Raffoul v Wong

1. On 28 October 2024, the Tribunal constituted by Senior Member Dr K George made consent orders including by order 1(i) "The tenancy will be terminated on or before 25 January 2025 and the tenants will provide vacant possession by that date" (the 28 October 2024 CCD orders).
2. On 10 February 2025, the Tribunal constituted by Principal Member S De Jersey made orders staying the issue of a warrant for possession until further order, and procedural orders in relation to the hearing of the Appellants' Stay Application lodged on 7 February 2025 (the 7 February 2025 CCD Stay Application).
3. On 20 February 2025, the Tribunal constituted by General Member S Corley dismissed the 7 February 2025 CCD Stay Application.

The 2024/00450461 CCD proceedings - the substantive decision

1. On 23 December 2024, the Tribunal constituted by General Member P Jammy made termination and possession orders in which the order for possession was suspended until 18 January 2025, an order for the payment of an occupation fee of $95.00 from 24 December 2024 until vacant possession, and an order for the payment of $1,830 by way of rent arrears by 18 January 2025 (the 23 December 2024 CCD orders).

1. On 6 January 2025, the Appellants commenced the first AP proceedings by lodging a Notice of Appeal and a Stay Application against the 23 December 2024 CCD orders (the 6 January 2025 AP Stay Application).
2. On 21 January 2025, the Appeal Panel constituted by myself dismissed the 6 January 2025 AP Stay Application and gave oral reasons for my decision, which were subsequently transcribed and sent to the parties (the 21 January 2025 AP Decision).
3. On 21 March 2025, the Appeal Panel refused leave to appeal and dismissed the appeal: Raffoul v Wong [2025] NSWCATAP 56.

1. On 25 February 2025, the Appellants commenced the second AP proceedings by lodging a Notice of Appeal and a Stay Application against the 28 October 2024 CCD orders (the 25 February 2025 AP Stay Application).
2. On 27 February 2025, the Appeal Panel constituted by myself made orders for the Call Over and hearing of the 25 February 2025 AP Stay Application on 5 March 2025 at 11:30 AM, for the lodgement and service of evidence and submissions for the 25 February 2025 AP Stay Application by the Appellants by 3 March 2025 and by the Respondents by 4 March 2025, and refusing an ex parte interim stay (the 27 February 2025 AP Decision).
3. On 5 March 2025, the Appeal Panel constituted by myself dismissed the 25 February 2025 AP Stay Application and gave oral reasons for my decision (the 5 March 2025 AP Decision).
4. On 4 June 2025, the Appeal Panel dismissed the appeal because the Appellants failed to appear.

The 2024/00450461 CCD proceedings - the ancillary decision

1. On 19 June 2025, the Tribunal constituted by General Member R Stevens made orders, including by order 3 that the Appellants pay $3,460 to the Respondents on or before 25 June 2025 being the balance of the occupation fee from 24 December 2024 to 28 February 2025 (the 19 June 2025 CCD Orders), and relevantly provided the following reasons:

"I note that the order made on 23 December 2024 provided for a money order in the amount of $1,830.00 for rental arrears up to and including that date, and an occupation fee of $95.00 from 24 December 2024 to the date of vacant possession which I have found to be 28 February 2025, inclusive, being a total of 67 days.

I find that the total occupation fee payable by the tenant to the landlord is $6,365.00.

I have considered the evidence of both the landlord and the tenant in relation to payments made towards rent and occupation fees. This evidence included tables prepared by both parties and bank statements provided by the tenant.

I find that subsequent to the money order being made by the Tribunal on 23 December 2024, the following payments were made by the tenant:

7/01/2025 Bank transfer $1,045.00

9/01/2025 Bank transfer $500.00

17/01/2025 Bank transfer $855.00

1/02/2025 Bank transfer $735.00

20/03/2025 Bond $1,600.00

TOTAL $4,735.00

I find that the first $1,830.00 of these payments were applied to the outstanding money order for rental arrears.

