Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gallagher v Northern NSW Local Health District [2023] NSWCATAP 245 Hearing dates: 21 July 2023 Date of orders: 10 August 2023; 30 August 2023 Decision date: 30 August 2023 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member Decision: On 10 August 2023: 1. Leave to appeal is refused. 2. Leave for the appellant to be represented in the proceedings at first instance by Rex Patrick is refused. 3. The decision in respect of the appellant's application for an order under s 64 of the Civil and Administrative Tribunal Act 2013 is reserved. On 30 August 2023: 1. A hearing of the appellant's application for an order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) is dispensed with. 2. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), publication of the content of the report of Dr Teoh dated 24 April 2023 (beyond that contained in these reasons), to anyone other than the employees of the respondent who are directly involved in the preparation and conduct of the respondent's case in these proceedings, and the respondent's legal representatives, is prohibited. Catchwords: APPEALS — Leave to appeal — Decision to refuse application for a party to be represented by a non-legally qualified representative — Matter of practice and procedure — Decision reached not unreasonable or plainly unjust — No material consideration ignored — House v The King error not made out — Leave to appeal refused — Question redetermined with further evidence – Considerations regarding non-qualified persons representing parties – What constitutes engaging in legal practice — Non disclosure order sought — Principles to be considered Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 3, 38, 45, 49, 50, 60, 64, 65, 80, 81, Sch 3, cl 9(1) Court Suppression and Non-publication Orders Act 2010 (NSW) Government Information (Public Access) Act 2009 (NSW), s 105 Legal Profession Uniform Law 2014 (NSW), ss 6, 10 NSW Health Records and Information Privacy Act 2002 (NSW) Privacy Act 1988 (Cth), ss 6FB, 16B, 95A Supreme Court Act 1970 (NSW), s 22 Cases Cited: AB (A pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 Amirbeaggi v NSW Self Insurance Corporation [2023] NSWCATAP 230 Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 Collins v Urban [2014] NSWCATAP 17 Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230 Dickason v Dickason (1913) 17 CLR 50; [1913] HCA 77 DRJ v Commissioner of Victims Rights [2020] NSWCA 136 Frost v TAFE NSW (No 2) [2019] NSWCATAD 129 Gabrielle v Abood (No 3) [2023] NSWCA 29 Gallagher v Northern NSW Local Health District [2023] NSWCATAD 164 House v R (1936) 55 CLR 499; [1936] HCA 40 Jordan v Audet [2016] NSWCATAP 22 Kostov v Ecclesia Housing Limited (No 3) [2018] NSWCATAP 221Magjarraj v Asteron Life Pty Ltd [2009] NSWSC 1433 McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Misrachi v The Public Guardian [2019] NSWCA 67 PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 PR v MDM [2020] NSWCATAP 151 re the Will of F. B. Gilbert (deceased) (1946) 46 SR (NSW) 318; (1946) 63 WN (NSW) 176 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 Tanious v NSW Land & Housing Corporation [2021] NSWSC 807 Yuen v Thom [2016] NSWCATAP 243 Texts Cited: Australian Privacy Principles guidelines Category: Principal judgment Parties: Julie Gallagher (Appellant) Northern NSW Local Health District (Respondent) Representation: Solicitors: Rex Patrick, lay advocate (Appellant) Clayton Utz (Respondent) File Number(s): 2023/00222889 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2023] NSWCATAD 164 Date of Decision: 21 June 2023 Before: T Simon, Principal Member File Number(s): 2023/0008254 REASONS FOR DECISION Summary 1. On 21 June 2023, the Tribunal in its Administrative and Equal Opportunity Division refused leave for the appellant to be represented by Mr Rex Patrick, who is not an Australian legal practitioner. The appellant appeals from this decision. The substantive proceedings in the Division are an application by the appellant to review a decision of the respondent regarding the release of documents under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act" or "GIPA"). 2. This appeal concerns the proper considerations in determining such an application, and whether the Tribunal erred in the application of those considerations in this case. 3. As the decision was an interlocutory one, the appellant needs leave, that is permission, to appeal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(a). 4. I have determined that the appellant has not identified an error rising above the merely arguable in the Tribunal's decision on the material before it, and that because the relevant considerations are settled, no issue of general principle or public importance is raised in the appeal. As a result, I will refuse leave to appeal. I will, however, reconsider the application on its merits, including with reference to information not before the Tribunal at first instance. In doing so, for reasons I will come to, I have reached the same conclusion as the Tribunal at first instance as to a grant of leave to be represented. 5. In reconsidering the application, I received further evidence from the appellant after the hearing before me, in accordance with a direction given at the hearing. A non-disclosure order was sought over the further evidence. I have decided to make a less restrictive order than that sought. However, the need to consider that additional aspect of the matter meant that, whilst I was able to provide the parties with my orders on the appeal and reconsideration of the application for leave for representation on 10 August 2023, I needed to reserve my decision in respect of the non-disclosure application, which I provide herein with the totality of my reasons. Background and the Tribunal's reasons for decision 1. The Tribunal set out the relevant history of the matter, what it considered to be the relevant issues governing a grant of leave for the appellant to be represented by Mr Patrick, and its conclusions in a published decision: Gallagher v Northern NSW Local Health District [2023] NSWCATAD 164. 2. To understand the grounds of appeal, it is necessary to record much of the Tribunal's decision for reference. Relevantly, the Tribunal recorded: "1. On 13 March 2023 the applicant lodged an application under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). 2. The matter came before the Tribunal for a case conference on 29 May 2023. On that occasion Mr Rex Patrick was granted leave to appear as a representative for the applicant for that day only. The Tribunal noted: Ms Gallagher is to provide to the Tribunal and the Respondent with sufficient material to allow the Tribunal to determine whether the request should be granted for further conduct of the matter. 3. On 30 May 2023 the applicant lodged a "Notice of representation by legal practitioner or agent" form together with written submissions as to why leave should be granted for Mr Patrick to appear as a representative for the applicant (the application). … 7. Neither of the parties' sought an oral hearing of the application and both parties agreed that the application could be dealt with on the papers. I am satisfied in the circumstances, that it is appropriate to deal with the miscellaneous applications on the papers, as a hearing would amount to further unnecessary costs to the parties. … 8. The applicant submits that she is currently suffering from a medical condition, which, she submits, arises from her employment and renders her totally unfit for work. The applicant states that her capacity to represent herself in an NCAT hearing related to a work matter with the respondent is limited by her medical condition. The applicant has attached a letter from a medical practitioner, stating: I have examined Julie Gallagher … and based on my experience and statements made by Julie Gallagher I consider that Julie has a medical condition and will be unfit for participation unsupported, in work related matters, including appeal process, today 29 May 2023. 