Booth v An Assessor & Anor - [2019] NTSC 89

CITATION: Booth v An Assessor & Anor [2019] NTSC 89

PARTIES: BOOTH, James Congalton

v
AN ASSESSOR UNDER SECTION 24 OF THE VICTIMS OF CRIME ASSISTANCE ACT 2006 (NT)
and
DIRECTOR, CRIMES VICTIMS SERVICES UNIT

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:CAT 1 of 2019 (21931892)
DELIVERED:  27 December 2019
HEARING DATES:  6 December 2019
JUDGMENT OF:  Grant CJ
CATCHWORDS:

NORTHERN TERRITORY CIVIL AND ADMINISTRATIVE TRIBUNAL – APPLICATION FOR LEAVE TO APPEAL – QUESTION OF LAW
Whether error of law in dismissing application for extension of time for want of prosecution – no non-jurisdictional error of law – no jurisdictional defect by failing to provide procedural fairness or acting in bad faith – Failure to comply with procedures and case management orders on the effective operation of the NTCAT a relevant consideration – Application for leave to appeal dismissed.
Northern Territory Civil and Administrative Tribunal Act 2014 (NT) s 10, s 52, s 53, s 55, s 94, s 96, s 101, s 141
Victims of Crime Assistance Act 2006 (NT) s 44, s 48
Victims of Crime Assistance Regulations 2007 (NT) Sch 3

Allan v Transurban City Link Limited (2001) 208 CLR 167, B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481, Chief Executive Offıcer of Department for Child Protection v Hardingham [2011] WASCA 262, Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28, Craig v South Australia (1995) 184 CLR 163, Development Consent Authority v Phelps (2010) 27 NTLR 174, Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409, Haritos v Commissioner of Taxation (2015) 233 FCR 315, Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367, King v Commissioner for Consumer Protection [2018] WASCA 194, Kirk v Industrial Court (NSW) (2010) 239 CLR 531, Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, Nepean Country Club Ltd v Paterson [2009] VSC 436, Richmond Football Club Ltd v Verraty Pty Ltd [2019] VSC 597, Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72, Ulowski v Miller [1968] SASR 277, White v Northern Territory of Australia (1989) 97 FLR 122, referred to.

REPRESENTATION:
Counsel:
Applicant:Self-represented
Respondents:  L Peattie
Solicitors:
Applicant:Self-represented
Respondents:  Solicitor for the Northern Territory
Judgment category classification:              B
Judgment ID Number:  GRA1919
Number of pages:  27

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Booth v An Assessor & Anor [2019] NTSC 89

No. CAT 1 of 2019 (21931892)
BETWEEN:

JAMES CONGALTON BOOTH
Applicant

AND:

AN ASSESSOR UNDER SECTION 24 OF THE VICTIMS OF CRIME ASSISTANCE ACT 2006 (NT)
First Respondent

DIRECTOR, CRIMES VICTIMS SERVICES UNIT
Second Respondent

CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 27 December 2019)

This is an application for leave to appeal from the decision of the Northern Territory Civil and Administrative Tribunal (the Tribunal) dismissing proceedings brought in the tribunal for want of prosecution.
The application is brought pursuant to s 141 of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT) (NTCAT Act), which provides:

Appeal to Supreme Court
(1)     A party to a proceeding may appeal to the Supreme Court against a decision of the Tribunal on a question of law.
(2)     A person may appeal only with the leave of the Supreme Court.
(3)     On hearing an appeal, the Supreme Court must do one of the following:
(a) confirm the decision of the Tribunal;
(b) vary the decision of the Tribunal;
(c) set aside the decision and:
(i) substitute its own decision; or
(ii) send the matter back to the Tribunal for reconsideration in accordance with any recommendations the Supreme Court considers appropriate;

(d) dismiss the appeal.

