By notice of appeal filed on 13 September 2022 the appellant (Mr Ugur) appeals a decision of the Tribunal delivered on 19 August 2022 in proceedings [2022] NSWCATAD 279. The decision was received by Mr Ugur on 23 August 2022. The decision is interlocutory in the sense that it is made as a result of a dismissal application brought by the respondent (the Public Guardian) to a claim made by Mr Ugur.
The orders sought on appeal were stated verbatim as follows:
The appellant seeks a review and revoke the decision of the public Guardian That concerning the applicant related:
a. The appointment of legal services and to liaise with these services… For Legal Aid to accept an application for legal representation from the applicant.
b. Monitoring with Advocacy
c. Health care
Seek an injunction to stop all further administrative action by linked Agencies or enterprise in relation to this matter.
[2]
Facts as found by Tribunal
The purpose of Mr Ugur's application was to seek review by the Tribunal of decisions made by the Public Guardian in 2007 and 2008 at a time when Mr Ugur was the subject of a limited guardianship order made by the then Guardianship Tribunal.
Mr Ugur claimed that he had only recently found out that the Public Guardian had made decisions affecting him and that he was aggrieved by the decisions. As will become apparent, Mr Ugur's assertion of his recent awareness is clearly incorrect as is evidenced by his numerous court applications which have preceded the application to this Tribunal
Mr Ugur identified the challenged decisions as follows:
"During 2007-2008, when the applicant [was] under the Public Guardian Order, the OPG made decisions affecting the applicant (without informing the applicant, or giving a reason, or in compliance with procedural fairness, without the limits of the PG functions concerning the applicant, which was the lapsed 18 February 2008) including:
a. The appointment of legal services and to liaise with these services .... for Legal Aid to accept an application for legal representation from the applicant.
b. Monitoring with Advocacy
c. Health care
d. Setting up the applicant's cases dismissed against the DIAC [Department of Immigration and Citizenship] and COO [the Commonwealth Ombudsman Office] in the Federal Court of Australia."
The Tribunal found the following relevant facts:
[9] The Applicant arrived in Australia in 1990 on a student visa. Following cessation of that visa he remained in Australia, and he was detained in Villawood Detention Centre.
[10] In November 2006, the then Department of Immigration and Multicultural Affairs ("the Department") applied to the then Guardianship Tribunal for the appointment of a guardian for the Applicant. In February 2007, the Guardianship Tribunal found that the Applicant had a disability and that he was at least partially incapable of managing his affairs. It appointed the Public Guardian under a limited guardianship order for a period of twelve months, with authority to make decisions about:
(1) the Applicant's accommodation;
(2) the Applicant's health care;
(3) the Applicant's medical and dental treatments;
(4) services to which the Applicant should have access; and
(5) legal advocacy, including to obtain legal documents, arrange legal representation and advocate generally in relation to legal matters.
[11] The Respondent has identified various decisions that it made in relation to the Applicant including:
(1) consenting to the Legal Aid Commission ("Legal Aid") processing an application for legal services received from the Applicant (8 November 2007);
(2) consenting to the release of information to Red Cross for referral of the Applicant to a family reunification program (16 November 2007);
(3) accepting a proposal for temporary accommodation arranged by the Department to facilitate the Applicant's release to the community under a residency visa (11 January 2008);
(4) accepting "ACL" Integrated Humanitarian Settlement Services as the service provider to assist the Applicant within the community after the Applicant had been granted a Special Humanitarian Visa (15 January 2008); and
(5) determining to release information to Richmond Fellowship for referral to ongoing support and case management programs (16 January 2008).
[12] Following a review, the guardianship order was allowed to lapse in February 2008. The Public Guardian has not exercised any functions with respect to the Applicant since that time.
[3]
Relevant Legislation considered by Tribunal
The Tribunal observed that the application before it did not specify the basis on which it would have jurisdiction to review the challenged decisions.
The Tribunal observed that an application for administrative review could be brought under the Administrative Decisions Review Act 1997 ("the ADR Act") and pursuant to Section 80A of the Guardianship Act 1987 ("the Guardianship Act") which did not specify a time limit for a review application. The Tribunal noted that the provisions of s 55 of the ADR Act contained the following relevant provisions:
(3) If the interested party was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9).
