FZK v Secretary, Department of Communities and Justice (No 3)

Bova v Avati [2009] NSWSC 921

Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564

Expo Aluminium (NSW) Pty Ltd v Pateman Pty Ltd (No 2) [1991] NSWCA 92

Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92

Hatton v Harris [1892] UKLawRpAC 30; [1892] AC 547

Holland-Stolte Ltd v Princess Theatre Holdings Pty Ltd (unreported, VSC (Byrne J), 17 March 1993)

Kudrynski v Orange City Council [2024] NSWCA 33

Lawrence v Ciantar (No 2) [2020] NSWCA 186

Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627

NSW Land and Housing Corporation v Pinchin [2025] NSWCATAP 128

Pegasus Gold Australia Pty Ltd v Kilborn Engineering Pacific Pty Ltd [2000] NSWSC 183

Place v Department of Finance, Services and Innovation (No. 2) [2017] NSWCATAD 21

Psalidis v Norwich Union Life Australia Ltd [2009] VSC 417; (2009) 29 VR 123

Rochfort v Trade Practices Commission (1982) 153 CLR 134; [1982] HCA 66;

Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446

Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

YKW v Public Guardian [2025] NSWCATAP 112

Young v Di Cesare T/As CPC Quality Smash Repairs [2025] NSWCATAP 124

Secretary, Department of Communities and Justice (Respondent)

Department of Communities and Justice, Legal (Respondent)

Pursuant to an order made on 25 September 2024 under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of the Appellant is prohibited. The Appellant is to continue to be known as the pseudonym FZK.

1. By Notice of Appeal dated 28 January 2025 the Appellant, known as FZK in these reasons, appealed against the decision of the Tribunal of 6 January 2025 concerning a procedural timetable and dismissing an application regarding the Appellant's contention that the Respondent had failed to comply with a summons (the Decision). For the reasons set out below, we have decided:

(1) that the Decision is an interlocutory decision;

(2) leave to appeal is required;

(3) leave to appeal is refused; and

(4) the appeal is otherwise dismissed.

1. The Appellant made an application for administrative review of the Respondent's decision to refuse to amend FZK's personal information pursuant to s 15 of the Privacy and Personal Information Protection Act 1998 (NSW) (the Privacy Act), which was due to be heard on 22 May 2025 (the substantive proceedings).
2. As part of the substantive proceedings, FZK applied for a summons to be issued to the Respondent and the Tribunal issued a summons (the Summons) ordering the Respondent to attend and produce to the Tribunal by 28 October 2024 the following documents:

"[1] 2017 version of SAP User/Operational Manual/Handbook/Guideline of FACS, or LAHC if it is different from FACS, and current version of DCJ (the Respondent) [the 2017 SAP Manual]

[2] The document should contain the information of list of personnel actions, action types for each of them, reasons for each type

[3] Other HR and Payroll documents, e.g. checklists/procedures about how, when and what's required to apply these terms in SAP."

1. On 6 November 2024, the Respondent produced the documents which it claimed were within its possession, custody or control and claimed not to be in a position to produce the 2017 SAP Manual because it was not in its possession, custody or control. The documents the Respondent produced were:

(1) SAP Final Clearance Procedure; and

(2) SAP Intention to Cease Duty Procedure.

1. FZK challenged the Respondent's claim that the 2017 SAP Manual could not be produced. On 8 November 2024, FZK alleged in an email to the Respondent's representative that the Respondent had not complied with the Summons and stated:

"I consent for the summons to be referred to a tribunal member per clause 34 of the NCAT Procedural Direction 2 for Summons.

Because the respondent clearly does not understand what does compliance mean and when it is required to raise objection.

Any discussion of 'final settlement' is pointless if the respondent considers 'it doesn't hold' is in compliance."

1. On 11 November 2024, FZK emailed the Tribunal, copying the Respondent's representative and attaching email correspondence, stating the following:

"The Respondent failed to produce the requested documents, SAP Manual, per Summons, but disagrees it is non-compliance (see attached), therefore, I apply for the Summons be referred to a tribunal member per clause 34 of NCAT Procedural Directions 2 for Summons.

Please extend the time in order 2 of 30/10/2024 to 20/11/2024 per Table of Registrar's Power Directions."

1. The request for an extension of time related to the timetable for the filing of evidence and submissions by the parties in the substantive proceedings.
2. An order was made on 15 November 2024, listing a hearing as follows:

"The matter is listed for directions and compliance with the summons to produce at 2:00pm on 17 December 2024 for 1 hour."

1. On 16 December 2024, FZK again wrote to the Tribunal with their proposed orders to be made at the hearing due to take place the following day. Those proposed orders sought to vacate the timetable made on 30 October 2024, vacate the hearing date for the substantive proceedings on 13 February 2025, sought leave to amend the summons so that it was to be addressed to "GovConnect", sought a direction to the Registrar to issue the amended summons and that the proceedings be listed for return of summons and further directions in the future.
2. For the purposes of the hearing on 17 December 2024, the Respondent relied upon an affidavit by Kimberly Tram, a payroll team leader employed in Shared Services and Customer Experience in the Corporate Services Division in the Department of Communities and Justice dated 13 December 2024.
3. The hearing proceeded on 17 December 2024, as listed.
4. During the course of the hearing, the Senior Member hearing the matter amended the timetable for the filing of evidence and submissions by FZK previously ordered by the Tribunal, in effect, granting an extension of time for compliance.
5. The previous orders relevantly were as follows:

(1) On 8 October 2024 an order was made, Order 3, requiring FZK to file evidence and a summary of legal argument by 7 November 2024.

(2) On 30 October 2024 an order was made amending the timetable such that compliance with Order 3 was extended to 13 November 2024.

1. At the time of the hearing on 17 December 2024, FZK had failed to comply with Order 3, as amended.
2. The Tribunal, on 17 December 2024, amended the previous orders and made consequential orders as follows:

(1) Time for compliance with direction 3 extended to 31 January 2025.

(2) Time for compliance with direction 4 is extended to 28 February 2025.

(3) Time for compliance with directions 5, 6 and 7 is extended to 14 March 2025 respectively.

