Bezzina v Nigel

Notice of Appeal and Reply to Appeal

1. In his Notice of Appeal, the appellant identified two grounds of appeal as follows: "1. The Tribunal Member erred in not reasonably satisfying himself that the Application or Notice of Hearing had been brought to the attention of the Appellant as it had been served on an address at XXXC Cranbrook … which was an address the appellant had vacated in or July 2013. 2. The Appellant had been denied procedural fairness as the Appellant was not aware of the hearing and, not being aware of the hearing did not attend the hearing and put before the tribunal the following matters in answer to the Respondent's case: that prior to entering into the Contract with the Respondent, informed the respondent that the building had a potential moisture problem and advised the Respondent to provide adequate ventilation to the flooring otherwise there would be a problem with the flooring; that on 12 August 2014 there was flooding in the hallway of the Respondent's premises which caused the timber flooring to expand and buckle; the respondent failed to address the moisture problem by the installation of adequate ventilation.
2. In his Reply to Appeal, the respondent said he supported the orders of the Tribunal. He said the orders were made on the basis of a breach of s 60 of the Australian Consumer Law when they could also have been made on the basis of a breach of s 61 of that Law. In Reply to the appellant's grounds of appeal, the respondent said: 1. The appellant was properly served by me in accordance with the rules of the Tribunal in that I left the initiating application with him at his registered business address: rule 13(2)(c)(ii). 2. The appellant was in any event aware of the proceedings and chose not to participate. There could therefore be no denial of procedural fairness. 3. Although these are questions of fact and not questions of law, I deny that: the Appellant at any time to completing the installation work undertaken by him informed me of a potential moisture problem or that I was required to ensure adequate ventilation to the flooring; that the water spilled on the floorboards on or about 12 August 2014 was cause of the defects in the flooring; and that the obligation of accounting for moisture and ventilation of the flooring lay on anyone other than the Appellant.

Material before the Appeal Panel

1. In support of his appeal the appellant filed and served detailed written submissions. Attached to the submissions was a statutory declaration of Mr Zhiqiang (Dennis) Zheng (dated 14 December 2015); a copy of the appellant's tax invoice to the respondent (dated 1 May 2013)(the appellant's 2013 invoice); a copy of the applicant's current ABN details as per the Australian Business Register (Cth), a copy of a Telstra Bill for the period 22 March to 22 April 2014 in the name of the applicant's wife; a copy of an email to the applicant's wife from TPG concerning the cancellation of her account on 3 November 2013; a copy of a letter from All Property Conveyancing (APC) (dated 16 December 2015) confirming that the applicant and his wife sold their Cranebrook property on 12 August 2013 (attached to that letter was a copy of the front page of the contract for sale); a copy of an email Mr Leslie Sheather sent to the applicant's wife on 26 October 2015 and 5 references.
2. At the hearing the appellant also tendered, without objection, a letter from the current owner of the Cranebrook property dated, 16 December 2015.
3. The respondent objected to the tender of Mr Zheng's statutory declaration, as he was unavailable for cross-examination. We allowed that objection and have had no regard to Mr Zheng's statutory declaration for the purpose of this appeal.
4. The respondent also filed and served detailed written submissions in reply. Attached to the respondent's written submission was a statutory declaration of Mathew Muggeridge (dated 14 January 2016), a statutory declaration of the respondent (dated 16 January 2016), a copy of an email exchange (dated 31 December 2015) between the respondent and TPG concerning the TPG email account of the applicant's wife and a number of photographs.
5. Also before the Appeal Panel was the file of the proceedings below (File no GEN 15/37862), which included a copy of the material filed by the respondent in support of his application. This material included an 11 page expert report of Mr Dennis Zheng, dated 14 August 2015.
6. The appellant and the respondent each gave sworn evidence at the hearing of the appeal. We have dealt with that evidence below.

