GTK v NSW Treasury

Commissioner of Police, NSW Police Force v DYD [2023] NSWCATAP 244

Della Bruna v Health Care Complaints Commission [2025] NSWCA 105

Donges v Ratcliffe [1975] 1 NSWLR 501

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26

FLK v Transport for NSW [2023] NSWCATAP 140

Gallo v Dawson (1990) 64 ALJR 458; [1990] HCA 30

Hermes Nominees Pty Ltd v Shepherd [2024] NSWCATAP 36

Houda v Seraphim [2025] NSWCATAP 135

House v The King (1936) 55 CLR 499

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12

Magjarraj v Asteron Life Pty Ltd [2009] NSWSC 1433

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317

Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26

Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; [2003] HCA 35

New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231

Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940

Pachkovski v Australian Executor Trustees Ltd [2011] NSWCA 94

Pettitt v Dunkley [1971] 1 NSWLR 376

Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Waters v Waghorn [2016] NSWCATAP 247

Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57

Wollondilly Shire Council v Styles [2024] NSWCATAP 104

YDB v NSW Land and Housing Corporation [2023] NSWCATAP 55

Pursuant to s 64(1)(a), the disclosure of the name of the Appellant is prohibited.

1. On 25 February 2025 the Tribunal dismissed an application for an extension of time to commence proceedings for administrative review (the Decision). The Appellant appeals from the Decision, including on the grounds that the Tribunal failed to consider critical submissions and evidence and failed to provide adequate reasons.
2. As the Decision is an interlocutory decision, leave to appeal is required. For the reasons which follow, the Appeal Panel granted leave to appeal and allowed the appeal.

1. The underlying application for administrative review for which the Appellant seeks an extension of time to file, concerns contentions by the Appellant that the Respondent breached her privacy, as apprehended by the Privacy and Personal Information Protection Act 1988 (NSW) ("Privacy Act"), in making disclosures to an independent investigator in relation to what the Tribunal described as workplace complaints made by the Appellant.
2. The breaches alleged include disclosure of the Appellant's name, her office email address, the alleged "ongoing issues in the office", copies of emails sent by the Appellant requesting action to be taken, and other information. The Respondent originally decided that the alleged breaches had not occurred; and this was affirmed on Internal Review, dated 22 September 2022.
3. The Appellant did not seek review of the Respondent's decision within the time specified to apply for administrative review; which was 28 days after notification of the decision on the Internal Review: Civil and Administrative Tribunal Rules 2014 (NSW), cl 24(4)(a1). This would have put the time for filing the application before about 27 October 2022. The application was filed on 2 December 2024; some two years later.

1. The Appellant told the Tribunal that at the time she should have filed her application for administrative review, she was suffering from "significant psychological injury" and had no legal representation. The evidence before the Tribunal included certificates of capacity prepared for the purposes of workers compensation claims. They were dated 27 July 2022, 15 August 2022, 14 November 2022, 20 May 2024 and 14 November 2024. The Appellant relied on these certificates as evidence of her medical condition and submitted that her medical condition explained the delay.
2. Further, there was an email sent from the Appellant's rehabilitation case manager on 6 July 2022, which the Appellant contended was not received until November 2022 and further still she had trouble accessing emails.
3. In answer to the Appellant's contention of explanation for delay, the Respondent pointed to the fact that the Appellant had submitted multiple applications under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act"). These applications were lodged on 11 August 2022, 23 August 2022, 1 July 2024 and 9 August 2024. Further, the Appellant had lodged a review application with the Information Privacy Commissioner on 26 September 2022. The Respondent submitted that the making of these applications was evidence of the Appellant's capacity to commence proceedings for administrative review.
4. However, the Appellant did not personally lodge any of the applications under the GIPA Act: they were lodged by a solicitor retained and instructed by the Appellant. Further, the submission was that there is a difference in complexity between lodging an application under the GIPA Act and filing proceedings in the Tribunal.

1. The Tribunal identified that the power to extend the time for filing the administrative review application arose under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"). The Tribunal also identified that the relevant principles had been set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [18]; a case which has been followed countless times by the Tribunal.
2. In dismissing the application for an extension of time, the Tribunal said:

(1) The length of delay in commencing proceedings was significant and the Appellant had not provided a reasonable explanation for the delay (paragraph [20] of the Decision).

(2) The delay in receiving the July Email did not explain the delay over two years (paragraph [23] of the Decision).

(3) The amount of time that had lapsed created a significant risk to the ability of the Respondent to identify and contact relevant individuals and rely on the accuracy of their recollections and the ability to gather relevant evidence. The Tribunal said that these circumstances created prejudice for the Respondent (paragraph [25] of the Decision).