(4) However, the Tribunal may deal an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that:
(a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or
(b) it is necessary for the Tribunal to deal with the application order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.
[4]
Tribunal Findings
The Tribunal referred to the Directions Hearings which had preceded the hearing and specifically to an order requiring the parties to file any material considered relevant and noted that while Mr Ugur had filed a significant amount of material, much of it was difficult to comprehend and was in some instances incomprehensible.
The Tribunal identified four decisions in respect of which review was sought:
1. The appointment of legal services and to liaise with these services;
On 8 November the Public Guardian consented, as Mr Ugur's guardian, to Legal Aid being granted to him. Thereafter, Mr Ugur was engaged in civil proceedings during 2008 and 2009. The Public Guardian acknowledged that such decision would be reviewable under section 80A of the Guardianship Act.
1. Monitoring with advocacy;
On 20 February 2008, as part of the closure of Mr Ugur's file with the Public Guardian, the phrase "Monitoring with Advocacy" appears, with an adjacent checkmark indicating completion. Mr Ugur expressed concern how such a category was required in his case. The Public Guardian stated that the phrase together with an adjacent checkmark indicates that this aspect had been completed. Mr Ugur appeared to understand such notation as representing a decision concerning future involvement with him as opposed to a risk retrospective description of the file then being closed. Since no decision was made except to close the file, the Public Guardian stated that the decision was not reviewable for the purpose of section 80A of the Guardianship Act.
1. Health Care;
Mr Ugur referred to correspondence between the Public Guardian and third parties concerning Mr Ugur's health including a care plan developed for him by DIAC. The Public Guardian submitted that it did not make substantive decisions in relation to Mr Ugur's health. Accordingly, this aspect did not identify a reviewable decision for the purpose of s 80A of the Guardianship Act.
1. Setting up Mr Ugur's cases brought in the Federal Court by him which were dismissed against two Commonwealth Departments.
Mr Ugur alleged a "secret agreement" between Legal Aid, the Australian Government Solicitor and the Human Rights and Equal Opportunity Commission to arrange for dismissal of proceedings instituted by him in the Federal Court of Australia. The Public Guardian submitted that such allegation did not constitute a reviewable decision for the purpose of s 80A of the Guardianship Act.
Specifically, the Tribunal found that:
1. Mr Ugur had not exercised his right for an internal review application. He had sought written reasons for his challenge decisions on 25 February 2022, but this did not constitute an internal review application: rather, it was merely a request for reasons;
2. that it was not satisfied that it was necessary for the Tribunal to deal with the application to protect Mr Ugur's interests;
3. there was no utility in challenging the merits of the decision. Further, the Tribunal stated:
"It is not clear what outcome he would have sought if he had challenged the decision at the time the decision was taken. Similarly, it is not clear what outcome he seeks in these proceedings"
1. even if the decision was varied or set aside, there could be no action the respondent could take in relation to the decision and accordingly a decision to vary or set aside would be futile;
2. the length of the delay was significant with no reasonable explanation being given for the delay. It followed that the Tribunal would refuse an application for an extension of time in which to bring the proceedings under s 41 of the Civil and Administrative Tribunal Act 2013 ("CAT Act").
3. except for one single exception, namely the Public Guardian's approval of legal aid for Mr Ugur, the claim did not disclose a reviewable decision. The Public Guardian's decision to support an application made by Mr Ugur for legal representation did not disclose an arguable case;
4. the proceedings were misconceived or lacking in substance and consequently dismissed.
[5]
Notice of Appeal
The notice of appeal asserts that the decision under appeal is not fair and equitable. It follows that a grant of leave is required to bring this appeal, since by virtue of s 80(2)(b) of the CAT Act, the appeal can only proceed if the Tribunal grants leave. The notice of appeal also asserts that the decision "involves issues of: clear injustice; principle, questions of public importance".
In a document entitled "Part of Additional Grounds for Appeal" dated 5 October 2022, Mr Ugur nominates 38 points which he asserts are errors of law. The points take issue with the findings of the Tribunal.
[6]
Issues Raised
In summary, the grounds raised are as follows:
1. Whether the Tribunal "disclosed all relevant material upon which it relied"; whether the Tribunal gave Mr Ugur an opportunity to be heard; whether the Tribunal understood or considered the case or submissions advanced by Mr Ugur; whether Mr Ugur was denied an opportunity to produce evidence and cross examine an important witness whose evidence was adverse; whether Mr Ugur was denied procedural fairness in relation to striking out his case; absence of evidence without a fair hearing.