(4) The proceeding is listed for hearing on 22 May 2025 at 10:00AM at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney for 1 day.

1. The Tribunal published its reasons in respect of FZK's allegations of non-compliance with the Summons (i.e., the Decision) on 6 January 2025 and made the following orders and notation:

"(1) Noting that a new evidentiary timetable was set on 17 December 2024;

(2) The application is otherwise dismissed."

1. On 28 January 2025, the Appellant filed a Notice of Appeal challenging the dismissal of an application concerning what was stated to be "Non-Compliance of Summons".
2. The Appellant also separately sought a stay of the timetable set for the hearing of the matter on 17 December 2024, such stay to operate pending the hearing and determination of the appeal.
3. The Respondent did not object to the timetable set at the hearing on 17 December 2024 being stayed.
4. On 14 February 2025, the Tribunal made an order that compliance with orders (1) to (3) made on 17 December 2024 (which we set out above) is stayed until further order of the Tribunal or finalisation of the appeal, whichever is the earlier in time.

1. As pointed out above, at the hearing on 17 December 2024, the Respondent relied on an affidavit of Kimberly Tram affirmed on 13 December 2024.
2. Ms Tram deposed to the searches conducted for the documents identified in the Summons. Her evidence was that OneSAP was a legacy system and the Respondent did not hold a "SAP Manual", or similar record which contains a collection of instructions explaining how to use OneSAP.
3. Ms Tram also deposed to the fact that to her knowledge, no other databases of the Respondent exist which could hold a "SAP Manual". On that basis, she determined that the Respondent does not hold a "SAP Manual".
4. Ms Tram also stated that further searches were carried out in respect of the category of document identified in the Summons, namely checklists/procedures about how, when and what is required to apply these terms in SAP, which were then produced in answer to the Summons.
5. Ms Tram concluded in her evidence that she was of the view, based on her extensive knowledge of HR Shared Services Records, that reasonable and acceptable searches have been conducted and that all documents in the possession, custody and control of the Respondent have been produced in compliance with the Summons.

1. In the Decision, the Senior Member set out the procedural history for the making of directions and compliance, or non-compliance, with those directions on the part of FZK.
2. In relation to the Appellant's reference to cl 34 of the NCAT Procedural Direction 2 - Summonses, the Senior Member held that it was in error and had no application to the circumstances before the Tribunal. Clauses 31 to 34, it was said, relate to a person who is served with a summons objecting to complying with that summons. Clause 34 states:

"Objections that cannot be resolved by discussion and agreement will be referred to a Member for decision."

1. The Respondent, so the Tribunal held, did not object to complying with the Summons and had not made an objection.
2. The Senior Member then held (at [41]):

"With respect to these allegations and contentions, for the reasons above, the reference to Clause 34 of the NCAT Procedural Direction 2 is in error."

1. In relation to the arguments of non-compliance with the Summons, the Decision identified the Appellant's argument as follows (at [47(3)]):

"(a) If the Respondent is not in possession of the summoned documents, it is required to identify the person who has the document. The source of this purported obligation was Clause 31 of Practice Directive 2.

(b) A document that is not in the possession of the party summoned is 'not a lawful reason for non-compliance'. A party is required to identify the person who has the document for them to produce.

(c) The Respondent knew that 'GovConnect NSW' which the Applicant described as a 'shared services provider' has the SAP Manual but deliberately left it out in their searches.

(d) Because 'GovConnect NSW' has possession of the SAP Manual, the SAP Manual is within the custody, control or power of the Respondent because of s 12(b) of Schedule 4 of the Government Information (Public Access) Act 2009 (NSW) which states:

A reference in this Act to government information held by an agency is a reference to information contained in a record held by a private sector entity to which the agency has an immediate right of access."

"With respect to the Applicant's contentions about the principles to be applied in the context of allegations of non-compliance with a summons, the following findings are made:

(a) I reject the submission that, where a document is not in a party's possession, custody or control that the failure to produce that document is non-compliance. A summons can only compel a person to produce documents that are in his or her 'possession, custody or control' and in such circumstances where documents are not in a party's possession, custody or control, there will be nothing to produce. This is uncontroversial.

(b) Additionally, I reject that there is an obligation on a person summoned, to identify the person who has the document where the document is not in their 'possession, custody or control'. I further reject that Clause 31 of Practice Directive 2 provides otherwise. Clause 31 states as follows and is a process to be adopted if the person named objects to production:

31. If the person named in the summons objects to complying with the summons or if another person affected by the summons objects to the summons being complied with, they should try to resolve the objection with the party who applied for the summons to be issued before the time for compliance."

1. The Decision then proceeded as follows (at [54(3)]):

"With respect to the Respondent's contentions that the Respondent knows that 'GovConnect NSW' which the Applicant described as a 'shared services provider' has the SAP Manual but deliberately left it out in their searches and because of the relationship between 'GovConnect NSW' and the Respondent, the SAP Manual is within the possession, custody or control of the Respondent - I find as follows:

(a) The evidence is insufficient to establish any of the factual integers necessary to make these propositions good. There is currently no evidence before the Tribunal that satisfies me as to what is or who is 'GovConnect NSW', what the relationship is between 'GovConnect NSW' and the Respondent, that because of that relationship the Respondent controls the SAP Manual, or that the Respondent 'knows' that GovConnect NSW holds the SAP Manual.

(b) In respect of these contentions, the Applicant attempted to provide the Tribunal with website addresses such that the Tribunal could make their [sic] own inquiries about the location of the SAP Manual. This was objected to by the Respondent on the basis that it would be unfair to allow evidence to be presented in this manner that had not been served on the Respondent. I accepted the Respondent's objection for the reason provided by the Respondent but also on the basis that it would be inappropriate for a Tribunal member to undertake their own investigations in the manner suggested by the Applicant.