9. The applicant also submits that not having an agent to represent her will result in her not understanding the arguments being put forward by the respondent and that she would be denied the opportunity for her agent to advise her about her options in relation to the GIPA Act application. She submits that this would place an unfair position as the respondent has a senior, qualified legal counsel and is well resourced. The applicant submits that she is currently unemployed and does not have the financial resources to pay legal fees to a lawyer to represent her. 10. Mr Patrick is not a lawyer and does not purport to be a lawyer. The applicant submits that Mr Patrick has been very careful to spell out that he does not give legal advice. The applicant notes from reports in the media and her searches of AUSTLII that Mr Patrick is experienced and well respected in the information access area. The applicant submits that Mr Patrick will assist the Tribunal as he can focus the applicant on the issues that are important to arriving at the correct and preferable decision. 11. In an email sent on 15 June 2023, Mr Patrick submits the following: Whilst I do not purport to be a lawyer, nor do I regularly agree to appear for people in Tribunals (I often provide background assistance), I have been involved in numerous FOI proceedings as both an applicant and respondent, including: • In the Federal Court (x2) • In the AAT (>15) - although many of these matters have been settled by consent and are not recorded. • In SACAT (5) • With The Federal Information Commissioner (>30) • With The South Australian Ombudsman (>5) My appearance will likely assist the proceedings in terms of case management and narrowing of the issues before the Tribunal. Great injustice would occur if the applicant was asked, in the circumstances described, for present her case against professional legal representatives. 12. The email ends with the following signature: Rex Patrick Director Transparency Warrior … www.transparencywarrior.com.au … 13. Section 45 of the NCAT Act provides: (1) A party to proceedings in the Tribunal— (a) has the carriage of the party's own case and is not entitled to be represented by any person, and (b) may be represented by another person only if the Tribunal grants leave— (i) for that person to represent the party, or (ii) in the case of representation by an Australian legal practitioner—for a particular or any Australian legal practitioner to represent the party. … 14. Clause 9 of sch 3 of the NCAT Act provides: Despite section 45 of this Act, a party to proceedings for the exercise of a Division function is entitled to be represented by an Australian legal practitioner without requiring the leave of the Tribunal. Note— The leave of the Tribunal will, however, be required under section 45 of this Act in other cases. … 15. Mr Patrick is not an Australian Legal Practitioner and leave is therefore required for him to appear as a representative on the applicant's behalf. 16. Damjanovic v Maley [2002] NSWCA 230 involved an appeal from a decision made in the District Court, refusing leave for Ms Vukic, a lay representative, to appear before the Court pursuant to s 43(1) of the District Court Act 1973 (NSW). Stein JA, with whom Mason P and Sheller JA agreed, set out principles from a number of cases at [37] – [68] of the judgment and relevantly summarised the principles at [70] – [86] as follows (some citations omitted): (a) The complexity of the case 70 Whether the case is one of complexity or minor or straightforward has often been seen as a discretionary factor. … (b) Genuine difficulties of the unrepresented party 72 These include matters such as unexpected language difficulties and emergencies. An example of the latter was the absence of legal aid in a criminal appeal (Schagen at 501). Also, in that case, the appellant was deaf and virtually incomprehensible to the court reporters. The court permitted two law students to address the court. … (c) The unavailability of disciplinary measures and a duty to the court by lay advocates 74 Almost every case mentioned these matters as protection for a client when a qualified lawyer represented a party but were protections which were not available where an unqualified lay advocate appears… 75 In appropriate cases a legal practitioner may be ordered to pay costs. The position is far from clear in relation to a non party lay advocate. There may be extreme circumstances where the conduct of a lay advocate could attract an adverse costs order. 76 In my opinion, the overall duty of a barrister or solicitor to the court is an important consideration. It is a duty of candour and a practitioner must not knowingly mislead the court. The court is entitled to place reliance on that duty and expect it to be met. The disciplinary codes of the legal profession back up the overriding duty of a practitioner to the court. (See Ipp, The Hon D. A., Lawyers' duties to the court, (1998) 114 LQR 63). 77 Training, qualifications and experience are also important. This is not to say that there are not incompetent lawyers, including some who seek to practice advocacy. For the most part, the market and the disciplinary codes account for them. But with unqualified and uninsured lay advocates, the court loses the benefit of the overriding duty and clients are at a distinct disadvantage. Apart from endeavouring to ensure that a lay person granted leave to appear obeys the rules, there is little a court can do except, in an appropriate case, withdraw the leave to appear. 78 All of the above is not to say that Ms Vukic has not obeyed the rules of court when she has been granted leave to appear. In the court's experience she has been unfailingly courteous and polite. However, the absence of a disciplinary code and duty to the court underlines the inappropriateness of permitting unqualified persons to appear apart from an exceptional case. (d) Protection of the client and the opponent 79 Lay advocates are unqualified, unaccredited and uninsured. This places a client at considerable risk. The point was made in Scotts Head that an unqualified advocate may cause loss to a party (at 3). A lay advocate does not owe the same duty to his client as does a lawyer. See also Abse at 546 highlighting the duty owed by a lawyer to assist the court in ensuring the end of the proper administration of justice. On the same issue see also Paragon and D v S. 80 One should also not lose sight of a lawyer's duty to his/her opponent, Scotts Head at 3. None of these protections for the system of justice exist with an unqualified lay advocate. In this case, Mr Damjanovic has none of the protections although he can afford a lawyer. As I have said, it is difficult to accept that he cannot find a competent and trustworthy Croatian or non-Croatian lawyer. (e) Lay advocates in inferior courts and tribunals 81 There are indications in some of the cases that Local Courts, given their jurisdiction and large numbers of unrepresented litigants, may be more likely to grant leave to unqualified persons. This is, one assumes, in straightforward uncomplicated matters where the party is under some disability in presenting his/her own case. This may also be the case with some specialist jurisdictions and tribunals. … (f) The interests of justice 83 What runs through all of the authorities as the guiding principle in the exercise of the discretion is the public interest in the attainment of the ends of justice. The public has an interest in the effective, efficient and expeditious disposal of litigation in the courts. As a general rule this can best be achieved by parties employing qualified lawyers. 84 The reason for this was explained by Gleeson CJ in a speech given to the Supreme Court of Japan in January 2000 (Current Issues for the Australian Judiciary). The Chief Justice said that: The adversary system assumes, in the interests of both justice and efficiency, that cases will be presented to courts by skilled professionals. To the extent to which that assumption breaks down, so does the system. 