This is an internal appeal from the decision of the Tribunal constituted by General Member D Ash made on 3 March 2025 in the Consumer and Commercial Division (the 3 March 2025 decision) in proceedings under the Fair Trading Act 1987 (NSW) (FT Act or FTA) between FZK and Australian Securities and Investments Commission (ASIC).
The Tribunal in the 3 March 2025 decision refused to set aside orders made on 7 November 2024.
We have decided to dismiss the appeal because it lacks utility in circumstances that the Tribunal had previously on 14 November 2024 refused to set aside orders made on 7 November 2024.
The consequence of the dismissal of the appeal is that it will be necessary for the Tribunal in the Consumer and Commercial Division to determine the first instance proceedings.
In the reasons that follow we have set out the background, the history of the first instance proceedings, the history of the appeal, the scope and nature of an internal appeal, and the issues that arise for determination, before explaining why we have dismissed the appeal. We have then explained the consequence of the dismissal of the appeal and set out our orders.
[3]
In 2017, an employee of Meco Australia Pty Ltd (Meco) carried out work on a toilet cistern at FZK's apartment in Sydney.
On 28 June 2023, FZK commenced proceedings in the Consumer and Commercial Division against a person, who had been a director of a company which had been deregistered as an insolvent company in 2020 (the former director and the subject company respectively). In her application, FZK claimed damages under the FT Act or the Home Building Act 1989 (NSW) (HB Act) for damage to the cover plate for the frame of the cistern.
On 19 October 2023, the Tribunal constituted by General Member Ash dismissed FZK's application, reserved the question of costs and made directions in respect of the former director's application for costs (the 19 October 2023 decision). In dismissing FZK's application the General Member concluded that the Tribunal lacked jurisdiction to hear and determine any claim under the HB Act or the FT Act because the application was lodged more than 3 years after the supply of the services, and it had no power to deal with allegations that the former director had breached his duty as a director of the subject company.
On 23 October 2023, FZK applied for an order that General Member Ash disqualify himself from dealing with the question of costs.
On 27 October 2023, General Member Ash dismissed FZK's disqualification application (the 27 October 2023 decision).
The Appeal Panel dismissed the appeal by FZK against the 19 October 2023 decision and refused FZK leave to appeal against the 27 October 2023 decision (the FZK AP decision). The Appeal Panel:
[4]
(1) in dismissing the appeal against the 19 October 2023 decision rejected FZK's submission that the relevant limitation was 6 years rather than 3 years;
(2) in refusing leave to appeal against the 27 October 2023 decision, rejected FZK's submission that General Member Ash was biased because of errors in making the 19 October 2023 decision.
[5]
On 16 October 2024, FZK, as the applicant, commenced proceedings 2024/00383084 against ASIC, as the respondent, by lodging her application (the FZK application) in which she relevantly set out:
[6]
(1) the nature of her claim:
"The Respondent is vested with the property of deregistered Meco Australia Pty Ltd, which I have a valid damage claim against, however, ASIC refused my claim of Meco's property with the excuse that it does not act as the liquidator for the deregistered company."
[7]
"Pursuant to s276(4) of ACL and s79N(a) of FTA, an order that the Respondent to pay $1,024 damages from Meco Australia's property, that is vested with the Respondent, to the Applicant."
[8]
On 7 November 2024, the Tribunal, constituted by General Member J Levingston, made a decision comprising the following orders (the 7 November 2024 orders) and reasons:
[9]
"1 The hearing is adjourned to a date and time to be confirmed by the registrar
2 By 28 February 2025 the applicant is to give the Tribunal written notice with a copy of any relevant order of a competent court for re-instatement of the deregistered respondent corporation in order to continue with her claim against it.
3 The application is amended to identify the cause of action which is an alleged breach of the Australian Consumer Law (NSW) s60 guarantee as to the exercise of due care and skill arising from a damaged toilet cistern during work carried out by the respondent corporation doing the work, which has been deregistered. The remedy is in ACL s236 damages."
[10]
On 13 November 2024, FZK lodged an application to set aside order 2 of the 7 November 2024 orders (the 13 November 2024 FZK application). With this application FZK provided a letter from ASIC dated 30 October 2024, addressed to her, in which it advised it would not oppose an order by the Tribunal in respect of money held in the ASIC Unclaimed Money Unit in respect of Meco.
On 14 November 2024, the Tribunal constituted by General Member A Lynch made an order refusing the 13 November 2024 FZK application (the 14 November 2024 order).
