Wojciechowska v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v Wojciechowska

Bruna v Health Care Complaints Commission [2025] NSWCA 105

BTH v The Public Guardian [2017] NSWCATAP 10

Complete Wardrobes & Showerscreens Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADT 67

Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 126

Edmonds v Barrington Winstanley Group Pty Ltd [2023] NSWCA 166

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2012) 250 CLR 303; [2013] HCA 46

Gallo v Dawson (1990) 64 ALJR 458; [1990] HCA 30

Ghazal v Masterton Homes Pty Ltd [2018] NSWCATAP 227

GR v Secretary, Department of Communities and Justice [2023] NSWCA 239

GTK v NSW Treasury [2025] NSWCATAP 174

Hamod v New South Wales [2011] NSWCA 375

Jackson v New South Wales Land and Housing Corporation [2014] NSWCATAP 22

Kelly v Westpac Banking Corporation [2014] NSWCA 348

Kyriakou v Long [2014] NSWCA 308

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Molyneux and Vermeesch v Chief Commissioner of State Revenue (RD) (No 2) [2013] NSWADTAP 41

NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; [2003] HCA 35

Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36

Pachkovski v Australian Executor Trustees Ltd [2011] NSWCA 94

Powell v Christensen [2025] NSWCATAP 181

R v Rogerson; R v McNamara (No 42) [2016] NSWSC 405

Toberty v Lacey [2017] NSWCATAP 28

Vorhauer v NSW Land and Housing Corporation [2019] NSWSC 809

Wakim v Kolotouros; Wakim v New South Wales [2017] NSWSC 697

Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492; [1947] HCA 21

Waters v Waghorn [2016] NSWCATAP 247

Paulina Wojciechowska (Appellant, Cross Respondent)

Secretary, Department of Communities and Justice (Respondent, Cross Appellant)

[2025] NSWCATAD 2

1. On 6 January 2025, the Tribunal made orders concerning several access applications under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) (the Decision). The Decision sparked an appeal from each of the parties. We refer to the appeal by Ms Wojciechowska as the appeal and the appeal by the Secretary, Department of Communities and Justice as the cross appeal (together, the appeals).
2. After several procedural steps, the appeals were listed for hearing on 16 September 2025. Shortly prior to the hearing, the appellant sought an adjournment of the appeals and, at the hearing, applied for a stay of the appeals. This decision concerns those applications; and also, the application by the cross appellant for an extension of time to lodge the cross appeal.

1. The Tribunal is empowered to adjourn proceedings at any time: s 51 Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). Relevant factors are not expressly identified in s 51 and the discretion is unconfined, save with respect to the subject matter, scope and purpose of the statutory regime: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 (Dixon J); [1947] HCA 21; NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; [2003] HCA 35. The discretion must be exercised judicially: Ghazal v Masterton Homes Pty Ltd [2018] NSWCATAP 227 at [54].
2. Without being exhaustive, the following provisions touch upon the exercise of the discretion:

(1) The objects of the Tribunal, as set out in s 3 of the NCAT Act include, to ensure that the Tribunal is accessible and responsive to the needs of all its users, to enable the Tribunal to resolve the real issues in the proceedings "justly, quickly, cheaply and with as little formality as possible" and to ensure the decisions of the Tribunal are "timely, fair, consistent and of a high quality".

(2) The guiding principle of the Tribunal as set out in s 36(1) of the NCAT Act to "facilitate the just, quick and cheap resolution of the real issues in the proceedings."

(3) The aim of proportionality of costs identified in s 36(4) of the NCAT Act.

(4) The obligation imposed by s 38(5)(c) of the NCAT Act to "ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings."

