FZK v Secretary, Department of Communities and Justice (No 5)

1. The Tribunal provided an opportunity to the parties to make submissions on whether a hearing may be dispensed with. The appellant objected to the Appeal Panel dispensing with a hearing and sought additional orders to allow for submissions on the substance of the application, in reply to any submissions supplied by the respondent. The respondent does not object to the Appeal Panel dispensing with a hearing, and filed submissions. The appellant filed a brief submission in reply.
2. As the question of whether s 63 of the NCAT Act is engaged requires an objective assessment of the Decision and the error must be obvious and capable of being made out on the face of the Decision or undisputed materials, then in accordance with s 50 of the NCAT Act, we are satisfied that we can adequately determine the issues in the absence of the parties, based on the written materials. This is consistent with the principles outlined in Council of the Law Society of New South Wales v Sideris (No 2) [2025] NSWCATOD 151 at [27]- [29]. Accordingly, we dispense with a hearing.

1. The Tribunal retains power, after a decision is delivered, to correct "an obvious error in the text of a notice of the decision or a written statement of reasons for the decision": NCAT Act, s 63(1).
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. As identified in FZK v Secretary, Department of Communities and Justice (No 2) [2025] NSWCATAP 144 at [7]:

"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] 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. The Decision the subject of this application concerned an application by the respondent for costs, consequent on an unsuccessful appeal by the appellant. The background and essence of the Decision was summarised by the Appeal Panel in the Decision, at [1] and [2]:

"1 At first instance, the appellant contended that the respondent failed to comply with a summons (the Non-Compliance Hearing). That application was dismissed by a Senior Member on 6 January 2025 (the Compliance Decision). Subsequently, leave to appeal was refused and the appeal was dismissed: FZK v Secretary, Department of Communities and Justice (No 3) [2025] NSWCATAP 150 (the Appeal Decision). The respondent applied for their costs of the appeal, on the basis that there are 'special circumstances' as contemplated by s 60(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

2 For the reasons set out below, including the lack of utility of the appeal, the unmeritorious submissions of the appellant, and unsupported serious allegations made against the Tribunal at first instance and the respondent, we are satisfied that there are indeed special circumstances; and further, that in all the circumstances and in the exercise of our overall discretion, a costs order should be made. Further, to avoid delay and the potential expense of a costs assessment, we are satisfied that an order for costs in a fixed sum is appropriate; however, we have discounted the amount sought by the respondent."

1. The first identified error is said to arise in [55] of the Decision, which provides:

"The respondent submits that the Costs Guideline provides that a party may ask for the fees charged by the lawyer for preparing and running the case. The respondent relies on the work performed by four solicitors employed by the respondent and submits that the levels are appropriate for the performance of work in respect of the appeal."

1. The error is described by the appellant as follows (original emphasis):

"'work performed by four solicitors employed' in light of new evidence published on NCAT's website: fees charged by a...solicitor to represent the client'."

1. The words "NCAT's website" in the appellant's submissions contain a link to a webpage on the Tribunal's website, which we refer to as the NCAT webpage.
2. The second identified error is said to arise at [52] of the Decision, which provides:

"An award of costs is intended to be compensatory and not punitive: Latoudis v Casey (1990) 190 CLR 534 at 567; [1990] HCA 59; Grasso v The Owners - Strata Plan No. 52399 [2022] NSWCATAP 91 at [12(6)]."

1. This error is said to arise "in light of the same NCAT publication", which contains a link to the same NCAT webpage. The appellant extracts the following from the NCAT webpage in their submissions:

"An award of costs is not intended to provide compensation for any and all loss suffered by a party."

1. We note that the sentence extracted by the appellant from the NCAT webpage is directly followed by an additional sentence, which provides:

"Accordingly, a party should not expect to be able to claim for time away from their work, or travel costs such as flights and accommodation."

1. When viewed in context, the reference to "any and all loss" is to the scope of recoverable costs: it does not gainsay that costs are compensatory in nature.