An appeal brought under that provision is therefore confined to a question of law and requires the leave of this Court.
The applicant is self-represented and has filed an Application for Leave to Appeal dated 26 August 2019. That document pleads a range of grounds in unorthodox form. So far as those grounds may be discerned, they are:
(a)that the Crimes Victims Services Unit was negligent and unconscionable in assessing an amount of assistance payable to the applicant pursuant to the Victims of Crime Assistance Act 2006 (NT);
(b)that the Tribunal wrongly refused the applicant’s application to the Tribunal seeking redress in relation to the determination of the Crimes Victims Services Unit by denying him natural justice; and
(c)that the Tribunal discriminated against the applicant by refusing to make appropriate accommodations for his disabilites in the prosecution of his proceedings before the Tribunal.
Although the question strictly in issue in this application is whether the Tribunal committed an error of law in dismissing the proceedings commenced by the applicant in that forum, it is necessary to consider the broader background to the applicant’s complaint in order to understand and contextualise the grounds of appeal which have been pleaded.
Background
On 7 August 2014, the applicant was the victim of an assault in which he suffered a fractured right ulna. On 27 January 2015, the applicant made an application for financial assistance under the Victims of Crime Assistance Act for injuries sustained in the course of the assault. The matter was referred for investigation, which included an assessment by a Consultant Neurosurgeon. In his report dated 30 August 2016, the neurosurgeon made the following relevant findings:
Mr Booth suffers right ulnar neuropathy following a fracture of the ulnar in the mid forearm that is a blunt trauma to the ulnar nerve. The features are consistent with the stated cause…. Further investigations are not required. Treatment thus far has been unsuccessful. I have no additional treatment recommendations that are likely to benefit Mr Booth.
…
Details of complaints and disabilities Mr Booth presents with are nerve pain in the distribution of the right ulnar nerve with muscle weakness, wasting and sensory impairment consistent with right ulnar neuropathy.
…
The compensable injury properly listed in the Table Schedule 3, page 30 comes under fractured ulna with continuing disability. Standard amount of financial assistance is $10,200.
…
There is no other category of injury within the Table which may also apply or better describe the injuries sustained.
…
Mr Booth suffers from continuing disability resulting from the assault namely ongoing neuropathic pain and neuropathy with weakness and sensory disturbance of the right ulnar nerve in the mid forearm. Disability is likely to continue indefinitely. I am unaware of any treatment that will benefit Mr Booth at this late stage.
The reference to Schedule 3 is to a schedule to the Victims of Crime Assistance Regulations 2007 (NT), which contains a table of compensable injuries and standard amounts. The table lists various categories of injury (e.g. “Brain damage”, “Burns”, “Head”, “Lower limbs”, et cetera), and prescribes standard amounts of financial assistance for each subcategory of injury under those main categories. The item referred to by the neurosurgeon appears in the category “Upper limbs” in that table, and is expressed as “ulna: fractured ulna (with continuing disability)”. The standard amount of financial assistance for that item is prescribed as $10,200.
Following receipt of that assessment, the first respondent prepared an Assessor’s Notice to Director determining the applicant’s entitlement to an award for financial assistance. That Notice described the assault, the outcome of the criminal proceedings, and the assessment of the applicant’s injuries. The Notice then recorded the decision on the application, including the following relevant matters:
I have considered the Report of the Consultant Neurosurgeon (refer paragraph 4 of the Material Findings) and accept that opinion;
In accordance with regulation 18(1) & (2), financial assistance is awarded for the most serious injury, second most serious injury and third most serious injury, as determined by the amount awarded under Schedule 3 Part 2 of the Regulations, suffered by the applicant....;
…
The applicant is entitled to an award of financial assistance for his compensable injury in the amount of $10,200.00; and
I have determined that the applicant is entitled to reimbursement of financial loss of $86.00 for medical expenses incurred for treatment of his compensable injury (refer paragraph 7 of the Material Findings).
On 12 December 2016, the second respondent provided notice by way of letter to the applicant that an award had been made in the amount of $10,286. That letter also advised of the applicant’s right to apply for a review of the decision to the Tribunal if aggrieved, and attached a copy of the Assessor’s Notice to Director, a copy of the neurosurgeon’s report, and a copy of a publication by the Tribunal outlining the review process, including reference to a requirement that any application be brought within 28 days from the receipt of reasons for the decision.
