Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FLC v NSW Trustee and Guardian [2022] NSWCATAP 385 Hearing dates: 1 December 2022 Date of orders: 13 December 2022 Decision date: 13 December 2022 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member G Sarginson, Senior Member Decision: (1) The appellant's application to adjourn the hearing of the appeal on 1 December 2022 is dismissed. (2) Leave to appeal is granted. (3) The appeal is allowed. (4) Orders 3 and 4 made by the Tribunal on 22 August 2022 are set aside. (5) The decision made by the respondent to sell the property the subject of the appellant's administrative review application is stayed pending further order by the Tribunal. (6) The proceedings are remitted to the Tribunal for re-determination on the papers and without further oral hearing pursuant to s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). (7) The appellant is to provide to the Tribunal and the respondent, by person or by post, any written material, by way of evidence and submissions, upon which he seeks to rely on his application for administrative review within 6 weeks of the publication of these reasons for decision. Catchwords: ADMINISTRATIVE LAW---administrative review application in the Tribunal under the Administrative Decisions Review Act 1997 (NSW)---absence of material to be relied upon by the applicant---non-compliance with directions for provision of this material--- proceedings dismissed for want of prosecution. APPEAL---interlocutory decision---discretionary decision-error of principle in not applying principles applicable to dismissal for want of prosecution---option available to have determined the administrative review on the merits at the appointed hearing date---leave to appeal granted---appeal allowed-issues raised about the appellant's health---parties agree application to be redetermined on the papers if appeal allowed---dismissal of appellant's application to adjourn the hearing of the appeal. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Civil Procedure Act 2005 (NSW) Cases Cited: Araghi v St George Community Housing [2021] NSWCATAP 154 AHB v NSW Trustee and Guardian [2014] NSWCA 40 Birkett v James [1978] AC 297 Bousgas v H.D. Constructions (Aust) Pty Ltd [2017] NSWCATAP 122 Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 Cominos v Di Rico [2016] NSWCATAP 5 Hoser v Hartcher [1999] NSWSC 527 House v King (1936) 55 CLR 499 K&J Vision Pty Ltd v Jows Construction Pty Ltd [2019] NSWCATAP 139 Murabito v Commissioner for Fair Trading [2020] NSWCATAP 63 New South Wales v Plaintiff [2012] NSWCA 248 Ritson v Commissioner of Police [2022] NSWCATAP 223. Wilson v Commissioner of Police, New South Wales Police Force [2015] NSWCATAP 248 Texts Cited: Nil Category: Principal judgment Parties: FLC (Appellant) NSW Trustee and Guardian (Respondent) Representation: Solicitors: Appellant (Self-represented) R Stormant (Legal) (Respondent) File Number(s): 2022/00250359 Publication restriction: Order made on 5 October 2022 under s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibited the publication broadcast of the name of the appellant. Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division and Occupational Division Citation: Not Applicable Date of Decision: 22 August 2022 Before: J Gatland, Senior Member File Number(s): 2022/0015729 REASONS FOR DECISION 1. This is an appeal from a decision to summarily dismiss an administrative review application for want of prosecution. 2. For the reasons set out below, we have decided that the appeal should be allowed and the administrative review application redetermined on the papers. There will also be a direction that the appellant is to provide to the Tribunal and the respondent any submissions and evidence he seeks to rely upon in the application within 6 weeks of the date when these reasons are published. 3. At the end of these reasons we also set out our reasons for refusing the appellant's application to adjourn the hearing of the appeal. Background 1. By order made on 5 October 2022, the publication or broadcast of the name of the appellant is prohibited (an order made under s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 (NSW)) (the NCAT Act). 2. The appellant is one of two sons of elderly parents. Under financial management orders made by the Tribunal, the respondent has been appointed the manager of the financial affairs of each parent. Those appointments were made on 1 August 2019. The appellant's mother resides in an aged care centre in Sydney and his father resides in a nursing home, also in Sydney. 3. The appellant lives in a rural area of Western Sydney. 4. On or about 13 January 2022, the respondent made a decision to sell a unit in Sydney owned by the appellant's parents and in which they had resided before moving into their respective care homes. 5. It is common ground that this decision was an administrative reviewable decision under the Administrative Decisions Review Act 1997 (NSW) ('the ADR'). 6. As he was entitled to do under the ADR, the appellant requested an internal review of this decision. 7. In a letter from the respondent to the appellant, dated 29 April 2022, the appellant was informed that the decision of the internal review was that the decision to sell the unit was upheld. Attached to the letter was a document entitled "Internal Review of Decision". This document set out the reasons for the internal review decision. It also stated that the appellant's ground for seeking internal review was that he believed his parents care could be funded without selling their home. 8. On 31 May 2022, the appellant lodged in the Tribunal an administrative review application of the decision to sell, dated 24 May 2022. The application was accompanied by an application for a stay order in respect of the decision. In the section of the administrative review application form concerning the grounds for the application it was simply said that he was seeking a review under s 55 (1) of the ADR which stated that he could have this decision further reviewed. 