Karnauchow v Commissioner of Corrective Services

Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes (Administration of Sentences) Regulation 2014 (NSW)
Crimes Legislation Amendment (Sentencing) Act 1994
Disability Discrimination Act 1992 (Cth)
Felons (Civil Proceedings) Act 1981 (NSW)
Interpretation Act 1987 (NSW)

Cases Cited: Agrinova Pty Ltd v Chief Commissioner of State Revenue [2025] NSWCATAP 86
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254
Aymsheen Pty Ltd v Chief Commissioner of State Revenue [2023] NSWSC 1237
Barghouthi v Transfield Pty Ltd (2002) 122 FCR 19; [2002] FCA 666
Brooks v Moody [2025] VCAT 1018
Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15
Catholic Education Office v Clarke (2004) 138 FCR 121; [2004] FCAFC 197
Chalik v Chalik [2025] NSWCA 136
Chief Commissioner of State Revenue v Adams Bidco Pty Ltd [2019] NSWCA 34
Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16
Coady v Yachty Victoria Inc [2025] VCAT 427
Collins v Urban [2014] NSWCATAP 17
Corcoran v Far [2019] NSWSC 1284
D’Amore v Independent Commission Against Corruption [2013] NSWCA 187
Day v SAS Trustee Corporation [2021] NSWCA 71
Department of Justice – Corrective Services NSW v Huntley [2017] FCA 581
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088
Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583; [1978] HCA 54
Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211
E-Synergies.Com Pty Ltd v Chief Commissioner of State Revenue [2026] NSWCATAP 103
Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Company Ltd (1911) 12 CLR 398; [1911] HCA 31
Felton v Mulligan (1979) 124 CLR 367; [1971] HCA 39
Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378
Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; [2006] HCA 44
Gardiner v Laing O’Rourke Australia Construction Pty Ltd (2020) 102 NSWLR 599; [2020] NSWCA 151
Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11
Gulic v Boral Transport Ltd [2016] NSWCA 269
Hall v State of NSW (Department of Corrective Services) [2006] NSWADT 243
Hamzy v Commissioner of Corrective Services NSW (2022) 107 NSWLR 544; [2022] NSWCA 16
Hazeldell Ltd v Commonwealth (1924) 34 CLR 442; [1924] HCA 36
Hinchliffe v University of Sydney [2004] FMCA 85; (2004) 186 FLR 376
Jameson v Commissioner of Police [2022] NSWCATAD 274
John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69
Jol v New South Wales (1998) 45 NSWLR 283
Kumaran v Rail Infrastructure Corporation (EOD) [2005] NSWADTAP 41
Lane v AGY Global Wealth Pty Ltd t/as Skylight Energy [2024] NSWCATAP 83
LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575; [1983] HCA 31
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Majoor v Macquarie University [2022] NSWCATAP 213
Marjanac v Plavsic [2014] NSWCATAP 63
McBride v McBride [2025] NSWSC 57
McNally v Resolution Life Australasia Limited [2025] NSWCATAP 116
Mendonca v Legal Services [2020] NSWCA 84
Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457; [1980] HCA 32
MS Noun Construction Pty Ltd v Baker [2022] NSWCATAP 251
Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275
Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26
New South Wales v Amery (2006) 230 CLR 174; [2006] HCA 14
Owners – Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66
Patsalis v State of New South Wales [2012] NSWCA 307
Peter Sleiman Investments Pty Ltd as trustee for the Sleiman Family Trust v Deputy Commissioner of Taxation [2017] NSWCA 81; (2017) 105 ATR 431
Rana v Google Inc (2017) 254 FCR 1; [2017] FCAFC 156
Roberts v Department of Justice, Corrective Services NSW [2017] NSWCATAD 310
State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81–423
Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416
The Owners – Strata Plan No 80412 v Vickery (Costs) [2020] NSWCATAP 48
Thurin v Krongold Constructions (Aust) Pty Ltd (2022) 73 VR 403; [2022] VSCA 226
Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 387
Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204
Walker v Victoria [2011] FCA 258
Waters v Public Transport Corporation (1991) 173 CLR 349; [1991] HCA 49

Texts Cited: Corrective Services NSW, Custodial Operations Policy and Procedures (COPP) 20.8: Inmate access to legal resources
Corrective Services NSW, Custodial Operations Policy and Procedures (COPP) 6.9: Inmates with disabilities
Corrective Services NSW, Custodial Operations Policy and Procedures (COPP) 8.3: Inmate computers
P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Lawbook Co)
New South Wales, Second Reading Speech of the Legislative Assembly for the Felons (Civil Proceedings) Bill 1981, Legislative Assembly, 18 March 1981 (the Honourable Francis John Walker)

Category: Principal judgment

Parties: Andreas Karnauchow (Appellant)
Commissioner of Corrective Services (Respondent)

Representation: Appellant (self-represented)
Counsel:
O Ronan (Respondent) (2 June 2026)
Solicitors:
Crown Solicitor (Respondent)

File Number(s): 2024/00051179

Publication restriction: Nil

REASONS FOR DECISION

1. On 14 June 2023, two complaints against the State of NSW, NSW Department of Communities and Justice (Corrective Services) (who will be referred to as “Corrective Services” or “the respondent”) were referred by the Delegate of the President of the NSW Anti-Discrimination Board (“the President”) to the Tribunal under s 93C(a) of the Anti-Discrimination Act 1977 (NSW) (“the Act”).

2. The first complaint was that the appellant has been discriminated against on the basis of homosexuality and disability in the area of goods and services between the period of 1 September 2021 to 1 September 2022. The second complaint was that the appellant had been victimised.

3. At first instance, the Tribunal dismissed the application and issued written reasons (“the Decision”).

4. An aspect of the first complaint concerned the appellant’s computer access. The appellant is in custody at a correctional facility in NSW and requires a computer to prepare for legal proceedings, including a potential appeal against his conviction. The Tribunal described the situation as follows, at [9]-[12]:

“9 Corrective Services has in place a range of policies and procedures that allow a self-represented litigant to access resources in preparing their legal case. The Custodian Operations Policy and Procedure (COPP) 8.3 - Inmate computers (Computer Policy) explains that access to computers is provided in part to view or prepare legal documents.

10 There are 3 colour coded computers that may be available to people in prison. Green computers are connected to the Offender Access Computer Network. The Green computers are used for education programs and employment purposes. Blue computers are non-networked and are for the purpose of viewing and preparing legal documents. Red computers are non-networked and are for Corrective Services Industries employment purposes.

11 These computers are available in a shared space within the Correctional Centre. People in prison can also make an application for an ‘in-cell laptop’.

12 In June 2022 Mr Karnauchow made an application for an ‘in-cell laptop’ and was provided with a Blue laptop for the viewing of his pre-loaded legal brief only and there was no word processing program or access to legal resources.”

5. The appellant contends that to be provided with effective computer access, he requires an in-cell laptop with a word processing program and online access to legal resources. The reason for this is contended to be his disability. There is no dispute that the appellant suffers from arthritis in his arms and hands (Decision at [51]). This makes writing and typing a slow and painful process. Whilst the respondent accepts that this may cause some difficulties for the appellant, it is nonetheless contended that there was no unlawful discrimination.

6. The Tribunal found that the provision of computers by the respondent constituted the “provision” of a “good” under ss 49M and 49ZP of the Act: Decision at [77]. However, the Tribunal found that there was no unlawful discrimination in the provision of computers because the reason why he was denied the particular form of computer access he sought was because of his security classification (A2) and that the respondent was complying with its policies; and not because he had a disability or identified as a homosexual: Decision at [82]. The Tribunal concluded as follows, at [81]:

“Mr Karnauchow has made no submission or led any evidence that he has not been provided with an in-cell laptop because of his attributes, neither has he identified any requirement or condition Corrective Services has put in place with which he cannot comply with.”

7. On appeal, the appellant maintains his contention of unlawful discrimination. Specifically, he maintains that he requires in-cell access to a computer with a word processing program and access to legal resources, so that he can prepare for upcoming legal proceedings. The appellant contends that the access he has to a shared computer is not effective, because he requires more time at a computer than others at the correctional facility who do not suffer from arthritis. He maintains that his access to a shared computer is wholly ineffectual because his arthritis makes him too slow, and writing and typing is painful, so he must take frequent breaks. Whilst there were also submissions to the effect that using the shared computer put him in the common area for longer which, itself, caused difficulties due to the other aspects of his complaint, the substantial issues for the appeal concern unlawful discrimination on the ground of disability.

8. Before considering the grounds of appeal, we considered two anterior matters. The first concerns an issue that arose from the appellant’s submission concerning a “reasonable adjustment”.

9. At first instance, the appellant had contended that he required the in-cell laptop with the functionality he requested as a “reasonable adjustment” for his disability. The Tribunal said, at [81]:

“Mr Karnauchow has misunderstood the provisions of the Act as there is no requirement for Corrective Services to provide Mr Karnauchow with reasonable adjustments in the provision of goods or services.”

10. On the appeal, the appellant maintained this contention.

11. The term “reasonable adjustment” is found in the Disability Discrimination Act 1992 (Cth) (“Cth Act”), not the NSW Anti-Discrimination Act. If, by this submission or otherwise, the proceedings raise a question arising under a federal law, and the issue is “not incapable on its face of legal argument” (Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 (“Citta”) at [35]), then we have no jurisdiction to determine any part of the controversy, as the Tribunal is not a court for the purposes of Ch III of the Constitution.

12. We have concluded that the proceedings do not raise a federal matter, and therefore that we have jurisdiction to determine the appeal. The reasons for this conclusion are set out at the end of these reasons for decision, at [204]-[219].

13. The other anterior matter concerns the possible application of the Felons (Civil Proceedings) Act 1981 (NSW) (“Felons Act*”*) which, if applicable to these proceedings, would have required the appellant to have sought leave to institute the proceedings below, and the appeal. We have concluded that the Felons Act applies to the Tribunal, and decided to grant leave to the appellant to appear in the proceedings below, and on the appeal. The reasons for this are also set out below, at [246]-[252].

14. Additionally, after consideration of the grounds of appeal, we provide reasons for the decision in relation to an extension of time request made by the appellant on 8 April 2026, and denied by the Appeal Panel on 9 April 2026, at [167]-[169].

Anti-Discrimination Act

15. As identified above, the appellant made two complaints: the first was based on alleged unlawful discrimination in the provision of goods and services by the respondent on the basis of the appellant’s disability and homosexuality, while the second was based on alleged victimisation.

First complaint

16. It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability by (a) refusing to provide the persons with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services: the Act, s 49M. The Tribunal explained it this way at [57]-[58] of the Decision:

“57 Section 49B and section 49ZG defines discrimination, as less favourable treatment ‘than in the same circumstances, or in circumstances which are not materially different’, the perpetrator treats or would treat a person who ‘does not have that disability’ or ‘he or she did not think was a homosexual’. This is sometimes referred to as ‘direct discrimination’.

58 Indirect discrimination ‘requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who are not homosexual persons ‘comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply’.”

17. Even though the Act does not use the expression “direct” or “indirect” discrimination, they are a useful shorthand, which we adopt, as did the Tribunal at first instance.

18. On the facts here, the respondent will be taken to have unlawfully discriminated if:

19. on the ground of the appellant’s arthritis, the respondent treats him less favourably than in the same circumstances, or in circumstances not materially different, the respondent treats or would treat a person who does not have that disability (direct discrimination under the Act, s 49B(1)(a)), or

20. the respondent requires the appellant to comply with a requirement or condition with which a substantially higher proportion of persons who do not have arthritis comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case, and with which the appellant does not or is not able to comply (indirect discrimination under the Act, s 49B(1)(b)).

21. The provisions relating to disability, ss 49M and 49B, contain a carveout for unjustifiable hardship on the person who provides the goods and services.

22. The term “goods” is not defined under the Act, and the Tribunal found that the provision of the requested in-cell laptop, including a keyboard for typing, software for word processing and access to particular legal material, is a “good”, as it is a “tangible product”: Decision at [78]. The respondent does not cavil with that conclusion.

Second complaint

21. The appellant alleged that he was victimised by Corrective Services for events or conduct alleged to have occurred during 1 September 2021 to 1 September 2022, the relevant period the subject of the first complaint. It is unlawful for a person, the discriminator, to subject another person to any detriment in any circumstances on the ground that the person victimised has brought proceedings against the discriminator under the Act: the Act, s 50.

Tribunal’s jurisdiction on an internal appeal

22. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”) permits a party to appeal in respect of a final decision as of right “on any question of law”, or by leave of the Appeal Panel on any other grounds.

Questions of law and leave to appeal

23. The approach taken by Appeal Panels in relation the identification of questions of law in appeals brought by self-represented appellants is that referred to in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (“Prendergast”), where the Appeal Panel said at [12]:

“In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.”

24. This approach was referred to with approval by the Supreme Court in Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 (“Targeted Property”) at [33(9)].

25. The Court of Appeal in Chalik v Chalik [2025] NSWCA 136 at [69] observed that the type of assistance a court, and, by extension, a tribunal, must provide to a self-represented party is limited to ensuring that the party understands the relevant practice and procedure of the court (or tribunal). The Court also stated at [70]:

“In Bauskis v Liew [2013] NSWCA 297 at [69], Gleeson JA (Beazley P and Barrett JA agreeing) noted that the duty of a trial judge to assist an unrepresented litigant ‘does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant’. In Cicek v Estate of late Solomon [2014] NSWCA 278 at [130], Ward JA (Meagher and Barrett JA agreeing) held that none of the cases her Honour had reviewed:

‘suggests that the primary judge in the present case had a duty to advise the appellants as to the inadequacies in their evidence having regard to the pleaded case or to adjourn the proceedings in order to permit them further time to re-plead their case in order for it to accord with the statement being made from the bar table as to the forgery complaints. A duty to provide information in order to attempt to overcome the procedural disadvantages faced by a self-represented litigant is not a duty to run the case for him or her.’”

