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New South Wales Civil and Administrative Tribunal - Appeal Panel |
Last Updated: 14 May 2021
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Civil and Administrative Tribunal New South Wales
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Case Name:
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The Owners – Strata Plan No 4159 v Wolff
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Medium Neutral Citation:
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Hearing Date(s):
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20 April 2021
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Date of Orders:
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14 May 2021
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Decision Date:
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14 May 2021
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Jurisdiction:
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Appeal Panel
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Before:
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M Harrowell, Deputy President
A Bell SC, Senior Member |
Decision:
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(1) Leave to appeal is granted.
(2) The appeal is dismissed. |
Catchwords:
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ADMINISTRATIVE LAW – Bias – apprehended bias – interest
or association bias – Member of Tribunal providing
lay and expert evidence
in support of a claim brought by his domestic partner in proceedings in the
Tribunal – application
to transfer proceedings to a court pursuant to Sch
4 cl 6 of the Civil and Administrative Tribunal Act 2013 – appeal against
refusal – whether all Members of the Tribunal affected by apprehended bias
so as to necessitate the
transfer of the proceedings to a court –
challenge to exercise of discretion – principles applicable in claim for
apprehended
bias
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Cases Cited:
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Attorney General for New South Wales v Gatsby [2018] NSWCA 254
Chamoun v District Court of NSW [2018] NSWCA 187 Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530 Hot Holdings Pty Ltd v Creasy [2002] HCA 51; 210 CLR 438 Johnson v Johnson [2000] HCA 48; 201 CLR 488 Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 Lunn v The Commissioner for Public Employment [2009] NSWSC 19 McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSW LR 504 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 McLean v Nicholson [2002] VSC 446 ; (2002] [ 2002] VSC 446 ; 172 FLR 90 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 O’Connor v Nationwide News Pty Ltd (1995) 128 FLR 61 Rouvinetis v Knoll [2013] NSWCA 24 Rouvinetis v Knoll [2009] NSWSC 1212 Tarrant v R [2018] NSWCCA 21 Trustees of Christian Bros v Cardone [1995] FCA 1309; (1995) 57 FCR 327 Vakauta v Kelly (1988) 13 NSWLR 502 at 527 Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 Webb v The Queen [1994] HCA 30; (1993) 181 CLR 41 |
Texts Cited:
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Nil
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Category:
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Principal judgment
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Parties:
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The Owners – Strata Plan No 4159 (Appellant)
Dianne Wolff (Respondent) |
Representation:
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Counsel:
N Li (Appellant) Solicitors: Kerin Benson Lawyers (Appellant) JS Mueller and Co Lawyers (Respondent) |
File Number(s):
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2021/00065930
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Publication Restriction:
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Nil
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Decision under appeal:
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Court or Tribunal:
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Civil and Administrative Tribunal of New South Wales
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Jurisdiction:
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Consumer and Commercial Division
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Citation:
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N/A
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Date of Decision:
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10 February 2021
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Before:
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G Blake SC, Senior Member
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File Number(s):
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SC 20/21046
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REASONS FOR DECISION
Introduction
Notice of Appeal and history of appeal proceedings
1. The Tribunal erred in acting upon an incorrect principle by applying a narrower test of apprehended bias characterised as “pre-judgment bias”.
Particulars
The alleged apprehended bias does not arise from an apprehension of pre-judgment for which the test is whether the relevant Tribunal member would bring a mind open to persuasion.
The alleged apprehended bias arises from an apprehension that the tribunal would not be impartial if it were asked to make adverse findings against a Member of the Tribunal.
2. The Tribunal erred by failing to consider paragraphs 22 to 24 of the [appellant’s] submissions dated 30 November 2020.
Particulars
The showing of apprehended bias is not a necessary condition to the transfer of proceedings being in the interests of justice.
The possibility that a hearing could be affected by apparent bias is a strong discretionary consideration in favour of transfer.
(1) The appellant challenges the conclusion of the Tribunal in its reasons at [48] and said that the “open to persuasion” test applied by the Tribunal was “inapposite because it is directed towards an apprehension of bias by reason of prejudgment. Reference was made to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 and [71]-[72] as to the nature of the pre-judgment bias test.
(2) The appellant said it did not allege the Tribunal was likely to give undue weight to Mr Topolinsky’s evidence. Rather, the appellant said that “even if the Tribunal were open to persuasion with respect to the matters upon which Mr Topolinsky gives evidence, it would nonetheless tread more lightly in its criticisms of Mr Topolinsky’s evidence than what otherwise might be the case”. Reference was made to the appellant’s submissions at first instance dated 30 November 2020 at [17]-[20].
