HQS v State of New South Wales

Texts Cited: Hon Justice Kiefel, “Oral Advocacy – the last Gasp?” Supreme & Federal Court Judges’ Conference, Canberra 27 January 2010

Category: Procedural rulings

Parties: HQS (Applicant)
State of New South Wales (Respondent)

Representation: Applicant (self-represented)
Solicitors:
J de Castro Lopo (Department of Communities and Justice) (Respondent)

File Number(s): 2025/00298441

Publication restriction: 1. Under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure of the applicant’s name is prohibited, except to the extent that disclosure is reasonably required for the purposes of the proceedings.
Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person is likely to lead to the identification of the person.

REASONS FOR DECISION

Overview

1. These reasons are similar to reasons published on 24 April 2026 between the same parties: HQS v State of New South Wales [2026] NSWCATAD 117. Both decisions are about alleged conduct of employees of the Department of Communities and Justice.

2. These reasons address two interlocutory issues: whether to make the procedural orders and directions that the Applicant has applied for and whether to appoint a guardian ad litem, sometimes called a litigation guardian, for the Applicant in these proceedings. In relation to the first interlocutory issue I have decided not to make any of the orders or directions HQS has applied for. In relation to the second interlocutory issue I have decided to appoint a guardian ad litem for HQS in these proceedings. I have also given reason for not being satisfied that the interlocutory or the substantive issues can be adequately determined ‘on the papers’.

3. Because these reasons for decision contain personal health information I have made an order prohibiting the disclosure of the Applicant’s name: NCAT Act, s 64(1)(a). I will refer to the Applicant as HQS.

Background to the interlocutory issues

4. The substantive issue is whether the Tribunal should give permission for the complaints of disability discrimination in the provision of goods and services against the Respondent to go ahead: Anti-Discrimination Act 1977 (NSW), s 96. HQS alleges that Registrars and employees of the Respondent have discriminated against him in the provision of “services”: Anti-Discrimination Act, s 49M.

5. The first interlocutory issue is whether to make the procedural orders and directions set out by HQS in an email to the Tribunal of 26 February 2026.

6. An immediate global adjournment or suspension of all active timetables across every file in which the applicant is a party;

7. Retrospective extension of any time limits presently running or that may have expired during the period of cumulative procedural overload;

8. Written confirmation identifying all active matters and which, if any, the Tribunal considers genuinely urgent;

9. Directions that no adverse procedural step be taken without prior confirmation that the applicant is medically and practically able to participate.

10. HQS applied for these directions and orders for these proceedings and for every file in which he is the applicant. This decision only deals with that application in respect of these proceedings.

11. The information HQS provided in the 26 February 2026 email prompted the Tribunal to consider whether to appoint a guardian ad litem to represent HQS before determining the substantive issue: NCAT Act, s 45(4). HQS has now provided evidence from his treating psychologist, Dr Choat, that because of “the severity of his condition, [HQS] lacks the ability to verbally represent himself effectively in person or by phone.” Dr Choat requests that “. . .all hearings in which he is involved be conducted ‘on the papers’ rather than requiring him to attend in person or participate by telephone”.

Can the interlocutory issues be adequately determined without a hearing?

Procedural background

8. The Tribunal made a timetable for the parties to respond to the two interlocutory issues and scheduled an “in person” hearing by AVL for 18 March 2026. HQS sought an extension of the timetable, an adjournment of the hearing and requested that the interlocutory issues be determined without a hearing. The Tribunal refused that application. On 9 March 2026, HQS provided written evidence and submissions on the interlocutory and the substantive issues. On 16 March 2026, the Respondent provided submissions in reply on the two interlocutory issues and the substantive issue.

9. HQS requested that the Tribunal dispense with a hearing on the interlocutory issues. The Tribunal was not satisfied that the issues for determination could adequately be determined in the absence of the parties: NCAT Act, s 50(2). HQS did not attend the hearing. I decided to proceed with the hearing in his absence.

10. HQS has requested reasons for the Tribunal’s decision not to dispense with a hearing. The Tribunal is not obliged to provide written reasons for a decision to make, or not make, an order dispensing with a hearing: NCAT Act, s 62(2A)(a). However, I have decided to do so in this case.