(4) The Appellant had not shown that her case had substantial merit (paragraph [26] of the Decision).

1. Section 80(2) of the NCAT Act provides that a party may appeal as of right on a question of law and by leave on any other grounds, unless the decision is an interlocutory decision, in which case leave is required.
2. In the present instance, leave to appeal is required. The decision the subject of the appeal is an interlocutory decision as comprehended by the definition of interlocutory decision in s 4 of the NCAT Act: the definition expressly refers to an application for an extension of time at paragraph (d).

1. The principles which govern the granting of leave to appeal by the Appeal Panel should generally be consistent with those which are applied by Courts when considering the question of whether to grant leave to appeal: Collins v Urban [2014] NSWCATAP 17 (Collins) at [82]. Having considered the cases, the Appeal Panel said, at [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. As summarised by the NSW Court of Appeal in Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]:

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

1. As recently noted by the Appeal Panel in Houda v Seraphim [2025] NSWCATAP 135 at [32]- [34]:

"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]).

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].

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]".

Principles relevant to an appeal from a discretionary decision

1. As already noted, the Decision concerned an application for an extension of time to file the application for administrative review. A decision on this type of application has been described as an unfettered discretion but having to be exercised judicially and having regard to the statutory command in s 36 of the NCAT Act that the guiding principle for that Act "is to facilitate the just, quick and cheap resolution of the real issue in the proceedings": Jackson at [18]. Where a discretion is seemingly unconstrained, it must nevertheless be exercised, as was stated by McHugh, Hayne and Callinan JJ in Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; [2003] HCA 35 at [56]:

"having regard to the nature, scope and purpose of the power and the context in which it is found. It is those matters which would be relevant for the decision‑maker to take into account." (Footnote omitted)

1. In an appeal concerning the exercise of a discretion, the standard of review has been described as the House v The King standard: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (SZVFW). The High Court there said, at [38]:

"The classic statement in House v The King of the standard of appellate review applicable to the exercise of a judicial discretion reflects that understanding:

'It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.'"

1. The High Court continued, at [49], by identifying that:

"[t]he line is not drawn by reference to whether the primary judge's process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ. The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies. The resultant line is not bright; but it is tolerably clear and workable."

1. The House v The King standard derives from the decision of the High Court in House v The King (1936) 55 CLR 499 at 505-506, and has been explained as applying where the statutory criteria lend themselves to differences of opinion in decision making. In decisions to which the House v The King standard applies, there is, legally, room for differences of opinion; and therefore, a range of legitimate and reasonable outcomes: SZVFW at [59].
2. To similar effect, it was said in Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 at 360; [1949] HCA 26:

"His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law".

1. This standard has been accepted to apply to the Appeal Panel: YDB v NSW Land and Housing Corporation [2023] NSWCATAP 55, at [26]-[27].
2. In summary, before disturbing the exercise of a discretion, we must be satisfied that one of the following errors was made:

(1) a mistake of law;

(2) the decision-maker acted on a wrong principle, or has not addressed themselves to the statutory question;

(3) a material mistake of fact has been made;

(4) an extraneous, or irrelevant, factor has been taken into account;

(5) a relevant, in the sense of mandatory, factor has not been taken into account.

1. As identified in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 (Peko-Wallsend) at [15], in relation to the exercise of a discretion, relevant considerations are those that may be gleaned from the subject matter, scope and purpose of the statute (Mason J). Irrelevant considerations arise where there may be found in the subject matter, scope and purpose of the statute, some implied limitation on the factors to which the decision-maker may legitimately have regard: at [15].
2. Whilst it may not be possible to discern exactly what error occurred, if the decision is unreasonable, viewed from the perspective that the right question was addressed, the relevant law was applied, all relevant and no irrelevant considerations were considered, then a relevant error may be inferred.

1. As mentioned, the appeal is brought on the ground, amongst others, that the Tribunal failed to provide adequate reasons. Assuming there to be a duty to provide adequate reasons, a breach of the duty to do so, could raise a question of law: Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [29]; Commissioner of Police, NSW Police Force v DYD [2023] NSWCATAP 244 at [11]- [18].
2. Before descending into the specifics of the ground concerning reasons, it is appropriate to set out the Appeal Panel's conclusions as to whether the Tribunal has a duty to give adequate reasons and the interplay between this and other errors of law.
3. The NCAT Act provides that the Tribunal must give notice of any decision made in the proceedings: s 62(1) of the NCAT Act. This refers to the decision per se and not the reasons for that decision. As an appeal lies from a decision and not reasons, it is notification of the decision (generally, the orders) that will, at least practically speaking, enliven any appeal rights.
4. Section 62 of the NCAT Act provides:

62 Tribunal to give notice of decision and provide written reasons on request

(1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings.

