Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Black v Hunter New England Local Health District [2021] NSWCATAP 105 Hearing dates: 26 March 2021 Date of orders: 26 April 2021 Decision date: 26 April 2021 Jurisdiction: Appeal Panel Before: N Hennessy A/DCJ, Deputy President Dr R Dubler SC, Senior Member Decision: 1. Time to lodge the appeal is extended to 24 December 2020. 2. Leave to appeal on a question other than a question of law is refused. 3. Leave to appeal from the interlocutory decision to dispense with a hearing is refused. 4. The appeal is dismissed. Catchwords: GOVERNMENT INFORMATION – refusal by agency to deal with application – sec 60(1)(b) Government Information (Public Access) Act 2009 – same information previously requested and refused – Tribunal held no reasonable belief that a different decision would be made – no question of law on appeal – leave to appeal refused. Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170 Alam v Insurance and Care NSW [2020] NSWCATAP 215 Avery v Registrar Births, Deaths and Marriages [2014] NSWCATAP 19 Black v Hunter New England Local Health District & Anor (No 2) [2012] NSWADT 235 Black v Hunter New England Local Health District (No 3) [2020] NSWCATAD 280 Destination NSW v Taylor [2019] NSWCATAP 123 Café Great Pty Limited v Oh [2019] NSWCATAP 203 Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 Collins v Urban [2014] NSWCATAP 17 Hoddinott Properties Pty Ltd t/as LJ Hooking Chatswood v Gong Yu [2014] NSWCATAP 57 In the Will of F v Gilbert (Dec) (1946) 46 SR (NSW) 318 House v King (1936) 55 CLR 499 Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 Nakad v Commissioner of Police (NSW Police Force) [2014] NSWCATAP 10 Thomas v Commissioner of Police, NSW Police Force (No 2) [2019] NSWCATAP 76 ZEJ v ZEL [2018] NSWCATAP 252 Texts Cited: None cited Category: Principal judgment Parties: Philip Ross Black (Appellant) Hunter New England Local Health District (Respondent) Representation: Solicitors: Appellant (Self-Represented) Crown Solicitor (Respondent) File Number(s): 2020/00371264 (AP 20/53735) Publication restriction: The name of Dr [name suppressed] is prohibited from disclosure pursuant to sec 64(1)(a) Civil and Administrative Tribunal Act 2013. Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2020] NSWCATAD 280 Date of Decision: 16 November 2020 Before: R L Hamilton SC, Senior Member File Number(s): 2020/00133958 reasons for decision Introduction 1. This is an appeal from the decision of the Tribunal on 16 November 2020: see Black v Hunter New England Local Health District (No 3) [2020] NSWCATAD 280 (the Decision). Pursuant to the Administrative Decisions Review Act 1997, the Tribunal affirmed the decision of the agency. 2. The decision of the agency was to refuse to deal with an application for government information pursuant to s 60(1)(b) of the Government Information (Public Access) Act 2009 (GIPA) because the agency had no reasonable belief that a different decision would be made. 3. The appellant had already in 2011 sought access to the written report of the treating psychologist of the appellant's former wife dated 30 December 2005 which he regarded as being averse to his interests. He was granted access to a redacted version. His current further application is testament to his strongly held conviction that he should have access to the un-redacted version of this document. 4. However, for the reasons which follow, we have decided to refuse leave to appeal and dismiss the appeal. Background 1. On 30 December 2005, the treating psychologist of the appellant's former wife provided a written report concerning the appellant to the mental health service of the agency. The treating psychologist applied before the Tribunal to have the name suppressed in the Decision on grounds of concern for his personal welfare and the length of the appellant's campaign concerning this document. 2. The appellant opposed such suppression of the name. The Tribunal was not persuaded that there was any relevance or public benefit in having the name revealed in the Decision, and therefore the Tribunal made an order pursuant to s 61(1)(a) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) to have the name suppressed. 3. The appellant has not appealed the decision of the Tribunal below to order suppression of the name. Accordingly, we shall continue to order, in respect of the proceedings before the Appeal Panel, the suppression of the name of the treating psychologist and adopt the same pseudonym, "Dr [name suppressed]". 4. The appellant in 2020, sought access to the redacted portions of the written report provided by Dr [name suppressed] on 30 December 2005 to the mental health service of the agency. 5. The appellant previously sought access to this written report some years ago in 2011. The agency refused access. On review, the Administrative Decisions Tribunal ("ADT") granted access to a redacted version of the document (Black v Hunter New England Local Health District & Anor (No 2) [2012] NSWADT 235). 6. The relevant aspects of the Decision in respect of the appellant's further attempt to obtain a full copy of the written report we set out below: "5 Now years later the applicant has again sought access to the unredacted document. The applicant provided some documents with his application which were designed to achieve different outcome to the application. All but one of these documents postdate the earlier decision of the ADT (the cover sheet to the 2005 document in question was before the Tribunal in Black v HNELHD (No.2) at [81] and [82]. 