The Tribunal summarises such submissions in the following categories:
1. finding of fact is not supported by evidence: grounds 1, 2, 3, 9, 12, 13 and 14;
2. denial of procedural fairness: ground 4, 5, and 6;
3. error of law, whether the Tribunal erred because it made findings are not based on probative evidence: grounds 7, 8, 10 and 11:
[7]
Reply
The Public Guardian's reply was filed on 29 September 2022. It conveniently groups the categories of Mr Ugur's claims as set out below.
Grounds 1, 2, 3, 9, 12, 13 and 14: In respect of the assertions that the Tribunal made findings not supported by the evidence, the Public Guardian states that the issues raised were required to be determined by the Tribunal on the basis of the documentary evidence before it and that the Tribunal is unable to determine such issues without any evidentiary issues or making substantive findings of fact. To the extent that the Tribunal did make findings of fact, these findings are based on material before the Tribunal.
Grounds 4, 5 and 6: In answer to the assertion that the Tribunal denied Mr Ugur procedural fairness, the Public Guardian states that each party was given the opportunity to file material they considered relevant; that Mr Ugur was given an adequate opportunity to present his case and to be heard on the issues arising; and that the matter was appropriate to be determined under s 50(2) of the CAT Act dispensing with an oral hearing.
Grounds 7, 8, 10 and 11: In respect of the alleged incorrect principles of law being applied by the Tribunal, the Public Guardian states that the reasons of the Tribunal are clear and comprehensive and that there is no error of law revealed in the reasons.
The Public Guardian submits that leave is required to bring the appeal and there is no basis for leave to be granted.
[8]
Appellant's submissions
Mr Ugur's submissions dated 5 December 2022 contain reasons why the Appeal Panel should grant leave to appeal against the decision. Those reasons include that the matter "is comprising a serious issue of principle, the question of general public importance and an injustice which is reasonably clear in the matter raised"; the decision was against the weight of evidence; the decision was not fair and equitable; significant new evidence is now available that was not reasonably available at time of the hearing; the decision was affected by jurisdictional error as the Tribunal failed to take into account a relevant consideration that the Public Guardian failed to notify Mr Ugur of her decisions relating to Legal Service, Monitoring with Advocacy, Health Care via Transition Plan and the case of Mr Ugur, as required by s 48(1) of the ADR Act and s 98(2A) of the Guardianship Act.
Other submissions are made which refers to assertions that the Public Guardian has a duty to lodge with the Tribunal all relevant documents; that Mr Ugur "sincerely believed he has been treated very unjustly" and should not be sent away peremptorily". It is asserted that Mr Ugur has been under continuous monitoring control which has breached his privacy since 2008 and he refers to various incidents. Mr Ugur claims he now has a strong case and that liberty is one of the most important values protected by the common law.
[9]
Facts Relied upon by Mr Ugur
Mr Ugur states that between 2003 and 2008, he was detained at Villawood Immigration Detention Centre, that in 2006 the Department of Immigration and Citizenship ("DIAC") decided to use substituted decision-maker power of the Public Guardian "and (influence) to regain Turkish citizenship for the applicant and deport him"; that on 16 February 2007 DIAC obtained a Limited Guardianship Order concerning Mr Ugur, and that on 18 December 2006 the Guardianship Tribunal appointed a separate representative concerning Mr Ugur.
Mr Ugur asserts that DIAC obtained the guardianship orders based upon incorrect reports from doctors which stated that Mr Ugur was unable to manage his affairs and were provided to the Guardianship Tribunal for the purpose of obtaining orders in respect of his care. Mr Ugur states that such orders were obtained without Mr Ugur's knowledge and consent. Such report stated that Mr Ugur was unable to manage his affairs. Mr Ugur states that on 21 December 2006 a medical report relating to him dated 19 December 2006 was disregarded by the Guardianship Tribunal.
Mr Ugur sought review of such orders. The review was heard by the Administrative Decisions Tribunal. The review was unsuccessful for Mr Ugur. Accordingly he commenced proceedings in the Supreme Court of New South Wales relating to such orders. However, before the Supreme Court had concluded the appeal, the orders lapsed on 5 May 2008
Mr Ugur states that on 11 January 2008, he was released from detention and was granted a permanent residence visa.