1. The appellant contends that the Decision must be corrected as a result of these errors.
2. The respondent submits:

"Importantly, section 63 does not permit the Tribunal to revisit or alter the substance of its reasoning or findings.

This limitation has been recognised in Appeal Panel authority, including Middleton v Wrona (No 3) [2023] NSWCATAP 341, where the Appeal Panel considered observations of Basten JA in Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners - Strata Plan No 64807 [2023] NSWCA 188.

In Sunaust, Basten JA emphasised that provisions such as section 63 are not intended to permit the reopening of a decision to address substantive issues. Rather, they are confined to correcting obvious or mechanical errors in the expression of a decision."

1. The respondent further submits that the correction application does not identify any obvious error within the meaning of s 63 of the NCAT Act and noted that the appellant appears to rely on what is described as "new evidence"; which is material published on the Tribunal's website. The respondent highlights that s 63 is not intended to facilitate amendments to reasons based on material subsequently identified by a party.
2. The respondent further submits as follows:

(1) With respect to [52] of the Decision, that it "forms part of the Appeal Panel's reasoning and its articulation of the relevant legal principles concerning costs"; and "does not contain any clerical or typographical error, nor any accidental slip or omission".

(2) With respect to [55] of the Decision, that it "reflects the Appeal Panel's summary of the Respondent's submissions and is a deliberate part of the Tribunal's written reasons. The change proposed by the Appellant would alter the substance of how the Respondent's submissions are described, rather than correct any obvious error".

1. The respondent submits that the correction application should be refused, stating:

"These paragraphs of the [Decision] are intentional and deliberate. They do not contain any clerical mistakes or typographical errors. The Appellant's correction application should therefore be refused."

"The Respondent is not authorised to submit, on behalf of the Appeal Panel, that errors in paragraph 52 'are intentional and deliberate'.

The Respondent's submissions doesn't change the fact, but admits, Appeal Panel's reasoning are erroneous, therefore, s63 correction is warranted.

Alternatively, given Respondent admits errors in Paragraph 55 'are intentional and deliberate', setting-aside the decision is warranted."

1. We are satisfied that paragraphs [52] and [55] of the Decision do not contain a type of error covered by s 63 of the NCAT Act, for which we might "direct a registrar to alter the text of the notice or statement" (NCAT Act, s 63(1)). To the extent that the appellant suggests that the respondent accepts the errors are errors of substance and warrant the setting aside of the Decision, we do not apprehend that to be the respondent's submissions. However, assuming that to be the tenor of the respondent's submissions, a deliberate or intentional statement made in a Decision, even if that statement is proved later to be wrong, is not something that can be corrected under s 63 of the NCAT Act: Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners - Strata Plan No 64807 [2023] NSWCA 188 at [154]- [159].
2. Section 63 provides an efficient mechanism under which the President or the presider (even on a multi-member panel), may direct the change be made. This underscores the position we take, that an objective assessment of the Decision is required; and the error must be obvious and capable of being made out on the face of the Decision or undisputed materials. That test is not met here.
3. Further, we note several difficulties with the application. First, paragraphs [52] and [55] of the Decision are not inconsistent with the NCAT webpage, as particularised by the appellant, so there is no obvious error. Second, the application takes out of context the observations, contained at [52] and [55] of the Decision, which are consistent with the principles stated throughout the Decision. Third, the application also takes out of context the NCAT webpage, to the extent that they have relevance to the particular facts of the Decision.
4. We consider that the application seeks to disturb the decision on substantive grounds and has the purpose of "re-agitating arguments already considered" by the Tribunal (Hunt Leather Pty Ltd v Transport for NSW (No 2) [2026] HCA 4 at [6] (Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ) citing Autodesk Inc v Dyason [No 2] [1993] HCA 6; (1993) 176 CLR 300 at 303); rather than being based on one of the examples of error set out in s 63(3) of the NCAT Act, or anything akin to those identified obvious errors.
5. The application is refused.

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

(2) The application to correct paragraphs [52] and [55] of the reasons for decision of the Appeal Panel in FZK v Secretary, Department of Communities and Justice (No 4) [2025] NSWCATAP 278, 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.