26. We take the approach reflected in Prendergast and Chalik v Chalik*.*

27. The Appeal Panel’s approach is to consider a ground, identify any questions of law and determine whether there is error on any of those questions. If no question of law is identified or no error on that question of law, we decide whether to grant leave to appeal and if so, determine the ground.

This appeal

28. The Tribunal dismissed each of the appellant’s claims and on 9 February 2024, the appellant appealed the Decision.

29. This appeal has a long procedural history. There have been numerous interlocutory applications over the course of this appeal, primarily on the part of the appellant, seeking extensions of time, which were, for the most part, granted. The appellant made substantial additions to the grounds of appeal and orders sought which were contained in the Notice of Appeal, in his substantive written submissions, which were filed approximately one week prior to the hearing. The appellant had sought five orders in the Notice of Appeal, which was amended to add others in the appellant’s written submissions.

30. At its core, the appellant seeks in-cell access to a laptop computer with word processing and legal research capabilities. It is apparent, from Custodia**l Operations Policy and Procedures (COPP) 20.8*:* Inmate access to legal resources, that Corrective Services provides legal information and other resources to inmates via the Legal Info Portal, which is a secure internal website. COPP 20.8 defines the Legal Info Portal as a “joint initiative of CSNSW and the NSW Legal Assistance Forum whereby inmates can access legal information on a range of criminal, family and civil law issues. It is only available to inmates on the Offender Access to Computers Network…”. Accordingly, it is apparent that legal research can be conducted on green computers, which are connected to the network, but not blue computers. Blue computers are non-networked and are for the purpose of viewing and preparing legal documents. The appellant contends that a blue computer is the only device which the respondent allows inmates to use in their cells, and that it is not “fit for purpose due to having no word capabilities”. He contends that he is entitled to a modified blue laptop: in-cell access to a laptop computer with at least the functionality of a green computer; that is, the word processing and legal research capabilities of green computers. He contends he is entitled to this for various reasons, including the hardship occasioned by his disability, his entitlement to a disability plan under the Crimes (Administration of Sentences) Regulation 2014 (NSW) (“the Regulation”) and the Department of Communities and Justice Disability Inclusion Action Plan 2020-2024. He has maintained all along that providing him with such a computer would constitute a reasonable adjustment given his disability. This is maintained on appeal.

The primary issue: the requirement or condition ground

31. Before turning to the various grounds of appeal, we commence our consideration with what we perceived to be the primary issue.

32. Throughout the various grounds and the appellant’s submissions, is the underlying contention that there is indeed a requirement or condition that the appellant is not able to comply with, which the Tribunal missed, despite it being part of the appellant’s case all along. The appellant contends that the Tribunal erred in failing to consider that there has been indirect discrimination.

33. This engages with the latter part of [81] of the Decision, which, for abundant clarity, is as follows:

“Mr Karnauchow … neither has he identified any requirement or condition Corrective Services has put in place with which he cannot comply with.”

34. The appellant contends the following documents evidence the requirement or condition. These are:

35. COPP 6.9*:* Inmates with disabilities; and

36. COPP 8*.3**:* Inmate computers.

COPP 6.9: Inmates with disabilities

35. Insofar as COPP 6.9 is concerned, which was not put in evidence before the Appeal Panel, the appellant submits that COPP 6.9 does not accord with the NSW Government Disability Inclusion Plan 2021-2025 (the “Disability Inclusion Plan”).

36. The respondent did not make submissions on COPP 6.9, or the Disability Inclusion Plan.

COPP 8.3: Inmate Computers

37. COPP 8.3 (which the Tribunal referred to as the “Computer Policy”) sets out information about inmate computers, approval for access to computers, supervision, printing, software and storage devices and transfer of data.

38. The version of COPP 8.3 provided to the Appeal Panel states “Blue computers are non-networked and are for the purpose of viewing and preparing legal documents”.

39. The appellant submits that he applied several times to the respondent for “a laptop so that he can type-up legal submissions due to his disability…using the terms within the COPP ‘to prepare legal documents’ as per COPP 8.3 Inmate Computer (goods and services)”.

40. The appellant submits that access to green computers, which are situated in common areas, is not sufficient, as he is unable to produce submissions or other documents as quickly as other inmates. This is because, unlike other inmates, he cannot handwrite easily or effectively. He submits that this contention was part of his case below, but that the Tribunal missed it.

Elements of indirect discrimination

41. To put the primary issue in context, we pause to note that the Appeal Panel in Majoor v Macquarie University [2022] NSWCATAP 213 (“Majoor”) set out the four elements to a complaint of indirect discrimination under s 49B(1)(b) of the Act at [27].

42. The four elements are as follows:

43. The respondent required the appellant to comply with a requirement or condition.

44. The requirement or condition is not reasonable having regard to the circumstances of the case.

45. The appellant is not able to comply with the requirement or condition.

46. A substantially higher proportion of people who do not have that disability comply or are able to comply with that requirement or condition compared with people with that disability.

Does the primary issue raise a question of law?

43. On the appeal, the appellant asserted that the respondent subjected him to a requirement or condition that he could not comply with. He said, in several different ways, that he could not effectively use the word processing and legal research aspects of a computer outside his cell. He reiterated that his access to a green computer outside his cell was not sufficient or effective. As noted above, the Tribunal found that Mr Karnauchow did not identify any requirement or condition that the respondent put in place which he could not comply with (Decision at [81]).

44. The question on the appeal is whether the Tribunal was in error in concluding that the appellant did not point to a requirement or condition.

45. The Appeal Panel identified that the appellant appeared, on the appeal, to be contending that the requirement or condition arose from the Computer Policy. The condition was that to use word processing and conduct legal research, he must do so outside his cell.

46. The respondent accepted that, put that way, this identified a requirement or condition; though it is denied that there was any unlawful discrimination. In any event, the respondent contends that this requirement or condition was not, as now framed, advanced at first instance.

47. In order to ground a question of law, we must be satisfied that the requirement or condition, as put before the Appeal Panel, is indeed a requirement or condition that satisfies the first element of indirect discrimination and was a material submission made by the appellant at first instance, which the Tribunal indeed failed to consider. If so, this might constitute a material breach of procedural fairness, or a constructive failure to exercise jurisdiction, each of which raise a question of law: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [23]-[25] (Gummow and Callinan JJ, Hayne agreeing), [88] (Kirby J); Day v SAS Trustee Corporation [2021] NSWCA 71 at [37] (Meagher JA, Payne and White JJA agreeing); Corcoran v Far [2019] NSWSC 1284 at [64] (McCallum J).

Examples of requirements or conditions

48. There are many examples of requirements or conditions that might ground a claim of indirect discrimination. We pause to consider a few that are, like the position here, not expressly or clearly written. These examples come from various statutes, but make the point that it is important to use a wide lens when considering whether there is or is not a requirement or condition.

49. In Catholic Education Office v Clarke (2004) 138 FCR 121; [2004] FCAFC 197 (“Clarke”), the Full Federal Court (Sackville and Stone JJ, Tamberlin J agreeing) held that the primary judge did not err in finding the relevant requirement or condition was that the respondent participate in and receive classroom instruction without the assistance of an Auslan interpreter (at [1], [13]-[14], [107]-[109]).

50. In Waters v Public Transport Corporation (1991) 173 CLR 349; [1991] HCA 49 (“Waters”), the High Court considered complaints which arose out of two changes to the public transport system: a new ticketing system of “scratch tickets” which were to be validated by the traveller by making a scratch mark; and the removal of conductors from some trams. The majority (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) held that these changes constituted a “requirement or condition”. Chief Justice Mason and Gaudron J (with whom Deane J agreed) found “that the removal of conductors from some trams involved the imposition of a condition that the complainants could fully avail themselves of the tram service only if they could use trams without the assistance of conductors” (at 361).

51. In Walker v Victoria [2011] FCA 258 (“Walker”), the applicant suffered learning disabilities, dyslexia, attention deficit hyperactivity disorder and Asperger’s syndrome. He had behavioural issues in school for a number of years. He brought proceedings alleging that the Department of Education and Early Childhood Development had discriminated against him, both directly and indirectly, on the basis of his disability. Justice Tracey in Walker considered other instances which have been found to constitute “requirements” for the purposes of s 6 of the Cth Act (at [192]):

“192 Other ‘requirements’ which have been accepted as falling within the terms of s 6 of the DDA in cases involving the provision of educational services include:

• A requirement that a student comply with the conduct required by the school discipline policy: see Minns at [247];

• A requirement that students use course materials which were provided by the educational institution: see Hinchliffe v University of Sydney (2004) 186 FLR 376; and

• A requirement that students at a school utilise a toilet in another building rather than one in the same building as their classroom: see Travers v New South Wales (2001) 163 FLR 99.”

52. In Hinchliffe v University of Sydney [2004] FMCA 85; (2004) 186 FLR 376 (“Hinch**liffe”), the applicant was enrolled as a student at the respondent university. The applicant suffered from a visual disability which meant she could not read material in small font on white paper for long periods of time as this caused fatigue. As a result, she required certain adjustments, including enlarged font, green coloured paper, and, where this was not possible, materials provided in audio format. The applicant was provided with some, but not all, course materials in the required form. The university also provided the applicant with access to a disability services room and a disability services officer. The Federal Magistrate dismissed the application, finding that although there was a requirement or condition imposed by the university that students deal with course materials provided by the university in a single or standard format that the university chose to provide to all students (at [108]), the applicant was largely able to comply (at [116]).

Level of precision with which a requirement or condition must be identified

53. Before considering whether the requirement or condition, as now put, was advanced at first instance, we pause to consider the approach to identify a requirement or condition.

54. In Clarke, the Court made several observations about what is meant by “requirement or condition”, with the below observations made by reference to the principles arising in Waters (although the Court considered the phrase in relation to the Cth Act):

55. The expression “requirement or condition” in s 6 of the Cth Act should be “construed broadly to include any form of qualification or pre-requisite” (at [103]).

56. In this respect, the legislation “should be given a generous interpretation and an alleged discriminator should not be permitted to evade the statutory prohibition or indirect discrimination by defining its services so as to incorporate the alleged requirement or condition” (at [103].

57. It is sufficient for the requirement or condition to be implicit in the conduct which is said to constitute discrimination (rather than being explicitly imposed).

58. We note that this approach has been adopted by the Tribunal on numerous occasions: see for example Kumaran v Rail Infrastructure Corporation (EOD) [2005] NSWADTAP 41 at [12]; Court v University of Western Sydney [2013] NSWADT 16 at [32]; Jameson v Commissioner of Police [2022] NSWCATAD 274 at [51]-[58].

59. Justice Tracey in Walker said at [194]:

“It is clear from these authorities that considerable latitude is afforded to applicants in formulating the requirements or conditions about which they complain. Nonetheless, a reasonable degree of precision is necessary when relevant requirements or conditions are being identified. A respondent is entitled to know what requirements or conditions it is said to have imposed on an applicant. In many cases this will not be difficult because the applicant will be relying on some written rule or prerequisite which has been formulated by the respondent. In a case such as the present, however, where an applicant seeks to rely on inaction by an educational authority, clarity of the claim is essential. Without it the respondent will be unable to determine whether it has or has not imposed such a condition or to formulate defences on the ground that one or more of the criteria prescribed by s 6 of the DDA have not been satisfied.”

57. Furthermore, in N**ew S**outh W**ales v Amery (2006) 230 CLR 174; [2006] HCA 14, which concerned a discrimination claim on the grounds of sex under the NSW Act, it was noted that “requirement or condition” is to be given a “broad rather than a technical meaning, given the nature of the mischief, indirect discrimination” (at [63] (Gummow, Hayne and Crennan JJ, Heydon J agreeing)).

58. In summary, the phrase “requirement or condition” is to be construed broadly to include any form of qualification or prerequisite. Although considerable latitude is afforded to applicants in formulating the actual requirement or condition, a reasonable degree of precision is nonetheless required. The respondent must know the case they are to answer.

59. We accept these principles are relevant here.

Was a requirement or condition raised with sufficient precision at first instance?

60. A fair reading of Mr Karnauchow’s submission, on appeal, is that when he prepares a written document for the purposes of Court or the Tribunal, or otherwise, he is hampered by not being able to effectively handwrite and he either cannot avail himself of the shared access to the green computer with word processing, or he cannot do so effectively.

61. It is tolerably clear that he now contends that he is indeed subject to a requirement or condition imposed by the Computer Policy of the respondent, as follows:

“To use the word processing and legal research aspects of a computer, the appellant must do so outside his cell, on the shared green computer.”

62. Framed this way, we are satisfied it adequately particularises a requirement or condition capable of satisfying the first element of indirect discrimination.

63. The real question is whether this condition was put at first instance.

Whether the appellant raised with sufficient particularity the contention that there was a requirement or condition he was required to comply with at first instance

64. As noted above, the Tribunal found that the appellant did not identify any requirement or condition put in place by the respondent which he could not comply with (Decision at [81]).

65. The respondent did not dispute that the appellant had arthritis, which is recognised as a disability within the meaning of the Act (Decision at [51]), but submitted that the appellant “was not required to comply with an unreasonable requirement with which a substantially higher proportion of persons who do not have his disability comply or are able to comply” (Decision at [55]).

66. As already noted, the respondent accepted, during the appeal hearing, that the COPP 8.3 policy was a “condition…with respect to [the appellant’s] access to computers” (Tcpt, 10 October 2025, p 35(49)-(50)). However, the respondent submitted that this is not how the appellant put his case at first instance (Tcpt, 10 October 2025, p 36(11)-(12)). Rather, it is said that the appellant framed the requirement or condition at first instance as one which “required him to produce written material and he couldn’t comply with that because he can’t handwrite” (Tcpt, 10 October 2025, p 36(17)-(19)). As submitted by the respondent, any condition as to producing written work was not of the respondent’s making. It was not imposed on the appellant by the respondent.

67. The present question is whether the appellant ran his case at first instance on the basis that there was indirect discrimination because there was a requirement or condition, imposed by the respondent, which he could not comply with.

