Australia, July 24 -- New South Wales Land and Environment Court issued text of the following judgement on June 24:

1. On 30 May 2025, the Appeal Panel published its reasons for decision in FZK v Secretary, Department of Communities and Justice [2025] NSWCATAP 120 (the Reasons) refusing the Appellant's application that Judge Seiden SC recuse herself on the grounds of actual and apprehended bias. The members of the Appeal Panel delivered separate reasons for the agreed decision made on 2 May 2025.

2. Subsequently, the Appellant sought a correction to paragraph 13 of the Reasons, pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). Paragraph 13 is in that part of the Reasons delivered by Judge Seiden SC. Paragraph 13 of the Reasons is as follows:

"The appellant's primary case was one of actual bias. The appellant submitted that by making false and intimidatory statements, I exhibited extreme prejudice against her. It followed, so it was submitted, that I could not decide the appeal impartially."

3. The Appellant submits that this paragraph requires correction because:

"there is an obvious error at [13] it says I submitted '...extreme prejudice...' of which I never submitted in writing... or in oral submissions. I submitted it is judicial misbehaviour that warrants the removal of office let alone actual bias."

4. We pause to note that both parties were afforded the opportunity to make submissions in relation to whether it was appropriate to dispense with a hearing of this application and both parties consented to dispensing with a hearing. We are satisfied that this is in accordance with the requirements of s 50 of the NCAT Act and the procedural rules. Further, as the Appellant seeks a correction for what is said to be an "obvious error" in the Reasons and the appeal the subject of the Reasons was recently heard, we are satisfied that this is an appropriate case in which to dispense with a hearing; and we dispense with a hearing.

Consideration

5. The basis of the recusal application is detailed at [9] to [12] of the Reasons. The consideration of the issues by the Deputy President commences at [35] and those of the Senior Member commences at [77] of the Reasons.

6. Section 63 of the NCAT Act relevantly provides:

63 Power to correct errors in decisions of Tribunal

(1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member.

...

(3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where-

(a) there is an obvious clerical or typographical error in the text of the notice or statement, or

(b) there is an error arising from an accidental slip or omission, or

(c) there is a defect of form, or

(d) there is an inconsistency between the stated decision and the stated reasons, or

(e) there is an inconsistency between the name of a person stated in the text of the notice or statement and the name stated on the person's birth certificate or other form of identification.

7. Section 63 of the NCAT Act is the statutory version of the common law "slip rule" and is purposed to avoid injustice by permitting the rectification of errors or omissions in the orders or reasons of a court or tribunal: Place v Department of Finance, Services and Innovation (No. 2) [2017] NSWCATAD 21 at [9] citing Batagol & McGill v Monk [2000] VSC 48 at [17]. The Tribunal's power to correct its orders and reasons applies in cases of "obvious error": s 63(1). The power "has no application to alleged mistakes that are a consequence of a deliberate decision": Lawrence v Ciantar (No 2) [2020] NSWCA 186 at [10], citing Expo Aluminium (NSW) Pty Ltd v Pateman Pty Ltd (No 2) [1991] NSWCA 92.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19785efe63de749490cdeab5)

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