85 Representation by legal practitioners will not always be possible because of the high cost of legal services and restrictions on legal aid. There is therefore room for the discretion to be exercised in an appropriate case, as indeed the authorities make plain and in circumstances where the achievement of justice cannot be otherwise secured. 86 Nonetheless, the foundation for the general principle and limited room for the discretion to be exercised is, as Mahoney AP said in Scotts Head, the proper administration of justice and the protection of the parties. It is not a rule devised to protect a lawyer's privilege or monopoly. Access to justice is a difficult issue in an ever more complex society with constraints on public resources. It will therefore be understandable and appropriate that judges will from time to time be prepared to grant leave to an unqualified person. Advocacy before courts is however a difficult skill to acquire without formal qualifications, training and practice… 17. I note the comments made in Damjanovic v Maley regarding lay advocates in Tribunals where the party is under some disability in presenting their own case. However, the applicant in these proceedings has not demonstrated that she is under a disability in presenting her own case. The medical certificate provided by her provides no details of the medical condition or disability and states that the applicant would only be unfit for participation in work related matters, including appeal processes for 29 May 2023. The medical certificate does not indicate that the applicant would be unfit beyond that date. 18. Unlike a Court, the Tribunal is not bound by the rules of evidence in this type of matter. Section 38 of the NCAT Act requires the Tribunal to act with as 'as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms'. Section 38 also requires that: (5) The Tribunal is to take such measures as are reasonably practicable— (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. (6) The Tribunal— (a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases. 19. The applicant indicates that she cannot afford legal representation. However, the procedures of the Tribunal make it easier for a party to represent themselves than in a Court. In any case, the applicant has provided no details of efforts made to secure legal representation. There is no evidence that the applicant presently suffers from any disability which would prevent her from representing herself. I also note that refusal to grant representation does not result in Mr Patrick being prevented from assisting the applicant (should she want it) in preparing her case. 20. Moreover, Mr Patrick has not identified the nature of his involvement in "FOI". I note the proceedings he refers to do not appear to be proceedings under the New South Wales GIPA Act. I also note the signature of Mr Patrick includes the words 'Transparency Warrior'. While there are no further details provided in that regard, Mr Patrick's own interests or motives in appearing as a representative in the proceedings are not disclosed. No details of the arrangement between the applicant and Mr Patrick have been provided to the Tribunal. As Mr Patrick concedes, he is not a legal practitioner and cannot provide legal advice to the applicant. Mr Patrick is a lay representative, and, as is explained in Damjanovic v Maley, Mr Patrick is not bound by the duties and obligation that a legal practitioner has to a client or the Tribunal and this could place the client and the respondent at risk. 21. Having considered the submissions of the parties and the principles summarised in Damjanovic v Maley, I am not persuaded that it would be in the interests of justice generally or in the interests of the applicant to grant leave for Mr Patrick to appear in the Tribunal as the representative for the applicant." (Emphasis in original) Scope and nature of internal appeals 1. To succeed in an appeal from an interlocutory decision such as this one, the appellant requires permission (that is, "leave") to appeal: NCAT Act s 80(2). 2. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206, where the Court said at [28]: "Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong." (Citations omitted) 1. An application for leave to appeal from an interlocutory decision on a matter of practice and procedure faces a "high hurdle" as referred to in various decisions of the NSW Court of Appeal: see, for example, PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [3]-[6], where the authorities were collated. It is sufficient here to record what was said by Sir Frederick Jordan in re the Will of F. B. Gilbert (deceased) (1946) 46 SR (NSW) 318 at 323; (1946) 63 WN (NSW) 176 that: "...if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal." 1. The Tribunal's decision was a discretionary one in respect of its practice and procedure. What may be derived from the authorities is that: 1. the grant of leave to appeal generally requires the identification of an issue of principle, a question of public importance, or a reasonably clear injustice going beyond something that is merely arguable; 2. in relation to discretionary decisions, such as the decision under appeal, error in the nature described in House v R (1936) 55 CLR 499; [1936] HCA 40 must be established; and appellate courts and tribunals are cautious in granting leave to appeal on matters of practice and procedure. Such decisions will generally only be overturned on the principles outlined in House v R: see for recent authority Gabrielle v Abood (No 3) [2023] NSWCA 29 at [12] per Kirk JA with the Court in agreement. 1. House v R error involves a decision maker: 1. making an error of legal principle; 2. making a material error of fact; 3. taking into account some irrelevant matter; 4. failing to take into account, or giving insufficient weight to, some relevant matter; or 5. arriving at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning. 1. I may decide to conduct a new hearing if I am satisfied that the grounds for appeal warrant it: NCAT Act, s 80(3)(a). A new hearing under s 80(3) of the NCAT Act is a hearing de novo, or "from the beginning". Otherwise, the appeal, at least insofar as it is not limited to a question of law, proceeds by way of rehearing if leave to appeal is granted: Yuen v Thom [2016] NSWCATAP 243 at [17]. 2. In advance of the first mention of the appeal, I issued a direction to the parties that said, relevantly: "Noting the discrete issue to be considered in the appeal and the impending hearing of the application at first instance, the parties should be ready to address at the callover whether: they are in a position to argue the issues of leave to appeal and the appeal on its merits at the callover…" 1. To the parties' credit, they were willing to have me determine the issue of leave, and the appeal if leave was granted, at the first mention of the appeal. The respondent neither consented to, nor opposed, a grant of leave for Mr Patrick to represent the appellant at first instance. It has carried that position through to each salient aspect of the appeal. Leave for the appellant to be represented by Mr Patrick in the appeal 1. When the appeal was called on, Mr Patrick sought to appear for the appellant. 2. For reasons I will expand upon below, I gave Mr Patrick leave to represent the appellant before me on condition that he may not charge her for doing so. The grounds of appeal and the appellant's submissions 1. The appellant began with six grounds of appeal but abandoned an aspect of one ground in argument. In respect of the grounds as pressed, she alleges that the Tribunal erred on the following bases: 1. Ground 1 — The decision is contrary to the interests of justice and improperly frustrates the objectives of the Act; 2. Ground 2 — The Principal Member misconstrued the Act in importing the practice and procedures of a superior court to an administrative tribunal; 3. Ground 3 — The Principal Member did not take into account relevant considerations; 4. Ground 4 — The Principal Member did take into account irrelevant considerations; 5. Ground 5 — The Principal Member made a material error of fact; 6. Ground 6 — The Principal Member decided to hear the issue on the papers in circumstances where there was a want for further, easily obtainable, information. 