Northern Sydney Local Health District v FZK

Actual bias

1. In Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 (Reid) at [68]-[74], the New South Wales Court of Appeal explained the principles of actual bias (Gleeson JA with Emmett JA at [1] and Tobias AJA at [252] agreeing): [68] A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) (Sun v Minister) 81 FCR 71 at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited. [69] Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary judge was "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127]. [70] As Gleeson CJ and Gummow J observed in that case at [71]: "The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion." [71] In the same case, Hayne J noted at [185] the several distinct elements underlying the assertion that a decision-maker has prejudged or will prejudge an issue, or the assertion that there is a real likelihood that a reasonable observer might reach that conclusion. The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. The second is the contention that the decision-maker will apply that opinion to the matter in issue. The third is the contention that a decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case. [72] His Honour observed at [186] that allegations of actual bias through prejudgment often fail at the third step he had identified. This was because notwithstanding whatever expression of preconceived opinions by the decision-maker, it does not follow that the evidence will be disregarded. [73] The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 at 437 [33]. However, actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs (Bilgin v Minister) (1997) 149 ALR 281 at 289-290 per Finkelstein J; Sun v Minister at 127 per Burchett J and 135 per North J. As Finkelstein J said in Bilgin v Minister at 290: "The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point insofar as the validity of the decision is concerned." [74] The circumstances in which actual bias can be demonstrated solely from the published reasons for decision must be considered to be rare and exceptional: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 668 at [38] per von Doussa J, who explained: "... Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interests such as a hostile attitude throughout the hearing or ... an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias." [Citations omitted.]
2. The principles in Reid at [68]-[74] have been applied in the Tribunal: see for example, YJB v YJC [2024] NSWCATAP 221 at [69]-[70].

Apprehended bias

1. The principles as to apprehended bias which are applied in the Tribunal were summarised by the Appeal Panel in FZK v Department of Customer Service [2024] NSWCATAP 185 (FZK v DCS) at [137]-[143]: "[137] To the extent the applicant raises apprehended bias, disqualification on this ground involves a different test. The leading Australian case on the test for apprehended bias is the decision of the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner). [138] In Ebner at [6]−[7], Gleeson CJ, McHugh, Gummow and Hayne JJ stated the test to be whether "a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide". Their Honours at [8] held the test involves 2 steps before the reasonableness of the apprehension can be assessed: "The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a [decision-maker] to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a [decision-maker] has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed." [139] The purpose of the "double might" in the apprehended bias test is to stress that the apprehended bias rule is concerned as much to preserve the public appearance of independence and impartiality on the part of the decision-maker as it is to preserve the actuality: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 (CNY17) at [18] (Kiefel CJ and Gageler J). [140] The test involves one of objective possibility rather than probability: Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [59] (Gageler J). However, the possibility must be real and not remote: Ebner at [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ). [141] The test is to be applied by reference to what a fair-minded lay observer might reasonably apprehend and not by reference to what the party alleging bias apprehends. The fair-minded lay observer is neither a judge nor a lawyer. Rather, the fair-minded lay observer is a member of the public who courts and tribunals are meant to serve. Accordingly, the fair-minded lay observer will not have a detailed knowledge of the law or of the character or ability of the particular decision-maker: Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [12], quoting Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [13]. [142] However, the fair-minded lay observer is taken to be aware of the nature of the decision and the context in which it was made, and the circumstances leading to the decision: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 (QYFM) at [72] (Gordon J). Also, the fair-minded lay observer is taken to have a broad knowledge of the material objective facts, as distinct from a detailed knowledge of the law or of the character and ability of the decision-maker: QYFM at [72] (Gordon J). [143 It is critical when dealing with a recusal application on the grounds of apprehended bias to assess, objectively, the connection between the facts and circumstances alleged to give rise to the apprehension and the asserted conclusion that the decision-maker might not bring an impartial mind to bear, to ground the application resulting in a possible departure from impartiality. …"