6 The agency refused to deal with the second application under sec 58(1(e) GIPA Act in reliance on section 60(1)(b) of the GIPA Act which provides as follows "60 Decision to refuse to deal with application (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason)-- (a) … (b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the application and there are no reasonable grounds for believing that the agency would make a different decision on the application…" The applicant has sought a review of the agency's decision by the Tribunal. The Tribunal has jurisdiction pursuant to sections 80(c) and 100 of the GIPA Act. The Tribunal has previously determined that this is a matter appropriate to be decided on the papers pursuant to section 50(2) of the CAT Act 2013. 7 Under the earlier application in 2011, the information to which the agency refused access is [redacted] 8 The 2020 access application under review here is for the information in the same report (although it referred to the report being created on 29 December 2005, the report is dated 30 December 2005). 9 The decision of the ADT in the earlier matter, is taken to be the decision of the administrator [i.e. the agency] (see section 66 Administrative Decisions Review Act 1997 which was the same in terms in 2012). 10 Looking at the elements of section 60(1)(b) GIPA Act, the information to which access is sought here is the same information as was the subject of the 2011 application. That application was determined by the ADT. The next issue to be decided is whether there are any reasonable grounds for believing the agency would make a different decision on the new application. 11 In Black v HNELHD (No.2) it was found that the public interest considerations against disclosure outweighed those in favour in relation to those parts of the document which were redacted. The ADT found the following factors in the Table to sec 14 GIPA Act against disclosure applied and outweighed those in favour: Clause 1(d) – prejudice the supply to an agency of confidential information Clause 3(a) – reveal an individual's personal information Clause 3(b) – contravene an information protection principle or health privacy principle 12 The ADT discussed these matters at [85]-[98] of the decision, and went on to find "that the public interest considerations against disclosing the personal information about the applicant's wife and the other persons (other than that which the applicant has knowledge of), on balance, outweighs the public interest consideration in favour of disclosure and therefore an overriding one" at [113]. As to information about the applicant the ADT found "In regard to the information about the application, including the opinions [name suppressed] made about the applicant's behaviour at that time (i.e. [the] psychological assessment of the applicant), in my view, the public interest considerations against disclosure of this category of information, on balance, does not outweigh the public interest consideration in favour of disclosure and should be disclosed" at [116]. "In regard to the remaining personal information about [name suppressed], I am satisfied that, on balance, the public interest consideration against disclosure is an overriding one" at [117]. Ultimately the ADT ordered: "[120] In regard to [name suppressed] report, the appropriate order is to set aside the decision of the agency and in substitution thereof a decision (a) granting the applicant access to the personal information about which the applicant has knowledge and also the health information about the applicant as set out in [name suppressed] assessment of the applicant, and (b) refuse the applicant access to the remainder of the information in the report. [121] Again, attached to the confidential reasons for decision is a marked copy of [name suppressed] report, which identifies the additional information for which the applicant is to be granted access." There is nothing to suggest that the public interest grounds against disclosure of the redacted information have lessened over time. Also there is not much to suggest that the public interest in favour of disclosure have gained more weight. 13 The materials submitted with the new application (except for the letter of support from the applicant's therapeutic social worker) do not change the weight which would be accorded to the factors positive to disclosure. 14 The post-2005 materials (other than the letter of support) relate to complaints lodged by the applicant against [name suppressed] with other regulatory bodies and to an attempt to get information from another agency, but have no salient relevance to the application for access to the information in this document, even though they may be seen as critical of Dr [name suppressed]. 15 The letter of support from the applicant's therapeutic social worker can be considered under sec 55 GIPA as a personal factor which could strengthen a claim to information. Relevantly it states: "(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application") into account as provided by this section-- (a) the applicant's identity and relationship with any other person; (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14…" 16 The social worker's letter states that the applicant: "has a strong fixation on this report and the imagined contents of what was said about him and his mental health … He feels very strongly that it has played a significant part in the fracturing of his relationship with his children … There is a block in any discussion around that time from the children thus the perception of the impact of this report. It is my opinion that a full copy of this report might help [the applicant] let go of his perceptions and find closure to this long standing issue." It is clear that the existence of this 16 year old document, which he cannot see in its entirety, is causing Mr Black anxiety. He has gone to considerable lengths over the years to get access to it and pursue the author in various other ways. Although the social worker's opinion that access to the unredacted document might help the applicant let go of his perceptions and gain closure, this personal factor must be balanced against the considerations outlined in the earlier ADT decision concerning clauses 3(a) and (b) of sec 14 GIPA (at [93]-[98]). The personal details and health information of other persons are still relevant considerations. 