Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FSO v Secretary, Department of Education [2024] NSWCATAP 154 Hearing dates: 1 September 2023 Date of orders: 07 August 2024 Decision date: 07 August 2024 Jurisdiction: Appeal Panel Before: S Higgins, Senior Member A Lo Surdo SC, Senior Member Decision: (1) Time is not extended for the Appellant to file her Notice of Appeal. (2) The appeal is dismissed. (3) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, other than in any complaint made by the appellant to the Anti-Discrimination Board or the Human Rights Commission, the disclosure of the name of the appellant or any of her children is prohibited. Note: a reference to the name of the appellant and her children includes a reference to any information, picture or other material that identifies the appellant or any of her children or is likely to lead to the identification of the appellant or any of her children. (4) If the respondent seeks an order for costs, the following orders are made: (a) The respondent is to file and serve an application for costs together with supporting submissions within 28 days of the date of this decision, and to address whether a hearing on the question of costs should be dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. (b) If the appellant opposes any application for costs made by the respondent, the appellant is to file and serve any submissions in response within 14 days of receipt of the respondent's submissions, and to address whether a hearing on the question of costs should be dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. (c) Any submissions in reply by the respondent are to be filed and served within 10 days of receipt of the appellant's submissions. Catchwords: HUMAN RIGHTS – discrimination – disability - education Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Cominos v Di Rico [2016] NSWCATAP 5 FSO (obo FSN) v Secretary, Department of Education [2023] NSWCATAD 15 Hamod v State of New South Wales & Anor [2011] NSWCA 375 Italiano c Carbone [2005] NSWCA 177 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [43] Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Wootten v Godfrey [2019] NSWCATAP 255 Texts Cited: None cited Category: Principal judgment Parties: FSO (Applicant) Secretary, Department of Education (Respondent) Representation: Counsel: C Ronalds SC (Respondent) D E Thomas (Respondent) Solicitors: FSO (Self Represented) McCabes Lawyers (Respondent) File Number(s): 2023/00176636 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, other than in any complaint made by the appellant to the Anti-Discrimination Board or the Human Rights Commission, the disclosure of the name of the appellant or any of her children is prohibited. Note: a reference to the name of the appellant and her children includes a reference to any information, picture or other material that identifies the appellant or any of her children or is likely to lead to the identification of the appellant or any of her children. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2023] NSWCATAD 102 Date of Decision: 02 May 2023 Before: HJ Dixon SC, Senior Member E Hayes, General Member File Number(s): 2022/00141126 reasonS for decision 1. The appellant, FSO, has appealed against the decision of the Tribunal, made in the Administrative and Equal Opportunity Division of the Tribunal, to dismiss her claim of alleged disability discrimination against the New South Wales Department of Education (the respondent): FSO v Secretary, Department of Education [2023] NSWCATAD 102 (Tribunal decision or decision of the Tribunal). 2. The appellant's claim before the Tribunal below and her appeal are made on behalf of three of her children (P, A and O). 3. The appellant's appeal is an internal appeal brought under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), which provides that that there is a right to appeal on any question of law, or with the leave of the Appeal Panel, on any other grounds. 4. In her Notice of Appeal, the appellant identified her grounds of appeal as follows: 1. The evidence filed by the Applicant was not available to the Tribunal at the initial hearing, resulting in disadvantage to the Appellant. 2. The conduct of the Tribunal Member was dismissive at the initial hearing, prior to having considered the evidence of the applicant, indicating a bias towards the respondent. 3. The conduct of the Tribunal Member was unsupportive of an unrepresented Applicant, resulting in the Applicant being unable to attend the final hearing. 4. The Tribunal failed to take into consideration the decision of the Tribunal in FSO v Secretary Department of Education. 1. In her Notice of Appeal, the appellant also sought leave to appeal on the grounds of a lack of procedural fairness and a failure to apply the law as found in FSO (obo FSN) v Secretary, Department of Education [2023] NSWCATAD 15 (FSN). 2. In his Reply to the appellant's Notice of Appeal, the respondent submitted that: 1. the appellant needed an extension of time within which to lodge her appeal, as it was lodged outside the time prescribed in rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) for lodging an appeal; 2. the appellant's grounds of appeal did not raise any question of law; and 3. the application for leave to appeal is opposed. 1. The appellant was unrepresented in the proceedings below and in this appeal. Her appeal was heard on 1 September 2023. Prior to the hearing, the Tribunal granted the appellant leave to appear by AVL at the hearing. Senior Counsel for the respondent appeared in person. At the conclusion of the hearing, we reserved our decision. 2. We have now considered the material that is before us and, for the reasons set out below, we have decided to dismiss the appellant's appeal because we have decided not to grant the appellant an extension of time to lodge her appeal. We have made this decision primarily on the grounds of our finding that: 1. the appellant's appeal lacks merit because it does not identify any question of law; and 2. the appellant's application for leave to appeal also lacks merit. 1. On 7 February 2024, some four months after we had reserved our decision, the respondent made an application seeking an order for the appeal to be dismissed on the grounds of a settlement agreement entered between the respondent and the appellant's husband. 2. In March 2024, the appellant opposed the matter being dismissed on the grounds that she was not a signatory to the settlement agreement and had at no time agreed to the terms of that agreement. Considering our findings about the appellant's substantive appeal, we find that there is no utility in dealing with the respondent's dismissal application and have considered it no further. Non-disclosure/publication order 1. On 31 July 2023, the Tribunal made a non-publication order under s 64(1)(a) of the NCAT Act prohibiting the publication or broadcasting of the name of the applicant and her children on the condition that the name can be disclosed in any complaints made to the Anti-Discrimination Board or Human Rights Commission. 