(2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made.

(2A) Subsection (2) does not apply to the following decisions of the Tribunal -

(a) a decision to make an order dispensing with a hearing of the Tribunal under section 50(2),

(b) a decision to grant an adjournment,

(c) a decision under section 60 not to award costs, except where a party has argued there are special circumstances warranting an award of costs,

(d) a decision to award costs in proceedings of either of the following kinds -

(i) proceedings for the exercise of a function of the Consumer and Commercial Division of the Tribunal,

(ii) an internal appeal against a decision of the Consumer and Commercial Division of the Tribunal,

(e) if the parties have consented to the making of an order - a decision to make the order,

(f) other minor procedural decisions that do not have a final or determinative impact on the rights of a party.

(3) A written statement of reasons for the purposes of this section must set out the following -

(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the Tribunal's understanding of the applicable law,

(c) the reasoning processes that lead the Tribunal to the conclusions it made.

(4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party.

1. We proceed on the basis that compliance with s 62(3) of the NCAT Act would be tantamount to providing adequate reasons.
2. There is no binding authority as to whether the Tribunal has a duty to give adequate reasons, or more particularly reasons that comply with s 62 of the NCAT Act, absent a written request. Here, no request for a written statement of reasons was received, but the Tribunal nevertheless provided a written statement of reasons.
3. We consider that where, as here, the Tribunal voluntarily provides a written statement of reasons, then, that written statement of reasons should comply with (or at least be guided by) s 62(3) of the NCAT Act. Section 62(4), which also refers to a "written statement of reasons" being voluntarily provided and uses the same language as s 62(3), lends itself to such a result.
4. The Appeal Panel in Hermes Nominees Pty Ltd v Shepherd [2024] NSWCATAP 36 considered it necessary to comply with s 62(3) of the NCAT Act even where a written request was not received; although, in that case, a written request for a statement of reasons had indeed been made. In Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940 at [57], Wright J considered that if written reasons were voluntarily provided, they should comply with s 62(3). In New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 ("Orr"), Bell P (as the Chief Justice then was) said at [55] that s 62(3) would, at least, provide important guidance as to what should be set out by the Tribunal in reasons which it chooses to give, even without a request for reasons pursuant to s 62(2); although noting "arguably" s 62(3) is confined to cases where a party requested a written statement of reasons.
5. The then Chief Judge in Equity, Justice Ward, noted at [111] that the "obligation" to provide a written statement of reasons arises only when a party requests it. Her Honour expressly declined to conclude as to what would constitute adequate reasons where no request was received.
6. We note that the Tribunal is under significant work pressure and accept what was said by Bell P in Orr at [70], that allowances must be made when reviewing the adequacy of reasons. In particular, in relation to interlocutory decisions such as this, a benevolent approach to reviewing the reasons is warranted. As the Appeal Panel, we would concern ourselves with the substance of the reasons.
7. In summary, where a written request for reasons is received, in accordance with s 62 of the NCAT Act, there is a statutory duty to provide reasons, in accordance with s 62(3) of the NCAT Act. Where a written statement of reasons is voluntarily provided, we prefer the view, in light of s 62(4), that it too must comply with s 62(3) of the NCAT Act.
8. However, it is ultimately not necessary to finally decide this last point. Notably, s 38(2) of the NCAT Act preserves the rules of natural justice. A failure to provide adequate reasons may represent a failure to consider key evidence and submissions and therefore constitute a denial of procedural fairness or it may reveal a constructive failure to exercise the jurisdiction: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 277; Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 at [129]; and, by implication, Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs [2003] HCA 26 at [24]- [32] ("Dranichnikov"). Both of those questions raise a question or law: FLK v Transport for NSW [2023] NSWCATAP 140, at [22]-[27] (and the authorities there cited).
9. Whether or not providing reasons raised a question of law fell for consideration in Wollondilly Shire Council v Styles [2024] NSWCATAP 104. The Appeal Panel said that alleging inadequacy of reasons, of itself, was not enough without identifying the particular or specific question of law to ensure the appeal is "on a question of law". It said, at [28] to [30]:

"Simply alleging that the Tribunal's reasons are inadequate may not be sufficient to identify the particular or specific question of law that arises where the alleged inadequacy does not 'breach a statutory condition of validity of the decision itself, so as to render the decision invalid': Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209 at [30].

