HCP v Commissioner of Victims Rights [2026] NSWCATAD 6;

Failure to respond to multiple written complaints raising urgent psychological. 2. Denial of reasonable procedural adjustments. 3. Dismissal of safety-related support on (i.e. non-domestic violence) 4. Disregard of correspondence from medical professionals. 5. Failure to provide a trauma -informed, fair, and timely complaints handling process 6. Ongoing psychological harm caused by delays, neglect, and maladministration breach of statutory obligations under the Victims Rights and Support Act 2013.

1. Subsequently, at a directions hearing on 20 June 2025 the Tribunal differently constituted made procedural directions and orders for the future conduct of the proceedings. It appears at that time the respondent raised orally the issue of jurisdiction noting that in respect of victims of violent crime s 51 of the VR & S Act provides only for administrative reviews of recognition payment decisions. The section provides:

51 Application to Tribunal for administrative review of decision concerning recognition payment

(1) An applicant for a recognition payment who is aggrieved by the decision of a decision maker in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner following an internal review under section 49 of the decision maker's decision with respect to the recognition payment.

(2) An applicant for a recognition payment who is aggrieved by the decision of the Commissioner in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner.

1. The Tribunal also remitted the application for Internal Review to the Commissioner as part of the orders made on 20 June 2025 listing the matter for further directions on 18 July 2025 following the remittal (order 5).
2. On 18 July 2025, the matter came before me in the standard directions list as envisaged by order 5 as referenced at [5] above. The manner of my conducting of that directions hearing on 18 July 2025 and specifically a discussion around jurisdiction, was the matter which caused HCP to seek that I recuse myself from further hearing of his application.
3. In a separate decision of 20 October 2025 having heard from both parties, I declined to recuse myself from hearing HCP's proceedings. Detailed written reasons were provided to the parties. As far as I am aware no request for leave to appeal an interlocutory decision to the internal Appeal Panel has been made in respect of that recusal decision. As part of the orders from 20 October 2025 and noting that the respondent had foreshadowed a strike out application, I made the following orders about the future conduct of the jurisdiction question:

(1) The application by HCP that Senior Member McAteer recuse himself is refused.

(2) HCP is to lodge with the Tribunal and serve on the Commissioner any written submissions of no more than three pages on or before 14 days from the date of these reasons in respect of whether they (a) consent to an order dispensing with an oral hearing of the dismissal application, and (b) if they do not consent, submissions as to why an oral hearing should be conducted rather than the application being determined on the papers, and (c) including whether the decision to dispense with a hearing can be made in accordance with s 50 (4) of the NCAT Act.

(3) The Commissioner is to lodge with the Tribunal and serve on HCP any written submissions in reply of no more than three pages, in respect of (a) whether they consent to an order dispensing with an oral hearing of the dismissal application, and if (b) they do not consent, submissions as to why an oral hearing should be conducted rather than the application being determined on the papers, and (c) including whether the decision to dispense with a hearing can be made in accordance with s 50 (4) of the NCAT Act.

1. As foreshadowed by the orders of 20 October 2025 as set out at [7] above, the Tribunal determined that it may be appropriate to determine the matter under s 50 of the NCAT without a hearing. Section 50 of the NCAT Act provides:

50 When hearings are required

(1) A hearing is required for proceedings in the Tribunal except -

(a) in proceedings for the granting of leave for an external or internal appeal, or

(b) in connection with the use of any resolution processes in proceedings, or

(c) if the Tribunal makes an order under this section dispensing with a hearing, or

(d) in such other circumstances as may be prescribed by the procedural rules.

(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first -

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

(b) taken any such submissions into account.

(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

(5) This section does not prevent the Tribunal from holding a hearing even if it is not required.

1. The parties subsequently expressed a view consenting to the dispensing with an 'oral hearing'. On 3 December 2025, the Tribunal determined that the provisions of s 50 (3) had been met and was satisfied that under s 50 (2) of the NCAT Act that a Hearing could be dispensed with and issued an order to that effect on 3 December 2025.
2. Having reviewed the material again, I remain satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or others documents and material lodged with the Tribunal.

1. HCP filed a counter application for miscellaneous matters seeking in orders 1-3 inclusive that the strike out application of the Commissioner effectively be dismissed as his application raised substantial legal and factual issues.
2. The Commissioner's strike out application raised the following grounds:

(i) The assertion that a category B recognition payment is payable in respect of an assault is misconceived and lacking in substance.