HQS’s evidence and submissions

11. HQS submitted that no “credibility findings” are required to determine the interlocutory issues and a “papers only determination is appropriate” because he has provided medical evidence. HQS provided medical evidence including a report from Dr Choat, a registered psychologist, dated 13 June 2025. Dr Choat provided the following clinical diagnosis and presentation:

[HQS] experiences the effects of Post-Traumatic Stress Disorder (PTSD) which include these persistent symptoms:-

Hyperacusis: Acute sensitivity to specific sounds (e.g. alarms, barking high pitched noises),

Hypervigilance: Persistent environmental scanning for perceived threats,

Hyperarousal: Chronic sleep disturbance, irritability, and heightened startle response,

Agoraphobia: Avoidance of situations where escape feels difficult and avoidance of situations that trigger recall of trauma,

[HQS] has consistently reported these symptoms and evidence of some of them (e.g. hyperarousal and hypervigilance) have been directly observed.

12. In a letter of 28 August 2025, Dr Choat made the following request:

In consideration of HQS’s exceptional circumstances, it is respectfully requested that all hearings in which he is involved be conducted “on the papers” rather than requiring him to attend in person or participate by telephone.

13. Dr Choat then set out the basis for that request:

HQS’s communication skills and higher-order cognitive functioning are impaired, resulting in difficulties with expression, comprehension and maintaining boundaries in a social context. Furthermore, his trauma history and ongoing mental health issues render him highly anxious and vigilant, making it extremely challenging for him to process and articulate his thoughts in high-stress environments such as a court or tribunal hearing. For example, he has reported episodes of dissociation during telephone mentions related to tribunal proceedings; these episodes are a direct consequence of his mental health condition.

. . .

Due to the severity of his condition, HQS lacks the ability to verbally represent himself effectively in person or by phone.

Relevant principles

14. The general rule is that a “hearing” is required for all proceedings in the Tribunal: NCAT Act, s 50(1). Those hearings are open to the public: NCAT Act, s 49. However, the Tribunal may dispense 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”: NCAT Act, s 50(1)(c ) and s 50(2). Before dispensing with a hearing, the Tribunal must give the parties an opportunity to make submissions about the proposed order and take such submissions into account: NCAT Act, s 50(3).

15. The Tribunal’s power to dispense with a hearing must be exercised in accordance with the “guiding principle” to be applied to practice and procedure which is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”: NCAT Act, s 36. The Tribunal should also keep in mind the statutory objects which include “to ensure that the Tribunal is accountable and has processes that are open and transparent; and to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members”: NCAT Act, s 3(f) and (g) and see Jali Local Aboriginal Land Council v Anderson [2025] NSWCATOD 57 at [7].

16. The Tribunal would not dispense with an oral hearing where there are disputed issues of fact and a party or witness is required for cross-examination. Even where that is not the case, there are several advantages of an oral hearing. Justice Susan Kiefel outlined some of those benefits in a paper entitled “Oral Advocacy – the last Gasp?” Supreme & Federal Court Judges’ Conference, Canberra 27 January 2010 at p 7:

It can hardly be doubted that the opportunity for dialogue is of benefit to judges. It allows for fuller explanation of the facts, referenced to the evidence; it permits discussion of the approach taken in the argument; it may elicit a more direct answer to different approaches to an issue; it allows for the resolution of uncertainties about what was said in written submissions; it allows arguments to be tested.

Application of principles

17. For the following reasons I was not satisfied before the hearing that the “issues for determination” could be adequately determined in the absence of the parties.

18. Firstly, a public hearing ensures that the Tribunal’s processes are open and transparent and that the public has confidence in Tribunal decision making: NCAT Act, s 3(f) and (g).

19. Secondly, the nature and extent of HQS’s disabilities and the effect of those disabilities on his ability to conduct proceedings, were material facts in issue. A hearing would have given the Tribunal an opportunity to hear from HQS and Dr Choat and test that evidence. Ultimately HQS did not attend and the Respondent did not object to the tender of HQS’s medical evidence or require Dr Choat for cross-examination.

20. Thirdly, as outlined above, an oral hearing allows for dialogue with the parties including for legal arguments to be tested. For example, at an oral hearing, the Tribunal could have questioned HQS about his submission that he does not need a GAL because his disabilities affect the way he participates in proceedings, not his decision making capacity. The benefits of an oral hearing facilitate “the just, quick and cheap resolution of the real issues in the proceedings”: NCAT Act, s 36.