17 Taking these personal matters into account on both the positive and negative sides, and also taking account of the age of the document, I am not convinced that (while recognising the distress that the applicant suffers from not being able to let go) these factors weigh sufficiently on the positive side of granting access, against the negative factors which remain extant, and which received detailed consideration in Black v HNELHD (No.2). 18 On this basis it is the Tribunal's view that the 2nd limb of sec 60(1)(b) GIPA is not satisfied, i.e. there are no reasonable grounds for believing the agency would make a different decision on the access claim." Notice of Appeal 1. By Notice of Appeal filed 24 December 2020, the appellant seeks to appeal the Decision. The appellant on appeal represented himself. The first ground of appeal put forward in the Notice of Appeal was that the Decision: "…only gave full consideration to weak reasons for non-disclosure. All the fair and just reasons for disclosure were not applied. Valid reasons for disclosure totally outweigh his decision and the report should be released." 1. The second ground of appeal was that the Tribunal ought not to have decided to proceed based upon the papers without a hearing. It was put that this was "a mistake by me to agree, as I presumed my application would be upheld based on all the new material and details as well as the information and approval HNELHD [Hunter New England Local Health District] receives from them". 2. The appellant's appeal faces immediately two hurdles as follows: 1. his appeal was filed outside the prescribed time; and 2. his appeal does not raise any question of law or involves an interlocutory decision and, accordingly, leave to appeal is required. Appeal is out of time 1. The appellant did not file his appeal within the time prescribed by r 25(4) of the Civil and Administrative Tribunal Rules 2014 ("NCAT Rules"). The Tribunal published its reasons on 16 November 2020. The appellant was required to file any appeal within 28 days of the appellant being notified of the Tribunal's decision or given reasons of the Tribunal's decision. Accordingly, the appellant was required to file his appeal by 14 December 2020. The appellant did not file his Notice of Appeal until 24 December 2020. 2. Accordingly, the appellant requires an extension of time to bring his appeal pursuant to s.41 of the NCAT Act. 3. The principles on which an extension of time would be granted to bring an appeal were set out by the Appeal Panel in Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22, at [21]-[22] and, more recently were summarised in Café Great Pty Limited v Oh [2019] NSWCATAP 203 at [39]-[40] as follows: "The principles on which an extension of time would be granted to bring an appeal were set out by the Appeal Panel in Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 at [21]-[22], drawing on early orthodox principle and authority: 'Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice.' The criteria for assessing an extension application can be summarised from Jackson as follows: (1) the appellant must demonstrate that strict enforcement of the time limit will work an injustice on the appellant; (2) the respondent, having obtained a favourable primary decision, can be thought of as having a "vested right" to retain the benefit of that decision after the normal time for appeal has expired; (3) Consistent with the foregoing, the factors to be considered are the length of the delay, the reason for the delay, the prospects of success ("that is usually where the applicant has a fairly arguable case"), and the extent of any prejudice suffered by the respondent to the appeal; (4) "It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable." 1. Given that the period of delay is only ten days, that at all times the appellant was unrepresented and the respondent did not raise any prejudice, we are of the view that strict enforcement of the time limit will work an injustice on the appellant. Accordingly, we will extend the time for the filing of the notice of appeal. Leave to appeal 1. The appellant requires leave to raise each of the two grounds of appeal as: 1. the first ground does not identify any error of law, and seeks to review the merits of the Decision: s.80(2)(b) of the NCAT Act; and 2. the second ground relates to the interlocutory decision of the Tribunal to determine the matter on the papers: s.80(2)(a) of the NCAT Act. 1. In Collins v Urban [2014] NSWCATAP 17 at [84], the Appeal Panel stated that ordinarily it is appropriate to grant leave to appeal only in matters that involve: "(a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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." 