(ii) HCP has been approved the highest category of recognition payment available in respect of an assault (not involving a sexual assault), sexual touching or attempted sexual assault or sexual act perpetrated against a child. Noting this, the proceedings lack utility / substance.

(iii) The Tribunal does not have jurisdiction or power to grant relief in respect of the Residual Matters.

1. I note that aspects of the recusal matter focused on my approach to the merits of HCP's claim. In the recusal decision significant reference was made to the matters that transpired during the second directions hearing whereby HCP claimed that the Tribunal (as presently constituted) prejudged HCP's application and that I pressured HCP to withdraw his application. In respect of the withdrawal prong it is correct that at a directions hearing the Tribunal in seeking to clarify what the proceedings are about and to narrow the issues in dispute where possible identified. In addition, (as a preliminary observation) it was discussed that there appeared to be no available remedy more beneficial to HCP under the VR & S Act arising from any hearing on the merits by the Tribunal.
2. HCP's application for Administrative Review raised the following grounds:

(1) Failure to respond to multiple written complaints raising urgent psychological [sic].

(2) Denial of reasonable procedural adjustments.

(3) Dismissal of safety-related support on (i.e. non-domestic violence).

(4) Disregard of correspondence from medical professionals.

(5) Failure to provide a trauma-informed fair, and timely complaints handling process.

(6) Ongoing psychological harm caused by delays, neglect, and maladministration breach of statutory obligations under the Victims Rights and Support Act 2013 (NSW).

1. I note that nowhere in the Application for Administrative Review as set out at [14] above does HCP engage on the merits of the decision of the Senior Assessor as delegate on Internal Review. The application appears couched in terms relating broadly to how HCP has been treated by the Commissioner and their staff during the victims support process.
2. HCP submitted with his claim that:

(a) A category B recognition payment may be lawfully awarded;

(b) The Tribunal has jurisdiction to conduct a review of alleged procedural flaws in the internal review decision, specifically the 'application of an unsupported "escalation policy" ';

(c) The Tribunal must consider Department of Communities and Justice (DCJ) conduct as part of the review including conduct of the Commissioner, the Secretary of DCJ and other DCJ employees;

(d) The senior assessor failed to adequately consider well-documented and serious procedural concerns raised by HCP including the conduct of "senior DCJ staff, delays, and the application of unsupported policy'' This includes concerns relating to escalation criteria, a failure to escalate and a lack of response relating to attempts to escalate. HCP further asserts that the senior assessor failed to identify or correct alleged errors made by the original decision maker relating to acknowledgement of clinical risk and alleged failure to apply procedural fairness in failing to act / apply a trauma informed approach, and

(e) Raises issues with the directions hearing on 18 July 2025 and requests that the matter be reassigned to another member.

1. I note that item (e) was addressed by my separate decision of 20 October 2025 and I therefore do not need to revisit it in these reasons. Items (a) - (d) at [16] above in my view set out a fair summary of HCP's concerns. It is clear that HCP believes that he was treated in an unfair and unjust manner by Victims Services and DCJ generally. I make no further comment or any finding on whether his concerns are valid or not.
2. When the matter first came before the Tribunal on 20 June 2025 for directions, the matter was remitted to the Commissioner as the Internal Review had not as yet been completed. The Tribunal also made orders concerning the residue of the matter. It appears that these orders gave rise to a belief that the Tribunal has power to deal with the other matters referred to in HCP's administrative review application. I will address any residual administrative review power under the Administrative Decisions Review Act 1997 (the ADR Act) below.
3. At the second directions listing on 18 July 2025 these matters and the power and role of the Tribunal in respect of applications under the VR and S Act and administrative review generally were ventilated in some detail. The recusal reasons for decision cover off on some aspects of what transpired. As they have not been published I reproduce some of the reasons below where they address the power and role of the Tribunal. At [18] - [23] the reasons state:

18. I note that the directions hearing for HCP's matter on 18 July 2025 went for over 40 minutes. This is relevant in that much of what the Tribunal was engaged in was narrowing the issues in dispute and determining the future conduct of HCP's matter. From the transcript it is clear that I am explaining the practice and procedure of the Tribunal, in part as they apply to HCP's specific application, but also examining the issues that his application raises so as to best determine the future conduct of the matter. In doing this I have adhered to the obligations of the Tribunal under sections 36 (1), s-36 (2) and s 36(4) which provide:

36 Guiding principle to be applied to practice and procedure

(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The Tribunal must seek to give effect to the guiding principle when it -

(a) exercises any power given to it by this Act or the procedural rules, or

(b) interprets any provision of this Act or the procedural rules.