On 28 January 2025, the Registrar listed the FZK application for conciliation and hearing in a group list on 3 March 2025.
On 2 March 2025, FZK made a recusal application against General Member Ash:
[11]
"I apply for your recusal from these proceedings on actual bias, because these proceedings concern the same damages against deregistered company Meco, you dismissed my application as out of time with a false statement: Fair Trading Act overrides Australian Consumer Law.
On last occasion of these proceedings (7/11/2024), the Tribunal confirmed the remedy is under s236 of ACL."
[12]
On 3 March 2025, General Member Ash made a decision comprising an order dismissing the application of FZK to set aside order 2 of the 7 November 2024 orders (the 3 March 2025 order) and reasons (the 3 March 2025 reasons):
[13]
In the 3 March 2025 reasons, General Member Ash, after setting out the background, relevantly made the following findings:
[14]
"The applicant today makes two applications.
The first application is that the current Tribunal not hear the matter. The Tribunal indicated that the application would be rejected with written reasons and these are those written reasons.
[15]
(a) The Tribunal has had the benefit of written and oral submissions. The applicant is concerned that the current Tribunal in 2023 "dismissed [the] application as out of time with a false statement: Fair Trading Act overrides Australian Consumer Law".
(b) The Tribunal observes that the earlier dismissal was not revised on appeal. The Tribunal is not satisfied that a reasonable onlooker informed of the history including the appeal reasons would consider the current Tribunal unable to bring an open mind.
[16]
The second application is a second application that the orders made on 7 November 2024 be set aside.
Assuming without deciding that the Tribunal has power to hear a set aside application in these circumstances and to hear a second set aside application in these circumstances, the Tribunal's reasons for refusing the application are as follows.
[17]
(a) The applicant succinctly sums up her case today in paragraph 7 of her written submissions:
[18]
"On 7/11/2024 [the Tribunal] moved his own motion, claimed the Tribunal does not have jurisdiction under federal law, and made order 2 for the applicant to reinstate... and foreshadowed dismissal otherwise."
[19]
(b) The applicant argues that a Tribunal does not have power to determine questions of jurisdiction without a contradictor and that the exercise of the power was wrong, the more so in circumstances where the available contradictor, ASIC, has indicated material consent. The applicant argues also that the reasoning process reveals bias.
(c) The first duty of the Tribunal is to determine whether it has power to hear and determine what it is being asked to hear and determine. That duty is to be performed whether or not there is a contradictor and if there is, whether or not the contradictor consents.
(d) The Tribunal on 7 November 2024 duly performed its first duty.
[20]
On 19 March 2025, FZK as the appellant commenced proceedings 2025/00106634 against ASIC as the respondent by lodging a notice of appeal in which:
[21]
(1) in section 5A, she appeals against the 3 March 2025 order;
(2) in section 5B, she sets out her grounds of appeal:
[22]
"1. The tribunal below moved its own motion to challenge the jurisdiction when the Respondent advised: it will not appear in these proceedings, the motion is ultra vires.
2. The tribunal below dismissed the application on jurisdiction without any evidence, it is an error of law.
3. The tribunal below only has power to transfer the proceedings (Schedule 4, s6), therefore, the dismissal is ultra vires."
[23]
(3) in section 5C, she sets out the orders which she contends the Appeal Panel should make:
[24]
"1. Appeal is allowed
2. Summary judgment for the Appellant
3. A finding of misconduct by Member Ash on following grounds:
[25]
a. admission of false statement, FTA overrides ACL, by subsequent act
b breach of bias rule - ultra vires motion
c. breach of hearing rule - failed to mention, let alone consider, Appellant's submissions and Application for Summary Judgment
d. breach of evidence rule"
[26]
(4) in section 6B, she states that she is not asking for leave to appeal.
[27]
On 23 April 2025, the Appeal Panel constituted by myself at the call over made procedural directions for the hearing of the appeal and dismissed the application of FZK that I recuse myself (the 23 April 2025 FZK recusal application).
On 26 May 2025, the Appeal Panel constituted by myself refused the request of FZK made on 14 May 2025 for the correction of the written statement of the reasons of my decision made on 23 April 2025 dismissing the 23 April 2025 FZK recusal application.
On 16 July 2025, FZK made an application that I recuse myself (the 16 July 2025 FZK recusal application).
[28]
FZK represented herself. The was no appearance on behalf of ASIC.