1. Even a brief review of the cases demonstrates that there are myriad reasons why an adjournment might be sought, although as the cases below demonstrate, not always granted, due to lack of evidence or countervailing factors. A common thread is that a person submits that the adjournment is necessary to allow them to avail themselves of a reasonable opportunity to be heard or have their submissions considered by the Tribunal: s 38(5)(c) NCAT Act. Examples include:

(1) Due to medical reasons a party is not available to prepare or attend a hearing: Vorhauer v NSW Land and Housing Corporation [2019] NSWSC 809 at [62]- [64] (Lonergan J), where the Supreme Court confirmed as correct the decision by the Appeal Panel that an adjournment should have been granted where the applicant was going to be in hospital during the hearing, and was therefore unable to attend and give oral evidence; see further cases Powell v Christensen [2025] NSWCATAP 181; Waters v Waghorn [2016] NSWCATAP 247.

(2) Due to inability to prepare for the hearing, such as unavailability of counsel or lack of access to legal resources. This was submitted to be the case in Edmonds v Barrington Winstanley Group Pty Ltd [2023] NSWCA 166, however the Court of Appeal found there was no denial of procedural fairness by the primary judge in dismissing an adjournment application, even where the applicant's legal counsel was unavailable, and where the applicant had difficulties accessing legal advice and preparing for the hearing by reason of her incarceration.

(3) More time is necessary to secure crucial evidence and there is no practical countervailing consideration to refuse delaying the decision: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [20] and [21] (French CJ).

(4) An engagement or change of legal representation: Toberty v Lacey [2017] NSWCATAP 28 at [19] and [20], where an adjournment was sought due to late engagement of legal representation. The adjournment was refused, as even though legal representation might assist, the Appeal Panel was satisfied that given the nature of the issues in the appeal, the applicant would have an appropriate opportunity to be heard without representation.

1. Without being exhaustive, examples of competing considerations include:

(1) The interests of justice, which include the efficient use of Tribunal resources and the impact on other pending cases: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (Aon Risk) at [27] (French CJ) and [114] (Gummow, Hayne, Crennan, Kiefel and Bell JJ); Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2012) 250 CLR 303; [2013] HCA 46 (Expense Reduction) per French CJ, Kiefel, Bell, Gageler and Keane JJ, where it was said at [51]:

"Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants."

(2) As referred to above, the Tribunal's guiding principle to facilitate the "just, quick and cheap resolution of the real issues in the proceedings": s 36 NCAT Act.

(3) The effect of an adjournment on the other party is delay, which brings with it a risk to witness memory, the limits of which are "well known and much discussed": Bruna v Health Care Complaints Commission [2025] NSWCA 105 at [58] (Bell CJ and Kirk JA). This is amongst other potential issues, like witness availability.

(4) Wasted costs for all concerned; although that may be ameliorated by an order for costs in appropriate cases: Hamod v New South Wales [2011] NSWCA 375 at [139]- [141] citing Aon Risk at [5] and [30] (French CJ), and [98] (Gummow, Hayne Crennan, Kiefel and Bell JJ). Although, we are mindful that under s 60 of the NCAT Act, there must be special circumstances before an award of costs may be made in cases such as this.

1. A prime consideration in relation to an adjournment application is the reason for the need for delay. There must be a "good reason" for the disruption: AHB v NSW Trustee and Guardian [2014] NSWCA 40 at [6] per Macfarlan JA, Gleeson JA agreeing [8], Leeming JA agreeing [9]. There must be "proven justification": Wakim v Kolotouros; Wakim v New South Wales [2017] NSWSC 697 at [34] (Fagan J).
2. One way to consider an adjournment application is to consider whether there would be a breach of procedural fairness, if the adjournment is not granted: for instance, Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 at [46] and [47] (Kiefel CJ, Gageler Nettle, Gordon and Edelman JJ). Whilst a self-represented party is not excused from the rules, the relative position of the parties is significant; and what is an adequate time to prepare will depend on the circumstances: Kelly v Westpac Banking Corporation [2014] NSWCA 348 at [42]- [43].
3. Another way to consider this is to ask whether, when there is a basis for the adjournment, there is no good or apparent reason to refuse it: Minister for Immigration and Citizenship v Li at [82] (Hayne, Kiefel and Bell JJ); GR v Secretary, Department of Communities and Justice [2023] NSWCA 239 at [178] (Basten AJA).
4. Even where there is what is, on the face of it, a reasonable excuse, there must be cogent evidence of the reason for delay: Pachkovski v Australian Executor Trustees Ltd [2011] NSWCA 94 at [4] per Hodgson JA, McColl JA agreeing at [7], Campbell JA agreeing at [8]; Waters v Waghorn [2016] NSWCATAP 247.
5. Also relevant is the utility of the adjournment: Kyriakou v Long [2014] NSWCA 308 at [23] per Meagher JA, Basten JA agreeing [1]; R v Rogerson; R v McNamara (No 42) [2016] NSWSC 405 at [62] (Bellew J).