...

(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

...

19. At directions hearings the Tribunal seeks to give effect to these principles by identifying the real issues in dispute between the parties, to the extent possible narrowing those issues, and then seeking to case manage the matter to best give effect to the guiding principle under s 36 (1) of the NCAT Act.

20. The sound recording moves through the jurisdictional issues and I refer to the position that the Tribunal is not deciding these matters 'on the fly' but identifying the matters that will need to be addressed based on the Respondent's position. At one stage I refer HCP to the Charter of Victims Rights as it is uncontroversial that he was a victim of violent crime and is seeking further supports arising from that process. This issue in part arises because HCP refers to his rights having been diminished or not met by both Victims Services and the Tribunal as well as others.

21. Procedural information is then provided concerning how HCP might pursue his concerns around poor administrative conduct by certain agencies and individuals in the NSW public sector.

22. ...

23. It is correct that at time stamp 22:30-23:40 on the recording there is a discussion whereby I suggest that an option open to HCP is to consider withdrawing the application. When the recording is heard in full this clearly arises in the context of one of the ways forward for the proceedings. To either proceed on a dismissal hearing, or have the matter finalised by a withdrawal, or proceed to the merits are the relevant matters canvassed on the material before the Tribunal and consistent with dealing with issues raised in reply by the Commissioner. The difficulty with the merits approach which was explained at the time is that it would follow the jurisdictional hearing and only occur if the Commissioner was unsuccessful with their dismissal application, that application having already been filed and notionally listed for hearing at the same time.

1. Whilst HCP imports a number of issues into the mix concerning what the senior assessor should and should not have done, I note that when applying a recognition payment, or when seeking an internal review of a decision in respect of a recognition payment, the statutory scheme is designed on the basis of whether evidence is sufficient to result in a positive finding creating an eligibility to be considered for such a recognition payment. Matters such as therapeutic interventions, the application of policies as well as trauma informed approaches to the claim are absent from Part 4 of the VR & S Act which deals with the Victims Support Scheme under which HCP's application sits.
2. Part 4 of the VR and S Act sets out at s 17 the object of the Part.

Division 1 Preliminary

17 Object of part

The object of this part is to establish a scheme to provide support for -

(a) victims of acts of violence, and

(b) victims of acts of modern slavery, and

(c) family victims of road crime.

1. Many of HCP's concerns appear to relate to the manner that he was treated as a consumer of services but also understandably how he was treated as a victim of crime. In respect of the later the Charter of Victims Rights would apply to HCP. At Part 2 of the VR and S Act the provisions relating to the Charter are set out.

Part 2 Victims rights

Division 1 Preliminary

4 Object of Part

The object of this Part is to recognise and promote the rights of victims of crime.

5 Meaning of "victim of crime"

**(1) For this Act, a victim of crime is a person who suffers harm as a direct result of an act committed, or apparently committed, by another person in the course of - **

(a) a criminal offence, including a criminal offence involving a motor vehicle, or

(b) conduct of a kind referred to in the Modern Slavery Act 2018, section 5(1), definition of modern slavery, paragraph (b).

**(2) A person suffers harm if, as a result of such an act - **

(a) the person suffers actual physical bodily harm or psychological or psychiatric harm, or

(b) the person's property is deliberately taken, destroyed or damaged.

(3) If the person dies as a result of the act concerned, a member of the person's immediate family is also a victim of crime for the purposes of this Part.

(4) If a person dies as a result of the act concerned and there is more than one member of the person's immediate family, members of the immediate family may nominate a representative for the purposes of the Charter of Victims Rights.

Division 2 Charter of Victims Rights

6 Charter of rights of victims of crime

The following comprises the Charter of rights of victims of crime -

6.1 Courtesy, compassion and respect

A victim will be treated with courtesy, compassion, cultural sensitivity and respect for the victim's rights and dignity.

6.2 Information about services and remedies

A victim will be informed at the earliest practical opportunity, by relevant agencies and officials, of the services and remedies available to the victim.

6.3 Access to services

A victim will have access where necessary to available welfare, health, counselling and legal assistance responsive to the victim's needs.