1. In support of those arguments, the appellant relied on written submissions enlarged upon and clarified by Mr Patrick at the hearing before me. Ground 1 – the appellant's submissions and consideration 1. The appellant submits that the decision is contrary to the interests of justice and improperly frustrates the objectives of the Act. With respect, this ground is really argued on the basis that a different conclusion is warranted than that reached by the Tribunal. For that reason, and as it does not materially advance the application for leave to appeal, I will address the appellant's submissions when reconsidering the grant of leave to be represented below. Ground 2 – the appellant's submissions 1. The Tribunal Member misconstrued the Act in importing the practice and procedures of a superior court of record to an administrative tribunal. For example: "Mr Patrick is a lay representative, and, as is explained in Damjanovic v Maley, Mr Patrick is not bound by the duties and obligation that a legal practitioner has to a client or the Tribunal and this could place the client and the respondent at risk." 1. However, the Tribunal's own guidance indicates that an acceptable lay advocate such as a friend or relative, who will also not have such duties and obligations, may be granted leave. This is evidenced by the Tribunal's website in this regard. 2. In making the decision, the Principal Member relied heavily on NSW Supreme Court jurisprudence. The Supreme Court is a superior court of record (s 22 of the Supreme Court Act 1970 (NSW)) with proceedings conducted in a manner that is very formal. Whilst both the Court and the Tribunal seek to resolve disputes in a just manner, they do so using very different methodologies and approaches. 3. There has been judicial caution that the subliminal effect of the judicial model may distract attention from particular features of a tribunal. Spigelman CJ, in McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 (McGovern), explained at [6] that lawyers and judges tended to view questions about tribunal procedures through the lens of their curial experience: "… by treating judicial decision-making as some kind of paradigm, departures from which have to be explained or even justified by reason of the particular statutory power or decision-making body. In my view this is an incorrect approach. The case law on judicial decision-making is not a starting point … The statute must be part of the assessment from the outset and not treated as some kind of qualification of a prima facie approach." (Emphasis added in submission) 1. In contrast to the Court, the Tribunal is directed by the NSW Parliament to have matters heard quickly, cheaply, with as little formality as possible and, in most cases, without reference to the rules of evidence. 2. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24, Gleeson CJ stated at [8] that "fairness in administrative decision-making is not measured by reference to a judicial paradigm" but, he continued, "judicial procedure ought to be an example of fairness in action, and it is not surprising to find some aspects of that procedure taken up for some administrative purposes." 3. In taking the Supreme Court's jurisprudence on its own practice and procedure and applying it to the Tribunal, the Tribunal has misconstrued the Act. Consideration of Ground 2 1. I respectfully accept without hesitation the comments of Spigelman CJ, in McGovern. Such caution has been adopted in this Appeal Panel: see, for example, Amirbeaggi v NSW Self Insurance Corporation [2023] NSWCATAP 230 at [19]. However, nothing suggests that the Tribunal fell into the error ascribed to it by the appellant. 2. The structure of the Tribunal's decision is instructive in this regard. It is only after, correctly, identifying the relevant provisions of the NCAT Act that the Tribunal turned to analyse what was said in Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230. 3. Nor does the caution given by the former Chief Justice in McGovern relieve the Tribunal from the obligation to consider authoritative statements of the Court, and its seriously considered obiter dicta. 4. What is important is that statements of the Court only be used for guidance in those circumstances, i.e., where the questions in issue are directly comparable or analogous to those under consideration by the Tribunal. Here, there is nothing which suggests that any of the principles considered in Damjanovic v Maley that were cited by the Tribunal do not fit that description. Indeed, to the extent there can be any controversy in that regard it is quelled by the Court's specific reference to the more relaxed procedures of tribunals at [81] of that decision, under the heading "(e) Lay advocates in inferior courts and tribunals". The Tribunal had direct regard to the qualification referred to under that heading at [17] of its decision. 5. This ground has no merit. Grounds 3 and 4 – the appellant's submissions 1. The Tribunal Member did not take into account relevant considerations and took into account irrelevant considerations. Consideration of Grounds 3 & 4 1. With respect, the appellant raised these grounds without an understanding of their legal import and meaning in the context of appeals. To say that considerations are "relevant" in the appellate context signifies that those considerations are mandatory having regard to the text and context of a relevant provision. Similarly, to suggest that a consideration is "irrelevant" signifies that it is prohibited by the subject-matter, scope and purpose of the statute: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40; [1986] HCA 40. The appellant was unable to identify how her concerns as to the issues leading to what she perceived as the Tribunal's error in the exercise of its discretion were either mandatory or prohibited considerations when determining an application under s 45 of the NCAT Act. To the extent the appellant says the Tribunal was wrong in its weighing of the evidence before it, leading to an incorrect conclusion, I will address those matters when re-determining the application. Given my conclusion in that regard, I do not think the decision was more than arguably wrong. Ground 5 – the appellant's submissions 1. The Tribunal made a material error of fact concerning the state of the evidence that the appellant could not present her own case. 2. The appellant's submission had stated, inter alia: "I am currently suffering from a medical condition arising from my employment with the respondent, Northern NSW Local Health District which has rendered me totally unfit for work. My capacity to represent myself in an NCAT hearing related to a work matter with the respondent is limited by my medical condition at this time." 1. That statement was evidenced by a medical certificate from a qualified doctor. 2. Despite this the Tribunal found: "There is no evidence that the applicant presently suffers from any disability which would prevent her from representing herself." Consideration of Ground 5 1. The mere assertion by a party that they are unable to present their own case due to a medical condition will rarely be accepted without independent evidence verifying that allegation. 2. The Tribunal noted, correctly, that the statement contained in the doctor's certificate proffered by the appellant provided "… no details of the medical condition or disability and states that the applicant would only be unfit for participation in work related matters, including appeal processes for 29 May 2023. The medical certificate does not indicate that the applicant would be unfit beyond that date." As the hearing of the appellant's application was to occur well after 29 May 2023, the Tribunal's finding was clearly correct. Further, as I raised during submissions with Mr Patrick, medical certificates of the nature provided to the Tribunal are commonly criticised as unhelpful and not probative of the matters they are relied upon to establish. As was said in Magjarraj v Asteron Life Pty Ltd [2009] NSWSC 1433 at [22]: "All too frequently judges see cryptic written statements from medical practitioners referring to some undisclosed and undiagnosed "medical condition", culminating in the assertion that a person is unfit to attend court or unfit for a court hearing. To the extent that such statements are put forward as evidence about the state of the person's health and the extent to which impaired health may incapacitate a person from participating in court proceedings, the statements fail the most fundamental test for the reception of expert evidence. Bald unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything." 