Legislation

1. Subsection 38(1) of the Civil and Administrative Tribunal Act provides that: "The Tribunal may determine its own procedure in relation to any matter for which the Act or the procedural rules do not otherwise make provision."
2. Subsection 38(2) of the Civil and Administrative Tribunal Act provides that: "The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice."
3. Subsection 38(5)(c) of the Civil and Administrative Tribunal Act provides that the Tribunal is required to take such measures as are reasonably practicable: "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in proceedings."
4. Part 3 of the Civil and Administrative Tribunal Rules 2014 makes provision for electronic lodging and issuing of documents by means of an electronic case management system (ECM) if it is available. The Consumer and Commercial Division of the Tribunal has an electronic case management system. In this case, the respondent's (applicant below) application was lodged on that system and the letters issued by the Divisional Registrar of the Division to the parties in regard to that application were generated from that system and forwarded by post.
5. Part 4 of the Civil and Administrative Tribunal Rules 2014 deals with "Service" of documents. Rule 13 in this Part relevantly provides as follows: 13 Service, giving and lodgment of notices or documents (1) Application of rule This rule applies for the purposes of each of the following: (a) the Act and the statutory rules under the Act, (b) the Administrative Decisions Review Act 1997 and the regulations under that Act. (2) Means for service or giving of notices and documentsA notice or document may be served on or given to a person or body: (a) by means of personal service, or (b) by posting a copy of the notice or document, addressed to the person or body: (i) to the person's or body's address for service, or (ii) if the person or body does not have an address for service, to the person's or body's business or residential address (or the business or residential address last known to the person or body serving the notice or document), or (c) by leaving a copy of the notice or document, addressed to the person or body: (i) at the person's or body's address for service, or (ii) if the person does not have an address for service, at the person's or body's business or residential address (or the business or residential address last known to the person or body serving the notice or document), or (d) … (e) … (f) … (g) in the case of a person or body that has consented to electronic service by means of an email address or mobile phone number specified by the person or body - by transmitting the notice or document in an electronic format, addressed to the person or body, to that address or number, or (h) …, or (i) in such other manner as the Tribunal or a registrar may direct in a particular case. (3) Service, giving and lodgment of documents with Tribunal… (4) When notice or document taken to be served, given or lodgedUnless the contrary is proved, the time at which a notice or document is taken to be served, given or lodged is: (a) in the case of a copy of a notice or document that is posted - at the end of the fourth working day after the date on which the notice or document was posted to the person, or (b) … (c) … (d) in the case of a notice or document that is served electronically in accordance with subrule (2) (g): (i) if the notice or document that is served has been filed in, or issued by, the Tribunal by means of an ECM system referred to in Part 3 - at the time provided by clause 13 of Schedule 1 to the Electronic Transactions Act 2000, or (ii) if the notice or document that is served has not been filed in, or issued by, the Tribunal by such means - at the time provided by section 13A of the Electronic Transactions Act 2000.
6. Clause 13 of Schedule 1 of the Electronic Transactions Act 2000 deals with documents that are served electronically after 5.00pm on any day or on a Saturday, Sunday or public holiday. Such documents are taken to have been served on the following day that is not a Saturday, Sunday or public holiday.
7. Rule 15 makes provision for substituted service and provides: 15 Substituted and informal service generally (1) If a document that is required or permitted to be served on a person in connection with any proceedings before the Tribunal: (a) cannot practicably be served on the person, or (b) cannot practicably be served on the person in the manner provided by law, the Tribunal or a registrar may direct that, instead of service, such steps be taken as are specified by the Tribunal or registrar for the purpose of bringing the document to the notice of the person concerned. (2) The Tribunal or a registrar may direct that the document be taken to have been served on the person concerned on the happening of a specified event or on the expiry of a specified time. (3) If steps have been taken, otherwise than under a direction under this rule, for the purpose of bringing the document to the notice of the person concerned, the Tribunal or a registrar may direct that the document be taken to have been served on that person on a date specified by the Tribunal or registrar."
8. Rule 14 of the Civil and Administrative Tribunal Rules makes provision for proof of service as follows: "14 Proof of service of document If a party to proceedings before the Tribunal is required to serve a document on another person by the Act or these rules, the Tribunal or a registrar may require the party to furnish the Tribunal with such proof of its service as the Tribunal or registrar may require."
9. Rule 34 of the Civil and Administrative Tribunal Rules 2014 makes provision for an ex parte hearing in proceedings in the Consumer and Commercial Division: "35 Ex parte proceedings in Consumer and Commercial Division (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Where a hearing is held for proceedings to which this rule applies, the Tribunal may proceed to hear the proceedings in the absence of a party who has failed to attend the hearing if: (a) the Tribunal is satisfied that notice of the hearing was duly served on the party, or (b) the Tribunal, being satisfied that service of notice of the hearing on the party has been duly attempted or having given directions under rule 15 to bring it to the notice of the party, considers that justice requires that the matter be dealt with in the absence of the party. (3) If proceedings to which this rule applies are adjourned by the Tribunal in the absence of a party, a registrar is to give notice (or direct that notice be given) of the time and place of the adjourned hearing to the absent party."