That notification and the attached materials were received by the applicant on 20 December 2016. On 28 December 2016, the applicant sent an email to the Crimes Victims Services Unit advising that he refused to accept the award of assistance and that he denied the Unit permission to deposit the monies into his bank account. By return email on that same day, the second respondent advised that the decision was made in accordance with the legislative requirements and independent medical opinion, and again advised of the right to make application for review to the Tribunal and the period within which an application for review was required to be made.
If not by that time, then certainly by the time the matter came before the Tribunal, the applicant’s complaint concerning the award of financial assistance was that his injury was assessed under the wrong category. The applicant’s contention is that the ulnar neuropathy diagnosed by the neurosurgeon was properly characterised under Schedule 3 to the Victims of Crime Assistance Regulations as “Disease or other recognised medical illness causing disability (not being a disease or illness of the mind)”, and within the subcategory “permanent disability” attracting financial assistance in the standard amount of $40,000.
More than two years later, on 18 January 2019, the applicant first sought to file an application with the Tribunal for a review of the decision to award financial assistance in the amount determined, and an application for an extension of time within which to apply for that review. The application for review was made pursuant to s 48 of the Victims of Crime Assistance Act, which allows an applicant for an award to apply to the Tribunal for the review of a decision of an assessor notified under s 44(5) of that legislation. The application was brought within the Tribunal’s review jurisdiction. Section 94(3) of the NTCAT Act provides that if the application is for a review proceeding, the person must file the application with the Registrar within 28 days after the “relevant day”. The “relevant day” is defined in s 94(7) of the NTCAT Act to mean, so far as is relevant for these purposes, the day the applicant was notified of the decision by the decision-maker. Section 94(6) of the NTCAT Act provides that the Tribunal may extend the time allowed for making an application for review.
By Response dated 19 February 2019, the respondents’ solicitors sought an order dismissing the application on the basis that it was brought outside the limitation period or, in the alternative, an order confirming the decision of the first respondent.
The applicant was also self-represented in the proceedings before the Tribunal. The applications for review and an extension of time were listed for directions before the President of the Tribunal on 1 March 2019. Prior to that time the applicant had filed a large bundle of hard copy documents with the Tribunal which ran to several hundred pages. The material was in no particular order and not otherwise described by the applicant in a manner which identified its relevance to either the substantive application or the application for an extension of time. At that directions hearing the President made the following orders:
1.    NTCAT is to provide to the applicant and to the respondent/intervenor paginated pdf copies of the documents filed by the applicant on 24 January 2019.
2.    By no later than 28 March 2019 the applicant is to provide to NTCAT and to the respondent/intervenor an electronic copy of a document specifically identifying the documents upon which he relies in support of seeking an extension of time to bring these proceedings.
3.    The document referred to in order 2 shall set out (only):
·the date (if any) of the document relied upon;
·a brief description of the document; and
·the bundle letter and page number for the document in the paginated pdf copy provided under order 1.
4.    By no later than 18 April 2019 the respondent/intervenor is to provide to NTCAT and the applicant an electronic copy of an outline of submissions in relation to the question whether there should be an extension of time to bring these proceedings.
5.    The proceeding is listed for further hearing on Friday 10 May 2019 at 2pm for consideration of the question whether there should be an extension of time to bring these proceedings.
The order under which the Tribunal was to compile a paginated version of the documents in electronic form to be distributed to the parties as PDF documents was obviously made having regard to the applicant’s disadvantage as a self-represented litigant and his limited resources. Those orders also required the applicant to identify which documents he relied on in support of his application for an extension of time. During the course of the directions hearing the applicant was advised that the only requirement was for him to notify by email, handwriting or some other means which of the documents in the paginated bundle he relied on in his application for an extension of time. The orders did not require any commentary or submission at that stage concerning the relevance of the documents or the merits of the application. At the time the orders were made, the applicant took no issue with the requirement they imposed on him.