Subtracting $1,830.00 from the $4,735.00 paid by the tenant and applying the balance to the occupation fee, I find that the tenant made payments in the amount of $2,905.00 towards the occupation fee of $6,365.00.

Accordingly I find that an amount of $3,460.00 occupation fee is owed by the tenant to the landlord."

1. On 1 July 2025, the Tribunal constituted by General Member J Alder relevantly ordered a stay of order 3 of the 19 June 2025 CCD orders until further order of the Tribunal (the 1 July 2025 CCD Stay Order).
2. On 11 July 2025, the Tribunal constituted by Senior Member S Hennings made orders dismissing the application of the Appellants to set aside the 19 June 2025 CCD Orders, lifting the 1 July 2025 CCD Stay Order and confirming order 3 of the 19 June 2025 CCD Orders remained in full force and effect (the 11 July 2025 CCD Orders).

1. On 17 July 2025, the Appellants commenced these proceedings against the Respondents by lodging a Notice of Appeal against the 11 July 2025 CCD Orders and a Stay Application seeking a stay of the 11 July 2025 CCD Orders (the 17 July 2025 AP Stay Application).
2. On 18 July 2025, the Appeal Panel constituted by myself made orders for the Call Over and hearing of the 17 July 2025 AP Stay Application on 30 July 2025 at 2:15 PM, for the lodgement and service of evidence and submissions for the 17 July 2025 AP Stay Application by the Appellants by 23 July 2025 and by the Respondents by 29 July 2025, refusing an ex parte interim stay, and advising of the need for the Appellants to address "the amount that they contend is owing to the Respondents and how that amount has been calculated".
3. On 21 July 2025 at 8:41 PM, the Appellant Marie Raffoul sent an email to the Appeal Registry seeking the following orders (the 21 July 2025 Raffoul Application):

"Bringing forward the Respondents' submission deadline, or alternatively,

Allowing us an opportunity to respond on the day of the hearing or to seek an adjournment if necessary."

1. On 22 July 2025, the Appellants lodged an Application for miscellaneous matters (the 22 July 2025 Raffoul Application):

"I request that Principal Member Blake be Disqualified from presiding over any future proceedings relating to this matter and that a different Tribunal Member be appointed.

This application is made under Section 42 of the Civil and Administrative Tribunal Act 2013 (NSW), on the grounds of apprehended bias and inappropriate conduct."

"I am seeking the disqualification of Principal Member Blake due to repeated conduct during NCAT proceedings that I believe has been discriminatory and sexist toward both myself and my mother, Ms Mariam Raffoul.

Between January and March 2025, Principal Blake made remarks and decisions that demonstrated bias, dismissed or ignored critical medical and legal documentation, and treated us with visible disrespect compared to the opposing party.

His conduct has caused us emotional distress, further disadvantage in our proceedings, and a loss of confidence in the fairness of the Tribunal. I believe continuing with Principal Blake would amount to a denial of procedural fairness

have formally raised these issues with the NCAT Appeal Panel and intend to submit a complaint to the NSW Anti -Discrimination Board."