Mr Ugur seeks in effect a merit review of the orders made nominating the questions sought to be raised in respect of the decisions of the Public Guardian as follows:
1. Whether the decisions were valid;
2. Whether the decisions were correctly made;
3. Whether the decisions were the best decisions "on the facts and law;
4. Whether the decisions were properly notified to Mr Ugur;
5. Whether the decisions were accountable and reviewable.
Specifically before the Tribunal Mr Ugur sought a review and revocation of the decision concerning:
1. The appointment of legal services and to liaise with these services for Legal Aid to accept an application for legal representation from the applicant;
2. monitoring with advocacy;
3. healthcare.
Mr Ugur also sought an injunction "to stop and get all further administrative action by linked agencies or enterprise in relation to this matter."
[10]
Grant of leave
Section 80(2)(b) of the CAT Act provides that leave to appeal an interlocutory decision is required, even if the appellant can identify a question of law.
At [84] of Collins v Urban (2014) NSWCATAP 17, the Appeal Panel stated that ordinarily it is appropriate to grant leave to appeal only in matters that involve:
1. issues of principle;
2. questions of public importance or matters of administration or policy which might have general application; or
3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
4. a factual error that was unreasonably arrived at and clearly mistaken; or
5. the Tribunal may have gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that would be in the interests of justice for it to be reviewed.
The Appeal Panel has considered each of the submissions of Mr Ugur. The Appeal Panel has also reviewed the findings of the Tribunal and makes the following observations.
[11]
Findings
Mr Ugur has provided voluminous submissions in support of his appeal. Although not nominated in the notice of appeal, a ground is stated in his submissions concerning the power of the Tribunal to proceed to determine his application on the papers. Accordingly this consideration will be dealt with before the other issues are raised.
[12]
Decision on the Papers
The relevant portions of s 50 of the CAT Act allow for a dispensation of a hearing in certain circumstances and provide relevantly:
…
(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the tribunal.
(3) the Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:
(a) afforded the parties an opportunity to make submissions about the proposed order, and
(b) taken any submissions into account.
(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
Prior to any determination of Mr Ugur's application, Directions were made on 5 April 2022 for the parties to provide their evidence and submissions by certain dates. Mr Ugur was directed to provide such material by 21 June 2022. In respect of the dispensation of a hearing, the following order was made:
4. The parties' submissions are to include any submissions as to whether a hearing is required or can be dispensed with. Subject to considering any such submissions the tribunal proposes to dispense with a hearing and determine the summary dismissal application on the papers after 5 July 2022. If a hearing is required, the parties will be contacted for suitable dates.
Mr Ugur provided submissions as to the merits of his claim but made no reference to the issue of the dispensation of the hearing. The Public Guardian then provided its submissions as directed by 5 July 2022 and made no submissions concerning whether the hearing should be dispensed with. However, by submissions dated 5 July 2022 (filed on 6 July 2022), Mr Ugur then sought to challenge the application being determined on the papers.
The Tribunal's decision was delivered on 19 August 2022. In the decision the Tribunal stated:
8. I have dispensed with the hearing of the dismissal application as I am satisfied that the issues for determination can be adequately determined in the absence of the parties.
Mr Ugur claims he has been denied procedural fairness because no hearing was provided.
The Appeal Panel rejects such submission for the reason that Mr Ugur was provided with an opportunity to oppose a dispensation of the hearing provided he did so in his submissions to be filed by 21 June 2022. Mr Ugur failed to do so.
No direction was made to permit Mr Ugur to provide submissions in reply. The submissions which Mr Ugur made on 6 July 2022 were not in reply but were fresh submissions dealing with the issue of whether the proceedings could be dealt with on the papers.
The Tribunal was entitled to proceed upon the basis that Mr Ugur did not challenge the dispensation of the hearing and was entitled to ignore submissions which were made without authority on 6 July 2022. As Bryson JA in Malouf v Malouf (2006) 65 NSWLR 449; [2006] NSWCA 83 at [183] said:
"Without procedure, procedural directions and compliance, justice will not be done at all…",
Accordingly the claim of denial of procedural fairness is dismissed in respect of the dispensation of the hearing.