The applicant subsequently made an application for an enlargement of the time within which to comply with that order, and the time for compliance was subsequently extended by the Tribunal to 25 April 2019. The applicant failed to comply with the order within that extended period, but did engage in a course of correspondence with the NTCAT Registry contending, amongst other things, that the President had engaged in an improper communication with the solicitors for the respondents and that it was a miscarriage of justice in the circumstances to be required to make application for an extension of time within which to make the application for review. The applicant also, on 23 April 2019, delivered a further bundle of documents to the Tribunal. That further bundle of documents made no attempt to identify which of them, or which of the documents in the previously paginated bundle, the applicant relied on in his application for an extension of time.
The applicant also submitted a medical certificate from a general practitioner which stated:
[The applicant] was affected by a medical condition involving the functional use of his right forearm.
He informs me he is required to sort, arrange and handle a few hundred documents in relation to his claim.
Mr Booth is unable to complete this task and it is requested he be excused from performing the same.
It may immediately be seen that this purported certification and request was based on an imperfect understanding on the part of the medical practitioner of what the relevant order required of the applicant. It is also the case that to that point in time the applicant had demonstrated no apparent difficulty in compiling frequent and lengthy communications to the NTCAT Registry using computer-based means.
The matter came back before the President of the Tribunal on 2 May 2019. At that time the President made the following orders:
1.    The application (to the extent one is made) that the President disqualify himself on the ground of actual or apprehended bias is refused.
2.    By no later than Friday 10 May 2019 the respondent/intervenor is to notify NTCAT and the applicant whether the grant of an extension of time to commence these proceedings is still opposed.
3.    The Registrar is directed not to accept or file the bundle of documents provided by the applicant on 23 April 2019.
4.    Any future correspondence from the applicant to the tribunal is only to be regarded as part of the NTCAT file in this proceeding if it assessed by the Registrar as provided in compliance with an NTCAT order or direction or if it otherwise clearly relates to the taking of a step in the proceeding.
The reasons for making orders in those terms published on the following day.[1]
On 9 and 10 May 2019, the applicant filed further applications in the Tribunal, both of which sought orders releasing him from the requirement to comply with the order that he identify the documents on which he relied for an extension of time. Those applications were listed for hearing before another member of the Tribunal on 17 May 2019. When the matter came on for hearing on that day the applicant sought an adjournment on the basis that he was subject to discrimination because there was a security guard in attendance. When the application for an adjournment was refused, the applicant left the hearing. Before doing so, he was given notice by the presiding member that the applications would be determined in his absence.
During the course of his attendance on 17 May 2019, and before absenting himself, the applicant submitted a further medical certificate from the same general practitioner which stated:
[The applicant] is unable to complete the task of organising the paginated files/documents he has received due to the fact that he has very basic computer skills and literacy. This is causing him significant anxiety.
Again, that certification misunderstood the import and effect of the order. The terms of the order did not require the applicant to organise the paginated documents. It required him only to identify by page reference those documents upon which he relied in the application for the extension of time. The reference to the applicant’s computer skills again took no account of the fact that the applicant had demonstrated no difficulty corresponding with the NTCAT Registry by that means.
The applications were dismissed on 20 May 2019, and further programming orders made.[2] The orders made at that time were:
1.    The Ordinary Applications dated 9 May 2019 and 10 May 2019 are dismissed.
2.    By no later than 3 June 2019 the applicant is to provide to NTCAT and to the respondent/intervenor an electronic copy of a document specifically identifying the documents upon which he relies in support of seeking an extension of time to bring these proceedings.
3.    The document referred to in order 2 shall set out (only):
·The date (if any) of the document relied upon;
·A brief description of the document; and
·The bundle letter and page number for the document in the paginated PDF copy already provided to both parties by NTCAT.
4.    By no later than 17 June 2019 the respondent/intervenor is to provide to NTCAT and the applicant an electronic copy of an outline of submissions in relation to the question whether there should be an extension of time to bring these proceedings.
5.    The proceeding is listed for further hearing on 26 June 2016 at 10 a.m. for the consideration of the question whether there should be an extension of time to bring these proceedings.

