Grabovsky v Department of Communities and Justice

"We were unable to assess your application as you have not provided sufficient evidence or responded to our attempts to contact you."

1. The Appellant disputes the claim made in the Social Housing Decision and contends that the Decision was both factually and legally erroneous.

1. The Appellant lodged an application with the Tribunal dated 19 December 2024 seeking an administrative review of the Social Housing Decision (the Administrative Review Application). The named respondent was "Department of Communities and Justice − Housing Pathways". The Administrative Review Application also referred to the decision of the Secretary, which we take to be a reference to the Secretary of the Department of Communities and Justice.
2. The grounds stated in the Administrative Review Application were as follows:

(1) The Secretary's decision is erroneous as to the fact and to the law.

(2) The Secretary failed to review a decision on the Appellant's numerous objections or to provide legally sustainable justification for its decision.

1. The Appellant sought an extension of time to lodge the Administrative Review Application because it was lodged almost 3 years after the date of the Social Housing Decision. Ordinarily, an administrative review application concerning a decision must be lodged within 28 days after the finalisation of an internal review of the decision or, if the applicant has not sought an internal review, within 28 days after being notified of the decision: Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), r 24(3)(a) and (4).
2. The Appellant contended that the reason for the lodgment delay was that he was using alternative dispute resolution to resolve the dispute and that he commenced legal action only when all reasonable avenues for resolution had been explored.

1. The Administrative Review Application was dismissed by the Tribunal at first instance on 11 February 2025 on the ground that the Tribunal did not have jurisdiction to determine the Application.
2. The Tribunal considered that the Administrative Review Application raised the following three issues:

(1) Should the Appellant be given an extension of time within which to make the application (the usual time limit being 28 days)?

(2) Does the Tribunal lack jurisdiction to determine the application in the absence of an internal review as required under the Administrative Decisions Review Act 1997 (NSW) (ADR Act)?

(3) Is the decision in fact an administratively reviewable decision?

1. The Tribunal dealt first with the issue of whether the Tribunal had jurisdiction to determine the Administrative Review Application.
2. The Tribunal concluded that the Tribunal did not have jurisdiction because neither party was able to identify an Act of Parliament that enabled an application for an administrative review of the Social Housing Decision to be made to the Tribunal. In particular, it found that the Housing Act 2001 (NSW) (Housing Act) did not confer such jurisdiction even though the Respondent claimed that it had made the Decision under that Act. Consequently, the Tribunal reasoned that the Social Housing Decision was not an "administratively reviewable decision" for the purposes of the ADR Act.
3. Having found that the Tribunal had no jurisdiction to determine the Administrative Review Application, the Tribunal decided that there was no need to consider the other issues raised by the Application.

1. The Appellant lodged his first appeal 2025/00093548 on 10 March 2025 (Appeal 1). The appeal is against the decision of the Tribunal at first instance to dismiss the Administrative Review Application because the Tribunal did not have jurisdiction to determine it.
2. The notice of appeal states that Appeal 1 involves questions of law for which leave to appeal is not required. The notice does not seek leave to appeal in the alternative. The following questions of law are identified (with changes we have made to reflect the terms we have defined for these reasons):

(1) Can the decision of the Tribunal be deemed as legitimate and binding on the parties if the applicable law for determination of facts is not established by the Tribunal?

(2) Can the decision of the Tribunal be deemed legitimate and binding on the parties if the Tribunal made its determination with the full knowledge that key information, upon which the decision is based, is false and misleading in a material particular?

(3) May the Tribunal dismiss the Administrative Review Application if the Respondent's decision is made in violation of legislation (the ADR Act and the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act)) that regulate activities of the Tribunal?

(4) Can the decision of the Tribunal be deemed legitimate and binding on the parties if in arriving at its decision the Tribunal refused to exercise its duty (be it function, jurisdiction, authority, care or power) rendering ineffective provisions of the Acts of Parliament crucial for determination of the Administrative Review Application?

1. The notice of appeal seeks to have the Appeal Panel set aside the decision of the Tribunal at first instance and for the matter to be remitted to the Tribunal "for the purpose of determining the legitimacy of the Respondent's policies, authority and conduct in relation to assessment of the Appellant's application for social housing".
2. The notice of appeal also seeks the following orders (which we summarise):

(1) A direction for the Respondent to comply with s 45 of the NCAT Act. Section 45 deals with the representation of parties in proceedings in the Tribunal.

(2) A direction for the Respondent to produce a written authority by the officeholder with the statutory power to act in the name of the Respondent which contains specified information about the representative of the Respondent.

(3) A direction to the authorised representative of the Respondent to produce a certificate of reasonable prospects of success for the purposes of Sch 2 to the Legal Profession Uniform Law Application Act 2014 (NSW).

Clause 4(2) of Sch 2 to that Act provides that a law practice cannot file court documentation on a claim or defence of a claim for damages unless a principal of the practice, or a legal practitioner associate responsible for the provision of the legal service concerned, certifies that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success.

(4) A direction that the Respondent lodge a statement of reasons for the Social Housing Decision pursuant to s 58(1)(a) of the ADR Act.

Section 58 of the ADR Act requires an administrator to lodge certain documents (including any statement of reasons for a decision) with the Tribunal if an administrative review application concerning the decision has been lodged with the Tribunal.

(5) A direction pursuant to s 58(1) of the ADR Act that the Respondent lodge certain other documents relevant to the determination of the Administrative Review Application.

(6) A request pursuant to s 64 of the ADR Act for the Premier or relevant Minister to certify in writing what the relevant government policy was at the time the Appellant lodged his application for social housing.

Section 64 of the ADR Act enables the Premier or a Minister to certify that a particular policy was Government policy in relation to a particular matter.

1. In the alternative, the notice of appeal requests that the identified questions of law be referred to the Supreme Court under s 54 of the NCAT Act for determination. Section 54 of the NCAT Act enables the Tribunal (including when constituted as an Appeal Panel), either of its own motion or at the request of a party, to refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court. A question can be referred only with the consent of the President of the Tribunal.

Interlocutory decisions made in relation to Appeal 1 and Appeal 2

1. There have been several interlocutory decisions made in relation to Appeal 1 and Appeal 2 in response to applications made by the Appellant.
2. We note that Principal Member Robertson, who is one of the members of this Appeal Panel, made some interlocutory orders concerning Appeal 1 at a callover on 26 March 2025. At the hearing before us, the Appellant did not object to the Principal Member's participation in these proceedings. In any event, the matters for determination by the Appeal Panel do not involve a direct challenge to the interlocutory orders made by the Principal Member.
3. It is not necessary for us to detail all the interlocutory applications and decisions made in relation to Appeal 1 and Appeal 2. Only the following are significant for these proceedings.

Applications for summonses to call witnesses, Appeal 2 and related stay application

1. On 3 July 2025, the Appellant filed applications for summonses to be issued for the following persons to give evidence:

(1) Mr Michael Tidball, the Secretary of the Department of Community and Justice;

(2) Mr Michael Daley, the NSW Attorney General;

(3) Ms Michelle Brazel, the Principal Registrar of the Tribunal;

(4) Ms Kay Ransome, Principal Member of the Tribunal (who constituted the Tribunal at first instance).

1. A registrar of the Tribunal (the Registrar) refused the applications on 4 July 2025. On 10 July 2025, the Appellant lodged his second appeal (2025/00264892) against these refusal decisions (Appeal 2).
2. The notice of appeal for Appeal 2 states grounds that are also expressed to involve questions of law for which leave to appeal is not required. Again, the Appellant does not seek leave to appeal in the alternative. The grounds are as follows:

(1) Can the decisions of the Registrar be deemed as legitimate if the Registrar's action denies the attendance of expert and material witnesses vital for the Tribunal to exercise its statutory duty (be it power, authority, function, care or jurisdiction)?