6.4 Information about investigation of the crime

A victim will, on request, be informed of the progress of the investigation of the crime, unless the disclosure might jeopardise the investigation. In that case, the victim will be informed accordingly.

6.5 Information about prosecution of accused

(1) A victim will be informed in a timely manner of the following -

(a) the charges laid against the accused or the reasons for not laying charges,

(b) any decision of the prosecution to modify or not to proceed with charges laid against the accused, including any decision to accept a plea of guilty by the accused to a less serious charge in return for a full discharge with respect to the other charges,

(c) the date and place of hearing of any charge laid against the accused,

(d) the outcome of the criminal proceedings against the accused (including proceedings on appeal) and the sentence (if any) imposed.

(2) A victim will be consulted before a decision referred to in paragraph (b) above is taken if the accused has been charged with a serious crime that involves sexual violence or that results in actual bodily harm or psychological or psychiatric harm to the victim, unless -

(a) the victim has indicated that he or she does not wish to be so consulted, or

(b) the whereabouts of the victim cannot be ascertained after reasonable inquiry.

6.6 Information about trial process and role as witness

A victim who is a witness in the trial for the crime will be informed about the trial process and the role of the victim as a witness in the prosecution of the accused.

6.7 Protection from contact with accused

A victim will be protected from unnecessary contact with the accused and defence witnesses during the course of court proceedings.

6.8 Protection of identity of victim

A victim's residential address and telephone number will not be disclosed unless a court otherwise directs.

6.9 Attendance at preliminary hearings

A victim will be relieved from appearing at preliminary hearings or committal hearings unless the court otherwise directs.

6.10 Return of property of victim held by State

If any property of a victim is held by the State for the purpose of investigation or evidence, the inconvenience to the victim will be minimised and the property returned promptly.

6.11 Protection from accused

A victim's need or perceived need for protection will be put before a bail authority by the prosecutor in any bail application by the accused.

6.12 Information about special bail conditions

A victim will be informed about any special bail conditions imposed on the accused that are designed to protect the victim or the victim's family.

6.13 Information about outcome of bail application

A victim will be informed of the outcome of a bail application if the accused has been charged with sexual assault or other serious personal violence.

6.14 Victim impact statement

A relevant victim will have access to information and assistance for the preparation of any victim impact statement authorised by law to ensure that the full effect of the crime on the victim is placed before the court.

6.15 Information about impending release, escape or eligibility for absence from custody

A victim will, on request, be kept informed of the offender's impending release or escape from custody, or of any change in security classification that results in the offender being eligible for unescorted absence from custody.

6.16 Submissions on parole and eligibility for absence from custody of serious offenders

A victim will, on request, be provided with the opportunity to make submissions concerning the granting of parole to a serious offender or any change in security classification that would result in a serious offender being eligible for unescorted absence from custody.

6.17 Financial assistance for victims of personal violence

A victim of a crime involving sexual or other serious personal violence is entitled to make a claim under the Victims Support Scheme.

6.18 Information about complaint procedure where Charter is breached

A victim may make a complaint about a breach of the Charter and will, on request, be provided with information on the procedure for making such a complaint.

6A Additional matters for Charter of victims rights of forensic patients

The following comprises the Charter of rights of victims of crime who are victims of forensic patients -

6A.1 General matters

Each right referred to in section 6.

6A.2 Treatment of victim

A victim will be treated with respect and compassion, having regard to the fact that proceedings may touch on painful or tragic events in the victim's life and cause the victim to experience further grief and distress.

A victim making a submission before the Mental Health Review Tribunal should be listened to respectfully and in a way that is cognisant of the effects of the victim's experience and the benefit of expressing views about its impact.

6A.3 Information about reviews of and other proceedings relating to forensic patients

A victim will be informed in a timely manner of any matter before the Mental Health Review Tribunal, or the release of or granting of leave to a forensic patient or any other matter, that the victim is required to be informed of under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

7 Implementation of Charter

(1) The Charter of Victims Rights is, as far as practicable and appropriate, to govern the treatment of victims in the administration of the affairs of the State.

(2) Any agency or person exercising official functions in the administration of the affairs of the State (other than judicial functions) must, to the extent that it is relevant and practicable to do so, have regard to the Charter of Victims Rights in addition to any other relevant matter.

