FHP v Arys Health Pty Ltd (No 3)

Donna O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

EFQ (a pseudonym) v Medical Council of New South Wales [2021] NSWCA 167

FHP v Arys Health Pty Ltd [2025] NSWCATAP 66

FHP v Arys Health Pty Ltd (No 2) [2025] NSWCATAP 182

FHP v Arys Health Pty Ltd [2025] NSWCATAP 220

FZK v Secretary, Department of Communities and Justice [2025] NSWCATAP 120

Gillies v State of New South Wales (No 3) [2024] NSWSC 1058

Gillies v State of New South Wales [2025] NSWCA 98

Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

Publication or broadcast of the name of the Appellant is prohibited pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

[2024] NSWCATAD 27, [2024] NSWCATAD 280

1. This Decision is to be read with and uses the same abbreviations as in my decision on 31 July 2025: FHP v Arys Health Pty Ltd (No 2) [2025] NSWCATAP 182 (the 31 July 2025 AP Decision). The history of the appeal from 1 April 2025 to 31 July 2025 is set out in the 31 July 2025 AP Decision. This Decision assumes familiarity with my decision on 18 November 2024 in which I dismissed the applications of the Appellant for the joinder of Legal Aid NSW and the Turkish Consulate General, Sydney as respondents to the appeal: FHP v Arys Health Pty Ltd [2025] NSWCATAP 220 (the 18 November 2024 AP Decision).
2. On 21 August 2025, the Appellant lodged the following documents:

(1) Applicant's Outline of Submissions dated 21 August 2025 comprising 12 pages (the 21 August 2025 FHP Submission) and the following three attached documents:

(a) the document marked "A" headed "The Chronology relating to Legal Services and Power Attorney" (Attachment A);

(b) the document marked "B" headed "Chronology relating to Turkish Consulate and its Legal Advisor" (Attachment B);

(c) the document marked "C" headed "The chronology concerning the Tribunal French, Dr. Fukui, and Dr. M. Baig relates to the Applicant's attempts to obtain information from the NSW Police" (Attachment C);

(2) the 22 July 2025 FHP Submission.

1. The 21 August 2025 FHP Submission included the following applications:

(1) the application of the Appellant that I should disqualify myself (the 21 August 2025 FHP Recusal Application);

(2) the application of the Appellant for an adjournment of the appeal (the 21 August 2025 FHP Adjournment Application).

1. At the conclusion of the hearing on 3 September 2025 I dismissed the 21 August 2025 FHP Recusal Application, and indicated that I would provide written reasons.
2. I have decided to dismiss the 21 August 2025 FHP Adjournment Application and the 27 June 2025 FHP Application (in which the Appellant sought an extension of time to comply with order 2(a) of the 1 April 2025 AP Orders). It follows that I have dismissed the Appeal as against the First Respondent.

1. The Appellant relied on the following documents which I marked as follows:

(1) the 21 August 2025 FHP Submission together with Attachments A, B and C (exhibit A1);

(2) the 22 July 2025 FHP Submission (exhibit A2).

1. The Appellant made brief oral submissions in which he drew attention to particular paragraphs of the 21 August 2025 FHP Submission.

1. The Appellant in addition to the matters in the 22 July 2025 FHP Submission relied on the 18 November 2024 AP Decision and the conduct of the hearing on 30 July 2025 as the grounds for my disqualification. It was unclear whether the ground for the 21 August 2025 FHP Recusal Application was actual bias or apprehended bias or both.

1. The Appellant in the 21 August 2025 FHP Submission relevantly stated:

"...

3. Bias, Procedural Unfairness of the Tribunal Member Blake (Decisions in previous cases published on 18 November 2024

a. The application concerning the miscellaneous matters related the Applicant joinder applications:

...

b. On 18 November 2024, Tribunal Member Blake gave his ruling. The reasons given were inadequate. In paragraphs 23 and 24, he stated both applications were dismissed. He referenced his authority under 41 and 44(1) of the NCAT Act:

...

6. The hearing for the case took place on 30 July 2025.

a. On 22 July 2025, the applicant submitted his submissions and requested that G Blake AM SC, the Principal Member, remove him from this case. The Member denied this request with his Order, providing insufficient reasons for his decision, which were published on 31 July 2025.

b. The applicant restates its request, made on 22 July 2025 for G Blake AM SC, that he be removed from the proceedings on the ground that he had committed an error of law by reason of procedural unfairness, since the applicant had presented genuine evidence and facts. Moreover, the grounds of the decision of Member G Blake, published on 31 July 2025, are insufficient and constitute an incorrect application of the Ebner judgment

c. The applicant has established a logical connection between the issues he has presented and the Tribunal's decision to deviate from adjudicating a case based on its merits. The applicant clarified how the issues brought forth would result in the Tribunal making an unjust ruling instead of basing its decision on legal and factual merits.