The 25 October 2024 Transcript and the 25 October 2024 Decision

1. The 25 October 2024 Transcript and the 25 October 2024 Decision include the following passages relevant to the grounds of the FZK Recusal Application: 1. Grounds 1 and 2 (Tcpt, 25 October 2024, pp 1(15)-2(50); 3(23)-(47); 5(7)-(13)): SENIOR MEMBER BLAKE: Ms Mattes and FZK, I will deal with making directions for the hearing of the appeal first and then I will come to the stay application. RESPONDENT: I think I have provided the submissions and I am going to-- SENIOR MEMBER BLAKE: FZK, you may not have heard me. I am going to deal with the orders to be made to prepare this appeal for hearing and then I will come to the stay application, okay? RESPONDENT: No. I didn't mean that. I have applied for dismissal, for a s 55. So if that is considered there is no reason for direction for hearing. SENIOR MEMBER BLAKE: When was the application filed for a dismissal? RESPONDENT: Include in my response. I - my response for the direction order you made because I think it's wasting everyone's time. SENIOR MEMBER BLAKE: FZK, just hang on. Ms Mattes, are you in a position today to deal with the application for dismissal of the appeal? I can see that the respondent's submissions filed yesterday at 5.22pm seek an order, not only for the dismissal of the stay but the appeal, are you in a position to deal with that or not? MATTES: I mean I can make some oral reply submissions. SENIOR MEMBER BLAKE: I am not asking what you can do. I am really asking, are you in a position to deal with an application to dismiss the appeal? If you are not, I will stand it over and make directions to prepare that application for hearing. If you are ready we can deal with it today. MATTES: I mean it is a single paragraph bare assertion that the appeal is lacking in substance with no real prospects of success. SENIOR MEMBER BLAKE: I understand that and normally a party would need to file an application for miscellaneous matters seeking the dismissal of an appeal. FZK has not done that and if she wishes to pursue, if you don't wish to have this dealt with today I will make directions for the filing of an application and submissions and evidence by both parties set it down for hearing. FZK, this is not an appropriate way for you to raise a summary dismissal of an appeal that I am wanting to deal with it as a matter of substance and so I am asking Ms Mattes how you want this to be responded to. Are you in a position to respond to it or do you want me to make some directions which I will do to enable a hearing of a summary dismissal application as soon as practicably, but not today? MATTES: I mean I think I'm not really prepared to deal with it as a full-blown application for dismissing. I don't think there's much I can say other than to say we disagree. SENIOR MEMBER BLAKE: Okay. I'm not going to deal with that application, FZK. I will make some directions. If you wish to seek summary dismissal of the appeal I will make some directions about that. So the first thing I am going to do is make some directions for the preparation of the appeal for the hearing. RESPONDENT: Hang on. I thought you were going to make directions for the application of summary dismissal because I think any direction for the hearing it will be subject to whether it's summary dismissal or not. SENIOR MEMBER BLAKE: FZK-- RESPONDENT: Can I just say one thing, the reason why I did not lodge an application for summary dismissal is because the short notice that is made from your direction orders. And in fact the temporary grant of stay of the application that is ex parte I was not even know that had been granted because-- SENIOR MEMBER BLAKE: That's why it was granted until today, FZK. It was made on short notice for a short period of time. Now FZK, I reject your application. If you wish to bring an application for summary dismissal you are entitled to do so and I will make some directions but I will not hold up the preparation of the hearing, the preparation for the appeal, while this other matter is being dealt with. It is unlikely this matter can be dealt with before next year in any event on the appeal and you will, although, no, perhaps it could be heard on 13 December. So it's up to you, FZK, you bring an application early next week and that will be heard as soon as practicable. RESPONDENT: Okay. Yes. So what if you could make the direction in relation to the hearing after the dates of the summary dismissal application, that would be like logical. SENIOR MEMBER BLAKE: That will be up to you, FZK, as to when you can deal with it. … PRINCIPAL MEMBER BLAKE: FZK do you intend to file a reply to appeal? RESPONDENT: Yes. It would be subject to ...(break in recording)... PRINCIPAL MEMBER BLAKE: I beg your pardon? RESPONDENT: ...(not transcribable)... I just don't see there is a need for that but of course-- PRINCIPAL MEMBER BLAKE: I have rejected that FZK, I'm going to make directions for that. Do you intend to provide-- RESPONDENT: Yeah of course, of course. PRINCIPAL MEMBER BLAKE: Seven days or 14 days? RESPONDENT: I'm really confused. PRINCIPAL MEMBER BLAKE: FZK I am making directions to prepare the appeal for hearing. If you bring an application for summary dismissal that will be dealt with as soon as practicable. But in the meantime I am not going to hold up the preparation of the hearing of the appeal. The first step in the hearing of the appeal is for you to put on a reply to appeal, and I've asked you, I'm proposing seven days or 14 days? … PRINCIPAL MEMBER BLAKE: Anything else FZK? RESPONDENT: Two things. First of all I thought we're going to deal with the stay first. PRINCIPAL MEMBER BLAKE: FZK I told you explicitly I would deal with the directions for the hearing of the appeal first then the stay." 1. Ground 3 (Tcpt, 25 October 2024, pp 12(31)-13(3)): "SENIOR MEMBER BLAKE: Ms Mattes, is there anything you wish to say in reply? MATTES: I only wanted to clarify that we do consider that our grounds of appeal raise questions of law at grounds that arise as of right. With respect to grounds 3 & 7, we do acknowledge that to an extent they might require the appeal panel to revisit the merits of the decision and that is something that we would be asking the appeal paned to do. And on that basis, we seek leave because we say that the appeal panel l should also go ahead and determine or reconsider the merits of the decision. But otherwise we say that our grounds of appeal raise questions of law and rise as a right. SENIOR MEMBER BLAKE: I'll give my decision. RESPONDENT: Can I just clarify which the number, this question is to Ms Mattes. Can I just clarify which ground raises the question of law? It's not apparent on your submissions. You cannot just say the number. SENIOR MEMBER BLAKE: She's made very clear that 1, 2, 4, 6, 4, 5, 6. She contends raise questions of law, questions 3 and 7, leave will be sought. Am I correct Ms Mattes? MATTES: Yes that's correct." 