9. The appellant also stated in the administrative review application form that he was notified about the decision for review on 18 May 2022, plainly a reference to the internal review decision rather than the original decision to sell. Bearing in mind that the appellant had 28 days from the time when he was notified of the internal review decision in which to commence an application for administrative review (s 24 (4) (a) of the Civil and Administrative Tribunal Rules 2014), no issue arose between the parties concerning whether the appellant had commenced his application for administrative review within time. 10. At a first hearing of the administrative review application in the Tribunal on 7 June 2022, at which a stay of the decision was granted, the application was set down for final hearing on 22 August 2022 and directions were made for the conduct of the proceedings. The directions included an order that the appellant was to provide any material upon which he relied by 26 July 2022. The making of this direction pre-dated the provision by the respondent of its s 58 documents. 11. Pursuant to s 58 of the ADR, within 28 days of the appellant's application for administrative review (in this case by 28 June 2022), the respondent was required to lodge with the Tribunal a copy of its s 58 documents, including a statement of reasons for decision and every document that the administrator considered to be relevant to the determination of the application. 12. There was a reasonably short delay by the respondent in providing its s 58 documents to the appellant. At the hearing of the appeal, we were informed by Ms Stormont, solicitor, who appeared for the respondent, that a direction was made by the Tribunal for the respondent to serve its s 58 documents on the appellant by 5 July 2022. We were told that the documents were sent to the respondent by express post on 8 July 2022 and records show that they became available for collection by the respondent at a nearby post office on 12 July 2022. However, for reasons that are unexplained, the appellant did not collect the documents from the post office until 28 July 2022. We were told the documents had been also sent to the respondent by email on 7 July 2022. 13. The s 58 documents consisted of 258 pages of documents. 14. The deadline for the appellant's material was extended, ultimately, until 15 August 2022. A first extension to 29 July 2022 was granted on 8 July 2022, a second extension to 5 August 2022 was granted on 19 July 2022, and a third extension to 15 August 2022 was granted on 11 August 2022, on which last occasion an application by the appellant to adjourn the hearing of the administrative view application on 22 August 2022 was refused. 15. We do not understand these extensions to have been opposed by the respondent. Bearing in mind that it was not until 12 July 2022 that hard copy s 58 documents became available for collection by the appellant at the post office and the quantity of that material, an extension of time until 15 August 2022 for the provision of the appellant's material does not seem unreasonable. 16. On the other hand, it seems to us that by 22 August 2022 the appellant had received a reasonable opportunity to be heard on the administrative review application, including to be able to provide written material on the application: see s 38 (5) (c) of the NCAT Act. 17. In saying this, we are aware that before 15 August 2022, the appellant had raised ill health in seeking, unsuccessfully, to adjourn the hearing on 22 August 2022. However, it is apparent from the decision of 11 August 2022 refusing the adjournment application that the appellant's medical evidence was inadequate to establish that he was incapable of providing his written material, including with the assistance of others-for example, with the assistance of "Melissa", who had instigated the adjournment application on his behalf. 18. On 16 August 2022, the respondent provided the Tribunal and the appellant with short (3.5 pages) submissions in support of its position that the decision to sell the unit remained the correct and preferable decision. These submissions referred to liabilities of each of the appellant's parents which well exceeded relevant cash funds. The submissions did not state that there was a need for any particular urgency in selling the property. 19. On 21 or 22 August 2022, prior to the hearing, short submissions were provided on behalf of the appellant but only to the Tribunal. According to the Tribunal's reasons for decision, these were supplied on the appellant's behalf by "Colin". We have not seen these submissions and we were told by Ms Stormont at the hearing of the appeal that the respondent had not seen these either. The Tribunal stated that it refused leave for "Colin" to represent the appellant. 20. On 21 or 22 August 2022, "Colin" also sent to the Tribunal a medical certificate concerning the appellant and a letter of authority from the appellant. The medical certificate stated that the appellant was unfit for work or normal duties between 20 and 23 August 2022. In these documents supplied by "Colin", presumably in the submissions, he stated: I cannot represent [the appellant] in this matter on 22 August 2022, for many reasons a few are due to the very tight and impossible timeframe given by the NCAT and the complexity of this matter, but more importantly the huge number of documents supplied by the [respondent] which are some 258 pages, all of which have to be properly verified and audited." 