1. It was at that point that the appellant personally indicated she had access to more probative medical evidence, which had not been lodged, nor apparently requested by or provided to Mr Patrick. This crystalised the potential for me to reconsider the appellant's request for leave to be represented afresh. Certainly, on the material before the Tribunal, its findings on this issue were not even arguably incorrect. Ground 6 – the appellant's submissions 1. The Principal Member decided to hear the issue on the papers in circumstances where there was a want for further and easily obtainable information. 2. Whilst the parties can agree to dispense with a hearing, and did so, the Tribunal cannot dispense with a hearing unless it is satisfied 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 lodged with or provided to the Tribunal: NCAT Act, s 50. 3. Throughout the decision the Principal Member makes clear that she lacked necessary information, which could easily have been obtained had the Tribunal not dispensed with a hearing. For example: 1. at [19] - "In any case, the applicant has provided no details of efforts made to secure legal representation"; 2. at [20] - "Moreover, Mr Patrick has not identified the nature of his involvement in "FOI"", and "[n]o details of the arrangement between the applicant and Mr Patrick have been provided to the Tribunal." 1. As a general rule, courts have no duty to inquire into the issues placed before them. It is the parties who define issues and call relevant evidence. The situation for a Tribunal is different. In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 ("SZIAI") the High Court suggested, in obiter dicta, that a failure to inquire might give rise to a jurisdictional error where the Refugee Review Tribunal had failed to make "an obvious inquiry about a critical fact, the existence of which is easily ascertained." Consideration of Ground 6 1. Further to the comments of the High Court cited by the appellant in SZIAI, the Court also said, at [20]: "The failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it." 1. It is also correct that s 38 of the NCAT Act indicates, relevantly, that: (6) The Tribunal— (a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, … 1. However, the Tribunal in making its decision was not at risk of falling into jurisdictional error in the absence of the evidence it identified as lacking. Nor could that evidence be said to be "critical" in a material sense to its ability to determine the application. Rather, it was considering the appropriate exercise of its discretion in an application on an issue of practice and procedure. It would cast an impossible burden on the Tribunal to ensure that every party presents all the probative information available to them in such a situation, even where it decides to dispense with a hearing. As was noted in Tanious v NSW Land & Housing Corporation [2021] NSWSC 807 at [34] - [35]: "The order sought by the applicant of the Member was that the Member himself should gather evidence which the applicant asserted would support the submissions he was making. The Member did not take up that invitation. The Appeal Panel, having considered the matter, rejected the existence of any mandatory obligation falling on the Member to undertake those enquiries. The Appeal Panel concluded that what was asked of the Member travelled beyond the requirements set out in s 38(6) of the Act. It is to be kept in mind at all times that NCAT is a body which is established to determine disputes between parties contained in the proceedings brought before it. NCAT is not an inquisitorial tribunal designed or resourced to undertake independent investigations of any matter of fact raised by a party to a dispute brought before it. Its obligation is to hear and determine disputes in accordance with the guiding principle. It would have been an error, in my view, for the Member to have acceded to the plaintiff's request that he undertake independent investigations about a question of fact to be decided in the proceedings. The Appeal Panel was correct to reject the argument that the Member ought to have undertaken independent investigations. Equally, it would not have been open in my view to the Appeal Panel to itself make any such enquiry, even if it had been requested to do so." 1. No reasonably arguable case for error is established by this ground. Conclusion on leave to appeal 1. The proper considerations on a grant of leave for representation by a lay advocate in the Tribunal, including those set out in Damjanovic v Maley, represent a settled position of longstanding. The appeal raises no issue of general principle or public importance. Having regard to those considerations, leave to appeal should be refused. The renewed application and further evidence 1. I recorded earlier that I granted leave to Mr Patrick to represent the appellant in the appeal, on condition that he may not charge the appellant for doing so. Some context is called for. 2. Had I reached a state of satisfaction that the grounds of appeal warranted it, I could have decided to conduct the appeal as a new hearing: NCAT Act, s 80(3)(a). Alternatively, had I granted leave and found material error to be established, I may have been called upon to re-exercise the discretion on the question of leave for representation: NCAT Act, s 81(1)(b) and (d). 3. In advance of the hearing, I read the appellant's written submissions, which were drafted in the first person, that is, as though the appellant herself was speaking through the submissions. Notwithstanding that, at the commencement of the hearing before me, only Mr Patrick appeared for the appellant on the apparent assumption that he may represent the appellant, who subsequently joined the hearing by AVL. 4. I decided that I would take some evidence from Mr Patrick before considering a grant of leave for him to represent the appellant in the appeal. Such evidence would be relevant on that issue and were it necessary for me to re-exercise the discretion to grant leave in the first instance proceedings. 5. Mr Patrick's evidence was, relevantly: 1. That he is not an Australian legal practitioner but has extensive experience in the sphere of applications to governmental bodies about freedom of information; 2. That he was authorised by the appellant to make decisions that bind her in the appeal; 3. That he proposed to charge $1600 per day for his services in assisting the appellant in the appeal; and 4. That he had prepared the appellant's written submissions. 1. That evidence brought its own complications, which had not been considered by Mr Patrick. 2. The Legal Profession Uniform Law 2014 (NSW) ("LPUL"), s 10(1), makes it an offence for an entity to carry on legal practice in NSW unless it is a qualified entity. By s 10(2), an entity is not entitled to recover any amount, and must repay any amount received, in respect of anything the entity did in contravention of subsection (1). Any amount so received may be recovered as a debt by the person who paid it. 3. Section 6 of the LPUL contains relevant definitions. As defined, "engage in legal practice" includes "practise law or provide legal services, but does not include engage in policy work (which, without limitation, includes developing and commenting on legal policy)"; "legal services" means "work done, or business transacted, in the ordinary course of legal practice". 