(2A) Despite subsection (2), the Charter of Victims Rights, section 6.8 does not apply to a victims rights agency when disclosing, to the extent reasonably necessary, a victim's contact information to another victims rights agency to allow that victims rights agency to inform the victim about services, support or assistance available to the victim, including about the victim's eligibility to be recorded or included in a relevant victims register.

(3) In this section, the administration of the affairs of the State includes the following -

(a) the administration of justice,

(b) the provision of police services,

(c) the administration of any department of the Government,

(d) the provision of services to victims of crime by any person or non-government agency funded by the State to provide those services,

(e) the administration of matters relating to forensic patients and victims of forensic patients.

1. In my view the Charter clearly applies to HCP specifically in respect of some of his dealings with Victims Services and arms of the State of NSW in respect of the crime committed against him. In respect of his recognition payment application, whilst as a general principle clauses 6.1, 6.2 and 6A.2 apply to HCP, as well as the provisions of s 7 (2) of the VR and S Act, as noted above a recognition payment application is a statutory process which occurs under Part 4 of the VR and S Act.
2. Specifically however, the powers of the Tribunal arise under Part 4 of the VR and S Act not Part 2 - where the Charter and the rights of victims of crime reside in that Act. The specific power of the Tribunal on administrative review arises from the provisions of section 51 of the VR and S Act which provides:

51 Application to Tribunal for administrative review of decision concerning recognition payment

(1) An applicant for a recognition payment who is aggrieved by the decision of a decision maker in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner following an internal review under section 49 of the decision maker's decision with respect to the recognition payment.

(2) An applicant for a recognition payment who is aggrieved by the decision of the Commissioner in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner.

1. Other than s 52 which relates to provisions of the ADR Act in respect of pending applications for administrative review and their relationship with internal reviews, an administrative reference concerning payments under s 53 and sections 66, 67 and 69 which deals with restitution (recovery from offenders) there is no other reference to the Tribunal beyond s 51 in the VR and S Act. I also note that s 51 limits the Tribunal's power to conducting an administrative review of a decision concerning a recognition payment.
2. In his bundle of material submitted on 16 June 2025 where he request an urgent hearing by the Tribunal, HCP refers to the grounds of the urgency application under four hearings: 1. Psychological Risk and Vulnerability, 2. Failure to provide timely internal review, 3. Ongoing Disadvantage and risk, 4. Exhaustion of other remedies.
3. In respect of the first basis, that would seem a cogent ground to finalise the matter as quickly as possible. There is interplay with item 2 (failure to provide timely internal review) and the guiding principle under the NCAT Act. As it transpired the matter was listed for directions less than one week after filing and the matter was remitted to the Commissioner to formalise an Internal Review completion date and report back to the Tribunal.
4. It appears that HCP was of an understanding that the Tribunal can address all of his outstanding grievances arising from his victims support process. Reference is made to having sought remedies with the Anti-Discrimination Board, NSW Ombudsman and ICAC, and escalated matters to the Secretary of DCJ and the NSW Attorney General, 'none of whom have offered protective or timely resolutions'.
5. It also appears that HCP believes that a category B recognition payment might be available to him on the basis of a reference to Schedule 1 of the VR and S Act supporting a proposition that 'category B includes: ''a sexual assault or serious physical assault, or an offence involving grievous bodily harm"'. On my reading of Schedule 1, it relates solely to matters concerning the Victims Advisory Board. Clause 3 which deals with definitions only defines two terms: 'Board' and 'member'.
6. HCP's submitted definition set out in italics at [29] above appears to mistakenly import the wording of s 35 (3) of the VR and S Act - concerning Category C recognition payments, with some other source not supported by the words as expressed in the statute. The legislation states:

(3) A category C recognition payment is a payment given in respect of an act of violence or act of modern slavery involving any of the following -

(a) a sexual assault other than one referred to in subsection (2) (b),

(b) an attempted sexual assault resulting in serious bodily injury,

(c) an assault resulting in grievous bodily harm,

(d) physical assault of a child that is one of a series of related acts.

1. The Commissioner submitted that on every basis HCP's claim before the Tribunal is untenable because no further or greater remedy can be achieved by him through the Tribunal process. They submitted in support of the dismissal application that the proceedings are untenable and that they lack utility / substance. The untenable prong largely resting on the lack of any statutory or judicial support enlivening a claimant to a Category B recognition payment where they have sustained grievous bodily injury.
2. I note for completeness that the statutory provision of s 35 (2) which deals with Category B is as follows:

(2) A category B recognition payment is a payment given in respect of an act of violence or act of modern slavery of the following kinds -

(a) a sexual assault resulting in serious bodily injury or which involved an offensive weapon or was carried out by 2 or more persons,

(b) a sexual assault, sexual touching or sexual act or attempted sexual assault involving violence that is one of a series of related acts.

