3 Bears Childcare Pty Limited, Hi 5 Childcare Pty Limited, Apple Bear Pty Limited and GRR v Secretary, Department of Education

Case •

[2025] NSWCATAD 235

•

10 July 2025

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: 3 Bears Childcare Pty Limited, Hi 5 Childcare Pty Limited, Apple Bear Pty Limited and GRR v Secretary, Department of Education [2025] NSWCATAD 235
Hearing dates: 7, 8 and 9 July 2025
Date of orders: 9 July 2025
Decision date: 10 July 2025
Jurisdiction:Administrative and Equal Opportunity Division
Before: J Redfern PSM, Senior Member
J Herberte, General Member
Decision:

(1)   The requests by the applicants to adjourn the hearing listed 9 July 2025 to 16 July 2025 is refused.

(2)   The applications are dismissed because the applicants failed to appear.

(3)   The Tribunal directs as follows:

(a)   The respondent is to file and serve any application for costs, including evidence and submissions, on or before 16 July 2025.

(b)   The applicant is to file and service any evidence and submissions in response on or before 13 August 2025.

(c)   The respondent is to file and service any evidence and submissions in reply on or before 30 August 2025.

Catchwords:

DISMISSAL – multiple adjournment requests refused – failure to appear at third day of hearing

Legislation Cited:

Children (Education and Care Services) National Law NSW

Civil; and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

3 Bears Childcare Pty Limited, Hi 5 Childcare Pty Limited and Apple Bear Pty Limited v Secretary, Department of Education [2024] NSWCATAD 204

3 Bears Childcare Pty Limited, Hi 5 Childcare Pty Limited and Apple Bear Pty Limited v Secretary, Department of Education [2024] NSWCATAP 218

Murabito v Commissioner for Fair Trading [2020] NSWCATAP 63

Hoser v Hartcher [1999] NSWSC 527

Texts Cited:

Nil

Category:Procedural rulings
Parties: 3 Bears Childcare Pty Limited (Applicant)
Hi 5 Childcare Pty Limited (Applicant)
Apple Bear Pty Limited (Applicant)
GRR (Applicant)
S3ecretary, Department of Education (Respondent)
Representation: Applicants – self-represented (GRR)
Respondent
Counsel:
Mr N Li
Solicitors:
Crown Solicitor, Karen Smith
File Number(s): 2024/00220080, 2024/00222909, 2024/00223933 and 2024/00387499
Publication restriction: Section 64(1)(a) restricting the disclosure or publication of the name of the applicant in proceedings 2024/00387499.

REASONS FOR DECISION

Introduction

  1. The proceedings relate to four separate but related applications for administrative review of decisions made by the respondent, the Secretary of the Department of Education. The applicants are three related corporate entities, known as 3 Bears Childcare Pty Limited, Hi 5 Childcare Pty Limited and Apple Bear Pty limited. The fourth applicant, GRR, is a director of each of the three corporate entities and he is the person responsible for the management and control of each company. The three corporate applicants operated childcare centres in Southwestern Sydney under the Children (Education and Care Services) National Law NSW (the National Law).

  2. By letter dated 4 June 2024 a delegate of the respondent issued a notice of cancellation of the provider approvals for each of the three corporate applicants effective from 4 July 2024. The respondent also cancelled all service approvals held by the three corporate applicants.

  3. The corporate applicants requested review of these decisions on 14 June 2024 pursuant to s 193 of the National Law. This is a review under s 29 of the Civil; and Administrative Tribunal Act 2013 (NSW) (NCAT Act). They also made applications for the stay of the decisions. The stay applications were listed before the Tribunal on 2 July 2024 and the Tribunal made a decision on 25 July 2024 (3 Bears Childcare Pty Limited, Hi 5 Childcare Pty Limited and Apple Bear Pty Limited v Secretary, Department of Education [2024] NSWCATAD 204). The Tribunal granted a stay of the decisions until 6pm 5 July 2024 but otherwise decided it was not appropriate to grant a stay after this date. According to the decision, Senior Member Mulvey granted a short stay of the decisions to allow the families to make alternative arrangements for their children after the conclusion of the week ending 5 July 2024.

  4. The corporate applicants appealed this decision. The matter before the Appeal Panel on 25 October 2024. By decision dated 1 November 2024, the Appeal Panel refused leave to appeal the decision was refused and otherwise dismissed the appeal (3 Bears Childcare Pty Limited, Hi 5 Childcare Pty Limited and Apple Bear Pty Limited v Secretary, Department of Education [2024] NSWCATAP 218).