4. Despite Mr Patrick's confirmation that he does not purport to provide legal advice, I raised with Mr Patrick my concern that his seeking to represent the appellant in the appeal, for reward, may transgress s 10 of the LPUL (or a like provision in South Australia where Mr Patrick resides). Whilst I make no finding in that regard, there is a difference between providing assistance in making freedom of information styled applications on the one hand, and drafting submissions and representing a party in legal proceedings focussed on the identification of error in administrative decision making on the other. The appellant was present (online) for that exchange. 5. Mr Patrick confirmed that, in the circumstances, he undertook not to charge the appellant if granted leave to represent her in the appeal (and would agree to such a condition in the proceedings at first instance if it came to that). The appellant confirmed that she still wished to have Mr Patrick represent her. 6. I felt that I would be best placed to consider whether Mr Patrick should be given leave to represent the appellant at first instance, if required, if I allowed him to address me in the appeal. The confined nature of the appeal process was a relevant factor in that regard. In circumstances where the respondent neither consented to, nor opposed the appeal (nor leave for Mr Patrick to represent the appellant in it) and where all that was left to do was to allow the appellant to speak to the written submissions that were prepared by Mr Patrick, there would have been an air of artificiality in my refusing leave at that point. However, I granted leave on the condition that Mr Patrick may not charge the appellant for doing so. I must frankly acknowledge the difficulty posed in enforcing such a condition on the order, which was raised by the respondent. However, at least it reflects in a formal sense my concerns and the undertaking given by Mr Patrick, which the appellant was privy to. 7. By the end of my hearing from the appellant in respect of the appeal, it had become apparent that it may be a more just, quick and cheap outcome if the appeal failed to simply allow the appellant to renew an application for leave to be represented at first instance. I was told the Tribunal's decision had already been referred to in other proceedings refusing Mr Patrick leave to represent a party in a similar context. Further, as an interlocutory application, nothing prevented it simply being renewed in the Division, despite the limited circumstances when such applications are usually entertained: Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46. The appellant sought to renew the application before me in that context. The respondent raised no objection. 8. Whilst the grounds of appeal did not warrant a new hearing, and the appeal did not succeed such that I needed to redetermine the discretion exercised by the Tribunal at first instance, I may exercise all the functions that are conferred on the Tribunal at first instance when confirming, affirming, varying, or making a decision in substitution for the decision under appeal: NCAT Act, s 81(2). When issuing my orders on 10 August 2023, I took the view that the reference in s 81(2) to exercising the functions of the Tribunal even when confirming or affirming the decision at first instance, read with s 38(1) and (4) of the NCAT Act, authorised me to consider a renewed application even if that could be considered to go beyond the four corners of the appeal. I have deliberated further on that issue in preparing these reasons. It may be that allowing a new application of that nature in the appeal was beyond jurisdiction. If so, order (2) that I made on 10 August 2023 may be considered to be "no decision at all": Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at [51] (Gaudron and Gummow JJ, with whom McHugh J relevantly agreed). In either case, the outcome is unchanged. The further evidence 1. As I indicated, the appellant sought to provide a further medical report after the hearing, going to her ability to represent herself. That was not opposed by the respondent. It was agreed that I could consider the report without hearing further from the parties. However, when the report was sent to the Tribunal it was accompanied by an application that "disclosure" of the report be prohibited: "… beyond: Employees of the respondent who are directly involved in the preparation and conduct of the respondent's case in these proceedings, and their legal representatives; [and] Members and staff of the Tribunal, and any person performing services for the Tribunal, acting in the course of their duties." The relevant principles in respect of a non-disclosure order 1. Section 64(1)(a) of the NCAT Act relevantly provides: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. … 1. A hearing in the Tribunal is to be open to the public unless the Tribunal orders otherwise: NCAT Act, s 49(1). This reflects the open justice principle: Dickason v Dickason (1913) 17 CLR 50; [1913] HCA 77; State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 ("Dezfouli") at [58]; Jordan v Audet [2016] NSWCATAP 22 at [28]; Kostov v Ecclesia Housing Limited (No 3) [2018] NSWCATAP 221 at [9]-[10]; Frost v TAFE NSW (No 2) [2019] NSWCATAD 129 at [10]-[12] and [23]. The application of the principle of open justice in the Tribunal is complicated by the diverse nature of the Tribunal's jurisdiction: DRJ v Commissioner of Victims Rights [2020] NSWCA 136 ("DRJ") at [21] – [23]. 2. The nature of the proceedings within the Tribunal is a relevant consideration when deciding whether to make an order under s 64. That includes whether the Tribunal is exercising administrative or judicial power, as the latter is generally expected to be open to scrutiny, with some exceptions: NCAT Act, ss 50, 65; DRJ. In respect of the former, it is relevant that: 1. the initial GIPA application to the respondent, and the internal review by it, were purely administrative applications and decisions. There was no obligation to publish details of the applications or their refusal, and every expectation that the applications and their outcome would not be published: DRJ at [22]; and 2. the application for administrative review in this Tribunal is also an application within the executive branch of government. The open justice principle was not engaged when it was lodged, except to the extent it may be said to be imported by the effect of s 49 of the NCAT Act: DRJ at [24]. However, consistently with its status as the peak tribunal for external merits and administrative review of much government decision-making in NSW, many of NCAT's determinations are made public: DRJ at [23]. 1. Even where the appropriate starting point is consideration of the principles embodied within the concept of open justice, there is a "sharp contrast" to be drawn between what is required to engage the Tribunal's power to make orders under s 64 of the NCAT Act and those of a court to make orders of a similar nature under the Court Suppression and Non-publication Orders Act 2010 (NSW): Misrachi v The Public Guardian [2019] NSWCA 67 at [13]. The former requires only a determination that the orders are "desirable"; the latter a higher standard that the orders are "necessary" in specified respects: DRJ. The absence of a requirement that the Tribunal limit the time for which any orders it makes have application is another factor demonstrating that the Tribunal may apply a less stringent test than a court before making an order under s 64 of the NCAT Act. 2. The prospect of embarrassment and stress affecting a party is generally "an insufficient basis for departing from the general rule that the Tribunal's proceedings should be conducted openly" (Dezfouli at [73]) but is a relevant consideration. To the extent that it may rise to a demonstrated risk to psychological safety, including the aggravation of a pre-existing mental condition, it may be a consideration that carries considerable weight: AB (A pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 at [59]. 3. The interests to which the Tribunal may have regard when determining an application include those beyond the immediate litigation: DRJ at [37]. 