York v Council of the Law Society of New South Wales

Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176;

Grabovsky v Department of Communities and Justice [2025] NSWCATAP 192

Houda v Seraphim [2025] NSWCATAP 135

Konstantinidis v Council of the Law Society of New South Wales [2018] NSWCA 59

Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; [2005] HCA 28

Patrick v Secretary, Department of Communities and Justice [2025] NSWCATAP 206

SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55

Singh v Health Care Complaints Commission [2023] NSWCATAP 240

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Council of the Law Society of New South Wales (Respondent)

York v Council of the Law Society of New South Wales [2025] NSWCATOD 152

1. This is an internal appeal from the decision of the Tribunal made on 11 November 2025 in proceedings in the Occupational Division (OD) between Stephen York (Mr York) and Council of the Law Society of New South Wales (the Council) whereby it dismissed the administrative review application of Mr York for want of jurisdiction: York v Council of the Law Society of New South Wales [2025] NSWCATOD 152 (the OD proceedings, the OD application or the OD decision according to the context).
2. At my direction the parties have addressed the issue of whether the Appeal Panel has jurisdiction to determine the appeal (the jurisdiction issue).
3. I have decided to dismiss on the appeal on the ground that the Appeal Panel does not have jurisdiction to determine the appeal.

1. On 17 August 2018, Mr York was admitted to the Supreme Court of New South Wales as a solicitor. Since admission, he has held a practising certificate, subject to conditions including condition 2 which provides that he must engage in supervised legal practice until he has completed two years of supervised legal practice, or is exempted from the supervision requirement, or the period is reduced on the grounds of previous legal practice (condition 2). This requirement derives from s 49 of the Legal Profession Uniform Law (NSW) (Uniform Law) and r 14 of the Legal Profession Uniform General Rules 2015 (NSW).
2. In March and April 2025, Mr York acted as a solicitor in breach of condition 2.
3. On 5 May 2025, Mr York made a renewal application for the grant of a practising certificate for the 2025/2026 practice year.
4. On 18 July 2025, the Director, Legal Regulation Professional Standards of The Law Society of New South Wales (the Director) in her letter of that date to Mr York advised that the Council proposed to renew his practising certificate and to impose discretionary conditions on his practising certificate relating to further education (the discretionary conditions), and requested him to notify it whether he consented to the discretionary conditions.
5. On 1 August 2025, Mr York in a letter of that date to the Director advised that he accepted the discretionary conditions.
6. On 18 August 2025, the Director in her letter of that date to Mr York advised that the Council decided to approve the renewal of his practising certificate application subject to condition 2 and the discretionary conditions (the Council decision).
7. On 18 September 2025, Mr York commenced the OD proceedings by lodging the OD application in which he sought an administrative review of the Council decision.
8. On 11 November 2025, the Tribunal constituted by Seiden SC DCJ, Deputy President made the OD decision comprising:

"(1) The Tribunal dispenses with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(2) The application is dismissed for want of jurisdiction.

(3) The directions hearing on 12 November 2025 is vacated."

(2) the following statement of reasons (the dismissal reasons) in which:

(a) it summarises the reasons for the OD decision that the Tribunal does not have jurisdiction to review the Council decision ([1]-[4]):

(i) neither in substance nor form has the Council refused to grant or renew Mr York's practicing certificate under the provision relied upon by him, or otherwise;

(ii) the Council decision was not made under a provision of an Act that enlivens the Tribunal's administrative review jurisdiction, and so is not a decision that is reviewable by the Tribunal;

(b) it summarises the nature of the Council decision and notes that Mr York contends was made under s 89 of the Uniform Law, and so enlivens the Tribunal's review jurisdiction under s 100(1)(b) of the Uniform Law ([5]-[7]);

(c) it summarises how the Tribunal derives administrative review jurisdiction ([8]-[13]);

(d) it identifies the two central issues ([14]-[15]):