1. Ground 3 (25 October 2024 Decision, p 3(22)-(24)): "It appears to me that the determination of the grounds of appeal will involve questions of statutory construction and the application of the relevant statutory provisions properly interpreted to the facts of the situation." 1. Ground 4 (25 October 2024 Decision, pp 1(1)-(2); 4(3)-(8)): " … Neither of the parties relied upon any evidence. …" "I am satisfied that if a stay is not granted, the subject matter of the appeal will be destroyed or substantially impaired in such a way as to render a successful appeal nugatory. The information in order 2 which the appellant contends is personal information of third parties and entitled to protection from disclosure to the respondent would be destroyed if the documents were disclosed to the respondent." 1. Ground 5 (25 October 2024 Decision, p3(16)-(21)): "In her oral submissions, the respondent contended that there was no error of law and again, that the appeal had no prospects of success. As I indicated, the relevant test is whether the appellant has an arguable case. I am satisfied by reading the grounds of appeal that the questions raised or the grounds of appeal are arguable and I do not accept the submission of the respondent that they are patently without any merit." 1. Ground 6 (Tcpt, 25 October 2024, pp 6(13)-7(30); 8(25)-(39); 9(18)-(48)): "SENIOR MEMBER BLAKE: All right. Those directions will be made. Now. just pardon me a moment. So Ms Mattes, you are applying for a continuation of the stay made on 15 October, is that correct? MATTES: Yes, we are. SENIOR MEMBER BLAKE: Do you have any evidence, as opposed to submissions, in support of the application? MATTES: There's no specific evidence. We simply say that to require compliance with order 2 which requires provision of the documents which are in issue to FZK would have the effect of rendering any appeal-- SENIOR MEMBER BLAKE: No, no, that seems to me to a submission, not evidence. I'm just directing your attention - is there any evidence? MATTES: No, there is not. SENIOR MEMBER BLAKE: Right. FZK, do you have any evidence in opposition to the continuation of the stay application? RESPONDENT: Yes, they are just on the face of the records, whatever sequence-- SENIOR MEMBER BLAKE: Well, FZK, I don't know what you mean by that. A direction was made on 15 October that you lodge with the Tribunal and serve on the other party any evidence and submissions in opposition to the application. I'm asking you have you lodged any evidence in opposition to the continuation of the stay application in compliance with the orders made on 15 October? RESPONDENT: Can I provide a response to your question and you do not interrupt me because seeing that I can - there is a pattern that you always interrupt me. I think this recording can be the evidence, so let me just for once finish my sentence before you speak. Can we do that please? SENIOR MEMBER BLAKE: Well, you can just, firstly, answer my question, FZK. RESPONDENT: Because the question itself is problematic. Let me explain for that. This is the appellant's application. They have the onus to provide evidence, so your question whether I have evidence or not itself is problematic because I don't have the burden of proof to provide evidence, therefore - let me finish - therefore I don't know how to even answer that problematic question. That's the first. Second, when the appellant has not provided any evidence - they already admit that, there is no evidence, it is just by default I will have the default dismissal for the State, however I'm happy to provide submissions on the face of the record as evidence and seemingly, you're not happy with that but I'm going to make that submission as the evidence or equivalent to the evidence you expect for that. Would you allow me to make that submission? SENIOR MEMBER BLAKE: You can make whatever submission you like, FZK, that's relevant. I'll rule on it. RESPONDENT: Okay, so since there's no evidence and the Tribunal - the appeal panel is required for any stay to do a preliminary assessment on face of the record(?), that's whether there is a real prospect of success-- SENIOR MEMBER BLAKE: FZK, you are not answering my question. You are making submissions. My question is are you seeking to rely on any evidence? The answer is either yes or no. Can you please answer the question? RESPONDENT: My answer is the question itself is wrong. SENIOR MEMBER BLAKE: Okay. FZK. I've asked her whether she seeks to rely on any evidence. She says the question is wrong. I take that that the answer is no, so I will proceed with the stay application. … … RESPONDENT: Okay. Look, can I ask one question in relation to the evidence because I think it's important? Can the Tribunal tell me why do I need to provide evidence for-- SENIOR MEMBER BLAKE: FZK, you have an opportunity on a stay application, if you oppose it, to provide evidence. You were given that opportunity and the answer, while you were not prepared to answer my question, I take it from what you said that the answer was no. RESPONDENT: No, that's misinterpretation because my question is why do you even ask me for evidence? SENIOR MEMBER BLAKE: FZK, I don't give you legal advice. I decide applications and you were given an opportunity by the directions made on 15 October to provide evidence in opposition to the stay application. … … RESPONDENT: Of course, yes. Look I think now I do have evidence but if you allow me to file it afterwards but that evidence is very easy to describe now when I-- PRINCIPAL MEMBER BLAKE: FZK-- RESPONDENT: Because-- PRINCIPAL MEMBER BLAKE: I don't have the evidence. RESPONDENT: Yeah, I know you don't have it but now when the tribunal insists that I have to provide evidence-- PRINCIPAL MEMBER BLAKE: FZK, there was no insistence at all. You were given an opportunity to provide evidence and you haven't. RESPONDENT: Okay. Can I provide now or you just say no? It's okay, I can describe it in my oral submission. PRINCIPAL MEMBER BLAKE: FZK, there is no use describing evidence, I either have it or I don't. I need to deal with this application today. If you wish to - if hypothetically I continue the stay you can apply at any time that it be lifted but I have to deal with it today because it expires at 5pm. RESPONDENT: Okay, yeah look, I'm going to just put in my submission and if the appellants deny that it's a fact I can provide evidence, how is that? PRINCIPAL MEMBER BLAKE: No, no, FZK, I'm dealing with this today. You were given an opportunity to provide evidence and you haven't and so I'm proceeding to deal with the stay application on the basis of the submissions of the parties. …" 1. Ground 7 (25 October 2024 Decision, p 4(12)-(18)): "Ms Mattes, is there any application for costs in respect of the stay application? I take it no. MATTES: No Principal Member, no. SENIOR MEMBER BLAKE: I will make an order that there is no order as to the costs of the stay application Thank you for your attendance, that concludes the callover and the stay application." 1. Ground 8 (Tcpt, 25 October 2024, pp 12(43); 14(10)): "SENIOR MEMBER BLAKE: I'll give my decision." … "SENIOR MEMBER BLAKE: I will give my decision. FOR DECISION SEE SEPARATE TRANSCRIPT"