Rules of natural justice

1. As pointed out by Mark Aronson and Mathew Groves "Judicial Review of Administrative Action" (5th ed 2013, Thomson Reuters), at [7.20], there are two traditional rules of natural justice - the hearing rule and the bias rule. The rules of natural justice (also known as rules of procedural fairness) are generally describes as being procedural in that they address the manner in which a decision is made and not the merits of the decision itself.
2. The hearing rule requires a decision maker to hear a person before making a decision affecting the interests of that person. Subsection 38(5)(c) is reflective of this rule. In order to be heard a person must be given prior notice of the hearing and that notice must be given within a reasonable time prior to the hearing: see Kline v NSW Land and Housing Corporation [2014] NSWCATAP 41, at [64] and Aronson at [8.140]. That is, prior notice is critical and fundamental to a person's right to be heard.
3. In CKG v Public Guardian [2014] NSWCATAP 32 at [14] the Appeal Panel made the following in regard to the Tribunal's obligations to accord procedural fairness: " … the Tribunal is bound to accord procedural fairness (or 'natural justice') to parties to its proceedings, and, in addition to persons whose interests, rights or legitimate expectations are affected: see, generally, Hess v Public Guardian [2005] NSWADTAP 43 at [20] ff. The duty derives from the common law, and is reinforced by s 38(2) and (5) of the NCAT Act.
4. In Kline, at [66], the Appeal Panel held that a notice of appeal asserting an entitlement to "a reasonable opportunity to be heard" under subs 38(5)(c) raises a question of law: see also ZG v NSW Trustee and Guardian [2016] NSWCATAP 19 at [25]-[26]. At [67] the Appeal Panel went on to state that a breach of the entitlement to "a reasonable opportunity to be heard" (or hearing rule): 67 … [ordinarily] means that there has been an erroneous decision which should, under s 81 of the Act, be set aside or quashed, with the appeal allowed, save in rare circumstances, such as where the breach would have made no difference to the outcome of the case: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at [28]; Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 at [40]-[44].
5. In Brennan v New South Wales Land and Housing Corporation; New South Wales Land and Housing Corporation v Brennan [2011] NSWCA 298; (2011) 83 NSWLR 23 the Court of Appeal considered the application of the hearing rule in the context of the provisions of the former Consumer Trader and Tenancy Tribunal Act 2001 (repealed)(the repealed Act) and Consumer Trader and Tenancy Tribunal Regulation 2009 (repealed)(the repealed Regulation). At [63], Basten JA made the following remark: "63 There was discussion in the course of the hearing of the appeal as to whether the content of procedural fairness might be affected by the circumstances of the particular case. Although there are statements in the authorities which might be read as supporting such a view, in principle, the requirements of procedural fairness are identified as a matter of law depending upon the institutional setting in which decision-making is to operate, the relevant statutory scheme, the subject matter of the decision and, as part of that analysis, the seriousness of the potential consequences of an adverse decision."
6. In Brennan's case, the Consumer, Trader and Tenancy Tribunal had also dealt with the applicant's application on an exparte basis, pursuant to cl 30 of the repealed Regulation. That clause was similar in effect to rule 35 of the Civil and Administrative Tribunal Rules in that the Tribunal needed to be satisfied that notice of the hearing had been served on the absent party before a matter could proceed and determined on an ex parte basis.
7. The issue in Brennan was however, whether the "deemed" service of a notice of hearing under cl 50(4) of the repealed Regulation satisfied the "procedural fairness" (i.e. the hearing rule) to which a party to proceedings before the Consumer, Trader and Tenancy Tribunal was entitled. At [17], Giles JA, held that cl 50(4) of the repealed Regulation did not overcome the absence of procedural fairness by reason of a failure of party to receive notice of a hearing. Clause 50(4) provided that "service by post is taken to have been effected on a person at the end of the fourth working day after the date on which the document was posted to the person."
8. Basten JA (Handley AJA agreeing), held that cl 50(4) created a practical inconsistency with s 76(1)(b) of the Interpretation Act 1987 and a proper resolution to that conflict was that the latter should prevail: see at [54] and [110].
9. As noted above, the equivalent provision to the repealed cl 50(4) in the Civil and Administrative Tribunal Rules is rule 13(4)(a). Unlike cl 50(4) of the repealed Regulation, rule 13(4)(a) expressly provides that the deeming provision in that subclause is subject to the contrary being proven, which is in similar terms to s 76(1)(b) of the Interpretation Act.
10. In Brennan there was no dispute that Ms Brennan had not received notice of the hearing before the Consumer Trader and Tenancy Tribunal and that had she received notice she wanted to be heard. At [81], Basten JA made the following remarks: "81 This was a case in which, as a matter of fact, Ms Brennan was not accorded a reasonable opportunity to appear at and present her case at the hearing fixed by the Tribunal. For that omission, neither the parties nor the Tribunal were in any relevant sense at fault. Nevertheless, there was a breach of the obligation to accord procedural fairness and, for that reason, the decision of the Tribunal was properly set aside by the primary judge, although without due consideration of the operation of the statutory scheme."
11. In our view, subs 38(2) and (5) of the Civil and Administrative Tribunal Act and rule 13(4)(a) and 35 of the Civil and Administrative Tribunal Rules are clear expressions of Parliament's intent that the hearing rule applies to proceedings before the Tribunal.