2. In our opinion, it is appropriate to make a similar non-disclosure order in this appeal in the following terms: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, other than in any complaint made by the appellant to the Anti-Discrimination Board or the Human Rights Commission, the disclosure of the name of the appellant or any of her children is prohibited. Note: a reference to the name of the appellant and her children includes a reference to any information, picture or other material that identifies the appellant or any of her children or is likely to lead to the identification of the appellant or any of her children. The complaint the subject of the applicant's claim 1. In the decision of the Tribunal, at [2] and [3], the Tribunal noted that the appellant lodged her complaint with the Ant-Discrimination Board of New South Wales (the Board) on 6 December 2021. When her complaint could not be resolved between the parties, the President of the Board referred the complaint to the Tribunal under s 93A of the Anti-Discrimination Act 1997 (NSW) (Anti-Discrimination Act). 2. At [4], the Tribunal summarised the applicant's complaint as follows: 4 In summary, the complaint before us alleges that: (a) each of the three children has a disability; (b) the children are students at a Public School in New South Wales and the school employs a Student Learning Support Officer ("SLSO") to provide various direct supports to the children; (c) the SLSO is partly funded from the funds received for the children under a program described as the Integrated Funding Support Program, a program of the Respondent; (d) on 6 August 2021, there was a regional athletics carnival, away from the school, attended by a number of students and teachers, including the SLSO for part of the day; (e) The three children did not attend the carnival but were at school under the supervision of the Principal and other teachers; and (f) the SLSO was employed to provide adjustments to the three children as students at the school so that they can access education on the same basis as their peers and those adjustments were not made available to the students on 6 August 2021. 1. It was not disputed that each of the three children of the applicant had a disability. Nor was it disputed that the Public School employed an SLSO, who had attended the regional athletics carnival on 6 August 2021. Material before the Appeal Panel 1. In support of her appeal, the appellant lodged with the Tribunal: 1. two large bundles of material that the appellant had relied on before the Tribunal that heard her substantive application. This material was divided into three parts. While the appellant did not refer to any document in these bundles in her written submissions or oral arguments at the hearing of her appeal, we note that: 1. Part 1 – contained the bulk of the material in the two bundles. We understand that the material in this Part was annexed to a very short statement of the appellant and her husband dated, 6 July 2022. Annexed to that statement was an annotated copy of the respondent's points of defence to the appellant's claim (21 pages) and a copy of 105 documents (almost 700 pages). The annotations on the respondent's points of defence, we note were made by the appellant: see decision of the Tribunal at [5]. While each page of the attached 105 documents was numbered, the documents were not indexed or tabulated; 2. Part 2 – the material contained in this Part related to a further short statement of the appellant and her husband made on 26 August 2022. Attached to the statement was a response to the respondent's points of defence and a copy of 21 documents that were referred to in the response; and 3. Part 3 – contained in this Part was the response, dated 8 February 2023, from the appellant and her husband to submissions of the respondent, dated 9 December 2022, the appellant's Notice of Appeal and some unidentified material; and 1. the appellant's written submissions, dated 1 September 2023, in reply to the respondent's submissions filed in this appeal. These submissions are brief and primarily deal with the merits of the decision of the Tribunal below. We have nevertheless considered these in determining this appeal. 1. Attached to the appellant's Notice of Appeal was an email that she sent to the Tribunal on 13 December 2022 together with the response she received from the Tribunal Registrar on 29 December 2022. As this correspondence does not appear to have been forwarded to the respondent at the time it was sent, nor was it before the Tribunal below, we have not taken this into account in determining the appellant's appeal and application for leave to appeal. However, in the event there is an application for costs in this appeal, it is open to either party to persuade us that it is relevant to a cost application. 2. In support of his case, the respondent lodged with the Tribunal: 1. a large A4 folder containing a copy of the material the appellant had relied on before the Tribunal; 2. a further large A4 folder containing a copy of the following material: 1. the respondent's written submissions; 2. a transcript of the hearing before the Tribunal on 16 September 2022 and 13 February 2023; 3. the audio recordings before the Tribunal on 16 September 2023 and 13 February 2023; 4. the statement (including attachments) of Ms Burley, dated 12 August 2022. Ms Burley was the Principal of School that the appellant's three sons attended; 5. a 'Table of Exhibits and Objections Below' - the table lists the evidence that was relied on by the parties at the hearing before the Tribunal below, whether the evidence was admitted into evidence or not admitted into evidence and the relevant Transcript page reference to the evidence; and 6. an index to the abovementioned material relied on by the appellant. Is the appellant's Notice of Appeal lodged out of time? If so, should time be extended? 1. Rule 25 of the NCAT Rules relevantly provides as follows: 25 External and internal appeals (1) An external or internal appeal (including, where required, an application for leave to appeal) may be made by lodging a notice of appeal. (2) The notice of appeal must be— (a) in or to the effect of the approved form, and (b) duly completed, and (c) lodged at the Registry, and (d) accompanied by the applicable fee (if any) for the appeal. (3) … (4) Unless the Tribunal grants an extension under section 41 of the Act, an external or internal appeal must be lodged— (a) … … (c) in any other case—within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later). (4A) For the purposes of subrule (4), the day on which reasons are given is the day on which reasons are first given, whether orally or in writing. 1. In this case, the decision of the Tribunal was published on 2 May 2023. In her Notice of Appeal, the appellant said she was notified of the decision on this day. 2. While the appellant's Notice of Appeal is dated '25 May 2023', it was not stamped by the Tribunal as having been lodged until 2 June 2023: NCAT Rules r 25(2)(c). 