1. There was no appearance by, or on behalf of, the appellant at the hearing on 22 August 2002. 2. At the hearing of the appeal, Ms Stormont informed us that the respondent did not ask for the proceedings to be dismissed for want of prosecution. In light of the background we have described, it is unsurprising to us that the respondent did not do so. The issue of dismissal for want of prosecution was raised with the respondent at the initiative of the Tribunal. 3. In our view, the circumstances provided the Tribunal with two more realistic options. First, it was open to the Tribunal to proceed to determine the administrative review application on the merits, as provided for in s 63 (1) of the ADR, "having regard to the material then before it…". 4. The second option was a summary dismissal of proceedings for a failure to appear, pursuant to s 55 (1) (b), in relation to which the appellant would have had the option to apply to reinstate review application: see s 55 (2). 5. As will be seen, the Tribunal's reasons do not disclose an application of the principles concerning dismissal for want of prosecution, which we consider should have led the Tribunal to consider these other options. Aspects of the nature of the administrative review application 1. The role of the Tribunal in this matter was to determine the "correct and preferable decision". There is no formal onus of proof in such proceedings, although there is a practical onus on the party who raises a specific fact for consideration to prove the existence of that fact: Wilson v Commissioner of Police, New South Wales Police Force [2015] NSWCATAP 248 at [19]. Commonly, the respondent decision-maker will go first at the hearing in presenting its material and making submissions. 2. In such a matter, it is not inevitable that the decision the subject of administrative review application would be upheld in the absence of any material or submissions presented by the appellant. The summary dismissal power 1. Section s 55 of the NCAT Act provides: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances— (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings. (2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers that there is a reasonable explanation for that failure. Want of prosecution 1. In Murabito v Commissioner for Fair Trading [2020] NSWCATAP 63, the Appeal Panel rejected an application to dismiss an appeal for want of prosecution founded upon an appellant's failure to provide an agreed bundle of documents ordered to be provided some 2 months before a delayed hearing of the appeal (an earlier date had to be vacated in view of the absence of the documents) in circumstances where the Appeal Panel was not satisfied that there was a reasonable explanation for the failure. 2. In doing so, the Appeal Panel referred to the consideration of the principles relating to want of prosecution by the Appeal Panel in Bousgas v H.D. Constructions (Aust) Pty Ltd [2017] NSWCATAP 122 and K&J Vision Pty Ltd v Jows Construction Pty Ltd [2019] NSWCATAP 139 and stated that, amongst other things: 1. The approach outlined in Birkett v James [1978] AC 297 in which it was said that a court should be reluctant to dismiss proceedings for want of prosecution unless there had been either intentional or contumelious default on the part of the plaintiff or inordinate or inexcusable delay giving rise to a substantial risk that a fair trial would not be possible had been diminished with the enactment of legislative provisions in the Civil Procedure Act 2005 (NSW), including that the overriding purpose was to facilitate the just, quick and cheap resolution of the real issues in the proceedings, which was in the same terms as s 36 (1) of the NCAT Act. In this regard, the Appeal Panel referred to the decision of Basten JA in New South Wales v Plaintiff [2012] NSWCA 248. 2. The scope of the Tribunal's power to dismiss for want of prosecution in s 55 (1) (d) of the NCAT Act must be determined in accordance with s 36 (1) of the NCAT Act and the general legislative context, and that the obligations imposed on the Tribunal and the parties and their representatives by ss 36 (1), (3) and (4), and s 38 (5) (c) of the NCAT Act are relevant matters to be taken into account in considering whether to make an order to dismiss proceedings for want of prosecution. 3. A useful summary of the factors to be considered remained those outlined by Simpson J in Hoser v Hartcher [1999] NSWSC 527, albeit that this decision came prior to the enactment of s 56 of the Civil Procedure Act. These factors included that: (1) the ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed…. ….. (10) plaintiff's prospects of success is a relevant factor. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant… (11) the exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics… The Tribunal's decision 1. The orders the subject of the appeal are Orders 3 and 4 made by the Tribunal on 22 August 2022. Order 3 was the order which dismissed the application for want of prosecution. Order 4, in substance, ordered that the stay of the decision be lifted. 