(2) Can a decision be deemed as legitimate if the Registrar made its decision on assumption, ignoring information provided in the applications?

(3) Can a decision be deemed as legitimate if the stated decisions are inconsistent with the stated reasons?

1. The notice of appeal for Appeal 2 seeks the following orders:

(1) An order adjourning the proceedings for Appeal 1 and vacating the hearing date for Appeal 1 until Appeal 2 is decided.

(2) An order staying the decisions of the Registrar pending the hearing of Appeal 2.

(3) An order directing the Registrar to issue the summonses.

1. The Appellant also lodged a separate application on 10 July 2025 seeking an order staying the decisions of the Registrar pending the hearing of Appeal 2 (the Registrar Stay Application). A differently constituted Appeal Panel (constituted by Principal Member G Blake AM SC) made an order on the same day listing the Registrar Stay Application for hearing before us on 17 July 2025 along with Appeal 2.
2. We note that the Appeal Panel stated the following in the orders it made that day:

"The Tribunal notes that the Appellant will need to address the question whether the Appeal should be dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) by reason of the absence of internal appeal jurisdiction over the decision made by the Registrar on 4 July 2025 to refuse to issue a summons to the following persons, having regard to the combined effect of s 32(1)(b) of the NCAT Act and r 41 of the Civil and Administrative Tribunal Rules 2014 (NSW):

(1) Michael Tidball, the Secretary of DCJ;

(2) Michael Daley, the Attorney General of NSW;

(3) Michelle Brazel, the Principal Registrar of the NCAT;

(4) Kay Ransome, Principal Member of the NCAT."

1. The quoted passage is clearly directed to the Appellant and what he might need to address in the hearing before us. It is not unusual for an Appeal Panel at an interlocutory stage to suggest issues for self-represented appellants to address at the substantive hearing of the appeal. This is consistent with the benevolent approach taken by Appeal Panels to appeals by self-represented appellants: Cominos v Di Rico [2016] NSWCATAP 5 at [13]. Consequently, we do not understand the note to be an attempt (as the Appellant suggests) to preclude us from making our own independent decisions concerning Appeal 2 and the Registrar Stay Application.

Stay of interlocutory decisions of differently constituted Appeal Panel

1. On 7 July 2025, the Appeal Panel (again constituted by Principal Member G Blake AM SC) made the following orders:

(1) An order dispensing with a hearing for an application made by the Respondent for an extension of time to comply with order 3 made by the Appeal Panel on 26 March 2025. We note that order 3 required the Respondent to lodge evidence and submissions for Appeal 1 by a specified date.

(2) An order extending the time for compliance with order 3 until 2 July 2025. It appears that the Respondent lodged the transcript of the proceedings before the Tribunal at first instance pursuant to this extension.

(3) An order noting that Appeal 1 remained listed for hearing on 17 July 2025 before us.

(4) An order made of the Tribunal's own motion declining to call the Secretary of the Department of Community and Justice and the NSW Attorney General to give evidence on 17 July 2025.

1. The Appeal Panel gave the following reasons for its orders:

"1. With the Appellant not objecting, I am satisfied that it is appropriate to make an order extending time for the Respondent to comply with order 3 made on 26 March 2025 to 2 July 2025 as the extension of time can be made without jeopardising the hearing of the Appeal on 17 July 2025 at 10.15 AM in Sydney. I do not accept that the extension of time to enable the Respondent to provide a transcript of the hearing at first instance will cause any material prejudice to the Appellant.

2. Section 46(1)(a) of the NCAT Act confers power on the Tribunal to call a witness of its own motion. The Tribunal declines to call as witnesses Michael Tidball, the Secretary of the Department of Communities and Justice, and Michael Daley MP, the Attorney General of New South Wales, for the hearing of the Appeal on 17 July 2025 at 10.15 AM in Sydney on the request of the Appellant made on 3 July 2025.

3. Internal appeals against an internally appealable decision may be made in the case of an interlocutory decision with leave of the Appeal Panel, and in the case of any other kind of decision (including an ancillary decision) as of right on a question of law, or with the leave of the Appeal Panel, on any other grounds. The Appeal Panel may decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances: s 80(1), (2) and (3) of the NCAT Act.

4. A new hearing under s 80(3)(a) of the NCAT Act is where the Appeal Panel hears the matter afresh. However, an appeal is conducted on such a basis only where, in its discretion, the Appeal Panel decides to conduct it as a 'new hearing' because it is satisfied that 'the grounds of appeal warrant a new hearing'. Otherwise, internal appeals to the Appeal Panel are not determined by way of a new hearing but by way of rehearing on the materials before the Tribunal below in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error, and has power to receive additional evidence: Yuen v Thom [2016] NSWCATAP 243 at [15]- [17]; cited in ZOF v NSW Trustee and Guardian [2020] NSWCATAP 167 at [102]. In ZOF at [103]−[107], the Appeal Panel decided to exercise the discretion to deal with the appeal by way of a new hearing permitting the new evidence filed in the appeal to be considered after first having concluded that the Tribunal below made a material error, and adjourned the appeal to a date to be fixed by the Registrar.

5. There has been no decision to conduct [sic] by the Appeal Panel to conduct a new hearing. In these circumstances, it is inappropriate to call Messrs Tidball and Daley as witness for the hearing of the Appeal on 17 July 2025 at 10.15 AM in Sydney."

1. The Appellant lodged an application on 14 July 2025 for a stay of these orders of the Appeal Panel (the Appeal Panel Stay Application).
2. On 14 July 2025, the Appeal Panel (again constituted by Principal Member G Blake AM SC) listed Appeal 2 and the Appeal Panel Stay Application for hearing before us on the same day as Appeal 1. We note that the Appeal Panel also stated the following:

"The Tribunal notes that the Appellant will need to address the question whether the Application for a Stay lodged by the Appellant on 14 July 2025 should be dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) by reason of the absence of internal appeal jurisdiction over the decision made by Principal Member G Blake AM SC on 7 July 2025 to dispense with a hearing and to grant an extension of time for the Respondent to comply with direction 3 made on 26 March 2025, and to decline to call as witnesses Michael Tidball, the Secretary of the Department of Communities and Justice, and Michael Daley MP, the Attorney General of New South Wales, for the hearing of the Appeal on 17 July 2025 at 10.15 AM in Sydney, having regard to the effect of s 32(3)(a) of the NCAT Act."

1. Again, the quoted passage is clearly directed to the Appellant and what he might need to address in the hearing before us and is consistent with interlocutory practices followed by Appeal Panels with respect to self-represented appellants. Consequently, we also do not understand the note to be an attempt (as the Appellant suggests) to preclude us from making our own independent decisions concerning the Appeal Panel Stay Application.

1. Finally, the Appellant has made applications seeking to adjourn Appeal 1 and Appeal 2 (Appeal Adjournment Applications). At the hearing, the Appellant pressed these applications on the basis that Appeal 1 could not be determined unless Appeal 2 was first determined.

Summary of matters for consideration by Appeal Panel

1. It follows from the above that the following matters are before the Appeal Panel for consideration in these proceedings:

(1) Appeal 1;

(2) Appeal 2;

(3) the Registrar Stay Application;

(4) the Appeal Panel Stay Application;

(5) the Appeal Adjournment Applications.