General comments

1. I infer from the 28 October 2024 FZK Complaint that FZK asserts that I had prejudged or would prejudge the FZK Summary Dismissal Application, or there is a real likelihood that a reasonable observer might reach that conclusion.
2. FZK made no attempt to establish the three distinct elements for a finding of actual bias on my part as outlined in Reid at [71]. In this absence of this proof, I reject the grounds of the FZK Recusal Application so far as they are based on actual bias.
3. Similarly, FZK made no attempt to establish the second step for a finding of apprehended bias as outlined in FZK v DCS at [138]. She did not identify the connection between the facts and circumstances alleged to give rise to the apprehension of bias and the asserted conclusion that I might not bring an impartial mind to bear in determining the FZK Summary Dismissal Application. In this absence of this proof, I reject the grounds of the FZK Recusal Application so far as they are based on apprehended bias.
4. The comments of Schmidt AJ in Seek Justice Pty Ltd v State of New South Wales (No 2) [2024] NSWSC 1410 at [34] apply equally to the FZK Recusal Application: "... But the bare assertion that a judge is biased, when a litigant disagrees with a decision made or step taken at a hearing, cannot of itself establish the existence of bias warranting recusal, no matter how strongly the litigant's opinion might be held."

Ground 1

1. I am satisfied that the fair-minded lay observer would understand that the degree of urgency and nature of matters in dispute meant that it was not practicable to give prior notice of the NSLHD Stay Application to FZK before I made the interim stay order. The date for compliance by NSLHD with order 2 of the 1 October 2024 orders was 15 October 2024, and the Notice of Appeal and the NSLHD Stay Application was lodged on that date. The operation of the interim stay order was limited to a period of ten days. The granting of the interim stay order does not demonstrate any prejudgment on my part in favour of NSLHD or a real likelihood that a reasonable observer might reach that conclusion.

Ground 2

1. FZK did not cite any statutory provision or authority for the proposition that the Tribunal is required to determine an application for summary dismissal of an appeal or an application for continuation of an interim stay before procedural orders are made for the hearing of the appeal. As is clear from the 25 October 2024 Transcript, FZK had not made an application for summary dismissal of the Appeal as at 25 October 2024. It follows that FZK has not demonstrated a failure on my part to perform the responsibility of upholding the law specified in cl 6 of the NCAT Member Code of Conduct. The making of procedural orders for the hearing of the appeal prior to the hearing of the NSLHD Stay Application does not demonstrate any prejudgment on my part in favour of NSLHD or a real likelihood that a reasonable observer might reach that conclusion.