21. HQS’s psychologist, Dr Choat, has requested that all hearings be conducted ‘on the papers’ because of HQS’s inability to participate in an oral hearing. Even if the Tribunal finds that, because of his disabilities, HQS is unable to participate in an oral hearing, that is not a basis on which the Tribunal would be satisfied that a hearing should be dispensed with. It is only where the issues for determination can be adequately determined in the absence of the parties by considering the material lodged with the Tribunal that the Tribunal will dispense with a hearing.

Should the Tribunal make the procedural directions and orders that HQS has applied for?

Application for procedural directions and orders

22. HQS’s application is set out at [4] above. In summary, he requests that the Tribunal: identify all active matters which the Tribunal considers are genuinely urgent and stay or adjourn each of the proceedings to which he is a party until he confirms that he is “medically and practically able to participate”.

23. HQS has provided evidence from his treating psychologist, Dr Choat, that his “communication skills and higher-order cognitive functioning are impaired”. In his own words, HQS says that his disabilities affect his “cognition, executive functioning and procedural capacity”. He says the continuation of multiple concurrent processes “during documented incapacity creates a foreseeable and substantial risk of constructive exclusion from meaningful participation, amounting to a denial of procedural fairness.”

24. HQS submits that s 38(5) of the NCAT Act imposes a positive obligation on the Tribunal to ensure that he understands the nature of the proceedings and can participate effectively.

25. Despite the application for a stay or adjournment, HQS has complied with the Tribunal’s directions. On 9 March 2026 he provided written submissions on the interlocutory issues and on the substantive issue as to whether leave should be granted for his complaint of disability discrimination to go ahead. In those circumstances, there is no need to consider his application for a suspension of the timetable until he is “medically and practically able to participate”. Nevertheless, I make the following observations.

Relevant principles

26. The same “guiding principle” and “objects” outlined above apply to the determination of this issue. Under s 38(1) of the NCAT Act, the Tribunal may “determine its own procedure . . .” but those procedures must not breach the rules of natural justice (otherwise known as the rules of procedural fairness): NCAT Act, s 38(2). In particular, s 38(5)(c) of the NCAT Act requires the Tribunal “to take such measures as are reasonably practicable”—

(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

27. A party to proceedings also has a duty “to co-operate with the Tribunal, to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal”: NCAT Act, s 36(3).

28. The Tribunal has power under s 51 of the NCAT Act “to adjourn proceedings to any time and place . . .”

Identify every matter to which he is a party and make an assessment of the “urgency” of those matters

29. The Tribunal’s practice is to deal with each proceeding separately unless proceedings are joined and heard together. Even if the Tribunal’s practices extended to listing multiple proceedings involving a single applicant together, the Tribunal is not in a position to determine which proceedings HQS should prioritise because they are “urgent”. That is an assessment that only a party to the proceedings can make.

Stay or adjourn each of the proceedings until HQS confirms that he is medically and practically able to participate

30. Section 38(5)(c) of the NCAT Act, does not impose a positive obligation on the Tribunal to ensure that a party is, in fact, “heard”. Reasonably practicable measures could include extending a timetable or adjourning proceedings if a party is temporarily unable to comply or participate through illness or injury. A reasonably practical measure in the circumstances of this case is not a global stay or adjournment of each of the proceedings until HQS confirms that he is medically and practically able to participate. That degree of uncertainty and delay is not in the interests of justice, nor in accordance with the Tribunal’s “guiding principle” in s 36(1) of the NCAT Act.

31. HQS’s applications as set out at [4] above are refused.

Should the Tribunal appoint a guardian ad litem for HQS?

Relevant principles

32. The general rule about representation is that a party “has the carriage of the party’s own case and is not entitled to be represented by any person”: NCAT Act, s 45(1)(a). One exception to this general rule is where the Tribunal appoints a “guardian ad litem for a party”: NCAT Act, s 45(4).

33. A guardian ad litem must always act in a way that is in the best interests of the party. The GAL does not have to do what the party wants the GAL to do but must take into account the party’s views: NCAT Guideline 2, “Representatives for people who cannot represent themselves (GALs)”.

34. There are no statutory provisions identifying the circumstances where the Tribunal may appoint a GAL. I have drawn on similar NSW and federal provisions as well as NCAT Guideline 2 to help answer that question. None of those materials is binding on the Tribunal.