3. Accordingly, the appellant's appeal was lodged three (3) days outside the twenty-eight (28) days prescribed in rule 25(4)(c) of the NCAT Rules. 4. Section 41 of the NCAT Act gives the Tribunal a discretion to extend time. That section is in the following terms: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired. 1. In this case the appellant has not made an application for time to be extended for the lodging of her Notice of Appeal. In her written submissions of 1 September 2023, the appellant said her appeal was not lodged out of time. 2. In his written submissions of 18 August 2023, the respondent consented to time being extended for the appellant to lodge her Notice of Appeal. 3. Nevertheless, the question remains whether the discretion in s 41 should be exercised to extend time within which the appellant should lodge her Notice of Appeal. 4. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, at [21], the Appeal Panel held (bold added): 21 Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson quoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice. 1. At [22] the Appeal Panel set out the considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time to lodge a Notice of Appeal as follows (citations omitted): (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant …; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision … and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success …; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal) …; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable. 1. In this case, the delay in the appellant lodging her appeal is very short. However, the appellant has failed to provide any explanation for the delay. Instead, she has persisted in saying that she did lodge her appeal within the prescribed time. 2. We find that the respondent does not suffer any prejudice if time is extended for the appellant to lodge her Notice of Appeal. We make this finding based on the respondent having consented to time being extended. 3. This leaves, the prospects of the appellant's appeal succeeding. For the reasons set out below, we find that the appellant's appeal and application for leave to appeal cannot succeed and lack merit. Based on this finding, we have decided that time should not be extended for the appellant is to lodge her Notice of Appeal. Scope and nature of an internal appeal 1. As noted above, an appeal to the Appeal Panel lies as a matter of right on a question of law, or with the leave of the Appeal Panel on any other matter. 2. An appeal does not simply provide a losing party with the opportunity to run their case again unless that party: (a) identifies a question of law arising from the Tribunal decision the subject of appeal, or (b) the Appeal Panel gives the party leave to appeal on grounds which are not questions of law: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. Questions of law 1. Where an appellant is not legally represented, and the notice of appeal does not articulate in express terms any question of law, it is accepted that the Appeal Panel is to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to a respondent: see Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 (Prendergast) at [12] and Cominos v Di Rico [2016] NSWCATAP 5 at [13]. 2. In Prendergast, at [13], the Appeal Panel identified possible questions of law as follows: 13 Without expressing exhaustively possible questions of law, they include in no particular order: (1) Whether there has been a failure to provide proper reasons: . Section 62 of the Act requires the Tribunal to furnish reasons. … (2) Whether the Tribunal identified the wrong issue or asked the wrong question .... (3) Whether a wrong principle of law had been applied: Chapman v Taylor [2004] NSWCA 456 at [33], per Hodgson JA (Beazley and Tobias JJA agreeing). (4) Whether there was a failure to afford procedural fairness: … Section 38 of the Act prescribes the procedure of the Tribunal generally. Relevantly, s 38(2) expressly requires the Tribunal's procedures to accord with natural justice. Sub-sections 5 and 6 also embody aspects of procedural fairness. … (5) Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations … (6) Whether the Tribunal took into account an irrelevant consideration … (7) Whether there was no evidence to support a finding of fact … (8) Whether the decision is so unreasonable that no reasonable decision-maker would make it … 1. For the reasons set out below, we are not satisfied that the appellant's grounds of appeal raise a question of law. Leave to appeal on any other ground 1. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), at [84], the Appeal Panel summarised the general principles applicable to the grant of leave to appeal as follows (citations omitted) (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing. 1. For the reasons set out below, we are not satisfied that the appellant's grounds on which she seeks leave to appeal have been established. Decision of the Tribunal 1. We note that the Tribunal (Senior Member Dixon SC and General Member E Hayes) heard the appellant's claim over two days, on 16 September 2022 and 13 February 2023. The appellant appeared by AVL on the first day of hearing. 2. After having set out the appellant's claim, the Tribunal set out the material that was before the Tribunal. In summary the Tribunal noted the following: 1. at [5], that the applicant (appellant) did not file points of claim but set out the complaint in detail in a range of documents; 2. at [5] and [7], that the appellant filed 'voluminous supporting material' on 8 July 2022 and 26 August 2022 and a further reply document on 8 February. A substantial part of the material relied on by the appellant was admitted into evidence over the objection of the respondent on the basis that the respondent was entitled to make any submissions as to relevance and as to weight to be attached to these materials; 3. at [9] and [12], that the respondent relied on points of defence together with a witness statement from the Principal of the School and detailed closing submissions filed on 9 December 2022; 4. at [10], that in her written submissions of 8 February 2023, the appellant stated that due to the impact on her (and to her husband's) health they would not be able to attend the hearing on 13 February 2023 set down for finalising the evidence being tendered and hearing closing submissions. At [11], that prior to the 13 February 2023 hearing: … [the Registrar] contacted Applicant by phone to clarify her position about not attending the hearing. The applicant informed the Registrar that she was content for the proceedings to proceed in her absence. As a result, we proceeded to hear the Respondent but had regard to the written materials filed by the Applicant and earlier oral submissions made by her during the hearing in September 2022. 