At the commencement of the hearing, each of us dismissed the 16 July 2025 FZK recusal application. As we advised, we have provided written reasons for our respective decisions: FZK v Australian Securities and Investments Commission[2025] NSWCATAP 196 (FZK v ASIC).
FZK relied on her Submissions for Appeal dated 20 May 2025 lodged on 23 May 2025 (the FZK appeal submissions) and made oral submissions.
[29]
Section 80(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) allows a party to proceedings in which the Tribunal makes an internally appealable decision, to appeal the decision to an Appeal Panel. Internal appeals against an internally appealable decision may be made in the case of any kind of decision (including an ancillary decision) other than an interlocutory decision as of right on a question of law, or with the leave of the Appeal Panel, on any other grounds: NCAT Act, s 80(2)(b).
The Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including but not limited to any one or more of the orders that the appeal is to be allowed or dismissed, and the decision under appeal is to be varied: s 81(1)(a) of the NCAT Act.
[30]
(1) whether there should be a non-disclosure order in respect of the name of FZK;
(2) whether the appeal should be dismissed because it lacks utility;
(3) whether the appeal otherwise has any merit.
[31]
Whether there should be a non-disclosure order in respect of the name of FZK
[32]
As set out in FZK v ASIC at [9] and [14], the 16 July 2025 FZK recusal application was based a complaint made against Principal Member Blake by FZK in another appeal in which a non-disclosure order in respect of her name was made under s 64(1)(a) of the NCAT Act.
We are satisfied that that it is desirable, of our own motion, to make an order under s 64(1)(a) of the NCAT Act prohibiting the disclosure of the name of FZK and using the same pseudonym as in the other appeal in order to preserve the integrity of the non-disclosure order in the other appeal.
[33]
Whether the appeal should be dismissed because it lacks utility
[34]
As a general rule, the Appeal Panel should not entertain appeals on legal questions that have no practical consequences for the parties: Secretary, Department of Communities and Justice v Feeney[2021] NSWCATAP 139 (Secretary, DCJ v Feeney) at [26], citing various authorities including Hunter Development Corporation v Save our Rail NSW Incorporated (No 2)(2016) 93 NSWLR 704; [2016] NSWCA 375 at [34] (Beazley P with Macfarlan JA at [81] and Meagher JA at [82] agreeing); Ugur v Bridge Housing Limited[2024] NSWCATAP 203 (Ugur) at [26], citing various authorities including People with Disability Australia Incorporated v Minister for Disability Services[2011] NSWCA 253 at [11]- [14] (Beazley JA with Allsop P at [1] and Handley AJA at [124] agreeing).
Having regard to the principle in Secretary, DCJ v Feeney at [26] and Ugur at [26], we do not consider that there is any utility in entertaining this appeal as it has no practical consequences for the parties. Even if the appeal was allowed and the 3 March 2025 order set aside, the 14 November 2024 order remains in force. It follows that we have decided to exercise the discretion under s 81(1)(a) of the NCAT Act to dismiss the appeal.
[35]
If we had not decided to dismiss the appeal because of its lack of utility, we would have dismissed the appeal because of its lack of merit. We have set out below the FZK appeal submissions and our consideration of the following three issues as described by FZK that would have arisen for determination:
[36]
(1) "Issue 1: The dismissal is without evidence, it is an error of law";
(2) "Issue 2: The dismissal on jurisdiction is ultra vires";
(3) "Misconduct of Member Ash".
[37]
Issue 1: The dismissal is without evidence, it is an error of law
[38]
FZK, in the FZK appeal submissions, made the following submissions:
[39]
"13. There is no evidence mentioned during the hearing, nor in the decision, in support of the Tribunal's challenge on jurisdiction.
14. Accordingly, the dismissal is without evidence and is an error of law."
[40]
We would have accepted that this ground raises a question of law.
We would not have accepted the submission of FZK that evidence needs to be adduced before the Tribunal can determine the question of its jurisdiction. The New South Wales Court of Appeal (Leeming JA White JJA) in Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust[2020] NSWCA 62 granted leave to appeal on the pure question of law as to the power of the Tribunal in proceedings arising under a federal statute and at [4] said: "It is a pure question of law, which does not turn on evidence"; citing Suttor v Gundowda Pty Ltd[1950] HCA 35; (1950) 81 CLR 418 at 438; [1950] HCA 35.
[41]
Issue 2: The dismissal on jurisdiction is ultra vires
[42]
FZK, in the FZK appeal submissions, made the following submissions:
[43]
"15. The Respondent is the only party can move a motion seeking dismissal on jurisdiction.