1. Section 80 of the NCAT Act permits a party to proceedings in which the Tribunal makes an "internally appealable decision" to appeal the decision to an Appeal Panel.
2. An internally appealable decision is a decision of the Tribunal or a registrar over which the Tribunal has internal appeal jurisdiction: NCAT Act, s 32(4). Section 32(1) provides that the Tribunal has internal appeal jurisdiction over the following decisions -

(1) any decision made by the Tribunal in proceedings for a general decision or administrative review decision (s 32(1)(a));

(2) any decision made by a registrar of a kind that is declared by the NCAT Act or the procedural rules to be internally appealable for the purposes of s 32 (s 32(1)(b))

Decisions of Tribunal that are internally appealable decisions

1. Section 32(1)(a) of the NCAT Act limits internal appeal jurisdiction over decisions of the Tribunal to "any decision made by the Tribunal in proceedings for a general decision or administrative review decision".
2. A general decision of the Tribunal is a decision of the Tribunal determining a matter over which it has general jurisdiction: NCAT Act, s 29(3). Section 29(1) of the NCAT Act provides that the Tribunal has general jurisdiction over a matter if:

(1) legislation (other than the NCAT Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter; and

(2) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal.

1. The word "legislation" mentioned in s 29(1) is defined by s 4(1) of the NCAT Act to mean an Act or a statutory rule. An "Act" means an Act of the NSW Parliament: Interpretation Act 1987 (NSW) (Interpretation Act), ss 3(3) and 65 and Dictionary (definition of "Parliament"). A "statutory rule" means a regulation, by-law, rule or ordinance made, or approved or confirmed, by the Governor or a rule of court: Interpretation Act, s 3(3) and Dictionary (definition of "statutory rule").
2. An administrative review decision of the Tribunal is a decision of the Tribunal determining a matter over which it has administrative review jurisdiction: NCAT Act, s 30(5). Section 30(1) of the NCAT Act notes that the ADR Act provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator.
3. Section 9 of the ADR Act in turn provides that Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the ADR Act of any such decision (or class of decisions) made by the administrator in the exercise of functions conferred or imposed by or under, or identified by, the legislation.
4. The term "enabling legislation" used in s 9 of the ADR Act is defined by s 4(1) to mean legislation (other than the ADR Act or any statutory rules made under the ADR Act) that:

(1) provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or

(2) otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters.

1. The word "legislation" mentioned in the definition of "enabling legislation" is defined for the ADR Act in the same way as the word is defined for the NCAT Act: ADR Act, s 4(1). We note the term "enabling legislation" is defined in a similar way for the NCAT Act as the term is defined for the ADR Act: NCAT Act, s 4(1) (definition of "enabling legislation"). The only difference is in the legislation that is excluded. The ADR Act definition excludes the ADR Act or any statutory rules made under the ADR Act while the NCAT definition excludes the NCAT Act or any statutory rules made under the NCAT Act.
2. The definitions of "general jurisdiction" and "administrative review jurisdiction" identify jurisdiction by reference to functions conferred or imposed by or under, or identified by, legislation apart from the NCAT Act and ADR Act respectively. However, the Tribunal's general jurisdiction and administrative review jurisdiction are mutually exclusive. This is because s 29(1)(b) of the NCAT Act defines general jurisdiction over a matter so as to exclude matters over which the Tribunal has other kinds of jurisdiction, including administrative review jurisdiction. As a result, the Tribunal's general jurisdiction operates as a default for jurisdiction that does not fit into one of the Tribunal's other kinds of jurisdiction. Nevertheless, legislation apart from the NCAT Act or ADR Act is still required to authorise the Tribunal to make the decisions concerned.
3. The Tribunal in proceedings for the exercise of either its general jurisdiction or administrative review jurisdiction also has jurisdiction to make ancillary decisions: NCAT Act, ss 29(2)(a) and 30(2)(a). An ancillary decision is defined to include a decision concerning whether the Tribunal has jurisdiction to deal with a matter: NCAT Act, s 4(1) (definition of "ancillary decision").
4. A decision by the Tribunal that it does not have general jurisdiction or administrative review jurisdiction over a matter is also a decision over which there is internal appeal jurisdiction because it is a "decision made by the Tribunal in proceedings for a general decision or administrative review decision" within the meaning of s 32(1)(a) of the NCAT Act. Consequently, such a decision falls within the term "internally appealable decision".
5. However, it is important to note that s 32(3)(a) of the NCAT Act expressly states that the internal appeal jurisdiction of the Tribunal does not extend to any decision of an Appeal Panel. In other words, there cannot be an internal appeal against a decision of an Appeal Panel because the absence of internal appeal jurisdiction means the decision is not an internally appealable decision. A party to an internal appeal who wishes to appeal against a decision of the Appeal Panel must appeal the decision to the Supreme Court rather than to another Appeal Panel: NCAT Act, s 83(1).

Decisions of registrars that are internally appealable decisions

1. Section 32(1)(b) makes it clear that not all decisions of a registrar fall within the internal appeal jurisdiction of the Tribunal and, consequently, the term "internally appealable decision". The decisions must be decisions declared to be internally appealable decisions by the NCAT Act or the procedural rules. The procedural rules are defined to mean Tribunal rules or the regulations in their application to practice and procedure: NCAT Act, s 4(1) (definition of "procedural rules").
2. Decisions made by registrars in exercise of certain guardianship functions (which are not presently relevant) are declared to be internally appealable decisions by the NCAT Act itself: NCAT Act, Sch 6, cl 8. In addition, r 41(4) of the NCAT Rules declares the decisions made by a registrar under r 41 to be internally appealable decisions. Rule 41(1) sets out the decisions that a registrar can make under r 41:

(1) A registrar may, at the direction of the President or a Division Head, make any of the following interlocutory decisions of the Tribunal on behalf of the Tribunal -

(a) a decision under section 41 of the Act concerning the extension of the period of time for the doing of a thing under legislation in connection with proceedings,

(b) a decision under section 45 of the Act concerning the granting or revocation of leave for a person to represent a party to proceedings,

(c) a decision under section 45(4)(a) or (b) of the Act concerning the appointment of a person to act as guardian ad litem for a party, or represent a party, in proceedings,

(d) a decision under section 45(4)(c) of the Act concerning the making of an order for a party to be separately represented in proceedings,

(e) a decision under section 55(1)(a) or (d) of the Act concerning the dismissal of proceedings,

(f) a decision under section 64(1)(d) of the Act concerning the making of an order prohibiting or restricting the disclosure of evidence or documents in proceedings,

(g) a decision under clause 10 of Schedule 6 (Guardianship Division) to the Act concerning the granting of consent for the withdrawal of an application in proceedings,

(h) a decision concerning the setting aside of a summons or excusing compliance with a summons in connection with proceedings,

(i) a decision concerning the granting of access to documents or things produced in compliance with a summons in proceedings.

1. We note that the only decisions of a registrar concerning summonses that are declared to be internally appealable decisions by r 41(4), when read in combination with r 41(1), are decisions "concerning the setting aside of a summons or excusing compliance with a summons in connection with proceedings". A decision concerning the issue of a summons is not included.

1. Section 80(2)(a) of the NCAT Act provides that appeals against interlocutory decisions require the leave (that is, permission) of the Appeal Panel. However, s 80(2)(b) provides that appeals against other kinds of decisions (including ancillary decisions) may be made as of right on a question of law, or with the leave of the Appeal Panel, on any other grounds.
2. It will be seen that s 80(2) draws a distinction between appeals against interlocutory decisions of the Tribunal and appeals against other decisions of the Tribunal (including ancillary decisions).