Ground 3

1. FZK did not cite any statutory provision or authority for the proposition that the rules of natural justice with respect to bias prevent the Tribunal from summarising the issues that will arise for determination in the appeal. I had already found that the grounds of appeal of NSLHD were arguable. My impugned conduct of then summarising the issues to be determined on the appeal does not demonstrate any prejudgment on my part in favour of NSLHD or a real likelihood that a reasonable observer might reach that conclusion.

Ground 4

1. FZK did not cite any statutory provision or authority for the proposition that the Tribunal can only grant a stay of a decision under appeal where the party seeking the stay adduces evidence. In the Appeal there was no need for NSLHD to demonstrate by evidence that the information in order 2 of the 1 October 2024 orders which NSLHD contends is personal information of third parties and entitled to protection from disclosure to FZK would be revealed if the documents were disclosed to the respondent. This was self-evident from the nature of the information. The provision of unredacted documents to FZK would necessarily render the Appeal nugatory because the protection from disclosure which NSLHD seeks to uphold would be lost. The making of the order continuing the interim stay order until the determination of the Appeal or the earlier order of the Tribunal does not demonstrate any prejudgment on my part in favour of NSLHD or a real likelihood that a reasonable observer might reach that conclusion.

Ground 5

1. FZK did not demonstrate that I failed to consider each of her submissions as to why an interim stay should not be continued. It is an established principle that not every submission or piece of evidence put forward by the parties must be referred to, but "central controversies" put up for resolution by the parties must be dealt with: Meacham v Commissioner of Police [2020] NSWCATAP 107 at [35]. The submissions of FZK were essentially conclusory in nature, and did not involve any real analysis of grounds of appeal 1 to 7, and leave to appeal grounds 4 and 5, of the Notice of Appeal. In those circumstances, my failure to separately consider each of FZK's submissions does not demonstrate any prejudgment on my part in favour of NSLHD or a real likelihood that a reasonable observer might reach that conclusion.

Ground 6

1. I am satisfied that the fair-minded lay observer would understand that the Tribunal asking parties as to whether they were adducing evidence on a stay application accords with the normal practice of the Tribunal as well the fulfilment of the obligation in s 38(6)(a) of the NCAT Act to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings. The refusal of FZK to answer my question as to whether she was adducing evidence on the NSLHD Stay Application meant I had to proceed on the basis that she had no evidence. My question of FZK as to whether she was adducing evidence on the NSLHD Stay Application and treatment of her refusal to answer my question as a negative answer does not demonstrate any prejudgment on my part in favour of NSLHD or a real likelihood that a reasonable observer might reach that conclusion.
2. FZK's submission that I committed an offence under s 249L of the Crimes Act is misconceived. This section contains a definition of "unwarranted demands" for the purpose of the offence of blackmail in s 249K of the Crimes Act. As a fair reading of 25 October 2024 Transcript indicates I made no unwarranted demand of FZK. I reject the submission of FZK that in performing an unexceptional aspect of the role of a Tribunal member as required by s 38(6)(a) of the NCAT Act I committed any criminal offence.

Ground 7

1. I am satisfied that the fair-minded lay observer would understand that the Tribunal asking a successful party as to whether it was making an application for costs accords with the normal practice of the Tribunal as well the fulfilment of the guiding principle in s 36(1 and (2)(a) of the NCAT Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings when exercising any power under the NCAT Act. My asking of the question of Ms Mattes whether NSLHD was making an application for the costs of the NSLHD Stay Application does not demonstrate any prejudgment on my part in favour of NSLHD or a real likelihood that a reasonable observer might reach that conclusion.
2. FZK's submission that I committed an offence under s 545B of the Crimes Act is misconceived. As a fair reading of 25 October 2024 Decision indicates, by asking of the question of Ms Mattes I was not seeking to intimidate FZK. I reject the submission of FZK that in performing an unexceptional aspect of the role of a Tribunal member as required by s 36(1 and (2)(a) of the NCAT Act I committed any criminal offence.

Ground 8

1. Neither the 25 October 2024 Transcript nor the 25 October 2024 Decision indicates I refused to provide written reasons. On the contrary, a fair reading of the 25 October 2024 Transcript indicates that I decided to give oral reasons for my decision. The giving of oral reasons on the NSLHD Stay Application does not demonstrate any prejudgment on my part in favour of NSLHD or a real likelihood that a reasonable observer might reach that conclusion.

Introduction

1. Before considering the FZK Summary Dismissal Application, it is appropriate to set out the applicable statutory provisions and legal principles and the evidence of FZK, and summarise the submissions of the parties.

