FHP v Arys Health Pty Ltd (No 2)

"(1) To the extent leave is required in respect of the appeal concerning the order affecting the Second Respondent leave is refused and the appeal in respect of the Second Respondent is dismissed.

(2) In respect of the appeal from the order affecting the First Respondent, the appeal is stayed subject to the following directions:

a) The Appellant has a period not exceeding three months from the date of this decision to obtain the consent of the Supreme Court to the further progress of the appeal in respect of the First Respondent.

b) If the Appellant seeks an extension of the time limit of three months he must lodge an application for such extension before the expiration of three months from the date of this decision.

c) The First Respondent has leave to apply to the Appeal Panel for an order dismissing the appeal in the event that the Appellant does not obtain the consent of the Supreme Court.

d) Both the Appellant and the First Respondent have leave to apply to the Appeal Panel for further directions upon giving to the other party seven days' notice of such application.

e) The Registry is directed to list the appeal against the First Respondent for further directions or dismissal on a date approximately four months from the date of this decision.

(3) The Appellant's Applications for Miscellaneous Matters are dismissed."

1. On 27 June 2025 at 3:00 PM, the Appellant sent an email to the Appeal Registry attaching a document headed "Extension Time Application" dated 27 June 2025 (the 27 June 2025 FHP Application).
2. On 3 July 2025, the Appeal Panel constituted by myself made orders (the 3 July 2025 AP Orders) for submissions by the Appellant and the Second Respondent, and listing the 27 June 2025 FHP Application for hearing on 16 July 2025 at 9:30 AM.
3. On 15 July 2025, the Appellant lodged documents (the 15 July 2025 FHP Documents).
4. On 16 July 2025, the Appeal Panel constituted by myself made orders (the 16 July 2025 AP Orders) extending the time for submissions by the Appellant and the Second Respondent, and listing the 27 June 2025 FHP Application for hearing on 30 July 2025 at 9:30 AM as well as the following notation:

"3. The Appeal Panel notes that the Appellant has failed to provide satisfactory evidence that he has commenced proceedings in the Supreme Court of New South Wales seeking on order for leave to continue the appeal against the First Respondent Arys Health Pty Ltd. Unless the Appellant provides satisfactory evidence including a copy of a sealed summons or other originating process and any directions made by the Supreme Court of New South Wales at the adjourned hearing on 30 July 2025 at 9.30 AM, the Appeal Panel will give consideration to the dismissal of the balance of the Appeal pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW)."

1. On 30 July 2025, the Appellant made an application that I disqualify myself (the 30 July 2025 FHP Recusal Application). I dismissed the Application and indicated that I would provide written reasons. I then made orders to facilitate the hearing of the 27 June 2025 FHP Application (the 30 July 2025 AP Orders).

1. The Appellant relied on the following documents in support of the 30 July 2025 FHP Recusal Application which were admitted into evidence and marked:

(1) his Submission dated 22 July 2025 (the 22 July 2025 FHP Submission) (exhibit A1);

(2) his email sent to the Appeal Registry on 29 July 2025 at 4:53 PM (the 29 July 2025 FHP Email) (exhibit A2)

(3) the 15 July 2025 FHP Documents (exhibit A3);

(4) the Notice of Orders Made dated 22 July 2025 of the Supreme Court for proceedings with the case number "2025/00261282" and the case title "(FHP) v Arys Health Pty Ltd" (the 22 July 2025 SC Orders) (exhibit A4).

(1) his Submission dated 9 July 2025 in which he submits an extension of time under order 2(a) and (b) of the 1 April 2025 AP Orders should be granted (the 9 July 2025 FHP Submission);

(2) the Notice of Listing dated 8 July 2025 of the Supreme Court for proceedings with the case number "2025/00261282" and the case title "(FHP) v Arys Health Pty Ltd" (the FHP SC Proceedings) listing the matter for directions on 22 July 2025 (the 8 July 2025 SC Notice).