1. The requirement imposed by s 80(2)(a) of the NCAT Act for leave from the Appeal Panel to appeal applies to all interlocutory decisions. The term "interlocutory decision" is defined in s 4(1) as follows:

interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following -

(a) the granting of a stay or adjournment,

(b) the prohibition or restriction of the disclosure, broadcast or publication of matters,

(c) the issue of a summons,

(d) the extension of time for any matter (including for the lodgment of an application or appeal),

(e) an evidential matter,

(f) the disqualification of any member,

(g) the joinder or misjoinder of a party to proceedings,

(h) the summary dismissal of proceedings,

(h1) the granting of leave for a person to represent a party to proceedings,

(i) any other interlocutory issue before the Tribunal.

1. This may be contrasted with appeals against ancillary decisions of the Tribunal for which leave is required only if the appeal ground does not raise a question of law: NCAT Act, s 80(2)(b). The term "ancillary decision" is defined by s 4(1) as follows:

ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including -

(a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and

(b) a decision concerning the awarding of costs in proceedings.

1. The relevant principles applicable to exercising the discretion to grant leave to appeal against an interlocutory decision were stated in Houda v Seraphim [2025] NSWCATAP 135 at [32]−[35]:

"32 Leave to appeal should only be granted when there are substantial reasons to warrant leave being granted. These reasons include the presence of an error of principle in the decision under appeal, resulting in substantial injustice. For leave to be granted, the decision under appeal must generally be attended with sufficient doubt to warrant its consideration on appeal (see e.g. Champion Homes Pty Ltd v Guirgus [2018] NSWCATAP 54 (Champion Homes) at [35]; FFO v Cumberland Council [2022] NSWCATAP 164 (FFO) at [9]; Bettington at [22]).

33 As recently noted by an Appeal Panel in Commissioner for Fair Trading v PSMG Pty Ltd [2025] NSWCATAP 34, leave to appeal against an interlocutory decision is reserved for cases with special features warranting appellate review and such appeals are not to be brought as a matter of routine. While it is unnecessary and unwise to lay down rigid and exhaustive criteria, there is a general requirement that there be an error of principle and a risk of substantial injustice if leave was not granted, although these are not necessarily cumulative: [23]-[29].

34 NCAT Appeal Panels have stated, in a number of decisions, that where an application for leave to appeal relates to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions: see e.g. Collins v Urban [2014] NSWCATAP 17 (Collins) at [84(3)] citing BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21]; Champion Homes at [35].

35 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 Collins. It is only if the decision is affected by sufficient doubt, to warrant its reconsideration on appeal, that leave will be granted. Usually, it is appropriate to grant leave where there is an issue of principle, a question of public importance or an injustice which is reasonably clear, and beyond what is merely arguable: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]. As explained in Collins at [84], it is not sufficient merely to show that the Tribunal below was arguably wrong or that there was a bona fide challenge to an issue of fact."

Appeals against non-interlocutory decisions (including ancillary decisions)

1. If an internal appeal is not against an interlocutory decision, s 80(2)(b) applies to the grounds of appeal. That provision draws a distinction between grounds raising a question of law (for which no leave is required) and other grounds (for which leave is required)
2. The Appeal Panel in Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30 at [21]-[23] summarised the relevant principles concerning the identification of questions of law for the purposes of s 80(2)(b) in the following terms:

"21 There are several important cases relevant to the construction of s 80 of the NCAT Act. These were recently referred to in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25].

22 The Appeal Panel there said, inter alia, that:

(1) Absent leave to appeal, the question of law is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Medical Council of New South Wales v Mooney [2024] NSWCA 180 (Mooney) at [97].

(2) The question of law should be articulated with precision: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Kudrynski v Orange City Council [2024] NSWCA 33 at [48], Mooney at [97], Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [28].

(3) A question of law means a pure question of law: Wilson v Chan & Naylor Parramatta Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11].

(4) A 'pure question of law' does not depend on facts not found: Orr v Cobar Management Pty Ltd [2020] NSWCCA 2020 at [48] and [109].

(5) A mixed question of fact and law is not a question of law: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWCA 734 at [39].

(6) An appeal is 'on' any question of law: s 80(2) of the NCAT Act. The question of law must not be hypothetical or arid: Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [90]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353-354; [1990] HCA 33.

(7) An appeal is against orders and not reasons: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 at [34], Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 at [217], Kramer v Stone [2023] NSWCA 270 at [259]. Therefore, the question of law must be capable of affecting the orders the subject of the appeal.

23 Recently in Donohoe v Albulario [2025] NSWSC 9, Basten AJ identified that when a question of law arises as to whether proceedings were procedurally fair it may be appropriate and necessary, on appeal, to make findings about what occurred at the hearing. His Honour noted at [33] (footnotes omitted):

'To the extent that there is a fact/law dichotomy, the facts which are not to be reviewed by the appeal court dealing with a question of law are the facts relevant to the matter in dispute. There is a categorical distinction between the facts in dispute (what part of the building was completed?) and facts relating to the composition or conduct of the Tribunal.' "

1. A question of law is a pure question of law in the sense mentioned in the passage above if its answer does not require the Appeal Panel to resolve disputed facts: Damico v Secretary, Department of Customer Service [2025] NSWCATAP 109 at [43]. However, this does not prevent an Appeal Panel from making necessary findings of fact if the ground of appeal is the denial of procedural fairness: Donohoe v Albulario [2025] NSWSC 9 at [33].
2. Examples of questions of law include the following:

(1) Whether the Tribunal at first instance has jurisdiction to determine a matter: Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176 (FYH) at [21]−[26].

(2) Whether there has been a material denial of procedural fairness by the Tribunal at first instance: FVA v Commissioner of Police, NSW Police Force [2024] NSWCATAP 127 at [83]−[84].

(3) Whether the Tribunal at first instance asked itself the wrong question or misconstrued the statute: Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54 at [66].

1. The principles to be applied when exercising the discretion to grant leave to appeal conferred by s 80(2)(b) were stated in Collins v Urban [2014] NSWCATAP 17 at [84]:

"84 The general principles derived from these cases can be summarised as follows:

(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed,

BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];"

1. We note that, despite the submissions of the Respondent, the additional limitations imposed on the granting of leave by cl 12 (1) of Sch 4 to the NCAT Act do not apply to Appeal 1. These limitations apply only to appeals from decisions made in the Consumer and Commercial Division of the Tribunal. The Tribunal at first instance was sitting in the Administrative and Equal Opportunity Division.

Are decisions to dismiss proceedings for want of jurisdiction interlocutory or ancillary decisions?

1. There has been some debate concerning whether appeals against decisions of the Tribunal dismissing proceedings for want of jurisdiction are interlocutory decisions or ancillary decisions.
2. The debate has its genesis in observations made by Basten JA in AQO v Minister for Finance and Services (2016) 93 NSWLR 46; [2016] NSWCA 248 at [127]. The debate arises from the definitions of interlocutory decision and ancillary decision which we have set out above.
3. The term "interlocutory decision" is defined to include a summary dismissal of proceedings and also any other interlocutory decision: NCAT Act, s 4(1) (paras (h) and (i) of the definition of "interlocutory decision"). The introductory words of the definition "ancillary decision" defines the term to mean a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings: NCAT Act, s 4(1). However, the definition of "ancillary decision" also expressly provides that a decision concerning whether the Tribunal has jurisdiction to deal with a matter is included in the term.
4. In FYH, the Appeal Panel held that a decision refusing an application for summary dismissal for want of jurisdiction was an ancillary decision. The Appeal Panel stated at [21]-[22]:

"21 ... For the following reasons we consider the Decision was an ancillary decision:

(1) It concerned whether the Tribunal has jurisdiction to deal with an application - a matter expressly referred to in the definition of "ancillary decision".

(2) The Tribunal's first task is to determine whether it has jurisdiction: as referred to above. The Decision was, therefore, preliminary to determination of the application - a matter detailed in the chapeau to the definition of 'ancillary decision'.