On 2 June 2019, the applicant filed a further application seeking an adjournment and an extension of time in which to comply with the orders made on 20 May 2019. That application included an assertion that the President and the other member of the Tribunal had engaged in unreasonable, discriminatory, unconscionable, bullying and harassing conduct in the proceedings generally, and in the orders that had been made to that point. The adjournment and the extension of time were granted on the papers to allow the applicant to obtain legal advice. His application to the Northern Territory Legal Aid Commission for aid was subsequently refused.
On 15 July 2019, the applicant filed a further application requesting a further extension of time in which to comply with the programming orders which had been made on 20 May 2019. That application included a request to remove the President, the other member of the Tribunal and the Registrar from any further participation in the matter by reason of prejudice, harassment, intimidation, victimisation and discrimination. The application was listed for hearing on 23 July 2019.
On 22 July 2019, the applicant filed a further application seeking transcript of all of the hearings which had been conducted before the Tribunal to that point in time.
The applications made on 15 and 22 July 2019 were listed for hearing before the other member of the Tribunal on 23 July 2019. At that hearing the applicant provided a letter from the General Manager of Integrated Disability Action Inc dated 23 July 2019. That letter stated:
We have today spoken with Mr James Booth who has explained his situation to us, and it is our belief that due to his permanent disability Mr Booth is unable to comply with your request.
It would appear that Integrated Disability Action Inc is a representative body for people with disabilities and their families, carers, workers in the disability field and those with a general interest in the disability sector. The author’s qualifications were not apparent from the letter. As with the medical certifications, the letter did not disclose an understanding of what the relevant order required of the applicant or why he was unable to comply with that requirement.
Ultimately, the Tribunal member refused the application that he disqualify himself; dismissed the application for an extension of time within which to comply with the orders made on 20 May 2019; dismissed the application for the provision of transcripts of the earlier hearing; and dismissed for want of prosecution the substantive application for review of the decision of the Crime Victims Services Unit made on 12 December 2016. The reasons for that decision were published on 1 August 2019.[3]
The applicant’s substantive claim did not fall for determination in the course of the Tribunal’s consideration of his compliance with programming orders. The Tribunal did not purport to make any final determination of either the application for the extension of time or the substantive application. In dismissing the application for want of prosecution the Tribunal made particular reference to the need for reasonable compliance with the tribunal’s procedures, including caseflow management orders, to ensure that the effective operation of the tribunal is not compromised either generally or in the specific case at hand.
The question whether the applicant’s application for leave to appeal discloses a question of law must be determined against that background.
Question of law
An appeal restricted to a question of law invokes the original jurisdiction of this Court rather than its appellate jurisdiction.[4] As counsel for the respondents submits, the subject matter of the appeal must be the question of law itself, rather than some mixed question of fact and law or a matter which merely “involves” a question of law.[5] The formulation extends to both jurisdictional errors and non-jurisdictional errors of law.[6]
The Court’s function is to determine whether there has been an error of law and, if so, to describe the nature, content and effect of that error. The dispositive powers of the Court extend to confirming or varying the decision below, or setting aside the decision below and either substituting its own decision or remitting the matter back to the Tribunal for determination in accordance with law. Before any intervention will be made, this Court must be satisfied that the error of law was such as to vitiate the decision below.[7] While this Court may substitute its own decision in that event, that does not require or authorise this Court to make findings of fact or to determine questions of mixed fact and law. The Court will only substitute its own decision in circumstances where the correct answer to the question of law is of itself determinative of the matter.
Error of law
The relevant decision in this case was to dismiss the application for want of prosecution. The function of this Court on appeal is to determine whether that decision was infected by an error of law. That does not involve any consideration or determination of the merits of the substantive application to the Tribunal challenging the assessment of financial assistance, or the application for an extension of time.
The Tribunal has express power under s 101 of the NTCAT Act to dismiss an application for want of prosecution. The power is discretionary in nature, and broadly so, and may be exercised according to the circumstances of the case.[8] The breadth of the discretion makes it undesirable to prescribe criteria which condition its exercise.[9]
A non-jurisdictional error of law will rarely arise in the exercise of the power to dismiss for want of prosecution by reason of the narrow compass of the determination and the breadth of the discretion. Error of law of that nature will only arise in this context if there is no evidence to support a finding of fact crucial to the ultimate dismissal; if the tribunal somehow misdirects itself in law; or if the determination could only have been made by an irrational tribunal acting arbitrarily.
The first type of error did not manifest in this case because the ground for the dismissal was a contumelious failure to comply with an order of the tribunal which did not involve a fact-finding process in the usual way. The second type of error did not manifest because there is an express conferral of statutory power to dismiss for want of prosecution, and the determination to dismiss did not involve a question of law such as the meaning of a technical legal term or whether the facts as found fell within the provision of a statutory enactment properly construed. Nor can it be said that in the circumstances which presented, and which had persisted from March until 23 July 2019, that the determination was irrational or arbitrary.
