FZK v Secretary, Department of Communities and Justice (No 2)

"The appellant's primary case was one of actual bias. The appellant submitted that by making false and intimidatory statements, I exhibited extreme prejudice against her. It followed, so it was submitted, that I could not decide the appeal impartially."

1. The Appellant submits that this paragraph requires correction because:

"there is an obvious error at [13] it says I submitted '...extreme prejudice...' of which I never submitted in writing... or in oral submissions. I submitted it is judicial misbehaviour that warrants the removal of office let alone actual bias."

1. We pause to note that both parties were afforded the opportunity to make submissions in relation to whether it was appropriate to dispense with a hearing of this application and both parties consented to dispensing with a hearing. We are satisfied that this is in accordance with the requirements of s 50 of the NCAT Act and the procedural rules. Further, as the Appellant seeks a correction for what is said to be an "obvious error" in the Reasons and the appeal the subject of the Reasons was recently heard, we are satisfied that this is an appropriate case in which to dispense with a hearing; and we dispense with a hearing.

1. The basis of the recusal application is detailed at [9] to [12] of the Reasons. The consideration of the issues by the Deputy President commences at [35] and those of the Senior Member commences at [77] of the Reasons.
2. Section 63 of the NCAT Act relevantly provides:

63 Power to correct errors in decisions of Tribunal

(1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member.

...

(3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where -

(a) there is an obvious clerical or typographical error in the text of the notice or statement, or

(b) there is an error arising from an accidental slip or omission, or

(c) there is a defect of form, or

(d) there is an inconsistency between the stated decision and the stated reasons, or

(e) there is an inconsistency between the name of a person stated in the text of the notice or statement and the name stated on the person's birth certificate or other form of identification.

1. Section 63 of the NCAT Act is the statutory version of the common law "slip rule" and is purposed to avoid injustice by permitting the rectification of errors or omissions in the orders or reasons of a court or tribunal: Place v Department of Finance, Services and Innovation (No. 2) [2017] NSWCATAD 21 at [9] citing Batagol & McGill v Monk [2000] VSC 48 at [17]. The Tribunal's power to correct its orders and reasons applies in cases of "obvious error": s 63(1). The power "has no application to alleged mistakes that are a consequence of a deliberate decision": Lawrence v Ciantar (No 2) [2020] NSWCA 186 at [10], citing Expo Aluminium (NSW) Pty Ltd v Pateman Pty Ltd (No 2) [1991] NSWCA 92. A mistake or error does not constitute an accidental slip or omission if the amendment of the orders or reasons requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist: Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 (Storey) at 453. The test of whether a mistake or omission is accidental, as applied in Storey (citing Hatton v Harris [1892] UKLawRpAC 30; [1892] AC 547 at 558) provides as follows:

"if the matter had been drawn to the court's attention would the correction at once have been made?"

1. We do not consider that paragraph 13 of the Reasons contains an obvious or inadvertent error. The Appellant seeks a correction, so it was submitted, on the basis that the Deputy President's conduct was not expressly said by the Appellant in either written or oral submissions to exhibit "extreme prejudice" and therefore, to include such language in the Reasons must be the product of an inadvertent or obvious error. However, it was not necessary to reiterate the exact words of the Appellant. Accordingly, this does not, of itself, demonstrate a slip.
2. Further, the tenor of the Appellant's oral submissions which included statements to the effect that the Deputy President "fabricated evidence", "would make anything up" and that it was "very personal", is sufficiently consistent with the way they were summarised at [13] of the Reasons such that there is no mistake or inadvertent error enlivening the power contained in s 63 of the NCAT Act.
3. Further, paragraph 13 of the Reasons, is consistent with the remainder of the Reasons.
4. The application to correct paragraph 13 of the Reasons is refused.
5. We note that in applications such as this, it would have been sufficient for the presider to determine this application, alone: s 63(1) of the NCAT Act. However, given that the Reasons concern an application for the presider to recuse herself, the Appeal Panel, as constituted for the purposes of the Reasons, has made this decision.

(1) The Tribunal dispenses with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(2) The application to correct an aspect of [13] of the reasons for decision of the Appeal Panel in FZK v Secretary, Department of Communities and Justice [2025] NSWCATAP 120, pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW), is refused.

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.