(3) The importance of determining jurisdiction is so critical to the Tribunal's function, that leave should not be required if there is an allegation of error on a question of law.

22 On the ground that the appellant's application for summary dismissal was based on the contention that the Tribunal lacked authority to decide the matter, the Decision is an ancillary decision."

1. We are content, for the reasons given by the Appeal Panel in FYH at [21]−[22], to treat the decision of the Tribunal at first instance dismissing the Administrative Review Application for want of jurisdiction as an ancillary decision rather an interlocutory decision.
2. That said, we would add an additional reason to those stated in FYH concerning why decisions about jurisdiction should be treated as ancillary decisions even if they might otherwise also be characterised as interlocutory decisions.
3. The point of having express inclusions in a definition is to put beyond doubt that the inclusion is covered by the definition where it is uncertain that the general words of the definition would include it or to include an exception to those general words. As noted in Perry Herzfeld and Thomas Prince, Interpretation (3rd ed, 2024, Thomson Reuters) at [3.70]:

"The words 'means' and 'includes' are sometimes used in combination, in the form 'X means Y and includes Z'. That exhaustively defines X to mean Y but makes it clear, by way of clarification or extension, that this includes Z."

See also Cheetham v Goulburn Motorcycle Club Inc [2017] NSWCA 83 at [48] (Basten JA).

1. This is the approach taken for the definition for "ancillary decision". Accordingly, the inclusion of decisions concerning whether the Tribunal has jurisdiction suggests an intention for such decisions to be treated as ancillary decisions even if they might otherwise not have fallen within the general words of the definition because they could have been characterised as interlocutory decisions.

1. Section 81(1) of the NCAT Act provides that an Appeal Panel may, in determining an internal appeal, make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following:

(1) the appeal to be allowed or dismissed;

(2) the decision under appeal to be confirmed, affirmed or varied;

(3) the decision under appeal to be quashed or set aside;

(4) the decision under appeal to be quashed or set aside and for another decision to be substituted for it;

(5) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.

1. In addition, s 81(2) of the NCAT Act provides that the Appeal Panel may, when confirming, affirming or varying, or making a decision in substitution for, a decision under appeal, exercise all the functions that are conferred or imposed by the NCAT Act or other legislation on the Tribunal at first instance and may exercise those functions on grounds other than those relied upon at first instance.
2. If a decision of the Tribunal has been appealed to an Appeal Panel by way of an internal appeal, s 43 of the NCAT Act also enables the Appeal Panel to make orders staying or otherwise affecting the operation of the decision. The section provides as follows:

43 Effect of pending general applications and appeals

(1) This section applies to the making or lodgment of any of the following (a pending general application or appeal) -

(a) a general application for the review or other re-examination of a decision made by an external decision-maker,

(b) an external appeal,

(c) an internal appeal.

Note.

See Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 for the effect of pending administrative review applications on administratively reviewable decisions and the making of orders staying or otherwise affecting such decisions.

(2) A pending general application or appeal does not affect the operation of the decision to which the application or appeal relates, or prevent the taking of action to implement the decision, unless the Tribunal makes an order staying or otherwise affecting the operation of the decision.

(3) The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal.

Constitution of Appeal Panels

1. We will briefly say something about the way in which Appeal Panels are constituted because the Appellant at the hearing before us expressed some disquiet about the way in which the Appeal Panels for his case had been constituted.
2. Section 27(1) of the NCAT Act provides that the Tribunal for an internal appeal is to be constituted by an Appeal Panel consisting of one member of the Tribunal who is an Australian lawyer or two or more members (at least one of whom must be an Australian lawyer). An Australian lawyer is a person admitted to the Australian legal profession: Interpretation Act, s 3(3) and Dictionary (definition of "Australian lawyer"). Section 29(2) enables the President of the Tribunal to give or revoke directions as to the members of the Tribunal who are to constitute the Tribunal for the purposes of any particular proceedings.
3. Putting to one side the special constitution requirements for Appeal Panels hearing internal appeals from the Guardianship Division (see NCAT Act, Sch 6, cl 13), an Appeal Panel for an internal appeal is typically constituted by one member who is an Australian lawyer for the interlocutory stages of the appeal and by two members who are Australian lawyers for the substantive hearing of the appeal.
4. We note that s 88 of the NCAT Act provides that no proof is required in any legal proceedings (unless evidence to the contrary is given) of the constitution of the Tribunal or the appointment or qualifications of, or the holding of office by, a member.
5. The Appellant has not pointed to any evidence suggesting that the Appeal Panels for his case were constituted otherwise than in accordance with s 29 and the directions of the President of the Tribunal.

1. The Appeal Panel has had regard to the following material in considering the appeals and applications to which these proceedings relate:

(1) The application documentation lodged for the Administrative Review Application.

(2) The written transcript for the hearing before the Tribunal at first instance.

(3) The decision of the Tribunal at first instance.

(4) The notice of appeal lodged by the Appellant, and the reply to appeal lodged by Respondent, for Appeal 1.

(5) The notice of appeal lodged by the Appellant for Appeal 2.

(6) The application documentation lodged for the Registrar Stay Application.

(7) The application documentation lodged by the Appellant for the Appeal Panel Stay Application.

(8) The various written submissions of the Appellant (including documents termed by the Appellant as complaints or open letters), and of the Respondent, concerning these appeals and applications.

(9) The various decisions of the Appeal Panels and the Registrar at the interlocutory stages for Appeal 1 and Appeal 2.

(10) The oral submissions of the parties at the hearing before us.

1. We have also had regard to the following two additional documents handed up by the Appellant at the hearing before us without objection from the Respondent:

(1) A document marked by the Appeal Panel as MFI 1, which provides a timeline for the proceedings by reference to numbering adopted by the Appellant for the various steps and documents involved.

(2) A document marked by the Appeal Panel as MFI 2 containing short minutes of order to give effect to the Appeal Adjournment Applications and which include a proposed timetable for the proceedings to be dealt with in the future. Although the Respondent did not object to the document being handed up, it was made clear at the hearing before us that the Respondent opposes the making of the orders.

1. The Appellant emailed an additional submission to the Tribunal after the hearing before us on 17 July 2025. The submission is entitled "Submission 4" and dated 18 July 2025. It is expressed not to constitute or provide any fresh evidence and as being designed to navigate the Appeal Panel through the documents related to the dispute.
2. The Appellant did not seek leave from the Appeal Panel to lodge Submission 4 either at the hearing before us or in the Submission itself. It is also unclear to us from the Submission whether the Respondent has been provided with a copy. Given these circumstances (and that it is in any event expressed not to add anything new to what has already been lodged), we do not consider it appropriate to have regard to the Submission.

Threshold issues: representation and adjournment of appeals

1. There are two threshold issues that we need to address before we turn to the substantive issues raised by the appeals and applications before us.