NCAT Act

1. Section 55 of the NCAT Act deals with the dismissal of proceedings, and relevantly provides: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - … (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, …

The summary dismissal of proceedings

1. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 141 at [7]-[10], the Appeal Panel explained the principles to be applied where there is an application for summary dismissal of an appeal under s 55(1)(b) of the NCAT Act: "[7] The parties agreed as to the relevant principles for summary dismissal under s 55 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act), set out in the respondent's submissions on the application at [5] to [10]: "5. Section 55(1)(b) of the Act relevantly provides that: 55 Dismissal of proceedings The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - … (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance. 6. The Tribunal's power to dismiss proceedings at any stage under the Act is discretionary: Zeitoune v Commissioner of Police, NSW Police Force [2024] NSWCATOD 59, [18]. The principles pertaining to s.55(1)(b) were set out at length in BDK v Department of Education and Communities [2015] NSWCATAP 129 at [57]-[75], and have since been cited with approval: see e.g. Davis v NSW Minister for Health [2023] NSWCATAP 211; Zeitoune v Commissioner of Police, NSW Police Force [2024] NSWCATOD 59, [20]. 7. Unlike, for example, the Uniform Civil Procedure Rules 2005 (NSW), s 55(1)(b) of the Act does not have a generic catch-all category of 'abuse of process' to pick up conduct in relation to the issuance and pursuit of proceedings that might, arguably, fall outside the four specific categories set out there: BDK at [62]. 7. Notwithstanding this, as the Appeal Panel in BDK held at [66] that: "In our view a reasonably broad connotation should be given to the meaning of the four categories of conduct identified by s 55(1)(b). The intent of the provision, as we see it, is to seek to give the Tribunal a broad power to deal with abuses of its processes, and for them to be interpreted and applied in a power which captures any kind of abuse of process, that can reasonably be seen to fall within their compass. While 'misconceived' and 'lacking in substance' may be seen as relatively specific terms, we think a flexible, purposive interpretation can be adopted in determining whether proceedings are frivolous' or 'vexatious', conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings." 9. This broad interpretation was followed by the Appeal Panel in Davis where it was held at [53] that: "We agree with the view expressed by the Appeal Panel in BDK that a "reasonably broad connotation" should be given to the meaning of each of the four categories of proceedings listed in s 55(1)(b) of the NCAT Act. Ms Davis is correct that the phrase "lacking in substance" can mean proceedings where it is found that the initiating claim or application is based on an "untenable proposition of fact or law" or "is not reasonably arguable". However, there is nothing in the text, context or purpose of s 55(1)(b) of the NCAT Act to suggest that these are the only findings which might justify the conclusion that the proceedings are lacking in substance. A range of findings could potentially justify a conclusion that proceedings are "lacking in substance", including that the proceedings "would be of no practical effect", or that the initiating application was based on an "untenable proposition of fact or law" or was "not reasonably arguable". Equally, a range of findings could potentially justify a conclusion that proceedings are "vexatious", "frivolous" or "misconceived" (see, e.g., the analysis of Roden J about the term vexatious in Attorney General v Wentworth at 491)." 10. Section 55(1)(b) of the Act empowers the Tribunal to govern its own processes, to ensure that its processes are not abused and to ensure that its resources are applied to resolving real, not confected, amorphous or nebulous disputes. BDK at [62]." [8] To those principles, though, I would add what was said in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 by Barwick CJ at p 129 where his Honour said: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that is to be the ground on which the Court is invited, as it is in this case, to exercise its powers of summary dismissal, is clearly demonstrated. The test to be applied has been variously expressed as so obviously untenable that it cannot possibly succeed, manifestly groundless, so manifestly faulty that it does not admit of argument, discloses a case of which the Court is satisfied cannot succeed, under no possibility can there be a good cause of action, be manifest for that to allow the pleadings to stand would involve useless expense." [9] In accordance with the High Court's decision in Spencer v Commonwealth (2010) 241 CLR 118 (Spencer), it is clear (despite the fact that was a decision referring to s 31(a)(2) of the Federal Court Act) that analogous considerations apply here; which are that on a summary judgment application the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded, and the critical question can be expressed as whether there is more than a fanciful prospect of success or whether the outcome is so certain that it would be an abuse of the process of the Court to allow the action to go forward. Demonstration of the outcome of litigation is required, not an assessment of the prospects of success: Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 at [192], citing Spencer. [10] The Court also noted that the power to terminate proceedings summarily must be exercised with exceptional caution."

