Grabovsky v Wright

9 Additional power to set aside or vary decision determining proceedings - the Act, s 90(2)(a)

(1) In addition to a power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied if -

(a) all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, or

(b) the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal.

Example -

The Act, sections 45(3), 53(4), 63, 64(3) and 73(3) expressly confer powers to set aside or vary decisions of the Tribunal.

(2) The Tribunal may make an order under this section of its own motion or on the application of a party.

(3) Unless the Tribunal grants an extension under the Act, section 41, an application for an order under this section must be made within 7 days after the decision concerned was made.

(4) Except where the parties have consented to the making of the order, the Tribunal may not make an order under this section unless the Tribunal has -

(a) given the parties an opportunity to make submissions about the proposed order, and

(b) taken any submissions into account.

(5) A party may not make an application for an order under this section to set aside or vary a decision of the Tribunal if -

(a) an internal appeal or appeal to a court against the decision has been lodged or determined, or

(b) an application for a judicial review of the decision has been made or determined.

(6) A party may not, without the leave of the Tribunal, make an application for an order under this section to set aside or vary a decision of the Tribunal if the party has previously made an application under this section to have the decision set aside or varied.

(7) If the Tribunal sets aside a decision under this section, it may also set aside orders that it made consequent on the decision that has been set aside.

**Example - **

An order for costs in the proceedings is a consequential order.

(8) Proceedings for this section are prescribed for the Act, section 50(1)(d).

**Note - **

A hearing is not required for proceedings that are prescribed for the Act, section 50(1)(d).

(9) This section does not limit a power of the Tribunal to set aside, revoke or vary its interlocutory decisions or other decisions that do not operate to determine proceedings.

1. On 20 November 2025, the Tribunal (Dr K M George, Senior Member) made a decision as follows:

1. The application to set aside or vary orders made in tis and related proceedings is dismissed because the application is misconceived.

Reasons for decision

The set aside application is made pursuant to clause 9 of the Civil and Administrative Tribunal Regulation 2022. This empowers the Tribunal to order that a decision it has made that determines proceedings be set aside or varied.

The orders that the applicant seeks to set aside or vary do not determine the proceedings. The application is misconceived.

1. On 1 December 2025 Mr Grabovsky lodged a Notice of Appeal with the Appeal Panel and an application for a Stay of the orders under appeal.
2. On 2 December 2025, the Appeal Panel (Blake AM SC PM) made procedural orders and directions. The appeal was listed for Call Over and the Stay application listed for hearing on 12 January 2026. Procedural directions were made for the parties to lodge and serve documents and submissions in the Stay application. The directions contained the following notation:

"NOTES

(1) The parties will need to address the utility of the stay of the order under appeal made on 19 (sic) November 2025 in circumstances where the order has taken effect.

..."

1. On 12 January 2026, the Appeal Panel (De Jersey PM) adjourned the Call Over of the appeal and hearing of the Stay application, and extended the procedural timetable in respect of the lodging and serving of documents and submissions pertaining to the Stay application.
2. The Call Over and Stay hearing were listed on 6 March 2026. Mr Grabovsky appeared in person. Ms Liu, agent of the landlord, appeared by audio-visual link.
3. At the outset of the proceedings on 6 March 2026, the Appeal Panel determined the issue of the agent of the landlord being granted leave under s 45 of the Civil and Administrative Tribunal Act 2013 (NSW) to represent the landlord. In written submissions to the Appeal Panel dated 3 March 2026, Mr Grabovsky made the following comment:

"I am continuing to protest the current arrangement of the Landlord's representation by Raine and Horne Turramurra (Agency-2), but I will no longer rais this as an issue with the Tribunal.-the Tribunal and the (original) Respondents have to act on this at their own risk".

1. The Appeal Panel determined it appropriate to make an order under s 45 of the NCAT Act that the landlord be represented by its agent Ms Liu in the proceedings, or any other licensed agent of the current agency that manages the residential premises on behalf of the landlords. The agent has been representing the landlords in the Tribunal proceedings; and in his written submission Mr Grabovsky has referred to the issue of representation. It is appropriate, and consistent with cl. 10 (j) of the Consumer and Commercial Division Guideline August 2019-Representation that the landlord be represented by their licensed agent in the appeal proceedings. An order to that effect has been made in the procedural directions issued in respect of the Call Over on 6 March 2026.

1. Mr Grabovsky lodged documents and written submissions in support of the Stay application on 12 January 2026; 16 February 2026; and 3 March 2026. Documents and submissions were also attached to the Notice of Appeal.
2. The submissions of Mr Grabovsky contain the following heading:

"WARNING TO ALL PESONS (SIC) CONCERNED

Pursuant to s 307B(7) of the Crimes Act 1900 considered to be informed that giving false or misleading information is a serious offence"

1. Mr Grabovsky's written submissions include the following:

"2025/00381187-legally invalid-protested by Igor Grabovsky because it constitutes an instrument of crime".