  5. By notice dated 20 September 2024, a delegate of the respondent issued a prohibition notice on GRR prohibiting him from providing education and care to children for an education care centre and, among other things, prohibiting him from being engaged as a supervisor, educator, family day care educator, employee or volunteer and from carrying out any other activity relating to education and care services. On 18 October 2024 GRR filed an application for review of this decision.

  6. Since the commencement of the applications for review, the Tribunal has made directions in respect of the conduct of those applications. On 28 November 2024, the Tribunal vacated the hearing listed on 9 December 2024 in respect of the three applications for review made by the corporate applicants and consolidated these applications with the application for review made by GRR. The Tribunal further directed that the evidence in each of the proceedings should be treated as evidence in each other proceedings. The Tribunal also directed that the proceedings be case managed and heard together.

  7. The Tribunal made directions about the conduct of the proceedings and the filing of evidence and listed the proceedings for hearing on 24 March 2025. The respondent did not file all evidence in accordance with the Tribunal timetable and the hearing listed on 24 March 2025 was vacated. The respondent had been directed to file and service all further evidence by 29 January 2025.

  8. On 19 March 2025, a further timetable was directed by the Tribunal, having regard to the fact that the further evidence filed and served by the respondent was not served until 5 March 2025. The Tribunal directed that the applicants file and serve any further material, including witnesses’ statements, documents and submissions in support of the applications for administrative review by 30 May 2025. The respondent was directed to provide a hearing plan and any further tender bundle by 30 June 2025. The matter was listed for hearing before the Tribunal on 7 July to 16 July 2025.

  9. The respondent filed a hearing plan by 30 June 2025, but the hearing plan was not served on the applicants until 3 July 2025. The respondents filed no further evidence or tender bundles other than the documents that had already been served. The applicants filed no further evidence or submissions.

  10. Prior to the commencement of the hearing the applicants applied for the hearing to be vacated.

  11. We adjourned the proceedings until 8 July 2025 and otherwise rejected the application for an adjournment. At the commencement of the proceedings on 9 July 2025 the applicants made a further application for an adjournment. The responded opposed the application and requested that the proceedings be dismissed pursuant to s 55(1)(c) or, in the alternative, s 55(1)(d) of the NCAT Act.

  12. On 9 July 2025 we made orders refusing the requests for adjournment, we dismissed each of the proceedings under s 55(1)(c) of the NCAT Act and we made directions with a timetable for costs in the event the respondent decides to seek costs of the hearings. Our reasons follow.

Background

  1. The corporate applicants obtained service approval in the period November 2008 to August 2010. They have been the subject of compliance activity from his early as 2013. In March 2023, the Department of Education listed each of the corporate applicants’ services as very high risk. The Department of Education identified multiple breaches of the national law and the education and care services national regulations and found that each of the corporate applicants was not a fitting proper entity to be involved in the provision of education and care services. The department also found that the continued provision of education and care services by each of the corporate applicants would constitute an unacceptable risk to the safety, health or well-being of any child or class of children being educate and cared for by the approved provider. A delegate of the respondent further found that there may be an unacceptable risk of harm to a child or children if GRR was allowed to remain on an education and care premises or to provide education and care to children.

  2. The applicants dispute the decisions made by the delegate.

  3. The respondent has filed and served 10 indexed volumes of documents together with affidavits from three senior officers of the Department of Education. The applicants have filed and served a bundle of documents, which includes an annotated version of the cancellation and prohibition notices outlining submissions made by the applicants in response, an affidavit of Ms Jennifer Ribarovski, sworn 23 October 2024 and affidavits from parents regarding consent for their children to attend excursions and an affidavit from Estella Tran. Ms Ribarovski is the principal director of JR Education Consulting Services Pty Limited. She is an early childhood education care consultant.

The hearing

  1. On 4 July 2025 at 5:21pm the Tribunal received an email from GRR requesting the following orders:

  1. An order to dismiss the respondent’s applications in response

  2. An order to vacate the hearing on 7 July 2025

  3. An order to protect personal information from public disclosure common namely an order seeking that GRR's personal details not be disclosed.