1. Although these principles were articulated in the context of an appeal from a decision of the Consumer and Commercial Division, they apply equally to an appeal from a decision of the Administrative and Equal Opportunity Division (see, for example, Destination NSW v Taylor [2019] NSWCATAP 123 at [58]; Alam v Insurance and Care NSW [2020] NSWCATAP 215 at [31]; Thomas v Commissioner of Police, NSW Police Force (No 2) [2019] NSWCATAP 76 at [25]). 2. The principles for the grant of leave to appeal an interlocutory decision were considered by the Appeal Panel in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35] where the Appeal Panel said: As stated in various decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal, the principles to be applied are to be derived from the principles applicable to leave applications in courts: see for instance, Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6 and BHM v BHN & Ors [2014] NSWCATAP 26. These principles include the following: (1) It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39; (2) However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ; (3) Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] 104 FCR 564; (4) Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative; (5) There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; (6) Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell (1936) 56 CLR 221 at 225-6; (7) In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec); (8) Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9; (9) Lastly, subject to the above, the matters set out in Collins at [84 (1)-(2)] are also relevant to the exercise of a discretion to grant leave. Ground 1 of the Notice of Appeal 1. In his submissions to the Appeal Panel, the appellant contends that the whole report should be disclosed because he claims it clearly is "deliberately false, misleading, exaggerated, very hurtful and insulting, as well as being incorrect and wrong". His argument is that he "should be given the opportunity to address the contents of a complete copy of the report". 2. According to the appellant, the Decision was based "on very limited, weak reasons against disclosure" and the Tribunal failed to give "the fair and valid reasons for disclosure full weight". 3. The appellant proceeded then to list reasons for release, the principal ones of which we summarise as follows: 1. the appellant was never a patient of Dr [name suppressed]; 2. Dr [name suppressed] did not contact the appellant to discuss the information Dr [name suppressed] received from the appellant's former wife; 3. Dr [name suppressed] did not attempt to validate the accuracy of that information prior to creating the report; 4. the fact that Dr [name suppressed] made phone calls to the appellant's GP during which accusations were made about the appellant; 5. the contents of a Police Event reference dated 23 December 2005 referred to the report; 6. the presumption by Dr [name suppressed] at page 8 of the report when reference is made to the independent report of Dr Jonathan Phillips justifies fully releasing the report; 7. the statement by Dr Phillip Boyle of 14 March 2012 that the report should be released; and 8. the objects and various provisions of the GIPA Act. 1. In his further written submissions dated 17 February 2021, the appellant argues that: 1. the appeal should be decided and upheld "based on the precise and clearly nominated objects of the Act, not a pedantic point of law"; 2. "the creation of this psychological report is a serious example of mental abuse and harassment" and that "this is a situation which should be fully applied to and given maximum weight, in support of release of the report, to allow me to respond to its claims and accusations"; 3. "every aspect and all details involving this report and Dr [name suppressed] commencing from June 2005 … are all supportive and valid reasons for release of a full copy of the report". 1. The appellant has not identified any error on the part of the Tribunal that could be characterised as raising a question of law and leave to appeal is required pursuant to s.80(2)(b) of the NCAT Act. The appellant's appeal essentially challenges the weight attributed by the Tribunal to reasons for disclosure and reasons for non-disclosure and this remains an attempt to seek review of the merits of the Tribunal's decision without raising any error of law. 2. In our opinion, there is no error of law apparent in the reasons of the Tribunal. The reviewable decision before the Tribunal was the decision to refuse to deal with the appellant's access application, in reliance on s.60(1)(b) of the GIPA Act. We accept the respondent's submission that the Tribunal identified the correct issues for determination and applied the correct legal tests in determining that: 1. the respondent had already decided a previous application for the information concerned by the appellant (at [10]); 2. there was no reasonable ground for believing the respondent would make a different decision in determining the applicant's access application (at [18]); and 3. the respondent's determination to refuse to deal with the access application in reliance on s.60(1)(b) of the GIPA Act should be affirmed. 1. None of the matters required to support a grant of leave to appeal are present in this case. The proceedings do not raise issues of principle; they do not raise questions of public importance or matters of administration or policy which might have general application; this is not a case in which there is an injustice which is "reasonably clear" or an error that is "readily apparent"; there are no factual errors unreasonably arrived at and clearly mistaken; nor did the Tribunal go about the fact-finding process in an unorthodox manner. 