Whilst it is true that simply alleging that reasons are inadequate 'raises' a question of law, and that may be sufficient where the parties and the Appeal Panel correctly understand what that allegation entails (STAR Training Academy Pty Ltd v Commissioner of Police (No 2) [2022] NSWCATAP 98 at [14] to [22]), it is preferable that the actual and specific question of law that it raises is identified with precision. That position is reinforced where the appellant is legally represented: Theophilas v Chief Commissioner of State Revenue [2016] NSWCATAP 111, at [24]; Thomas and Naaz, above, at [72].

In the absence of leave to appeal, the particular questions of law identified by the appellant are the subject matter of the appeal: Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd, above, at [13] and the cases referred to there. Succinctly identifying the question the alleged inadequacy raises will also better turn the parties' attention to what question the Appeal Panel is actually answering, as an allegation that reasons are inadequate is all too often simply a challenge to the merits of the Tribunal's decision, for which leave to appeal is required".

1. We pause to note that a material breach of procedural fairness, a constructive failure to exercise the jurisdiction and a breach of a duty to provide adequate reasons, would each raise a question of law that would raise a House v The King style error. Further still, even where no reasons are provided, it may be possible to identify relevant error on the grounds of unreasonableness, as discussed in House v The King and the other cases referred to above.

1. The Appellant's amended grounds of appeal were detailed. They fall into the following headings (the Grounds):

(1) Procedural Fairness: Ignoring Key Arguments and Submissions

(2) Inconsistency Between Findings and the Evidence in Privacy Internal Review

(3) Failure to Consider Material Evidence About Lack of Consent

(4) Ignoring Medical Evidence on Incapacity

(5) Misapprehension of Evidentiary Standards

(6) Erroneous Inference Based on GIPA Applications

(7) Presumption of Prejudice without Evidence.

1. At the hearing of the matter, the Appellant submitted that there was a further ground of appeal. This was an error of law occurring by reason of a failure to provide adequate reasons: Ground 8.
2. The Appellant identified, for each of the Grounds, various questions of law, said to be raised by a particular Ground. However, we note that the mere fact that an appeal ground raises a question of law, does not allow a right of appeal under s 80(2) against an interlocutory decision; although, that factor may provide the warrant to grant leave to appeal.
3. As noted above, and without limiting the matters to which we may have regard, it is appropriate to identify an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable, in order to find the warrant for granting leave to appeal.

1. As mentioned above, an appeal could not succeed unless the Tribunal: acted upon a wrong principle or mistake of law; mistook material facts; allowed irrelevant matters to affect their decision; failed to take into account a mandatory consideration; or, viewed from the perspective that no such errors were made, the Decision was unreasonable.
2. Further, on an appeal from an interlocutory decision, it is necessary to obtain leave to appeal, on the principles identified above.
3. The approach we therefore take is, first, to ask, in respect of each ground or appeal, whether the Ground raises a House v The King type error, and then only if so, ask whether the Ground warrants the grant of leave to appeal, in the sense discussed in Collins.
4. Put another way, we would only grant leave to appeal on a ground that raises a House v The King style error, and then, only if leave to appeal was otherwise warranted.
5. The Tribunal considered the following matters, before dismissing the Appellant's application for an extension of time:

(1) medical evidence as an explanation for the Appellant's delay in applying for administrative review of the Respondent's decision of 29 September 2022;

(2) whether or not receiving the July Email when it was first sent explained the delay;

(3) whether a late application would prejudice the Respondent; and

(4) whether or not the Appellant's case had merit.

1. On its face, the Tribunal adopted an orthodox approach.
2. Nevertheless, if the Tribunal erred (in a relevant manner, as expressed above) in its assessment of even one of the above-mentioned factors, this may have affected the balancing exercise that is undertaken in exercising the discretion and therefore affected the Decision.
3. Further, we note that as the Decision refused to grant an extension of time to file an application for administrative review, this means that there is no proceeding for administrative review in the Tribunal; and the application was dismissed, without the Appellant having had a hearing on the merits of the underlying application. We give weight to this factor.
4. We consider each Ground in turn.