1. On 23 July 2025 at 12:10 PM, the Registrar sent an email to the parties requesting comments on the 21 July 2025 Raffoul Application by 12 noon on 24 July 2025 and whether or not they objected to a hearing being dispensed with.
2. On 23 July 2025 at 4:41 PM, the Respondent Eric Wong sent an email to the Appeal Registry in which he set out grounds for opposing the 21 July 2025 Raffoul Application.
3. On 24 July 2025 at 2:50 AM, the Appellant Marie Raffoul sent an email to the Appeal Registry in which she attached the Appellants' Submissions in support of the 17 July 2025 AP Stay Application. In substance, she contends that the rental arrears were paid on 9 January 2025, and the unpaid occupation fee is $2,700.00.
4. On 24 July 2025 at 9:46 AM, the Respondent Eric Wong sent an email to the Appeal Registry in which he set out further grounds for opposing the 21 July 2025 Raffoul Application (the 24 July 2025 at 9:46 AM Wong Email).
5. On 24 July 2025 at 11:37 AM, the Appellant Marie Raffoul sent an email to the Appeal Registry in which she responded to the 24 July 2025 at 9:46 AM Wong Email.
6. On 24 July 2025 at 12:10 PM, the Registrar sent an email to the parties requesting comments on the 22 July 2025 Raffoul Application by 12 PM on 25 July 2025 and whether or not they objected to a hearing being dispensed with.
7. On 25 July 2025 at 6:55 AM, the Appellant Marie Raffoul sent an email to the Appeal Registry (the 25 July 2025 at 6:55 AM Raffoul Email):

"...

We confirm the following:

1. We rely on the information already provided in the application form and now attach supporting material that substantiates the grounds for our request, including

o Examples of comments and decisions made by Principal Blake that we believe demonstrate bias;

o Evidence of medical and legal documentation that was overlooked or dismissed;

o Correspondence raising these concerns with the NCAT Appeal Panel;

2. We respectfully request that the Tribunal give due consideration to the serious concerns raised, particularly the perception of bias, denial of procedural fairness, and the impact of the Member's conduct on our trust in the impartiality of the Tribunal

..."

(2) in which she attached a document in which she relevantly states:

"21 January 2025 - Stay Application Denied by Principal Member Appeal Panel file no: 005791

During this hearing, Principal Member Blake denied our stay request.

He incorrectly assumed that the orders made on 28 October 2024 (File 283933) were still active.

However, he acknowledged in his own written submission that the 23 December 2024 hearing under File 450461 had superseded the October orders, with a new eviction date of 18 January 2025.

Yet, he also stated that we were to be evicted under the 28 October orders on 25 January 2025, which creates a direct contradiction:

How can a person be evicted twice under two separate orders with two different dates?

Despite knowing the truth, the Principal Member still used the outdated 28 October 2024 orders as the reason for denying the stay.

When I tried to explain this inconsistency, he interrupted me, refused to allow me to finish, and even threatened to hang up the call.

We believe this decision was discriminatory, biased, and sexist, as it clearly favoured the landlord and ignored procedural facts."

(3) in which she attached an extract of the 21 January 2025 Decision which contains highlighted text;

(4) in which she attached a document headed "Subject: Formal Complaint and Request for Urgent Review - Procedural Unfairness & Discrimination" in which she relevantly states:

"...

2. Allegations of Prejudice and Discrimination

The consistent disregard for the applicants' rights and evidence, as well as the scheduling of a Stay hearing after an eviction date, raises concerns that go beyond mere procedural oversight.

It is difficult to view this as anything other than a deliberate act of prejudice, if not outright discrimination. Given that the applicants are women and considering the broader systemic issues that exist within legal and administrative frameworks, I am left questioning whether gender bias or racial prejudice has played a role in this decision-making process.

..."

1. On 25 July 2025 at 11:26 AM, the Respondent Eric Wong sent an email to the Appeal Registry in which he set out grounds for opposing the 22 July 2025 Raffoul Application.
2. On 27 July 2025 at 2:47 AM, the Appellant Marie Raffoul sent an email to the Appeal Registry (the 27 July 2025 at 2:47 AM Raffoul Email):

"...

As noted in my prior email sent on 25 July 2025, I had already raised issues of discrimination previously - including in a submission dated 27 February 2025, and again on 3 March 2025 for the hearing on 5 March 2025. These included clear concerns about bias and unfair treatment.

In addition, while the landlord falsely claimed I provided no medical certificates, Principal Member Blake's written reasons confirm he received and acknowledged evidence of my injury. All documents had already been filed with the Tribunal on or around 14 January, 25 February, and 3 March 2025, and remain on record.