[13]
Issues of Merit
The Tribunal stated that it had "great difficulty in understanding the relevance of much of the applicant's material". The Appeal Panel makes the same observation. In particular, at the hearing the Appeal Panel questioned Mr Ugur on what he hoped to achieve by his application. In response, Mr Ugur stated that he wished to obtain information concerning the orders that were made in 2006 in favour of the Public Guardian. Mr Ugur also stated that he was not advised of such orders. However, it is plain that Mr Ugur was aware of the orders at least by 2008.
The Appeal Panel observes that the orders are made in 2008; Mr Ugur sought review in the Administrative Decisions Tribunal, the Supreme Court of New South Wales and has also instituted proceedings in the Federal Court of Australia (the result of which is unclear). On 11 December 2007, Gyles J made an order joining the Commonwealth in proceedings Ugur v Human Rights and Equal Opportunity Commission [2007] FCA 2066 and it appears that such proceedings came before two other Justices of the Federal Court of Australia but there is no indication of the outcome of those proceedings. There is a reference in Mr Ugur's material to proceedings in SD 2441 of 2007 in the Federal Court of Australia which came before Justice Branson of which Mr Ugur claims was wrongfully terminated without his knowledge. However, Mr Ugur complains that he did not receive fair treatment by at least one Justice of that Court in respect of his proceedings.
Mr Ugur has also sought the assistance of the Ombudsman complaining about his treatment by the NSW Police Commissioner and the Attorney General for the State of New South Wales. Mr Ugur commenced proceedings in the Supreme Court of New South Wales nominating the Attorney General NSW as the sole defendant. It is unclear what relief was sought but the affidavit affirmed on 4 May 2018 and filed on 23 June 2022 refers to incomprehensible matters. For example Mr Ugur claims in paragraph (61) thereof:
On 19 April 2018, I provides (sic) as evidence to be used by Monitoring Government Officers that my penis erected by the Officers of the government seven times a night and deprived of my sleep even though I have not allowed sleep even 4 hours without administrative pain by Officers of the government."
Attached to the affidavit are photographs of his erections to verify his claim. Mr Ugur has lodged a complaint with the Human Rights Commission concerning the orders made by the Guardianship Tribunal. Mr Ugur has also lodged complaints in respect of alleged improper behaviour by a solicitor engaged by Legal Aid and a police officer at a local Court.
Before this Tribunal at first instance. Mr Ugur challenged the fact that the Public Guardian consented to his application for Legal Aid. That is, an order that was made for Mr Ugur's benefit. It is not possible to comprehend why he challenges this order, nor how it could not have been the correct and preferable decision.
Mr Ugur maintained that he has been affected by the orders obtained by the Public Trustee and claimed that the Public Guardian was continuing to monitor him and had electronic monitoring of him even whilst he was appearing before the Appeal Panel. The evidence discloses that since 1 December 2006 until 5 August 2008, Mr Ugur has been the subject of psychiatric care and that several psychiatrists have either provided reports or assisted Mr Ugur with a mental health plan. There are other issues raised in Mr Ugur's material which demonstrate numerous issues relating to alleged ill-treatment by various bodies including TAFE which are not relevant on this appeal.
In his letter dated 1 November 2022 addressed to the Legal Aid Commission, in which Mr Ugur seeks legal aid's permission to the revocation of orders made in in favour of the Public Trustee, he states he "has experienced monitoring by the Legal Aid Lawyers and experimented upon"; and that he has observed "Legal Aid Lawyers and connected practitioners indirectly to effect the applicant's cases". He also states:
9. The decisions taken improper purposes by the public Guardian respondent to affect the applicant's current circumstances which interferes directly with his personal right (direct freedom, health, financial or legal interest) that the applicant being held in conditions in which the powers attaching to the right of ownership are exercised without notification constituted slavery."
[14]
Consideration of leave to appeal
We do not see any basis for granting leave to appeal for the reasons below.
It is impossible to glean from Mr Ugur's grounds of appeal and submissions the precise nature of any question of law said to arise from the Tribunal 's decision. Mr Ugur has not been able to indicate any "blatant and important error of fact which call for remedy by an Appeal Panel in the interest of justice": see Lloyd V TCN Channel 9 Pty Ltd & anor or (1999) NSWADTAP 3 at [151].