1. It is clear to the Tribunal that HCP's belief that he is entitled to be reconsidered on Administrative Review for a Category B recognition payment, on the same facts which do not on the undisputed evidence amount to a sexual assault, sexual touching or an attempted sexual assault involving violence, irrespective of any additional circumstances of the offending, is mistaken.
2. Put plainly, in respect of the functions of the Tribunal under s 51 of the VR and S Act, there is simply nowhere else for the Tribunal to go. This is because the Commissioner on remittal has now provided on review the most beneficial statutory outcome available to HCP on the undisputed facts concerning the basis of his claim, being the act of violence in accordance with s 19 of the VR and S Act.
3. It is also clear that the Tribunal does not have jurisdiction to consider any of the issues raised formally in the Grounds incorporated into his Application for Administrative Review. On four considerations by the Tribunal, (the three listing events and this hearing on the papers), it is clear that HCP presses for a remedy in the nature of mandamus and certiorari where he believes that the Tribunal can at large review aspects of action, conduct and inaction by the relevant government agency and make orders in the nature of mandamus.
4. On a number of occasions during the two directions hearings and also the recusal hearing HCP referred to the position that he had received advice and identified cases whereby the Tribunal was able to deliver the specific remedies that he was seeking in this application. However when requested by the Tribunal HCP was unable to produce any evidence of such matters or refer specifically to cases and which addressed the relevant principle at issue. The only cases referred to in written material concern general precedents concerning the need to afford procedural fairness and what constitutes a denial natural justice.
5. The recusal reasons for decision set out many of the issues around engaging on poor customer service and client complaint processes. The role of the Tribunal as a creation or creature of statute is to exercise power only when that right is enlivened by the legislature. Section 51 of the VR and S Act is a good example of this whereby the Tribunal on administrative review, exercises afresh the powers and functions of the administrator (in this case the Commissioner) in conducting a review and either affirming or setting aside the decision and in most cases under the VR and S Act, when setting aside, the Tribunal then makes a fresh decision in substitution.
6. Additionally, the only other power or function that the Tribunal could possibly exercise concerns the ADR Act where at s 51 and s 52 the Tribunal has a role in proceedings effectively commenced in the Tribunal under that Act. Those sections provide:

51 Tribunal may determine whether person entitled to reasons or made request within reasonable time

(1) The Tribunal may, on the application of a person who has been refused a statement of reasons under section 50 (1) (a), make an order declaring that the person was, or was not, entitled to make the request to which the notice relates.

(2) The Tribunal may, on the application of a person who has been refused a statement of reasons under section 50 (1) (c) on the basis that the person did not make the request within a reasonable time, make an order declaring that the person did make the request within a reasonable time.

52 Tribunal may order administrator to provide a statement of reasons or an adequate statement of reasons

(1) If an interested person has requested a statement of reasons under section 49 but has not received it within the period specified by or under that section, the Tribunal may (on the application of the person) order the administrator concerned to provide the statement of reasons within such time as may be specified in the order.

(2) If an interested person who requested a statement of reasons under section 49 is given an inadequate statement of reasons, the Tribunal may (on the application of the person) order the administrator concerned to provide an adequate statement of reasons within such time as may be specified in the order.

(3) For the purposes of this section, a statement of reasons is an adequate statement of reasons only if it sets out the matters referred to in section 49 (3).

1. These provisions do not apply to HCP's grievance or basis for administrative review. In the first instance a statement of reasons was provided. An Internal Review was underway but HCP came to the Tribunal prior to that matter being finalised. In effect the remittal order of the Tribunal and the subsequent provision of a decision and reasons would have satisfied s 52 of the ADR Act had it been engaged.
2. I do not intend to engage further on the merits of HCP's application in so far as the matters outlined at [29] - [34] above are the only relevant matters put forward and engaged on by HCP.

1. As noted above the Commissioner submitted that HCP's claim is lacking in substance and for that and related reasons outlined at s 55 (1) (b) of the NCAT Act, it should be dismissed without a hearing on the merits under that provision.
2. In written submissions the Commissioner referred to the case of Davis v Minister for Health [2023] NSWCATAP 211 as setting out the relevant considerations at [53] - [54].