35. Courts have power to appoint a “tutor” to represent a “person under legal incapacity”. That term is defined in s 3(3) of the Civil Procedure Act 2005 (NSW) to include: “an incommunicate person, being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs.” That provision is supplemented in Rule 7.13 of the UCPR which provides that “. . . a person under legal incapacity includes a person who is incapable of managing his or her affairs”.

36. The Court of Appeal (Kirk JA, Mitchelmore JA and Griffiths AJA agreeing) set out several legal principles applicable to the appointment of a ‘tutor’ in Mahmoud v Ghahreman [2026] NSWCA 52 at [26] – [30]. In summary, the principles applicable to these proceedings are:

37. Given that the court can raise the issue of its own motion it will not always be the case that some party bears an onus. Nevertheless, the court would not hold that a litigant was under legal incapacity unless positively satisfied of that conclusion (at [26]);

38. Whether a person is under a legal incapacity is always a task-specific matter, dependent upon whether the person has the ability to understand and evaluate the particular task that is in question. [28] The task at hand here – the affair which must be managed – is the conduct of this litigation (at [29]);

39. This involves an evaluative assessment in which various factors may be relevant depending on the circumstances of the individual case (at [29]);

40. The issue is not whether or not the person has the ability to represent themselves well (at [30]).

41. The Court of Appeal referred at [29] to the “extensive list of factors” posited in Slaveski v Victoria (2009) 25 VR 160 at 176; [2009] VSC 596 at [32]. The Court held that that list is best seen as a collection of matters “potentially relevant to the question of capacity”. The list includes the following factors which have some relevance to this case:

. . .

(f) Assuming the plaintiff is able to understand Court processes, the basic rules of conducting his or her case and Court rulings, is he or she capable of complying with them and directions given by the judge?

. . .

38. Under a Commonwealth provision, a person needs a “litigation guardian” if either: the person “does not understand the nature and possible consequences of the proceeding; or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding”: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rule 11.

39. NCAT Guideline 2 defines a GAL in the following way:

A guardian ad litem is a persons who the Tribunal appoints to represent a party who is totally or partly incapable of representing themselves in a Tribunal case. . . The GAL speaks for the party at all Tribunal hearings and resolution processes such as mediations. The GAL is not a lawyer but may arrange to have a lawyer represent him or her.

40. NCAT Guideline 2 goes on [11], to list the matters the Tribunal will take into account when deciding whether to appoint a GAL:

11. In particular, the Tribunal will take into account the effect of the party’s incapacity on the party’s ability to:

a) understand the nature of the matter or the issues in dispute

b) present their views

c) respond to the other party’s arguments

d) act in their own best interests.

41. Based on these non-binding statutory provisions as well as the GAL Guideline, the Tribunal should not appoint a GAL unless positively satisfied that the person is totally or partially unable to conduct the litigation. That may include being unable to comply with the Tribunal’s directions and being unable to adequately conduct an oral hearing.

Medical evidence and parties’ submissions

42. HQS provided evidence from a registered psychologist, Dr Choat, which I have summarised above. The Respondent did not object to the tender of HQS’s medical evidence or require Dr Choat for cross-examination. I find, in accordance with Dr Choat’s opinion, that HQS cannot adequately represent himself verbally whether by phone, by AVL or in person. There are two reasons for that: the effects of the PTSD especially anxiety and hypervigilance and the fact that his “higher-order cognitive functioning” is impaired. Dr Choat did not suggest that the effects of HQS’s disabilities were temporary. I am satisfied that they are ongoing.

43. HQS describes his disabilities as “psychosocial disability and acquired brain injury”. There was no medical evidence of an acquired brain injury and I make no finding that HQS has, or does not have, an acquired brain injury.

44. HQS submitted that he retains “full decision making capacity”. He said he understands the legal issues, is able to articulate arguments and is capable of making strategic decisions. According to HQS, his disabilities affect the way he participates in proceedings, not his decision making capacity. He needs “procedural supports” such as decisions being made “on the papers” without a hearing, not a substitute decision maker.

45. The Respondent did not oppose the appointment of a guardian ad litem.

Application of principles

46. A decision as to whether to appoint a GAL must be made in the context of the substantive issue in these proceedings. The issue is whether the Tribunal should give HQS permission for his complaint of disability discrimination to go ahead. HQS has complied with the Tribunal’s direction to provide written submissions on the substantive issue. He is capable of complying with those directions and has done so. He can adequately conduct that aspect of the proceedings and there is no need to appoint a GAL for that purpose.