Issues for determination

1. There are essentially two issues for determination in this appeal.
2. The first issue for determination is whether the appellant received prior notice of the hearing on 2 October 2015. This is essentially a question of fact.
3. The second issue is whether, in the event the appellant establishes that he did not receive prior notice of the hearing, should the Appeal Panel allow the appeal and set aside the decision of the Tribunal below. As noted by the High Court in Stead v State Government Insurance Commission [1986] HCA 54, (1986) 161 CLR 141 at p144, not every departure from the rules of natural justice will entitled an aggrieved party to a new trial. The question to be asked is whether there has been a miscarriage of justice, namely "would further argument possibly have made any difference." At p145, the High Court went on to say: "Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance could have made no difference."

Did the appellant receive prior notice of the hearing?

The proceedings below

1. As we have noted, the respondent (applicant below) lodged an online application with the Tribunal, on 11 June 2015. The respondent's claim was for an amount of $3,500.00. In that application the respondent provided the appellant's (respondent below) as per the appellant's 2013 invoice (i.e. the appellant's Cranebrook address, landline telephone number and TPG email address were provided).
2. The Tribunal wrote to each party, on 12 June 2015, to advise that the matter was listed for "Conciliation and Hearing (Group List) on 23 June 2015, at 9:15 am." The letter to the appellant was addressed to his Cranebrook address.
3. The Tribunal file records the respondent appearing on 23 June 2015 and that there was no appearance by the appellant. The Tribunal file records the Tribunal Member having adjourned the hearing on this day to a date to be fixed by the Division Registrar. Orders were also made for filing and serving of evidence, by each party. On this day, a letter was also sent to each party advising them of the orders made that day. Again the letter to the appellant was addressed to his Cranebrook address.
4. The Tribunal file contains a document entitled "Information Application", dated 30 June 2015, from the Tribunal's Registry to Fair Trading seeking a Company Extract and Business Name Extract in the name of "Done Tile Flooring". The response, dated the same day, stated there was no record of a Company Extract or Business Extract for that name.
5. On 1 July 2015, the Tribunal wrote to each party, informing them that the matter was listed for hearing on 5 August 2015 at 9:15 am. The letter to the appellant was addressed to the Cranebrook address.
6. On 7 July 2015, the respondent (applicant below) sent an email to the Tribunal seeking an adjournment of the hearing for three weeks so that he could obtain an expert report. On 16 July, the Tribunal wrote to the appellant, at his Cranebrook address, informing him of the extension of time application and requesting a written response by 21 July 2015. An extension of time was subsequently granted and, on 30 July 2015, the Tribunal wrote to each party to inform them of this and that the hearing of 5 August 2015 had been vacated. The letter to the appellant was addressed to his Cranebrook address.
7. On 4 August 2015, the Tribunal wrote to each party to inform them that the matter had been set down for hearing, on 18 August 2015, at 1:15 pm. The letter to the appellant was addressed to the Cranebrook address.
8. On 18 August 2015, the matter came before Senior Member, Dr J Lucy. The Tribunal file records the respondent as having appeared on this day, but there was no appearance by, or for the appellant. On this day, the Senior Member granted the respondent's application for an extension of time to file and serve his expert report and adjourned the hearing of the matter to a date to be fixed by the Registrar. Directions were made in regard to the filing and serving of the respondent's expert evidence and for the appellant to respond to that evidence. Senior Member Dr Lucy also made the following order: "3. The Tribunal is satisfied notice of the hearing was duly served on the respondent and has proceeded in the respondent's absence. Reasons I am satisfied from the applicant's evidence that the address of the respondent is current, as the applicant conducted a search of the respondent's address in the days following the previous hearing. The Tribunal's file shows that a notice of the hearing was sent to the respondent on 4 August 2015. For abundant caution, I have directed the Registry to provide these orders and reasons to the respondent by email and mail."