68. We reiterate the Court of Appeal’s observation in Chalik v Chalik at [69], that the type of assistance a court, and, by extension, a member of a tribunal, must provide to a self-represented party is limited to ensuring that the party understands the relevant practice and procedure of the court (or tribunal). We are conscious that in considering the primary issue as a question of law, we cannot now make a case for the appellant that he should have made at first instance, if that case was not in fact made. However, we can look at the facts and contentions raised at first instance, to ascertain if, by a fair reading or by other words, the appellant was indeed raising such a case. Whilst performing this exercise, we keep in mind the imperative that the requirement or condition is to be articulated with some precision.

69. During the hearing, the Appeal Panel asked the respondent whether there was any objection to the Appeal Panel looking at the record at first instance, specifically the President’s referral report (“the report”) and the appellant’s submissions (Tcpt, 10 October 2025, p 37(0)-(4)). The respondent stated that no objection was taken (Tcpt, 10 October 2025, p 37(6)).

The report

70. The report contains a summary of the investigation of the complaint made by the appellant. The report states, relevantly, that the appellant alleged that he had been “discriminated” against, by the respondent’s correctional staff by “denying him access to an in-cell laptop, access to legal resources and documents, denied access to legal materials on USB or other removable devices”. The report also states that the appellant alleged the respondent “has failed to provide him with reasonable adjustment [sic] and accommodate his disability by providing him with a laptop and materials to enable him to prepare his legal submissions”.

71. The report, relevantly, summarised the respondent’s response (emphasis added):

“The complainant is classified as an A2 maximum security inmate…

The complainant has voiced his concerns and fear for his safety in the general prison population…

…

[The respondent] recognises difficulties faced by inmates, as self-represented litigants, in preparing a case within the prison context. For this reason, it has implemented a range of policies and procedures to allow inmates to greater access to resources.

In June 2022, the complainant was provided with a laptop for the viewing of his pre-loaded legal brief only.

Access to ‘blue’ and ‘green’ computers can be impacted by security requirements. Within the South Coast Correctional Centre, Sector 4, has one group training room which houses ten green computers. CSNW records indicate that the complainant has been given regular access to this room. Further, the complainant has access to a green computer for his daily use, including weekend. His access to computers is consistent with the access provided to other inmates.

Due to his security classification, the complainant is not permitted to have an overnight ‘in-cell’ use of a green-access computer.”

72. The report then summaries the appellant’s reply submissions, which relevantly contain the following (emphasis added):

“In response to the respondent’s submissions, the complainant asserts that he has a genuine disability*….The disability affects his ability to write and causes him considerable pain.*

He rebuts the respondent’s submissions that he has been given access to necessary digital equipment and legal information resources to enable him to prepare his legal appeal work.”

73. What can be gleaned from the foregoing is that the respondent implemented a range of policies and procedures to allow inmates access to resources. The appellant was given computer access in accordance with the policies and procedures; but the appellant’s access was affected by security requirements.

74. Further, it may be gleaned that the appellant was seeking “reasonable adjustments” and contending that the access he had been given was not adequate due to his disability.

Appellant’s submissions below

75. The appellant, in his submission to the ADNSW dated 23 January 2023 (which was received by the Tribunal when the complaint was referred to it), included the following:

“I seek for a resolution of CSNSW rejections on my request for disability aids or be provided any assistance on the ‘core issues’ of my complaint, due to the ‘pain & suffering’ I experience when handwriting & the complaints of discrimination & victimisation by CSNSW officers.”

“In response to point [8.2.1] of CSNSW’s letter, fails to provide the unreasonable delays to gain access to the wrong requested PC, as I clearly requested a PC to ‘type-up’ submissions. Please refer to all my submissions to access a PC to free me from the pain & suffering, due to my arthritis, clearly listed in all PC in-cell access requests that CSNSW fails to disclose. But instead due to my constant persistence, as anyone would, if their suffering from pain. I got a blue computer with no typing facility, not even with Microsoft notepad on the PC, as fully disabled”

“But I have no alternative, I'm in major pain every day when I use a pencil to hand write.

I have been forced into pain and suffering, including requests to be excused from work due to the inadequate PC facilities, and when I do get access to a PC, I am only given one to three hours per day to use it, but not every day, which is far too limited.”

“The other major issue I face is due to the constant breaks, I lose my train of thought, especially if I require a longer break. When I re-commence, I have then completely forgotten my words. It's so frustrating, aggravating my mental health…”

“…access to the green PC was ‘inadequate’…”

76. What we glean from this is that the appellant was consistently raising the issue of inadequate access to “PC facilities” due to the pain associated with handwriting and not having sufficient access to word processing.

The Decision

77. The Tribunal had regard to the Computer Policy (at [9]). The Tribunal, having found that the provision of an in-cell laptop is a good, found that access to the in-cell laptops is provided pursuant to the Computer Policy (at [77]). The Tribunal then turned its mind to both direct and indirect discrimination.

78. Insofar as indirect discrimination is concerned, the Tribunal found that the appellant did not “identify” “any requirement or condition Corrective Services has put in place with which he cannot comply with” (at [81]).

79. Nonetheless, the Tribunal noted that the appellant was seeking in-cell access to a green computer due to his disability:

“9 Corrective Services has in place a range of policies and procedures that allow a self-represented litigant to access resources in preparing their legal case. The Custodian Operations Policy and Procedure (COPP) 8.3 - Inmate computers (Computer Policy) explains that access to computers is provided in part to view or prepare legal documents.

…

15 Mr Karnauchow gave evidence that he finds it difficult to handwrite because of his disability taking one day to write two pages with frequent rests every 2-3 minutes because of the pain he experienced in his hands and fingers. He stated that he requested a laptop to type up letters and legal work and two years later he was given a laptop without a program to type up anything. He stated that he has made over 60 requests. Because of the denial of access to computers, Mr Karnauchow had to write by hand which caused him pain and suffering. Mr Karnauchow’s evidence was that there were only two green computers between 140 inmates and that access to computers with legislation is extremely restricted.

16 The substance of the complaint is that Corrective Services has denied Mr Karnauchow access to an in-cell laptop with word processing software, access to legal resources and denied access to legal materials on USB or other removable devices for the purpose of preparing an appeal in a court of law…

17 Mr Karnauchow claimed that these denials constitute a failure to provide him with reasonable adjustments and accommodation for his disability…

…

39 …Mr Karnauchow wrote to the Correctional Services Commissioner seeking access to Green computer laptop with access to legal resources in his cell. The request stated ‘with my arthritis in my hand, including broken fingers as a previous motocross bike accident has made it difficult to write by hand. Typing up the appeal submissions is significantly less amount of pain than handwriting’.”

80. It is plain that the Tribunal recognised that:

81. the appellant was claiming indirect discrimination;

82. that the respondent had policies in place to provide computer access that precluded the appellant being given in-cell access to word-processing; and

83. that the appellant was contending that the provision of computer access was not adequate due to his disability.

84. The Tribunal did not perceive that the appellant had identified a requirement or condition imposed by the respondent, that he could not comply with due to his disability. The Tribunal was focussed on the appellant’s frequent references to “reasonable adjustments” and said at [81]:

“Mr Karnauchow has misunderstood the provisions of the Act as there is no requirement for Corrective Services to provide Mr Karnauchow with reasonable adjustments in the provision of goods or services. Mr Karnauchow has made no submission or led any evidence that he has not been provided with an in-cell laptop because of his attributes, neither has he identified any requirement or condition Corrective Services has put in place with which he cannot comply with.”

82. The Tribunal did not turn to consider whether, in order to avail himself of a computer, he was required to comply with the Computer Policy that he use it outside his cell and whether that condition was, indirectly, discriminatory.

83. The Tribunal, recognising that the appellant was seeking reasonable adjustments, did not identify what the appellant was seeking an adjustment from.

84. The Tribunal did not consider the possibility that the reasonable adjustment sought was an adjustment from the Computer Policy or whether that policy included a requirement or condition of the kinds referred to in Clarke, Waters, Hinchcliffe*, Travers* or Majoor*:*

85. That if the student wanted to be enrolled he must participate and be given instruction without an Auslan interpreter: Clarke.

86. That to avail themselves of the tram services, travellers must do so on the basis that they could do so without conductors: Walker.

87. That to participate in a university course, the student must participate using the same course materials as other students: Hinchcliffe.

88. That the student not use the most accessible toilet: Travers.

89. That the student was required to complete the course quizzes without access to recordings of the tutorial: Majoor*.*

90. The Tribunal recognised that the appellant was asking for an in-cell computer because of his disability and that under the Computer Policy, he was not eligible for that; but did not perceive that he was asking for an in-cell computer, because he could not use the computer as required under the Computer Policy outside his cell.

Determination – the submission was not clearly raised

86. It is not the duty of a Tribunal to tell a party what their case should be. To ground an error on a question of law of whether there has been a breach of procedural fairness or a constructive failure to exercise jurisdiction, the submission that the Computer Policy imposed the requirement or condition, as now framed, must have been clearly articulated before the Tribunal. We also bear in mind the observations of McCallum JA in Mendonca v Legal Services [2020] NSWCA 84 at [21]:

“[T]here may be cases in which it is appropriate for the Court to give the correct legal construction to an arguable point poorly articulated by a self-represented litigant. However, the Court is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point.”

87. On the basis of the report and submissions at first instance, we do not discern that the Tribunal fell into legal error by failing to perceive the appellant’s case as to indirect discrimination. We do not discern that the requirement or condition was so clearly put that there was an error on a question of law in failing to recognise this. This is not because the 98 pages of written submissions were not legible. It appears to be because the focus of the appellant at first instance was not on the requirement or condition, but on a “reasonable adjustment”.

88. It appears that the appellant’s regular references to “reasonable adjustments” may have caused confusion as to the case he was running.

89. Ultimately, on the material before the Tribunal at first instance, we do not consider that the Tribunal erred on any question of law that we have discerned. We do not consider the Tribunal failed to consider a clearly articulated material submission of the appellant. This is the case, even making allowances for the fact that the appellant is self-represented, with limited access to legal resources.

Conclusion in relation to the primary issue

90. There is no error on a question of law. The appeal, insofar as it concerns the primary issue, is dismissed.

Other grounds

91. The appellant raised various other grounds that we identify below and consider in turn.

Ground 1

92. Ground 1 as extracted from Appellant’s submissions of 2 October 2025 is that:

“CSNSW is excluding the appellant from the disability provisions within clauses 25 and 60 of the Crimes (Administration of Sentences) Regulation 2014 causing direct and indirect-discrimination.

(a) The appellant is excluded from tangible and intangible equality before the law goods and services within the scope of section 123 of the ADNSW Act.

(b) The appellant is at a far higher exposure to discrimination then most other inmates due to the current procedures to access a Computer (goods and services) (goods and services) require human intervention on each daily request and increasing the exposure and likelihood of incidents arising.”

93. Section 123 of the Act provides as follows:

123 Effect of contravention of Act or regulations

This Act is in addition to, and not in derogation of, any other law in force in New South Wales that provides for the protection of a person from conduct that is or would be unlawful under this Act or the regulations.

94. In essence, the appellant submits that cll 25 and 60 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (“the Regulation”) afford him statutory protections that goods and services provided to him by the respondent are suitable, with regards to his disability. The appellant describes cll 25 and 60 as creating a “mandatory duty” on the respondent. The appellant contends this is relevant to the “differential treatment” test in s 49B(1)(a) of the Act. The appellant submits that, by operation of s 123 of the Act, the Act applies in addition to, and not in derogation of, the provisions contained in the Regulation. The appellant further submits that, pursuant to s 123, several articles of the United Nations Convention on the Rights of Persons with Disabilities ought to be “used”, and have an “interrelationship”. The appellant also extracts an excerpt from a Report of the Australian Law Reform Commission on Uniform Evidence Law, in which there is discussion about the concept of reasonable adjustments under the Cth Act.

95. The respondent submits that no breach of the Regulation is established, but even if so, it would not be relevant.

96. As we apprehend the appellant’s submission it is that:

97. The respondent is required under the Regulation, or the Cth Act to provide him with certain things.

98. The respondent breached that duty.

99. Section 123 of the Act allows him to seek a remedy for that breach under the Act.

100. It is uncontroversial that a question concerning the construction of a statute may indeed raise a question of law. To the extent that the appellant is contending that the Regulation (or parts thereof) are brought within the ambit of the Act through s 123 of the Act, or adopted by incorporation, and that the Tribunal at first instance construed s 123 otherwise, we do not see that such a contention to be open on the face of s 123. Section 123 is said to be in addition to other laws. On its face, it does not bring those other laws within the ambit of the Act; and we have found no basis to construe it otherwise. Justice Basten in Gardiner v Laing O’Rourke Australia Construction Pty Ltd (2020) 102 NSWLR 599; [2020] NSWCA 151 considered the effect of s 123 of the Act on the workers’ compensation legislation. Justice Basten found at [43]:

“Whilst, of course, it is possible for later legislation to derogate from the protections provided by the Anti-Discrimination Act, the basic principles of the workers’ compensation legislation (other than the modification of common law damages in tort) predated the Anti-Discrimination Act. To the extent that the Anti-Discrimination Act provides remedies in addition to those available under the Workers Compensation Act, that protection should be given full force and effect, according to its terms.”

98. Even assuming the legal premise for the first proposition to be correct, and that the factual premise for the second proposition could be made out, we do not see that the third premise is open under s 123 of the Act. To the extent that the appellant contends that any alleged breach of a requirement that the respondent provide him with anything arising under the Cth Act, can be read as being a breach of the Act or remediable under the Act, is not open on a plain reading of s 123. The purpose of s 123 is to make clear that the Act does not undermine other Acts. That is not the same as saying those legislative instruments are incorporated into the Act when determining a claim of discrimination under the Act. No error on this question of law arises.