However, I have now also provided the complete written reasons dated 21 January 2025 by Principal Member Blake - not just extracts as previously submitted on 25 July. These full reasons are attached for clarity.

I also wish to point out that this issue is ongoing. Principal Member Blake has now refused my stay application on four separate occasions ** - 21 January, 27 February, 5 March**, and most recently again on 28 July 2025 - despite me providing valid and detailed grounds.

For example, my most recent claim related to being unable to attend a hearing due to [redacted].

...

This pattern of refusal to grant a stay, despite proper evidence, raises a serious concern. From any fair perspective, Principal Member Blake has demonstrated consistent bias and unfair treatment toward me.

..."

(2) in which she attached a document headed "Response to Landlord's Submission Opposing Disqualification Application (Principal Member Blake)" in which she relevantly states:

"...

2. Rebuttal to "No Evidence of Bias" Claim

Mr Wong suggests that there is "no evidence" of bias or discrimination by Principal Member Blake. With respect, this dismisses the very legal threshold under Section 42: a "reasonable apprehension" of bias is sufficient, as per Ebner v Official Trustee in Bankruptcy [2000] HCA 63.

Bias is not limited to explicit discriminatory remarks. It includes:

• The repeated dismissal of my applications without full consideration of supporting evidence;

• Refusal to grant adjournments or stays, even when supported by valid medical documentation;

• Failure to acknowledge submissions filed, including clear confusion between competing orders;

• Comments made during hearings that gave rise to a perception of partiality and impatience.

This creates not just a personal perception of unfairness, but undermines public confidence in the impartiality of proceedings - precisely what Section 42 is designed to safeguard against.

...

7. Relief Sought

I respectfully maintain my request that:

• Principal Member Blake be disqualified from presiding over future proceedings involving myself and my mother, pursuant to Section 42 of the Civil and Administrative Tribunal Act 2013;

..."

(3) in which she attached a document headed "Response to Landlord's Comments and Late Submission Request" in which she relevantly states:

"...

2. Reasons Why My Application Should Be Considered

My Miscellaneous Application raises very serious concerns about the conduct and reasoning of Principal Member Blake, including:

a) Conflicting Possession Dates - 18 Jan vs 25 Jan

In the written reasons dated 21 January 2025, Principal Member Blake acknowledges that General Member Jammy made fresh orders on 23 December 2024, requiring vacant possession by 18 January 2025. Despite this, he relied on older consent orders from 28 October 2024 that set the date at 25 January 2025, and he dismissed my stay application using the outdated date. As a Principal Member, he should have known that later orders override earlier ones, and two conflicting possession dates cannot legally coexist. This shows either a serious error of law or a deliberate misapplication.

b) Incorrect Evaluation of Rent and Occupation Fees

He states that I reduced my rent arrears to $1,100 and that my occupational fees were up to date as of 21 January 2025. This means I had already paid $2,660 in fees (665 x 4 weeks), showing I had cleared my rent arrears prior to 18 January 2025 - yet he claimed otherwise and ignored the legal effect of this under s 89(5) of the Act.

c) Dismissal of Medical and Humanitarian Concerns

He acknowledged my injury and financial difficulties but did not reference or properly consider my mother's medical evidence, despite the fact she is 70 years old, [redacted]. The Tribunal member disregarded these crucial facts.

d) Inappropriate Conduct and Disrespectful Tone

Throughout the hearing, Principal Member Blake was repeatedly dismissive and refused to allow clarification. For example, he stated, "No Ms Raffoul, you may not say anything," and "That is not any concern for me today." His treatment toward me, as a self-represented female carer, was significantly different to his treatment of the landlord.

3. Conclusion: Reasonable Apprehension of Bias

Principal Member Blake's written reasons confirm he knew the relevant facts and still refused the stay in a way that contradicts the law and basic fairness. The written reasons confirm bias, unfairness, and a pattern of conduct that undermines confidence in a fair hearing.

..."