2. In "Notes" to the orders, which we treat as the Tribunal's reasons, the Tribunal recounted the history of the proceedings, including the appellant's non—compliance with directions for the provision of his material and the extensions granted with respect to this on 8 July 2022, 19 July 2022 and 11 August 2022. Next, the Tribunal referred to the provision of documents to the Tribunal only by "Colin" on 21 and 22 August 2022, noted that the Tribunal had not given leave for the appellant to be represented and said that such leave was now refused. The Tribunal then stated that the appellant's failure to adhere to the order and directions of the Tribunal was not explained by the medical certificate supplied which stated that the appellant was unfit for work or normal duties between 20 August 2022 and 23 August 2022. 3. The Tribunal then rejected a submission that the Tribunal had no jurisdiction because of proceedings in the New South Wales Court of Appeal, including on the basis that it was not apparent what issue of similarity was being determined in the Court of Appeal which would limit the jurisdiction of the Tribunal. Nature of the appeal-the decision was an interlocutory decision 1. With respect to internal appeals, as this is, section 80 (2) of the NCAT Act provides: 80 Making of internal appeals ….. (2) Any internal appeal may be made— (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. 1. The decision is an "interlocutory decision" in respect of which leave to appeal is required under s 80 (2) (a). As to this, s 4 (h) of the NCAT Act, specifically, states that the summary dismissal of proceedings falls within the definition of an interlocutory decision. Grounds of appeal 1. Attached to the Notice of Appeal was a document headed "Draft Reasons for Appeal". This stated, in general terms, that the appellant had been denied procedural fairness and natural justice because the hearing was conducted in the absence of the appellant. There was also a reference to the appellant, with the assistance of others, having prepared since December 2021 and appeal in the NSW Court of Appeal that having, recently, filed a Summons seeking leave to appeal to the Court of Appeal. Consideration 1. We have considered the appeal, including the question of leave to appeal, having regard to the approach we should take with respect to an unrepresented litigant, as referred to in Cominos v Di Rico [2016] NSWCATAP 5 at [13]. 2. The approach to be taken concerning the grant of leave to appeal from interlocutory decisions of the Tribunal is set out in such decisions of the Appeal Panel as Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 and Ritson v Commissioner of Police [2022] NSWCATAP 223. 3. Furthermore, this is an appeal against the Tribunal's exercise of a discretion whether to dismiss proceedings for want of prosecution. Accordingly, the principles in House v King (1936) 55 CLR 499 (at 505) also apply and, therefore, it must appear that the Tribunal acted upon a wrong principle, allowed extraneous or irrelevant matters to affect the decision, mistook the facts, did not take into account some material consideration or came to an unreasonable or plainly unjust decision, in order for the decision to be reviewed on appeal. 4. We consider that leave to appeal should be granted and the appeal allowed because, in our view, there was an error of principle in the Tribunal's decision, as outlined below, the decision is attended by sufficient doubt and the appellant may have suffered a substantial injustice in the sense that his application for administrative review has yet to be determined on the merits, in circumstances where we are not in a position to say that the decision the subject of administrative review was, unarguably, the correct and preferable decision. 5. The Tribunal's reasons reveal an approach to the question whether the proceedings should be dismissed for want of prosecution that does not involve an application of the principles concerning such an issue, as outlined in Murabito. 6. In this regard, the Tribunal did not address the issue as to the balance of prejudice. 7. Nor did the Tribunal address the appellant's prospects of success. 8. It would also seem that the Tribunal mistook the facts because it referred to the appellant's non-compliance with directions and the extensions granted, but without reference to the time when the s 58 documents (in hard copy) were first made available to the appellant for collection at the post office, namely on 12 July 2022 and to the quantity of that material. 9. Had the Tribunal addressed these matters, it may well have decided that the best course was to proceed to hear the merits of the application for administrative review on 22 August 2022, being the date set for the hearing of that application, in circumstances where it appeared that the appellant had received a reasonable opportunity to present his case and an adjournment of the hearing had been refused, as we have already mentioned. 10. In these circumstances, it is unnecessary for us to address the matters raised by the appellant in the Notice of Appeal other than to say that they do not appear to have merit and that procedural unfairness is not established merely because the decision was made in the absence of the appellant. Outcome of the appeal 1. At the hearing of the appeal, Ms Stormont referred us to the proposal made by the respondent, before the hearing on 22 August 2022, for the administrative review application to be determined on the papers. This was a proposal made in the context of the application made by "Melissa" on behalf of the appellant for an adjournment of the hearing on 22 August 2022 in view of the health of the appellant. 