Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FHH v Port Stephens Council [2024] NSWCATAP 182 Hearing dates: On the papers Date of orders: 23 September 2024 Decision date: 23 September 2024 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member Decision: (1) A hearing of the Appellants' application for an extension of time to lodge submissions in respect of jurisdiction is dispensed with. (2) The Appellants' application for an extension of time is refused. (3) The purported appeal is dismissed as incompetent. (4) The disclosure of the names of the Appellants is prohibited. Catchwords: APPEALS – competency of purported internal appeal from decision of Tribunal's Appeal Panel Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: FHH v Port Stephens Council (No 2) [2023] NSWCATAP 282 Magjarraj v Asteron Life Pty Ltd [2009] NSWSC 1433 Category: Procedural rulings Parties: FHH (First Appellant) FTU (Second Appellant) Port Stephens Council (Respondent) Representation: Appellants (self-represented) Solicitors: Lindsay Taylor Lawyers (Respondent) File Number(s): 2024/00284047 Publication restriction: The disclosure of the names of the Appellants is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Appeal Panel Citation: [2023] NSWCATAP 282 Date of Decision: 23 October 2023 Before: S Westgarth, Deputy President Dr R Dubler SC, Senior Member File Number(s): 2023/00149763 REASONS FOR DECISION Summary 1. The appellants have purported to lodge an internal appeal regulated by s 32 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) against a decision of the Tribunal's Appeal Panel in proceedings in which they were the appellants. 2. Specifically, the orders appealed from were orders made after the disposition of the substantive appeal whereby the Appeal Panel dispensed with a hearing in respect of costs and ordered that the appellants pay the respondent's costs of the appeal. 3. That decision was released to the parties on 23 October 2023: FHH v Port Stephens Council (No 2) [2023] NSWCATAP 282. 4. The purported appeal from that decision was not lodged until 31 July 2024, meaning that it was, on any view, lodged extremely late. There is, however, a far more fundamental difficulty with the appeal in that the Tribunal's Appeal Panel has no jurisdiction to entertain it. 5. After the appeal was lodged, it was brought to a call over in the usual course on 4 September 2024. It is apparent that the issue of jurisdiction was raised by the Principal Member who conducted that call over because directions were made, on that date, that the parties were to exchange submissions in respect of the question of the Tribunal's jurisdiction. The appellants' submissions were to be lodged and served by 11 September 2024. By consent, the Appeal Panel dispensed with a hearing of the determination of the Tribunal's jurisdiction to entertain the appeal. 6. Subsequently, the appellants sought an extension of time to lodge their submissions in respect of jurisdiction. That application was brought, informally, by an email on 11 September 2024 at 6:10pm. That email, lodged by one of the appellants "FTU", indicated relevantly: "enclosed find medical certificate for my wife [FHH]. She has a serious medical condition that is not yet finished treatment, and as such is still a very serious concern. I attended with her today the family doctor's (sic) who has prescribed further treatment and requested extensive tests. However, I wish the tribunal to note her condition is very serious and I have been instructed by a family doctor should her condition deteriorate over the next few days she is to be admitted to a local hospital." 7. In accordance with the Tribunal's usual course, submissions were sought from all parties about whether the application for an extension of time could be dealt with on the papers and the parties were given an opportunity to make further submissions about the application. The appellants reiterated the issues previously raised. The respondent opposed any extension of time. 8. Primarily, the respondent referred to the medical certificate provided being insufficient to demonstrate an inability on the appellants' part to lodge their submissions in time and that, given the appeal is plainly incompetent, no extension of time is warranted. 9. No party opposed the Appeal Panel determining the issue of an extension of time on the papers and dispensing with a hearing. As I am satisfied the issues for determination can be adequately dealt with based on the material lodged, I will dispense with a hearing under s 50 of the NCAT Act. 10. I am not satisfied that an extension of time for the appellants to lodge and serve further submissions in respect of the question of jurisdiction for the Appeal Panel to entertain the appeal is warranted. There are several reasons for this: 1. Firstly, any party who seeks to invoke the jurisdiction of a tribunal or court should first ensure that the tribunal or court in fact has such jurisdiction. That is, it should be the first avenue of enquiry and so the appellants should have considered it from the outset; 2. Secondly, even though one of the appellants may have been unfit for work from 11 September 2024 to 18 September 2024, that provides no explanation as to why the submissions have not been completed by the other appellant; 3. Thirdly, the medical certificate which has been provided suffers from the deficits described by the Court in Magjarraj v Asteron Life Pty Ltd [2009] NSWSC 1433, per Barrett J at [22], in that it simply certifies that one of the appellants has a "medical condition and will be unfit for work". That certificate, to the extent that it seeks to demonstrate an inability to complete written submissions for this Tribunal, is wholly inadequate. As was said by the Court: "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"; 4. Fourthly, there is no explanation as to why the submissions could not have been completed before 11 September, given they were due to be lodged on that date; and 5. Finally, I am not satisfied that there is any available submission the appellants could make to demonstrate the Tribunal's Appeal Panel has jurisdiction to entertain their appeal. 1. I refuse an extension of time. 2. This Tribunal, and its Appeal Panel, has no inherent jurisdiction. It is a creature of statute and its jurisdiction is derived from the NCAT Act and enabling legislation. In respect of internal appeals, that jurisdiction is derived from the NCAT Act itself, as set out in s 32 of the NCAT Act. 3. Pursuant to s 32, the Tribunal does have internal appeal jurisdiction over various decisions made by the Tribunal however, pursuant to s 32(3)(a) of the NCAT Act, that jurisdiction does not extend to "any decision of an Appeal Panel." Plainly, it is such a decision that the appellants purport to challenge. 4. As contained in the notation to s 32, decisions of that nature may be appealed, subject to conditions, to the Supreme Court. 5. As the Tribunal has no jurisdiction to entertain the purported appeal it is incompetent and will be dismissed as such. 6. To maintain the integrity of non-disclosure orders made in the earlier proceedings, I will order that the names of the appellants are not to be disclosed: NCAT Act, s 64(1)(a). Orders 1. A hearing of the Appellants' application for an extension of time to lodge submissions in respect of jurisdiction is dispensed with. 2. The Appellants' application for an extension of time is refused. 3. The purported appeal is dismissed as incompetent. 4. The disclosure of the names of the Appellants 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 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: 23 September 2024