Whether a hearing of the 21 July 2025 Raffoul Application and the 22 July 2025 Raffoul Application should be dispensed with

1. I am satisfied that that 21 July 2025 Raffoul Application and the 22 July 2025 Raffoul Application can be adequately determined in the absence of the parties by considering their evidence and written submissions. Accordingly, I have decided pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to make an order dispensing with a hearing of these Applications.

1. It is appropriate to deal with the 22 July 2025 Raffoul Application before dealing with the 21 July 2025 Raffoul Application. I have decided to make a non-publication order under s 64(1)(c) of the NCAT Act in respect of the redacted information in paragraph [28] above.
2. I do not accept that the Appeal Panel has power to hear and determine a recusal application under s 42 of the NCAT Act which deals with the service of documents outside the State of New South Wales. However, the Appeal Panel does have power to hear and determine a recusal application under s 32(2)(a) of the NCAT Act when, as here, it is exercising its internal appeal jurisdiction.
3. The Appellants have expressed the grounds of the 22 July 2025 Raffoul Application in different terms in their various communications to the Appeal Registry. The following convenient summary is found in the document headed "Response to Landlord's Submission Opposing Disqualification Application (Principal Member Blake)" which is attached to the 25 July 2025 at 6:55 AM Raffoul Email:

(1) "explicit discriminatory remarks";

(2) "The repeated dismissal of my applications without full consideration of supporting evidence";

(3) "Refusal to grant adjournments or stays, even when supported by valid medical documentation";

(4) "Failure to acknowledge submissions filed, including clear confusion between competing orders";

(5) "Comments made during hearings that gave rise to a perception of partiality and impatience".

1. Notwithstanding the terms of the 22 July 2025 Raffoul Application, when regard is paid to the Appellants' various communications to the Appeal Registry, I consider that the recusal application is made for both actual bias and apprehended bias on my part.
2. The principles with respect to actual bias and apprehended bias are set out by Seiden SC DCJ in FZK v Secretary, Department of Communities and Justice [2025] NSWCATAP 120 (FZK) at [17]-[34]. In this decision I have used the same abbreviations for authorities as used in FZK.
3. The principles with respect to apprehended bias include that unfavourable decisions against a party "are not, and can never be, without more sufficient to support or establish the existence or manifestation of an objective apprehension of bias": Dunstan v Orr [2022] FCA 1006 at [76] (Wigney J); citing Hamod v New South Wales (No 11) [2008] NSWSC 967 at [20] (Harrison J). This principle was expressed in the following terms by the New South Wales Court of Appeal (Gleeson and Stern JJA) in Mohareb v State of New South Wales (No 2) [2024] NSWCA 69 at [11] (citations omitted):

"... The mere fact that a judge has made an adverse decision or decisions against a party is not a sufficient reason for the judge to disqualify himself or herself from dealing with subsequent applications concerning the same party. That is the case even where, as here, the subsequent application is premised upon alleged "disregard, misrepresentation and/or deliberate misapprehension" of evidence or submissions, or of law or fact, on the part of the judge in the earlier decision which is said to be such that the orders were made "against good faith'. The test for apprehended bias is concerned with prejudice and partiality, not an individual litigant's expectations or predictions as to the outcome of a case."

1. The nature of the third AP proceedings is very different to the nature of the first and second AP proceedings. No issues of credit arose in the first and second AP proceedings and they do not arise in this appeal. There is no commonality of issues. Adopting the words of Garling J in Gillies v State of New South Wales (No 3) [2024] NSWSC 1058 at [84] (leave to appeal from which was refused: Gillies v State of New South Wales [2025] NSWCA 98), I do not accept that I am actually biased.

1. I do not consider that an objective assessment of the 25 July 2025 at 6:55 AM Raffoul Email and attached documents, and the 27 July 2025 at 2:47 AM Raffoul Email and attached documents, demonstrates that I am so committed to a conclusion already formed in this appeal as to be incapable of alteration, whatever evidence or arguments may be presented. The evidence presented by the Appellants does not demonstrate either "gender bias" or "racial prejudice".