1. The 22 July 2025 FHP Submission comprises four pages, and three attachments being:

(1) the 8 July 2025 SC Notice;

(2) a copy of the first page of the Summons in the FHP SC Proceedings filed on 30 June 2025 headed "#Summons Commencing An Appeal (Part 50) # Summons Seeking Leave To Appeal (Part 50)" in which FHP is named as the Plaintiff, Arys Health Pty Ltd is named as the First Defendant and Baig Medical Services Pty Ltd is named as the Second Defendant, and refers to the 1 April 2025 AP Decision (the 30 June 2025 FHP Summons extract);

(3) another copy of the 30 June 2025 FHP Summons extract.

1. The 22 July 2025 FHP Submission is repetitive. The following extract reflects the substance of the 22 July 2025 FHP Submission:

"...

1. The applicant requests the G Blake AM SC, Principal Member, to remove him from this case, which concerns whether the Member erred in law resulting in procedural unfairness, bad faith, bias, and improper purpose during the hearing, unfairly prejudicing the applicant when he presented authentic evidence along with his submission on 9 July 2025, despite the Respondent's failure to follow to Directions 2 and 3 set by the Member.

...

5. At the hearing held on 16 July 2025, the Tribunal Member's Actions:

The applicant argues the Tribunal should have granted an extension of time, as there was no opposition and evidence of progress towards Supreme Court consent was provided.

b. Procedural unfairness, Bias, Improper Purpose and Warning:

The applicant claims the Member's warning of dismissal and failure to question the respondent's non-compliance with Orders 2 and 3, and refusal to address it during the hearing, constituted bias and bad intention. The applicant also alleges this protection of the respondent was due to their status as a "genocide contractor" and "organise the Insurer of the NSW Government Agencies," suggesting a governmental influence.

c. The Member incorrectly threatening the applicant

The Member demands the applicant provide him summons of the Supreme Court NSW proceeding which filed by the Applicant (or threatening) the applicant dismissed the case according to the Civil and Administrative Tribunal Act 2013 - SECT 55 (1) (b) that "Appeal Panel will give consideration to the dismissal of the balance of the Appeal pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW)":

"b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,"

d. Overall, the applicant was diligent in following the proper legal channels and was proactive in ensuring that all necessary documentation was properly served, reinforcing their intent to pursue the appeal in a responsible and transparent way.

...

7. Whether the Member erred in law that constituted procedural unfairness, bad intention, indicating bias and warning for improper purpose that resulted in the unfair treatment of the applicant during the hearing, who submitted authentic evidence with his submission on 9 July 2025, despite the Respondent's failure to follow to Directions 2 and 3 issued by the Member.

a. Whether the actions of the Member, in his capacity as the representative of the Respondent, and the erroneous conclusion regarding Direction 3, along with the neglect to address the Respondent's noncompliance, result in a perception of bias.

b. Furthermore, the applicant submitted a notice to the Supreme Court of NSW for consent to advance the appeal, which related to Direction 2 (b) from the Appeal Panel dated 1 April 2025, showing the applicant's active pursuit of the appeal.

c. While the Member of the Panel is not a party to the Supreme Court proceedings (or NCAT Management) or a decision maker of the proceeding in the Supreme Court NSW, consequently the applicant concerns about disclosing sensitive information if the appellant provides a full copy of the originating process. However, the Applicant provided first page of the Summons issued by the Supreme Court NSW the attached to this submission and Marked B"

1. The 29 July 2025 FHP Email comprises a covering message, and three attachments being:

(1) the 22 July 2025 FHP Submission;

(2) the 9 July 2025 FHP Submission;

(3) his letter dated 22 July 2024 addressed to the Executive Director and Principal Register of NCAT (which repeats the 22 July 2025 FHP Submission in a summary form together with a section headed "Current Circumstances (During the Adjournments of the Member on 16 July 2025)").

1. The 22 July 2025 SC Orders set out that the following orders and directions were made on 22 July 2025 in in the FHP SC Proceedings:

"1. Matter is listed for Directions (Common Law Registrar) on 27 August 2025.

2. Plaintiff to notify Defendant's of adjournment date and to provide any affidavit of service.

3. Plaintiff to consider UCPR 50.14 requirements.

4. Registry to send copy of orders to parties.

5. Note: If Defendants are in liquidation, any appropriate leave under Corporations Act may need to be sought in the Corporations List."