I turn then to consider whether the Tribunal committed some form of jurisdictional error constituting error of law. It is unnecessary for these purposes to determine whether the Tribunal is an inferior court or an administrative tribunal for the purposes of the distinction drawn in Craig v South Australia.[10] That characterisation is largely irrelevant in circumstances where, as stated above, the formulation allowing an appeal to be brought on a “question of law” comprehends both jurisdictional errors and non-jurisdictional errors of law. Where the error asserted would constitute jurisdictional error on the part of an administrative tribunal, it would ordinarily constitute a non-jurisdictional error of law if made by an inferior court.
For the reasons discussed in the context of non-jurisdictional error of law, in determining to dismiss the application for want of prosecution the Tribunal had the relevant jurisdiction and power, and did not identify the wrong issue, ask a wrong question, misconstrue any statutory provision, ignore relevant material, rely on irrelevant material or otherwise make an error of law. The only possibly remaining jurisdictional errors are that the applicant was denied procedural fairness or that the decision was made in bad faith. Both assertions are made in one form or another in the proposed grounds of appeal, and repeated in written and oral submissions by the applicant.
I turn first to deal with the contention that the applicant was denied procedural fairness. As the courts have frequently observed, natural justice and procedural fairness lie at the heart of the judicial process. That process involves the ultimate standard of procedural fairness, which includes notice to the parties of the issues to be dealt with; adequate notice of time and place of hearing; the right to call evidence; the right to legal representation; a decision based on evidence presented at the hearing; and the giving of reasons for decisions. Even in the application of that high standard, the law recognises that a prosecuting party may forego the right to a hearing if it does not comply with the orders and processes of the court. That is recognised by the power to dismiss for want of prosecution, be that power inherent, implied or statutory in nature.
Leaving aside the question whether the Tribunal exercises judicial power, it is no doubt required to act judicially. That requirement is imposed by the statutory framework within which the Tribunal operates, and the content of the requirement is informed by that framework. The objectives of the Tribunal are fixed by s 10 of the NTCAT Act, which provides:
The Tribunal must:
(a) promote the best principles of public administration; and
(b) be accessible to the public by being easy to find and easy to access; and
(c) be responsive to parties, especially to people with special needs; and
(d) ensure that proceedings are processed and resolved as quickly as possible while achieving a just outcome, including by resolving disputes through high-quality processes and the use of mediation and alternative dispute resolution procedures when appropriate; and
(e) keep costs to parties involved in a proceeding to a minimum insofar as is just and appropriate; and
(f) use straightforward language and procedures; and
(g) act with as little formality and technicality as possible; and
(h) be flexible in the way in which it conducts its business and adjust its procedures to best fit the circumstances of a particular proceeding or a particular jurisdiction.
There may in some circumstances be a tension between the achievement of those different objectives. The need to be responsive to a litigant’s needs may sometimes come into conflict with the requirement to ensure that proceedings are processed and resolved as quickly as possible while achieving a just outcome. Similarly, what is necessary to accommodate one litigant’s needs may sometimes increase the costs incurred by another party. In any given case, the Tribunal has sufficient flexibility to allow procedures to be fashioned to accommodate any competition between objectives.
That flexibility is reflected in the fact that the Tribunal may determine its own procedures[11], subject to the overarching principle that it must act fairly and according to the substantial merits of the matter[12]. There is an express requirement that the Tribunal must comply with the rules of natural justice. That requirement is qualified and informed by provision that the Tribunal may inform itself in any way it considers appropriate; is not bound by the rules of evidence; and must act with as little formality and technicality, and with as much speed, as the requirements of the statute and a proper consideration of the matter permits.[13] The procedures adopted may vary in the consideration of different cases, having regard to such matters as the nature of the inquiry, its subject matter, the characteristics of the litigants and the significance of the consequences which may flow from the decision.
It is significant in the context of this matter that the Tribunal need only take “reasonable steps” to ensure that the parties have had the opportunity to be heard and that all relevant material is disclosed to enable it to decide the relevant facts in issue[14]; and that the Tribunal may give a direction at any time in a proceeding and do whatever is necessary for the expeditious and fair conduct of the proceeding[15].
The content of the requirements of procedural fairness in this case, and the exercise of the power to dismiss for want of prosecution, fall to be determined having regard to that statutory framework.
The applicant was self-represented in the proceedings below. It may be accepted that this disadvantage required particular care to be taken to ensure that he had a reasonable and adequate opportunity to be heard. As the New South Wales Court of Appeal has observed, procedural fairness embraces the “notion that the litigant has understood the proceedings before him or her and has had an adequate opportunity given to him or her, considering his or her attributes, qualities and deficiencies which render the litigant more or less able to vindicate his or her rights in court”.[16] However, in both courts and tribunals, it is necessary to provide only such guidance and accommodation to a self-represented litigant as is necessary to accord the reasonable opportunity to be heard. It was also incumbent on the applicant in this case to take advantage of the opportunity to be heard, including complying with such reasonable requirements as might be imposed by the Tribunal. As Kitto J observed in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation:[17]