(3) The “open to persuasion” test masks a legitimate concern arising from the decision of the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337. That is, the appellant submitted
Justice having to both be done and be seen to be done; would a fair minded lay observer have reservations that Mr Topolinsky’s membership of this Tribunal might prevent the Tribunal from unrestrained criticism of him were it otherwise warranted?
(4) Consequently, the Tribunal was in error in substituting the narrower “open to persuasion” test for the more general test found in Ebner.
52 In view of the fact that the transfer application is premised on a finding that a hearing of the proceedings in the Tribunal would be affected by apparent bias on account of the association of Mr Topolinsky with the Tribunal in his capacity as a General Member and I have not made such a finding, this issue does not arise for determination.
12 If this Tribunal were to find that a hearing of these proceedings before the Tribunal in which a member of the Tribunal were to give evidence might be attended by apprehended bias, the interests of justice would necessitate a transfer.
13 In this way, this a 3 mights test – because the facilitation of the “quick and cheap” resolution of the real issues in the proceedings would not be advanced by the risk of this Tribunal having to entertain appeals on the grounds of apparent bias where that risk could be effectively negated by ordering the transfer.
The existence of the apparent bias is made out
21 Were this Tribunal to find that hearing these proceedings would inevitably be affected by apparent bias, the Tribunal should transfer the proceedings without further weighing any other discretionary factors.
Alternatively, the possibility that the hearing would be affected by apparent bias is a strong discretionary consideration in favour of transfer
22 Were this Tribunal to find that hearing these proceedings might be affected by apparent bias, that is a factor that weighs heavily in favour of transferring the proceedings.
23 It should only be by strong countervailing considerations that the proceedings remain in this Tribunal.
24 Relevantly, the Tribunal’s confidence that it could determine the proceedings on the merits impartially is not a relevant consideration: [Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342] at 356.
(1) undue weight might be given to Mr Topolinsky’s evidence although the appellant’s submissions on appeal at [13] stated that it did not allege that the Tribunal is likely to give undue weight to Mr Topolinsky’s evidence);
(2) the Tribunal would be less likely to criticise the expert evidence given by Mr Topolinsky because the Tribunal “would be motivated to preserve (or mitigate the damage to) the reputation of Mr Topolinsky and the institutional integrity of this Tribunal”.
(3) the integrity of the Tribunal would not be advanced by doubt being cast as to Mr Topolinsky’s credibility as a lay witness and the Tribunal might be reluctant to make adverse findings; and
(4) the Tribunal might be more sympathetic to Mr Topolinsky when giving weight to the evidence that Mr Topolinsky might give.
(1) that a reasonable apprehension of bias was made out and constituted a factor “that weighs heavily in favour of transferring the proceedings”;
(2) Ms Wolff would not “suffer any procedural or cost disadvantage by reason of the transfer”;
(3) there was no evidence that “the transfer would result in undue delay or expense”, the hearing date having been vacated;
(4) the parties presently have adequate representation which would be available if the proceedings were transferred to the District Court; and
(5) the granting of the transfer application would remove the possibility of any decision subsequently made by the Tribunal being set aside on appeal by reason of any apparent bias.
Consideration
(1) the fair-minded hypothetical observer is one who is properly informed of the actual circumstances of Mr Topolinsky’s role as a General Member of the Tribunal would (sic) understand that he is not involved in making decisions;
(2) the fair-minded hypothetical observer would understand that the member of the Tribunal would (sic) decides the proceedings “is open to persuasion” as to the matters on which Mr Topolinsky gives evidence having regard to the whole of the evidence presented and would not be persuaded to prefer this evidence either because of his status as a General Member of the Tribunal or a desire to preserve or mitigate the damage to his reputation and the institutional integrity of the Tribunal;
(3) the fair-minded hypothetical observer would understand that the member of the Tribunal would decides (sic) the proceedings “is open to persuasion” as to the matters on which Mr Topolinsky in gives evidence notwithstanding he has a personal interest in the outcome of the proceedings as a the (sic) domestic partner of the applicant and a collegiate relationship with six other members of the Tribunal.
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualification relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should be done and seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. ...
The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, give rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consist of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap with the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third and consist of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.
(1) The test of bias to be applied is an objective one: Johnson v Johnson [2000] HCA 48; 201 CLR 488 (Johnson) at [12] p 493.
(2) the fair-minded lay observer is taken to be reasonable: Johnson at [12] p 493;
(3) the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”: Johnson at [12] p 493 referring to Vakauta v Kelly (1988) 13 NSWLR 502 at 527, per McHugh JA (as he then was), adopted in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 584-585, per Toohey J.
(4) the fair-minded lay observer is a person who is properly informed: Hot Holdings Pty Ltd v Creasy [2002] HCA 51; 210 CLR 438 per McHugh J at 459 [68] and 462 [76].