1. The Appellant has contended at various times that the Respondent has not provided evidence that the legal representatives who have appeared before, or made submissions to, the Tribunal (including the Appeal Panel) on the Respondent's behalf are lawfully authorised to do so. The Appellant says that "applicable laws" do not recognise them as authorised to do so.
2. At the hearing before us, Ms McKinlay said she appeared for the Respondent. Previously, Ms White claimed to appear for the Respondent. We do not understand the Appellant to dispute that both Ms McKinlay and Ms White are Australian legal practitioners employed within Department of Communities and Justice.
3. We note that the Appellant was prepared to allow Ms McKinlay to make submissions for the Respondent at the hearing before us. Nevertheless, it appears that the Appellant has reserved his position on whether she has authority to do so.
4. A party to proceedings for the exercise of a function allocated to the Administrative and Equal Opportunity Division has a right to be represented by an Australian legal representation without the leave of the Tribunal: NCAT Act, Sch 3, cl 9(1). This right extends to internal appeals against decisions made in exercise of such functions: NCAT Act, s 45(2). As we have noted, the Tribunal at first instance was sitting in the Administrative and Equal Opportunity Division.
5. It is not the practice of courts or tribunals to require evidence from a legal practitioner that they are authorised to act for a party when they claim to do so. In the absence of evidence to the contrary, a court or tribunal is justified in relying on the honesty of the practitioner about such claims. This is because a practitioner is under a duty not to deceive or mislead a court or tribunal: Legal Profession Uniform Conduct (Barristers) Rules 2015, rr 24 and 125 (definition of "court"); Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015, r 19.1 and Glossary of terms (definition of "court"). A failure by a practitioner to comply with this duty may constitute conduct capable of constituting unsatisfactory professional conduct or professional misconduct: Legal Profession Uniform Law (NSW), s 298(b).
6. In the absence of any evidence to the contrary from the Appellant, we are satisfied that the Appeal Panel is entitled to rely on the claims of Ms McKinlay, and of Ms White before her, that they were authorised to represent the Respondent.

1. As we have noted above, the Appeal Adjournment Applications seek to have Appeal 1 and Appeal 2 adjourned. To this end, the Appellant handed up short minutes of order at the hearing before us (MFI 2) to provide for a timetable for dealing with the appeals in the future.
2. The Appellant submits it is necessary to determine Appeal 2 before Appeal 1 can be determined. He submits that evidence from the witnesses that he has asked the Tribunal to call (but whom the Registrar refused to summon) is essential to the determination of Appeal 1. Consequently, Appeal 2 must be determined first to ascertain whether he can call his witnesses for this purpose.
3. The Respondent opposes any adjournment. It submits that making orders to the effect of the short minutes of order would delay the determination of both appeals indefinitely.
4. The Tribunal has the power, conferred by s 51 of the NCAT Act, to grant adjournments. However, this power must be exercised to give effect to the guiding principle stated in s 36(1), which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: NCAT Act, s 36(2)(a).
5. Having regard to the guiding principle, we have decided for the following reasons that there are insufficient grounds to justify granting any adjournments:

(1) We have had the benefit of extensive written and oral submissions from the parties concerning both appeals. We are satisfied that these submissions are sufficient on their own to enable us to determine both appeals without the need for more hearings.

(2) Appeal 1 concerns a question of jurisdiction requiring the Appeal Panel to engage in a process of pure statutory construction. The evidence of the proposed witnesses seems to us to be irrelevant to this process. Rather, the Appellant's purpose in seeking to call the witnesses appears to be to show misconduct on the part of the Respondent and the Tribunal (and by some of their members and officers). Even if there were misconduct (for which there is no evidence apart from the Appellant's allegations based on decisions and outcomes to which he objects), it is irrelevant to the question of whether there is jurisdiction.

(3) In any event, for the reasons we give below, the Appeal Panel does not have jurisdiction to determine Appeal 2. Consequently, there would be no utility in adjourning Appeal 1.

1. For all these reasons, the Appeal Adjournment Applications are dismissed.

General observations about Tribunal's jurisdiction

1. In our view, the jurisdiction of the Tribunal is the central issue raised by Appeal 1. It is also relevant to Appeal 2 and the Registrar Stay Application and Appeal Panel Stay Application. Accordingly, before we turn to the substantive issues raised by the appeals and applications, it is useful to make some general observations about the jurisdiction of the Tribunal and the duty of the Tribunal (including the Appeal Panel) to remain with its confines.
2. Jurisdiction is the legal authority that a court or tribunal has to decide particular cases and must be distinguished from the power (whether judicial or administrative) that it can employ to decide a case over which it has jurisdiction: Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20 at [6] (Gleeson CJ and McHugh J). A tribunal such as this Tribunal has a judicially enforceable duty to ensure that it remains within the confines of its jurisdiction: Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 at [21]. Consequently, a decision of a tribunal that is not within its jurisdiction may be a nullity and therefore unenforceable: Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342 at 357.
3. It has been said that it is the "first duty" of a court or tribunal to decide whether it has jurisdiction: Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398; [1911] HCA 31, at 415 (Griffith CJ). This requires the Tribunal to decide for itself whether it has jurisdiction: Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 at [132] (Leeming JA). A consequence of this duty is that parties cannot consent for the Tribunal to exercise jurisdiction if the Tribunal is not satisfied that it has jurisdiction: Uddin v Truong [2022] NSWCATAP 323 at [54]; Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 at [9].
4. Jurisdiction is typically conferred on courts and tribunals by legislation. However, the Supreme Court also has what is sometimes called inherent jurisdiction. The inherent jurisdiction of the Supreme Court is jurisdiction it has simply because it is a court of a particular description (in its case, a superior court of record) rather than by statutory implication: Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113; [2018] NSWCA 143 at [10], citing Menzies J in R v Forbes: Ex Parte Bevan (1972) 127 CLR 1; [1972] HCA 34 at 7. The inherent jurisdiction of the Supreme Court includes the jurisdiction to conduct judicial reviews of decisions of certain decision-makers: Carnley v Grafton Ngerrie Local Aboriginal Land Council [2010] NSWSC 837 at [7]-[10].
5. The Tribunal, unlike the Supreme Court, does not have inherent jurisdiction: Lucchese v McDonell [2018] NSWCATAP 120 at [112]; Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339 at [111]. Rather, it owes its jurisdiction entirely to legislation. This is made clear by s 28 of the NCAT Act, which provides as follows:

28 Jurisdiction of Tribunal generally

(1) The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.

(2) In particular, the jurisdiction of the Tribunal consists of the following kinds of jurisdiction -

(a) the general jurisdiction of the Tribunal,

(b) the administrative review jurisdiction of the Tribunal,

(c) the appeal jurisdiction of the Tribunal (comprising its external and internal appeal jurisdiction),

(d) the enforcement jurisdiction of the Tribunal.

(3) Subject to this Act and enabling legislation, the Tribunal has jurisdiction in respect of matters arising before or after the establishment of the Tribunal.

1. Section 28(1) states categorically that the Tribunal's jurisdiction is based on legislation. Moreover, subject to any transitional jurisdiction conferred by the savings or transitional provisions in Sch 1, Pt 2 of the NCAT Act, s 28(2) is an exhaustive statement of the types of jurisdiction conferred on the Tribunal: Shapkin v Council of the Law Society of New South Wales [2025] NSWCATOD 66 at [59].
2. However, as we have already noted, the term "legislation" (which is also mentioned in s 28(1)) is narrowly defined. It means an Act of the NSW Parliament and certain legislative instruments (called "statutory rules") such as rules of court and regulations, by-laws, rules or ordinances made, or approved or confirmed, by the Governor. Other instruments (including, for example, policy documents issued by Ministers or Government agencies) are not caught by this definition. They are therefore not legislation for the purposes of conferring jurisdiction on the Tribunal. As we have noted, the same definition is used for "legislation" in the ADR Act.
3. In our view, the following principles emerge from these cases and legislative provisions concerning the identification of, and limitations on, the Tribunal's jurisdiction:

(1) The Tribunal must be independently satisfied that it has jurisdiction to determine a matter regardless of the views of the parties.

(2) Although a party invoking the jurisdiction of the Tribunal is ordinarily expected to point to the legislation conferring jurisdiction, it is ultimately a matter for the Tribunal to decide whether it has jurisdiction because of its duty to remain within the confines of its jurisdiction.

(3) There must be legislation (in the narrow sense defined by both the ADR Act and NCAT Act) that confers authority on the Tribunal to decide a matter in dispute.