1. The principles with respect to apprehended bias are set out by Seiden SC DCJ in FZK v Secretary, Department of Communities and Justice [2025] NSWCATAP 120 (FZK) at [17]-[20], [30]-[34]. In this decision I have used the same abbreviations for authorities as used in FZK.
2. The principles with respect to apprehended bias include that unfavourable decisions against a party "are not, and can never be, without more sufficient to support or establish the existence or manifestation of an objective apprehension of bias": Dunstan v Orr [2022] FCA 1006 at [76] (Wigney J); citing Hamod v New South Wales (No 11) [2008] NSWSC 967 at [20] (Harrison J). This principle was expressed in the following terms by the New South Wales Court of Appeal (Gleeson and Stern JJA) in Mohareb v State of New South Wales (No 2) [2024] NSWCA 69 at [11] (citations omitted):

"... The mere fact that a judge has made an adverse decision or decisions against a party is not a sufficient reason for the judge to disqualify himself or herself from dealing with subsequent applications concerning the same party. That is the case even where, as here, the subsequent application is premised upon alleged "disregard, misrepresentation and/or deliberate misapprehension" of evidence or submissions, or of law or fact, on the part of the judge in the earlier decision which is said to be such that the orders were made "against good faith'. The test for apprehended bias is concerned with prejudice and partiality, not an individual litigant's expectations or predictions as to the outcome of a case."

1. As to the first step identified in Ebner, I accept that the Appellant has identified the matters he contends might lead me to decide the case other than on its legal and factual merits. They are my failure to grant the 27 June 2025 FHP Application on 16 July 2025 in view of his evidence when there was no opposition by the Second Respondent, and the notation in order 3 of the 16 July 2025 AP Orders.
2. As to the second step of the test articulated in Ebner, the Appellant has not identified the logical connection between any of the identified matters and the feared deviation on my part from the course of deciding the case on its merits.
3. It does not follow from any of the identified matters that I would not genuinely consider any legal and factual arguments of the Appellant in relation to the 27 June 2025 FHP Application.
4. For these reasons I dismissed the 30 July 2025 FHP Recusal Application.

1. I am not satisfied from the 30 June 2025 FHP Summons extract that the Appellant has commenced proceedings in the Supreme Court for leave to continue the appeal against the First Respondent as explained in the 1 April 2025 AP Decision at [35]-[46]. The heading "#Summons Commencing An Appeal (Part 50) # Summons Seeking Leave To Appeal (Part 50)" on the 30 June 2025 FHP Summons extract, which appears to be a reference to Pt 50 of the Uniform Civil Procedure Rules 2005 (NSW), if accurate, indicates that the Appellant has appealed against the 1 April 2025 AP Orders.
2. For this reason, I adjourned the hearing of to the 27 June 2025 FHP Application to 3 September 2025, and extended the time for compliance by the applicable parties with the 3 July 2025 AP Orders. This will give the Appellant the opportunity to tender the 30 June 2025 FHP Summons in full to demonstrate he is seeking an order under s 500(2) of the Corporations Act 2001 (Cth) or to adduce evidence that he has commenced proceedings in the Supreme Court seeking such an order. In the event that the Appellant fails to adduce evidence that he has commended proceedings in the Supreme Court for leave to continue the appeal against the First Respondent, the Appeal Panel will give consideration to the dismissal of the balance of the Appeal pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).

(1) The application of the Appellant that Principal Member G Blake AM SC disqualify himself is dismissed.

(2) The orders made by the Appeal Panel on 3 July 2025 are varied:

(a) the time for compliance with direction 1 is extended to 20 August 2025;

(b) the time for compliance with direction 2 is extended to 27 August 2025.

(3) The hearing of the Application of the Appellant made on 27 June 2025 for an extension of time under order (2)(b) made by the Appeal Panel on 1 April 2025 is adjourned to 3 September 2025 at 9:30 AM.

(4) The Appeal Panel notes that the Appellant has failed to provide satisfactory evidence that he has commenced proceedings in the Supreme Court of New South Wales seeking on order for leave to continue the appeal against the First Respondent Arys Health Pty Ltd. Unless the Appellant provides satisfactory evidence including a copy of a sealed summons or other originating process and any directions made by the Supreme Court of New South Wales at the adjourned hearing on 3 September 2025 at 9.30 AM, the Appeal Panel will give consideration to the dismissal of the balance of the Appeal pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

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.