1. Some of Mr Grabovsky's submissions refer to the legal merits of the decision under appeal, including arguments that the Member did not consider the legal basis of the set-aside application beyond Cl. 9 of the NCAT Regulation; and did not provide adequate reasons.
2. However, his submissions extend well beyond addressing genuine legal issues in the appeal. Rather, the majority of submissions refer to Mr Grabovsky's belief that the Tribunal, and its Members, engage in criminal behaviour. In Mr Grabovky's written submissions, he asserts:

(1) Various Members of the Tribunal who have dealt with the proceedings have engaged in behaviour which is "fraudulent;" "misleading and deceptive" and "perverts the course of justice."

(2) Various Member of the Tribunal; the President of the Tribunal; and the Principal Registrar of the Tribunal have "committed serious indictable offenses (sic) and they are subject to arrest under s 100(1)(c) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPR Act)."

(3) Section 100(1)(c) of the LEPR Act:

"...means I can arrest the culprits at any opportune moment of my choosing to have the maximum effect for the course of justice and public interest: it could be at any hearing presided by those offenders or in a public toilet or shopping centre one year later. I hope by now there is no person in the Tribunal who would doubt my willingness and capability to use section 100. The Law and Equality before the Tribunal will prevail-the culprit has to be punished! For all concerned persons: don't bother to inform the NSW Sherriff or/and NSW Police-I already did!"

(4) Tribunal Members who have made decisions which Mr Grabovsky believes are legally incorrect and adverse to his interests are "culprits" who have determined proceedings with "a premeditated and prearranged outcome."

1. The respondents did not lodge and serve any documents or written submissions in the Stay application.

1. On 6 March 2026, Mr Grabovsky submitted that the Stay hearing must be determined before the Call Over of the appeal, and that if the Appeal Panel did not adhere to this application he would be denied procedural fairness.
2. The Appeal Panel determined that procedural directions should be made in the Call Over first. There is nothing in that approach that is legally unorthodox, or a denial of procedural fairness.
3. Mr Grabovsky was then given a period of time (approximately 30 minutes) to make oral submissions in support of the Stay application.
4. Mr Grabovsky's oral submissions reflected his written submissions. The gravamen of the submissions was that the Tribunal is corrupt; institutionally biased against tenants in RT Act disputes; personally biased against Mr Grabovsky; and engages in criminal conduct.
5. During the course of Mr Grabovsky's submissions, I enquired whether Mr Grabovsky was making an application that I disqualify myself on grounds of actual or apprehended bias. Mr Grabovsky responded that because the Tribunal was institutionally biased against him, it would be futile to make such an application and he declined to do so.
6. As Mr Grabovsky did not make an application that I disqualify myself for actual or apprehended bias, it is unnecessary to address in detail the legal principles applicable to that issue. Those principles have been recently summarised in Zonnevylle v Secretary, Department of Communities and Justice [2026] NSWCATAP 1 at [3]- [11] (Zonnevylle). If there had been an application made it would have been refused, because no actual or apprehended bias was demonstrated.
7. Further, as stated in Zonnevylle at [11]:

"I note that in Dunstan v Orr [2022] FCA 1006 at [76] Wigney J cited Hamod v New South Wales (No 11) [2008] NSWSC 967 at [20] where Harrison J said that unfavourable decisions against a party "are not, and can never be, without more sufficient to support or establish the existence or manifestation of an objective apprehension of bias".

1. The principles regarding the Appeal Panel granting of a Stay of orders the subject of an appeal are well established, and were summarised in Webb v Shardana Pty Ltd [2025] NSWCATAP 274.
2. The power to grant a Stay is under s 43 of the NCAT Act. The lodging of an appeal does not grant a Stay as of right. A Stay does not overturn the orders, but rather suspends their operation pending the appeal. It is the party seeking a Stay who bears the legal onus in persuading the Appeal Panel that a Stay should be granted. The Appeal Panel considers whether there are arguable grounds of appeal sufficient to grant a Stay beyond an appeal merely lodged to delay or avoid the operation of Tribunal orders; and whether to refuse the Stay would cause harm or prejudice to the appellant that could not be remedied by a successful appeal. If those two matters are established, the Tribunal considers the balance of convenience, which involves weighing up the effect on the respective parties if a Stay is granted, compared to it not being granted.

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.

1. The order under appeal was to dismiss a set-aside application. That order is operative. There is no demonstrable utility in suspending the operation of an order that is already operative.
2. Accordingly, there can be no harm or prejudice to the appellant in refusing a Stay that cannot be remedied by a successful appeal. The refusal of the Stay application does not cause the appeal to become futile or nugatory. There is also no basis established to make any orders that have the effect of Staying the Tribunal proceedings until the appeal is determined. Any such order is unnecessary to secure the effectiveness of the determination of the appeal.
3. That alone is sufficient to refuse the Stay application. It is unnecessary to consider and determine whether the appellant has arguable grounds of appeal, or any other balance of convenience issue.
4. It is appropriate to refer to the allegations Mr Grabovsky has made about the Tribunal; its Members; and its Registry in his written and oral submissions. It is a serious matter for Mr Grabvosky to assert in writing not only that Tribunal Members and Registry staff who have made decisions that Mr Grabovsky disagrees with have committed criminal offences, but that he has a legal right to conduct an arrest.
5. The Appeal Panel appreciates that Mr Grabovsky is an unrepresented litigant. However, as Sackville AJA observed in DC v Secretary, Department of Family and Community Services & Ors [2017] NSWCA 225 at [160]- [162]:

"There are many categories of unrepresented litigants. Some speak English while others do not or do so imperfectly. Some have little or no knowledge of court rules and procedures. Others have considerable experience of and knowledge about the judicial system. Those who have knowledge and experience sometimes pretend ignorance in order to gain what they perceive as an advantage in the litigation.