99. This ground also appears to contend that the Tribunal erred (at [81) when concluding that the appellant had not identified a “requirement” for the purposes of indirect discrimination, because the Regulation, itself, instituted a requirement. The contention is that as a result of a failure to comply with the Regulation or the Cth Act, by providing suitable aids, he was required to “seek human intervention” to make effective use of the computers which put him at risk of further unlawful discrimination or victimisation or other unlawful treatment.

100. However, this appears to engage with the respondent’s failure to comply with a requirement, rather than with his difficulties in complying with a requirement imposed by the respondent, which is what [81] of the Decision concerns.

101. A question of law must be articulated with precision as it is the subject matter of the appeal (Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25(1)]). Ultimately, we do not apprehend that the ground has been framed with sufficient precision, even giving due allowance to the fact that the appellant is self-represented (Targeted Property at [33(9]).

102. We apprehend that this ground goes beyond the appellant’s contention that due to his arthritis he has difficulties writing and typing. To the extent the appellant seeks leave to rely on this ground, we would not grant leave to appeal, as we do not consider it sufficiently precise to raise an important point of principle, and do not discern the requisite merits to warrant the grant of leave.

103. Leave to appeal is refused and Ground 1 is otherwise dismissed.

Ground 2

104. Ground 2 as set out in the Appellant’s Submissions of 2 October 2025 is that:

“The Tribunal including the Respondent had not considered whether the current Corrective Services Custodial Operations Policy & Procedures (COPP) instructions are causing indirect discrimination against the Appellant due to his disabilities.

(a) The Tribunal had not considered that the legislative disability provisions and regulations regarding disability provisions are not written within the COPP 6.9 and is causing indirect-discrimination.

(b) The COPP 6.3 'Inmate Computers' guidelines provides no disability provisions and is causing unjustifiable hardship against an appellant with disabilities compared to persons without disabilities, causing indirect-discrimination.

(c) The Custodial Operations Policy & Procedures specifies that Corrective Services does provide goods and services (reasonable adjustments) to NSW Inmates.

(d) The New South Judicial Commission Equality before Law Bench Book also mentions goods and services (reasonable adjustments) that can be used as extrinsic materials or an aid to a statutory interpretation with the ADNSW Act under section 49B and 49M.”

105. The appellant makes various contentions about COPP 6.9. As noted above, COPP 6.9 is not before the Appeal Panel. The appellant contends that COPPs “lack guidelines or any of the statutory objectives regarding persons with disabilities and what special measures are provided by CSNSW for persons with disabilities”. He contends that the current COPPs are structured in such a way “that it only assists inmates without disabilities” and that “[f]undamentally, the COPP policies are collectively treating all inmates as having no disabilities”. He asserts this constitutes discrimination “within a policy”.

106. We do not consider these aspects of the ground to be sufficiently precise that they raise a question of law, and we would not grant leave to appeal as we do not discern a point of principle wider than this case. Nor do we discern a contention with more than reasonable prospects.

107. In this ground, it is contended that the COPPs themselves hold the requirement that the appellant cannot comply with; and the Tribunal failed to consider this. This is what we have discussed above under the rubric of the primary issue. To the extent it goes beyond that, we are not satisfied that this ground sufficiently raises a question of law, and we would not grant leave to appeal on a mixed question of fact and law. We do not consider it sufficiently precise to raise an important point of principle, and do not discern the requisite merits to warrant the grant of leave.

108. Leave to appeal is refused and Ground 2 is otherwise dismissed.

Ground 3

109. Ground 3 as it was in the Appellant’s Submissions of 2 October 2025 is as follows:

“The appellant is still being deprived natural justice and procedural fairness due to the actions by the Respondent (Corrective Services) to continually restrict access to legal resources to present a successful case to the Tribunal.

(a) The Appellants 98 page submission had compelling evidence of victimisation including evidence of aiding and abetting shown at pages 4, 56, 57, 58, & at 79, however was not considered by the Tribunal.

(b) Public importance at page 23 of 98 regarding mental harm was not considered by the Tribunal.

(c) Whether the Tribunal member had difficulty reading the 98 page submissions causing procedural unfairness that the appellant had no control on printing quality.

(d) The appellant is deprived of substantive equality and given inadequate resources to conduct a legal matter with disabilities.

(e) Goods and services (reasonable adjustments) is still a State requirement under a Federal law pursuant to State of New South Wales (Department of Justice — Corrective Services) v Huntley [2017] FCA 581”

110. This ground asserts that there was a breach of procedural fairness at first instance, which still continues, because the appellant has never been in a position to do the legal research and prepare typed submissions to put his case. As evidence of this, he puts forward his concern that the Tribunal, at first instance, was not provided with a legible copy of his 98 page written submissions. He also suggests that his reference to mental harm was not referred to by the Tribunal, and that not having access to legal resources that he can search on the internet puts him at a substantive disadvantage running this case.

111. A contention that there is a material breach of procedural fairness can raise a question of law: Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [1] (Kiefel CJ, Keane and Gleeson JJ), [45] (Gageler J); LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [12] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

112. However, we are not satisfied that there has been a material breach of procedural fairness. First, we alerted the parties to our intention to satisfy ourselves that the written submissions, on file, were indeed legible and found they were legible. Secondly, the mere fact that a Tribunal member chooses not to refer, in the written statement of reasons, to every single submission advanced by a party, does not evidence error. It is only necessary to refer to the material submissions: D’Amore v Independent Commission Against Corruption [2013] NSWCA 187 at [230]; (2013) 202 ALR 242 citing Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630, at [46]-[47] by French, Sackville and Hely JJ. Further still, the Tribunal deals, every day, with self-represented litigants who find themselves in different positions of readiness for hearing. Some are able to do their own research using legal resources, others are not. The Tribunal is well-equipped to take the substance of a litigant’s submissions and discern whether it grounds a tenable submission. The Tribunal also had the benefit of the report, and the comprehensive submissions of the appellant, to ensure that the Tribunal properly apprehended the appellant’s case. We are therefore not satisfied that there has been a material breach of procedural fairness (noting that this has already been discussed to some degree above under the rubric of the primary issue).

113. To the extent that any specific errors said to have been made by the Tribunal are the subject of other grounds, we deal with them under those grounds.

114. Leave to appeal is refused, and Ground 3 is otherwise dismissed.

Ground 4

115. Ground 4 as it was in the Appellant’s Submissions of 2 October 2025 states:

“The Tribunal Members had not provided the correct and preferable decision by not granting disability

(a) aids to ensure a quick and cheap resolution of these proceedings.

(b) The Tribunal had failed to make the appropriate remedial orders by not considering the factual material that establishes unjustifiable hardship under section 49C(a)(b) & (c) of the ADNSW Act.

(c) The Tribunal Members had erred into making the wrong decision by not considering the documentary and inference evidence that had been provided as extrinsic aids in interpreting section 49M of the ADNSW Act.

(d) Had the Tribunal Members considered within (the decision") the Appellants evidence of CSNSW not observing various Disability Acts and Regulations, including CSNSW withholding such relevant material.

(e) The application to submit further information regarding the correct facts about Hunter Correctional Centre by the Tribunal had contributed in the delays to facilitate a quick and just decision.”

116. The “appropriate remedial orders” sought by the appellant were for the provision of “disability aids” to assist the appellant in preparation of his legal submissions.

117. The respondent submits that the topics complained of by the appellant as not having been addressed by the Tribunal were not required to be addressed, as they were “not relevant to material questions of fact or any other matter required to be addressed pursuant to s 62(3) [of the NCAT Act]”, and that the Tribunal provided sufficient reasons.

118. To the extent the appellant contends, as the respondent apprehends, that the Tribunal provided insufficient reasons, we disagree. The Decision addressed the findings on material questions of fact, referred to the evidence or other material on which those findings were based, the Tribunal's understanding of the applicable law, and the reasoning processes that led the Tribunal to the conclusions it made (NCAT Act, s 62(3)). To the extent submissions were missed (as adverted to above), that is not the product of inadequate reasons.

119. To the extent this ground refers to a failure to deliver “the correct and preferable” decision, that is misconceived. An application to the Tribunal on referral from the President in relation to a claim of discrimination, is a civil proceeding that requires the exercise of judicial power: Citta at [12]. The Tribunal in determining these applications is not exercising administrative review powers. References to the correct and preferable decision echo language used in s 63(1) of the Administrative Decisions Review Act 1997 (NSW).

120. In an application under the Act, there are very specific questions which the Tribunal must answer by reference to the Act. This case required consideration of whether there was whether direct or indirect discrimination on the basis of the appellant’s disability. The Tribunal’s task was not to make the correct and preferable decision.

121. To the extent that this ground raises issues concerning the merits of the decision at first instance, leave is required. We would not grant leave, as we see that the ground seeks a re-run of the appellant’s case, when an appeal is not a vehicle for a re-run: E-Synergies.Com Pty Ltd v Chief Commissioner of State Revenue [2026] NSWCATAP 103 at [33] citing Marjanac v Plavsic [2014] NSWCATAP 63 at [29]; MS Noun Construction Pty Ltd v Baker [2022] NSWCATAP 251 at [17].

122. Leave to appeal is refused and Ground 4 is otherwise dismissed.

Ground 5

123. Ground 5 as it was in the Appellant’s Submissions of 2 October 2025 is that:

“The Tribunal Members had set the appellants evidence ‘standard of proof’ far too high to substantiate a fair and just discrimination claim that is proportionate with a case in just seeking basic remedies.

(a) Had the Tribunal Members considered the restrictions imposed on the appellant by CSNSW regarding the difficulties in gathering evidence whilst housed in a NSW Correctional Centre.

(b) Whether the balance of probabilities principles have been applied to a higher merit process.

(c) There is a substantial amount of evidence before the Tribunal regarding the appellant's complaints to various government agencies which had not been considered within ('the original decision').

(d) Only the marginal parts of the Appellants unfavourable treatment evidence was considered by the Tribunal and no indications of considering the stronger parts of evidence.

(e) There are no indications by the Tribunal that all of the Contemporaneous notes had not been

(f) considered as a whole regarding the real issues in dispute. Including any reasoning processes that lead the Tribunal to the conclusions it made creating a substantial miscarriage of justice.”

124. This ground takes issue with the way in which the Tribunal approached its fact-finding obligations. Whilst couched as setting the bar too high, which might suggest that the Tribunal asked itself the wrong question or applied the wrong standard of proof, which might raise questions of law, it is inviting a re-run of the first instance decision.

125. The ground does not raise a pure question of law because it is not able to be determined without an in-depth review of the facts. It is an invitation to a differently constituted Tribunal to find the claims made out on the evidence before the first Tribunal.

126. To the extent that the ground raises the question of whether a different standard applies to self-represented litigants, on suffering procedural disadvantages, this too should be dismissed. The Tribunal regularly makes accommodations in terms of extensions of time, adjournments and other procedural rulings to put the parties on an equal procedural footing. However, the Tribunal must determine the matter on the basis of the facts before it; and on the basis of the law at the relevant time. The disadvantages suffered by the appellant in not being able to research, for himself, the law, was accommodated by the Tribunal in the usual way, by the Tribunal applying the law as revealed in the reasons for decision, and applying the facts and law arising from the evidence. There is no suggestion that the law was not accurately set out.

127. We would not grant leave to appeal as the issue does not raise a principle of public importance. The appellant by this ground seeks impermissibly to re-run of the first instance proceedings and the ground has no more than reasonable prospects.

128. Leave to appeal is refused and Ground 5 is otherwise dismissed.

Ground 6

129. Ground 6 as it was in the Appellant’s Submissions of 2 October 2025 is that:

“Had the Tribunal considered Schedule 3, and section 3 (a);(b) [sic] of the NCAT Act regarding enabling legislation including section 28 of the Act.

(a) The Tribunals considerations within ("the original decision") had not considered pages 70 of 98 then at 73, 74, 75, 77, 78, 79, 80, &81, regarding the Disability Inclusion Plan.

(b) The disability protections within Schedule 5 Declaration on the rights of Disabled Persons and Australian Human Rights Commission Act 1986[CTH] is within a decision making process for the Tribunal pursuant to s123 of the ADNSW Act.

(c) Article 14 of the ICCPR had been provided as a similar Acts purpose and used an extrinsic aid to a statutory interpretation which had not been considered.”

130. Under this ground, the appellant refers to various pieces of legislation and human rights obligations, including the Cth Act, the Declaration on the Rights of Disabled Persons, the International Covenant on Civil and Political Rights, the Disability Inclusion Act 2014 (NSW), and the Australian Human Rights Commission Act 1986 (Cth),

131. The Tribunal appropriately considered the appellant's claim in the context of the Act.

132. To the extent that this ground raises the question of construction of s 123 of the Act, it raises a question of law. However, for reasons already discussed above, we have rejected the appellant’s construction that s 123 is a gateway provision to bring into the Act obligations from other Acts.

133. In this case, direct discrimination is to be determined by reference to s 49B(1)(a) of the Act and indirect discrimination by reference to s 49B(1)(b).

134. Ground 6 is dismissed

Ground 7

135. Ground 7 as it was in the Appellant’s Submissions of 2 October 2025 is that:

“CSNSW Correctional Officers including the Respondent had knowingly misrepresented some evidence including withholding relevant documents that had contributed to a wrong decision.

(a) Some of the CSNSW Disability Policies that are relevant had been withheld by the respondent and not before the Tribunal or the Appellant for considerations.

(b) There is evidence that the Respondent is aware of other inmates having in-cell access to a laptop with a word program, however had been reluctant to not disclose this evidence to the Tribunal.

(c) The Respondent had misled the Tribunal with incorrect identification pool evidence to influence a wrong decision.

(d) The Respondent had withheld the Appellants GIPA Application until a hearing had been completed to disadvantage the Appellant in obtaining relevant the evidence.

(e) Whether the Respondent had breached NCAT's guiding principles within sections 36(3) and of the Legal profession Uniform Law [NSWJ at 126(a) & (b) to disadvantage the appellant including contributing to an incorrect decision made by the Senior Tribunal Members.