7. The applicant has established a reasonable relationship between his problems and the Tribunal 's decision not to rule on the merits of the case. The applicant described how the concerns raised would have caused the Court to reach an incorrect decision instead of acting on the basis of its legal and factual considerations (legitimacy).

Here is a breakdown of the requirements of the Ebner test:

a. Step 1: Identification of the Issue:

...

iv. On 18 November 2024, Member G Blake provided an insufficient explanation (reasons) and denied the application regarding the miscellaneous matters associated with the Applicant's joinder requests. The Member did not permit the applicant to serve his application and obtain a reply from Legal Aid NSW, which currently functions as the Applicant's Legal Service and Power of Attorney regarding the applicant's cases and the Turkish Consulate General. The applicant refers to the previous paragraph 3. The Member misused NCAT Act s41(1)

v. During the hearing conducted on 30 July 2025 the applicant subjected ill treatment, procedural unfairness and bias

● At approximately 9:00 am, the applicant reached NCAT City Building Level 10 (the level of the NCAT Registry).

● The schedule displays the Applicant case set for 9:00 am in Room 10.4.

● The Candidate enters the room. The Member stated that the hearing is private and the Registry is not providing details about his case. The applicant exited the room.

● At this time see Duty Registrar Ms. Skinner in the common areas

● The Registry staff informed the applicant to go to case room 9.4 (level 9).

● Around 9:10 to 9:15 am, the Applicant entered Room 9.4.

● The Hearing Room staff there but Members not in the room.

● The Hearing Room staff informed the Applicant that the hearing would begin at 10:00 am.

● The Applicant inquired with the staff when the Members showed up and called him from the front of the door. The applicant positioned a seat in front of the doorway in the common areas.

● Around 9:45 am, the Applicant observed the Member initiating the hearing along with two other cases via video link. The hearing room staff did not call him, even though his case was scheduled for 9:00 am.

● In the hearing room, the applicant was present as an individual. Thus, the Tribunal initially examines the case of the applicant (precedent). However, the Tribunal denied the request and instructed him to remain in the room, or the Member informed the applicant that his case would be heard around 11:30am. The hearing schedule displays the applicant's case at 9:00 am.

● The applicant remains in the hearing room with the Member. Throughout this period, the applicant endured administered pain across all fingers and nail regions, accompanied by burning sensations (and paralysis), which led to muscle weakness, ulcer, inflammation, swelling, infection during this time, while monitoring CCIV in the hearing room. This amounts to ill treatment and punishment imposed by NCAT Management.

● Throughout this time, the Member finalized all remaining cases via video hearing.

● The Member begins to listen to the applicant cases.

● Throughout this period, the Member prevented the applicant from clarifying the situation in the Supreme Court and presenting his case. The Member requesting complete summons of the applicant's Supreme Court Application.

● The Member who repeated interruptions used both open and closed questions3 to sabotage the applicant's case. Constituted procedural unfairness in the hearing

● When the applicant departs the building in the lift accompanied by a Security individual and personnel from the NCAT Registry.

● The NCAT Management additionally restricted the applicant's access to the Tribunal records for an extended period.

● Furthermore, the applicant mentions both published and unpublished cases involving unrepresentative applicants, which relate to those individuals who failed to attend a hearing, (likely due to mistreatment), resulting in the dismissal of their case against a certain government agency.

3 with the Member repeatedly interrupting the applicant and using questioning techniques

...

12. Mistreatment (Ill Treatment) During the NCAT Hearing of the Case

See paragraph 8(a)(v) in the section

..."

1. The general principles applicable to a recusal application and the principles specific to a recusal application for actual bias have recently been set out by Deputy President Seiden SC DCJ in FZK v Secretary, Department of Communities and Justice [2025] NSWCATAP 120 (FZK v Secretary, DCJ) at [17]-[29]. I have used the same abbreviations in these reasons where I have referred to authorities set out in that decision.
2. In explaining how these principles should be applied, Deputy President Seiden observed in FZK v Secretary, DCJ at [37]:

"... the subjective view of the decision-maker is what is at issue in a case concerning actual bias. This may be determined objectively in the sense that surrounding factual circumstances may point to a decision-maker's state of mind; but that does not mean that a judge faced with a recusal application should not exercise some self-reflection."

1. The principles with respect to apprehended bias are set out in the 31 July 2025 AP Decision at [13]-[14]. I have used the same abbreviations in these reasons where I have referred to authorities set out in that decision.

1. Adopting the words of Garling J in Gillies v State of New South Wales (No 3) [2024] NSWSC 1058 at [84] (leave to appeal from which was refused: Gillies v State of New South Wales [2025] NSWCA 98), I do not accept that I am actually biased.
2. I do not consider that I have any preconceived ideas about the matters in issue in this appeal, or the Appellant, and consider myself to be open to persuasion.