(i) whether the Council decision is a decision under ss 89 or 92 of the Uniform Law to refuse to grant or renew a practising certificate; or

(ii) whether the Council decision is a decision under ss 89 or 92 to vary or impose a condition on Mr York's practising certificate;

(e) it summarises the background to the Council decision and the submissions of Mr York ([16]-[26]):

(i) the Council decision amounts to constructive refusal to grant him a practising certificate;

(ii) the Council decision was a decision under s 89 of the Uniform Law;

(iii) he does not seek to review a decision of the Council made under either ss 89 or 92 of the Uniform Law;

(f) it finds that the Council decision is not a decision of the Council under either ss 89 or 92 of the Uniform Law that could be subject to review in the Tribunal ([27]-[38]);

(g) it finds that the Council decision is not a decision of the Council to refuse to grant the practising certificate ([39]-[40]);

(h) it finds that viewing the Council decision as a decision of the Council to impose a condition does not alter the result because as Mr York does not challenge the decision to impose condition 2 the Tribunal is not the designated tribunal for a review or appeal under s 100(1)(b) of the Uniform Law ([41]-[44]);

(i) it finds that a hearing should be dispensed with ([45]-[49]);

(j) it finds that the Tribunal is properly constituted ([50]);

(k) it set out its conclusion ([51]-[52]):

"51 The 18 August decision is not a decision to refuse to grant or renew a practising certificate. In any event, as described above, the action taken by the Council in the 18 August decision did not follow either an automatic show cause event under s 89, nor a designated show cause event under s 92 of the Uniform Law. Accordingly, even if it is a reviewable decision, the designated tribunal for the appeal or review of the 18 August decision is the NSW Supreme Court, not NCAT: s 11(3) of the Application Act.

52 NCAT has no authority to review the 18 August decision."

1. On 8 December 2025, Mr York as the appellant commenced this appeal against the Council as the respondent by lodging the following documents:

(1) a notice of appeal in which he challenges the OD decision:

(2) the affidavit of himself sworn on 7 December 2025 (the 7 December 2025 York affidavit).

1. On 23 December 2025, the Appeal Panel constituted by myself made procedural directions for the hearing of the jurisdiction issue.
2. On 6 January 2026, Mr York lodged Appellant's Submissions dated 6 January 2026 (the York jurisdiction submissions).
3. On 3 February 2026, the Council lodged Respondent's Written Submissions dated 3 February 2026 (the Council jurisdiction submissions).
4. On 9 February 2026, Mr York lodged Appellant's Written Reply Submissions dated 9 February 2026 (the York jurisdiction submissions in reply).

1. The determination of the jurisdiction issue will involve answering the following two questions:

(1) whether a hearing of the jurisdiction issue should be dispensed with;

(2) whether the appeal should be dismissed.

Whether a hearing of the jurisdiction issue should be dispensed with

1. The Council consents to a hearing of the jurisdiction issue being dispensed with, and Mr York has submitted that this issue is capable of being determined on the papers.
2. I am satisfied that the issues for determination in relation to the jurisdiction issue can be adequately determined in the absence of the parties by considering the evidence of Mr York and their written submissions. Accordingly, I have decided pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to make an order dispensing with a hearing of the jurisdiction issue.

1. Before considering this issue, I have set out the applicable statutory provisions and summarised the relevant legal principles, the evidence of Mr York and the submissions of the parties.

1. Part 1 (ss 1-6) contains preliminary provisions. Section 3 specifies the objects of the NCAT Act, and relevantly states:

The objects of this Act are -

...

(c) to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and

...

1. Section 4 contains definitions and relevantly states:

...

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) ...

1. Part 3 (ss 28-34) contains provisions dealing with the jurisdiction of the Tribunal. Section 32 deals with the internal appeal jurisdiction of the Tribunal, and relevantly states:

(1) The Tribunal has internal appeal jurisdiction over -

(a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and...