1. The appellant contended that the reason the adjournment was required is so that she may file all her evidence and written submissions and put her case before the Appeal Panel. The appellant explained, orally at the hearing of the appeals, that the reason this had not yet been done was due to the trauma she experiences on receiving materials in relation to these and other proceedings, and that she is blocked in preparing succinct and pertinent written materials. This extended to preparing a witness statement in relation to the application for an adjournment. The appellant noted that, in the past, the Tribunal has not accepted, as evidence, statements from her from the Bar table and therefore seeks the time she needs to prepare her statement.
2. The appellant did not file an affidavit, from her, to support her application for an adjournment. Nonetheless, the absence of a sworn written or oral statement from the appellant as to the difficulties she has had preparing for the appeal, does not necessitate the conclusion that we should ignore what she has said. The Tribunal may inform itself as it sees fit, subject to the rules of natural justice: s 38(2) NCAT Act. With respect to natural justice, it is significant that there was no opportunity for the cross appellant to cross examine the appellant on what she said at the hearing of the appeals. Nevertheless, and whilst we do not consider what was said orally as being uncontested, we give it some weight. The appellant's contentions were consistent with evidence filed by the appellant from her husband, who deposes to having observed the difficulties the appellant has in attending to correspondence from the cross appellant or the Tribunal. He has observed the distress that receipt of such documents causes and noted that the appellant will delay opening correspondence in order to "postpone the distress" and in some cases delays reading written reasons for decision to "minimise the distress they cause her." Whilst the cross appellant did not seek to cross examine the appellant's husband, they submitted the evidence should be rejected. However, we gave his observations some weight. Further, whilst no medical evidence was filed in support of the appellant's difficulties, we do not consider that this counts against the appellant as the appellant did not couch the difficulties as stemming from a medical condition.
3. The cross appellant submitted that even if the appellant's case was accepted, in the whole of the circumstances, it does not go far enough to:

(1) justify the adjournment sought;

(2) excuse breaches of Tribunal orders to file material; or

(3) explain the want of constructive progress in the appeals.

(1) The Decision was delivered on 6 January 2025.

(2) On 7 March 2025, the Tribunal ordered the appellant to file and give to the cross appellant her evidence, written submissions and a typed transcript of the relevant parts of the first instance hearing and a sound recording of the entire hearing, by 12 May 2025.

(3) The appeal was listed for 18 July 2025.

(4) The appellant did not file and serve her materials and on 2 June 2025, the Tribunal made orders relisting the appeals for a compliance hearing on 24 June 2025.

(5) At the compliance hearing on 24 June 2025 the Principal Member vacated the hearing date of 18 July 2025.

(6) Ultimately, the appeal was listed for 16 September 2025.

1. To date, the appellant has filed no evidence or written submissions in relation to the appeals. However, the appellant did file a Reply to Appeal in relation to the cross appeal.
2. Relevantly, the cross appellant filed evidence and submissions and the evidence includes a transcript of the hearing and a sound recording.
3. In order to assess the utility of any adjournment, the Appeal Panel asked the appellant to identify what she would file, if given a further opportunity to do so. The appellant indicated that she would file the following:

(1) An affidavit from herself. The affidavit would pertain to the following:

(a) The happenings at a particular conference where she contends legal professional privilege was waived by the cross appellant.

(b) That her application regarding the CCTV footage is an application for a copy of the CCTV footage rather than rights to view the CCTV footage.

(c) The grounds of appeal relating to apprehended bias.

(d) The way in which the respondent dealt with her initial applications under the GIPA Act.