1. I do not consider that an objective assessment of the 18 November 2024 AP Decision and the 31 July 2025 AP Decision demonstrates that I am so committed to a conclusion already formed in this appeal as to be incapable of alteration, whatever evidence or arguments may be presented.
2. The only matters in section 7av of the 21 August 2025 FHP Submission that relate to my conduct are the 15th, 16th and 17th bullet points. The Appellant adduced no evidence to establish the conclusions in these bullet points. In particular, the Appellant adduced no evidence that I used repeated open and closed questions "to sabotage" his case.

1. Having regard to the three steps identified by Hayne J in Jia Legeng, the Appellant's allegations fail in relation to all three steps. He did not demonstrate that I have an opinion on a relevant aspect of the matter in issue in the appeal, that I would apply that opinion to the matter in issue, and that I would do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case.
2. For these reasons, I rejected the 21 August 2025 FHP Recusal Application on the ground of actual bias.

1. I dismissed the 30 July 2025 FHP Recusal Application in the 31 July 2025 AP Decision.
2. In addition to the matters relied upon in making the 30 July 2025 FHP Recusal Application FHP relied on the 18 November 2024 AP Decision and the conduct of the 30 July 2025 FHP Recusal Application.
3. 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. They are also my dismissal of the application of the Appellant to join Legal Aid NSW and the Turkish Consulate General, Sydney as respondents to the appeal in the 18 November 2024 AP Decision. I have assumed that the Appellant also relies on the notation in order 4 of the 31 July 2025 AP Decision.
4. 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.
5. 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.
6. For these reasons I dismissed the 21 August 2025 FHP Recusal Application on the ground of apprehended bias.

1. Section 51 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) confers power on the Tribunal to adjourn proceedings. Pursuant to s 36(2)(a) of the NCAT Act the Tribunal when exercising this power is to seek to give effect to the guiding principle in s 36(1) to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
2. In Donna O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 (O'Neill) at [20]-[22], the Appeal Panel relevantly explained the principles to be applied in exercising the power to adjourn proceedings:

"[20] In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46, a unanimous High Court said:

"In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice."

[21] That approach is applicable in this Tribunal. Section 36(1) of the Civil and Administrative Tribunal Act 2013 ('the Act') is in relevantly identical terms to s 56(1) of the Civil Procedure Act 2005, the provision considered in the Expense Reduction decision.

[22] It follows that a number of principles apply to applications for an adjournment:

1. matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above,

2. an application for an adjournment should be seen as the exceptional rather than the ordinary course;

3. where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment."

1. The principles in O'Neill at [20]-[22] have been followed many times by subsequent Appeal Panels: see Alta Vale Residential Pty Ltd v The Owners - Strata Plan No. 95693 [2024] NSWCATAP 212 at [95] and the decisions referred to therein.
2. The Appellant in the 21 August 2025 FHP Submission relevantly stated:

"...

8. Applicant's Submissions and Supreme Court Consent for Appeal Progress for First Respondent

The Appeal process is ongoing, and the Applicant submitted three authentic proof documents from the proceedings in the Supreme Court of NSW

9. The First and Other Respondents Submissions

The first and second respondents did not submit written submissions and did not attend the hearings. Nor did the Tribunal address these issues with the NCAT Registry. Whether the NCAT Registry has failed to provide NCAT Appeal Panel decisions as of 1 April 2025 along with recent rulings and whether the decisions have been complied with?

..."

1. Having regard to the principles in O'Neill at [20]-[22], I am not satisfied that it is appropriate in giving effect to the guiding principle in s 36(1) to exercise the discretion under s 51 of the NCAT Act to adjourn the appeal for the following reasons:

(1) the Appellant has provided no adequate explanation for making the 21 August 2025 FHP Adjournment Application. In particular, the Appellant provided no satisfactory evidence that he has commenced proceedings in the Supreme Court seeking such an order under s 500(2) of the Corporations Act 2001 (Cth) against the First Respondent and the progress of any such proceedings.

(2) this is now the fourth occasion on which the 27 June 2025 FHP Application has been before the Appeal Panel. A timetable including for the lodgement and service of the Appellant's submissions and any evidence in support was made on 3 July 2025. Extensions of time for compliance with this timetable were made on 16 July 2025 and 30 July 2025. The failure of the Appellant to provide satisfactory evidence has occurred not only in circumstances of these extensions of time, but also in circumstances where the Appellant was informed of the importance and nature of satisfactory evidence in the notations in order 3 of the 16 July 2025 AP Orders and order 4 of the 31 July 2025 AP Decision. The matters set out in sections 8 and 9 of the 21 August 2025 FHP Submission do not provide any explanation for this failure;

(3) the Appellant has been aware of the necessity and had the opportunity since the 1 April 2025 AP Decision to obtain an order of the Supreme Court for leave to continue the appeal against the First Respondent or at least to have commenced proceedings in the Supreme Court for such an order.