Ground 1: Procedural Fairness: Ignoring Key Arguments and Submissions

1. A material breach of procedural fairness would constitute a House v The King ground as it would mean that the decision maker made a jurisdictional error; a mistake of law: Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [1], [45]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [12].
2. A material breach is one that was material to the decision that was made: LPDT at [7], [15]. Put another way, a material breach is one that could have affected the result.
3. An example of a breach of procedural fairness is where clearly articulated arguments are ignored: Dranichnikov at [23]-[25]. We accept that a material breach of procedural fairness of this kind, in the context of this case, where the Appellant was precluded from seeking administrative review, would, if it were sufficiently meritorious, warrant the grant of leave. Such an error would, as apprehended by Collins at [84], constitute an injustice going beyond merely what is arguable, or constitute an error that is plain and readily apparent, which is not merely peripheral because it could have affected the result.
4. The Appellant's submission is that there was a breach of procedural fairness because the Tribunal ignored key arguments and submissions. The Appellant submitted that the Tribunal did not properly consider and respond to specific allegations of wrongdoing by the Respondent. One such argument is that, as the Appellant did not make a workplace complaint and did not otherwise consent, there was no basis to engage an independent investigator and accordingly no basis to disclose personal details or the nature of the Appellant's concerns to that person. The fact that the Decision records the Appellant as having made "workplace complaints", indicates that this argument (at least) was missed.
5. This ground raises matters that go to the merits of the Appellant's claims of breaches of the Privacy Act. The Tribunal described the material it reviewed as "voluminous". Having reviewed that material, which included the Appellant's arguments, the Tribunal concluded that the Appellant's case had no substantial merit.
6. However, for reasons set out below, under the Ground concerning adequacy of reasons, we are not able to assess whether the Tribunal considered the key contentions of the Appellant, or why they were dismissed. This ground is therefore tied, inextricably, to the final ground concerning reasons. Ground 1 should therefore be treated as an aspect of Ground 8.

Ground 2: Inconsistency Between Findings and the Evidence in Privacy Internal Review

1. The Appellant contends that the Decision reveals a failure of the Tribunal to properly engage with critical evidence. In particular, the Appellant points to the Tribunal referring to the Appellant having made "multiple workplace complaints as against the Respondent" when, in the Internal Review, the Respondent had recorded that "although you did not lodge a single formal complaint".
2. A failure to consider key evidence would constitute a material breach of procedural fairness: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [113].
3. For the same reasons as referred to in relation to the previous ground, this ground is also tied to the final ground and it should be treated as an aspect of Ground 8.

Ground 3: Failure to Consider Material Evidence About Lack of Consent

1. The gravamen of this Ground is that the Tribunal failed to engage with the Appellant's evidence that at no stage did they consent to an investigation.
2. The questions of law said to arise include whether the decision was vitiated by bias or a reasonable apprehension of bias, whether there was a lack of procedural fairness, whether the Tribunal failed to adequately address substantial and clearly articulated arguments and whether there was a failure to consider material evidence.
3. Whilst these questions of law, could enliven House v The King grounds we are not satisfied that, as articulated, the ground indeed does so.
4. However, for the same reasons as for Grounds 1 and 2, this ground is tied to Ground 8 and should be treated as an aspect of it.

Ground 4: Ignoring Medical Evidence on Incapacity

1. The Tribunal determined that "there is an absence of medical evidence for 2023". The Appellant submits that this is factually incorrect; and it demonstrates a failure to consider relevant and probative evidence that was before the Tribunal.
2. It has been often noted that when an extension of time is sought, it is not irrelevant to consider the reasons for the delay, particularly when the delay is significant (as it here is). Accordingly, at least for the purposes of the application for leave to appeal, we would accept that such a factor is a relevant factor.
3. We therefore accept that, if the Tribunal indeed failed to consider the Appellant's explanation for delay or the Appellant's evidence concerning the explanation for the delay, then that could constitute a House v The King ground. However, this is not what occurred. The Tribunal, in effect, considered the submitted explanation for the delay and the relevant evidence and found it was not satisfied by the evidence. Accordingly, this ground, as formulated, is without merit and therefore, under the principles expressed in Collins, leave to appeal would not be warranted.
4. Leave to appeal on Ground 4 is accordingly refused.

Ground 5: Misapprehension of Evidentiary Standards

1. The Appellant submits that in rejecting the medical certificates or concluding that the medical certificates did not provide an opinion or evidence as to the inability of the Appellant to file an application for administrative review, the Tribunal demonstrated a fundamental misapprehension of the nature, scope and purpose of the medical evidence. The Appellant asserts that the certificates, whilst issued in the context of employment incapacity, relate to the underlying condition of psychological injury which has consequences far beyond the ability of a person to perform paid work. It was submitted that it affected executive decision-making, emotional regulation and the capacity to manage complex or high stress tasks. Each of these, so it was submitted, would affect the ability of the Appellant to participate in legal proceedings. Further, the Appellant asserts that the Tribunal appears to have construed the medical evidence too narrowly, in reasoning it was deficient because it did not include an opinion on the Appellant's capacity to file an application in the Tribunal.
2. The Appellant's submissions contend that by disregarding the medical evidence, the Tribunal made a mistake of law in misapprehending the evidentiary purpose and value of medical evidence and set the bar too high.
3. We accept that this could raise a House v The King ground. However, the difficulty for this ground is that the medical certificates were silent on the types of injury and consequences asserted by the Appellant.
4. The Court of Appeal in Pachkovski v Australian Executor Trustees Ltd [2011] NSWCA 94 said, at [4]:

"Those medical certificates are not in a satisfactory form. They are not supported by any appropriately verified evidence from the doctor. They do not identify the symptoms or the degree of the alleged problem, so as to justify the assertion that the person would be unfit to attend court. They provide a wholly inadequate basis on which the court could be satisfied that there is a compelling reason why this matter, which has for some time been fixed for this date, should not proceed."