(5) The fair-minded lay observer has attributed to them knowledge of the actual circumstances of the case: Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 per Mason CJ and Brennan J at [37], but is not assumed to have a detailed knowledge of the law or the character or ability of a particular judge: Johnson at [13] p 393.
51 There is force in the submission
on behalf of the defendants that trial by jury would not be the cure for which
the plaintiff contends.
A judge would still be required to making rulings and
give directions on a variety of questions of law, including the existence and
scope of any duty of care and the applicability of any exclusion of liability
under the Civil Liability Act.
52 The position of each of
the defendants was that nothing was required to be done in the interests of
justice in this case but that
if it did emerge that the Judges of this Court
were embarrassed in any way by the prospect of presiding at the hearing of the
matter
then a judge from another State or Territory could be appointed to
preside. Reference was made to the judgment of Gummow, Hayne and
Crennan JJ
in Forge & Ors v Australian Securities & Investment Commission
& Ors [2006] HCA 44; (2006) 228 CLR 45 at [94] – [96] where
their Honours referred to such a practice as having no adverse effect on the
institutional integrity of the court.
The plaintiff produced evidence that the legal profession of the Northern Territory was small; that the person is of whose action or inaction she complained now occupied senior positions in the Northern Territory legal profession (Mr Shields is Executive Director of Policy in the Chief Minister’s Department, Ms Oliver is a magistrate of the Northern Territory, Mr Kate is Director of Public Prosecutions for the Northern Territory, Mr Shanahan has been appointed as Chief Executive Officer of the Department of Justice) and that there were professional and social ties between those persons and members of the Northern Territory judiciary of varying degrees.
27 The retention of the matter in the New South Wales Supreme Court will remove all questions of embarrassment and apprehended bias. The only inconvenience if the matter remains in the New South Wales Supreme Court would appear to relate to witnesses travelling to and being accommodated in Sydney for the hearing. The cost of such travel and accommodation and any associated inconvenience to witnesses will be alleviated if the evidence is taken on commission in Darwin to which course the plaintiff would consent.
28 In my opinion the balancing of the relative considerations leads to the conclusion that, in the particular circumstances of this case, the interests of justice are such that the proceedings should remain in the Supreme Court of New South Wales. Accordingly the application to transfer the proceedings to the Supreme Court of the Northern Territory is refused.
... The case comes down to a question of possible embarrassment because of the Judge's acquaintance with witnesses to be called on behalf of the defendant.
There is no general rule that a judge is disqualified from hearing a case in which a witness known to him or her will be called. If there were such a rule, it would frequently cause difficulties in a small jurisdiction such as the Australian Capital Territory. There must be many Territory residents known to all three resident Judges. On the other hand, except perhaps in an emergency situation, it is clearly undesirable for a Judge to hear a case in which a person well-known to him or her is to give important and controversial evidence, especially if the witness' credit may be in issue. It might be difficult for the Judge to bring an open mind to the evaluation of that person's evidence.
Between these two extremes lie countless intermediate points. The question whether a particular judge should hear a case, having regard to the judge's knowledge of a potential witness, is a matter to be evaluated in the light of the whole of the circumstances. ...
Two issues arise for determination at this very early interlocutory stage of the proceeding. The first arises from a summons filed by the defendant seeking an order pursuant to s.33N of the Act that the proceeding not continue under Part 4A of the Act; the second from the fact that the Chief Executive Officer of this Court, although not a party to the proceeding in the ordinary sense, is a group member on whose behalf the proceeding is brought. He is, accordingly, a person interested in the outcome of the group proceeding to the same extent, as a matter of practical reality, as if he were a plaintiff. This issue was not raised by the defendant. It was raised by the Court.
16 As I have already noted the plaintiff's father is, with his wife (the plaintiff's litigation guardian), a group member in this action as it is presently constituted. It is a reasonable inference from the endorsement on the writ that he will also be a material witness in the plaintiff's claim, probably on the issues of both liability and quantum. He is interested in the outcome of this litigation.
17 As the Chief Executive Officer of this Court the plaintiff's father is the person principally responsible for the day to day operation of the Court in its non-judicial activities. He is responsible, through his staff, for the accommodation of the judges and for the provision of all of their requirements ranging from information technology to stationery. He is responsible for the security, cleaning, heating and maintenance of the Court's buildings, including every judge's chambers, the courts in which the judges sit and the library. He arranges the supply of the judges' cars. He performs many other functions necessary to the comfort of the judges and the smooth operation of the Court.