(f) Whether the Respondents refusals to provide disability support aids is a contravention of an Act or Regulations in NSW including of the applicable Commonwealth laws that applies in NSW.

(g) The claim of no policy provisions that provides inmates with word capable devices is a contrary statement whereby electronic devices are mentioned in the Crimes (Administration of Sentences) Regulation 2014 [NSW].

(h) The respondent had not assisted the Tribunal of a cheap resolution of these proceedings.

(i) A new and relevant discovery of an additional COPP 3.10 'Aged and frail inmates' provisions had not been disclosed.

(j) Whether the respondent maintains that there are no CSNSW provisions to approve an inmate's application to purchase Laptops is a misleading statement and had contributed into an incorrect decision.

(k) CSNSW had failed their duty of care responsibilities to approve inmates applications to purchase

(l) Laptops that would be used as a disability aid to prepare legal submissions with disabilities is warranted as a reasonable purchase.”

136. The appellant includes a caveat to this ground, that “due to so many extensions of time most of Ground 7 only concerns the DCJ Solicitor and not the Crown Solicitor, but is still relevant”.

137. The respondent apprehends the appellant, by this ground, to be contending that the appellant had an unfair hearing due to the purported failure of the respondent to tender relevant evidence, including by deliberate concealment. The respondent denies this assertion, and submits that there is no basis to suggest that the appellant did not have a fair hearing. The respondent submits that the appellant had the opportunity to tender evidence that he considered relevant and to test the evidence tendered by the respondent.

138. We discern no question of law. The ground seeks to re-run the first instance proceedings, on evidence that he contends should have been put before the Tribunal by the respondent, given his lack of access to the evidence. Whilst the respondent has duties to the Tribunal under s 36 of the NCAT Act, this does not extend to providing the necessary evidence to make out the appellant’s case. This proceeding does not concern administrative review, where the respondent would have certain additional obligations, such as under s 58 of the Administrative Decisions Review Act 1997 (NSW) to provide all materials it considers relevant to the determination of the application by the Tribunal.

139. We would not grant leave to appeal on this ground, as it does not raise a point of principle and we have not discerned the requisite prospects.

140. Leave to appeal is refused and Ground 7 is otherwise dismissed.

Ground 8

141. Ground 8 as it was in the Appellant’s Submissions of 2 October 2025 is:

“An unjust decision had occurred within (‘the original decision’) by not considering various sections of the AD Act, especially at s49B (1)(a)(b) & s 50*.*

(a) Whether to grant leave to amend the 98 page submissions should have been directed by the Tribunal upon their factual enquiries concerning the Appellants detrimental treatment claims.

(b) The Tribunal had made errors in their determinations of irrelevant facts not in dispute and instead are claims made by the appellant that relates with access to 'electronic legal documents' in his cell.

(c) Whether the decision of the Tribunal not granting leave regarding a slight increase to the complaints date span may have captured the Respondents misrepresented facts much sooner resulting in a favourable outcome for the Appellant.

(d) Whether the Tribunal should have employed section 103 of the ADNSW Act to allow for the Appellant amend the incorrect use of section 49ZG and 49ZP and replace to section 49ZT which were plainly obvious that such complaint facts relates to vilification complaints.

(e) The complaint of restricted access to education under 491(2) had not been considered by the Tribunal.”

142. The respondent submits that the Tribunal addressed the relevant statutory framework (Decision at [57]-[63]), including specific reference to s 49B of the Act, and that the appellant has neither demonstrated a failure of the Tribunal to consider s 49B, nor demonstrated any relevance of s 49C. The respondent further submits that the topic of unjustifiable hardship was not a relevant matter for the Tribunal to consider.

143. Once again, this ground appears to raise a complaint with the merits of the Decision and seek a re-run of the hearing. A fair reading of the Decision shows that the Tribunal dealt with the applicant’s claims, and that they are in line with what was set out in the President’s report. This indicates that the Tribunal, subject to the comments above under the rubric of the primary issue, correctly apprehended the essence of the appellant’s case, which was that he been denied in-cell laptop with word processing and access to legal resources, and therefore was unable to prepare for legal proceedings. Given his disability, it was not sufficient, so he contends, for him to be given the computer access he was given. The Tribunal’s decision focuses on the real issues in dispute.

144. We would not grant leave to appeal on this ground, as it concerns the merits of the decision and does not raise a point of principle. Further, we do not discern more than reasonable prospects.

145. Leave to appeal is refused and Ground 8 is otherwise dismissed.

Ground 9

146. Ground 9 as it was in the Appellant's Submissions of 2 October 2025 states:

“Had the Tribunal considered the combined weight of the Appellants evidence to engage a united and force regarding all of the circumstances concerning the Appellants case that would of safeguarded procedural fairness principles.”

147. By this ground, the appellant contends that the Tribunal failed to assess or consider his evidence, which led to a denial of procedural fairness or natural justice.

148. The respondent apprehends that the appellant, by this ground, contends that the Tribunal's factual findings were not reasonably open on the evidence, as the Tribunal did not consider the weight of his evidence as a whole.

149. We would not grant leave to appeal on this ground, as it concerns the merits of the decision and does not raise a point of principle. Further, we do not discern more than reasonable prospects.

150. Leave to appeal is refused and Ground 9 is otherwise dismissed.

Additional ground – victimisation (the second complaint)

151. We do not consider that any grounds of appeal concerned with victimisation were sufficiently articulated to identify questions of law: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22]. Further, a basis for leave to appeal was not made out: Collins v Urban [2014] NSWCATAP 17 at [84].

152. Although the appellant’s claim of victimisation is not the subject of a discrete ground, this aspect was pressed on appeal, which was confirmed in oral submissions (Tcpt, 10 October 2025, p 23(7) onwards). The appellant contends that the Tribunal erred by failing to make a finding in relation to the appellant’s submission that the respondent opened his legal mail due to his having made complaints to the ADNSW, and not in accordance with the relevant policy (Tcpt, 10 October 2025, p 23(7) onwards). This ground appears to be styled as a constructive failure to exercise the jurisdiction.

153. Furthermore, the appellant also seeks to recast how he put his claim regarding the inspection of mail, and submitted that it should “now fall under a victimisation complaint and not of a disability or homosexuality discrimination complaint”.

The Tribunal’s findings on the victimisation claim

154. The Tribunal found that the appellant’s claim of victimisation had not been made out (at [92]).

155. The Tribunal found as follows (at [88]-[92]):

“88 Mr Karnauchow’s claim of victimisation is far from clear. We note the submission referred to in paragraph [27] but there is no evidence to support these assertions and Mr Karnauchow did not suggest that the policies did not apply or were misstated by Corrective Services.

89 Mr Karnauchow’s submission before the Tribunal was that the victimisation was being transferred to Goulburn Correctional Centre, however this occurred outside of the complaint period and leave was not given to extend the complaint period.

90 Mr Karnauchow did not challenge Corrective Services’ submission that he had not previously made a complaint or brought proceedings against Corrective Services or any person under the Act.

91 Mr Karnauchow failed to identify any subsection of s 50 he relied on. Mr Karnauchow’s contemporaneous notes of unprofessional and offensive statements made by correctional staff does not take his case further.

92 For these reasons Mr Karnauchow’s claim of victimisation is dismissed.”

156. It is apparent that the Tribunal found that the appellant’s claim failed for several reasons, including that it was not made out on the evidence.

The Tribunal’s findings on mail inspection

157. The Tribunal did not treat the appellant’s claims about mail inspection as forming part of his victimisation claim. Rather, it is apparent that the Tribunal considered that the appellant contended that the respondent opened his legal mail, not in accordance with an exemption under the relevant policy, and that this constituted direct discrimination on the basis of his homosexuality (the Act, s49ZG(1)(a)) and his disability (the Act, s 49B(1)(a)).

158. The Tribunal found that mail was dealt with in accordance with the respondent’s policy (at [48]):

“All mail to inmates which is not exempt under legal professional privilege is opened and inspected pursuant to COPP 8.1 – Inmates Mail.”

159. The Tribunal rejected the appellant’s claim that mail had been inappropriately opened, at [85]:

“The next claim is that Corrective Services opened Mr Karnauchow’s mail. Corrective Services admitted that it opened and inspected Mr Karnauchow’s mail pursuant to policy. We accept Corrective Services’s evidence and its submission that there is no evidence to suggest that it acted because of Mr Karnauchow’s disability or his identification as a homosexual man. This claim is dismissed.”

Appellant’s submissions

160. As noted above, the appellant has styled this ground as constructive failure to exercise the jurisdiction: that the Tribunal accepted the respondent’s admission that it opened and inspected the appellant’s mail, but that the Tribunal did not make a finding about whether doing so was correct (Tcpt, 10 October 2025, p 23(42)-(48)).

161. The appellant contends there was evidence before the Tribunal that his mail to or from ADNSW was opened by the respondent, in circumstances where the respondent was not allowed to open that mail (by reason, so we apprehend, of the policy) (Tcpt, 10 October 2025, p 29(9) onwards)]:

“APPELLANT: …Now, the inmate mail, the evidence in there isn’t the inference evidence, okay? And what that is, is that the mail has been opened because how did Corrective Services Mid North Coast know about my complaints. All right. And I’ll give you an example, right, where the Correctional Officer has said to a sweeper, he said ‘What’s the go with this Karnauchow? Why was he putting discrimination complainants against officers?’ Right, that was passed back to me. I’ve had my door get locked when they lock my door for the day, and they go - and then as they walk past, they say - I heard them say, ‘Um, you got to watch that Karnauchow, he’ll put a discrimination case against ya.’ How did Mid North Coast know about my discrimination case? I’ll tell you how they knew it because they opened my mail and they’re not allowed to open my mail.”

Consideration

162. It is apparent that the appellant’s victimisation complaint, broadly, included the following:

163. The correctional staff knew that he had made a complaint to ADNSW. This was either due to: the mail register, which showed that the appellant had exchanged correspondence with ADNSW, correctional staff having inspected his mail; or that they were informed in some other manner.

164. He was subjected to detriment on the basis that he had made a complaint to ADNSW.

165. This detriment included: the correctional staff blacklisting him, making threats that he would be moved to a different (“worse”) correctional facility, delaying his access to Green computers, and making offensive comments; also his property and mail going missing, or his mail being opened against policy.

166. The Tribunal considered the appellant’s contentions that his legal mail was improperly opened as a claim of, so-called, direct discrimination, on the basis of his homosexuality (the Act, s 49ZG(1)(a)) and his disability (the Act, s 49B(1)(a)). However, the Tribunal found that the mail had not been opened improperly: Decision at [85]. The Tribunal found that the respondent had opened and inspected the appellant’s mail, but did so pursuant to policy. This conclusion forecloses the factual basis for the appellant’s contention that the opened mail should fall under the complaint of victimisation. To the extent that statement is wrong, it raises a question of fact. We would not grant leave to appeal, as we do not consider this ground concerning victimisation to be sufficiently precise to raise an important point of principle, and do not discern the requisite merits to warrant the grant of leave.

167. To the extent that, by this ground, the appellant contends that the Tribunal failed to deal with his victimisation claim properly, or at all, the contention is not made out. The Tribunal considered the appellant’s claim of victimisation: Decision at [3], [27], [56], [88]-[92]. We consider that the Tribunal’s statement that the appellant’s victimisation claim “is far from clear” was a reference to the fact that, despite the appellant’s submissions and evidence, his claim was not made out in accordance with the requirements of a claim under s 50 of the Act. In other words, we are satisfied that the Tribunal turned its mind to the appellant’s victimisation complaint, found that it was not clear that the instances of contended victimisation satisfied the statutory requirements of a claim of victimisation, and rejected it. Accordingly, we discern no breach of procedural fairness; rather, the victimisation claim was simply not made out. To the extent that it is contended, on appeal, that the Tribunal was wrong to so conclude, we see that would raise a mixed question of fact and law, for which we would not grant leave.

168. This additional ground relating to the second complaint is otherwise dismissed.

169. This concludes our consideration of the various grounds of appeal. We turn now to our reasons for decision in relation to the other issues.

Adjournment application

167. The last extension of time request made by appellant was on 8 April 2026, which was denied by the Appeal Panel in orders issued 9 April 2026.

168. Despite being given several extensions of time to comply with timetables set by the Appeal Panel, the appellant contended that he required more time and an adjournment of the proceedings. This was said to be occasioned by lock-downs at the correctional facility and his lack of a functional computer. The appellant said that he was not in a position to know when he would be able to comply with the Appeal Panel’s timetable and that in the absence of a computer that could search legal resources he could not effectively represent himself.

169. To the extent the appellant contends he was unable to represent himself, the Tribunal is accustomed to taking steps to ameliorate procedural disadvantages, as explained above, and we note that the Tribunal is experienced with self-represented parties. As the adjournment request was open ended, the request was refused.

Federal matter

170. A close reading of the appellant’s submissions, with its repeated references to “reasonable adjustments”, coupled to a review of the cases that the appellant referred to, exposed a possibility that the appellant relied on several grounds of appeal that might be said to arise under a federal law.

171. The term “reasonable adjustments" does not arise under the Act*.* Rather, the term “reasonable adjustments” is contained in s 5 “Direct disability discrimination” and s 6 “Indirect disability discrimination” of the Cth Act. The appellant also makes references to other Commonwealth Acts, and to the Constitution.

172. The Appeal Panel sought submissions on whether the appellant’s references to these Acts, and his apparent request for reasonable adjustments, a concept provided for under the Cth Act, deprive the Appeal Panel of jurisdiction on the basis that the appellant is raising a claim based on a Commonwealth statute.

173. It is our first duty to determine whether we have jurisdiction: Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Company Ltd (1911) 12 CLR 398 at 415; [1911] HCA 31; Hazeldell Ltd v Commonwealth (1924) 34 CLR 442 at 446; [1924] HCA 36; Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 at [1].