2. When we raised the question about determining the administrative review application on the papers with the appellant at the hearing of the appeal he readily embraced this approach. He also asked for a period of 8 weeks in which to provide written material in support of his application. With the determination to be made on the papers and the forthcoming Christmas and summer vacation, Ms Stormont did not oppose a provision for the appellant to provide his written material but did oppose such a lengthy period being granted. 3. In our view, correctly, she pointed out that one of the factors the appellant had mentioned in support of obtaining such a period of time was that he still needed to read the s 58 documents in circumstances where he had now had a very extended period of time in which to do this. She submitted that the question of selling the property should be resolved without much further delay, but did not advance any basis for urgency-we assume that the summer vacation period is likely to have had some effect on the respondent's desired timing of a sale. 4. Having regard to these matters, and to what we have already said about a dismissal of these proceedings for want of prosecution, and also to the provisions in s 50 and s 81 of the NCAT Act referred to below, we consider that we should make orders that provide for the Tribunal's decision to be set aside and for the administrative review application to be determined on the papers. 5. Bearing in mind the parties' support for a determination to be made on the papers and the limited nature of the issue in question concerning selling the property, we are satisfied, as we must be under s 50 (2), that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material provided to the Tribunal. 6. We have mentioned the context in which the respondent did not oppose a direction that would give the appellant one further opportunity to file and serve evidence and submissions in respect of the review application. We consider this would be an appropriate step in view of that context. 7. In the circumstances we have referred to, we will also make a direction for the appellant to provide his written material within 6 weeks of the publication of these reasons, even though we consider the appellant had been given a reasonable opportunity for this material to be provided before 22 August 2022. 8. As to this outcome, we note that under s 81 (1) of the NCAT Act, in determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including an order that a case be reconsidered by the Tribunal, in accordance with the directions of the Appeal Panel (s 81 (1) (e)). 9. Under s 50 (2) of the NCAT Act, the Tribunal may make an order dispensing with a hearing if it is satisfied the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with provided to the Tribunal. Under s 50 (3) NCAT Act the Tribunal may not make an order dispensing with the hearing unless the Tribunal has first afforded the parties an opportunity to make submissions about the proposed order and taken any such submissions into account. 10. As discussed previously, we gave the opportunity for the parties to make a submission as to whether, if the appeal was successful and the appeal remitted, the remitted proceedings should be determined on the papers and without further oral hearing. Both parties agreed that such a course of action was appropriate. Accordingly, s 50 (3) of the NCAT Act has been complied with. The appellant's application to adjourn the hearing the appeal 1. We decided to refuse an application made by the appellant in the morning before the hearing of the appeal to adjourn the hearing. These are our reasons for doing so. 2. On 5 October 2022, at a hearing attended by the appellant in person, Principal Member Suthers made directions for the conduct of the appeal, including a direction that the appellant was to lodge his material in support of his appeal by 3 November 2022. No such material was ever provided. 3. Subsequently, on 23 November 2022, Principal Member Suthers rejected an application by the appellant to adjourn the hearing of the appeal on 1 December 2022 on the grounds of the appellant's health, including back surgery that he had been subjected to on 9 November 2022. In refusing that adjournment, Principal Member Suthers noted that the material from the appellant had failed to address why he had not complied with the direction to lodge and serve his evidence and submissions at a time that was before the surgery and that there was no probative evidence that he would be unable to participate in the hearing on 1 December 2022. 4. At 9:35 AM on 1 December 2022, the Appeal Registry received an email from the appellant attaching various emails with the Appeal Registry over the period from 3 to 15 November 2022, as well as a document, signed by "Melissa" and the appellant, described as evidence and submissions on the appellant's behalf. The document indicated that it was prepared by "Melissa". 5. At the commencement of the hearing of the appeal on 1 December 2022 there was no appearance by the appellant in person. No arrangements had been made for appellant to appear by audio/visual link or by telephone. As to this, we were informed by Ms Stormont (who appeared in person) that the appellant had requested an in-person hearing of the appeal at the directions hearing on 5 October 2022. 