1. At [13], that the conduct complained of in the report from the Board is confined to 6 August 2021 and that the appellant had said: … [the children] were affected by the absence of the SLSO on that day as they were not able to receive the agreed adjustments in their "personal learning support plans" ("PLSPs") which are benefits that are necessary for their learning. … 1. In its decision, at [14] to [17] the Tribunal dealt with the relevant legislative provisions, including at [16] the relevant provisions of the Anti-Discrimination Act: Section 49B (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the grounds of disability if the perpetrator- … (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. Section 49B(3A) For the purposes of, but without limiting this section, the fact that a person who has a disability— (a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or (b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretative, reading or other services to the person because of the disability, or because of any matter related to that fact, is taken to be a characteristic that appertains generally to persons who have disability. Section 49L (1) It is unlawful for an educational authority to discriminate against a student on the ground of disability— (a) by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or … (c) by subjecting him or her to any other detriment. 1. At [20] to [24], the Tribunal dealt with the application of the abovementioned legislative provisions. At [20] the Tribunal noted that the onus was on the appellant to prove that the conduct of the respondent the subject of her complaint was unlawful under s 49L(2) of the Anti-Discrimination Act. 2. At [21], the Tribunal noted that for the appellant to succeed in her claim she needed to establish that: … [on Friday, 6 August 2021] the students were as a matter of fact denied access to benefits, or that the Respondent limited their access to benefits, or that the students were subjected to "any other detriment" in respect of their respective adjustments. 1. At [23], the Tribunal made the following observation about the application of s 49B(1)(b) of the Ant-Discrimination Act (citations omitted): In respect of s 49B(1)(b) of the Act, the phrase "to comply with a requirement or condition" imports the notion of compulsion or obligation …. In addition, the requirement or condition must be explicitly imposed, or implicit in the conduct which is said to be discriminatory …). 1. At [25] to [48] the Tribunal set out the alleged discrimination, namely the appellant's case. That is, the benefits of each child that were alleged to have been denied, on 6 August 2021, and the material disadvantage or detriment suffered by each child on that day. 2. The Tribunal went on to deal with the evidence of the respondent. At [49], the Tribunal noted that the evidence of the respondent was contained in a statement of the principal of the School (Principal), that was admitted into evidence without objection and the appellant not requiring the Principal for cross-examination or questioning. 3. At [50] to [86], the Tribunal set out the evidence of the Principal regarding the School in 2021, the PLSP (personal learning support plans), SLSO Role and Funding, SLSO Timetable, Carnival and Teaching on 6 August 2021. 4. At [87] to [96], the Tribunal set out its findings regarding the issue of the alleged denial of a benefit and the alleged detriment. In this regard the Tribunal accepted the evidence of the Principal, that neither child was denied a benefit in any material way on 6 August 2021, or that they were subjected to any form of detriment that day: at [89] and [94]. 5. At [97] to [109], the Tribunal set out its findings regarding the issue of a requirement or condition. At [97], the Tribunal found: 97 An examination of the PLSPs for the students, the terminology, adjustments and goals lead us to conclude and find that they do not constitute requirements or conditions, importing the notion of compulsion or obligation on the students to meet or, if they failed to meet those goals, there would be any consequences taken against them. For example, a goal of achieving an outcome at the end of a particular term is in our view, something to strive for or reach as a positive outcome, if possible, with the plans identifying the assistance to be provided to the student by, primarily, the class teacher and also with the assistance, where appropriate, of the SLSO. 1. The findings and conclusions of the Tribunal are at [110] to [115]. In summary these are: 1. the appellant had failed to establish that the respondent discriminated against each student (each child of the appellant) on the grounds of disability, contrary to s 49B(1)(b) of the Anti-Discrimination Act; 2. section 49B(3A) of the Anti-Discrimination Act was of no application in that case, as the assistance of an SLSO is not a characteristic that appertains generally to persons who have a disability as identified in respect of each student (each child of the appellant); 3. by reason of the Tribunal's conclusions, the evidence did not establish that the students (children of the appellant) were denied access to a benefit in any material way, and on that basis the Tribunal was satisfied that the respondent did not discriminate against the students (children of the appellant) on the grounds of disability, contrary to s 49L(2)(a) of the Anti-Discrimination Act; 4. by reason of the Tribunal's conclusions, the students were not subjected to a detriment in a material way, and on that basis the Tribunal was satisfied that the respondent did not discriminate against the students (children of the appellant) on the grounds of disability, contrary to s 49L(2)(c) of the Anti-Discrimination Act; 5. in circumstances where the applicant (appellant) expressly said she did not know what occurred in the classroom and school on the day in question, she could not point to any detriment in fact suffered by the children, together with the absence of any evidence that the plans were not adequately implemented on the day in question, the Tribunal found that all claims lacked merit; and 6. if contrary to the Tribunal's findings, it were to be considered that the conduct complained of is unlawful in contravention of s 49L(2) of the Anti-Discrimination Act, the Tribunal would not grant any relief as the denial of any benefits or detriment would not be material but minimal and would not justify the granting of relief. Grounds of Appeal 1. We are not satisfied that any of the grounds of appeal relied upon by the appellant raise a question of law. However, for completeness we have nevertheless addressed them and find that they lack any merit. Ground 1 – evidence not available to the Tribunal at the initial hearing 1. There is no dispute that, at the commencement of the hearing on 16 September 2022, the Tribunal did not have before it the bundle of documents the appellant said she had posted to the Tribunal on 22 June 2022: see T 3 and 4. We understand this bundle of documents to be those contained in Part 1 of the material provided by the appellant in these proceedings. They are also the 105 attachments (documents) that were referred to in the six-dot point statement of the appellant and her husband dated 6 July 2022. A copy of that material had however, been provided to the respondent well before the 16 September 2022. 