4. The difference between the practical effect of available orders made under s 64 of the NCAT Act was explained in PR v MDM [2020] NSWCATAP 151. There, the Appeal Panel noted, at [11]: "We note that s 64(1)(a) and (d) relate to "disclosure", while s 64(1)(b) relates to "publication or broadcast" and s 64(1)(c) relates to "publication" alone. These words are not defined in the NCAT Act, but their ordinary meanings are not controversial. "Publish" means "to make publicly or generally known": Macquarie Dictionary online. "Disclose" has the broader meaning of "to make known or reveal" and includes publication: Macquarie Dictionary online." 1. Whilst there is no applicable onus of proof, the appellant as applicant for an order bears an evidential onus, or 'burden', to put such information before me as may allow me to be satisfied that an order under s 64 of the NCAT Act is 'desirable' in the circumstances. The appellant's submissions in support of a non-disclosure order 1. The appellant acknowledges that the proceedings are to be conducted in public and that determining the application requires me to weigh that general expectation, and the need to conduct proceedings in a procedurally fair way, with the specific issues raised by her in favour of the order sought. 2. In that regard, the appellant relies upon the inherently private nature of the information contained in the medical report. 3. She submits that the law's recognition of doctor/patient confidentiality coupled with statutory acknowledgement (e.g., see the NSW Health Records and Information Privacy Act 2002 (NSW) or the Privacy Act 1988 (Cth), ss 6FB, 16B, 95A and the Australian Privacy Principles guidelines) that medical information deserves special protection, highlights this. 4. In the current circumstances, the appellant submits that the order sought infringes only mildly on the interests of justice. 5. The report is being tendered in support of an interlocutory determination. It does not go to the substantive matter that ultimately has to be decided by the Tribunal and the order sought, which permits access to the report by the other party (albeit with a request to limit its distribution). 6. In respect of public scrutiny of the Tribunal's process: 1. The order sought does not interfere with the ability to know the nature of the dispute being resolved; 2. The order sought does not prevent transparency in the arguments being advanced or the fairness of how they are to be resolved; and 3. Refusal to grant the order will likely exacerbate the medical situation detailed in report. Consideration - a non-disclosure order? 1. The parties were given the opportunity to object to me dealing with the application for a non-disclosure order on the papers. The appellant consented to me doing so. Nothing was received from the respondent on this issue or the substance of the application. As I am satisfied that the issues can be adequately determined in the absence of the parties by considering the written submissions l will make an order dispensing with a hearing of that application pursuant to s 50(2) of the NCAT Act. 2. I think it best to consider the two aspects of the order sought separately. In respect of an order restricting disclosure of the report to employees of the respondent who are directly involved in the preparation and conduct of the respondent's case in these proceedings, and their legal representatives, I think such an order, even in the absence of opposition by the respondent, is too broad to justify. It will be necessary that the existence of the report, and the gravamen of some aspects of it, be disclosed in these reasons. What is not necessary is that the document's entire contents be published to the respondent's staff not involved in the proceedings before the Tribunal or to the public at large. In the absence of opposition by the respondent, I am satisfied an order giving effect to that finding is justified given the former employment relationship between the parties and the nature of the report. 3. In light of the order I will make and my finding above, no further consideration of the second aspect of the proposed order is required. Determination of the renewed application for the appellant to have leave to be represented by Mr Patrick. 1. There were several relevant factors in favour of allowing the appellant to be represented by Mr Patrick. In no particular order, they include: 1. That the appellant seeks that outcome in full knowledge that Mr Patrick is not legally trained; 2. That the appellant now asserts, in a manner much more clearly put before me than the Tribunal at first instance, that she has a medical condition that results from the very controversy that gave rise to her GIPA application. She asserts that appearance at the Tribunal will trigger anxieties that could otherwise be avoided if leave was granted for Mr Patrick to represent her; 3. That whilst Mr Patrick has no legal training, he seems to have a level of familiarity with the principles involved in Freedom of Information styled applications beyond those of many other members of the community, and particularly the appellant; 4. That there will be a disparity in representation if the appellant is not legally represented, which Mr Patrick may have some ability to ameliorate; 5. That the NCAT Act starts with the notion that the Tribunal be accessible and responsive to the needs of all its users (NCAT Act, s 3(c)) and resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible (NCAT Act, s 3(d)); 6. That throughout the process of the appeal, Mr Patrick acted with courtesy and diligence. He was also, in my view, focussed on the Tribunal resolving the real issues in dispute, at least to the extent any non-lawyer might be expected to; 7. That to the extent the appellant has medical conditions preventing her presenting her own case or doing so may exacerbate her condition, she may be in a position of particular disadvantage; and 8. If the appellant cannot afford legal representation, she may have few other options to ameliorate that situation. 1. However, several factors also weigh against a grant of leave, including, in no particular order: 1. There is no evidence to indicate that the source of the appellant's trust in Mr Patrick stems from anything more than her review of his website and discussions with him. Given he is promoting a business of assisting people in the freedom of information sphere, that may not be the most balanced information available; 2. That the proceedings at first instance may be more complex, from a procedural standpoint, in that they may involve issues such as cross-examination that did not arise in this appeal; 3. The unavailability of disciplinary measures and lack of a duty to the Tribunal owed by Mr Patrick; 4. That Mr Patrick owes no duty to the respondent; 5. That Mr Patrick owes no duty to the appellant. Indeed, his only apparent relationship with the appellant was a commercial one, limited to the conduct of the proceedings in the Tribunal. This is not a case where, for example, a landlord's real estate agent (as a member of a regulated industry) with whom they have entrusted a lengthy commercial dealing seeks to represent a landlord; 6. For the reasons I have set out above, I would not be prepared to allow Mr Patrick to represent the appellant on a paid basis. Whilst he has indicated a willingness to do so unpaid, his motivations in that regard remain obscure. At this point, I should return to an argument raised in the appeal about the Tribunal's reference to Mr Patrick describing himself as a "Transparency Warrior" in his signature block and website. Mr Patrick was clearly concerned that the Tribunal had taken that out of context and judged him harshly as a result. I did not read the decision in that way. In fact, one view might be that it indicates that he has a passion for ensuring freedom of information schemes are appropriately administered but I cannot draw that inference where it would be no more than speculation on my part in the absence of other evidence; 7. That Mr Patrick has not appeared in NCAT proceedings; 8. That the exercise of the discretion is to be guided by the public interest in the attainment of the ends of justice. The public has an interest in the effective, efficient and expeditious disposal of litigation