(c) With respect to the Applicant's reliance on s 12(b) of Schedule 4 of the Government Information (Public Access) Act 2009 (NSW), that provision has no bearing on the law as it relates to disclosure obligations with the sections expressly limited to references to a document being held pursuant to that Act. However, even if that was incorrect, as stated in paragraph (a) above, there is no evidence to establish that the Respondent has an 'immediate right of access' to the SAP Manual even if held by 'GovConnect NSW' or that 'GovConnect NSW' is a 'private sector agency'."

1. The Decision then recorded that the Appellant also sought leave to amend the Summons so that the order to produce the 2017 SAP Manual was directed at "GovConnect NSW".
2. The Tribunal then dealt with the application by the Appellant to amend the summons and held (at [54]):

"(4) With respect to the Applicant's application to 'amend' the Summons so that it is now to be served on 'Department of Customer Service, GovConnect NSW', the application is dismissed for the following reason. Even if there was power to amend a summons in the manner proposed by the Applicant (and it is unclear that there is), this is not an amendment - it is a new summons because it is proposed to be served on a different 'party'. Even if this was incorrect, I would not give leave because it is currently unclear whether 'GovConnect NSW' has a sufficient legal existence to be the subject of a Summons or whether it is a trademark of a suite of software or a trademark of an information technology application or something else.

(5) In any case, to the extent that the Applicant wishes to serve a new summons, that is a matter for [them] but the process to be adopted is as per the normal process and the Applicant will need to apply and seek leave from the Registrar."

1. The Tribunal then proceeded to record that a new timetable had been set at the hearing on 17 December 2024 and in relation to that issue said (at [57]):

"If there is a further default by the Applicant in filing and serving [their] evidence and submissions, it is open to the Tribunal to dismiss these proceedings for non-compliance. It should also be noted that while this jurisdiction is what is often referred to as a 'no costs jurisdiction', this Tribunal does have the power to award costs in appropriate circumstances: s 60(2) of the CAT Act. Such circumstances have included a party prolonging unreasonably the time taken to complete the proceedings: s 60(3)(b) of the CAT Act; Wolciechowska v Commissioner of Police, NSW Police Force (No 2) [2023] NSWCATAP 104."

Obligations to comply with a summons to produce documents

1. In Rochfort v Trade Practices Commission [1982] HCA 66; (1982) 153 CLR 134 at 138; [1982] HCA 66 (Rochfort) it was held by Gibbs CJ:

"A person who is properly served with a subpoena duces tecum in due form requiring him to produce specified documents must (subject to payment of any necessary conduct money) attend at the place directed by the subpoena and produce such of the specified documents as are in his possession. If the documents are not in his possession, however, he is not obliged to endeavour to acquire them from the person who has possession of them ..."

1. His Honour Mason J explained the matter as follows (at 143):

"A party to litigation can compel a stranger to produce documents by serving on him a subpoena duces tecum. Once served with the subpoena and provided with the proper conduct money, he must obey it and bring to court the documents described in the subpoena if he has them, unless the writ is set aside on the ground that it is oppressive, and produce them to the court, unless he can establish some good reason why they should not be produced. A person called on by a subpoena duces tecum may be asked, without being sworn, whether he has brought the documents, and if so, whether he produces them. If he objects to produce them, he should state the grounds of his objection on oath so that the court may determine their sufficiency. See generally Commissioner for Railways v. Small, per Jordan C.J.

... The subpoena, which has the effect of a court order, requires the person to whom it is addressed to produce the documents which it describes. It assumes that he has the ability or capacity to produce them. At times this idea has been expressed by saying that the person served is bound to produce any document which is in his possession, custody or control. But these statements should not be allowed to obscure the true effect of the subpoena - it binds a person who can produce the documents to do so."

1. Under the NCAT Procedural Direction 2 - Summonses, a person named in the summons must comply with that summons unless the person has a lawful excuse for not complying (cl 28).
2. A person cannot be compelled to provide documents under a summons which are not in that person's possession, custody or power. "Power" has been defined to mean "a presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else": Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 (Lonrho) at 635. However, a document is not within a person's power merely because they would be likely to obtain a copy if they made a request: Bova v Avati [2009] NSWSC 921 at [364]- [365]; Psalidis v Norwich Union Life Australia Ltd [2009] VSC 417; (2009) 29 VR 123 at [33].
3. There is no obligation on the part of the recipient of a subpoena or summons to take steps to bring into their power or control documents that are not within the recipient's possession, power or control: Air Pacific Ltd v Transport Workers Union (1993) 40 FCR 1 at 6-7; Pegasus Gold Australia Pty Ltd v Kilborn Engineering Pacific Pty Ltd [2000] NSWSC 183 at [7].
4. In Absolute Analogue Inc v Sundance Resources Ltd [2008] WASC 259 (Absolute Analogue) the plaintiff submitted that documents relating to the project the subject of the proceedings that were in the physical possession of a third party were within the power of the defendant because it was likely that that party would give the defendant access to the document on request. Relying on Lonrho the Supreme Court rejected that submission (at [22]). In Lonrho Lord Diplock had said:

"For the reasons already indicated Shell Mocambique's documents are not in my opinion within the 'power' of either Shell or BP within the meaning of RSC O 24. They could only be brought within their power either

(1) by their taking steps to alter the articles of association of Consolidated and procuring Consolidated through its own board of directors to take steps to alter the articles of association of Shell Mocambique, which O 24 does not require them to do; or

(2) by obtaining the voluntary consent of the board of Shell Mocambique to let them take copies of the documents. It may well be that such consent could be obtained; but Shell and BP are not required by O 24 to seek it, anymore than a natural person is obliged to ask a close relative or anyone else who is a stranger to the suit to provide him with copies of documents in the ownership and possession of that other person, however likely he might be to comply voluntarily with the request if it were made."

1. In Absolute Analogue at [24] the Court further quoted from Holland-Stolte Ltd v Princess Theatre Holdings Pty Ltd (unreported, VSC (Byrne J), 17 March 1993) where Byrne J said:

"The expression 'possession, custody or power' used in the Rules is of respectable antiquity. In the case such as the present I would, in the absence of evidence of some special agreement between consultant and client, draw a distinction between those documents in the hands of the consultant which the client may properly call for to inspect or, upon termination of the consultancy or otherwise, to retain, on the one hand; and those documents which it may not, on the other. Generally speaking, in the latter class will fall those private internal documents of the consultant, such as its own time-sheets, internal memoranda, calculations, internal drafts and other documents brought into existence for its assistance in the performance of its professional duties. In the former class would fall a consultant's copy of correspondence sent or correspondence received to or from the client or with other persons on behalf of the client."