  4. An order to clarify the identity of anonymous complainants (not public disclosure

  1. Just prior to the commencement of the hearing on 7 July 2025, the Tribunal received an application for miscellaneous matters, formally requesting that the Tribunal make the four orders referred to above. Attached to the emails and applications was a medical certificate from the Westmead Private Hospital dated 3 June 2025 stating that Estella Tran has been a patient in the hospital and would be unfit for work from 3 June 2025 to 10 June 2025. There was a further certificate provided, headed certificate of fitness dated 4 July 2025, stating that Ms Tran would be unfit for work from 4 July 2025 to 8 July 2025.

  2. In addition to these medical certificates, there was a medical certificate in respect of GRR from Dr Son Le, gastroenterologist, dated 4 July 2025. The medical certificate stated as follows:

"This letter is to confirm that the above-mentioned person has attended a medical appointment today and will be unavailable for usual duties from Friday 4/7/25 to Tuesday 8/7/25 inclusive.

Please do not hesitate to contact me if any queries."

  1. The second document attached to the email and the application was a letter dated 4 July 2025 from Dr Seymour Maze consultant cardiologist, dated 4 July 2025. The letter stated as follows:

"To whom it may concern

[GRR] attended for a medical appointment today."

  1. At the commencement of the hearing on 7 July 2025 there was no appearance on behalf of the applicants, however, Ms Robarovski, consultant and witness for the applicants, attended the hearing indicating that she had been requested to attend by GRR.

  2. The Tribunal telephoned GRR soon after the hearing commenced. He participated in the hearing by telephone. GRR confirmed that he wished to proceed with the application that the hearing be vacated. When asked for his reasons, GRR gave three reasons.

  3. First, he said that the proceedings were very complicated, there were four applications and the applicants did not have legal representation. The applicants wanted to adjourn the proceeding so he could obtain legal representation. GRR said that he had spoken to several lawyers but he was unable to obtain legal representation because he did not have the funds to pay for a legal representative. When asked whether there was a prospect that he could obtain legal representation shortly and whether he would have funds to pay for legal representation, GRR said this was not the case.

  4. The second issue raised by GRR was that he had concerns about whether the applicant had enough time to respond to the material filed. He claimed that much of the evidence provided by the respondent was incorrect. He also said that it was necessary for the applicants to obtain details of the identity of the anonymous complainants before they could respond to the evidence filed. GRR alleges that the complainants have given false or misleading information. GRR also objected to the matter proceeding on the basis that the respondent had sent tow emails at 5:41pm and 5:45pm on three July 2025 which included their proposed hearing plan and a tender bundle three days past the deadline of 30 June 2025. It was submitted that the late submission has prevented the applicants from seeking timely legal advice or properly preparing for the hearing. It was further noted that a key witness, Ms Estella Tran, was recovering from surgery and was unable to participate in the scheduled hearing.

  5. The Tribunal outlined several proposals to accommodate these first two concerns. It was indicated that the Tribunal was prepared to give the respondent the opportunity to assess the evidence, having regard to the process being undertaken whereby the respondent is to present its evidence in support of the application for cancellation at first instance. This would give not only the Tribunal but the applicants the opportunity to understand the detailed allegations made in relation to the applicants, much of which has already been particularised in the cancellation and prohibition decisions and in the evidence and submissions already filed by the respondent. On the question of the anonymization of the complainants, the Tribunal indicated this matter could be considered at the time that the respondent presented the evidence. The Tribunal would make a ruling in relation to each complainant, relevantly as to whether there was prejudice or need for the applicants to be giving details of the identity of the complainant. GRR said that he did not believe these issues would resolve his concerns.

  6. The final issue of concern raised by GRR was his medical condition. He said that he had consulted recently with specialists and that he was very concerned about his heart, which was racing. He was unable to participate any further in the telephone hearing and said he would have to disconnect from the telephone call so he could lie down. However, before disconnecting GRR said he would not object to the Tribunal contacting his cardiologist, Dr Maze, by telephone to discuss this issue.

  7. The solicitors for the respondent contacted the second specialist, Dr Le, by telephone and by email on the morning of the hearing. Ms Steel, solicitor from the respondent, gave evidence about her communications with Dr Li. She also prepared to detailed file note following her conversation, which was admitted into evidence, together with email correspondence. According to Ms Steel, Doctor Le said that he had seen GRR for the first time on Friday. He provided the medical certificate because GRR was very stressed and needed a few days off. Dr Le reportedly told Ms Steel that did not know that there were legal proceedings on foot. He was asked about whether GRR would be able to attend a hearing, and reportedly said that GRR would physically be able to sit down and talk and he should be able to attend a hearing.