...

(4) An internally appealable decision is a decision of the Tribunal or a registrar over which the Tribunal has internal appeal jurisdiction.

...

1. Part 4 Division 1 (ss 35-38) contains introductory provisions dealing with the practice and procedure of the Tribunal. Section 36 deals with the guiding principle to be applied to the practice and procedure of the Tribunal, and relevantly states:

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.

...

(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.

...

1. Sch 5 relates to the OD. Part 1 (cl 1) of Sch 5 contains provisions dealing interpretation. Clause 1 contains definitions, and relevantly states:

...

(2) Except as otherwise provided by this Schedule, a provision of this Schedule that provides for, or limits or excludes, an appeal against a decision of the Tribunal that is made for the purposes of specified legislation (or a specified provision of legislation) is taken to extend to any ancillary or interlocutory decision of the Tribunal in the proceedings in which that decision was made.

1. Part 6 (cl 29) of Sch 5 contains provisions dealing with appeals against certain OD decisions. Clause 29 deals with OD decisions that are not internally appealable, and relevantly provides:

29 Certain profession decisions to be appealed directly to Supreme Court or Land and Environment Court

(1) Profession decisions not internally appealable Despite section 32 of this Act, each of the following Division decisions (a profession decision) is not an internally appealable decision for the purposes of an internal appeal -

...

(e) a decision for the purposes of the Legal Profession Uniform Law (NSW),

...

1. Part 3.5 Div 4 contains provisions dealing with the show cause procedure for the variation, suspension or cancellation of, or the refusal to renew, practising certificates. Subdivision 2 (ss 86-89) deals with automatic show cause events. Subdivision 3 (ss 90-92) deals with designated show cause events.
2. Part 3.6 (ss 99-101) contains provisions dealing with an appeal or review about practising certificates. Section 100 deals with the right of appeal or review about Australian practising certificates, and relevantly states:

100 Right of appeal or review about Australian practising certificates

(1) An applicant for or the holder of an Australian practising certificate may, in accordance with applicable jurisdictional legislation, appeal to the designated tribunal against, or seek a review by that tribunal of, any of the following decisions of the designated local regulatory authority under this Chapter -

(a) a decision to refuse to grant or renew the Australian practising certificate;

(b) a decision to vary, suspend or cancel the Australian practising certificate or, without limitation, to impose a condition on the Australian practising certificate;

...

1. In Grabovsky v Department of Communities and Justice [2025] NSWCATAP 192 (Grabovsky) at [98]-[105], the Appeal Panel made general observations about the Tribunal's jurisdiction, which included the following summary of principles at [105]:

"In our view, the following principles emerge from these cases and legislative provisions concerning the identification of, and limitations on, the Tribunal's jurisdiction:

(1) The Tribunal must be independently satisfied that it has jurisdiction to determine a matter regardless of the views of the parties.

(2) Although a party invoking the jurisdiction of the Tribunal is ordinarily expected to point to the legislation conferring jurisdiction, it is ultimately a matter for the Tribunal to decide whether it has jurisdiction because of its duty to remain within the confines of its jurisdiction.

(3) There must be legislation (in the narrow sense defined by both the ADR Act and NCAT Act) that confers authority on the Tribunal to decide a matter in dispute.

(4) The Tribunal does not have inherent jurisdiction based simply on the fact that it is a civil and administrative tribunal. Consequently, it cannot provide a forum for vindicating rights and remedying wrongs based merely on notions of injustice, wrongdoing or the public interest."