(2) A document which purports to identify policy or procedures in relation to destruction of documents (which the cross appellant did not object to the Appeal Panel receiving and which was ultimately tendered by the appellant).

(3) Written submissions.

1. After some discussion, the appellant accepted that with respect to items (1)(b), (1)(c) and (1)(d) in the previous paragraph, these could be gleaned from the record already before the Appeal Panel, including the transcript and sound recording.
2. Four final matters are relevant to note before we proceed to determine the adjournment application.
3. First, as a result of the interlocutory applications, it was not likely to be possible to complete the appeals in the time allocated and the matters were inevitably destined to be marked part heard and adjourned to a later date.
4. Second, as noted, the appellant also seeks a stay of the appeals primarily for the reason that, at first instance, the Tribunal remitted some aspects of the access applications to the cross appellant and as at the date of the hearing, those matters have not been the subject of further decisions by the cross appellant. The appellant highlights that to proceed with these appeals while there are yet outstanding matters in the first instance proceedings risks fragmenting the matter. The stay application somewhat overtakes the application for an adjournment, but as it may be possible to progress some aspects of the appeal and to stay other parts of the appeal and as the reasons for a stay are different to the reasons for an adjournment, the Appeal Panel has resolved to address the questions of an adjournment in any event.
5. Third, the Appeal Panel accepts that with delay comes the risk of prejudice to the cross appellant, in circumstances where the cross appellant is ready to proceed with their appeal and to proceed on that appeal would risk fragmenting issues. There is also the risk of costs thrown away, which may or may not ultimately be compensable.
6. Fourth, there is also the prejudice to the administration of justice. As the cases referred to above indicate, this is no small issue: Complete Wardrobes & Showerscreens Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADT 67 at [39]- [49].

Conclusion in relation to the adjournment application

1. Whilst we do not accept that, in light of the several directions hearings and extensions of time already granted, the evidence relied upon by the appellant is sufficient to explain the delay or demonstrate that to refuse an adjournment would deprive the appellant of a reasonable opportunity to be heard, as events transpired, there is no utility in granting an adjournment as sought by the appellant and it should be refused for that reason.
2. Even accepting that the appellant was blocked by her trauma response in finalising her evidence and written submissions, the appellant was not precluded from an opportunity to present her case. First, the cross appellant filed much of the material the appellant intended to rely on. Second, the appellant filed, without objection, the policy document she had foreshadowed was sought to be relied upon. Third, the Appeal Panel asked the appellant if she would be comfortable to proceed with oral submissions, to which she relied affirmatively.
3. This leaves only the appellant's statement relevant to the issue of waiver of legal professional privilege and given the turn of events, some short additional time is available for that to be filed and served and the Appeal Panel will consider whether to receive it, after hearing from the cross appellant, at the next hearing.
4. The adjournment is refused.
5. Without prejudice to each party's rights, in order to save time and resources, the parties agreed to the Appeal Panel receiving the appellant's submissions orally. In the time remaining, the appellant ably delivered her submissions orally, save with respect to an aspect concerning collective ministerial responsibility, which can be dealt with at a further hearing. The appellant also relied on her amended grounds of appeal.
6. Whilst the cross appellant must be given time to consider and respond to the oral submissions and the amended grounds of appeal, this is naturally catered for by the proceedings going overtime, in any event.