  8. The Tribunal attempted to contact Dr Maze to give evidence about GRR’s medical condition. He was not available on 7 July 2025 and advised the Tribunal he would be available at 11:50am on 8 July 2020.

  9. The Tribunal adjourned the proceedings until 11:30am on 8 July 2020 and provided written reasons for the order. The written reasons were provided to draw GRR’s attention to NCAT Guideline 3 and to ensure he was aware of the issues relating to the adjournment. The reasons specifically referred to the NCAT Guideline 3, noting that if a party is seeking an adjournment on medical grounds, the party should provide detailed medical evidence. The written reasons further noted that any medical certificate must be specific and clearly state that the person is unable to attend the hearing. The medical certificate must indicate the nature of the illness and why the illness prevents that person from participating in the hearing.

  10. GRR attended the proceedings in person on 8 July 2025. He said that he did not know about NCAT Guideline 3. He submitted that he was still too unwell to proceed, he had other medical issues and had been unable to prepare for the hearing. He requested that the hearing be adjourned to a date sometime after a further specialist appointment in August 2025.

  11. Dr Maze participated in the hearing by telephone at 11.50am on 8 July 2025. GRR was present during this telephone call. Dr Maze told the Tribunal that he had consulted with GRR twice; the first time on 4 July 2025 and the second time that morning. GRR had a cardiac arrhythmia, being an irregular heartbeat, which was not uncommon and not life threatening. He said that many patients can attend meetings and function normally. He had consulted with GRR in the morning, and in his view he was fit to participate in a hearing today. As to whether this would be the case for the rest of the week, he could not say. Arrhythmias (or atrial fibrillation) are unpredictable. Stress may cause symptoms but not necessarily. GRR has been referred to another doctor specialising in this condition for treatment for possible catheter ablation, which was commonly used in cardiology to treat heart rhythm disorders. Dr Maze said that when there are instances of irregular heartbeat, it can be uncomfortable for the person experiencing the symptoms. Dr Maze said that GRR did not otherwise have an underlying heart condition.

  12. After this evidence, GRR said that he still could not proceed because he was too unwell. He renewed his request for the proceedings be adjourned until after he had consulted the second heart specialist and was able to obtain the procedure referred to by Dr Maze. When the Tribunal indicated that it was not proposing to adjourn the proceedings and would give him every opportunity to engage in the hearing, adopting the proposed two stage approach foreshadowed on the previous day, GRR stood from his chair and said that he could not stay. He apologised, asking the Tribunal for leave to be excused. The Tribunal indicated it would not give leave to be excused and said that if GRR did not wish to further participate in the hearing, the respondent may make seek to make applications in his absence. GRR said that he needed to obtain further legal advice. He then left the hearing at 12:35pm.

  13. The proceedings were adjourned for a short period and resumed at 2:00pm. When the applicants did not appear, the respondent requested that the application for an adjournment be refused, the proceedings be listed on the following day as listed, or, in the alternative, requested that the Tribunal dismiss the applications for review under s 55(c) of the NCAT Act.

  14. Detailed submissions were made by the respondent opposing the application for an adjournment. The applicants’ request that the hearing be vacated and the proceedings adjourned was refused, in the absence of the applicants, and written reasons were provided by the Tribunal and sent to the parties at approximately 5:30pm.

  15. In summary, the Tribunal was not satisfied that the grounds raised by GRR justified the proceedings being further adjourned for the following reasons.

  1. There was little utility in adjourning the proceedings to allow the applicants a further opportunity to obtain legal representation in circumstances. GRR advises that he has approached a number of lawyers, but he does not have sufficient funds to be able to retain lawyers. In other words, there does not appear to be reasonable prospects that an adjournment would result in the applicants obtaining legal representation.

  1. The Tribunal was satisfied that there had been sufficient time for the applicants to prepare for the case. All evidence has been filed and served by the respondent from at least 5 March 2025. While it is difficult to understand why the respondent served the hearing plan late when it the plain had been filed by 30 June, the short delay in providing the hearing plan does not warrant an adjournment, let alone an order that the hearing be vacated.