1. In Singh v Health Care Complaints Commission [2023] NSWCATAP 240 (Singh) the Appeal Panel considered whether it had jurisdiction to hear the appeal against the decision of the Tribunal in the OD against the refusal to grant access to documents produced in answer to two summons, and held the decision was not an internally appealable decision because it was a decision "for the purposes of" the Health Practitioner Regulation National Law (NSW) (National Law) within the meaning of cl 29(1)(d) of Sch 5 to the NCAT Act. The Appeal Panel did not agree with the contention of the appellant that an ancillary and interlocutory decision, such as in respect of the issuing of a summons, should not be regarded as being for the purposes of the National Law but simply a decision for the purposes of the NCAT Act, and at [53]-[58] held:

"[53] In our view, consistent with the ordinary meaning of the term 'for the purposes of', the Decision which dealt with the production of documents under summonses issued in the disciplinary proceedings under the National Law were for the 'purposes of' those proceedings and hence, also the National Law itself within the meaning of clause 29(1)(d) of Schedule 5 of the NCAT Act.

[54] Where the ordinary meaning of the term 'for the purposes of' is broader than 'under' there is no reason to assume that Parliament intended that the former phrase should be interpreted consistently with a different and narrower phrase.

[55] If one were to ask the question what were the 'purposes of' issuing the summonses for production, the obvious and sensible answer is that the summonses were issued for the purposes of pursuing the Appellant's defence in the disciplinary proceedings pursuant to or under the National Law. Similarly, it seems reasonably clear to us, that the purposes of the orders in question were to allow for the orderly and efficient course to be taken in the conduct of the disciplinary proceedings under or pursuant to the National Law.

[56] In our view, interlocutory decisions which provide for the orderly conduct of disciplinary proceedings under the National Law can be fairly and correctly described as being decisions 'for the purposes of the National Law'.

[57] Our conclusion that the orders should be regarded as being 'for the purposes of the National Law' is reinforced by s 4(2) of the NCAT Act which provides as follows:

A reference in this Act (however expressed) to the exercise by the Tribunal of its functions in relation to other legislation includes a reference both to its functions under the legislation and its functions under this Act in relation to the legislation.

[58] This encapsulates our conclusion that the interlocutory decision in question whilst made under the NCAT Act should also be taken to be for the purposes of the National Law within the meaning of clause 29(1)(d) of Schedule 5."

1. There has been some debate concerning whether appeals against decisions of the Tribunal dismissing proceedings for want of jurisdiction are interlocutory decisions or ancillary decisions which has had its genesis in observations made by Basten JA in AQO v Minister for Finance and Services (2016) 93 NSWLR 46; [2016] NSWCA 248 at [127]. Recent decisions of the Appeal Panel have treated the decision of the Tribunal at first instance dismissing an administrative review application for want of jurisdiction as an ancillary decision rather an interlocutory decision: Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176 at [21]−[22]; Grabovsky at [65]-[72].
2. In Konstantinidis v Council of the Law Society of New South Wales [2018] NSWCA 59 (Konstantinidis) the New South Wales Court of Appeal considered an appeal against the decision of the Tribunal that it had jurisdiction to entertain proceedings commenced by the Council against the solicitor under the predecessor of the Uniform Law. The Court (Payne and White JJA; Emmett AJA) at [17] rejected the Council's submission that the Tribunal's decision was not a decision "for the purposes" of the predecessor legislation within the meaning of cl 29(1)(e) when read with cl 1(2) of Sch 5 to the NCAT Act:

"The Council's submission that the Tribunal's decision was not a decision "for the purposes" of the Legal Profession Act should be rejected. Clause 1(2) in Schedule 5 to the Tribunal Act is sufficient to dispose of this question. Clause 1(2) of Schedule 5 provides that except as otherwise provided, a provision in Schedule 5 that provides for, or limits or excludes, an appeal against a decision of the Tribunal that is made for the purposes of specified legislation (or a specified provision of legislation) is taken to extend to any ancillary or interlocutory decision of the Tribunal in the proceedings in which that decision was made. Accepting (as the parties did) that the decision of the Tribunal was an ancillary decision, the effect of that clause is that a provision providing for an appeal against a decision of the Tribunal extends to an appeal from any ancillary decision of the Tribunal."