16. The. Respondent didn't move such a motion.
17. The Tribunal only has the power to move a motion to transfer the proceedings on jurisdiction (Particular 1)
18. Accordingly, the dismissal on jurisdiction is ultra vires.
6 Transfer of proceedings to courts or to other tribunals
(1) If the parties in any proceedings for the exercise of a Division function so agree, or if the Tribunal of its own motion or on the application of a party so directs, the proceedings are -
[44]
(a) To be transferred to a court (in accordance with the rules of that court) that has jurisdiction in the matter, and
(b) To continue before that court as if the proceedings had been instituted there."
[45]
We would have accepted that this ground raises a question of law.
We would not have accepted the submission of FZK that the Tribunal can only dismiss a claim on the basis of lack of jurisdiction where the respondent makes an application for dismissal on this ground. This is because the submission is inconsistent with authority of the New South Wales Court of Appeal, and the Appeal Panel, that the Tribunal has a duty to satisfy itself whether it has jurisdiction to determine a claim.
The New South Wales Court of Appeal determined in Wilson v Chan & Naylor Parramatta Pty Ltd(2020) 103 NSWLR 140; [2020] NSWCA 213 at [14] (Leeming JA with Macfarlan JA at [1] agreeing):
[46]
"Thus, as was explained in Gaynor v Attorney General (NSW), NCAT is under a duty to satisfy itself whether a claim made to it is within its limited authority: see at [22], [100], [131]. That duty carries with it authority to determine, either positively or negatively, whether it has jurisdiction to determine a claim. In deciding that question, NCAT is not exercising federal judicial power - even if it concludes that it lacks jurisdiction because the claim invokes federal jurisdiction. Rather, NCAT forms an opinion on whether the claim amounts to one invoking federal jurisdiction, and acts upon that opinion by dismissing the proceedings for want of jurisdiction, or transferring them to a court, if it is of the opinion that the claim is outside its jurisdiction."
[47]
"... The Tribunal had both the authority and the duty to decide whether it had authority to decide the appellant's application, ..."
FZK, in the FZK appeal submissions, made the following submissions:
[50]
"19. Member Ash admits his statement in [proceedings number omitted] is false by subsequent act, and that false statement is serious offence per s307B of Crimes Act.
20. Member Ash breached member's code of conduct:
[51]
a. Breach of bias rule, an ultra vires motion to dismiss the Application on jurisdiction
b. Breach of hearing rule, failed to mention, let alone consider, the Appellant's submissions for default judgment
c. Breach of evidence rule, his decision is without evidential support."
[52]
We would have accepted that this ground raises a question of law.
We would not have accepted the submission of FZK that there was any misconduct by General Member Ash in making the 3 March 2025 order or in the 3 March 2025 reasons.
The alleged false statement of the General Member related to the 19 October 2023 decision. This ground is an abuse of process as it constitutes a collateral attack on the findings of the Appeal Panel in the FZK AP decision which rejected any error and bias by General Member Ash in determining the applicable limitation period. The Federal Court in Smits v Loel [2014] FCA 1341 at [67] held "It is an abuse of process to bring a proceeding in order to make a collateral attack upon an unappealed decision of a Court, or upon a decision which, having been appealed, has been affirmed" (Rangiah J); citing Stergiou v McGrail (unreported, Full Court of the Federal Court, Burchett, Ryan and Gummow JJ, 22 April 1994).
FZK has not specified the term of the NCAT Member Code of Conduct alleged to have been breached by General Member Ash. There was no bias or failure to afford procedural fairness or other error on his part in first determining the jurisdiction of the Tribunal as we have already explained.
[53]
The consequence of the dismissal of the appeal is that the first instance proceedings remain on foot and are yet to be determined. The Tribunal will need to ascertain whether FZK has complied or intends to comply with order 2 of the 7 November 2024 orders. If so, the Tribunal will need to determine FZK's claim. If not, the Tribunal will need to determine whether FZK's claim should be dismissed for want of jurisdiction by reason of it arising under a federal statute.
[54]
(1) The disclosure of the name of the appellant is prohibited and the appellant is to be known by the pseudonym FZK.
(2) The appeal is dismissed.
[55]
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.
[56]
05 September 2025 - Case citation removed from coversheet, paragraph 11 and paragraph 47.
[57]
09 September 2025 - Identifying information removed from paragraphs 7, 8, 11 & 47.
[58]
27 November 2025 - Identifying information removed from paragraph 44