  2. The Tribunal was not satisfied that GRR’s medical conditions preclude him from participating in the hearing. The medical certificates provided did not GRR did not comply with NCAT Guideline 3. Further, the available evidence from Dr Le and Dr Maze does not support GRR’s contention that he is seriously ill and cannot proceed. At the outset of the hearing, the Tribunal proposed that it would be prepared to consider adjourning the proceedings to allow the applicants further opportunity to prepare following the outline and presentation of the respondent’s case. In order to accommodate GRR’s concerns and his potential health issues, the Tribunal proposed that the hearing could proceed in two stages. The first phase of the hearing would involve the respondent presenting the case, including an outline of the submissions and the tender of documents. At the end of the process, it was anticipated that the applicants would be given the option to proceed with the evidence already filed, or to seek a short adjournment to digest the evidence presented or to file further evidence. Further, if GRR was unable to proceed with the hearing at a particular time, the Tribunal could easily adjourn those proceedings for a period to accommodate his medical needs. As stated by Dr Maze, atrial fibrillation is not an uncommon condition experienced by older people and can be well managed.

  3. The applicants have failed to attend several directions hearings, including the directions hearings on 10 and 12 March 2025. We accepted the submissions of the respondent about further delay and the cost and operation inconvenience to the respondent if the proceedings were adjourned. The respondent had three senior officers who were available to give evidence at the hearing and had been asked to be on standby. Further delay and uncertainty would have a detrimental impact on the operational requirements of the respondent.

  1. Accordingly, we directed that the proceedings, which were listed for hearing on 9 July 2025 at 10am, proceed. We also noted in the reasons that if the applicants did not appear at the hearing that day, the respondent foreshadowed that an application for the proceedings to be dismissed would be made pursuant to section 55(1)(c) of the NCAT Act.

  2. The applicants did not appear at the hearing on 9 July 2025. However, just prior to the commencement of the hearing at approximately 9:59am and 10.21am, GRR sent emails to the Tribunal again requesting an adjournment of the proceedings the first as follows:

With all respects to the Tribunal, I had taken risks to attend the hearing yesterday to show my commitment.

Unfortunately, my decisions nearly costed my own life.

My heart was beating up to 177, and the emergency ward of Fairfield Hospital had to treat priority me as life threatening before about 30 patients who also need emergency services.

The doctors and nurses advised me to rest for next few days.

Therefore I seek your consideration for granting me the adjourning due to my life threatening position.

Once I attend the procedure, the AF conditions will be better and to avoid life threatening problems.

The hard copies will be submitted to counter later this morning today by my representatives.

  1. The first email attached a photograph of GRR outside an emergency section of a hospital, a photograph of a hospital tag for GRR from Fairfield Hospital, a photocopy of his smart watch showing a heartbeat rate of 177 beats per minute, a copy of a prescription from a medical officer known as Feras Aboona for amoxicillin and a medical certificate, from the same medical officer, dated 9 July 2025, stating that GRR would be unable to attend work/school from 9 July 2025 to 16 July 2025. The certificate also stated that GRR presented to the hospital on 8 July 2025 suffering from a “medical condition”. The details of the medical condition were not specified. GRR also attached a photograph of a blood pressure monitor

  2. In his second email, GRR stated, amongst other things, that he withdrew his consent for any direct telephone calls to his doctors.

Further adjournment request

  1. The respondent submitted that the Tribunal should refuse the further late applications for an adjournment. It was noted that the applicants had not provided medical evidence in accordance with NCAT Guideline 3. Relevantly, GRR had not provided any discharge summary from the hospital to establish whether he had been admitted or to provide details of his diagnosis and treatment. There was no information provided about GRR’s medical condition. It is submitted that the information about GRR’s heartbeat rate recorded from his smart watch should be given no weight. There is no evidence about whether this heartbeat rate was abnormal for GRR or the circumstances surrounding the recording of the heartbeat rate. It was also submitted that no weight should be given to the copy of the prescription as there was no evidence about the nature of the illness or the reasons for the prescription. The Tribunal should not accept GRR’s untested self-reported illness without corroboration.

  2. We accept these submissions. The Tribunal has discretion under s 51 of the NCAT Act to adjourn proceedings. We are not satisfied that the medical evidence provided by GRR substantiates his claimed medical conditions or his request for a further adjournment on the third day of the scheduled hearing. GRR has been given ample opportunity to appear, present the case of the applicants or, alternatively, provide cogent medical evidence to corroborate his claims that he is too ill to appear. The evidence provided does not comply with NCAT Guideline 3, it does not support GRR’s contention that he is suffering a life-threatening illness, and it is inconsistent with the evidence given by Dr Maze on 8 July 2025. We give the evidence provided just before the hearing on 9 July 2025 little weight.