47. I have found that that HQS cannot adequately represent himself verbally whether by phone, by AVL or in person. He does not have the capacity to adequately conduct that aspect of the proceedings. Unless the Tribunal is satisfied that the substantive issues can be adequately determined in the absence of the parties, it will be necessary to appoint a GAL to represent HQS at any hearing.

48. On 22 December 2025, the Tribunal decided to dispense with a hearing on the substantive issue. It was my view, at that time, that the issues for determination could be adequately determined in the absence of the parties. For the following reasons I am no longer of that view. In any case, the Tribunal is not prevented from holding a hearing even if it is not required: NCAT Act, s 50(5).

49. I have set out the principles for dispensing with a hearing at [15] to [17] above. In particular, a public hearing has the advantage of ensuring that the Tribunal is accountable and that its processes are transparent. One relevant matter is whether the Tribunal needs to make disputed findings of fact; another is whether the Tribunal would benefit from being able to talk to the parties about their evidence and submissions.

50. When determining an application for leave under s 96 of the Anti-Discrimination Act 1977, the applicant’s evidence must be taken at its highest. That means that everything the applicant has put in evidence is accepted as true and then the Tribunal determines whether the applicant could possibly succeed in his complaint of disability discrimination: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]. In this case it is not necessary for the Tribunal to make disputed findings of fact.

51. But there are several matters where the Tribunal would benefit from being able to talk to the parties. Since making the order dispensing with a hearing, the Tribunal has had the benefit of written submissions from amicus curiae counsel on the substantive issues. The submissions characterise HQS’s complaint in the following way:

[HQS] takes issue with various stages of his engagement with NCAT’s processes, however what appears to be the ultimate source of [HQS’s] complaint is the outcome of each of the proceedings before NCAT and his lack of success in the respective proceedings. The gravamen of the complaint appears to be that if the procedures were not so difficult he would have won or had more success in those proceedings. Therefore, it appears that the real source of [HQS’s] discontent is with the outcome of the cases to which he has been a party. However, even if leave were granted to [HQS] to proceed, this would not result in a reversal of the underlying decisions already made by NCAT. In this context the interests of justice do not favour a grant of leave.

52. Those submissions note that it is an “open question” as to any “services” HQS alleges were being provided in the Tribunal. The submissions also express the view that “it is hypothetically possible that some functions performed by a Registrar or employees of the Tribunal might be capable of meeting the definition of “services” in s 49M of the Anti-Discrimination Act.

53. Even if HQS is given the opportunity to provide written submissions in Reply to these submissions, an oral hearing will allow HQS (or, in this case, a GAL representing him) to more fully explain the factual and legal basis for the complaint. Although this will not be a “quick” process, an oral hearing will facilitate the “just” resolution of the real issues in the proceedings: NCAT Act, s 36.

54. The appoint of a GAL protects the interests of the person concerned. In this case, the appointment of a GAL will avoid the proceedings being summarily dismissed for failure to appear: NCAT Act, s 55(1)(c); Drummond v Canberra Institute of Technology (No 3) (2022) 294 FCR 346; [2022] FCAFC 169 at [107]. The Tribunal may reinstate proceedings under s 55(2) but there may be no utility in doing so because it is unlikely that HQS will have the capacity to conduct an oral hearing in the near future.

55. Under NCAT Guideline 2, the Tribunal may appoint a person from the GAL Panel. The GAL Panel is a panel of suitable people managed by the Legal Services Branch of the Department of Communities and Justice.

56. As HQS has provided written submissions on the substantive issues, there is no need for the GAL to do so on HQS’s behalf. However, the Respondent has not been in a position to provide its written submissions and HQS has not provided written submissions in Reply. I will set a hearing date and make further directions.

Orders

1. HQS’s application for interlocutory orders and directions is refused.
2. Under s 45(4)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), a guardian ad litem is appointed for HQS to represent HQS at the hearing.
3. The respondent is to provide to the applicant and the Tribunal written submissions (if any) they intend to rely on regarding the issue of leave by 4.00pm on 12 May 2026.
4. HQS is to provide to the respondent, amicus curiae counsel and the Tribunal written submission in reply (if any) by 4.00pm on 26 May 2026.
5. The matter is listed for leave hearing by AVL on 17 June 2026 at 3.00pm.

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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. Registrar