1. As here, where there is no specific legislative basis to do so, the Tribunal has power to stay proceedings under s 38 of the NCAT Act (the power to determine its own procedures): Alexakis v Health Care Complaints Commission [2021] NSWCA 217 at [6]. The granting of an interlocutory stay is an interlocutory decision (s 4(1) of the NCAT Act): BTH v The Public Guardian [2017] NSWCATAP 10 at [50]. Further, the Appeal Panel, in exercising the Tribunal's internal appeal jurisdiction, has the jurisdiction to make ancillary and interlocutory decisions in proceedings: s 32(2)(a) NCAT Act.
2. The concepts of a stay of proceedings and adjournment of proceedings may overlap depending on the length or purpose of the hiatus. In the latter case, the break in the proceedings may not bring with it any suggestion that the parties ought to be continuing (whether behind the scenes or overtly) to progress the matter, whereas in the former case, that may be required.
3. Here, the appellant seeks a stay of the appeal until orders concerning remittal under s 65 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) run their course. Under the Decision, the Tribunal remitted certain aspects of the application to the cross appellant, under s 65 of the ADR Act: orders (2)(f) and (2)(g) (the s 65 orders). Reconsideration by the cross appellant of matters the subject of the s 65 orders had not yet completed by the time of the hearing of the appeals; notwithstanding the passage of many months. To this end, the Appeal Panel was advised that the appellant had brought an application to the Tribunal on the basis of what she described as a "deemed refusal" (the s 65 proceedings). The s 65 proceedings are currently before a Tribunal Member. The application for a stay of the appeals is submitted to be for the purpose of ensuring that any appeals (from the Appeal Panel in these appeals and from any appeals in relation to the s 65 proceedings) are not fragmented and that there is no wasting of the Appeal Panel's or either party's time and resources, while the s 65 proceedings catch up or are resolved.
4. In the usual course of a remittal under s 65 of the ADR Act, a decision maker may, on reconsidering the decision, do one of several things: affirm, vary or set aside the original decision and in substitution make a new decision. Correlatively, the access applicant may:

(1) if the decision is not varied or substituted, proceed on the application for review, as it was, or

(2) if the decision is varied or substituted, proceed on the application for review on that varied or substituted decision; or

(3) withdraw the application.

1. This is consistent with what was said in Molyneux and Vermeesch v Chief Commissioner of State Revenue (RD) (No 2) [2013] NSWADTAP 41 at [17]- [18], as follows:

"[17] Contrary to the parties' submissions, a decision under s 65 of the ADT Act is an interlocutory decision: Roads and Traffic Authority, New South Wales v Hutchinson (GD) [2007] NSWADTAP 28 at [12].

[18] Pursuant to s 65(2) of the ADT Act, if a decision is remitted to an administrator, the administrator may affirm, vary or set aside the decision and make a new decision. If the administrator varies or sets aside the decision, the application "is taken" to continue and the applicant may proceed or withdraw the application: s 65(3) and (4) of the ADT Act. The legislation does not expressly identify the consequences if the decision is neither varied nor set aside by the administrator, but it is implicit that if the decision is affirmed the proceedings continue. There is no need for the proceedings to "be taken" to continue: the same decision remains the subject of the review. We note that the position under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) is different. Section 42D of the AAT Act expressly provides that the Application may continue whether the decision is varied, set aside or remains the same (our emphasis): s 42D(3), (4) and (8) AAT Act."

1. In the usual course, it is only once the reconsidered decisions are made that the administrative review would continue. However, as noted, the Appeal Panel was informed that the appellant had instigated an application to progress the s 65 proceedings notwithstanding no decision yet from the cross appellant in relation to the decisions the subject of the s 65 orders. In any event, it is clear that, on the present state of matters, the appellant intends to progress the administrative review which might lead to appeals to the Appeal Panel in relation to the decisions the subject of the s 65 orders.
2. As noted above, the grounds relied on for the stay were different to the grounds relied upon in relation to the adjournment application. That said, we see that in exercising the discretion to grant a stay, the same legislative provisions and the principles derived from the cases referred to in relation to an adjournment (as stated above) are pertinent. The question for the Appeal Panel is whether it is in the interests of justice to effectively halt the progress of the appeals. There must be a clear reason to do so.
3. In the appeal before us, the appellant has challenged the s 65 orders themselves: see Ground 6 of the Amended Grounds of Appeal. Accordingly, it may not be said that there is no overlap between the appeals and the s 65 proceedings; and it follows, any appeal to the Appeal Panel from the s 65 proceedings. Nevertheless, when one has regard to the s 65 orders themselves, they relate to very discrete aspects of the Decision. The appellant maintained that even though there were only two orders concerning s 65, they affected three of the Tribunal's orders. These were as follows:

"(f) Pursuant to s 65(1) of the Administrative Decisions Review Act 1997, the Respondent's implied decision that it does not hold information responsive to Item 10 is remitted to the Respondent for reconsideration in accordance with these reasons.