Proceedings commenced by the Crown Solicitor

1. In FZK v DCS, the current Crown Solicitor, Karen Smith, was the solicitor on the record for the respondent. Mr Allchurch, who appeared in the hearing of this appeal, was an employed solicitor in the Crown Solicitor's Office. The appellant applied for interlocutory orders for the Appeal Panel to reject the respondent's submissions and for the respondent to refile submissions signed by the Crown Solicitor herself. The Appeal Panel dismissed the application, and at [39] and [41]-[44] relevantly made the following findings: "[39] The Crown Solicitor was also the solicitor on the record for the respondent in the proceedings in the Tribunal. The Crown Solicitor may, in her official capacity, act as solicitor for a body established by an Act or other law of New South Wales: Legal Profession Uniform Law Application Act 2014 (NSW), s 44(1)(d). The respondent is such a body because it is a Government Department established by statute: GSE Act, s 22 and Sch 1, Pt 1." "[41] The appellant then makes serious allegations concerning the submissions, including that they are a "false document" and the alteration of the submissions constitutes a forgery under the Crimes Act 1900 (NSW). The appellant points to no evidence to support these serious allegations other than her own reading of the document. In oral submissions, the appellant also submitted that it was important to know the lawyer with carriage of the appeal for the respondent, if questions arise in the future concerning the conduct of the appeal. [42] It is obvious from the signature block that Mr Allchurch signed the respondent's submissions in this appeal for the Crown Solicitor, in his capacity as an employed solicitor of the Crown Solicitor's Office. The signature block indicates the document is filed by "Karen Smith, Crown Solicitor, Solicitor for the respondent". The signature is prefaced by the words "Signed in my capacity as a solicitor employed in the office of the said Karen Smith". After the signature, Mr Allchurch's email is listed and "Tom Allchurch" is also listed along with a reference number next to "Ref". Although Mr Allchurch's name is not printed in full immediately under the signature, it is clear that he signed the document on behalf of the Crown Solicitor. [43] The Appeal Panel rejects the appellant's submission that it is unclear as to the identity of the lawyer who has responsibility for the conduct of the respondent's case in this appeal. The Crown Solicitor heads the Crown Solicitor's Office in which Mr Allchurch is employed as a solicitor: GSE Act, Sch 1, Pt 2. It has been accepted practice over many years for the Crown Solicitor to represent clients in legal proceedings with the assistance of employed solicitors in the Crown Solicitor's Office even though the Crown Solicitor is the solicitor on the record for the proceedings. As the solicitor on the record for the respondent in this appeal, the Crown Solicitor is ultimately responsible for the conduct of the respondent's case in the appeal even though day-to-day work may be delegated to employed solicitors in her office: Kelly v Jowett (2009) 76 NSWLR 405; [2009] NSWCA 278 at [96] (Barrett J). [44] The respondent's submissions are neither false nor fraudulent. The appellant's application for interlocutory orders concerning those submissions is dismissed."

The evidence of FZK

1. In the 28 October 2024 FZK Affidavit FZK has given the following evidence: "1 I am the Respondent 2 On 15/10/2024, I received the Appellant's Notice of Appeal and noticed it is not signed by Karen Smith, the legal representative named in the form. 3 Further, the signature section of NCAT form has been deleted and replaced with a signature block. 4 The signature block looks like official Crown Solicitor Office's signature block but the 'name' entry has been deleted. 5 Therefore, it is unclear who signed the form because there is no name in the altered signature section. 6 The Appellant admits the third parties in the disputed information are known to me, therefore, the disclosure will not reveal any unknown personal information. 7 The Appellant also admits the rest of the disputed information are third parties providing information about me, therefore, they are my personal information, not the third parties' personal information. 8 Further, the disputed information are full page redactions. It is illogical there could be full pages of third parties' personal information in my medical records."

The NSLHD Submissions

1. In the NSLHD Submissions, NSLHD has made the following submissions: 1. as to the allegation that Notice of Appeal is a "false document": 1. the Notice of Appeal names Karen Smith, the Crown Solicitor of NSW as the solicitor on the record, and has been signed by her employed solicitor, Ms Mattes. There is no irregularity arising from this, which reflects the conventional arrangements for documents in which the Crown Solicitor is the solicitor on the record; 2. there is absolutely no basis for FZK's very serious allegation that the Appellant has filed a false document or a forgery. Notably the Appeal Panel has previously rejected analogous arguments made by FZK in FZK v DCS at [37j-[44]; 1. as to the FZK Summary Dismissal Application: 1. FZK has not demonstrated that the Notice of Appeal is relevantly "misconceived", "lacking in substance", frivolous" or "vexatious" so as to warrant its summary dismissal in reliance on s 55(1)(b) of the NCAT Act; 2. it refers to the legal principles applicable to s 55(1)(b) of the NCAT Act; 3. the matters raised by FZK in the FZK Summary Dismissal Application are arguments that may properly be made in response to the grounds of appeal in responding to the appeal, both in her Response to Appeal and in submissions in the substantive hearing. They fall far short of establishing that the Appellant's grounds of appeal misunderstand legal principles or are so "untenable" as to be misconceived or lacking in substance; 4. nor do the matters raised by FZK support a finding that the appeal is relevantly frivolous or vexatious. In particular, NSLHD rejects, in the strongest terms, the allegation that the proceedings have been brought for the collateral purpose of "gain[ing] a respite against immediate execution of the decision".

