Wojciechowska v Commissioner of Police

Grounds of Appeal

1. In the Notice of Appeal the appellant identified 10 grounds of appeal: 1. Order 5 is not authorised by legislation; 2. Order 5 (and also all other orders from 21 July 220) were made in breach of s 50 of the NCAT Act; 3. Denial of procedural fairness, being breach of the fair hearing rule, bias (actual and apprehended), and no evidence; 4. Relevant considerations were not taken into account: the appellant was not given a chance to present evidence as to why the hearing should not proceed by telephone, and the Senior Member was aware that she wanted to issue a summons; 5. The COVID 19 changes to NCAT operations do not support the order; 6. State restrictions do not prevent the hearing from occurring; 7. Order 5 is inconsistent with the guiding principle in s 36 of the NCAT Act; 8. Failure to comply with s 49 of the NCAT Act; 9. Order 5 excludes evidence without knowing what the evidence might be; and 10. Any other ground deemed just and appropriate.
2. The appellant applied for leave to appeal. Her position was that leave is not required because Order 5 is not an interlocutory decision, because there was no properly constituted Tribunal and the order was not made under the NCAT Act or other legislation. If leave is required it is appropriate to grant it, because the appellant was ambushed with Order 5; the appellant is not responsible for COVID 19 so there is no reason why she should bear its consequences; there is no reason why the matter is so urgent as to deprive the appellant of the opportunity to appear in person; and the only reason for the pressing of the hearing by phone is that it is in the interests of the respondent if the appellant cannot cross examine the witnesses effectively.
3. In the Reply to Appeal, filed on 28 August 2020 together with submissions on the appeal and the stay application, the respondent contends that: 1. grounds 1, 2, 5, 6, 7 and 8 raise potential questions of law, but do not disclose any arguable error; 2. in relation to grounds 1 and 7, the order that the hearing proceed by telephone is permitted by s 38(1) of the NCAT Act and in keeping with the guiding principle in s 36 of the NCAT Act; 3. in relation to ground 2, the application of s 50 of the NCAT Act does not properly arise; 4. in relation to grounds 3 and 9 there was no denial of procedural fairness; 5. in relation to grounds 5 and 6 the Tribunal was entitled to proceed in accordance with its publicly announced practice for managing cases during COVID-19; 6. in relation to ground 8, a breach of s 49 does not arise; and 7. ground 10 is not a proper ground of appeal.
4. In response to the application for leave to appeal, the respondent contends that the order is not a "decision" that gives rise to an application for leave to appeal under s 80 of the NCAT Act. In the alternative, the appellant requires leave because the appeal is against an interlocutory order, and leave should be refused.

Availability of appeal

1. An internal appeal may be brought in accordance with s 80 of the NCAT Act: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note - Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) Any internal appeal may be made - (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may - (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
3. The appellant is not legally represented, and the Appeal Panel must determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent: Prendergast at [12].
4. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [84] 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 having 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 it would be in the interests of justice for it to be reviewed.
5. As identified in the above summary of the grounds of appeal and reply, an issue in this appeal is whether Order 5 can be characterised as a "decision" as defined in the NCAT Act, and if so, whether it should be characterised as an "interlocutory" decision such that leave to appeal is required.
6. The relevant definitions in the NCAT Act are: 5 Meaning of "decision" (1) In this Act, decision includes any of the following - (a) making, suspending, revoking or refusing to make an order or determination, (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, (d) imposing a condition or restriction, (e) making a declaration, demand or requirement, (f) retaining, or refusing to deliver up, an article, (g) doing or refusing to do any other act or thing. (2) For the purposes of this Act - (a) a decision is made under enabling legislation or this Act if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation or this Act, and (b) a decision that purports to be made under enabling legislation or this Act is taken to be a decision made under the enabling legislation or this Act even if the decision was beyond the power of the decision-maker to make, and (c) a refusal of a decision-maker to make a decision under enabling legislation or this Act because the decision-maker considers that the decision concerned cannot lawfully be made under the enabling legislation or this Act is taken to be a decision made under the enabling legislation or this Act to refuse to make the decision requested, and (d) a failure by a decision-maker to make a decision within the period specified by enabling legislation or this Act for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision. 4 Definitions (1) In this Act - … ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including - (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings. … interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following - (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (h1) the granting of leave for a person to represent a party to proceedings, (i) any other interlocutory issue before the Tribunal.