174. It is uncontroversial that “adjudicative authority in respect of matters listed in ss 75 and 76 [of the Constitution] is to be exercised only by ‘courts’”: Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 at [49] (Kiefel CJ, Bell and Keane JJ). Further, as noted in Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; [2006] HCA 44 at [61] (Gummow, Hayne and Crennan JJ):

“It is only in a ‘court’, as that word is to be understood in the Constitution, that federal jurisdiction may be invested.”

175. There is no dispute that the Tribunal is not such a body: Burns v Corbett at [39] (Kiefel CJ, Bell and Keane JJ). The Tribunal is not a “court of a State” as that expression is understood in s 77 of the Constitution.

176. There can be no dispute that the Appeal Panel has no jurisdiction to hear and determine a federal matter. The real question is whether the appellant raises one.

Principles

177. Relevant to this appeal is s 76(ii) of the Constitution, which provides:

The Parliament may make laws conferring original jurisdiction on the High Court in any matter:

…

(ii) arising under any laws made by the Parliament;

178. In Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275, the Appeal Panel said, at [22] (original emphasis):

“22 Drawing from a raft of cases, the following non-exhaustive set of principles, relevant to this case, emerge:

(1) Not every proceeding that is touched by a Commonwealth law is a federal matter. For instance, a matter that requires only the interpretation of a federal law will not render the proceedings a federal matter. Similarly, it is not sufficient if the federal statute arises in an incidental fashion: Felton v Mulligan (1971) 124 CLR 367 at 408 (Walsh J); [1971] HCA 39; Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 476 (Stephen, Mason, Aickin and Wilson JJ); [1980] HCA 32; LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ); [1983] HCA 31.

(2) The question of whether a federal matter arises is one of substance and not form: Australian Solar Mesh Sales Pty Ltd v Anderson (2000) 101 FCR 1; [2000] FCA 864 at [16] (Burchett J, Wilcox and Tamberlin JJ agreeing); Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 473 (Barwick CJ); [1981] HCA 7.

(3) To identify the ‘matter’ it is necessary to identify the justiciable controversy: Smith v Smith (1986) 161 CLR 217 at 237 (per curiam); [1986] HCA 36; Re Wakim (1999) 198 CLR 511; [1999] HCA 27 at [139] (Gummow and Hayne JJ).

(4) It is sufficient if the matter could be decided by reference to the federal law, it is not necessary that the matter be disposed of in that way: Felton v Mulligan at 374 (Barwick CJ); Rana v Google Inc (2017) 254 FCR 1; [2017] FCAFC 156 at [21] (per curiam).

(5) A federal issue may arise even where the parties have not directly asserted it, but where the court must nevertheless examine whether a right or duty under federal law exists: Moorgate at 476 (Stephen, Mason, Aickin and Wilson JJ).

(6) A federal matter will arise whenever the right, duty or enforcement owes its existence to federal law: LNC at 581; Re McJannet; Ex parte Australian Workers' Union of Employees (Qld) (1997) 189 CLR 654 at 656-7 (per curiam); [1997] HCA 40.

(7) It is not necessary for the form of relief sought to depend on federal law; it is sufficient if the source of the right or subject matter of the claim exists as a result of federal law: LNC at 581-2 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).

(8) A federal matter will also arise where the source of a defence is a federal law: Felton v Mulligan at 375 (Barwick CJ) and 408 (Walsh J); LNC at 581 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).

(9) Unless a federal issue is colourable, there is a federal ‘matter’: ie: the whole of the proceedings is a federal matter requiring the exercise of federal jurisdiction: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd at 499 (Gibbs J); Felton v Mulligan at 373 (Barwick CJ) and 408 (Walsh J); Fencott v Muller (1983) 152 CLR 570 at 606 (Mason, Murphy, Brennan and Deane JJ); [1983] HCA 12; Smith at 237 (per curiam); Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1 at [7] (Gleeson CJ, Gaudron and Gummow JJ); Rana v Google Inc at [20].”

179. Having regard to the way the appellant approached this issue, it is also relevant to highlight the following.

180. In Rana v Google Inc (2017) 254 FCR 1; [2017] FCAFC 156, Allsop CJ said at [20]-[22]:

“20 Once a matter is within federal jurisdiction, the entire matter is within federal jurisdiction: Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; 204 CLR 559 at 571 [7] per Gleeson CJ, Gaudron and Gummow JJ. There is never any concurrent exercise of federal and State jurisdiction: Felton [1971] HCA 39; 124 CLR 367 at 412-413; Moorgate 145 CLR at 471.

21 Generally, non-colourable assertion of a federal issue is enough to attract federal jurisdiction: Felton 124 CLR at 374 per Barwick CJ; Moorgate 145 CLR at 476; Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation [1987] FCA 686; 18 FCR 212 at 219; Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; 59 CLR 369 at 389-391 per Dixon J. Upon the existence of federal jurisdiction, the matter remains within federal jurisdiction regardless of how the federal issue or issues within it are ultimately resolved: Moorgate 145 CLR at 476. It remains federal even if the federal claim is struck out: Unilan Holdings Pty Ltd v Kerin [1993] FCA 605; 44 FCR 481 at 481-482. Nor does dismissal of the federal claim mean that a court exercising federal jurisdiction somehow loses jurisdiction over the balance of the matter: Burgundy Royale 18 FCR at 219; Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; 104 FCR 564 at 597 [85] per French J. The same is true if the federal claim is effectively abandoned: see Moorgate [1980] HCA 32; 145 CLR 457. Indeed, a matter remains in federal jurisdiction even if a party is added and no federal claim is made against that party, provided it is all part of the same matter, the same controversy: Re Wakim 198 CLR at 587 [145] per Gummow and Hayne JJ. The position is summarised in Macteldir Pty Ltd v Dimovski [2005] FCA 1528; 226 ALR 773 at 784 [36] as follows:

‘It is a fundamental tenet of federal jurisdiction that once a federal claim is made, even a bad one, and even one that is abandoned, or struck out, the whole matter in which that claim is made is, and remains, federal jurisdiction ...’

(citations omitted)

22 The exception to this principle is where the federal claim that is made is ‘colourable’ in the sense that it was ‘made for the improper purpose of fabricating jurisdiction’ such that it was not made bona fide. In such a case, federal jurisdiction is not attracted: Burgundy Royale 18 FCR at 219.”

181. These principles are still apposite.

182. The test for whether a federal matter is sufficiently raised was recently explained in Citta at [34]-[36], and recently referred to by the Appeal Panel in McNally v Resolution Life Australasia Limited [2025] NSWCATAP 116 at [53]:

“The test for whether a federal matter is raised in the requisite sense is not concerned with the ‘degree of arguability’ of the matter (Citta at [34]).”

183. The High Court of Australia said in Citta at [35]:

“… it is enough that the claim or defence be genuinely in controversy and that it give rise to an issue capable of judicial determination. That is to say, it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument.”

184. In Citta at [36] it was said (citation omitted):

“That is what should be taken to have been meant by repeated acknowledgements that the assertion of a claim or defence will not give rise to a matter within the description in s 76(i) or s 76(ii) of the Constitution if the claim or defence is ‘unarguable’ or if the claim or defence is ‘colourable’ in that it is made for the purpose of ‘fabricating’ jurisdiction.”

185. The reasons for this are that even where a claim is weak, it is for a court of a State to determine it. It was said in Burns v Corbett at [49] that “[t]he exercise of adjudicative authority in respect of matters listed in ss 75 and 76 in accordance with Ch III, and not otherwise, ensures that adjudication in respect of all such matters occurs consistently and coherently throughout the federation”.

186. It is not a matter for the Tribunal to determine the merits of a federal matter.

187. If the proceedings raise a question arising under a federal law, we would limit our consideration to whether the issue is “not incapable on its face of legal argument”: Citta at [35]. If such a matter is raised and it is not incapable on its face of legal argument, we have no jurisdiction to determine any part of the controversy.

188. A similar conclusion arises with respect to the first instance proceedings, as the appellant, whilst recasting some of his submissions, fundamentally, has not changed his case.

The grounds of appeal that may raise a federal matter

189. The grounds of appeal include contentions to the following effect:

190. That s 123 of the Act invites in certain obligations of the Cth Act, including the requirement to provide reasonable adjustments. For example Ground 3(e) that “[g]oods and services (reasonable adjustments) is still a State requirement under a Federal law”,

191. That the concept of reasonable adjustments borrowed from the Cth Act, should be used to construe the Act: Ground 3(e), by which the appellant contends that “Federal Law statutory provisions are used as extrinsic material in aid to an interpretation…”

192. An inconsistency argument; contending that the Tribunal did not “observe the term 'goods and services (reasonable adjustments)' in the decision causing conflicts in State and Federal Laws”. This is so, although at other points in the appellant’s submissions he contends that federal law is to be used only as an extrinsic aid to interpretation and “the appellant is not seeking the Tribunal to exercise a Federal power they simply don't have”.

The submissions

The appellant’s contentions

190. Once the Appeal Panel raised with the parties the possibility that the appellant relied on federal jurisdiction, the appellant, by submissions dated 8 April 2026, sought to withdraw any contentions that might have that effect. However, he maintains that he only ever raised them to the extent that they might inform our construction of ss 49B(1)(b) and 49M(1)(b) of the Act under State law. He still relies on them for that purpose. He refers to the other Acts and the Constitution as “extrinsic materials” that we can have regard to in construing the Act.

191. In his written submissions of 2 October 2025, that is, prior to the Appeal Panel having raised with the parties the possibility that the appellant relied on federal jurisdiction, the appellant explicitly stated that he was not seeking the Tribunal to exercise federal power; but rather, merely to use the federal Acts as extrinsic aids to statutory interpretation. He submitted “[t]he Federal Law statutory provisions are used as extrinsic material in an aid to an interpretation and the appellant is not seeking the Tribunal to exercise a Federal power they simply don't have, but of an interpretation that reasonable adjustments under Federal laws is in fact goods and services under the ADNSW Act.

The respondent’s contentions

192. The respondent accepts that the Appeal Panel will be exercising judicial power to determine this appeal, and has no jurisdiction to exercise federal judicial power because it is not a “court of a State” for the purposes of s 77 of the Constitution*:* Burns v Corbett at [55], [68]-[69]; Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 at [184], [204], [288]. Further, it is accepted that where a federal matter arises in the course of the proceeding, it affects the entirety of that proceeding: Citta at [31].

193. The respondent accepts that all issues have been genuinely raised in the sense that they were not raised just to invoke federal jurisdiction and states the two live questions are:

194. first, whether the appellant’s submissions raise a matter “arising under” any Commonwealth law; and

195. second, if so, whether any such claim is “so incoherent as to be insusceptible of judicial determination on those merits”, or “incapable on its face of legal argument”.

196. The respondent submits that the first question is one that must be determined objectively, and poses the test as being whether the appellant’s materials are properly understood to raise a claim, the source of which is reliant on Commonwealth law. To this end, it is submitted that a passing reference to federal laws will not suffice, citing Citta at [35] for authority for this proposition.

197. As to the second question, the respondent emphasised that the question is whether the claim is not incoherent to the requisite degree: Citta at [37], [42].

198. The respondent identified three aspects of the appellant’s case which might be seen to engage federal jurisdiction. They differ slightly from what we have set out:

199. Ground 7(f) which is said to purportedly raise a question whether the respondent's “refusals to provide disability support aids is a contravention of an Act or Regulations in NSW including of the applicable Commonwealth laws that applies in NSW”: Appellant Submissions of 2 October 2025 at [548];

200. a constructional argument, being that s 123 of the Act requires that certain provisions of the Act (including ss 49B and 49M) be construed “generously” by reference to Commonwealth laws (which are said to have an “interrelationship” with the Act) as “extrinsic materials”, with the result that the concept of “reasonable adjustments” should be read into the Act: Appellant Submissions of 2 October 2025 at [228]-[229], [242], and more broadly at [2], [27], [30]-[32], [83]-[84], [106]-[109], [113], [172]-[176], [182]-[183], [188]-[205], [212]-[233], [237], [243]-[246], [321]-[324], [500], [622]-[629]; see also notice of appeal, Grounds 6(b), 6(c), 6(d) and 8(d); and

201. a possible inconsistency argument, asserting that the decision below “caus[ed] conflicts in State and Federal Laws”: Appellant Submissions of 2 October 2025 at [245].

202. The respondent submits that there is no order sought on appeal and nor was there one at first instance, that relies on federal law. The first instance proceedings concerned allegations of discrimination contrary to the Act; and victimisation. No complaint or claim was pursued at first instance which relied on any Commonwealth law. The respondent submits that this supports an objective assessment that there is no federal claim; and to the extent that any federal issues are raised they are merely “lurking in the background”: Thurin v Krongold Constructions (Aust) Pty Ltd (2022) 73 VR 403; [2022] VSCA 226 at [111] quoting LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 582; [1983] HCA 31, in turn quoting Felton v Mulligan (1979) 124 CLR 367 at 391; [1971] HCA 39 (Windeyer J).

203. Secondly, the respondent submits that the arguments are cast at such a high level of generality and without enough particularisation that they do not satisfy the objective test of a claim with a federal source being raised.

204. Thirdly, with respect to the constructional arguments, the respondent contends that the appellant is seeking to use the Cth Act as “extrinsic material” to construe the state law, and does not make a claim for which the source is a Commonwealth law. At most, it is submitted that the constructional argument merely requires the Appeal Panel to interpret Commonwealth law insofar as the concept of reasonable adjustments is there explained, and to apply that to the relevant definitions of discrimination in the Act.

205. Furthermore, the respondent maintains that the appellant’s arguments are incapable of argument on their face and therefore do not invoke federal jurisdiction.

206. First, this is because the appellant has elected to proceed in New South Wales. The practical effect of s 13(4) of the Cth Act is that by electing to make a complaint and initiate proceedings in New South Wales, the appellant is not presently entitled to institute proceedings alleging unlawful conduct under the Commonwealth act: Barghouthi v Transfield Pty Ltd (2002) 122 FCR 19; [2002] FCA 666 at [13]-[14] (Hill J). Therefore, even if he is taken to be asserting a right which owes its existence to Commonwealth law, it is incapable of argument on its face.