1. Further, in Magjarraj v Asteron Life Pty Ltd [2009] NSWSC 1433 per Barrett J at [22], it was said:

"All too frequently judges see cryptic written statements from medical practitioners referring to some undisclosed and undiagnosed "medical condition", culminating in the assertion that a person is unfit to attend court or unfit for a court hearing. To the extent that such statements are put forward as evidence about the state of the person's health and the extent to which impaired health may incapacitate a person from participating in court proceedings, the statements fail the most fundamental test for the reception of expert evidence. Bald unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything."

1. By way of example, in Waters v Waghorn [2016] NSWCATAP 247, the Appeal Panel said, at [19]:

"Here, the evidence of the forensic psychologist was in appropriate expert evidence format. Relevantly, he was suitably qualified and identified the reasoning for his conclusions. The underlying facts, such as the death of the appellant's husband were not disputed. The respondent did not adduce any evidence to counter the medical opinion. Accordingly, there has been provided a reasonable explanation for the delay."

1. Here, the medical certificates did not identify the symptoms or allow the Tribunal to assess, why, for over two years, the Appellant had been unable to file an application in the Tribunal. To the extent that there were issues of confidentiality, which might be thought to have disincentivised the Appellant from being more disclosive, these concerns may have been accommodated by orders made under s 64 of the NCAT Act.
2. Further, it is noted that the Tribunal also had evidence of some ability of the Appellant to engage with legal processes such as the filing of GIPA requests. Whilst the Appellant distinguishes these, it was not out of bounds for the Tribunal to consider this as being inconsistent with the proposition that the Appellant was not in a position to file the application, in the absence of particularised medical evidence.
3. Given the lack of particularity of the medical evidence, the Appellant has not demonstrated that the Tribunal erred in its approach to assessing the medical evidence and the ground is without sufficient merits to warrant the granting of leave to appeal. Accordingly, even if we were satisfied that this ground raised a House v The King style error, we do not consider it has sufficient prospects to warrant the grant of leave to appeal, as explained in Collins.
4. Leave to appeal on Ground 5 is accordingly refused.

Ground 6: Erroneous Inference Based on GIPA Applications

1. The Appellant contends that the Tribunal erred in taking into account the evidence of the Appellant's capacity to make various applications, including under the GIPA Act in 2022 and 2024.
2. The Appellant submits that there is no evidence that the Appellant personally lodged these and submits that they were prepared and submitted by her legal representatives. At no point did the Appellant undertake those actions independently. Further and more "fundamentally" the Appellant submits that the Tribunal's reasoning rests on a flawed premise:

"that an individual's engagement in incidental tasks provides a reliable basis from which to infer the capacity to independently initiate and conduct legal proceedings."

1. The Appellant again relies on the medical certificates and submits that the clinical assessment is not rebutted by reference to actions performed with legal assistance.
2. The Appellant identifies various questions of law said to arise under this ground including bias or apprehension of bias, absence of a fair hearing, failure to adequately address evidence and critical submissions and drawing conclusions that were contrary to the weight of the evidence. However, this Ground appears, at heart, to be concerned with the weight given to the applications filed when compared to the medical certificates. Such a ground does not raise House v The King style error.
3. To the extent that this Ground raises the question of whether the Tribunal took into account an irrelevant consideration (which is a House v The King style ground) we are not satisfied it has sufficient prospects to warrant the grant of leave. The fact that the Appellant had managed to file some applications, even accepting that this was done with the assistance of lawyers, was, as a matter of logic, not irrelevant to the Tribunal's consideration of the statutory question. Further, to be an irrelevant consideration, in the sense comprehended by Peko-Wallsend, the factor must a factor that is prohibited to be taken into account (either expressly or impliedly). We do not accept this Ground to be engaging with an irrelevant or prohibited consideration, in the sense described in Peko- Wallsend, at [15].
4. Leave to appeal on Ground 6 is accordingly refused.

