1. In the context of an application to admit further evidence in a review proceeding which was not before the original decision-maker, the High Court of Australia stated in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 at [14]- [15]:

The question for determination by the AAT on the review of an administrative decision under s 25 of the AAT Act is thus whether the decision is the correct or preferable decision. That question is required to be determined on the material before the AAT, not on the material

as it was before the original decision-maker. As Bowen CJ and Dean J held in Drake v Minister for Immigration and Ethnic Affairs, however, and has since been affirmed by this court in Shi v Migration Agents Registration Authority, the AAT is not at large. It is subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision.

Depending on the nature of the decision the subject of review, the AAT may sometimes take into account evidence that was not before the original decision-maker, including events subsequent to the original decision. But subject to any clearly expressed contrary statutory indication, the AAT may do so only if and to the extent that the evidence is relevant to the question which the original decision-maker was bound to decide; really, as if the original decision-maker were deciding the matter at the time that it is before the AAT. The AAT cannot take into account matters which were not before the original decision-maker where to do so would change the nature of the decision or, put another way, the question before the original decision-maker.

1. The relevant provision in the NTCAT Act relating to the admission of further evidence in the exercise of the Tribunal's review jurisdiction is, as has been noted above, section 46(2), which provides:

(2) A proceeding in the Tribunal's review jurisdiction will include:

(a) an examination of the evidence or the material before the decision-maker, and

(b) a consideration of any further evidence or material that the Tribunal decides, in the circumstances of the particular case, to admit for a rehearing.

1. In Lock the Gate Alliance Ltd v Minister for Lands, Planning and Environment; Imperial Oil and Gas A Pty Ltd [2025] NTCAT 12, the Tribunal held at [14]:

Two conclusions may be drawn from the wording of section 46(2)(b) of the NTCAT Act. First, the inclusion of the words "in the circumstances of the particular case" evidence the fact that the Tribunal's decision to admit further evidence or material is not 'at large'. Secondly, the admission of further evidence or material is in the discretion of the Tribunal, which discretion is to be exercised with reference to the relevant provisions of the NTCAT Act, the Act or subordinate legislation that confers jurisdiction on the Tribunal, and any relevant case law.

1. Quall submits that the documents he seeks to have admitted are relevant to the issues in dispute in the review proceedings. Quall refers to the three documents noted at [4.1]-[4.3] above collectively as the 'Cultural Significance Documents'.[7]

We submit that the Cultural Significance Documents are relevant to the issue of whether the DHA were "reckless" as they demonstrate that DHA were aware of the cultural significance of both the area in Stage 2 and the surrounding area of Lee Point, and therefore aware of the risks involved in failing to meet the preconditions of the Permit.[8]

1. The fact that DHA was aware of both the Plibersek Decision and the Terra Rosa Assessment, Quall submits, is evidenced by a letter dated 25 June 2024 from DHA to the DCA in response to the complaint lodged with the DCA by the Applicant. The 25 June 2024 letter is in evidence in the review proceedings. Neither the Plibersek Decision nor the Terra Rosa Assessment were provided to the DCA. This notwithstanding, Quall submits that the representations of DHA concerning such documents were made to the DCA and such representations made by DHA were relied upon by the DCA in coming to its decision.
2. The DCA objects to the admission of the Cultural Significance Documents on relevance grounds.

The issue is not whether "Lee Point" generally has cultural significance. The issue is the premature clearing of land where DHA would have been lawfully permitted to clear had they met the necessary conditions precedent. There is no evidence whatsoever that there is some area of cultural significance within the area which was cleared. The materials sought to be relied upon by Mr Quall are entirely irrelevant.[9]

1. To be admissible in a proceeding, whether in the Tribunal's original or review jurisdiction, evidence must be relevant to an issue in the proceeding. While the Tribunal is not bound by the rules of evidence,[10] evidence that is not relevant to an issue in the proceeding does not assist the Tribunal in coming to a decision. Further, the consideration of irrelevant evidence prolongs proceedings and may increase costs, both of which are contrary to the Tribunal's objectives.[11] It follows, therefore, that only relevant evidence

should be admitted in a proceeding. 2. To be relevant, the evidence sought to be admitted "requires a minimal probable connection between the evidence and the "fact in issue"".[12] The evidence,

need not render a "fact in issue" probable, or "sufficiently probable" - it is enough if it only makes the fact in issue more probable or less probable than it would be without the evidence - ie it "affects the probability".[13]