Many unrepresented litigants are polite and clearly honest when making statements or conveying information to the Court. Others may be aggressive and unpleasant in their demeanour. Some unrepresented litigants (like some witnesses) are quite prepared to make claims or accusations that have no evidentiary support or are even manifestly untrue.

Some unrepresented litigants, while not necessarily agreeing with unfavourable rulings or decisions, are prepared to accept them as the product of an independent and reasonably fair process. Others refuse to accept the legitimacy of any adverse rulings or decisions and are quick to attribute their lack of success to bias on the part of the judicial officers concerned and perhaps to dishonesty in others involved in the process. Litigants who refuse to accept decisions may be prone to making repeated attempts to reagitate claims that have been definitively rejected."

1. The assertions that Mr Grabovsky has made about the purported criminality, institutional bias, and unethical conduct of Tribunal Members and Registry are misconceived and fallacious.
2. In particular, the belief held by Mr Grabovsky that he can use s 100 of the LEPR Act to perform an arrest of a Tribunal Member (or Registry officer) is incorrect, and has no legal basis (see, for example, the discussion of the ambit of s 100 of the LEPR Act in Uber BV & Anor v Howarth [2017] NSWSC 54). An NCAT Member has, in the exercise of their functions performed as a Member, the same immunities as a Judge of the Supreme Court of NSW (Cl. 4 of Sch. 2 to the NCAT Act). The scope of immunity from suit, and the principles that underly it, are discussed by the High Court in State of Queensland v Mr Stradford (A Pseudonym) (2025) 421 ALR 376; [2025] HCA 396. In circumstances where the Tribunal proceedings emanated from the landlord's application to terminate Mr Grabovsky's tenancy, and he opposes the termination application, it is unnecessary to speculate why he holds this fallacious belief, or his motives.
3. The conduct of a litigant in person who makes grave and baseless allegations against decision-makers of the type that is set out in Mr Grabovsky's submissions not only fails to comply with the duty of parties under s 36(3) of the NCAT Act, it has the potential to undermine public confidence in the administration of justice. It may also be an abuse of process, or contempt of the Tribunal (see, for example, Markan v Queensland Police Service [2015] QCA 22; and Gallagher v Durack (1983) 153 CLR 238; [1983] HCA 2).
4. In the context of contempt of court, Gibbs CJ, Mason, Wilson and Brennan J stated in Gallagher v Durack (1983) 153 CLR 238; [1983] HCA 2 at 243:

"The law endeavours to reconcile two principles, each of which is of cardinal importance, but which, in some circumstances, appear to come in conflict. One principle is that speech should be free, so that everyone has the right to comment in good faith on matters of public importance, including the administration of justice, even if the comment is outspoken, mistaken or wrong-headed. The other principle is that "it is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon Courts of justice which, if continued are likely to impair their authority"... The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges. However, in many cases, the good sense of the community will be a sufficient safeguard against the scandalous disparagement of a court or judge ..."

1. Ipp JA and Brownie AJA stated in Wentworth v Graham [2003] NSWCA 307 at [35]:

"But there comes a time when it is no longer appropriate for judges to be impervious to improper behaviour by litigants, particularly those who make false allegations, are consistently rude, provocative, aggressive and obstructive, and who refuse to accept the decisions of the Court. Care must be taken to preserve a proper degree of restraint, decorum and respect in the courtroom, otherwise the quality of justice will degenerate and administration of justice will be harmed."

1. Similar comments are contained in Wentworth v Graham (2003) 57 NSWLR 741; [2003] NSWCA 229 at [24].
2. In Yap v Matic (No 7) [2023] WASC 55, Solomon J stated at [22]:

"...However, at the same time the court must be concerned with, and must remain vigilant to protect, the administration of justice from conduct, including on occasion the expression of views, that corrodes public confidence in and respect for the courts and the justice system. A just and tolerant society must zealously guard the instruments and institutions that preserve justice and tolerance."

1. For the purpose of the disposition of the Stay application, it is unnecessary to make further observations about the nature and content of Mr Grabovsky's submissions. They may, or may not, be the subject of further applications.
2. Mr Grabovsky is encouraged to obtain appropriate legal advice and in future submissions and appearances before the Tribunal and the Appeal Panel focus upon the legal issues in dispute, rather than the conduct which he has previously displayed.

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.