Ground 7: Presumption of Prejudice without Evidence

1. The Appellant contended that the Tribunal erred in accepting, without specific or particular evidence, that the Respondent was prejudiced by the delay. Whilst the Appellant accepts that the accuracy of recollections fade during time (which is a proposition widely accepted - see, for instance, Della Bruna v Health Care Complaints Commission [2025] NSWCA 105 at [58]), the Appellant submits that this is, primarily, a documentary case and accordingly these considerations are irrelevant. The Appellant contends that the error of law here is that the Tribunal based the Decision on speculative assertions, without considering the Respondent's duty to preserve evidence and the Appellant's right to a hearing on the merits.
2. Whilst we accept that this could raise a House v The King ground, to the extent that it engages with unreasonableness in decision making, or making a decision without evidence, we are not satisfied that it has sufficient merits or raises a sufficiently important point of principle to warrant the granting of leave.
3. As the Appellant accepted, memories fade; and the Appellant has not demonstrated that this is a purely documentary case.
4. Leave to appeal on Ground 7 is accordingly refused.

1. This ground, raised at the hearing, is particularly directed to the reasons for which the Tribunal rejected the merits of the application.
2. The Tribunal said at [26]:

"After considering the voluminous material before me, the reasoning in the Internal Review as well as the Applicant's arguments focused on the alleged merits of her claims, are not satisfied that the claims have substantial merit."

1. As noted above, there may be several ways in which this Ground raises a House v The King style error. The Decision may:

(1) constitute a constructive failure to exercise the jurisdiction;

(2) materially breach procedural fairness;

(3) breach the duty to give adequate reasons (assuming there to be one) or comply with s 62 of the NCAT Act (assuming that is necessary); or

(4) be inferred to be erroneous, if on the assumptions that the facts are correctly apprehended, no extraneous factors are considered, no relevant factors were ignored and there has been no mistake of law, the decision is nonetheless unreasonable or plainly unjust.

1. Ground 8, read with the Notice of Appeal, primarily engages with the second of these in the sense that the absence of reasons discloses that the appellant's case (or critical aspects of it) regarding the merits of the substantive application was not considered.
2. Whilst the discretion to extend time is seemingly unconstrained, its purpose is to ensure that the time limits do not themselves become an instrument of injustice: Gallo v Dawson (1990) 64 ALJR 458 at 459; [1990] HCA 30. Self-evidently, in a case concerning an extension of time to file proceedings, the higher the merits of the underlying proceedings, the higher the risk of injustice, if an extension is not granted. Where the merits of a case are particularly strong, this may override some inadequacy in the explanation for the delay or may, in some cases, trump any prejudice to a respondent, which may, in any event be accommodated or ameliorated with procedural rulings or an award of costs. Accordingly, even if not a relevant consideration (in the requisite sense discussed in Peko-Wallsend) we accept that the merits of the underlying application is material to the ultimate exercise of the discretion to extend time. Accordingly, an error in relation to determination of the merits is capable of providing the warrant for the granting of leave to appeal.
3. Ultimately, the exercise of the discretion requires a balancing exercise; once all of the material factors are known. Accordingly, if an analysis of merits has gone awry, that may be something that could undermine the decision-making; even where other factors do not favour the grant of an extension of time. This is particularly the case where the prejudice to the Appellant is to be shut out of administrative review entirely.
4. The Tribunal was required to exercise the jurisdiction which required determining whether or not an extension of time should be granted. An aspect of that was to form a view about the merits of the underlying application. This, in turn, required the Tribunal to grapple with the competing evidence and submissions, at least at a high level for the purposes of the application for an extension of time. We note that the material was said be voluminous. We are not here suggesting that a full merits review was necessary; that would be the subject of the substantive application. Nonetheless, some assessment of merits must be undertaken.
5. Compliance (or non-compliance) with the requirement to evaluate the evidence will be exposed in a case where the Tribunal has satisfied the requirements of s 62 of the NCAT Act. Section 62, relevantly, requires a decision maker to set out: (a) the findings on material questions of fact (including references to the evidence); (b) the Tribunal's understanding of the applicable law; and (c) the reasoning process leading to the Tribunal's conclusions.)
6. The Decision does not comply with s 62(3) of the NCAT Act, assuming that was necessary. In any event, in order to evaluate the merits, the Tribunal was required to consider the evidence and submissions as filed on the application. As the Tribunal mentioned, this material was voluminous; but the Tribunal did not descend to any specifics. In particular:

(1) to the extent any facts were found (so far as merits was concerned), they are not set out;

(2) the material evidence, as to merits, was not identified;

(3) the reasoning, as to merits, was not exposed here; and

(4) no basis for accepting the respondent's position was identified.