Material before the Appeal Panel

1. The appellant filed submissions and supporting documents on 24 September 2020. The documents include a sound recording and extracts of transcript of a case conference in matter 2019/00368647 on 19 December 2019, and case conferences in matter 2020/00132948 on 9 June 2020 and 21 July 2020; applications made to and correspondence with the Tribunal; notices of listing; information downloaded from the Crown Solicitor's website; and an affidavit affirmed on 24 September 2020.
2. On 5 October 2020 the Tribunal received additional material from the appellant, relating to her original access request under the GIPA Act.
3. The respondent filed submissions and a transcript of the case conference on 21 July 2020 on 6 October 2020.
4. The appellant objected to the description in the respondent's submissions of the transcript of the case conference on 21 July 2020 as "an independently prepared transcription" of that case conference, on the basis that the respondent had paid for it. The appellant contended that the transcript misdescribed the case conference of 21 July 2020, as the cover page refers to "Hearing in the matter of .." and the "Hearing Date" of 21 July 2020, when what occurred was not a hearing; it referred to the respondent's representative as "Mr John McDonald" when it was "Mr John McDonnell"; and there were other errors, including a reference to the appellant being a resident of Queensland when she in fact resides in Tasmania.
5. The respondent did not accept the accuracy in certain respects of the partial transcript provided by the appellant, stating that it editorialised certain parts of the transcript, for example by omitting the context of the Tribunal's comments preceding a transcribed portion.
6. In oral submissions the appellant explained that a partial transcript was provided because of the time taken to do the transcription.
7. The transcript provided by the respondent was prepared by "ScribeFire". While it may be accepted that it was the respondent which paid for the transcription, the Appeal Panel accepts that the transcript of the case conference of 21 July 2020 was prepared independently of the respondent. While noting some errors including in the name of the respondent's representative, the Appeal Panel regards that transcript as a reliable record of what took place. The Appeal Panel has had regard to the partial transcripts of the case conferences in matter 2020/00132948 to the extent that they are relevant to the issues in this appeal.

Whether leave to appeal is required

1. The first issue to consider is whether Order 5 can be characterised as an "interlocutory decision" as defined in s 4 of the NCAT Act, so that the appellant requires leave to bring this appeal.
2. The appellant submits that it is not, on the ground that it is not a decision "made by the Tribunal under legislation concerning" any of the matters identified in paragraphs (a)-(i) of that definition.
3. The respondent submits that to the extent that Order 5 is a "decision" as defined in s 5 of the NCAT Act, an order that the hearing proceed by telephone is an "interlocutory issue" within paragraph (i) of the definition of "interlocutory decision" because it is not final, it relates solely to the practice and procedure of the proceedings, and could at any time be revised by the Tribunal.
4. Order 5 established the date of the hearing, and the manner in which it was to be conducted. It did not finally determine the issues in dispute, and related to a matter of practice and procedure rather than substantive rights: Licul v Corney (1976) 180 CLR 213; Carr v Finance Corp of Australia (No 1) [1981] HCA 20; (1981) 147 CLR 246. To the extent that Order 5 may have been a "decision" as defined in s 5, it was an "interlocutory decision" as defined in para (i) of s 4 of the NCAT Act. Leave is required to bring the appeal.

Grounds of appeal

1. The appellant's grounds of appeal can be considered in the following order: 1. Whether order 5 was made within power (addressing grounds 1, 2, 5, 6, 7, 8); 2. Whether there was a denial of procedural fairness (ground 3); and 3. Whether to the extent that there was discretion to make order 5, that discretion was exercised having regard to relevant considerations (grounds 4, 9).
2. Ground 10 is not a proper ground of appeal.