2. After ascertaining from the appellant, the nature of the documents in the missing bundle, Senior Member Dixon, at T 9.25-30, said: The Tribunal is facing a dilemma. We don't want to proceed to a hearing where you haven't had the opportunity of putting all the relevant material before us - I emphasise "relevant" to the issues. I can't make that assessment at the moment. So we're either going to have to find a means of ensuring that you're not deprived of the opportunity of pointing to any relevant material, and if we can't do that in an efficient way, we'll have to return to another date. 1. Following some discussion about the remedies sought by the appellant, Senior Member Dixon asked the appellant how long it would take her to email her bundle of documents to the Tribunal: see T 11.10. The appellant said it would take her about half an hour. After some discussion about not sending the documents in a single email and counsel for the respondent acknowledging that he had a copy of the documents, the Tribunal adjourned the hearing until 11.30 am. 2. When the Tribunal resumed its hearing at 11.30 that morning, the Tribunal Members had been provided with a copy of the appellant's emails (16 in total) that attached the 105 annexed documents: T 12.37-41. At T 13.6-16, Senior Member Dixon said, and the appellant responded as follows: SENIOR MEMBER DIXON: Currently the position is that it would take a considerable period to print off that material and the Tribunal is anxious to try and use the time that we have available and the position as to the result of that is that the registry is emailing to us the emails with the attachments and if there is any particular document within that group that you wish to take our attention to, we will open it up electronically and if we have any difficulty, will tell you. So will try and deal with it electronically, and if it doesn't work, we will tell you and will try and find another solution. But otherwise this case is going to be adjourned until next year, at the earliest opportunity. Is that an acceptable course to you [FSO] ? APPLICANT: Yes, so would rather go through today, if we can, please. 1. The matter then proceeded in the usual way, with the appellant being given the opportunity to explain the various aspects of her case and identifying the document(s) relevant to those aspects. The Tribunal also dealt with the respondent's objections to the appellant's documents. The appellant was given an opportunity to respond to those objections and the matter proceeded with the Tribunal attributing an exhibit number to the documents that were allowed into evidence. On some occasions, the Tribunal allowed a document into evidence subject to relevance and weight (see ground 4 below). 2. The respondent's 'Table of Exhibits and Objections Below' provides a convenient list of the documents, or categories of documents, that each party sought to tender into evidence on 16 September 2022 and 13 February 2023. Against each document, or category of documents, there is: 1. A notation as to whether the document was, or category of documents were, accepted into evidence, or rejected on the rounds of no relevance to the matters in issue; and 2. the relevant transcript page reference where the document, or category of documents were admitted or not admitted into evidence. 1. The appellant did not object to the abovementioned Table of the respondent being before the Appeal Panel. Nor did she assert that it was incorrect in any respect. 2. The appellant's 105 documents were only dealt with in part on the first day of hearing. At the conclusion of the hearing that day, the Tribunal adjourned the hearing to 13 February 2023. The Tribunal also noted that the remaining material of the appellant would be dealt with at the adjourned hearing and orders were made for the respondent to file and serve any written objections to the appellant's remaining material by 9 December 2022. The appellant was also ordered to provide any written submissions in response. 3. Given the appellant's acceptance to the matter proceeding based on the material she had emailed that day, it is difficult to see how she, or her claim, was disadvantaged in any way by the Tribunal Members not having her material prior to the hearing. We note that prior to the hearing on 16 September 2023, the Tribunal did have before it the report of the delegate of the Board that contained a copy of the appellant's complaint, the appellant's short statement and her annotated copy of the respondent's points of defence. These documents, as noted by the Tribunal at [5], were the documents that set out the terms of the appellant's claim. The Tribunal also had before it the evidence of the Principal which included copies of documents that the appellant acknowledged were copies of documents that she had included in her bundle of 105 documents. 4. It is also evident from the transcript that once the appellant had emailed her documents, the hearing of the appellant's claim proceeded in the usual way by dealing with the respondent's objections to some of the appellant's documents. And at no time during the hearing that day did the appellant say or infer that she felt disadvantaged. On the contrary, notwithstanding the sometimes poor AVL connection, the appellant appeared to participate fully during the hearing and at no time said or indicated that she felt disadvantaged. 5. Accordingly, we find that, on the material before the Appeal Panel, this ground of appeal could not succeed as it lacks any merit. Ground 2 - the conduct of the Tribunal Member was dismissive at the initial hearing - indicating a bias towards the respondent 1. Neither in her Notice of Appeal, nor in her 1 September 2023 written submissions, did the appellant provide any examples to support her assertion that the Tribunal Member was dismissive of her, or indicating a bias towards the respondent. 2. However, during the hearing of the appeal, we asked the appellant to point to those parts of the transcript where she asserts the Tribunal Member was dismissive of her. The parts to which she referred were as follows: 1. T 22. 2-7: SENIOR MEMBER DIXON: I'm not suggesting you've done that, but what I'm suggesting to you is that relying on 105 documents in relation to a fairly narrow issue that arises here, is unless you take us to a particular document in that group as you go along and identify the relevance, it would be a preferable course for us to decide "Document attached to email such-and-such should go into evidence for the following reasons". Now that may take a long time … 1. T 60.2 and 29-30: SENIOR MEMBER DIXON: That's a different consideration, [FSO], as to whether the tribunal is required to go and study lengthy documents with apparent little benefit.