1. For these reasons I have decided to dismiss the 21 August 2025 FHP Adjournment Application.

1. The relevant principles for the granting of an extension of time to appeal under s 41 of the NCAT Act are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [21] and [22]:

"[21] Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson quoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice.

[22] The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:

(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];

(2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7];

(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:

(a) The length of the delay;

(b) The reason for the delay;

(c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and

(d) The extent of any prejudice suffered by the respondent (to the appeal),

- Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and

(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]."

1. The New South Wales Court of Appeal has referred to Jackson at [22] and stated that the relevant principles to be applied are not controversial: EFQ (a pseudonym) v Medical Council of New South Wales [2021] NSWCA 167 at [17]- [19] (Bell P with Macfarlan JA at [78] and Brereton JA at [79] agreeing).
2. In Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 the New South Wales Court of Appeal dismissed the application of the respondent for an extension of time to cross-appeal against the judgment and orders of the District Court. The Court of Appeal (Basten JA with Hodgson JA at [1] and Ipp JA at [17] agreeing), after referring (at [55]) to the four general factors (which are set out in Jackson at [22(2)]), referred (at [56]) to the observations of Kirby J in Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 (Jackamarra) at [66(7)]:

"But they are by no means exhaustive. Several others have from time to time been thought relevant. These include whether the delay was intentional or contumelious; or merely the result of a bona fide mistake or blunder; and whether the delay is that of the litigant or of its lawyers, with which the litigant should not be saddled. It may also be relevant, where the default is that of a party's legal representatives, to take into account any considerations personal to the party which might have affected its ability to safeguard its own interests, for example, by applying pressure to its lawyers. Similarly, the extent to which any such prejudice may be remedied by an appropriate costs order is another consideration that has sometimes been treated as relevant."

1. I am satisfied that the principles in Jackson at [21] and [22] and Jackamarra at [66(7)] apply to the 27 June 2025 FHP Application.
2. Proceedings will be lacking in substance under s 55(1)(b) of the NCAT Act where they might be seen to represent a claim where the defendant could obtain summary judgment: BDK v Department of Education and Communities [2015] NSWCATAP 129 (BDK) at [63], [66].
3. Having regard to the principles in Jackson at [21] and [22] and Jackamarra at [66(7)], I am not satisfied that it is appropriate in giving effect to the guiding principle in s 36(1) to exercise the discretion under s 41 of the NCAT Act to extend the time to obtain the consent of the Supreme Court to the further progress of the appeal in respect of the First Respondent for the following reasons:

(1) the delay since 1 July 2025 is now substantial, being in excess of two months;

(2) the Appellant has provided no satisfactory explanation for the delay. I am not satisfied from the 8 July 2025 SC Notice and 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 is seeking leave to appeal from the Supreme Court on a question under s 83(1) of the NCAT Act against the 1 April 2025 AP Orders;

(3) the Appellant has adduced no material which establishes he has a fairly arguable case to obtain the consent of the Supreme Court under s 500(2) of the Corporations Act;

(4) the Appellant has provided no explanation, notwithstanding the notations in order 3 of the 16 July 2025 AP Orders and order 4 of the 31 July 2025 AP Decision, for failing to provide a full copy of the 30 June 2025 FHP Summons extract;

(5) the non-appearance of the First Respondent and the Second Respondent is of no relevance. It is Appellant who has the onus of establishing that an extension of time to obtain the consent of the Supreme Court to the further progress of the appeal in respect of the First Respondent should be granted.

1. Having regard to the principles in BDK at [63], [66], and in circumstances where the Appellant, notwithstanding the notations in order 3 of the 16 July 2025 AP Orders and order 4 of the 31 July 2025 AP Decision, has failed to adduce evidence that he is seeking an order under s 500(2) of the Corporations Act against the First Respondent including by providing 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, I have decided pursuant to s 55(1)(b) of the NCAT Act to dismiss the 27 June 2025 FHP Application as lacking in substance. If I had decided not to dismiss the 27 June 2025 FHP Application pursuant to s 55(1)(b) of the NCAT Act, I would have decided pursuant to s 55(1)(d) of the NCAT Act to dismiss the 27 June 2025 FHP Application for want of prosecution.
2. It follows that the appeal as against the First Respondent should be dismissed.

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

(2) The application of the Appellant that the Application of the Appellant made on 27 June 2025 for an extension of time to comply with order (2)(a) made by the Appeal Panel on 1 April 2025 is adjourned is dismissed.

(3) The application of the Application of the Appellant made on 27 June 2025 for an extension of time to comply with order (2)(a) made by the Appeal Panel on 1 April 2025 is dismissed.

(4) The appeal as against the First Respondent 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.