Whether Order 5 was made within power

1. In ground 1 the appellant contends that Order 5 was not made under legislation. The appellant had commenced her proceedings being for the review in accordance with the NCAT Act, however the Senior Member did not commence his proceeding as required. To the extent that the Tribunal was able to constitute itself in the proceeding commenced by the appellant, it was bound by Div 4 of Part 4 of the NCAT Act which includes s 50. As no exception in s 50(1) of the NCAT Act was applicable, and no hearing was held, s 50 was not complied with.
2. The appellant submits that Order 5 was a "decision" under s 5 of the NCAT Act, however it was not a "decision made by the Tribunal under legislation" as required by the definition of "interlocutory decision". It was not a decision "concerning" any of the matters listed in the definition of "interlocutory decision": paras (a)-(h1) were inapplicable, and (i) was not satisfied because there was no "issue", there being no conflict between the appellant's and respondent's positions as the issue of a hearing by telephone was brought up by the Senior Member.
3. Grounds 2, 5, 6, 7 and 8 relate to the underlying issue of the power to make Order 5. The appellant contends that there was no hearing and as a consequence there was non-compliance with s 50 of the NCAT Act, which makes Order 5 invalid. The order was not authorised by s 38(1) of the NCAT Act, as the requirements of subsections (2), (4), (5), and (6) were not complied with. The order was not authorised by s 36 of the NCAT Act, as s 36(1) is a principle and not a head of power, and the Senior Member did not give effect to s 36(1) through Order 5.
4. The appellant contends that a hearing by telephone is a breach of the open justice principle and s 49 of the NCAT Act, as if the recording equipment fails no one would have access to what was audible to the Member, and, given the quality of phone connections with the Tribunal, it is likely the appellant would not know what occurred in the hearing.
5. The appellant submits that to the extent that the Tribunal's COVID 19 Changes to Procedures can be viewed as "procedural rules" their content does not support Order 5 because no urgency had been demonstrated and there was no consent of both parties for a hearing by telephone. To the extent that they forbid hearings in person they are not authorised under the NCAT Act because of s 38 which imposes obligations of procedural fairness.
6. The respondent submits that: 1. section 38(1) of the NCAT Act enables the Tribunal to determine its procedure, and it is open to the Tribunal, and required under s 36(1), to make procedural case management decisions to facilitate the just, quick and cheap resolution of the real issues in proceedings. An order that the hearing proceed by telephone was appropriate in the circumstances; 2. whether or not the President's publication of 10 July 2020 of "Temporary Changes to NCAT Operations" has statutory significance, there was no error in the Tribunal proceeding on that basis; 3. whether or not current Public Health restrictions of one person per 4 square metres would permit an in person hearing, it was entirely appropriate for the Tribunal to make arrangements for alternative modes of hearing; 4. Order 5 accords with the principle of facilitating the just, quick and cheap resolution of the proceedings under s 36 of the NCAT Act; 5. section 49 of the NCAT Act requires a hearing to be open to the public unless the Tribunal orders otherwise, and empowers the Tribunal to order that a hearing be conducted other than open to the public. It is not necessarily the case that an order that a hearing take place by telephone can be taken to be an order that the hearing "not be open to the public"; and the quality of a phone line can be managed by the Tribunal hearing the matter.
7. Part 4 of the NCAT Act provides for the Practice and Procedure of the Tribunal. Section 38 of the NCAT Act provides: 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. … (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (5) The Tribunal is to take such measures as are reasonably practicable - (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. (6) The Tribunal - (a) is to ensure 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, and (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing - may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.
8. Section 36 of the NCAT Act provides: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it - (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal - (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.
9. Case conferences are held in the Administrative and Equal Opportunity Division in applications for review of a GIPA decision, or the conduct of an agency under the Privacy legislation. Information about case conferences is provided to the parties with the Notice of Listing. That information includes the statement that the parties are required to identify the issues and explore the ways in which the dispute may be resolved; and identifies that an outcome of the case conference may be that the Tribunal may make directions for the giving and exchange of evidence and submissions, and may give the parties a date for the hearing of the matter.
10. The Tribunal's management of hearings in 2020 has been affected by the restrictions imposed as a consequence of the COVID 19 pandemic. The Tribunal has been conducting all stages of its hearings by phone, audio visual link or on the papers since 30 March 2020. As at the date of the case conference on 21 July 2020, case management of pending matters was in accordance with the President's message of 10 July 2020 "Temporary Changes to NCAT Operations", which replaced the message of 26 March 2020. The President's Message confirmed that the arrangement for conduct of all stages of hearings by phone, AVL or on the papers would continue until at least the end of August 2020, and that no face to face hearings would be conducted without prior approval of the President. In an updated Message of 12 August 2020 the President confirmed that that would continue until December 2020.
11. The listing of the hearing of the appellant's administrative review application by telephone was within the procedural powers conferred on the Tribunal by s 38(1) of the NCAT Act; was consistent with the way in which the Tribunal has had to manage its workload in accordance with the restrictions on movement and gatherings of people since March 2020; and was consistent with the mandate in s 36(1) and (4) of the NCAT Act that the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. In listing the matter for hearing by telephone, Order 5 did not affect the operation of s 49 of the NCAT Act, which provides that a hearing of the Tribunal is to be open to the public unless the Tribunal orders otherwise.
12. The case conference on 21 July 2020 was conducted with the applicant and the respondent's legal representative appearing by telephone. As a case conference, it may be arguable that s 50(1)(b) of the NCAT Act applied. It is not necessary to decide that question, as in any event there was a hearing consistent with s 50 of the NCAT Act, which provides: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except - (a) in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, or (d) in such other circumstances as may be prescribed by the procedural rules. …
13. The Appeal Panel concludes that there is no basis to the contention that Order 5 was made without power, or contrary to any of the applicable procedural requirements under the NCAT Act. The making of directions for parties to file and serve their evidence and submissions in preparation for a hearing, and the listing of that hearing on a specified date and by telephone, were within the scope of the case management powers of the Tribunal. To the extent that the listing by telephone differed from the Tribunal's practice of listing matters for a face to face hearing where possible and appropriate, in circumstances where it could not be predicted when a face to face hearing might be possible that was consistent with the guiding principle expressed in s 36 of the NCAT Act, and with the way in which all courts and tribunals have had to work to ensure that the essential services of government including the administration of justice can continue in the present circumstances: Capic v Ford Motor Company of Australia (Adjournment) [2020] FCA 486 at [5].