(g) The Respondent's decision in relation to Items 6, 7 and 9 (apart from Ms Britton's CV) is set aside. The following decision is made in substitution for that decision:

Access to the information is refused because there is an overriding public interest against disclosure.

(h) Pursuant to s 65(1) of the Administrative Decisions Review Act 1997, the Respondent's decision not to give access to Ms Britton's CV is remitted to the Respondent for reconsideration in accordance with these reasons."

1. To this we add Ground 6 of the Amended Grounds of Appeal:

"Failure to make final orders or, in the alternative, making indeterminate orders."

1. The majority of the grounds of appeal and of the cross appeal are not affected by the s 65 orders.

Consideration and conclusion in relation to a stay of proceedings

1. In relation to whether it is in the interests of justice to stay the appeals, we are concerned that if the appeals are stayed, it may be many months before the s 65 proceedings catch up; thus introducing significant delay in the appeal process. First, the s 65 proceedings must be resolved. Then, there are appeal periods to consider. Finally, hearing of the appeals (along with any appeals in relation to the s 65 proceedings) will need to be heard and determined by the Appeal Panel and the Appeal Panel will no doubt require time to consider and then deliver its decision. This is a significant delay, which is contrary to the guiding principle of providing a just, quick and cheap resolution to the real issues in the proceedings. It brings with it risks of prejudice to the cross appellant and to the administration of justice as discussed in Aon Risk and Expense Reduction.
2. Conversely, it may ultimately not be necessary for the s 65 proceedings to catch up, as the cross appellant may vary the original decision in such a way that further proceedings are unnecessary or the matters are otherwise satisfactorily resolved during or as a consequence of the s 65 proceedings. Further, as the s 65 proceedings concern discrete issues, the majority of the grounds of appeal and the cross appeal are not themselves impacted by the outcome of the s 65 proceedings.
3. The main reason to grant a stay is to avoid fragmenting the appeal process. However, this may be accommodated by the Appeal Panel hearing and determining the appeals and (assuming the decision in relation to the appeals is ready before the s 65 proceedings catch up) staying the making of or the operation of the orders of the Appeal Panel to avoid triggering appeal periods; if that turns out to be the prudent course. The Appeal Panel would hear the parties on the way this might be achieved, in due course, if it was ultimately necessary.
4. On balance, it is not in the interests of justice to stay the appeals and the application for a stay is refused.

1. Subsequent to the hearing of the appeals there was progress in the s 65 proceedings. The cross appellant is to give the appellant its decision in relation to the documents the subject of the s 65 orders by 17 October 2025. The appellant sought, and the cross appellant objected to, an adjournment of the directions hearing in these appeals, listed for 7 October 2025, to await those decisions. As there is no guarantee that the cross appellant's decision will satisfy the appellant, the Appeal Panel does not consider this alters the balancing exercise. The result that the stay is refused is not disturbed. However, the directions hearing was vacated to give the parties time to consider these reasons for decision and to provide available dates for a resumed hearing of the appeals and to identify the necessary timetabling orders.

1. The power to grant an extension of time is found in s 41 of the NCAT Act; and the discretion may be exercised notwithstanding that the relevant period of time has already expired, subject to jurisdictional temporal limits which are not relevant here. Once again, the relevant criteria are not enumerated, and the discretion must be exercised judicially by reference to the subject matter, scope and purpose of the statutory regime. The ability to grant an extension of time ensures that time limits do not themselves become an instrument of injustice: see GTK v NSW Treasury [2025] NSWCATAP 174 at [94] there citing Gallo v Dawson (1990) 64 ALJR 458 at 459; [1990] HCA 30. The Appeal Panel has countless times followed Jackson v New South Wales Land and Housing Corporation [2014] NSWCATAP 22 at [22] where the pertinent factors were identified as follows:

(1) length of the delay;

(2) reasons for delay;

(3) the prospects of success, and

(4) the extent of any prejudice suffered by the opposing party.