… … SENIOR MEMBER DIXON: I'm trying to make sure that we get ahead, and only need to deal with documents that are weighty and, you know, advancing things. 1. In our view, having regard to the context in which Senior Member Dixon made these comments, they were neither dismissive of the appellant nor indicative of an apprehended or actual bias by Senior Member Dixon towards the respondent; see Wootten v Godfrey [2019] NSWCATAP 255 (Wootten), at [25] – [30] which sets out the principles of actual and apprehended bias. 2. The onus of demonstrating actual bias lies with the appellant. It must be distinctly made and clearly proven. In this case, the appellant has not made a specific allegation of actual bias. 3. The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge (Tribunal Member) might not bring an impartial mind to the resolution of the question to be decided. It is an objective test and directed not at the correctness of the outcome, but to the apparent fairness of the process. Again, the appellant has not made a specific allegation of apprehended bias. 4. The comments made by Senior Member Dixon at T 22 were made in the context of dealing first and foremost with the material relied on by the appellant in support of her claim. That material, given the limited conduct of the respondent the subject of the appellant's claim/complaint was considerable. Nevertheless, in our opinion it was appropriately dealt with by the Tribunal. 5. The Tribunal had commenced dealing with the appellant's material by marking the appellant's statement of 6 July 2022 as A1 (see at T 17.31) and left until later, the 105 documents attached to that statement. The Tribunal then went on to consider the appellant's statement of 26 August 2022 and its attachments. Having dealt with the respondent's objections to that material, the Tribunal returned to the appellant's 105 annexures to her earlier statement. It was in that context that the Tribunal made an initial remark about the appellant needing to identify the relevance of the documents to her claim. A tribunal will often seek the assistance of a party to better understand the case advanced by that party and the evidence upon which that party relies, as the Tribunal did on this occasion. 6. It was the appellant's claim/complaint that was before the Tribunal for determination under s 108(1) of the Anti-Discrimination Act (dismiss the complaint in whole or part or find the complaint substantiated in whole or part). Hence, it was for the appellant, and not the Tribunal, to identify those documents contained within her 105 bundle of documents that she contended to be relevant to the matters in issue relating to her claim/complaint: see Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [43]. 7. For example, at T 23.20-22, the respondent having objected to the relevance of the appellant's documents relating to the children's disability on the grounds that this was admitted and the appellant pressing the admissibility of her documents that went to the issue of disability, Senior Member Dixon said: 'in fairness to the department and to enable the Tribunal to explain your case, you're going to have to justify the relevance of each of those documents and what part of the document you require us to look at; ...'. 8. In our view, the comment made by Senior Member Dixon at T 60.29-30 is yet another example of the appellant needing to identify the relevance of the documents on which she sought to rely. 9. We are not critical of the appellant, nor was the Tribunal below. However, for the reasons set out above, we are not persuaded that the appellant has established that the Tribunal was dismissive of her and had a bias towards the respondent or a bias against her. On the contrary, we find that the Tribunal conducted the hearing in a way that ensured that it had before it all relevant material to determine the relevant facts in issue in the proceedings and to this extent afforded the appellant a reasonable opportunity to be heard: NCAT Act s 38. 10. As noted above, in its decision, at [7] the Tribunal noted that a substantial part of the material relied on by the appellants was admitted into evidence. 11. Accordingly, we find that this ground of appeal has not been established and lacks any merit. Ground 3 – The Tribunal Member was unsupportive of an unrepresented applicant, resulting in the applicant being unable to attend the final hearing 1. Again, in her Notice of Appeal, or her submissions of 1 September 2023, the appellant did not provide any examples of the assertion that the Tribunal Member was unsupportive of her. 2. However, in her oral evidence at the hearing the appellant gave the following as examples in the Transcript of the hearing of the Tribunal being unsupportive: T 21.37-39, T 23.21-22, T 29.22-25, T 36.4 and 15, T 37.13-14, T 40.6,11 and 31, T 56.2 and T 59.5 1. Contrary to the contentions of the appellant, in our opinion, these examples do not support the appellant's assertion that Senior Member Dixon was unsupportive of her as an unrepresented applicant. Again, in our view, these are each examples of Senior Member Dixon seeking clarification from the appellant as to which document or part of a document in the annexed 105 documents was relevant to the matters in issues in her claim. 2. In Hamod v State of New South Wales & Anor [2011] NSWCA 375 at [316] Beazley JA made the following remarks about the assistance judge should provide to an unrepresented litigant: 315 There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality: "A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6." 316 The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. 1. In Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [43], McCallum JA said the following: "[T]here may be cases in which it is appropriate for the Court to give the correct legal construction to an arguable point poorly articulated by a self-represented litigant. However, the Court is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point. 1. In our view, these remarks equally apply to proceedings before the Tribunal, including this appeal before us. 2. Other than the assertion of the Tribunal being unsupportive of her, the appellant has not pointed to any conduct of the Tribunal or procedure before the Tribunal, which she contends fell short of the conduct required of a tribunal towards an unrepresented litigant. 