6. Near the commencement of the hearing, we were able to make contact with the appellant by calling a mobile telephone number for him that was on the appeal file. He told us that he was in Liverpool Hospital. He also told us of his application to adjourn the hearing of the appeal and of the papers he had arranged to be sent in support of this application that morning. He mentioned the reference by Principal Member Suthers to the absence of any material explaining why he had not provided his supporting documents on the appeal by 3 November 2022 in rejecting his earlier application for an adjournment of the hearing of the appeal. He told us that the documents he had arranged to be sent that morning dealt with this matter, amongst other things. 7. We took a short adjournment in order to obtain and consider the material provided to the Appeal Registry that morning in support of the adjournment application. Having done so, we resumed the hearing. Despite three failed attempts by us to speak again to the appellant on the telephone at the appointed time for the resumed the hearing, after some 10 minutes, the appellant re-appeared by telephone and in this manner attended the balance of the hearing. 8. When we indicated to the appellant that we were in the course of raising with the respondent our concerns about the decision the subject of the appeal the appellant stated that he was in a position to continue to attend the hearing of the appeal by telephone. 9. The signed statement by "Melissa" and the appellant included statements that the appellant was currently on heavy medication, some of which included morphine, and had been since his operation on 9 November 2022. A copy of a medical admission form from Sydney Southwest Private Hospital sent on 2 November 2022 referred to the scheduled back surgery (an L 3-5 Laminectomy) on 9 November 2022. It was stated that the appellant had been on heavy medication for this pain since 10 October 2022 and that from that time he had been unable to prepare the appeal. It was stated that the appellant could not be moved or driven to seek further medical help and assistance until the pain eased. 10. It was also stated that the appellant had been booked in to see his specialist in the afternoon of 1 December 2022. 11. Amongst the documents, there were two medical certificates from a Dr M Hamad-one dated 20 August 2022 and the other dated 4 November 2022. The first expressed the opinion that the appellant "is/has been unfit for work/study" from 18 August 2022 to 18 November 2022. The second expressed the same opinion for the period from 18 November 2022 to 18 February 2023. 12. The first certificate gave the date of onset of the back condition consisting of "fracture vertebra" as 22 March 2020, long before the appellant commenced the proceedings for administrative review. 13. The second medical certificate referred to the back operation to occur on 9 November 2022. This opinion was not expressed in the light of any examination of the appellant after the back surgery. It made no reference to any specific medication that the appellant was taking following his surgery. 14. These certificates did not meet the requirements for medical evidence in respect of adjournment applications as outlined in a number of decisions of the Tribunal, including Araghi v St George Community Housing [2021] NSWCATAP 154, following the decision of the NSW Court of Appeal in AHB v NSW Trustee and Guardian [2014] NSWCA 40 at [4]–[5]. 15. It was also stated that in the signed statement that the property where the appellant lived had recently been flooded out and that data on hard disk drives would not become available until mid-December 2022. It was said that the absence of this material seriously prejudiced the appellant's case. 16. In our view, none of this material was sufficiently specific and authoritative to establish a reasonable explanation for the appellant's non-compliance with the directions of the Appeal Panel for him to provide his material on the appeal by 3 November 2022. 17. Nor was there any medical evidence to support an inability to adequately appear by telephone at the hearing on 1 December 2022. There was no medical evidence supporting an inability to appear before a scheduled appointment with the appellant's specialist in the afternoon of 1 December 2022, in circumstances where the appeal took place in the morning of that day. 18. The statements about data on the hard disk were vague and did not explain in any specific way how any of this material was significant on the appeal. 19. Given the deficiencies with the material the appellant put forward in support of his adjournment application and in circumstances where we had significant concerns about the decision the subject of the appeal, we did not consider it was in accordance with the guiding principle in s 36 of the NCAT Act, or otherwise in the interests of justice for the hearing of the appeal to be adjourned. ORDERS 1. For the above reasons, we order as follows: 1. The appellant's application to adjourn the hearing of the appeal on 1 December 2022 was dismissed. 2. Leave to appeal is granted. 3. The appeal is allowed. 4. Orders 3 and 4 made by the Tribunal on 22 August 2022 are set aside. 5. The decision made by the respondent to sell the property the subject of the appellant's administrative review application is stayed pending further order by the Tribunal. 6. The proceedings are remitted to the Tribunal for re-determination on the papers and without further oral hearing pursuant to s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). 7. The appellant is to provide to the Tribunal and the respondent, by person or by post, any written material, by way of evidence and submissions, upon which he seeks to rely on his application for administrative review within 6 weeks of the publication of these reasons for decision. 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: 13 December 2022