1. Mr York in the 7 December 2025 York affidavit has given uncontroversial evidence as to the correspondence relevant to the appeal between himself and the Director.

1. Mr York in the York jurisdiction submissions relevantly submits:

(1) by way of introduction, the Tribunal does have internal appeal jurisdiction because the OD decision is not a "substantive decision of the Occupational Division for the purposes of the Legal Profession Uniform Law (NSW)" within the meaning of cl 29(1)(e) of Sch 5 to the NCAT Act. Properly characterised, the OD decision is a threshold and procedural decision, not a substantive determination made for the purposes of the Uniform Law. Clause 29(1)(e) therefore does not apply;

(2) as to the statutory framework, cl 29(1)(e) operates as a specific exclusion from the general right of internal appeal. As such, it is to be construed narrowly, according to its text and purpose;

(3) as to proper characterisation of the OD decision, the character of a decision, for jurisdictional purposes, is determined by its substance and legal effect, rather than by the Division in which it was made or the statutory context in which it arose. The OD decision did not determine any substantive question arising under the Uniform Law. In particular, it did not involve professional misconduct or unsatisfactory professional conduct, or suspension or cancellation of a practising certificate, or the imposition of final disciplinary sanctions, or any determination of rights, duties, or status conferred by the Uniform Law. The OD decision did not itself impose, vary, confirm, or remove any conditions on his practising certificate. Instead, the OD decision was a procedural and jurisdictional determination, determining whether the OD application could proceed and on what basis. Such a decision is anterior to, and distinct from, the exercise of disciplinary or regulatory power under the Uniform Law;

(4) as to the meaning of the expression "for the purposes of the (Uniform Law)" in cl 29(1)(e), the words "for the purposes of" require a direct and substantive connection between the decision and the statutory purposes of the Uniform Law. A decision is not made "for the purposes of" the Uniform Law merely because the subject matter involves a legal practitioner, or the proceedings occur in the OD, or the Uniform Law provides part of the background context. If Parliament had intended to exclude all OD decisions involving legal practitioners from internal appeals, it could have done so in clear terms. It did not. The narrower formulation adopted in cl 29(1)(e) reflects a legislative intention to exclude internal appeals only in respect of substantive Uniform Law determinations, not procedural or jurisdictional rulings of the kind made in the OD decision;

(5) as to why procedural and jurisdictional decisions are not excluded from being an internally appealable decision, decisions determining threshold issues such as jurisdiction, standing, procedural compliance, or access to the Tribunal are not properly characterised as decisions made "for the purposes of" the Uniform Law. Such decisions do not advance, implement, or enforce the regulatory objectives of the Uniform Law. They determine only whether and how a matter may be heard. To construe cl 29(1)(e) as excluding internal appeals from all procedural or jurisdictional decisions would produce the anomalous result that: threshold errors could not be corrected internally, and parties would be forced prematurely into supervisory jurisdiction in the Supreme Court. That construction would be inconsistent with the NCAT Act's objects of accessibility, proportionality, and efficient dispute resolution;

(6) as to legislative coherence and appeal structure, the internal appeal mechanism under the NCAT Act is intended to correct error within the Tribunal wherever Parliament has not clearly withdrawn that function. Clause 29(1)(e) is properly understood as withdrawing internal appeal rights only where the OD has exercised its core disciplinary or regulatory function under the Uniform Law. The OD decision does not fall within that category. It is therefore not excluded from internal appeal jurisdiction.