What the law requires in the discharge of quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances. And it is not a one-sided business.
I have already described the steps taken by the Tribunal in converting the materials filed by the applicant into paginated PDF format. There is no suggestion that the applicant was unable to access that material on his computer. The requirement that the applicant identify the documents relevant to his application for an extension of time was necessary to ensure that the Tribunal was apprised of his case in that respect; that the Tribunal was not forced into the position of having to make assumptions as to which of the hundreds of documents filed by the applicant he relied on for that purpose; and that the respondents had opportunity to meet the applicant’s argument in that respect. The amount of time allowed to the applicant to identify the documents on which he relied, and the Tribunal’s response to his failure to do so, was reasonable having regard to the availability of the paginated bundles which had been provided by the Tribunal, the relative ease of the task he was required to undertake, and his obvious familiarity with the documents.
In my assessment, the Tribunal took reasonable steps to afford the applicant opportunity to be heard, and it was the applicant’s obdurate refusal to meet even the threshold requirement that he identify the documents he relied on in the application for the extension of time which ultimately led to the dismissal for want of prosecution. There was in that dismissal no failure to provide procedural fairness. In making that determination, the Tribunal’s reasonable concern to have the matter resolved expeditiously, in both its institutional interests and the interests of the parties, was relevant.
It is also necessary to make some mention at this point of the applicant’s complaint concerning discrimination. That allegation is made on the basis that by making an order with which the applicant could not physically comply, the Tribunal did not accommodate his disabilities and so discriminated against him. While it may be accepted that the applicant has the physical disabilities described in the neurosurgeon’s report, it is more difficult to accept that those disabilities precluded him from complying with the programming orders for the reasons already described above. Even if they did, that might ground a cause of action under the anti-discrimination legislation, but would not give rise to any discrete question of law in the context of this application for leave to appeal. This complaint is better treated as a particular of the assertion that the applicant was denied procedural fairness by the imposition of a requirement he could not meet. As I have already found, he was not.
I am also unable to discern any bad faith or partiality on the part of the Tribunal in its determination to dismiss the application for want of prosecution, or at any stage of the proceedings. The applicant’s conduct during the course of the proceedings is described and recorded in the three decisions of the Tribunal to which I have already made reference. That description is largely consistent with my observations of the applicant’s presentation and proclivities during the hearing of the application for leave to appeal to this Court. In my assessment, the Tribunal demonstrated an appropriate level of sensitivity to the disadvantages faced by the applicant as a self-represented litigant, and exercised considerable forbearance in the face of his various allegations of improper conduct on the part of Tribunal members and his continuing refusal to take the simple and preliminary step necessary for the fair, efficient and efficacious determination of his application.
Leave to appeal
Leave to appeal should be granted only if it is in the interests of justice to do so in all the circumstances of the case. There are no rigid or exhaustive guidelines governing that enquiry. When the leave sought is in relation to an appeal on a question of law, it is ordinarily incumbent on the applicant to establish that there is sufficient doubt about the question of law to justify the grant of leave, and that a substantial injustice would result if the error of law is not corrected.[18]
Even allowing for the very significant restrictions and limitations on the right to appeal to this Court from the Tribunal, this Court would ordinarily be slow to refuse an application for leave to appeal by an unrepresented litigant in circumstances where it appeared that refusal might give rise to some substantive injustice. During the course of the hearing before the Tribunal the applicant was given opportunity to explain the reasons for the delay in bringing the application for review, and to identify the documents on which he relied in support of the application for an extension of time. The applicant was afforded the same opportunity during the hearing of the present application for leave to appeal. The reasons the applicant advanced for the delay may be summarised as follow:
(a)the applicant wanted to pursue further medical treatment and opinion in order to determine whether the effects of the injury could be ameliorated by surgery or some other means; and
(b)the applicant needed to gather medical material in support of his challenge to the basis on which the award of assistance was made.
The applicant’s challenge to the award of assistance is predicated on the Consultant Neurosurgeon’s description of his injury as “ulnar neuropathy”, and the contention that the injury so described was a “disease or other recognised medical illness causing disability” within the meaning of Schedule 3. The applicant was provided with a copy of the neurosurgeon’s report at the time the decision was notified. The report provided expressly that there was no treatment which would benefit the applicant at that time, and by implication that the disability was permanent. The subsequent medical reports adverted to by the applicant and received during both the proceedings before the Tribunal and the hearing of the present application add nothing further to that opinion.
Even leaving aside his failures to identify the documents on which he relied on the application for the extension of time in accordance with the Tribunal’s programming orders, the applicant has failed to identify on even a prima facie basis any satisfactory explanation for the delay in commencing review proceedings. It also follows that the dismissal for want of prosecution did not result in his cause of action becoming statute-barred. It was already two years out of time when the application was made.
Disposition