1. Le Miere J in Absolute Analogue at [24] then said that Byrne J there confirmed that documents are within the power of a party if the party has a presently enforceable right to inspect or obtain possession or control of the document from the person who has physical possession of it. That test would be satisfied in the former category of documents referred to by Byrne J as extracted in the previous paragraph, but not in the latter category of documents.
2. We proceed on the basis that the recipient of a summons must produce documents answering the relevant description when they are within the person's possession, custody or control and that this test is not met merely because the person might make a request of a third party for a document, even if that request is likely to be answered positively either because of the nature of the relationship between the parties (such as family members) or because some other legally available avenue must first be engaged, as was the position in Lonrho.

Procedure to be followed when party wants to test compliance

1. The position appears to be accepted that in general, a party who issues a subpoena for production of documents has no right to have the person producing the documents sworn in to give evidence: Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306 (Arnotts) at 314.
2. There may be circumstances where a party is entitled to test the sufficiency of the answer to a subpoena or any objection raised by the recipient to producing certain documents by having the recipient sworn in to give evidence, although that is a matter for the court's discretion: Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564 at 574; Arnotts at 314.

1. The Appellant relies on three Grounds of Appeal.
2. Appeal Ground 1 is headed as follows:

"Whether the Respondent is in control of the documents when the documents are with another government agency."

1. With reference to the Tribunal's Reasons at [54(3)(a)] quoted above, the Ground states that:

"These statements are false on her own admission and the face of the record, in that:

(a) The Appellant provided evidence in amended Summons, and Member Little admitted she knew (just below her false statement at [54](4)), GovConnect is a business unit of Department of Customer Service (DCS).

(b) As a Tribunal Member, she is required to have the knowledge that both the Respondent and Department of Customer Service are government agencies (relationship).

(c) She is also required to have the knowledge that because of that relationship, the documents in both agencies are government records, therefore, the Respondent knows and has control of the documents.

Accordingly, the Respondent is in control of the documents."

"Alternatively, Appeal ground 2 - Whether Clause 31 is to be adopted if the person named objects to production."

1. Ground 2 then quotes selectively from cl 31 of Procedural Direction 2 and makes reference to the Tribunal's Reasons at [54(2)(b)] where it was held that cl 31 "is a process to be adopted if the person named objects to production" and proceeds to state that:

"This statement is false on the face of the record, because only the 'owner' of the documents can raise an objection.

Therefore, the Respondent is required to identify the person who has the document and for them to produce or object.

Accordingly, the Appellant seeks an order for the Respondent to obtain required documents from DCS, GovConnect NSW.

Alternatively, the Appellant seeks leave to amend the Summons and order DCS, GovConnect NSW to produce the required documents."

"Whether the Respondent failed to comply with the Summons."

1. By reference to the findings by the Tribunal at [53] that there had been compliance with the summons, the Appellant in support of this Ground states:

"As discussed above, the Respondent has control and the right to access government records in another agency, therefore, the statement is, again, false on the face of the record and on her own admission.

Accordingly, the Respondent failed to comply with the summons."

1. By the Notice of Appeal, the Appellant indicated that leave to appeal was sought and what are said to be the questions of public importance arising in the appeal.
2. We set out the Appellant's headings to those questions of public importance:

"Question 1 - Whether parties are allowed to communicate with tribunal members outside of a hearing

Question 2 - Whether Member Ransome is required to vacate previous directions when she relisted the matter for directions"

1. Each of these questions relate to the procedural history of the substantive proceedings summarised above and the Tribunal's treatment of it.
2. Under the further heading "Injustice - findings that are beyond arguable because they are proven false on Member Little's admission and face of the record" the following subheadings appear:

"Intimidation with false findings

Tampering with evidence: deletion, fabrication, omission and alteration

Breach of all natural justice rules"

1. The section dealing with leave to appeal concludes with a summary as follows:

"The decision is, ultimately, ultra vires on Member Little's admissions (at [38], [45] and [56]), involving tampering with evidence (at [3] - [10]; [12] - [13], [15] - [17], [19] - [37], and [39] - [44]), breach of rules of natural justice (at the hearing and at [49] - [52]), all findings are based on false statements (at [53] - [55]), with intimidations (at [57]), it would be gross miscarriage of justice to let the findings and decision stand."

1. It is then said that it is in the interests of justice to grant the leave and orders in the Notice of Appeal, all of which are confined to issues concerning the Summons and claims of non-compliance with the Summons.

1. Pursuant to s 80(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) an appeal lies to the Appeal Panel against an internally appealable decision.
2. Section 80(2) provides that any internal appeal may be made in the case of an interlocutory decision of the Tribunal at first instance, with the leave of the Appeal Panel. In the case of an ancillary decision or final decision an appeal lies as of right on any question of law.
3. An appeal against an interlocutory decision is therefore not an appeal as of right and requires leave.

1. In the call-over in relation to the appeal, on 14 February 2025, the Deputy President made an order (Order 6) that the issue of whether the Appeal Panel should give leave to appeal on grounds other than a question of law is to be determined at the hearing of the appeal.
2. The Appellant submitted that the Deputy President must have determined that the Decision was an ancillary or final decision, because the order referred to leave to appeal on a ground "other than a question of law". This indicated it was said that the appeal is as of right on a question of law. Otherwise, so it was submitted, the order of the Deputy President would have been to the effect that leave to appeal (without the addition of the words "other than a question of law") was to be referred to the Appeal Panel hearing the matter. It would not have been necessary to say anything about a question of law.
3. The Appellant said that this order is an operative determination to the effect that the appeal is as of right on a question of law. One way to consider this submission is that the Deputy President, constituted as the Appeal Panel, made an operative order, without submissions or argument, that the Decision was an ancillary decision or final decision. A different way of viewing the Appellant's argument is to say that the Deputy President, at a call-over and directions hearing, and without submissions or argument, in effect, gave the Appellant leave to appeal on any questions of law.
4. In this case the appeal is squarely concerned with an interlocutory issue before the Tribunal: it is a complaint about compliance or non-compliance with a summons to produce documents at an interlocutory stage of substantive proceedings, in the course of a party preparing evidence to be relied upon at the hearing, and a timetable for that to occur. Accordingly, as provided in the definition of "interlocutory decision" in s 4(1) of the NCAT Act, this is "an interlocutory issue" before the Tribunal. This is the case, even though, as highlighted by the Appellant, the definition of "interlocutory decision" refers at paragraph (c) to the issuing of a summons, as opposed to compliance with a summons, as the Decision was concerned with.
5. We do not regard the directions issued on 14 February 2025 as determining otherwise, in the absence of a hearing.