(4) The Tribunal does not have inherent jurisdiction based simply on the fact that it is a civil and administrative tribunal. Consequently, it cannot provide a forum for vindicating rights and remedying wrongs based merely on notions of injustice, wrongdoing or the public interest.

1. With these principles in mind, we now turn to the appeals and applications before us.

1. We are content, as the Appellant submitted, to deal first with Appeal 2 and the Registrar Stay Application and Appeal Panel Stay Application.

1. The Appellant submits that the decisions of the Registrar to which Appeal 2 relates are internally appealable decisions based on applications he made under s 48(1)(a) of the NCAT Act for the issue of summonses: Application for stay or interim order (dated 14 July 2025), Attachment 1, par 2.24. Section 48(1)(a) enables a registrar to issue a summons on the application of a party to proceedings before the Tribunal. We agree with the Appellant that s 48(1)(a) was the basis for the Appellant's applications. The applications made by the Appellant use the form for an application for a summons to be issued.
2. That said, we do not consider that the Appeal Panel has jurisdiction to determine Appeal 2. In this regard, we note that the Appeal Panel in its orders on 10 July 2025 (which we set out above) mentioned that this was an issue that the Appellant might need to address in the hearing before us: see [29].
3. As we mentioned above, an internal appeal can be made against a decision of a registrar only if the NCAT Act or the procedural rules declare the decision to be an internally appealable decision. Although r 41 of the NCAT Rules does make such a declaration in relation to certain decisions of a registrar concerning summonses, the declaration is limited to "a decision concerning the setting aside of a summons or excusing compliance with a summons in connection with proceedings". The decisions to which Appeal 2 relates are decisions concerning the issue of a summons rather than setting aside, or excusing compliance with, a summons.
4. It follows that the decisions to which Appeal 2 relates are not internally appealable decisions. Consequently, we do not have jurisdiction to determine the appeal. Appeal 2 must therefore be dismissed on this basis. We note that the power to dismiss for want of jurisdiction is an implied power of the Tribunal that derives from its duty to remain within the limits of its jurisdiction: Boyland v Commonwealth Bank of Australia [2025] NSWCATAP 160 at [29]; Fong v Secretary, Department of Customer Service (No 2) [2025] NSWCATOD 84 at [91]−[103].
5. Even if we were satisfied that the Appeal Panel had jurisdiction to determine Appeal 2, we would still have dismissed the appeal. The Registrar's decisions are all interlocutory decisions: NCAT Act, s 4(1) (par (c) of definition of "interlocutory decision"). Accordingly, an appeal would require the leave of the Appeal Panel. Leave is ordinarily given only if there are substantial reasons to warrant the giving of leave. This is not the case here. We would have refused leave because the evidence sought from the proposed witnesses would have been irrelevant for the purposes of determining Appeal 1, for the reasons given above concerning our refusal to grant adjournments: see [96(2)].
6. The Registrar Stay Application must also be dismissed because the power to an order a stay under s 43(3) is limited to "securing the effectiveness of the determination of the application or appeal". As we have no jurisdiction to determine Appeal 2, the granting of a stay of the decisions concerned cannot be justified on the basis that it seeks to secure the effectiveness of the determination of the appeal. Even if we had jurisdiction, the stay would have been unnecessary because we would have dismissed Appeal 2 in any event.

1. The Appellant has not sought to appeal against the orders of the differently constituted Appeal Panel made on 7 July 2025. Rather, the Appellant has sought to stay those orders.
2. As discussed above, the internal review jurisdiction of the Tribunal does not extend to decisions of an Appeal Panel. Consequently, there is no internal review jurisdiction for one Appeal Panel to hear appeals against decisions of another Appeal Panel. Appeals must be made instead to the Supreme Court. If the Appellant had sought to appeal the orders made on 7 July 2025 to this Appeal Panel, it would have been necessary for us to dismiss the appeal for want of jurisdiction.
3. It is true that s 43 of the NCAT Act (which we set out above) enables an Appeal Panel to make orders staying or otherwise affecting the operation of certain decisions. However, s 43(1) makes it clear that s 43 only applies to the making or lodgment of any of the following (called "pending general applications or appeals"):

(1) a general application for the review or other re-examination of a decision made by an external decision-maker;

(2) an external appeal,

(3) an internal appeal.

1. Moreover, s 43(3) makes it clear that the power to stay is directed to the "decision to which a pending general application or appeal relates".
2. The Appeal Panel Stay Application does not concern the decisions of an external decision-maker. An external decision-maker is a decision-maker who is external to the Tribunal: NCAT Act, s 4(1) (definition of "external decision-maker"). An Appeal Panel is plainly not external to the Tribunal. It is one of the ways in which the Tribunal can be constituted: NCAT Act, s 27(1).
3. Similarly, the Appeal Panel Stay Application is also not an external appeal. An external appeal is an appeal to the Tribunal against an appealable external decision, which must also be a decision of an external decision-maker: NCAT Act, s 31(3) and (4).
4. Finally, as we have mentioned, the Appellant had not lodged an internal appeal against the orders to which the Appeal Panel Stay Application relates even assuming such an appeal could be made (which it cannot).
5. It follows that the Appeal Panel does not have power to make a stay order concerning the orders to which the Appeal Panel Stay Application relates because the Application does not fall within s 43(1) of the NCAT Act. The Appeal Panel Stay Application must therefore be dismissed. In any event, there would be little point in granting a stay of decisions that the Appeal Panel did not have internal review jurisdiction to remedy.

1. We noted above that Appeal Panels have taken a benevolent approach to appeals by self-represented appellants. A consequence of this approach is that Appeal Panels look to the substance of the appeal grounds relied on by the appellant to discern whether or not they raise questions of law: Ungaro v Matijevic [2025] NSWCATAP 163 at [59].
2. We have set out the appeal grounds stated in the notice of appeal for Appeal 1. The questions used in the notice to frame the grounds are not expressed in terms of whether the Tribunal at first instance was wrong to decide that it did not have jurisdiction to determine the Administrative Review Application. Nevertheless, it is quite clear from the decision the Appellant seeks to overturn (which refers to there being no jurisdiction), together with the Appellant's contention that the Tribunal failed to comply with its duty to hear his case, that the question of whether there is jurisdiction is being raised in substance. This is so even though the Appellant makes serious allegations concerning corrupt and criminal behaviour by the Tribunal at first instance and the Respondent.
3. As noted above, whether the Tribunal at first instance has jurisdiction to determine a matter raises a question of law. Also, for the reasons we gave earlier, a decision concerning whether there is jurisdiction is an ancillary decision of the Tribunal. Accordingly, there is a right to appeal on this ground under s 80(2)(b) of the NCAT Act without the need for leave from the Appeal Panel. There is therefore no need for us to consider whether to grant leave to appeal.
4. We do not need to address the serious allegations made by the Appellant concerning corrupt and criminal behaviour by the Tribunal at first instance and the Respondent. This is because the allegations are simply irrelevant to the question of jurisdiction even assuming they could be substantiated with actual evidence rather than from inferences the Appellant draws from decisions and outcomes to which he objects. The question is a simple one: does the Tribunal have jurisdiction? This involves an exercise in pure statutory construction which admits of only one answer: yes or no.
5. If the Tribunal has jurisdiction, then the matter should be remitted for determination by the Tribunal according to law. Any allegations concerning the conduct of the Respondent and its officers in connection with the Social Housing Decision can, if relevant, be considered by the Tribunal on the remittal based on such evidence as may be presented.
6. However, if the Tribunal does not have jurisdiction, then the decision of the Tribunal at first instance is correct, and the appeal must be dismissed. The refusal by the Tribunal to exercise jurisdiction it does not have would not be a dereliction of duty as the Appellant seems to suggest. Rather, the refusal would constitute compliance with the Tribunal's duty to remain with the confines of its jurisdiction.