The FZK Reply Submissions

1. In the FZK Reply Submissions, FZK has made the following submissions: 1. NSLHD's submissions as to the allegation that Notice of Appeal is a "false document" are irrelevant and without evidential support: 1. whether it is "conventional arrangements within the Crown Solicitor's Office does not change the fact NCAT's form has been altered and name entry has been deleted, an act of forgery and the document is a false document"; 2. NSLHD has not provided a specific response as to why altering NCAT's form and deleting name entry are not forgery; 3. NSLHD failed to file affidavit in opposition; 1. NSLHD's submissions as to as to the FZK Summary Dismissal Application are irrelevant and without evidential support: 1. NSLHD has not provided a specific response as to why information about her is not her personal information, it would 'reveal', when the third parties are known to her, and legal experts are qualified to determine medical opinions risk of harm; 2. NSLHD has not provided a specific response as to why grounds 1 to 3 are questions of law and not questions of fact, and it is not vexatious when it admits NSW Health Privacy Manual for Health Information is mandatory but claimed the Tribunal below erred in applying the Manual in grounds 4 to 7; 3. "the relevant legal principles for so 'untenable' is on the face of the record, not whether for substantive or interlocutory"; 4. NSLHD has not provided a specific response as to why "appeal on grounds, that it has already admitted to the contrary, is not vexatious".

The Notice of Appeal

1. FZK has not explained how the power of the Tribunal under s 55(1)(b) of the NCAT Act is engaged in circumstances where a person commits an offence under s 253 and s 254 of the Crimes Act by making and using a false document within s 250(1)(f), namely signing and lodging the Notice of Appeal.
2. However, at a more fundamental level the Tribunal does not have any jurisdiction to determine whether a person has committed a criminal offence. Further, even if the Tribunal is able to consider whether an offence under s 253 and s 254 of the Crimes Act has been committed by a person by signing and lodging the Notice of Appeal, FZK has not established elements of these offences on the basis of the evidence in the 28 October 2024 FZK Affidavit at [2] to [5]. While FZK contends that the NSLHD Submissions are irrelevant and without evidential support, she has not discharged the onus of establishing these offences.
3. The allegations of FZK are serious and misconceived. I am satisfied that the findings in FZK v DCS at [39] and [41]-[44] with respect to similar allegations made by FZK in relation to a document signed by a different solicitor employed at the Crown Solicitor's Office are equally applicable to the Notice of Appeal signed by Ms Mattes on behalf of the Crown Solicitor.
4. I am not satisfied that FZK has established that Ms Mattes completed and signed the Notice of Appeal without the authority of the Crown Solicitor. Her submissions that the NSLHD Submissions are irrelevant and without evidential support fail to grapple with the fact that she has the onus of establishing a basis for the summary dismissal of the appeal. She has failed to discharge this onus on account of her allegations as to the signing and lodging the Notice of Appeal.
5. For these reasons the FZK Summary Dismissal Application should be dismissed so far as FZK alleges "The Notice of Appeal is a false document, even if it is amended".

The FZK Summary Dismissal Application

1. I am not satisfied that FZK has established that the grounds of appeal in the Notice of Appeal are not reasonably arguable and it is appropriate to summarily dismiss the Appeal for the following reasons: 1. the submission of FZK in the FZK Reply Submissions that NSLHD has not provided a specific response as to why grounds 1 to 3 are questions of law and grounds 4 to 7 are not vexatious when it admits NSW Health Privacy Manual for Health Information is mandatory but claimed the Tribunal below erred in applying the Manual seeks to reverse the onus of proof for a summary dismissal application; 2. the principles applied to determine whether an appeal is made on a question of law within s 80(2)(b) are explained by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25]-[40]. While each of grounds 1 to 7 do not in their terms raise a question, it is premature to make a determination of whether they raise a question of law in the absence of argument. As the recent decision of the Appeal Panel in Narraport Woollahra Holdings Pty Ltd v Ice Box Liquor Pty Ltd [2024] NSWCATAP 240 (Narraport) determines at [238]-[242] and [249]-[254], grounds of appeal which are not expressed as a question may raise a question of law. 3. even if I assume in favour of FZK that grounds 1 to 7 do not raise a question of law, FZH has not demonstrated that there is no basis on which leave to appeal could not be granted against order 2 of the 1 October 2024 orders. Further, in Narraport at [110]-[111] and [227]-[230], the Appeal Panel held that where a ground of appeal did not raise a question of law it was necessary to determine whether leave to appeal should be grant in respect of that ground.
2. For these reasons the FZK Summary Dismissal Application should be dismissed so far as FZK alleges "The appeal grounds are lacking of substance and vexatious" and "The reasons for leave are false, without evidential support, and misconceived".

Orders

1. I make the following orders: 1. The Application of the Respondent that I recuse myself made on 19 November 2024 is dismissed. 2. The Application for Summary Dismissal of Appellant's Appeal lodged by the Respondent on 1 November 2024 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 December 2024