1. Having regard to the three steps identified by Hayne J in Jia Legeng, the Appellants' allegations fail in relation to all three steps. They do not demonstrate that I have an opinion on a relevant aspect of the matter in issue in the appeal, I would apply that opinion to the matter in issue, and that I would do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case.
2. For these reasons, the 22 July 2025 Raffoul Application should be dismissed so far as it is based on actual bias.

1. As to the first step identified in Ebner, the five grounds upon which the Appellants rely to contend that I might decide the case on something other than its legal and factual merits:

(1) in relation to the first and fifth grounds, the Appellants have not specified the "explicit discriminatory remarks". The extract of the 21 January 2025 Decision attached to the 25 July 2025 at 6:55 AM Raffoul Email does not record any remarks or comments that could reasonably be characterised as "discriminatory" or giving rise to "a perception of partiality and impatience";

(2) in relation to the second to fourth grounds, they record their disagreement with the 21 January 2025 AP Decision, the 27 February 2025 AP Decision and the 5 March 2025 AP Decision.

1. As to the second step of the test articulated in Ebner, the Appellants have not identified the logical connection between any of the five grounds and the feared deviation on my part from the course of deciding the case on its merits.
2. It does not follow from any of the 21 January 2025 AP Decision, the 27 February 2025 AP Decision and the 5 March 2025 AP Decision that I would not genuinely consider any legal and factual arguments of the Appellants in relation to the Call Over and the 17 July 2025 AP Stay Application. The issues to be decided in the 17 July 2025 AP Stay Application are very different to the issues to be decided in the Stay Applications which were the subject of the 21 January 2025 AP Decision, the 27 February 2025 AP Decision and the 5 March 2025 AP Decision.

1. In the present case there is no proper basis to conclude that a fair-minded lay observer, being aware of ordinary judicial practice, might reasonably apprehend that I might not bring an impartial mind to the resolution of the Call Over and the 17 July 2025 AP Stay Application. It follows that the 22 July 2025 Raffoul Application should be dismissed so far as it is based on apprehended bias.

1. The 21 July 2025 Raffoul Application is misconceived. There is no basis to amend the time for compliance by the Respondents with the order made on 18 July 2025 for the lodgement and service of their evidence and submissions in opposition to the 17 July 2025 AP Stay Application. The Appellants will have the opportunity to reply to any submissions made by the Respondents at the hearing of the 17 July 2025 AP Stay Application. They will also have the opportunity to make an application for an adjournment of the 17 July 2025 AP Stay Application if they consider it to be necessary. Any such application will be determined on its merits having regard to the evidence and submissions of the parties. It follows that the 21 July 2025 Raffoul Application should be dismissed.

(1) A hearing of the following applications is dispensed with:

(a) the Application of the Appellants lodged on 21 July 2025 in which they seek an order for the amendment of the time for compliance with an order made on 18 July 2025, or alternatively an order in relation to the hearing of the Stay Application lodged on 17 July 2025 on 30 July 2025 (the 21 July 2025 Raffoul Application);

(b) the Application for miscellaneous matters of the Appellants lodged on 22 July 2025 in which they seek orders for the disqualification of Principal Member Blake AM SC (the 22 July 2025 Raffoul Application).

(2) The disclosure of redacted information in paragraph [28] given before the Tribunal is prohibited. This order is made under s 64 (1)(c) of the Civil and Administrative Tribunal Act 2013.

(3) The 22 July 2025 Raffoul Application is dismissed.

(4) The 21 July 2025 Raffoul Application 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.

12 August 2025 - Coversheet - order made for non-publication of redacted material.

12 August 2025 - Paragraph 28 (1) and (3) - information redacted.

12 August 2025 - Orders - Non-publication order, added as order (2).