1. The Appellant, therefore, requires leave to appeal. An application for leave may be supported by the identification of a question of law, (as to which, see, for example Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique) at [25]) or where the Appellant can demonstrate something more than that the Tribunal member hearing the application was arguably wrong.
2. We pause to note that during the hearing, the Appellant submitted that a question of law was not required to be a pure question of law, as had been found by the Appeal Panel in FZK v Department of Customer Service [2024] NSWCATAP 185 at [58]- [59] and Unique at [25]. However, nothing in the Appellant's submissions has persuaded the Appeal Panel to doubt that proposition. We note that the requirement for a pure question of law has been applied by several differently constituted Appeal Panels: e.g_. YKW v Public Guardian_ [2025] NSWCATAP 112 at [56]; Young v Di Cesare T/As CPC Quality Smash Repairs [2025] NSWCATAP 124 at [46]; NSW Land and Housing Corporation v Pinchin [2025] NSWCATAP 128 at [19].
3. The principle governing the granting of leave is set out in some detail in Unique at [42] and [43] as follows:

"42. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collings v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough, as a summary, to refer to Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28], where Gleeson JA (on behalf of the bench) said:

'Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.' (Citations omitted)

43. Further, as Basten JA said (White JA agreeing) in Hungry Jack's Pty Ltd v Fourtounas [202] NSWCA 325 (Hungry Jack's) at [9]:

'... more is required than identification of error on the part of the trial judge, even if it can be said that the error is reasonably clear. Generally, the court will also need to be satisfied that there is a matter of some public importance engaged and that the costs of further litigation are not disproportionate to the amount in issue. Further, it should be established that, to leave any putative error uncorrected, would give rise to a substantial miscarriage of justice'." (Citations omitted)

1. As discussed above, as the Decision is an interlocutory decision, we are here concerned with whether there is warrant to grant leave to appeal. Such warrant may be found where the appeal grounds raise a question of law, an error of law or an important point of principle and there are sufficient prospects to justify the granting of leave.
2. In considering the Appellant's Grounds of Appeal we have had regard to the written submissions, submissions in reply and oral argument.
3. In respect of the first Ground, the question of whether the Respondent is in control of documents when the documents are asserted to be with another Government agency is not a pure question of law and involves questions of fact. Accordingly, this Ground does not raise a question of law.
4. Further, the finding by the Tribunal at [54(3)(a)] (quoted above) has not been shown to be incorrect. In addition, the Summons did not compel the person to whom it was addressed, the Respondent, to do anything in respect of "GovConnect NSW" or the Department of Customer Service (DCS).
5. Whatever knowledge the Tribunal had about "GovConnect NSW" at the relevant time does not establish, by probative evidence, the relationship between "GovConnect NSW" and the Respondent, or that the Respondent "knows" that "GovConnect NSW" holds the 2017 SAP Manual as referred to by the Tribunal at [53(3)(a)].
6. There is nothing false about the Tribunal's finding. Further, the matters raised in support of this Ground, do not establish that the Respondent was in control of the document as alleged, or raise a doubt that they may indeed be in relevant possession of the document. As the authorities discussed above demonstrate, it is not necessary for the recipient of a summons to take additional steps to bring a document within their possession, custody or control. The question is whether they have a presently enforceable legal right to the document, which the Tribunal found they did not, and no proper basis has been shown to doubt that conclusion.
7. The first Ground has no merit. The Ground does not raise a question of law, or error of law, and does not raise any questions of importance or principle, or otherwise warrant the grant of leave.
8. In respect of Ground 2 and reliance on cl 31 of Procedural Direction 2, the Appellant's Ground quotes selectively part of cl 31. Clause 31 applies to objecting to complying with a summons. In the present case there was no objection to produce a document in the Respondent's control. It did not have, as found by the Tribunal, possession, custody or control over the 2017 SAP Manual. This does not raise a question of law.
9. Further, whilst there is authority for the proposition that a person may object to producing a document under compulsion, on the grounds that they do not have "sufficient" possession or a sufficient right to the documents, that is not what occurred here. In Rochfort at 145, Mason J held that while a subpoena should ordinarily be addressed to an employer, in cases where that is impracticable, a subpoena may compel an employee to produce documents instead. In that case, the employee submitted that whilst they had physical possession of documents, they did not have legal possession and were precluded from producing them. That is entirely distinguishable to the situation here. The Respondent contends, and provided evidence to the effect, that it did not have possession, custody or control of the document and therefore its compliance was complete. There was no objection.
10. As the reasons of the Tribunal made clear, the process that the Appellant invoked to get the concerns about compliance before a Member, on the basis of a claim that the Respondent was "objecting" to the production of a document which it did not have in its possession, was not apposite. Despite this, the Tribunal dealt with the Appellant's application, as a matter of substance, as a question about compliance with the Summons.
11. The question agitated was whether the Respondent failed to comply with the Summons by not seeking the 2017 SAP Manual elsewhere, even though it said it had no enforceable right to obtain possession or control of the document from DCS (which, we learned from being directed to the decision of Senior Member McAteer made on 20 March 2025, it turned out, did not have possession of it either).
12. There was no error in the approach adopted by the Tribunal.
13. Clause 31 does not in its terms impose an obligation requiring the recipient of a summons to identify another person who has possession or control of the document.
14. The terms of the Summons itself do not extend to any obligation to identify the person or persons who may have the relevant document. It is further incorrect to assert, as the Appellant does, that only the "owner" of a document can raise objection. Rochfort provides an example where a person who was not the "owner" of a document, raised an objection; albeit unsuccessfully.
15. There is nothing false about the short statement at [54(2)(b)] set out above.
16. We do not consider this Ground has reasonable prospects. Further, there is no identifiable question of law, error of law, important question or principle arising from Ground 2. There is no warrant to grant leave to appeal on this Ground.
17. Ground 3 raises no more than questions of fact, namely whether the Respondent had the relevant document within its possession, custody or control and our reasoning in respect of the first Ground applies equally. No question of law arises.
18. Further, there is no basis for concluding that the Respondent has control and the right to access Government records in another agency. The Appellant pointed to no presently enforceable legal right on the part of the Respondent to the 2017 SAP Manual from DCS.
19. The Appellant sought to rely on cl 12(1)(b), Sch 4 to the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) in asserting that the Respondent had an immediate right of access to the SAP Manual. That clause provides:

12 Government information held by agency

(1) A reference in this Act to government information held by an agency is a reference to -

...

(b) information contained in a record held by a private sector entity to which the agency has an immediate right of access ...

1. The Appellant's submission was to the effect that the Respondent would be entitled to the SAP Manual because the Respondent could, itself, seek it under the GIPA Act, as anyone may do so. However, this involves taking another step, which the Summons does not require the Respondent to do. The Tribunal considered this at [54(3)] of the Decision. We discern no error in those reasons. Further still, for the reasons expressed below under the heading "Final aspect", we see there being insurmountable hurdles to this argument. The Ground has no reasonable prospects.
2. Ultimately, there is no identifiable question of law, or error of law identified in this Ground and no important question or principle, or other basis to warrant the granting of leave to appeal.

1. Although the grounds of appeal do not squarely raise a question of a denial of procedural fairness, and the issue is separately referred to in the Appellant's grounds for leave to appeal and in written submissions filed on 13 March 2025 said to be in support of Ground 1, we briefly address the issue.
2. We note that a material breach of procedural fairness (that is to say a breach of procedural fairness that could affect the result) could raise a question of law: Kudrynski v Orange City Council [2024] NSWCA 33 at [52]; Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at [202].
3. The Appellant submitted that there was a denial of procedural fairness, including as follows:

(1) The Appellant was not able to cross examine the witness who gave evidence in support of the Respondent's contention that the Summons had been fully complied with. To this end, the Appellant highlighted that the audio file of the hearing and the Transcript of the hearing as supplied by the Appellant, showed that the Appellant had been cut off by the Tribunal at the end of the hearing: the Tribunal had closed the link as the Appellant was in the midst of saying that there was a "second" matter.

(2) The hearing was not scheduled to be a hearing in relation to whether or not there had been compliance with the Summons, as opposed to being listed merely for compliance with the Summons (i.e., to allow the Respondent to produce the missing document).

1. The written submissions filed on 13 March 2025 filed in support of Ground 1 contend that during the "directions hearing" on 17 December 2024 the Senior Member:

(1) turned the directions listing into a hearing;

(2) refused the Appellant's request to file further submissions;

(3) demanded evidence on the spot;

(4) when the Appellant found evidence, it was not accepted as it had not been filed;

(5) accepted the Respondent's objection that it would be disadvantaged (as it had no prior notice of what the Appellant proposed).

1. On this basis it was said that the Decision is ultra vires. We note that these submissions do not reflect Ground 1 as set out in the Grounds of Appeal.
2. As to the first point, as we identified above, there is no automatic right to cross examine the person to whom a summons is directed. The Tribunal has a discretion to allow cross examination, if there is a justifiable basis for doing so.
3. The Appellant did not seek to cross examine the Secretary of the Department, to whom the Summons was addressed, or Ms Tram in respect of her affidavit referred to above, at any time prior to or during the hearing of the matter.
4. The Appellant says in submissions that at the conclusion of the hearing, and after the Presiding Member thanked the parties for their assistance and that a decision will be delivered after consideration of all the submissions, and the Tribunal would adjourn, that the Appellant was cut off when "about to request to cross examine the Respondent's witness".
5. As this issue was not actually raised before the hearing at first instance was adjourned and the decision reserved, the Appeal Panel declines to receive the submission as evidence, as opposed to as a submission. On 14 February 2025 a timetable was set for the filing of evidence to be relied on the appeal, including the provision of audio recording. The orders stated:

"2. The appellant is to lodge with the Appeal Panel and give to the Respondent by 14 March 2025:

(a) All the evidence given to the Tribunal below on which it is intended to rely;

(b) Any evidence not provided to the Tribunal in making the decision under appeal, on which it is intended to seek leave to rely;

(c) The Appellant's written submission in support of the appeal; and

(d) The sound recording or transcript of the hearing at first instance, if oral reasons were given and/or what happened at the hearing is being relied on and a typed copy of the relevant parts."