The application for leave to appeal is dismissed on the basis that the applicant has not established sufficient doubt about any question of law to justify the grant of leave. Had leave not been required, I would have dismissed the appeal in any event.
During the course of submissions counsel the respondents indicated that they would not be seeking costs in the event the defence of the application was successful. Accordingly, I make no order as to costs.

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[1] Booth v An Assessor under s 24 of the Victims of Crime Act [2019] NTCAT 11.

[2] Booth v An Assessor under s 24 of the Victims of Crime Act (No 2) (Unreported, NTCAT, 20 May 2019).

[3] Booth v An Assessor under s 24 of the Victims of Crime Act (No 3) [2019] NTCAT 21.

[4] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72; Chief Executive Offıcer of Department for Child Protection v Hardingham [2011] WASCA 262; Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409; Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [63].

[5] B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; Nepean Country Club Ltd v Paterson [2009] VSC 436.

[6] Allan v Transurban City Link Limited (2001) 208 CLR 167 at [11]; Haritos v Commissioner of Taxation (2015) 233 FCR 315 at [62].

[7] See Development Consent Authority v Phelps (2010) 27 NTLR 174 at [11].

[8] See Ulowski v Miller [1968] SASR 277 at 281.

[9] See White v Northern Territory of Australia (1989) 97 FLR 122 at 127.

[10] Craig v South Australia (1995) 184 CLR 163; cf Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [67]-[70].

[11] NTCAT Act, s 52.

[12] NTCAT Act, s 53(1).

[13] NTCAT Act, s 53(2).

[14] NTCAT Act, s 55.

[15] NTCAT Act, s 96(1).

[16] Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367 at [6].

[17] Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504.

[18] King v Commissioner for Consumer Protection [2018] WASCA 194 at [166]; Richmond Football Club Ltd v Verraty Pty Ltd [2019] VSC 597 at [12].