  3. GRR was notified through the written reasons provided by the Tribunal on 8 July 2025 that if he did not appear at the hearing scheduled on 9 July 2025, an application may be made by the respondent to dismiss the applications for review on the basis of s 55 of the NCAT Act.

  4. Under s 36 of the NCAT Act, the Tribunal must apply the guiding principle to practice and procedure. Section 36 provides that the Tribunal is to facilitate the just, quick and cheap resolution of the issues in the proceedings. In the present case, the applicants have been given the opportunity to present their case. The matter has been listed for hearing for the period 7 to 16 July 2025 and directions were made in relation to the conduct of these proceedings on 19 March 2025. While we accept that the respondent initially did not comply with the timetable directed on 9 December 2024, all evidence relied upon by the respondents has been filed since at least 5 March 2025. The applicants have not provided any evidence in response to the evidence filed by the respondent. The Tribunal advised GRR during the hearings on 7 and 8 July 2025 that efforts would be made to accommodate his medical condition, if necessary, and the applicants would be given the opportunity to provide further evidence after the respondent’s opening. The applicants have rejected these suggested case management procedures.

  5. Having regard to the guiding principle and the conduct of the applicants, and in particular its representative GRR, over the past few days, we again rejected the application for an adjournment.

  6. Accordingly, there was no appearance by the applicants at the commencement of the hearing on 9 July 2025 and this was not excused by an adjournment.

Application for dismissal

  1. When the applicants failed to appear at the commencement of the hearing, the respondent made an application that the Tribunal dismiss the application pursuant to s 55(1)(c) or, in the alternative if the Tribunal does not have power to dismiss in these circumstances, s 55 (1)(d) of the NCAT Act.

  2. Section 55 provides for the dismissal of proceedings as follows:

1)  The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances—

(a)  if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,

(b)  if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

(c)  if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,

(d)  if the Tribunal considers that there has been a want of prosecution of the proceedings.

(2)  The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers that there is a reasonable explanation for that failure.

  1. The respondent submits that the proceedings should be dismissed under s 55(1)(c) because the applicants failed to appear at the hearing on 9 July 2025. Section 55(1)(c), and the expression “failed to appear in the proceedings” should be given a purposive construction, consistent with the guiding principles in s 36 of the NCAT Act. Section 36 gives the Tribunal a broad discretion in relation to its own practice and procedure and directs the Tribunal to exercise its discretion in accordance with the guiding principle. Section 55(1)(c) should not be given a narrow or technical meaning. It is submitted, relevant to the circumstances in this case, that s 55(1)(c) should not being construed as restricting the notion of a failure to appear to those instances where applicants have not appeared on the first day of the hearing. This expression should be given a practical meaning and should cover and appear the non-appearance of applicant at any stage of the proceedings. As such. the respondent submits that they non-appearance of the applicants on the third day of the hearing falls within the circumstances contemplated by s 55(1)(c).

  2. It is further submitted that if s 55(1)(c) is given a narrow technical meaning, this would mean that any applicant who failed to appear in the afternoon of a hearing or walked out of a hearing, as in the circumstances currently before the Tribunal, would not be susceptible to an application under s 55(1)(c). It is further submitted that if this was the case, the only recourse available to a respondent to an application for review and the Tribunal is dismissal under s 55(1)(d) of the NCAT Act. Dismissal for want of prosecution requires more detailed analysis and consideration of the merits of the proceedings as demonstrated by the Appeal Panel in Murabito v Commissioner for Fair Trading [2020] NSWCATAP 63 at [31]-[34], citing Simpson J in Hoser v Hartcher [1999] NSWSC 527 at [19].

  3. The respondent submits that if the Tribunal is not satisfied that it has power to dismiss the proceedings under s 55(1)(c) in the circumstances of this case, it should dismiss the proceedings for want of prosecution under s 55(1)(d) of the NCAT Act.

Consideration

  1. We accept the proposition that s 55(1)(c) of the NCAT Act should not be construed narrowly. Subsection (c) provides a mechanism for the Tribunal to dismiss proceedings at any stage if the applicant has failed to appear in the proceedings. Section 55 expressly provides that the discretion to dismiss may be enlivened “at any stage” of the proceedings if one of the subsections in s 55(1) are established. In our view, an applicant who appears at the commencement of a hearing then refuses to appear in the afternoon of the scheduled hearing or, as in this case, at the commencement of the following day, has “failed to appear in the proceedings” for the purposes of s 55(1)(c).