1. The Appellant filed a CD which is an audio recording of the hearing on 17 December 2024. That discloses that the audio-visual link was cut off, after the Tribunal had reserved its decision and while the Appellant was speaking. However, the Appellant did not file before us evidence of what they had been in the process of saying.
2. In addition, it is not clear what this alleged cross examination could legitimately have been directed at, bearing in mind that the Tribunal had concluded the hearing and that cross-examination is in the discretion of the Tribunal and no request had at any earlier time been articulated.
3. The essential element of the Appellant's argument was that the relevant document was in the Respondent's control because they are Government records and the Respondent had the right to access them. We have above considered and rejected the Appellant's submission that the Respondent had possession, custody or control over the SAP Manual because it might issue a request for the document under the GIPA Act; and to the extent it is suggested the cross examination would have touched on the GIPA Act, it could not have assisted the Appellant. Any right under the GIPA Act does not affect the Respondent's compliance obligations under the Summons. In the absence of some potentially fruitful basis for cross examination, it is not apparent that any cross examination would have been allowed.
4. This aspect of the Appellant's case does not demonstrate that there was a breach of procedural fairness, let alone a breach that could have affected the result. No question of law arises.
5. As to the second procedural fairness point, the Appellant also appears to raise an argument, albeit not in the Grounds of Appeal, that the hearing was a directions hearing only and they were not ready to deal with a compliance hearing.
6. The notice of hearing stipulated that compliance with the Summons would be part of the hearing on 17 December 2024. The proceedings listed for hearing were not simply for directions in respect of the complaint of non-compliance.
7. This notice was in the context of the Appellant having on 11 November 2024 emailed the Tribunal alleging that the Respondent had failed to produce requested documents, implying that it was not complying with its obligations under the Summons, and applied for the Summons to be referred to a Tribunal member, self-evidently to deal with the allegation of non-compliance.
8. At the commencement of the hearing on 17 December 2024, the Senior Member identified that one of the issues before the Tribunal on that day was in respect of some allegations about non-compliance with the Summons. The Appellant did not protest or challenge that statement and proceeded to argue the case. The other issue concerned the timetable for filing of evidence and submissions.
9. There was, in the circumstances, no denial of procedural fairness by proceeding to hear and determine the Appellant's complaints of non-compliance on the day.
10. As to the other matters raised in the 13 March 2025 submissions set out above:

(1) The transcript demonstrates the following:

(a) The request by the Appellant that she could "put submissions", meaning further submissions, occurred in the context of exchanges between the Senior Member, the representative for the Respondent and the Appellant who asserted that the Respondent had not "contacted GovConnect", a business unit.

(b) In answer to the statement that the Appellant could put a submission about that assertion, the Senior Member indicated that evidence was required to make good the point and that the Appellant had asked for the matter to be set down, inferring that the opportunity to provide evidence had been given to the Appellant.

(c) The Appellant then sought to read out something from the Audit Office's recent audit which, it was said, is in progress and not yet finished, drawn from the Audit Office's website in 2020 - 2021 Infosys.

(d) The Respondent objected to the Appellant providing this as evidence as it had not had an opportunity to consider or test the material.

(e) Following an attempt by the Appellant to then provide "evidence" based on the Appellant having previously been a public servant who could "lodge tickets with GovConnect", the Senior Member pointed out that the issue was whether a person served with a summons is obligated to do what the Appellant was arguing for, by reason of the GIPA, and that there was no evidence that the Respondent had immediate access to the materials.

(2) These exchanges make clear that the further "submission" was directed at the absence of evidence before the Tribunal. It is further clear that the Tribunal did not demand evidence on the spot as claimed. It was made clear that the Appellant could have, but did not, provide evidence at the hearing in support of her complaint of non-compliance with the Summons, brought on before the Tribunal at her specific request.

(3) It is also not correct to say that the Appellant "found evidence". The Appellant's reference to the online Audit Office report was not relevantly probative evidence. In any event it did not establish the Appellant's contentions that the Respondent had the obligation to seek to obtain documents not in its possession nor that the Respondent had a legal entitlement to compel access to the document.

1. These aspects of the Appellant's case do not demonstrate that there was a breach of procedural fairness, let alone a breach that could have affected the result.
2. The Appellant's arguments do not raise a question of law or provide any other basis to grant leave to appeal.

1. Whilst we have above determined that the grounds of appeal do not raise questions of law or important aspects of principle and do not have reasonable prospects, before finally determining the question of whether to grant leave to appeal, we turn to consider the several matters the Appellant specifically relied upon to support an application for leave to appeal.
2. In order to consider the basis upon which leave to appeal was sought, it is necessary to identify what the Tribunal was dealing with in the paragraphs of the Decision relied upon by the Appellant to support the application for leave to appeal.
3. We do not set out all the contents of the paragraphs, or the attack on them made by the Appellant, but note that the question of public importance relied upon and other grounds for leave referred to the following paragraphs of the Reasons, namely paragraphs [3] - [45], [56] and [57].
4. Those paragraphs are concerned with the procedural history, the timetabling for filing of written submissions, compliance with directions previously made, and the Appellant's request to the Tribunal for changes to the timetable which the Tribunal acceded to and then made the observation at [57] (recorded above) of the potential consequences for further default or non-compliance with the timetable, the dismissal of the proceedings or the award of costs (we refer to these as the issues supporting leave).
5. It is necessary to emphasise that the orders sought of the Appeal Panel in the Notice of Appeal, if successful, are concerned only with the Summons and the consequential orders concerning the Summons and not with the issues supporting leave.
6. Of the issues supporting leave, only the last mentioned, concerning [57] of the Decision, requires further consideration. As at 17 December 2024, the Appellant had not complied with earlier directions and was in default of complying with the timetable. The observations by the Tribunal at [57] of the Decision, must be viewed in that light.
7. As we point out above, a new timetable was set on 17 December 2024 allowing the Appellant more time to comply with the directions. The observations, at [57] of the Decision, do not operate as orders or carry any prejudgment as to future consequences. Nor could they. The consequences of future conduct must be viewed in light of the circumstances as known at that time.
8. This aspect of the Appellant's case does not take the application for leave any further than we have already discussed.

1. None of the Grounds of Appeal including when read with the procedural fairness grounds and the other issues relied on in support of leave, raise questions of law, errors of law or questions of principle and we do not consider any of the Grounds, or other arguments, to have merit.
2. There is, in the circumstances, no utility in granting leave.
3. Leave to appeal is refused.

1. In the appeal before us the Appellant appears to maintain that the 2017 SAP Manual will be found in an application or portal known as GovConnect. It was argued that we should take judicial notice of what GovConnect is. Whatever it is, it now seems from what occurred after the decision on 6 January 2025 to be at least an agreed position as between the parties that GovConnect falls under the umbrella of DCS and not the Respondent.
2. The Appellant appears to contend that the steps taken to comply with the Summons were inadequate because the Respondent failed to make a request to DCS for the 2017 SAP Manual, or take other steps to obtain the document which was not in its control.
3. To the extent the Appellant's argument is predicated on a decision of Senior Member McAteer of 20 March 2025 in relation to a summons issued subsequent to the hearing, at the request of the Appellant and addressed to DCS, it fails.
4. The summons issued to DCS was in materially the same form as that issued to the Respondent. The Schedules to each summons included:

"2017 version of SAP User/Operational Manual/Handbook/Guideline of FACS, or ..."