in the courts and in tribunals. As a general rule this can best be achieved by parties employing qualified lawyers: Damjanovic v Maley. Here, despite his best efforts, Mr Patrick has drafted grounds of appeal that were in some respects misconceived and failed to grasp the significance of the Tribunal's clear and correct finding as to the inadequacy of the medical report that had been relied upon at first instance until I stepped him through the findings in submissions. That the Tribunal's finding had not led him to question whether the appellant may have better medical evidence available to her is instructive. That led to the need to deal later with the non-disclosure application, which increased the resources that needed to be applied to resolving the appeal; 9. That the appellant may be legally represented as of right in proceedings in the Division: NCAT Act, Sch 3, cl 9(1); 10. The impact of s 38(5) and (6) of the NCAT Act, as set out at [18] of the Tribunal's decision, above; 11. That it is the respondent who bears the onus to justify its decision on the appellant's GIPA application: GIPA Act, s 105; 12. That Mr Patrick could cause loss to the appellant, even inadvertently, and there is no evidence he is insured for that potentiality. This factor may come as a surprise given the general rule that parties pay their own costs in proceedings of this nature: NCAT Act, s 60. However, by virtue of s 60(3)(a) and (b) of the NCAT Act, the manner in which proceedings are conducted is a factor that may warrant departing from that general rule and ordering costs. That enhances the risk to the appellant compared to proceedings where costs would usually follow the event; and 13. That even if I do not grant leave, and the appellant remains not legally represented, it would not prevent her asking to have Mr Patrick assist her as a "McKenzie friend" who may make notes and give suggestions or advice to her but does not perform the role of an advocate or representative. 1. Finally, I will address the two issues that assumed the greatest significance in the application at first instance and before me, and that were decisive in my assessment. 2. The first is the allegation that the appellant is at a particular disadvantage having regard to her medical condition in presenting her own case or that doing so may exacerbate her condition. 3. I have already confirmed the lack of assistance the report proffered at first instance gave in this consideration. The further medical report relied upon by the appellant is authored by Dr Ben Hooi-Beng Teoh, who is, relevantly, a Consultant Psychiatrist. It is dated 24 April 2023 and addressed to a law firm in a manner indicating that it was prepared at the lawyers' behest on behalf of the appellant. 4. It records the content of and provides a diagnostic opinion arising from a single contemporaneous "Telehealth" appointment with the appellant. 5. After recording what to all intents and purposes appears to be an inconsequential personal history, the report turns to the appellant's self-reported recent work history, symptoms, and medical interventions the appellant has sought to assist in her treatment, with little apparent improvement. 6. Relevantly, the report notes that the appellant's "cognitive functions were intact; there was no evidence of short or long term memory impairment." 7. Later, under the heading "Summary and Conclusions," Dr Teoh provides a diagnosis, without reference to the relevant diagnostic criteria that may support it. He opines that the appellant is "totally incapacitated for work," although that appears to then be qualified as a reference to the appellant's field of usual expertise and experience. A significant "whole person impairment" is then assessed. 8. That report is not evidence that the appellant cannot represent herself in a hearing before the Tribunal. Maintaining employment requires an ongoing, and commonly relatively inflexible, commitment to an ability to provide services to an employer in the manner lawfully directed by them. Representing oneself in this context in the Tribunal may require attendance, by AVL if that is considered appropriate in the circumstances, for a day or less. Nor does the report go any way toward establishing an evidentiary basis for the assertion that representing herself may exacerbate the appellant's condition. There is no other "evidence" in that regard, simply the submissions authored by Mr Patrick. However, as I am not bound to apply the rules of evidence, I can accept that the submissions were, in all likelihood, prepared in consultation with and intended to reflect the appellant's views (whilst noting that, unlike a lawyer Mr Patrick is not bound to ensure that is the case). Those views, taken with the report of Dr Teoh, are relevant but not entirely persuasive. 9. The final relevant issue is the appellant's assertion that she cannot afford legal representation, embedding the disparity between her capacity to represent herself and that of the respondent who can, undoubtedly, afford to be legally represented. Again, in the appeal, the appellant had challenged the Tribunal's finding that she had not made good this assertion with evidence at first instance, but I thought that argument held little merit. Before me, though, some further context was provided. 10. The submission suggested that the appellant "understands that anyone engaging a lawyer would rarely walk away from proceedings (particularly in a jurisdiction where adverse cost orders cannot normally be sought to recover costs) with under $20,000 of costs". Indeed, [in] anything other than the simplest of cases, the cost will be significantly more." The source of that understanding is not revealed. 11. It is further asserted that the appellant has recent direct experience in relation to legal costs. She made an unfair dismissal application to the NSW Industrial Relations Commission arising from the same controversy that gave rise to the request for documents in these proceedings. She spent approximately $10,000 in legal fees to conference stage and later discontinued due, she says, to the risk of an adverse cost order. 12. The appellant points to the fact she is unemployed, which I understand to be uncontroversial. 13. However, this rises to no more than a bare assertion. I cannot infer from the fact the appellant is currently unemployed that she cannot afford legal representation. The only probative evidence is that she had the capacity to do so in the NSW Industrial Relations Commission. The appellant was, I infer, engaging lawyers as late as April 2023 when Dr Teoh prepared his report, whether in the context of those proceedings or otherwise. It is also clear that the appellant can afford to pay for Mr Patrick to represent her. Whilst it was implicit in the appellant's submissions that Mr Patrick is cheaper than a lawyer, and that may be true, he does not have the same qualifications, obligations and insurance as one. 14. Weighing all of those factors in the exercise of my discretion, I was not satisfied I should give leave to the appellant to be represented by Mr Patrick. Orders 1. On 10 August 2023: 1. Leave to appeal is refused; 2. Leave for the appellant to be represented in the proceedings at first instance by Rex Patrick is refused; 3. The decision in respect of the appellant's application for an order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) is reserved. 1. On 30 August 2023: 1. A hearing of the appellant's application for an order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) is dispensed with; 2. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), publication of the content of the report of Dr Teoh dated 24 April 2023 (beyond that contained in these reasons), to anyone other than the employees of the respondent who are directly involved in the preparation and conduct of the respondent's case in these proceedings, and the respondent's legal representatives, is prohibited. 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 Amendments 04 September 2023 - Amended respondent representation. 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: 04 September 2023