1. The Council in the Council jurisdiction submissions, after referring to the history of the appeal and summarising the York jurisdiction submissions, submits:

(1) the OD decision is not an "internally appealable decision" under s 80(1) of the NCAT Act in the light of ss 29, 30, and 32(1)(a) and (4). The Tribunal's power to make the OD decision was a necessary incident of its duty to act within its jurisdiction. As the Tribunal did not have jurisdiction to determine the OD application, neither s 29 nor s 30 of the NCAT Act conferred jurisdiction on the Tribunal to make the OD decision;

(2) further, and in the alternative, the OD decision is not internally appealable due to the exception under cl 29(1)(e) of Sch 5 to the NCAT Act. The Tribunal made the OD decision in relation to proceedings commenced pursuant to s 100 of the Uniform Law. The Tribunal made the OD decision for the purposes of the Uniform Law for the following reasons:

(a) consistent with the ordinary meaning of "for the purposes of", the OD decision was made to deal with and determine a jurisdictional question arising in proceedings commenced pursuant to s 100 of the Uniform Law, referring to Singh at [53];

(b) the OD decision necessitated determination by the Tribunal of whether provisions in the Uniform Law and Legal Profession Uniform Law Application Act 2014 (NSW) (LPUL Application Act) conferred jurisdiction on it to determine the OD application;

(c) that the order dismissing the proceedings was not made under the Uniform Law and did not determine any question arising under the Uniform Law does not detract from this argument and s 4(2) of the NCAT Act supports this;

(3) the OD decision is an ancillary or interlocutory decision under s 4 of the NCAT Act. Clause 29(1)(e) of Sch 5 to the NCAT Act applies to ancillary and interlocutory decisions such as the OD decision, referring to cl 1(2) and Konstantinidis at [17]. The expression "in which that decision was made" in cl 1(2) should be interpreted broadly to mean "in which that decision was made or would be made", referring to Singh at [43];

(4) the appeal should be dismissed on the basis that the Tribunal does not have internal appeal jurisdiction in respect of OD decision.

1. Mr York in the York jurisdiction submissions in reply, in addition to repeating the York jurisdiction submissions, submits:

(1) the Council's reliance on Boyland does not assist its position. Boyland does not address the distinct question whether a jurisdictional determination is an "internally appealable decision" or whether it is excluded from internal appeal by cl 29(1)(e) of Sch 5 to the NCAT Act;

(2) the Council's contention that appealability is defeated because the Tribunal declined jurisdiction is circular. Whether the Tribunal correctly determined its jurisdiction is the very question sought to be appealed;

(3) nor does Singh compel a different conclusion. Singh did not consider a threshold ruling defining the Tribunal's own authority. It did not address whether such a ruling is made for the purposes of the substantive regulatory statute. A jurisdictional determination of that kind raises a distinct question of statutory purpose, and is not resolved merely by the fact that the proceedings arose under the Uniform Law.

1. I accept that, in accordance with the principles in Grabovsky at [105], I have an obligation to determine whether the Appeal Panel has internal appeal jurisdiction under s 32(1)(a) when read with s 32(4) of the NCAT Act in respect of the OD decision.
2. I am satisfied for substantially the same reasons advanced by the Council that on the proper construction of cl 29(1)(e) when read with cl 1(2) of Sch 5 to the NCAT Act the Appeal Panel does not have internal appeal jurisdiction under s 32(1)(a) when read with s 32(4) in respect of the OD decision.
3. The plurality (Kiefel CJ, Nettle and Gordon JJ) of the High Court of Australia in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 (SZTAL) at [14] stated the principles of statutory construction (with citations omitted):

"The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected."

1. The passage in SZTAL at [14] has been cited with approval in many subsequent authorities in various courts as well as in the Appeal Panel: see for example Houda v Seraphim [2025] NSWCATAP 135 at [55].
2. It is uncontroversial that context includes the surrounding text of the relevant provision and indeed the whole of the relevant Act and the objects of the Act, as expressly stated: Patrick v Secretary, Department of Communities and Justice [2025] NSWCATAP 206 at [21(4)]- [21(5)]; citing Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; [2005] HCA 28 at [37] (Kirby J); SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [20] (Kiefel CJ, Bell and Nettle JJ).
3. I do not accept the submission of Mr York that on its proper construction the expression "a decision for the purposes of the Legal Profession Uniform Law (NSW)" in cl 29(1)(e) of Sch 5 to the NCAT Act according to its text and purpose is to be construed narrowly to exclude a threshold and procedural decision in distinction to a substantive decision for the following reasons:

(1) there is nothing in the text to indicate such a narrow construction;

(2) this submission ignores the context of cl 29(1)(e). This context includes cl 1(2) which makes clear that the exclusion in cl 29(1)(e) extends to any ancillary or interlocutory decision of the Tribunal in the applicable proceedings. Further, the context in s 3(c) that the objects of the NCAT Act include to ensure that the Tribunal is accessible and responsive to the needs of all of its users does not require a construction that some decisions are not within the exclusion in cl 29(1)(e);

(3) this submission does not explain why the purpose of cl 29(1)(e) requires a construction that some decisions are not within its exclusion;

(4) it is contrary to Konstantinidis at [17] which makes clear that a decision about the jurisdictional of the Tribunal is an ancillary decision and is encompassed by cl 29(1)(e) when read with cl 1(2).

1. I am satisfied that the OD decision is an ancillary decision within the meaning of par (a) of the definition in s 4(1) of the NCAT Act. It follows that the OD decision pursuant to cl 1(2) is taken to be encompassed by the exclusion in cl 29(1)(e) provided that it is a decision for the purposes of the Uniform Law.
2. I also do not accept the submission of Mr York that decisions determining threshold issues such as jurisdiction, standing, procedural compliance, or access to the Tribunal are not properly characterised as decisions made "for the purposes of" the Uniform Law within cl 29(1)(e) of Sch 5 to the NCAT Act for the following reasons:

(1) there is nothing in the text, context and purpose to indicate such a narrow construction. In particular, the context in s 3(c) that the objects of the NCAT Act include to ensure that the Tribunal is accessible and responsive to the needs of all of its users do not require a construction that procedural or jurisdictional decisions are not within the exclusion in cl 29(1)(e). Further, the objects of the NCAT Act do not include proportionality, and efficient dispute resolution. It is accepted that pursuant to s 36(2) the Tribunal is obliged to seek to give effect to the guiding principle in s 36(1) when exercising any power under the NCAT Act or the Civil and Administrative Tribunal Rules 2014 (NSW) or interpreting any provision thereof. It is also accepted that pursuant to s 36(4) the Tribunal should implement practice and procedure 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. However, these provisions do not constitute objects of the NCAT Act;

(2) it is clear that the jurisdiction of the Tribunal to determine an appeal against a decision of the Council to refuse to grant or renew the Australian practising certificate under s 100(1)(a) of the Uniform Law is limited to a decision under s 89 when automatic show cause events occur or s 92 when designated show cause events: LPUL Application Act, s 11(3). A decision as to whether the Tribunal has jurisdiction to determine an appeal under s 100(1)(a) or (b) of the Uniform Law is a decision made "for the purposes of" the Uniform Law because it ensures that the appeal can be determined by a body with authority to make the decision under the Uniform Law;

(3) it is contrary to Singh at [53]-[58] which makes clear that interlocutory decisions are "for the purposes of" National Law within the meaning of cl 29(1)(d) of Sch 5 to the NCAT Act. As cl 29(1)(d) is relevantly in the same terms as cl 29(1)(e) the reasoning in Singh at [53]-[58] is equally applicable to cl 29(1)(e) in relation to the Uniform Law. There is no reason why Singh at [53]-[58] should be confined to interlocutory decisions as opposed to jurisdictional decisions.

1. It follows that the OD decision is not an internally appealable decision within s 32(4) when read with s 32(1) of the NCAT Act and as the Appeal Panel does not have jurisdiction to determine the appeal it should be dismissed.

(1) A hearing of the issue of whether the Appeal Panel has jurisdiction to determine the appeal is dispensed with.

(2) The appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.