1. The Appellant submits that the Respondent had no power to make the Social Housing Decision, whether under the Housing Act or any other legislation. He submits that the Tribunal has a duty to determine the Administrative Review Application on this basis having regard to ss 6(3), 7, 8(2), 9(1), 9(3)(a) and (c), 9(4)(1)(a) and 64 of the ADR Act. He also points to s 5(1)(a) and (2) of the NCAT Act.
2. The principal remedy sought by the Appellant is for the matter to be remitted to the Tribunal to determine the Administrative Review Application.

1. In the submissions lodged with its initial reply to appeal, the Respondent sought to have Appeal 1 dismissed on the basis that it was frivolous or vexatious or otherwise misconceived or lacking in substance because the appeal grounds in the notice of appeal did not raise any errors of law and that leave to appeal should not be granted. For the reasons given above, we consider that, in substance, the grounds raise a question of law. The question is whether the Tribunal has jurisdiction to determine the Administrative Review Application. At the hearing before us, Ms McKinlay for the Respondent made oral submissions addressing this question.
2. Ms McKinlay submitted the Respondent has an implied power under the Housing Act to make the Social Housing Decision. The Respondent submits the basis for this implied power are the objects of the Housing Act set out in s 5 of that Act.
3. Ms McKinlay submitted that, in any event, the Tribunal does not have jurisdiction to determine the Administrative Review Application because there is no legislation that enables the Appellant to apply to the Tribunal under the ADR Act for an administrative review of decisions like the Social Housing Decision. Consequently, Appeal 1 should be dismissed because the Tribunal at first instance was correct to dismiss the Administrative Review Application for want of jurisdiction.
4. Ms McKinlay conceded that the appropriate remedy should Appeal 1 be successful would be for the matter to be remitted to the Tribunal to determine the Administrative Review Application.

1. The Administrative Review Application purports to be an application for an administrative review under the ADR Act of the Social Housing Decision. We will therefore focus on whether the Tribunal has administrative review jurisdiction over decisions like the Social Housing Decision. Administrative review jurisdiction is one of the kinds of jurisdiction of the Tribunal listed by s 28(2) of the NCAT Act.
2. We have already set out the legislative provisions that are relevant to explaining the administrative review jurisdiction of the Tribunal: see [44]−[46]. The crucial provision is s 9 of the ADR Act, which defines the jurisdiction.
3. Section 9(1) of the ADR Act makes it clear the Tribunal only has administrative review jurisdiction over decisions if enabling legislation (which is defined to exclude the ADR Act) "provides that applications may be made to the Tribunal for an administrative review under the [ADR] Act" of such decisions. In other words, enabling legislation must expressly say that an application may be made under the ADR Act for an administrative review: see, for example, Game and Feral Animal Control Act 2002 (NSW), s 31. Legislation that simply provides that an application may be made to the Tribunal for a review of a decision without citing the ADR Act is insufficient. As the note to s 29(1) of the NCAT Act makes clear, review applications made under legislation that does not mention an administrative review under the ADR Act fall within the Tribunal's general jurisdiction: see, for example, Guardianship Act 1987 (NSW), Pt 3, Div 4 (note).
4. It is important to note that the powers conferred on the Tribunal by s 63 of the ADR Act to conduct administrative reviews are conditioned on there being an application for an administrative review of an "administratively reviewable decision". The term "administratively reviewable decision" is defined by s 7 of the ADR Act to mean a decision of an administrator over which the Tribunal has administrative review jurisdiction. As we have mentioned, the term "administrative review jurisdiction" requires legislation apart from the ADR Act that permits administrative review applications to be made under the ADR Act. It follows that the Tribunal does not have jurisdiction to conduct an administrative review of a decision unless legislation apart from the ADR Act allows applications for such reviews to be made to the Tribunal under the ADR Act. As we have mentioned, the term "legislation" has a narrow meaning and does not include policy documents issued by Ministers or Government agencies: see [104].
5. We note as well that other provisions of the ADR Act that impose obligations on administrators (such as the obligations to give reasons under s 49, conduct internal reviews under s 53 or provide documentation to the Tribunal under s 58) are also conditioned on there being an administratively reviewable decision. Consequently, those obligations do not arise unless the decision concerned is a decision over which the Tribunal has administrative review jurisdiction.
6. We have been unable to locate any legislation (and the parties have been unable to point to any legislation), understood in the narrow sense in which that term is defined, that expressly enables persons to apply to the Tribunal for an administrative review under the ADR Act of decisions like the Social Housing Decision. The Appellant points to government policies which he says contemplate that decisions made under those policies are administratively reviewable. Such policies, even if they expressly indicated that decisions could be administratively reviewed, could not constitute legislation capable of enabling administrative review applications to be made under the ADR Act.
7. It is true, as the Appellant points out, that s 6(3) of the ADR Act and s 5(2)(b) of the NCAT Act provide that a decision that purports to be made under enabling legislation or the ADR Act or NCAT Act is taken to be a decision made under the enabling legislation or the Act even if the decision was beyond the power of the administrator or decision-maker to make. However, these provisions are not expressed to cover any decision that is made without power. Rather, they are limited to decisions that "purport to be made" under enabling legislation or the Act concerned.
8. As we have noted, enabling legislation is legislation apart from the ADR Act or NCAT Act (or the statutory rules under those Acts) that provides for applications or appeals to be made to the Tribunal with respect to a specified matter or class of matters or otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters: ADR Act, s 4(1) (definition of "enabling legislation"); NCAT Act, 4 (1) (definition of "enabling legislation").
9. The Social Housing Decision does not purport to be made under any legislation, let alone under enabling legislation or the ADR Act or NCAT Act. Accordingly, s 6(3) of the ADR Act and s 5(2)(b) of the NCAT Act have no application.
10. For completeness, we note that we have also been unable to identify any legislation enabling the Tribunal to review decisions like the Social Housing Decision even without referring to the ADR Act. Consequently, there is no basis for the Tribunal to exercise general jurisdiction over the Decision.
11. As a result, we consider that the Tribunal at first instance was correct to decide that it did not have jurisdiction to determine the Administrative Review Application. This is because there is no legislation that enables applications to be made to the Tribunal for an administrative review under the ADR Act, or for a review under any other legislation, of the Decision. It follows that Appeal 1 must be dismissed.
12. Finally, we emphasise that our decision to dismiss Appeal 1 should not be understood as involving an implicit finding that the Respondent had power to make the Social Housing Decision. Such a finding could only be made if the Tribunal had jurisdiction to review the decision. The Tribunal, for the reasons we have given, does not have such jurisdiction. Whether an application for a judicial review of the Decision could have been made to the Supreme Court instead of the Tribunal is an issue that we need not address.

(1) The Appeal Adjournment Applications should be dismissed.

(2) Appeal 1 should be dismissed because the Tribunal at first instance was correct in deciding that the Tribunal did not have jurisdiction to determine the Administrative Review Application.

(3) Appeal 2 should be dismissed because the Appeal Panel does not have internal review jurisdiction over decisions of registrars concerning the issuing of summonses.

(4) The Registrar Stay Application and Appeal Panel Stay Application should be dismissed.

(1) The applications to adjourn appeal 2025/00093548 (Appeal 1) and appeal 2025/00264892 (Appeal 2) are dismissed.

(2) Appeal 1 is dismissed.

(3) The application to stay the decisions of the registrar made on 4 July 2025 refusing to issue summonses is dismissed.

(4) Appeal 2 is dismissed because the Appeal Panel does not have jurisdiction to determine the appeal.

(5) The application to stay the orders of the Appeal Panel made on 7 July 2025 is dismissed.

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.