2. Accordingly, we decline leave to appeal on the first ground. Ground 2 – Matter dealt with on the papers 1. The appellant in respect of this ground would also require leave to appeal as it is a challenge to an interlocutory decision of the Tribunal: see s.80(2)(a) of the NCAT Act. 2. As the Appeal Panel observed in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54, where an application for leave relates to a question of practice or procedure, the application is to be approached with restraint: see Nakad v Commissioner of Police (NSW Police Force) [2014] NSWCATAP 10 at [45]; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170 at 177; In re the Will of F v Gilbert (Dec) (1946) 46 SR (NSW) 318 at 323. 3. This is not an appropriate case in which to grant the appellant leave to challenge the Tribunal's decision to dispense with a hearing and deal with the matters on the papers. Firstly, the Tribunal's order has been superseded by the subsequent determination and disposition of the matter on the papers. In these circumstances, no useful purpose would be served in granting leave to appeal: ZEJ v ZEL [2018] NSWCATAP 252, at [28]. Indeed, as the High Court observed in Adam P Brown, if leave to appeal is granted in respect of an interlocutory procedural order that has been superseded "the result would be disastrous to the proper administration of justice (at 177). 4. Secondly, this is not a case where there is any apparent error in principle, nor injustice occasioned by the determination to deal with the matter on the papers. 5. Thirdly, there was no error on the part of the Tribunal in reaching the requisite state of satisfaction in the absence of the parties by considering written submissions, and any other documents or material lodged with the Tribunal: s.50(2) NCAT Act. 6. The main considerations for the Tribunal in considering whether to make an order under s.50(2) of the NCAT Act are: 1. the extent to which the Tribunal would be assisted in the determination of the application by holding an oral hearing, having regard to the extent to which it is necessary for the Tribunal to determine contested questions of fact or issues of credibility and the complexity of any questions of fact and law that the Tribunal will need to be determined (Avery v Registrar Births, Deaths and Marriages [2014] NSWCATAP 19 at [22]); 2. the extent to which the parties have had a reasonable opportunity to be heard or otherwise have their submissions considered (Hoddinott Properties Pty Ltd t/as LJ Hooking Chatswood v Gong Yu [2014] NSWCATAP 57 (at [35]); and 3. the "guiding principle" in s.36(1) of the NCAT Act; namely, the "just, quick and cheap resolution of the real issues in dispute" (Hoddinott at [36]). 1. With respect to the first consideration, it is submitted that the Tribunal would have had little assistance from an oral hearing in the determination of the issues before it. The issues for resolution by the Tribunal were relatively confined; there was no dispute between the parties as to the key questions of fact requiring determination (that is, the existence of a previous access application and the information previously released in response to that); both parties sought to rely entirely on documentary evidence and there was no assessment of credibility required. 2. With respect to the second consideration, both parties were given a reasonable opportunity to be heard and have their submissions considered. In particular, the appellant was given the opportunity to file evidence and submissions in support of his application for review and availed himself of this opportunity by filing a large volume of material with the Tribunal: see AB Tabs 4 and 5, pp.67-363. 3. With respect to the third consideration, it is clear that dispensing with the hearing in this matter was consistent with the guiding principle in s.36(1) NCAT Act. 4. Fourthly, we note that the appellant was legally represented on the occasion that the Tribunal made the order dispensing with the hearing and the appellant agreed to the order being made. In such circumstances the Tribunal cannot be criticized for dealing with the matter consistently with the consent of the parties. The submission that it was "a mistake by me to agree, as I presumed my application would be upheld based on all the new material and details as well as the information and approval HNELHD receives from them" does not justify setting aside the decision to dispense with a hearing where the Tribunal acted with the appellant's consent. 5. To the extent that this aspect of the appellant's appeal could be taken to be an argument that he was denied procedural fairness by virtue of the matter being determined on the papers, the same reasoning applies to lead us to reject this submission. There was no practical injustice to the appellant arising from the matter being determined on the papers. 6. In circumstances where the appellant was given the opportunity to file evidence and submissions in support of his application for review, and availed himself of that opportunity, there can be no suggestion that the appellant has been denied a proper opportunity to present his case or be heard. Further, as we have observed the Tribunal dispensed with a hearing with the consent of the appellant, 7. In conclusion, we decline to grant leave to appeal in respect of this second ground of appeal as well. ORDERS 1. The Tribunal will make the following orders: 1. Time to lodge the appeal is extended to 24 December 2020. 2. Leave to appeal on a question other than a question of law is refused. 3. Leave to appeal from the interlocutory decision to dispense with a hearing is refused. 4. The appeal is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 26 April 2021