Tribunal did not in fact consider any of these documents. For example, it is plain that the medical certificate of 7 September 2023 was considered by the Tribunal. We note that in the application for reinstatement the explanation for not lodging the application in time was as quoted by the Tribunal in its reasons. There was no mention of the attempt to appeal the dismissal of 6 September 2023. We further note, that with the consent of the tenant the Tribunal dealt with the reinstatement application on the papers.
13. Accordingly the Tribunal may not have referred to the attempt to lodge an appeal because this was not one of the grounds given for filing the application out of time.
14. For the purposes of the appeal, we will assume that the Tribunal did not consider the submissions made and overlooked the seven pages of evidence and submissions we have summarised above.
15. In our view, this material does not provide a reasonable explanation for the failure to file the reinstatement application in time.
16. The Notice of Order of 31 October 2023, which the tenant does not dispute he received, clearly states that any reinstatement application has to be made within seven days. The tenant in oral addresses to us sought to say that he had not noticed such statement.
17. In the absence of clear evidence before the Tribunal of such a matter, which would require the grant of leave to introduce such new evidence, we are not prepared to place much weight on such mere assertion.
18. In our view, it would appear that the tenant took the view that appealing the decision of 6 September 2023 would be the preferable course to that of seeking to file a reinstatement application. Different principles apply to a reinstatement application to that of an appeal from a dismissal. However, having made that tactical decision, the tenant then decided to change course in order to avoid paying the filing fee.
19. In our view, this does not provide for a reasonable explanation for the failure to file the reinstatement application within time.
20. Otherwise, the medical evidence referred to above does not cause us to have any doubts about the conclusion of the Tribunal that the medical evidence does not provide a reasonable explanation for the failure to file the application within time.
21. Accordingly, we are not satisfied that any failure to consider these submissions and evidence caused the tenant to suffer any real detriment or practical injustice. In conclusion, we reject this ground of appeal.

The discretion to extend time miscarried

1. The tenant made a number of broad submissions that can in summary be described as an attack on the discretion exercised by the Tribunal not to extend time pursuant to s 41 of the NCAT Act.
2. Under s 55(2) of the NCAT Act, if the Tribunal considers that there is a reasonable explanation for the failure to appear and the application is made within seven days after the Tribunal dismissed the proceedings that is sought to be reinstated, the proceedings may be reinstated (see rule 36 of the Civil and Administrative Tribunal Rules 2014 (NSW)). Power exists to extend the time under s 41 of the NCAT Act.
3. The discretionary power to grant an extension of time under s 41 of the NCAT Act is unfettered but it must be exercised judicially and having regard, among other things, to s 36 of the NCAT Act and the need 'to facilitate the just, cheap and quick resolution of the real issues in the proceedings'.
4. The relevant principles which generally inform the exercise of the discretion to extend time under s 41 of the NCAT Act were set out in Jackson's case at [22]. Relevant factors to consider include length of the delay, the reason for the delay, whether the applicant has a fairly arguable case and the extent of any prejudice suffered by the respondent.
5. The party seeking an extension of time bears the onus of demonstrating that strict compliance with the time frame would work an injustice: see Gallo v Dawson (1990) 93 ALR 479.

Insufficient weight given to the medical evidence

1. The first category of submissions relevant to this overall ground of appeal can be summarised as follows: 1. The Tribunal incorrectly interpreted or failed to place sufficient weight on, his medical suffering; 2. The Tribunal 'did not appreciate the hardship, struggles, sufferings, hospitalisations, medical visits, chronic sufferings, daily struggles to make ends meet as a tenant, to be depressed, and having to muster up the courage to battle the oppression'; 3. The Tribunal failed to consider the medical certificate of 4 September 2023 which stated that the tenant has a medical condition and 'will be unfit for work from 04/09/2023 to 06/09/2023 inclusive'.
2. As we understand these submissions, the tenant seeks to challenge two conclusions of the Tribunal in respect of the medical evidence as follows: 1. The Tribunal is not satisfied on the basis of the medical evidence that the applicant's medical condition prevented him from filing the reinstatement application within time. 2. The Tribunal is not satisfied that the applicant has provided a reasonable explanation for his failure to attend the hearing and comply with the Tribunal directions.
3. In our view, this does not raise any question of law and leave to appeal would be required.
4. First, we note that the Tribunal stated that it 'accepts that the applicant is suffering from a serious medical condition, however, there is little evidence which supports the applicant's application to extend the time for the making of the application due to his medical condition'.
5. In our view, this conclusion and the Tribunal's conclusion that it was not satisfied on the basis of the medical evidence that the tenant's medical condition prevented him from filing the reinstatement application within time was reasonably open on the evidence. We are not satisfied that the Tribunal failed to appreciate the seriousness of the tenant's medical condition.
6. We note that when the application of the tenant was dismissed on 6 September 2023 for a lack of appearance by either party, the Tribunal in its Notice of Order stated the following: The only contemporaneous medical evidence in support of the applicant's request is a medical certificate from Austral Doctor's Surgery dated 4 September 2023 stating that the applicant is 'unfit for work from 04/09/23 to 06/09/23 inclusive'. I am not satisfied that this supports the applicant's contention that the applicant is unable to attend the hearing.
7. It was in the context of the above statement in the Notice of Order for dismissal of the tenant's application that the Tribunal on 31 October 2023 referred to the medical letter dated 7 September 2023 as to the tenant's medical condition for the next two weeks. The Tribunal stated that this medical evidence was not relevant to the question as to whether or not the tenant was able to attend the hearing on 6 September 2023 due to his medical condition.
8. In our view, it is plain that the Tribunal on 31 October 2023 was considering the question of whether or not there was evidence in addition to that considered by the Tribunal on 6 September 2023 which would justify a different conclusion to that reached by the Tribunal on 6 September 2023.
9. In other words, the approach by the Tribunal on 31 October 2023, not being constituted as an Appeal Panel looking to appeal the decision of 6 September 2023, was to consider whether or not on the basis of new and further evidence there was any reasonable explanation for failing to attend on 6 September 2023.
10. Such an approach, in our view, does not constitute a failure to take into account a relevant consideration, being the evidence that was already before the Tribunal on 6 September 2023, which it regarded as inadequate to explain the failure to attend.
11. Further and in any event, the conclusion of the Tribunal on 6 September 2023 that there was insufficient evidence to justify the tenant's inability to attend the hearing was also open on the evidence before the Tribunal.
12. In conclusion, the conclusions of the Tribunal that it was not satisfied that there was a reasonable explanation for the tenant's failure to attend the hearing or that the medical evidence was not able to satisfy the Tribunal that the tenant was prevented from filing the reinstatement application with time was open on the evidence before the Tribunal below and the Tribunal did not fail to take into account relevant matters.
13. Accordingly, we declined to grant leave to appeal in respect of this ground of appeal or contention.