1. In these proceedings, facts in issue are whether the DHA intentionally used or developed land within the meaning of section 75B(2)(a) of the Planning Act 1999, or intentionally engaged in conduct within the meaning of section 75C(2)(a) of the Planning Act 1999. The Tribunal is satisfied that there is at least a minimal probable connection between the Plibersek Decision and the Terra Rosa Assessment and these facts in issue. In particular, the Tribunal is satisfied that such evidence sought to be admitted by Quall makes the issue of recklessness on the part of DHA "more probable or less probable than it would be without the evidence";[14] a matter which will be addressed in greater detail at the hearing of the substantive issues.
2. The Plibersek Decision and the Terra Rosa Assessment were available at the time the DCA was investigating the complaint lodged by the Applicant. Reference was made to both documents in evidence before the DCA, and the DCA could have accessed such evidence had it chosen to do so. The fact that the DCA, for whatever reason, decided not to consider the evidence is not a bar to a consideration of the evidence by the Tribunal.
3. The Abstract and Site Information prepared by the Aboriginal Areas Protection Authority dated 8 January 2025 falls into a different category. It was not in existence at the time of the breach by DHA or when the decision on the Applicant's complaint was made by the DCA. Contrary to Quall's submission referenced at [18] above, such evidence cannot "demonstrate that the DHA were aware of the cultural significance of both the area in Stage 2 and the surrounding area of Lee Point"[15] because the document was not in existence at the time of DHA's breach. The document is not relevant to the determination of a fact in issue in the proceeding.
4. In the exercise of its discretion to admit further evidence or material

pursuant to section 46(2)(b) of the NTCAT Act, the Tribunal allows into evidence the following documents: * 26.1. Statement of Reasons for Decision prepared by the federal Minister for the Environment and Water dated 28 March 2024; * 26.2. Cultural Heritage Assessment on the Lee Point Project Area prepared by Terra Rosa Consulting dated December 2023. 5. The Tribunal does not admit into evidence the Abstract and Site Information prepared by the Aboriginal Areas Protection Authority dated 8 January 2025. Such evidence is not relevant to a fact in issue in the proceeding.

1. The contested evidence the Applicant seeks to have admitted consists of four Unattested Declarations of individuals who were eyewitnesses to the clearing works conducted by DHA's subcontractor. The Applicant maintains that, as a consequence of their attendance at the site on 30 April 2024, the evidence contained in the Unattested Declarations are directly relevant to the requisite mental elements contained in sections 75B(2)(a) and 75C(2)(a) of the Planning Act 1999.
2. The DCA submitted that:

It is accepted by all parties that DHA's contractor cleared an area of land prematurely, before the CEMP and ESCP had been prepared/submitted and 'approved'. This is not in dispute and does not require further evidence or argument.[16]

1. In addition, the DCA maintains that the evidence provided in the Unattested Declarations does not address any issue in dispute in the proceedings. Consequently, the evidence sought to be admitted is irrelevant and inadmissible. Finally, the DCA notes that, in its case management orders, the Tribunal directed the Applicant to file any evidence upon which it intended to rely by 16 May 2025. The Unattested Declarations were not filed until 23 June 2025 and are therefore out of time.

1. Dealing first with the Respondent's submission that the Unattested Declarations filed by the Applicant are out of time, the Tribunal accepts that in this regard the Applicant failed to adhere to the case management order made by the Tribunal. Such orders are made, inter alia, to ensure that "proceedings are processed and resolved as quickly as possible while receiving a just outcome" in accordance with section 10(d) of the NTCAT Act.
2. The Tribunal is cognisant of the fact, however, that the Applicant is a community organisation. Further, the Applicant is not represented by a lawyer. While non-compliance with a Tribunal order is not a matter to be taken lightly, the NTCAT Act does provide in section 53(3) that the:

Tribunal may accept any document into evidence despite any non-compliance with a time limit or other requirement this Act or the relevant Act relating to the document or the service of the document.

1. In addition, section 53(2)(d) provides that the Tribunal,

must ensure, so far as is practicable, that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all relevant facts.

1. If the evidence proffered by the Applicant is relevant to a fact in issue in the proceeding, which is discussed below, the Tribunal may receive it notwithstanding the Applicant's failure to adhere to the case management order for the exchange of evidence. The circumstances of this case warrant the application of sections 53(2)(d) and 53(3) of the NTCAT Act. The failure to comply with the Tribunal's order relating to the exchange of evidence is not a bar to the admission of the Unattested Declarations.
2. Turning to the issue of relevance, the Unattested Declarations of Jessica Black, Ian Redmond and Graeme Sawyer contain observations which, if accepted by the Tribunal at the hearing of the substantive issues, could affect the probability of a fact in issue in the proceeding. In particular, the evidence could be of assistance to the Tribunal in its consideration of the questions noted at [12.1]-[12.2] above.
3. The Tribunal finds that there is a minimal probable connection between the evidence of Black, Redmond and Sawyer and a "fact in issue"".[17] Further, such evidence was available to the DCA at the time it conducted its investigation had the DCA investigators consulted with members of the Applicant who were at the Lee Point site on 30 April 2024.
4. The evidence of Dr Fitzsimmons does not pass the relevance test and is not admissible. Her evidence focuses generally on the way the Lee Point site was managed on 30 April 2024 and does not assist the Tribunal in its consideration of the questions noted at [12.1]-[12.2] above.