1. A Notice of Appeal is to be lodged with the applicable filing fee within 28 days from the later of the date on which the decision to be appealed was notified to the appellant or the date the reasons for decision were given: r 25 Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules). The Rules also explain how time is reckoned; and in particular, that where a time limit is by reference to a "given day" that day is not counted: r 6 NCAT Rules; Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 126 at [70]. Here, this means that the date of the Decision (6 January 2025) is not counted. Accordingly, the date for lodging an appeal from the Decision was by 3 February 2025.

Consideration and conclusion regarding an extension of time

1. The cross appeal was lodged with the Tribunal's Registry on 19 February, though due to an issue (not of the cross appellant's making) concerning the correct filing fee, a sealed copy of the Notice of Appeal was issued on 21 February, and the Tribunal issued a notice of listing to the parties. The Notice of Appeal was therefore filed 16 days late, if taken from 19 February or 18 days late, as taken from 21 February. In circumstances where there was a long delay between hearing of the first instance decision on 2 February 2024 and the Decision and where the delay in lodging the appeal is less than 3 weeks, we would not consider this an extensive delay.
2. The reasons for the delay include that the solicitor with carriage of the matter was on annual leave from before the Decision was delivered, until 29 January; including some time spent overseas. Another solicitor notified the cross appellant of the outcome of the Decision but was also away between 13 and 27 January.
3. Neither the solicitor with carriage of the matter, nor the solicitor who acted in his absence, considered appealing until after the appeal itself was filed. Reasons for this included that the solicitor with carriage considered that the cross appellant had been largely successful in the first instance proceedings. It was not until 11 February 2025 that the solicitor with carriage was instructed to act for the cross appellant on the cross appeal.
4. The nature of the cross appeal concerns the statutory construction of the expression "excluded information" in schedule 4, and schedule 2, of the GIPA Act. Several matters flow from this:

(1) The cross appeal does not depend on witness memory and therefore does not raise the spectre of prejudice from this front.

(2) The cross appeal is on a very confined point of statutory construction.

(3) From the written submissions received, the cross appeal is not, on its face, unarguable.

(4) The cross appeal raises an important point of principle.

1. It is notable that the ground of appeal in the cross appeal raises issues that may be relevant to grounds of appeal raised by the appeal and therefore, in any event will be canvassed to some degree.
2. The appellant contended that the extension of time ought not be granted. First, even assuming the solicitors were unavailable, there is no explanation from the cross appellant as to why the appeal could not have been filed by them or whether they turned their mind to it. Second, it ought not be relevant to the question of whether to appeal or not whether the other party has sought to appeal.

1. On the one hand, in the scheme of the proceedings, it is not a long delay. Further, the Decision was delivered during January when the solicitor with carriage and the alternate solicitor had time away. Where a party is represented and their solicitor is away for a short period, we do not consider it necessary for the party to themselves explain why they did not appeal without the advantage of first hearing from their solicitor. Further still, the appellant (i.e., the cross respondent) has not pointed to any identifiable prejudice caused by the delay. Finally, the issue is a confined point of statutory construction which raises an important point of principle and on its face is not unarguable and may in any event arise in the appeal.
2. On the other hand, not every day of the delay has been explained, and we are not persuaded as to the relevance of the timing of the appeal on the decision of the cross appellant to appeal. Even though we have referred to it as a cross appeal, it is nonetheless an appeal. Nevertheless, we do not consider that the cross appellant made a forensic choice not to appeal, and these factors do not outweigh the factors in the previous paragraph.
3. On balance the Appeal Panel considers it is in the interests of justice to grant the extension of time.

(1) The application for an adjournment is refused.

(2) The application for a stay is refused.

(3) The appellant in matter 2025/00066768 is granted an extension of time to 21 February 2025 to file the appeal.

(4) The parties are to provide to the Registry, within 7 days of the date of these reasons, available dates for the appeals to be heard by the Appeal Panel, as well as a suggested timetable for other procedural orders. In the event a further Directions Hearing is necessary, the parties may approach the Registry for the appeals to be so listed.

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.