53. We agree with the view expressed by the Appeal Panel in BDK that a "reasonably broad connotation" should be given to the meaning of each of the four categories of proceedings listed in s 55(1)(b) of the NCAT Act. Ms Davis is correct that the phrase "lacking in substance" can mean proceedings where it is found that the initiating claim or application is based on an "untenable proposition of fact or law" or "is not reasonably arguable". However, there is nothing in the text, context or purpose of s 55(1)(b) of the NCAT Act to suggest that these are the only findings which might justify the conclusion that the proceedings are lacking in substance. A range of findings could potentially justify a conclusion that proceedings are "lacking in substance", including that the proceedings "would be of no practical effect", or that the initiating application was based on an "untenable proposition of fact or law" or was "not reasonably arguable". Equally, a range of findings could potentially justify a conclusion that proceedings are "vexatious", "frivolous" or "misconceived" (see, e.g., the analysis of Roden J about the term vexatious in Attorney-General v Wentworth at 491).

54. Section 55(1)(b) of the NCAT Act empowers the Tribunal to govern its own processes, to ensure that its processes are not abused and to ensure that its resources are applied to resolving real, not confected, amorphous or nebulous disputes. The Tribunal arguably could have dismissed the Application on the basis that, while not initially, it had become vexatious (although not intended to be) or misconceived because any "success" achieved by Ms Davis could have had no practical effect due to the passage of time and the expiration of the Public Health orders. Proceedings, such as this one, which beg the question "So what?", in essence lack legal substance and therefore have "no practical effect".

1. Flowing from this the Commissioner submitted that HCP's application for a review of a recognition payment decision is based on an "untenable proposition of fact or law" or "is not reasonably arguable".
2. Whilst the initiating claim or application was able to enliven the s 51 jurisdiction of the Tribunal, it was couched in a manner (through the wording of the grounds) so as to deal with matters for which the Tribunal clearly has no jurisdiction to deal with. When challenged to point to the source of power HCP was unable to expand upon his arguments as set out at [35] - [36] above.
3. Whilst, as with the directions hearings, the Tribunal might comment in passing, without making any finding, as to why certain remedies are not available at the Tribunal and that other remedies might be available elsewhere, those are matters for HCP and any advice he obtains.
4. Reference was also made to the case of Joiner v Commissioner of Police, NSW Police Force [2023] NSWCATAP 254 (Joiner) whereby the Appeal Panel was considering the utility in granting leave to appeal in circumstances where any decision or order would be of no effect. Further it was argued that the Tribunal / Appeal Panel could make supplementary findings in matters relevant to the parties. The Tribunal / Appeal Panel found that the second argument was misconceived and the first position (lack of utility) tipped the balance against a grant of leave: At [24] - [25] the Appeal Panel observed:

24. As submitted by the respondent, we accept that the principle underlying the decisions outlined above is correct. If the Appeal Panel were to hear and determine the appellant's appeal in this case, there is no order we could make that would have of any practical effect on her firearms licence. Setting aside the decision made by the Tribunal would have no practical utility.

25. In her submissions the appellant argued that by proceeding to determine the appeal, the Appeal Panel would be providing a means whereby she could defend her reputation and that any decision we made would have a declaratory effect. Two points need to be made about this. First, the Tribunal (and the Appeal Panel) does not have jurisdiction to make declarations. The Tribunal is a creature of statute and the Acts conferring administrative review and internal appeal jurisdiction on it do not include a declaratory power. Secondly, as was argued by the respondent, the Appeal Panel should not give advisory opinions, particularly to public authorities such as the respondent: Re Judiciary and Navigation Acts [19211 HCA 20; [1921] HCA 20; 29 CLR 257.

1. I note the reference to the Appeal Panel (Tribunal) not giving advisory opinions on maters for which it has no jurisdiction.
2. Further in Joiner I note the Appeal Panel's reference to the Tribunal being a 'creature of statute and the Acts conferring administrative review ... do not include a declaratory power'.

1. Having regard to the evidence and material before me, I form the view that there is no basis for the continuation of these proceedings. They are misconceived and lacking in substance having regard to the nature of the application and the jurisdiction and powers of the Tribunal under the VR and S Act, the ADR Act and the NCAT Act.
2. I therefore make the following orders.

(1) The application is dismissed pursuant to s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

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.