1. Section 93 of the NTCAT Act allows for the Tribunal's inspection of the Lee Point site if such an inspection is "relevant to a proceeding". At the Directions Hearing, the Applicant submitted that such an inspection would assist the Tribunal in answering the questions at issue in these proceedings.
2. The DCA submits:

With respect to the limited matters in dispute, a view would not

assist the Tribunal to resolve any issues of fact or understand the evidence. Evidence is already available as to the area which was cleared prematurely. There is no reason why FOLP [the Applicant] cannot refer to these maps in oral submissions. No reason has been provided why a site inspection would be of any greater assistance to the Tribunal in determining the matter. Rather, the site inspection would likely result in an undue waste of time for no benefit.[18]

1. The Tribunal agrees with the DCA's submissions. The fact that DHA breached the Permit conditions when it commenced its clearing of stage 2 is not in dispute. The issues in dispute relate to the matters noted at [12.1]-[12.2] above. A site inspection will not assist the Tribunal in the determination of these issues.

1. In the exercise of its discretion contained in section 46(2)(b) of the NTCAT Act to admit further evidence in a review proceeding, the Tribunal gives leave for the following evidence to be admitted in Tribunal file number 2024-03944-CT:
   • 41.1. annexures to the evidence filed by Applicant with the Tribunal on 16 May 2025;
   • 41.2. Unattested Declaration of Jessica Black dated 22 June 2025;
   • 41.3. Unattested Declaration of Ian Redmond dated 20 June 2025;
   • 41.4. Unattested Declaration of Graeme Sawyer dated 22 June 2025.
2. The application for an inspection by the Tribunal of the Lee Point site is dismissed. There are sufficient documents currently in evidence on which the Applicant can rely. An inspection would not assist the Tribunal in the resolution of the matters in issue in the review proceeding.
3. The Tribunal makes no order as to costs. This was an interlocutory matter and the question of costs, if any, is best left to the conclusion of the review proceeding.

1. The Tribunal gives leave pursuant to section 46(2)(b) of the Northern Territory Civil and Administrative Tribunal Act 2014 for the following evidence to be admitted in Tribunal file number 2024-03944-CT:
   1. annexures to the evidence filed by Friends of Lee Point Inc with the Tribunal on 16 May 2025;
   2. Unattested Declaration of Jessica Black dated 22 June 2025;
   3. Unattested Declaration of Ian Redmond dated 20 June 2025;
   4. Unattested Declaration of Graeme Sawyer dated 22 June 2025.
2. The application by Friends of Lee Point Inc for an inspection by the Tribunal of the Lee Point site is dismissed.

[1] Outline of Submissions on Behalf of the Respondent dated 6 June 2025, [6].

[2] Statement of reasons in relation to decision under section 79A(1)(a)(ii) of the Planning Act regarding Lee Point Master-planned Urban Development at 577 Lee Point Road, [13].

[3] Statement of reasons in relation to decision under section 79A(1)(a)(ii) of the Planning Act regarding Lee Point Master-planned Urban Development at 577 Lee Point Road, [5].

[4] Kasper v Psychology Board of Australia [No 2] [2015] NTCAT 179, [16]; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, [140]-[142].

[5] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, [140]-[142].

[6] Northern Territory Civil and Administrative Tribunal Act 2014, s 46(1).

[7] Submissions on Relevance on behalf of the Applicant [Quall] in Tribunal file number 2025-00298-CT undated, [2].

[8] Submissions on Relevance on behalf of the Applicant [Quall] in Tribunal file number 2025-00298-CT undated, [15].

[9] Outline of Submissions on Behalf of the Respondent dated 6 June 2025, [9].

[10] Northern Territory Civil and Administrative Tribunal Act 2014, section 53(2)(b).

[11] Northern Territory Civil and Administrative Tribunal Act 2014, sections 10(d) and 10(e).

[12] Australian Law Reform Commission, Evidence (Interim) (ALRC Report 26), [641].

[13] Australian Law Reform Commission, Evidence (Interim) (ALRC Report 26), [641].

[14] Australian Law Reform Commission, Evidence (Interim) (ALRC Report 26), [641].

[15] Submissions on Relevance on behalf of the Applicant [Quall] in Tribunal file number 2025-00298-CT undated, [15].

[16] Submissions of the Respondent as to a 'View' and the Admission of Further Evidence dated 2 July 2025, [6].

[17] Australian Law Reform Commission, Evidence (Interim) (ALRC Report 26), [641].

[18] Submissions of the Respondent as to a 'View' and the Admission of Further Evidence dated 2 July 2025, [617.