The Tribunal ought to be satisfied that the tenant had more than reasonable prospects of success in the application

1. The tenant made extensive submissions going to the importance of his claim and the strength of his claim against the landlord.
2. In our view, this does not raise any question of law and leave to appeal would be required.
3. The material does not in any way demonstrate that the conclusion of the Tribunal that it was not satisfied that the tenant had more than reasonable, prospects of success in the application was wrong.
4. Accordingly, we declined to grant leave to appeal in respect of this ground of appeal or contention.

The decision not to extend time for the filing of the reinstatement application was unreasonable

1. In a generalised sense, it is plain that the tenant feels that the Tribunal's decision was so unreasonable or unjust as to suggest that error had occurred even though the error in question did not explicitly appear on the face of the reasons. We are prepared to assume, without deciding the matter, that this raises a question of law.
2. First, the Tribunal stated, 'the delay is significant' and that the reason for failing to file within time was 'not supported by evidence'. In our view, this was a reasonable factor to take into account.
3. The Tribunal was not satisfied that there was more than reasonable prospects of success in the application. As stated above, this conclusion was reasonably open to the Tribunal and was a valid matter to consider in the application to extend time.
4. The Tribunal was not satisfied that the tenant had provided a reasonable explanation for his failure to attend the hearing and comply with the Tribunal's directions. As stated above, such conclusion was reasonably available to the Tribunal. In our view, this is a relevant consideration on the application for extension of time.
5. Lastly, the Tribunal considered the prejudice to the landlord and the fact that the respondent had appeared on each occasion before the Tribunal and that this had impacted his work, as he needed to apply for leave to attend the Tribunal on each occasion.
6. In our view, such a factor reasonably also supports the conclusion reached by the Tribunal not to extend time.
7. In conclusion, we are not satisfied that the result arrived at was so unreasonable or unjust as to suggest that the Tribunal had fallen into error.
8. Accordingly, we reject this ground of appeal.

The Tribunal was biased

1. According to the tenant the Tribunal showed 'immense bias and lack in partiality'. Submissions in support were put forward. We accept that this ground raises a question of law.
2. The thrust of the submissions, as best as we can understand them, is that the tenant is of the view that the decisions of the Tribunal demonstrate priority being given to the landlord in a way which was 'cruel and unfair' and of itself demonstrates bias and lack of impartiality.
3. In our view, there is no substance to this claim.
4. For the reasons we have indicated above, there is no basis for suggesting that the Tribunal by its decision of 31 October 2023 was biased or lacked impartiality.
5. Accordingly, we reject this ground of appeal.

The Tribunal failed to provide proper reasons

1. The tenant submitted that the reasons of the Tribunal were inadequate, but no more substance was given to this submission. We are prepared to assume, without deciding the matter, that this raises a question of law.
2. At best, some of the submissions in support canvas the issues we have already dealt with above. Otherwise, no further submissions gave any further content or substance to this ground of appeal.
3. In our view, the reasons given by the Tribunal were adequate. The reasons dealt with the relevant evidence, referred to the applicable law and legal principles, applied the law and indicated in sufficient detail the reasons for its conclusion.
4. Accordingly, we reject this ground of appeal.

Disposition

1. The orders of the Appeal Panel will be: 1. Leave to appeal refused. 2. Appeal 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 February 2024