Whether there was a denial of procedural fairness

1. The appellant contends that there was a denial of procedural fairness, being a breach of the fair hearing rule, bias, and no evidence.
2. The appellant contends that Order 5 was made with no notice that it was proposed, when based on the case conference of 9 June 2020 she had reasonable grounds to believe that the issue of the mode of hearing had been settled in favour of waiting for when a hearing in person could be conducted; that there was no information provided about the basis of that order; and when she was not prepared to present any argument or evidence on the issue.
3. The appellant contends that Order 5 was affected by bias, in the form of prejudgment, based on the understanding of the fair minded lay observer. In support of that contention the appellant points to the lack of notice, an attempt to hide the order where the telephone connection was not good and where she is not a native speaker of English, non compliance with ss 50 and 38 of the NCAT Act, failure to ask why the appellant was objecting, inconsistency with a prior decision that another GIPA application not be heard by telephone, failure to address the appellant's request for a summons including a document filed shortly before the case conference began, and the Senior Member's prior association with the Crown Solicitor' Office which is representing the respondent. The appellant further contends that the Senior Member reintroduced the topic of the order without any request from a party and in doing so engaged in the proceeding as if he were a party.
4. The appellant contends that there was no evidence to support the Senior Member's finding that the matter was urgent and not complex.
5. The respondent relies in its submissions on the decision of the Tribunal in QFC (No 3) [2020] NSWCATGD 24, and submits that insistence in the present circumstances on an in person hearing would be incompatible with the due administration of justice and not be consistent with the guiding principle in s 36(1) of the NCAT Act. The respondent submits that having regard to the transcript of the case conference, the appellant was heard on the question of how the hearing should proceed, and to make a procedural direction at odds with the appellant's submissions does not constitute a denial of procedural fairness.
6. The respondent submits that there is no basis for the claim of apprehended or actual bias, and this is a case where the appellant disagrees with the case management orders. The appellant has filed no evidence to support a finding of actual bias. In relation to the claim of apprehended bias, the appellant has not identified what it is about the conduct referred to that might lead a decision-maker to decide a case other than on its legal and factual merits. The Tribunal's comments suggesting an in person hearing in other review proceedings were made before the COVID-19 pandemic at a time when the Tribunal was able to accommodate in person hearings, and the decision has to be seen in the context of the COVID-19 pandemic. The Senior Member ended the case conference early so he could speak with Registry regarding the status of the summons request. The appellant has not identified in any way why the former employment of the Senior Member in the Crown Solicitor's office logically means that he would deviate from a neutral evaluation of the merits.
7. The Appeal Panel is not persuaded that there was a denial of procedural fairness in the making of Order 5, for the following reasons.
8. There is no dispute that s 38(5) of the NCAT Act, and the general law rules of procedural fairness, require that the Tribunal ensure that each party to proceedings in the Tribunal has had a reasonable opportunity to appear and put their case before the Tribunal and have their submissions considered.
9. The appellant conceded that she received notice of the case conference listing, including the information on the rear of the Notice of Listing. The transcript of the case conference confirms that the appellant was heard on every issue relevant to the further progress of her review application and the directions to be made, including management of the appellant's miscellaneous application raising a jurisdictional issue; the order in which the parties were to file and serve their evidence and submissions; how the hearing was to take place; dealing with the appellant's summons request; and the length of time in which the appellant was to provide her evidence and submissions and submissions in reply. On the issue of a telephone hearing, the Senior Member stated that the Tribunal was not having in person hearings and he did not know what date there would be in person hearings: the Tribunal could not accommodate an in person hearing, and he suggested a video conference. The appellant stated her opposition to that course. The appellant stated, "for the record", that she objected to the hearing by phone, and "…obviously, the decision is yours". The fact that the Senior Member did not make directions in accordance with her expressed opinion did not mean that the appellant was deprived of an opportunity to be heard on those issues.
10. The appellant contends that the Senior Member's decision to list the matter for a telephone hearing was affected by bias, both apprehended and actual. An apprehension of bias will exist if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the issues in dispute: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR at 344 [6]; Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at 146 [21]; CN17 v Minister for Immigration and Border Protection [2019] HCA 50 at [56]-[59]. The use of the word "might" in both limbs of the test connotes the concept of a real chance or a realistic possibility, falling short of a probability: McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504 at 517 [110].
11. An allegation of actual bias must be distinctly made and clearly proved and a finding of actual bias, in the sense that the decision-maker's mind is closed to persuasion, is not made lightly: South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16.
12. The grounds on which the appellant asserts prejudgment are summarised above at para [48]. None of those grounds would form a basis on which a fair minded lay observer might reasonably apprehend that the Senior Member might not bring an impartial mind to the issues requiring resolution. The fair minded lay observer would be taken to understand the context of a case conference in a matter in which it was apparent that a formal hearing and determination of the issues in dispute was required, and that in that context the task of the member presiding was to determine what path to that end would best facilitate the "just, quick and cheap" resolution of the real issues in dispute, having regard to the restrictions necessarily imposed on management of the Tribunal's hearings. The fair minded lay observer would take into account that the restrictions imposed since March 2020 as a consequence of the pandemic have, as the Senior Member acknowledged, continued, and that case management decisions made on 21 July 2020 could not be governed by previous case management outcomes or expectations. The fair minded lay observer would understand that the presiding member would bring to the task the necessary independence and impartiality regardless of prior work association with the legal representative of a party to the proceedings. The transcript confirms that each case management decision made on 21 July 2020 was the subject of discussion between the Senior Member and the appellant and respondent's representative.
13. There is no basis on which a finding of apprehended, or actual, bias can be made out.
14. The appellant's submissions do not elaborate on how, if available as a basis on which a denial of procedural fairness might be framed, the Senior Member can be regarded as having "found the matter urgent and not complex", or how that could be said to be relevant to the case management outcomes of the case conference.