3. Based on our findings above, the appellant's assertion that she was unable to attend the 13 February 2023 adjourned hearing due to the alleged lack of support by the Tribunal to her as an unrepresented applicant must also fail. 4. Accordingly, we find that the appellant has not established this ground of appeal. We also find that this ground of appeal lacks any merit. Ground 4 – The Tribunal failed to take into consideration the decision of the Tribunal in FSO v Secretary of the Department of Education 1. In support of her application for leave to appeal, the appellant provided the following explanation as to why the Tribunal should have taken into consideration the decision of the Tribunal in FSO v Secretary, Department of Education: 2. The evidence FSO v Secretary Department of Education was dismissed as not relevant. This is incorrect and represents a substantial miscarriage of justice. Both cases refer to agreed adjustments/ benefits not being provided to a student with a disability due to a change in operational requirements. In both cases agreed supports were not provided to a student with a disability because they were deliberately taken away and provided to other students without a disability, instead of additional resources being provided to cover operational requirements. In both cases the operational requirements were known prior to need, by a significant time frame, meaning it was a planned decision to deny children with a disability agreed benefits. The Tribunal did not explain the decision as to why these two cases were different. 1. The decision to which the appellant refers is the decision of the Tribunal, made on 17 January 2023, concerning another discrimination complaint the appellant made on behalf of her son FSN that was referred to the Tribunal by the Board under s 93A of the Anti-Discrimination Act: see FSO (obo FSN) v the Secretary, Department of Education [2023] NSWCATAD 15 (FSO (obo FSN)). The Tribunal file number for this complaint is 2020/00223756 (matter number 2020/00223756). 2. At the time of the 16 September 2022 hearing of the appellant's complaint the subject of this appeal, no decision had been made in matter number 2020/002223756. Yet in the written submissions of the appellant and her husband, dated 26 August 2022, they sought to rely on paragraph 5(a) of the respondent's points of defence in matter number 2020/002223756: see submissions of 26 August 2022, at para (a) under the heading 'response to the statement of the [School Principal]'. 3. As noted above, early during the hearing on 16 September 2022, the Tribunal dealt with the appellant's 26 August 2022 statement, submission and the attachments thereto: see T 15.18 – 21.34. The respondent objected to the admission into evidence of the points of defence in matter number 2020/00223756. However, after hearing from the appellant, Senior Member Dixon admitted into evidence paragraph 5(a) of the respondent's points of defence in matter number 2020/00223756, whilst reserving to the parties the right to argue the relevance and weight and terminology of that paragraph: see T 21.21-34. 4. A copy of the respondent's points of defence in matter number 2020/002223756 has not been placed before us in this appeal. However, we note from the annotations to the appellant's submissions of 26 August 2022, that the respondent's points of defence in matter number 2020/002223756, appear to relate to the statement of the Principal to the extent she said that 'the strategies are developed to assist the classroom teacher'. It was the appellant's contention that this was inconsistent with the respondent's acceptance, in matter number 2020/002223756, where the respondent had accepted that the strategies in a personal learning support plan was an agreed adjustment/benefit. 5. On 13 February 2023, at the adjourned hearing before the Tribunal below, the decision of the Tribunal in FSO (obo FSN) had been decided but it had not been published on the NSW Caselaw website: see T 6.178-211. 6. Nor was the decision in FSO (obo FSN) before the Tribunal at the adjourned hearing. However, the Tribunal did have before it the submissions of the appellant and her husband dated 8 February 2023: T 5.69-70. In those submissions the appellant and her husband referred to the findings of the Tribunal in FSO (obo FSN). 7. At the conclusion of the hearing, Senior Member Dixon said: … [We will] reserve our decision, and will aim to provide a judgement in the not too distant future. If, having had the benefit of the decision in 22353756, there are issues that are of concern, we'll obviously notify the parties. And we may require some further assistance. But I don't currently anticipate that as necessary. But we will let you know. 1. In its decision, at [107], under the heading 'Requirement or Condition', the Tribunal expressly said that in coming to their views and finding under that heading it had regard to the reply submissions of the appellant of 8 February 2023 concerning: … [the concept] of "detriment" where it is asserted that there was an adverse impact on the student's learning outcomes, that there was increased anxiety due to the change in routine and that there was an increased risk to health and well-being due to the agreed adjustments to management behaviour and risk being removed. 1. Accordingly, it cannot be said that the Tribunal made a finding that the decision in FSO (obo FSN) was not relevant. Instead, the Tribunal did consider the appellant's submissions to the extent they referred to those proceedings. 2. At no time was the Tribunal below bound by the decision of the Tribunal in FSO (obo FSN). That was a decision based on the specific terms of the complaint the subject of that application and the material that was before the Tribunal in that matter. 3. As noted by the respondent, it successfully appealed the decision of the Tribunal in FSO (obo FSN). That appeal was determined on 16 June 2023: see Secretary, Department of Education v FSO (obo FSN) [2023] NSWCATAP 160: FSO (obo FSN) Appeal. In that decision, the Appeal Panel made orders setting aside the decision of the Tribunal in FSO (obo FSN) and remitted the complaint the subject of that appeal to the Tribunal for re-hearing. We note that a ground on which the appeal was allowed in FSO (obo FSN), was the Appeal Panel's finding that the Tribunal had failed to set out its reasoning process which led it to conclude that the PLSP in that case, was a 'binding agreement', other than the fact that the contents were agreed on at a meeting: FSO (obo FSN) Appeal at [81] to [85]. At [82] the Appeal Panel said: We do not consider that the language used in the document suggests a binding enforceable agreement. It refers to goals and strategies to achieve those goals. Further, it was not suggested that there was any oral agreement to that effect. 1. At [83] and [84], the Appeal Panel cited with approval the approach taken by the Tribunal below, at [23] and [97], in considering a PLSP document: these paragraphs of the Tribunal below are set out above at [43] and [48] above. 2. For the reasons set out above, and in the absence of the appellant otherwise identifying a finding of the Tribunal in its decision that was not open to it, we find that the appellant has failed to establish this ground of appeal. We also find that this ground of appeal lacks any merit. Leave to appeal 1. The grounds on which the appellant seeks leave to appeal are: 1. a lack of procedural fairness afforded to her; and 2. a failure to apply the law as found in FSO (obo FSN). 