It is not apparent that the Tribunal has "gone about the fact-finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed": see K v K [2000] NSWSC 1052 at [15]. Even if there were some faulty inference of fact drawn, this would not amount to an error of law: as the High Court of Australia has stated:
"To establish some faulty (eg illlogical) inference of fact would not disclose an error of law": see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [88] - [89].
It is not possible to discern that the Tribunal failed to consider an argument succinctly and clearly articulated. If it did so, jurisdictional error would result (see SZCC v Minister for Immigration and Border Protection [2014] FCA 863 at [75] - [82]).
Nor is it patent that there has been any error in the reasoning. Section 62 of the CAT act requires that the Tribunal give written reasons on request setting out the findings and material questions of fact, referring to the evidence rather material on which the findings were based; the Tribunal's understanding of the applicable law; and the reasoning process that led the Tribunal to the conclusions it made. The reasons given by the Tribunal have provided a clear and logical basis for the decision: see Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667 (Gibbs CJ); [1986] HCA 7.
There is no basis for the claim that the Tribunal has made findings without evidence or in the face of evidence: see as Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 1398155 - 156; Bugeja v Hatgiantounio (2002) NSWCA 132 at [9]. If Mr Ugur is making a claim that the decision under review was unreasonable, the Appeal Panel records that the decision has been formulated with clarity and comprehensively deals with the issues raised. There is no unreasonableness in the Wednesbury sense (Associated Provincial Picture Houses, Ltd v Wednesbury Corporation [1947] 2 All E.R. 680 per Lord Greene M.R. at pp 682, 683)
[15]
Fresh Evidence
Mr Ugur asserted that there was fresh evidence which was not available at the time of the hearing before the Tribunal.
The Tribunal has a discretion to permit fresh evidence on an internal appeal as provided by s 80(3) of the CAT Act. However, the concept of "fresh evidence" is evidence which could not reasonably have been made available at the date of the first hearing; or it must relate to something which has happened since the date of the Tribunal's orders which affords ground for revision: see the principle stated in Johnson v Johnson (1899) 1 P (Probate) 19 at [21].
It has also been held that (for the purposes of s4 of the Criminal Appeal Act UK) the evidence which is said to constitute "fresh evidence," must be both relevant and credible before a court (or tribunal) will admit such evidence: see R v Kelly 1965 1 WLR 730.
The Appeal Panel requested Mr Ugur identify the fresh evidence. He identified a printout of data which was attached to a letter addressed to him in 2009. He also referred to a dictionary definition. The Appeal Panel finds that the material which Mr Ugur claims to be fresh evidence could have been produced at the Tribunal hearing and would therefore not constitute fresh evidence, within the meaning of s 80(3) of the CAT Act. Further, such material is hardly probative of any relevant fact.
[16]
Prior proceedings
The Appeal Panel refers to the reasons why the Tribunal dismissed Mr Ugur's application before it, namely the failure of Mr Ugur to apply for an internal review under the Guardianship Act ; the fact that there have already been proceedings instituted in respect of the same orders in the Administrative Decisions Tribunal and the Supreme Court of New South Wales; and the inordinate time which has elapsed since the orders sought to be reviewed were made.
There is no error apparent in the Tribunal's reasoning.
Further, we consider that, in addition to the above observations, these proceedings would be a futility because of the lack of clarity in respect of the relief which is sought.
We reject the contention that this appeal raises a matter of public importance. The orders which are sought to be challenged were made between Mr Ugur and the respondent and affect only those parties. No basis for public interest arises.
Mr Ugur has nominated 38 points for consideration in the appeal. The Appeal Panel finds that they are essentially encompassed by the observations above. The Appeal Panel has considered each submission but finds it is unnecessary to deal with them individually.
The Appeal Panel observes that the principles relevant to the grant of leave to appeal an interlocutory decision requires us to be satisfied that a substantial injustice would result if leave were not granted and that the decision is attended with sufficient doubt to warrant it being reconsidered: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9: see also Champion Homes Pty Ltd v Guirgis [2018) NSWCATAP 54 at [35]. We are not satisfied that any substantial miscarriage of justice has been suffered by Mr Ugur; nor that the decision under appeal was not fair and equitable or against the weight of evidence.
Accordingly the Appeal Panel refuses leave to bring the appeal.
[17]
Orders
1. Leave to bring the appeal is refused.
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: 30 January 2023