1. Even assuming it was not necessary to comply with s 62(3) of the NCAT Act, it should be clear on the face of the written reasons whether the duty to evaluate the evidence and the duty to consider the critical submissions (aspects of procedural fairness) have been complied with or not. That is not clear here.
2. As detailed in relation to the earlier Grounds which we have concluded above are tied to this Ground, the Appellant contends that the Tribunal failed to respond to their case. Those Grounds provide some basis to suggest that the Tribunal misconstrued or missed the key submissions and elements of the Appellant's case, revealing a constructive failure to exercise the jurisdiction or a breach of procedural fairness. As discussed above, it was submitted that it was accepted on Internal Review that the Appellant had made no "formal" complaint and that may support a contention that no investigator ought to have been appointed. To the extent the Tribunal referred to the complaint, the Tribunal appeared to accept (contrary to what was said on Internal Review) that workplace complaints had been made. This provides some basis to suggest that there may have been errors in how the Tribunal gauged prospects. The Appellant also contended that they provided no consent in relation to the investigation, which too could have affected the merits.
3. In summary, Ground 8 contends that the Tribunal erred on a question of law which is capable of affecting the outcome of the Decision: a material error. In particular, the ground raises an important point of principle of general application, concerning the extent to which a decision maker must deal with critical submissions and evidence of a party and expose their reasons in so doing. Further, the ground raises an error of the House v The King style, which is required in relation to appeals from discretionary decisions. Further still, as we have identified, the alleged error concerns the way in which the Tribunal gauged the merits of the underlying application, which goes to the heart of a decision to extend or to refuse time to file an application. Such a decision may shut out an applicant from merits review of an administrative decision. Therefore, as we have identified that the ground has merit, it concerns an injustice which is reasonably clear. Following the principles in Collins v Urban, we are satisfied that there is warrant for granting leave to appeal on Ground 8.
4. Leave to appeal on this ground is allowed. As referred to above, Grounds 1, 2 and 3 are tied to Ground 8. Leave to appeal on these grounds should be granted for the same reasons.

1. The Appellant contends that there was a breach of procedural fairness in that key arguments and submissions have been ignored. We have accepted this, insofar as it relates to the Tribunal's assessment of the merits of the underlying application, in circumstances where the Tribunal's reasons for concluding that there were not sufficient merits have not been explained.
2. We are conscious that this is a busy jurisdiction and the extent to which reasons are required must be considered in this context. Nevertheless, here, the Tribunal accepted the Respondent's submissions, without providing some basis or reference to any of the voluminous material filed by the Appellant; and where there is, on the face of the Decision, some indication of error.
3. The appeal is therefore allowed with respect to Grounds 1, 2, 3 and 8 concerning inadequate reasons and breach of procedural fairness, insofar as assessing the merits is concerned.
4. The question of merits, will, in turn, affect the exercise of discretion and hence the Decision should be set aside. We propose to remit the matter to the Tribunal for reconsideration.
5. No findings as to credit were made by the Tribunal. Therefore, there is no reason the matter should not be remitted to the Tribunal similarly constituted, subject to availability.

1. The Appellant has made an application for costs. However, unless there are special circumstances, each party is to pay their own costs: s 60 of the NCAT Act.
2. The Appellant's submissions raise the following: the power disparity between them and the Respondent, medical incapacitation, lack of income and institutional support, the claimed denial of privacy rights and the dismissal of the complaint without a hearing on the merits.
3. Some matters to which we may have regard, in determining whether there are special circumstances to warrant an award of costs are set out in s 60(3) of the NCAT Act. This list is not exhaustive. The list includes questions of whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings. It also includes questions of whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings. Whether a party's submissions are untenable, is also a listed factor.
4. There is nothing in the evidence or submissions to indicate that the Respondent has conducted the proceedings in a way that has unnecessarily disadvantaged the Appellant. Nor is there evidence that the Respondent has been responsible for prolonging unreasonably the time taken to complete the proceedings. The Respondent's position was tenable. We see no other matters that the Tribunal considers relevant to the question of determination of whether the Respondent should pay costs, including those raised by the Appellant.
5. We do not consider that there are special circumstances that warrant an award of costs. There are no circumstances we can identify within s 60(3) of the NCAT Act or otherwise to warrant an award of costs.

1. We note that confidentiality orders were made at first instance. In order to preserve those confidentiality orders, we will make a similar order in these appeal proceedings.

1. Leave to appeal is granted and the appeal is allowed in respect of Grounds 1, 2, 3 and 8.

(1) Leave to appeal is granted in relation Grounds 1, 2, 3 and 8.

(2) The appeal is allowed.

(3) The Decision of the Tribunal made 25 February 2025 is set aside.

(4) The matter is remitted to the Tribunal for reconsideration.

(5) No order as to costs.

(6) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of the Appellant is prohibited.

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.