  2. Section 55(1)(c) is intended to provide the Tribunal with discretion to dismiss and envisages a simple process for dismissal when an applicant does not appear in the proceedings. There is no need for the Tribunal to undertake a more detailed review of the applications or the conduct of the applicant, as required by the other subsections. This is not unduly unfair or prejudicial because the power is discretionary and must be exercised reasonably, having regard to the guiding principles of the NCAT Act. The guiding principles not only provide for the Tribunal to apply procedural rules to facilitate the quick and cheap resolution of the real issues in dispute in the proceedings but also the just disposition of those proceedings. Section 55(2) provides for reinstatement if an applicant is able to satisfy the Tribunal that there is a reasonable explanation for the failure to appear. Relevantly, s 55(1)(c) is the only dismissal power which provides for a subsequent process for reinstatement.

  3. While the failure to appear at a hearing or directions hearing (as the case may be) may be a factor in establishing “want of prosecution” by an applicant, as outlined in Murabito, it is not the only relevant matter to consider. According to the authorities, s 55(1)(d) imposes a more challenging threshold before the Tribunal would dismiss a proceed for “want of prosecution”. This is appropriate given there is no power for the proceedings to be reinstated as provided for in s 55(1)(c).

  4. We are therefore satisfied we have power to dismiss the four applications in the circumstances of this case. The question is whether we should exercise our discretion to do so.

  5. In this case, GRR (on behalf of the applicants) has made three separate applications for an adjournment. Only one has been granted and this was for a limited period to obtain the evidence from Dr Maze. The applications made by the applicants, just prior to the scheduled seven-day hearing and, on two occasions, just before the commencement of the hearing or at the time of the commencement of the hearing. As already noted, the evidence provided in support of the applications did not comply with NCAT Guideline 3 and, more importantly, the evidence provided was not cogent, could not be tested and, when viewed as a whole, carries little weight.

  6. The applicants have been given several opportunities to appear, through GRR. He was advised about the importance of providing detailed information about his medical conditions in support of the applications. He is not done so.

  7. Because of concerns about whether GRR had a cardiac condition, the Tribunal took the unusual step to adjourn the proceedings and obtain telephone evidence from Dr Maze, with GRR’s consent. GRR was present during this evidence. This evidence did not support GRR’s contention that he had a life-threatening condition and that he could not participate in the hearing which had been scheduled over a period of seven days.

  8. The Tribunal gave GRR options which included a flexible approach to the conduct of the hearing. GRR rejected these options.

  9. The respondent has been put to the expense of preparing for hearing, attending the hearing and arranging for witnesses to be on standby to give evidence. The applicants seek reviews of the decisions made, which they are entitled to do. However, we accept the respondent’s submissions that the respondent should not continue to be required to attend hearings and prepare the case if the applicants do not appear. Ultimately, it is for the applicants to present the case to satisfy the Tribunal as to why the respondent’s cancellation prohibition decisions are in error and why the Tribunal should now make a different decision. If an applicant does not appear or does not agree that the Tribunal may proceed without a hearing, namely on the papers pursuant to s 50 of the NCAT Act, the disputes which are the subject of the proceedings cannot be resolved. This is inconsistent with the guiding principles in s 36 and with the objects of the NCAT Act (s 3), which include the object to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible and to ensure the decisions of the Tribunal are timely, fair, consistent and of a high quality.

  10. Having regard to the above, we decided to dismiss the four applications under review pursuant to s 55(1)(c) of the NCAT Act.

  11. At the end of the hearing, the respondent requested that the Tribunal make provision for the respondent to apply for costs under s 60 of the NCAT Act. The Tribunal therefore made a timetable in accordance with [61(3)] below.

Conclusion and orders

  1. On 9 July 2025, the Tribunal therefore made the following orders in respect of each of the four applications:

  1. The requests by the applicants to adjourn the hearing listed 9 July 2025 to 16 July 2025 is refused.

  2. The applications are dismissed because the applicants failed to appear.

  3. The Tribunal directs as follows:

  1. The respondent is to file and serve any application for costs, including evidence and submissions, on or before 16 July 2025.

  2. The applicant is to file and service any evidence and submissions in response on or before 13 August 2025.

  3. The respondent is to file and service any evidence and submissions in reply on or before 30 August 2025.

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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

Decision last updated: 22 September 2025

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