In the instant case every judge of this Court has, to a greater or lesser degree, an association with the Court's Chief Executive Officer even if, as may well be the case, some judges do not know him personally. That association necessarily involves, as a matter of practical reality, some degree of reliance and dependence. Whilst the judge may retain the ultimate power of direction, in the day to day work which a judge undertakes his or her relationship with the Chief Executive Officer and his staff is an important one. It is this relationship or association between the judge and the person interested in the outcome of proceedings in the Court that provides the logical connection between the matter and the feared deviation from the course of deciding the case on its merits to which the High Court was referring in the passage quoted. A fair minded lay observer might reasonably apprehend that a judge of this Court might not bring an impartial mind to the resolution of the question he or she was required to decide in this litigation having regard to the association described.
The defendant's main contention was that it was inappropriate for any member of this Court to conduct the trial of this matter. The plaintiff, in addition to holding office as President of the Industrial Relations Commission, holds a commission as a judge of the Federal Court of Australia.
Each of the judges of this Court also holds a commission as a judge of the Federal Court of Australia. Any appeal from a decision of this Court in this matter would be heard by a Full Court of the Federal Court of Australia.
It is suggested that these circumstances might lead members of the public, including members of the defendant company, to apprehend bias on the part of the judge or judges who may be assigned to preside over the trial or any appeal therefrom to the Federal Court.
Alternatively, the defendant contends that even if there would not be an apprehension of bias, there would be serious potential embarrassment to the judges of this Court and of the Federal Court which it would be proper to avoid by transferring the proceedings to the Supreme Court of New South Wales.
That case is, of course, different from the present one. It is not suggested that the plaintiff is in a position to exercise authority over any judge of this Court or of the Federal Court. It is the collegiality of the plaintiff with those judges which is said to found the apprehension of bias or pre-judgment.
It would, in my opinion, be inappropriate to approach this application any differently from any other case in which there is a litigant who is, or may be, personally known to the present members of this Court and of any relevant appellate court.
The degree of that knowledge and the extent of it will determine whether any particular judge considers that he or she should not preside over this case if assigned to him or her by the usual listing processes. The nature of the case and the issues raised by it will be of great significance in that consideration.
I do not consider that the judges of this or of the Federal Court are necessarily disqualified for apprehended bias merely by reason of their common membership with the plaintiff on the Federal Court.
On that basis, it does not appear to me that it is "in the interests of justice" for this Court to decline to exercise a jurisdiction properly invoked by the plaintiff.
I therefore refuse the application for transfer of the proceedings.
(1) When constituted as the Tribunal, a Member is an independent decision maker.
(2) The Tribunal sitting in the Consumer and Commercial Division when constituted to hear the present proceedings is exercising judicial power: Attorney General for New South Wales v Gatsby [2018] NSWCA 254 per Bathurst CJ at [121] and following;
(3) There are about 120 Members assigned to the Consumer and Commercial Division who can hear and determine the present application.
(4) There are three other Divisions of the Tribunal, with a total membership of the Tribunal of more than 275 Members.
(5) There was no evidence suggesting Mr Topolinsky has an association with all Members of the Consumer and Commercial Division, let alone the whole of the Tribunal.
(6) Subject to applicable limitations, the President of the Tribunal may assign any Member of the Tribunal to the Consumer and Commercial Division: s 18 NCAT Act.
(7) The President may also appoint an “occasional member” from outside the Tribunal to hear and determine particular proceedings “if it is necessary to enable the Tribunal to be properly constituted to exercise its functions in the proceedings”: s 11 NCAT Act.
(1) in making a decision, Members of the Tribunal are trained and have obligations “to discard the irrelevant, immaterial and prejudicial”;
(2) many Members of the Tribunal have no association with Mr Topolinsky other than being Members of the Tribunal, whether in the same or different Divisions;
(3) many Members have had no dealings with Mr Topolinsky whatsoever;
(4) Members regularly review decisions of other Members of the Tribunal in determining cases and evaluate whether the Member has correctly decided a case. In appeals, this review can include whether a Member has exhibited actual bias. The fact one Member may be called on to make such a ruling does not undermine or effect the reputation or integrity of the Tribunal and does not, of itself, give rise to a reasonable apprehension of bias in respect of the Member carrying out such a review. The Federal Court and the constitution of the Full Court illustrates this point.
(5) There is no hierarchical issue of a Member who might decide this case being subservient to Mr Topolinsky in circumstance such as those that arose in Fingleton;
(6) There is no connection between Mr Topolinsky and all Members of the Tribunal of the type identified in McLean.
Consequently, the fair-minded lay observer properly informed in this case would not hold a reasonable apprehension that the class of all members of the Tribunal (as opposed to some other identifiable subset or particular individuals) “might not bring an impartial mind to the resolution of a question the [Member] is required to decide”.
Orders
(1) Leave to appeal is granted.
(2) The appeal is dismissed.
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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
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URL: http://www.austlii.edu.au/au/cases/nsw/NSWCATAP/2021/135.html