Whether there was a failure to take into account relevant considerations

1. The appellant contends in ground 4 that the appellant was not given a chance to present evidence as to why the hearing should not proceed by telephone, and the Senior Member was aware that the appellant wanted to issue a summons, which was not taken into consideration.
2. Ground 9 asserts that Order 5 excludes evidence without knowing what the evidence might be. The appellant submits that the Senior Member did not want to discuss evidential details and cut the case conference short, and did not consider that the appellant wants to adduce real evidence in order to establish the public interest considerations in favour of disclosure, that she is a non-native speaker of English, the case is complex, and the Crown Solicitor is appearing against a self represented person.
3. The respondent submits that regardless of whether the appellant wanted to have a summons issued and call certain persons to give evidence at the hearing of the review application, there was nothing before the Tribunal to suggest that this could not take place by telephone.
4. Having considered the transcript, it is clear to the Appeal Panel that there is no basis for this ground of appeal. The appellant was provided an opportunity to make submissions on the issue of a telephone hearing. The matter of the summons was factored into the determination of the timetable, and the Senior Member concluded the case conference by indicating that he would follow that up. The fact that the appellant disagrees with the Senior Member's case management decisions does not mean that there was any failure to have regard to relevant considerations.

Conclusion

1. Order 5 was made in the exercise of case management powers in administrative review proceedings before the Tribunal. As a question of practice and procedure, any application for leave to appeal is to be approached with restraint: BHP Billiton Ltd v Dunning [2013] NSWCA 421, referred to in Collins v Urban at [84]. None of the grounds on which the appellant challenges Order 5 is made out. There are no issues of principle, or matters of public importance, and no clear factual or other error, such that it would be in the interests of justice to intervene.
2. The Appeal Panel refuses leave to appeal, and dismisses the appeal. There is no basis on which the stay sought could be granted, and that application is dismissed.
3. The orders of the Appeal Panel are: 1. The appeal is dismissed; 2. The application for a stay is dismissed; 3. The hearing listed for 20 October 2020 is confirmed.

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: 17 November 2020