207. Secondly, to the extent that the constructional argument requires the Appeal Panel to import the concept of reasonable adjustments, known only under the Cth Act, into the Act, it is a “legal nonsense”.

208. Further, in relation to the appellant’s position that he now seeks to withdraw any arguments reliant on federal law, the respondent accepts that the position appears to be untested and not free from doubt. In Citta, the plurality held that once a federal matter is raised in a “claim or defence” it “continues to characterise the totality of the justiciable controversy even where the assertion is later resolved in the exercise of judicial power or even withdrawn”: Citta at [31]. The Victorian Civil and Administrative Tribunal applied Citta in holding that a party cannot, as the respondent describes, “undo” the raising of the federal matter in Coady v Yachty Victoria Inc [2025] VCAT 427 at [67]-[76]; Brooks v Moody [2025] VCAT 1018 at [67]. However, the respondent highlighted a point of distinction in that here, there was no formal pleading that raised commonwealth law; at its highest, it was only raised in submissions. We note that the respondent does not suggest that a federal matter could not be raised by way of submissions alone

209. The respondent contends that the following observation in Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 476 (Stephen, Mason, Aickin and Wilson JJ) is relevant:

“The cases establish that federal jurisdiction is attracted if the right or duty based in a federal statute is directly asserted by the plaintiff or defendant, but not if the federal question arises only in some incidental fashion. So too federal jurisdiction is attracted if the court finds it necessary to decide whether or not a right or duty based in federal law exists, even if that matter has not been pleaded by the parties. But the converse is not true. If a federal matter is raised on the pleadings federal jurisdiction is exercised, notwithstanding that the court finds it unnecessary to decide the federal question because the case can be disposed of on other grounds.”

203. The respondent urges the Appeal Panel to treat the appellant’s raising, and then withdrawing, of the submissions that might engage federal law, as merely attempts to clarify his case. These attempts are said to reveal that there never was an intention to raise a federal matter; rather than reducing the scope of the claim. The respondent suggests we construe the appellant’s latest submission as clarifying the position that no federal argument has ever genuinely been in controversy.

Conclusion that the Tribunal has jurisdiction

204. At their heart, the appellant’s contentions are that he has been subject to unlawful discrimination on the grounds of disability; which can be tested by reference to concepts such as whether he has not been provided with reasonable adjustments regarding computer access. He maintains that he is not, in terms, seeking a reasonable adjustment.

205. We consider whether the following propositions, which we see are raised on the appellant’s case, raise a federal matter:

206. State agencies are required to comply with the Cth Act.

207. Section 123 of the Act brings the concepts of reasonable adjustments from the Cth Act into the Act.

208. The concept of reasonable adjustments under the Cth Act informs the meaning of provisions under the Act.

209. The Act is inconsistent with the Cth Act.

210. Starting with the last-mentioned proposition, we are satisfied that it has not been sufficiently particularised and therefore, if raised, is below the threshold needed to raise a federal matter: it is not capable of legal argument.

211. As to the first proposition, even assuming it to be correct, as the decision of Department of Justice – Corrective Services NSW v Huntley [2017] FCA 581 suggests, that does not mean that the justiciable controversy should be read as including a claim for breach of the Cth Act.

212. The concept of “reasonable adjustments” is part of the definition of discrimination under the Cth Act. “Direct discrimination”, includes a situation where the discriminator does not make reasonable adjustments for a person (Cth Act, s 5(2)). “Indirect discrimination”, not a defined term, also includes a situation where the discriminator requires the aggrieved person to comply with a requirement or condition and because of the disability, the aggrieved person would be able to comply with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so (Cth Act, s 6(2)). The various provisions of Pt 2, Divs 1 and 2 provide that certain forms of disability discrimination are “unlawful”, which makes the failure to make reasonable adjustments unlawful in certain circumstances.

213. The provisions of Pt 2, Divs 1, 2 and 2A, other than ss 20, 29 and 30, are “limited application provisions” for the purposes of s 12 of the Cth Act (s 12(1)). Sections 12(3), (5)-(14) provide for the circumstances in which the “limited application provisions” have effect. Essentially, this draws upon Commonwealth powers.

214. Department of Justice – Corrective Services NSW v Huntley [2017] FCA 581 concerned claims of direct and indirect discrimination on the basis of disability made by an employee against Corrective Services NSW, a state agency, under ss 5, 6 and 15 of the Cth Act. Both on the appeal and at first instance, the Court dealt with the matter on the basis that the Cth Act applied to Corrective Services NSW.

215. Nevertheless, there is a jurisdictional bar to the bringing a claim under the Cth Act to the Tribunal.

216. The Tribunal is not a court of a State, and claims under the Cth Act are not the purview of the Tribunal.

217. Having commenced in the state jurisdiction, the appellant is not able to raise the federal claims: the Cth Act, s 13(4).

218. Accordingly, it is not only NCAT that does not have jurisdiction to determine a claim that finds its source in the Cth Act. By commencing proceedings under state jurisdiction, that avenue is not open to the appellant. This is in line with the observations of Hill J in Barghouthi v Transfield Pty Ltd (2002) 122 FCR 19 that s 13(4) of the Cth Act “operates to ensure that where a claimant elects to bring an action in either the State or Federal jurisdiction that claimant is bound by the consequences of that election” (at [14]); although Hill J also noted that a claimant will not be so bound if the claim “is not in fact heard because the chosen forum lacks jurisdiction” (at [14]). A claim premised on a breach of the Cth Act is therefore not open to legal argument.

219. As to the second proposition, we are satisfied that the appellant’s contentions regarding s 123 of the Act are to the effect that this is a gateway provision, and that claims for reasonable adjustments may be considered under the Act. We see this is consistent with the appellant’s reliance on cases such as Hamzy v Commissioner of Corrective Services NSW (2022) 107 NSWLR 544; [2022] NSWCA 16 (“Hamzy”) wherein the Court found that “the preferable analysis may be that the State Regulation [Crimes (Administration of Sentences) Regulation 2014 (NSW)] cannot authorise the doing of any act to enforce a restriction which is unlawful under a Commonwealth law”, citing Gerhardy v Brown (1985) 159 CLR 70 at 121 (Brennan J); [1985] HCA 11. This case provides support for the proposition that state agencies may be subject to the requirements under the Cth Act. Nevertheless, and not in this forum, we note that Department of Justice – Corrective Services NSW v Huntley [2017] FCA 581 did not consider a claim arising under a NSW Act. We find that this does not raise a federal matter, as we consider it not open to legal argument that s 123 of the Act is a gateway provision.

220. Section 123 of the Act is extracted above at [93].

221. In Gardiner v Laing O’Rourke Australia Construction Pty Ltd (2020) 102 NSWLR 599, Basten JA found (at [42]) that, by operation of s 123 of the Act, the Act expressly provides additional rights to victims of unlawful discrimination.

222. There is no proper foundation for the submission, and we therefore are satisfied it does not raise a federal matter.

223. As to the third aspect, this too does not raise a federal matter. It is merely an argument advanced in aid of construing the provisions of the Act. At its highest, it requires us to interpret concepts from federal jurisprudence. As noted above, we do not apprehend an inconsistency argument.

224. As to the appellant’s desire to withdraw his submissions, we doubt that could have “undone”, in the words of the respondent, the result of a federal matter having been raised, even if raised only in submissions. However, we are satisfied that no federal matter was indeed raised.

225. The Appeal Panel is satisfied that the proceedings do not raise a federal matter, and therefore that we have jurisdiction to determine the appeal.

Felons Act

220. The other anterior matter that requires our consideration concerns the question of whether the appellant requires leave of the Tribunal to proceed, under the Felons Act.

221. The Felons Act relevantly provides (Long title, s 4):

An Act to provide that a person convicted of, or found to have committed, a felony shall not be incapable of instituting and maintaining civil proceedings in any court.

…

4 Leave to sue required for persons convicted of serious indictable offences

A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application.

222. The respondent described the issue as follows:

“3. In brief, at English common law, a person convicted of a felony and sentenced to death (or spared the death penalty on condition that they be kept in penal servitude) was ‘attainted’, such that they were barred from bringing civil proceedings: Hamzy at [171]. That common law position as it applied in Australia was confirmed by the High Court in Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583. Importantly, however, the position was unclear in the case of ‘non-capital’ felons: Hamzy at [171].

4. In response to Dugan, NSW Parliament enacted the Felons Act. The purpose of that Act, and particularly s 4, ‘was to ameliorate the perceived harshness of the doctrine of attainder’: Patsalis at [4].”

223. The second reading speech of the Legislative Assembly for the Felons (Civil Proceedings) Bill 1981 (New South Wales, Parliamentary Debates, Legislative Assembly, 18 March 1981 (the Honourable Francis John Walker)):

“The bill represents an important reversal of an extraordinary aberration in the New South Wales common law. That aberration was long regarded as extinct, an archaic and feudal denial of rights which had disappeared from the common law in the same way as trial by battle and witch burning. I am speaking of the ancient doctrines of attainder of felony and corruption of the blood. Without embarking on a detailed historical analysis of their origins, their remaining practical effect is the complete abrogation of the right of a person convicted of a felony to institute or maintain civil proceedings in any court. Perhaps I should say this is their known effect, for the full extent of the application of the doctrines has never been judically (sic) considered. In fact the continued application of the doctrines in New South Wales law had not really been formally acknowledged until Darcy Dugan commenced defamation proceedings against Mirror Newspapers Limited.

In those proceedings before Mr Justice Yeldham, His Honour expressed the view that the English common law, depriving a felon of the right to sue in a court of law, was in force in New South Wales at the time of its settlement. Therefore it became part of the law of the felony, unaffected by 19th century English statute abolishing the doctrine. His Honour's view was confirmed by both the Court of Appeal and finally the High Court. But since the moment Mr Justice Yeldham's decision was handed down, the state of the New South Wales law in this area has been the subject of widespread criticism, notably from the judiciary, the Australian Law Reform Commission and in the report of the Royal Commission into New South Wales Prisons. The bill will remove the present legal disability that prevents convicted felons from instituting and maintaining civil proceedings in New South Wales.

I doubt that any honourable member would deny that this action by the Government is entirely proper. I am pleased to have been instrumental in bringing the measure before the House. When honourable members have had the opportunity to peruse the bill, they will observe that clauses 4, 5, 6, and 7 place some restraint on the commencement of civil proceedings by felons in custody. They provide that no such proceedings should be commenced unless the leave of the court has first been obtained.

The only reasons for refusal of the grant of leave will be that the court is not satisfied that the proceedings are not an abuse of court process, and that there is a prima facie ground for the proceedings. This aspect of the measure is designed simply to prevent persons in custody, having been convicted of a felony, from attempting to institute vexatious or frivolous actions. Naturally the Government is concerned that in the interests of the proper administration of justice and for the protection of the welfare of the community as a whole, efforts should be made to ensure that prisoners are not able to take advantage of the removal of their legal disability to attempt to disrupt the due processes of the law.”

The doctrine of attainder

224. It is apparent from the second reading speech of the Legislative Assembly for the Bill that the purpose of the Bill was to ameliorate the “perceived harshness of the doctrine of attainder and to prevent abusive proceedings” (McBride at [39]).

225. Justice Murphy in Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583 at 609-610; [1978] HCA 54 explained the doctrine of attainder:

“Attainder is an ancient judicial doctrine under which a person who suffers judgment upon conviction for treason or felony (it is not entirely clear whether only when the judgment was death) was deprived of status as a person. Its effects were forfeiture of the person's property and corruption of the blood and civil disabilities. ‘Forfeiture’ meant that the attainted person's property was subject to seizure by the Crown. ‘Corruption of the blood’ prevented the person from transmitting his land to heirs ‘of his blood’ because they were ‘corrupted’. Therefore, subject to forfeiture to the Crown, his property escheated to the lord of the fee. Civil disabilities were the forfeiture of civil and property rights, especially the right to sue which is generally referred to as civil death. The civil disabilities were generally regarded as a consequence of attainder separate from forfeiture and corruption of the blood but were sometimes regarded not separately but as an incident of corruption of the blood; this is how Yeldham J and the Court of Appeal treated civil death.”

226. At the time of its enactment, the Felons Act relevantly provided:

Felon may sue.

3. Subject to this Act, a person shall not, by reason of his having been convicted of, or found to have committed, a felony, be incapable of instituting and maintaining any civil proceedings in any court.

227. The Long Title, which was in the same terms as it currently is, makes this clear, and is extracted above at [221].

228. In Hamzy, Leeming JA explained the purpose and effect of the Felons Act at [179]-[181] (Bathurst CJ and Basten JA agreeing):

“179 The proposition that a convicted prisoner retains all civil rights which are not taken away expressly or by necessary implication is correct in principle. That was reflected in the bipartisan support given to the Felons (Civil Proceedings) Act, which was perceived as removing the last remaining disability of felons. The bill’s passage through the parliamentary chambers is conveniently summarised in J Donnelly, “Judicial Review for the Convicted Felon in Australia - A Consideration of Statutory Context and the Doctrine of Attainder” (2012) 16(1) University of Western Sydney Law Review 137 at 148-149. The Attorney-General said that ‘the last practical effect of a doctrine of attainder’ was the denial of the right to commence or maintain civil proceedings’, while the shadow Attorney-General said that ‘Felons must have rights in respect of personal physical injury’ and ‘A felon must also have rights to protect property by way of injunction, declaration or proceedings for damages’.

180 Consistently with the foregoing, a major albeit unstated premise of Part 2A of the Civil Liability Act 2002 (NSW), which reduces the damages payable for some torts committed against offenders in custody, is that those offenders would otherwise enjoy the same civil rights.

