Procedural Fairness: What you plead v The “But I wanted to say something else” Excuse

Key Points: 
  • If a party to NCAT proceeding agrees to the matter being determined on the papers on the condition that it can make further submissions if unsuccessful, NCAT must not give judgment before listening to those further arguments.
  • Although this recent decision of Infrastructure NSW & Department of The Premier and Cabinet v Mookhey [2018] NSWCATAP 213 stresses the importance of procedural fairness, it arguably conflicts with the objective of tribunals (fair, just and quick dispute resolution).

Procedural fairness requires a court or tribunal to give each party an equal say. However, the New South Wales Civil and Administrative Tribunal Appeal Panel’s (‘Appeal Panel’) recent decision has taken an expansive view of what justice requires to allow a party to adequately plead its case. The Appeal Panel decided that a tribunal cannot give judgment in a matter if they could have reasonably expected a party to make further submissions.


This matter was the appeal from Mookhey v Infrastructure NSW [2017] NSWCATAD 345. In that case, the Applicant (Mookhey) sought access to government information by way of an Access Application, under the Government Information (Public Access) Act 2009. The Applicant was refused access by the Respondent on the basis that the information requested was Cabinet Information.  After applying to the New South Wales Civil and Administrative Tribunal (‘NCAT’) to review this decision, NCAT decided that the impugned information was not cabinet information because that was not its dominant purpose.

Although the Appellant accepted NCAT’s decision that the information was not cabinet information (discussed in an earlier article), the appellant submitted that it was denied procedural fairness by NCAT when it came to this decision. This claim was founded on the Appellant’s argument that it was not permitted to make further submissions even though it had indicated its intention to do so if its primary argument failed. This intention was expressed in a discussion between the parties and a tribunal member.

The Discussion

Prior to NCAT’s decision being made ‘on the papers’, both parties and a Senior Member of NCAT attended a case conference.  In the conference, the Applicant submitted that it was happy to have the matter determined on the papers. The Respondent indicated that it would consent to the matter being determined on the papers on the condition that if its initial argument was refused, it could present further submissions. The Senior Member agreed with this approach.

The Decision

Following this exchange, NCAT reviewed the Access Application on the papers and decided in the Applicant’s favour. The Appeal Panel determined that NCAT’s approach was incorrect.

After reviewing evidence of the prior discussion, the Appeal Panel decided that NCAT was not permitted to ‘finally determine the dispute on the papers’ without allowing the Appellant to make further submissions. This was because NCAT knew, but ignored the fact, that the Appellant had agreed to have the matter determined on the papers on this basis.

The Appeal Panel determined that procedural fairness required the Appellant’s other submissions to be heard. The Appeal Panel remitted the matter to NCAT for determination on the Appellant’s other submissions.

NB: NCAT will soon hear Infrastructure NSW’s alternative arguments for why the impugned information should not be disclosed and provide a determination on these arguments. 

If, as the Appeal Panel found, the Appellant had only agreed to have the matter determined on the papers on the condition that if they were unsuccessful they could make further submissions, the Appeal Panel’s decision is probably correct. 

What is odd about this case is that the Appellant was allowed to impose their condition and that a Senior Member agreed to it.  If there were further submissions to be made why did the Appellant choose not to include them in their original submissions?

Allowing them to make further submissions in these circumstances is hardly efficient and inconveniences the original Applicant and NCAT.

Post by John Kell and Joshua Yan

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