1. In the decision concerning compliance by DCS, Senior Member McAteer held that DCS had indeed complied with its summons. The order made that day was as follows:

"The request under [34] of Procedural Direction 2 in respect of an objection to the summons issued 4 February 2025 by the Applicant to the Department of Customer Service GovConnect NSW is refused after hearing."

1. A Note to the order made on that day states as follows:

"The Tribunal notes and the parties agree that during the hearing of the summons Objection, the third party Department of Customer Service confirmed that they are considering the alternative request by the Applicant for information to be provided on an informal basis to the Applicant, and should be in a position to provide a response to the Applicant on or before 28 March 2025."

1. At its highest, the Appellant may be taken as saying as follows:

(1) The Note records an admission that DCS has access to the 2017 SAP Manual.

(2) If the Respondent had asked DCS for the 2017 SAP Manual, either by way of an application under the GIPA Act or informally, DCS would provide it to the Respondent, so it could produce the document in answer to its Summons.

(3) The Respondent has an obligation to make that request.

1. We do not accept this advances the Appellant's case, for the following reasons:

(1) The fact that DCS offered to assist informally does not constitute an admission that they had possession, custody or control of the SAP Manual.

(2) The "assistance" offered may, self-evidently, involve pulling together information from other documents or sources of information, to provide to the Appellant.

(3) It does not follow, as a matter of course, that because DCS was prepared to assist the Appellant informally, that it could indeed procure the SAP Manual to give to the Respondent, if requested.

(4) Ultimately, Senior Member McAteer held that DCS had complied with its summons. It should therefore be accepted that DCS does not, in fact, have possession, custody or control over the 2017 SAP Manual. DCS would therefore have been unable to provide the document to the Respondent, if requested.

1. Further, the argument proceeds on the premise that a recipient of a summons must make requests of third parties for the documents as part of their compliance with a summons. As we point out above there is no such obligation. What is required is a presently enforceable legal right to obtain the document.
2. None of the Grounds of Appeal, or the matters raised in support of leave to appeal, justify the granting of an order to that effect. There is no reason to disturb our conclusion.

1. After the hearing of the appeal on 2 May 2025, the Appeal Panel made the following order concerning the timetabling of the underlying proceedings, for the reason stated:

"2. In light of the Appeal Panel's decision to reserve the appeal and on the basis that documents the subject of the summons the subject of the appeal are relevant to the substantive hearing, the Appeal Panel vacates the hearing on 22 May 2025 and proposes to relist the matter one month later."

1. On 5 May 2025 the Appellant made an application that the Appeal Panel should amend the order to allow more time. The application said:

"Although the Respondent is ready to proceed with its bundle filed on 5/12/2024, I request 4 weeks to file my bundle/reply, and subject to AP's decision, such time for the Respondent to produce summonsed documents prior to those 4 weeks.

Therefore, I seek an amendment to order 2 to relist the matter at least two months later."

1. As the application concerned a timetable that affected the Respondent, the Appeal Panel invited the Respondent's submissions. The Respondent filed submissions objecting to the Appellant's application and characterised it as an 'Extension Application'.
2. In email correspondence to the Tribunal dated 8 May 2025 and 27 May 2025, the Appellant confirmed and reconfirmed that this amendment request was an application under s 63 of the NCAT Act, the slip rule.
3. We gave the parties the opportunity to make submissions as to whether this issue could be dealt with without a further hearing: s 50 NCAT Act. The Respondent confirmed that the issue could be dealt with without a further hearing. The Appellant requested a hearing in the event we were treating the application as an extension request, but otherwise consented to a hearing being dispensed with.
4. We treat the Appellant's application as a request under s 63 of the NCAT Act, as confirmed by their correspondence to the Tribunal.
5. As the Appellant seeks the correction of an order made by the Appeal Panel at the conclusion of the appeal hearing which was recently conducted, we are satisfied that this is an appropriate case in which to dispense with a hearing; and we dispense with a hearing. We are satisfied that this is in accordance with the requirements of the NCAT Act and the procedural rules.
6. 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 decline to make the amendment sought by the Appellant. The order sought concerns a future listing date (not yet fixed) on which minds may differ as to how much additional time was needed.
2. The underlying matter will be listed for directions to progress the matter for hearing. Appropriate orders for readying the underlying matter for hearing may be made then. No purpose can be served in now granting the request.

1. The Respondent indicated in its written submissions that it would make an application for costs of the appeal. The Respondent took the same position in response to the Appellant's application under the slip rule.
2. A timetable for any such application is included in the orders.

(1) In accordance with s 50(2) of the New South Wales Civil and Administrative Tribunal Act 2013 (NSW) a hearing in relation to the application under s 63 of that Act is dispensed with.

(4) Proceedings number 2024/00314723 is listed for 5 August 2025 at 9.30am.

(5) If a party to the appeal wishes to make an application for costs, the following directions apply:

(a) the party applying for costs (the costs applicant) must, within 14 days after the publication of this decision, give the other party (the costs respondent) and the Registry any submissions and documents the costs applicant intends to rely on in relation to the application, including on the question as to whether costs should be fixed or assessed;

(b) the costs respondent must, within 14 days after receiving the submissions and documents of the costs applicant, give the costs applicant and the Registry any submissions and documents the costs respondent intends to rely on in response to the application for costs;

(c) the costs applicant must, within 7 days after receiving the submissions and documents of the costs respondent, give the costs respondent and the Registry any additional submissions and documents the costs applicant intends to rely on in response to the costs respondent's submissions and documents;

(d) the parties are to include, in their written submissions concerning the application for costs, their submissions about whether they consider that a hearing in relation to the application can be dispensed with pursuant to s 50 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 Civil and Administrative Tribunal of New South Wales.