1. Procedural fairness concerns the fairness of the proceedings and not the decision itself. 2. As noted above, at [34], a denial of procedural fairness is a question of law. 3. We understand that the appellant alleges a denial of procedural fairness on the grounds that her 105 documents were not before the Tribunal prior to the hearing and that Senior Member Dixon was: 1. dismissive of her during the hearing on 16 September 2022; 2. biased towards the respondent (that is a bias against her) during the hearing on 16 September 2022; and 3. unsupportive of her, an unrepresented applicant, on 16 September 2022 which led her not to attend the hearing on 13 February 2023. 1. Section 38 of the NCAT Act makes provision for the procedure of the Tribunal generally and relevantly provides as follows: 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) Despite subsection (2)— (a) the Tribunal must observe the rules of evidence in— … (4) The Tribunal is to act with 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. (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. 1. For the reasons set out above, we find that the appellant has failed to establish: 1. that she was disadvantaged by her 105 documents not being before the Tribunal prior to the commencement of the hearing; or 2. that Senior Member Dixon was biased towards the respondent or biased against her. 1. We have also found that the appellant has failed to establish that the Tribunal was either dismissive of her, or unsupportive of her during the hearing on 13 September 2022. Instead, for the reasons set out above, we are satisfied that the proceedings on 16 September 2022, was conducted by the Tribunal in accordance with s 38(5) of the NCAT Act. This is perhaps best demonstrated at T 25 – 29, after the appellant said she did not wish to cross examine the Principal and Senior Member Dixon went on to explain to the appellant that she had a right to cross-examine the Principal on the various aspects of the Principal's statement that she disagreed with. 2. The fact that the appellant chose not to cross-examine the Principal and chose not to attend the adjourned hearing on 13 February 2023, is not, in our view, a denial of procedural fairness. Nor has the appellant alleged this to be the case. 3. However, for completeness we note that, at no time did the appellant seek an adjournment of the hearing on 13 February 2023. 4. In Allesch v Maunz (2000) 2003 CLR 172 at [39] Kirby J held: Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. 1. This decision was followed by the Appeal Panel in Russo v Brack [2016] NSWCATAP 261 at [44], where the Appeal Panel found that the fact that the appellant had left the hearing room, during the hearing of his application in the Tribunal below did not constitute a denial of procedural fairness, because he was given an opportunity to present his case and it was not a case where the opportunity offered was not able to be availed. 2. In this case, the appellant had every opportunity to present her case, and she did so on 8 February 2023, by providing her submissions in reply to those provided by the respondent on 9 December 2022. As noted above, these submissions were before the Tribunal below and the Tribunal expressly said in its decision that it had considered these in making its decision. It was in those submissions that the appellant said she would not be attending the hearing on 13 February 2023. She subsequently confirmed this when contacted by the Tribunal Registry prior to the hearing. The reason given for her non-attendance was her mental health. However, at no time did the appellant provide any evidence in support of her mental health. Nor did she make an adjournment application. 3. Accordingly, we find, on the material before us, that the appellant chose not to attend the hearing on 13 February 2023 and her non-attendance was not a denial of procedural fairness. 4. We have dealt with the decision of the Tribunal in FSO (obo FSN) above and the decision of the Appeal Panel concerning the respondent's appeal of that decision, and we reiterate our findings that the Tribunal did consider the appellant's submissions in so far as they related to that decision and the Tribunal was not at any time bound by that decision. In the respondent's successful appeal from that decision the Appeal Panel found that the Tribunal erred in that decision and set it aside. Hence, we have not considered this issue any further. 5. The appellant has also asserted that the Tribunal below should have regard to a decision of the Federal Court and other decisions of the Tribunal. In the absence of the appellant having identified the relevance of these decisions to the matters in issue in this appeal, we have not considered these any further. 6. Accordingly, we find that the appellant has failed to establish the grounds on which she seeks leave to appeal. We make this finding because, the appellant has failed to establish that she was denied procedural fairness or that the Tribunal's decision in FSO (obo FSN) had any application to her application before the Tribunal. Conclusions 1. For the reasons set out above, we find that the appellant's grounds of appeal and application for leave to appeal lacks merit. Hence, based on this finding, we find that time should not be extended for the appellant to lodge her Notice of Appeal. Orders 1. We make the following orders based on our findings: 1. Time is not extended for the Appellant to file her Notice of Appeal. 2. The appeal is dismissed 3. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, other than in any complaint made by the appellant to the Anti-Discrimination Board or the Human Rights Commission, the disclosure of the name of the appellant or any of her children is prohibited. Note: a reference to the name of the appellant and her children includes a reference to any information, picture or other material that identifies the appellant or any of her children or is likely to lead to the identification of the appellant or any of her children. 1. If the respondent seeks an order for costs, the following orders are made: 1. The respondent is to file and serve an application for costs together with supporting submissions within 28 days of the date of this decision, and to address whether a hearing on the question of costs should be dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. 2. If the appellant opposes any application for costs made by the respondent, the appellant is to file and serve any submissions in response within 14 days of receipt of the respondent's submissions, and to address whether a hearing on the question of costs should be dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. 3. Any submissions in reply by the respondent are to be filed and served within 10 days of receipt of the appellant's submissions. ********** 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 14 August 2024 - Coversheet - Additional Counsel for Respondent added 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: 14 August 2024