181 But the main reason why the principle stated by Lord Wilberforce applies in New South Wales is the common law’s all-or-nothing approach. Attainder and forfeiture have now been abrogated by statute. There was no basis for common law to create some intermediate position once the Felons (Civil Proceedings) Act commenced. Test the matter this way: a convicted prisoner is no longer civilly dead….”

229. The Crimes Legislation Amendment (Sentencing) Act 1994 repealed s 3 and inserted s 9:

9 Provisions consequent on enactment of Crimes Legislation Amendment (Sentencing) Act 1999

(1) Section 3, as in force immediately before its repeal by the 1999 amending Act, continues to have effect in relation to any person who was convicted of a felony before the repeal of that section.

(2) Sections 4–7, as in force immediately before their amendment by the 1999 amending Act, apply to a person who was convicted of a felony before their amendment as if the person had been convicted of a serious indictable offence.

(3) In this section, 1999 amending Act means the Crimes Legislation Amendment (Sentencing) Act 1999.

230. Whilst at common law, there is a presumption that when an Act of Parliament is repealed, it must be considered as if it had never existed, this presumption can be negated by evidence of a contrary intention (Herzfeld and Prince, Interpretation (2nd ed, 2020, Lawbook Co) at [11.110]). Section 9 makes it clear that the doctrine of attainder has not been re-enlivened.

Is the Tribunal a court for the purposes of the Felons Act?

231. There seems to be no dispute that if the Tribunal is a “court” as comprehended by s 4 that these proceedings are “civil proceedings”; being “a claim for a private remedy to redress an injury from wrongful conduct”: Patsalis v State of New South Wales [2012] NSWCA 307 (“Patsalis”) at [5] (Allsop P). Proceedings under the Act involve the exercise of judicial power: Citta at [12]-[16] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). Further, there is no dispute for the purposes of s 4, that the appellant is a “person who is in custody” after having been convicted of “a serious indictable offence”. Accordingly, if the Tribunal fits the description of “any court” as apprehended by s 4 of the Felons Act, he requires leave of the Tribunal to proceed.

232. Neither the Felons Act nor the Interpretation Act 1987 (NSW) provide a definition of a “court”. Whilst the Tribunal is not a court of a State for the purposes of s 77 of the Constitution, as discussed above, nevertheless, for many statutory purposes it may have “sufficient of the characteristics of the court to answer the statutory provision relating to courts”: Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 387.

233. The Tribunal has previously held that the Felons Act indeed applies to proceedings in the Tribunal brought under the Act: Roberts v Department of Justice, Corrective Services NSW [2017] NSWCATAD 310 (“Roberts”) at [21]. A similar result was obtained in relation to the Administrative Decisions Tribunal: Hall v State of NSW (Department of Corrective Services) [2006] NSWADT 243 (“Hall”) at [9].

234. The respondent contends that we should not follow these cases for the following reasons:

235. In these proceedings, the respondent does not advance a positive position that the Felons Act applies. This is said to be different to the position in each of Roberts and Hall where the respondent either did not dispute, or did positively submit, that s 4 of the Felons Act applied. Here instead, the respondent submits it is not necessary for the Appeal Panel to decide the question, because the respondent accepts that, assuming leave to be necessary, it can and should be granted. Accordingly, the Tribunal may proceed on the assumption (without deciding) that the Felon**s Act applies and that leave should be granted.

236. Further, in Roberts, the Tribunal gave two broad reasons for concluding that the Tribunal was a court; which are said to be incorrect, or open to doubt:

(a) In Roberts, it was held that the Tribunal had sufficient characteristics of a court, such as: being conferred judicial power in some instances and its constitution partially by judicial members. The Tribunal found that those characteristics provided a strong indication towards the Tribunal being a court. The respondent acknowledges these indications, and points to additional reasons that support the argument that the Tribunal is a court: in some instances, for example, taxation, an applicant may elect to proceed to the Tribunal, or go directly to the Supreme Court. The respondent submits that it would be a “strange outcome” if an applicant could avoid the leave requirement by commencing in the Tribunal. Although we pause to note, that in relation to reviews of assessments, the Tribunal exercises administrative power: Agrinova Pty Ltd v Chief Commissioner of State Revenue [2025] NSWCATAP 86 at [164]. Additionally, so the respondent submitted, where a Tribunal is dealing with a matter where a federal issue is raised, such as this matter, then it would be “odd” if the applicant would only be required to seek leave once a “court of a state” was seized of the matter. Nevertheless, the respondent highlights that there are contrary indicators too: for instance, that in a substantial proportion of proceedings, the Tribunal does not exercise judicial power. We add to this that it is not necessary, in all matters, for the Tribunal to be constituted by a lawyer. (b) The respondent submits that the Tribunal in Roberts found that if the Tribunal was not considered a court, then the common law doctrine of attainder would have barred the applicant from proceeding entirely. This is said to be incorrect because in Hamzy, Leeming JA held that “attainder and forfeiture have now been abrogated”. Further, the Felons Act might not have applied in Roberts in any event; as the appellant had been convicted of what would have been known as a non-capital felony.

3. Parliament could have chosen to, but did not, draft the Felons Act to expressly include tribunals.

4. The second reading speech refers to the rights of a felon to sue in a “court of law” which might suggest some weak contextual indication that it is only intended to bar proceeding in a court of the narrower kind.

5. There is little purpose to applying the Felons Act to the Tribunal to avoid vexatious proceedings, as the Tribunal may avoid vexatious or abusive proceedings in any event: NCAT Act, s 55.

6. The principle of legality, or the presumption in favour of non-interference, would tend to support a narrow reading of the Felons Act. This is so, because this principle has previously led the Court of Appeal to conclude that the Felons Act does not apply to judicial review proceedings: (Hamzy at [176]; Patsalis at [53] (Basten JA, Allsop P agreeing at [1], Sackville AJA at [112]).

7. Further, the respondent contends that it is of no moment that the proceedings already commenced without leave under the Felons Act, and that leave may be granted retrospectively*:* Jol v New South Wales (1998) 45 NSWLR 283 (“Jol”); Roberts.

8. It was submitted that since Jol, courts have taken the approach that leave can be granted under the Felons Act “out of an abundance of caution (expressed as being ‘to the extent necessary’) and on an assumption that the [Felons Act] applies”: relying on McBride v McBride [2025] NSWSC 57 at [85]-[87]. This is the course urged upon the Tribunal, noting that the proceedings have been defended to date without any suggestion that leave is required, and the respondent does not suggest the threshold for the grant of leave is not met.

9. Finally, it is submitted that it is consistent with Tribunal’s statutory objective to resolve the real issues in dispute justly, quickly and cheaply with as little formality as possible, to not decide the question. This is because of the complexity of construction that would be required to determine whether or not the Tribunal is in fact a court for the purposes of the Felons Act; and where other agencies have not had the opportunity to put submissions.

Conclusion as to whether we should answer the question of whether the Felons Act applies

238. As to whether we should avoid answering the question of whether the Felons Act applies, in Chief Commissioner of State Revenue v Adams Bidco Pty Ltd [2019] NSWCA 34 (“Adams Bidco”), Leeming JA expressed approval (at [3]) for the observations of Macfarlan JA (Gleeson JA and Garling J agreeing) in Gulic v Boral Transport Ltd [2016] NSWCA 269 at [7]:

“Contrary to the usual practice, his Honour did not make any contingent findings in respect of breach of duty or damages. He merely observed that in light of his finding on liability, the court was ‘not minded’ to afford an assessment on damages. If there is good reason to take such a course, the reason should be identified in the judgment. Otherwise, a judge should determine all issues before him or her to assist the appeal process and obviate recourse to a new trial. A statement to this effect appears in the Judicial Commission of New South Wales’s Civil Trials Bench Book at [2-6330]. The statement is supported by the decisions of this Court in Nevin v B & R Enclosures Pty Ltd [2004] NSWCA 339 at [74]-[75] and Wolfenden v International Theme Park Pty Ltd [2008] NSWCA 78 at [3]-[4] and [53].”

239. Justice Leeming continued in Adams Bidco (at [4]) by noting that, Peter Sleiman Investments Pty Ltd as trustee for the Sleiman Family Trust v Deputy Commissioner of Taxation [2017] NSWCA 81; (2017) 105 ATR 431 confirmed that the principle was not confined to the assessment of damages for personal injury in cases where liability has not been established. Furthermore, this principle also applies to the Tribunal: Owners – Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66 at [8].

240. Nevertheless, there may be cases where there is a good reason not to do so. For instance in Aymsheen Pty Ltd v Chief Commissioner of State Revenue [2023] NSWSC 1237 at [4], Richmond J accepted that a constitutional issue arose, however noted “difficulty accepting that it is an appropriate question for determination as a threshold question…This is because, as it is expressed, it is a hypothetical question…The Court steers away from determining hypothetical questions: see for example Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582; [1992] HCA 10”.

241. Here, we acknowledge that there are reasons to avoid answering the question:

242. The parties are agreed that in the event leave is required, it should be granted.

243. In the recent decision of Roberts, though we do not see it as plainly wrong and we would therefore be inclined to follow it, we accept that the respondent there advanced the position that the Felons Act applied, whereas here the respondent does not make a positive submission.

244. Courts have adopted the approach of granting leave “to the extent necessary”.

245. We have some reluctance to not answering the question. First, the mere fact that the Tribunal has a mandate to determine the real issues in dispute justly, quickly and cheaply, is not a reason to shy away from answering complex questions that arise in the proceedings. Without leave, if the Felons Act applies, the appellant was not able to institute the proceedings. The matter of leave is a matter for the Tribunal, not a matter the parties can merely consent to. Therefore, the issue arises in the proceedings; and the Tribunal should not lightly shy away from it.

246. Second, whilst we accept that the issues are complex and that there are sound reasons for and against the proposition that the Tribunal is a court for the purposes of the Felons Act, we have had the benefit of well researched and reasoned submissions. Third, the mere fact that other agencies have not had the opportunity to make submissions, is not a reason to avoid answering a question that arises in this case. To the extent that a differently constituted Tribunal chose to depart from our decision, there would be no bar to doing so; especially after hearing different submissions or evidence: The Owners – Strata Plan No 80412 v Vickery (Costs) [2020] NSWCATAP 48 at [15]. Although the parties to these proceedings might be bound by the outcome here (subject to appeal), in the sense that to argue differently in the future might constitute an abuse of process: State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81–423 (Giles J); Lane v AGY Global Wealth Pty Ltd t/as Skylight Energy [2024] NSWCATAP 83. In Lane v AGY, it was said at [75] “[a] party, in subsequent proceedings, might also be prevented from challenging findings made in earlier proceedings where to do so may constitute an abuse of process.”

247. To the contrary is the fact that the parties agree that a convenient course is to grant leave to the extent necessary; and that the respondent is not putting a position that the Felons Act applies and that leave should be refused. This means that the Appeal Panel has not had the benefit of a true contradictor. Nevertheless, as the point was comprehensively argued and the respondent put arguments for and against, we consider ourselves to be in a position to answer the question. Further, this issue will arise again. Whilst not binding, we consider it to be a useful guide to set out the view we have come to in deciding the issue.

248. Finally, this point has already been decided by the Tribunal in Roberts v Department of Justice, Corrective Services NSW [2017] NSWCATAD 310*.* It is therefore appropriate that we decide the issue.

Conclusion that the Felons Act applies

246. We consider that the Tribunal is a court for the purposes of s 4 of the Felons Act. This flows from the fact that the Tribunal, in determining civil disputes (as this here is) is exercising judicial power. Notwithstanding that there is doubt that the appellant would have been caught by the doctrine of attainder in the first place, and notwithstanding that the Felons Act has abolished the doctrine, it provides certainty to construe the expression “any court” as apprehending the Tribunal, when exercising judicial power. The Tribunal exercises judicial power in circumstances where the Felons Act has a sphere of operation: when determining civil proceedings.

247. Further, we consider that the use of the adjective, qualifier or determiner “any” before the word “court” in s 4 and in the Long Title, is supportive of our decision. The use of the word “any” before the word “court” gives the word “court” the widest possible ambit. This tends against the presumption in favour of non-interference resulting in a construction that a court does not include the Tribunal exercising judicial power in a civil dispute, such as this; unlike the position in Hamzy which concerned judicial review. In Hamzy at [176] (Leeming JA, Bathurst CJ and Basten JA agreeing) “[i]t will be seen that the retention of civil rights save for those expressly or by necessary implication taken away sustained a ‘presumption in favour of non-interference’ as a matter of statutory construction applicable in such cases”. In Patsalis at [53] (Basten JA, Allsop P agreeing at [1]) “[w]hile the imposition of a leave requirement, which vests control of access to the courts within the courts themselves, will involve a lesser intrusion on civil rights than other forms of restraint, the presumption in favour of non-interference will mean that the leave requirement will not be given an expansive construction.”

248. Finally, this is consistent with the application of the Felons Act in the past, which provides consistency of operation within the Tribunal.

Leave should be granted

249. This is indeed an appropriate case for the granting of leave under s 4 of the Felons Act, to institute and maintain these proceedings. First, the complaint was referred by the President after review; which speaks to its substance. Leave to proceed in the Tribunal was not required, as s 96(1) of the Act does not apply to a referral by the President which is not at the request of the complainant. Second, there is no suggestion to the contrary.

250. Additionally, the appellant should be granted leave to appear.

251. We accept this can be done retrospectively: Jol.

252. It follows from our decision that leave to institute proceedings and appear, at first instance, was required. In the interests of efficiency and effectiveness, the Appeal Panel will vary the Decision under appeal to grant leave to the appellant to have brought the proceedings at first instance and to appear.

Conclusion

253. The appeal is dismissed.

Orders

254. The Appeal Panel makes the following orders:

255. Leave for the appellant under the Felons (Civil Proceedings) Act 1981 (NSW) to institute the first instance proceedings and to appear is granted.

256. Leave for the appellant under the Felons (Civil Proceedings) Act 1981 (NSW) to institute the appeal and to appear is granted.

257. Leave to appeal is refused.

258. The appeal is dismissed.

**********

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