9. On the same day, Senior Member Dr Lucy published reasons for decision in regard to the respondent's application for an adjournment and an extension of time. It is unnecessary to repeat these, as they are not relevant to the issues in this appeal.
10. A copy of the orders and reasons for decision was sent to the appellant that day, by mail, to his Cranebrook address.
11. On 25 August 2015, the Tribunal wrote to each party and advised that the respondent's application was listed for hearing, on 2 October 2015, at 1:15pm. The letter to the appellant was addressed to his Cranebrook address, but not to his email address.
12. There is no question that the Tribunal wrote and sent letters to the appellant to notify him of the proceedings initiated by the respondent and also notifying him of the hearing on 2 October 2015. These letters were sent by mail to the address provided by the respondent in his application. And while rule 13(4)(a) of the Civil and Administrative Tribunal Rules provides that these letters/notices are taken to have been served on the appellant at the end of the fourth working day after the day on which they were posted, on the basis of the evidence before us we are satisfied the appellant has proven the contrary in that they were not served on him.

The evidence on appeal

1. It is the evidence of the appellant that he only became aware of the proceedings when he received a letter from the respondent, on 9 October 2015. The letter was addressed to him at XXXXX Hobartville, NSW 2753. Contained within the letter was a copy of the orders made on 2 October 2015 and the Tribunal's Reasons for Decision. Subsequently, on 16 October 2015, the appellant received a letter from the Sheriff of New South Wales, informing him that: "the Local Court has issued a Writ for levy of Property … for enforcement against you, in respect of an unpaid Judgement Debt owing to Jamie Nigel." The amount owing was stated to be $22,008.22.
2. It was the appellant's evidence that the Hobartville address was that of his wife's parents. He said they had moved there after they sold their Cranebrook home, in August 2013, as the settlement on their new home, at Yarramundi NSW 2753, was not due until some two months later. Once they did settle on their new home they moved into the home and they have lived there for the last two years. That is, the appellant's evidence was that he has not lived at Cranebrook since August 2013. The appellant's evidence is supported by the contract for the sale of the Cranebrook home and the letter from the appellant's conveyancer.
3. Since selling the Cranebrook home it has been resold to another family. This evidence is supported by a letter the appellant obtained from the current owners. In that letter, the current owners state that any mail they received, which was addressed to the appellant they have marked "return to sender", as they had no forwarding address for the appellant.
4. It was the evidence of the respondent that when he commenced his proceedings against the appellant, the only address he had was that contained on the appellant's 2013 tax invoice; namely the Cranebrook address. The respondent said that, on 11 July 2015, he personally placed a copy of his application before the Tribunal below "at the Cranebrook address." He also said he had sent all relevant material to the appellant, by email, to the TPG email address identified on his 2013 tax invoice.
5. It was the evidence of the appellant that the TPG email address/account was in the name of his wife as she receives and deals with all emails relating to his business. He explained his wife cancelled this email address/account in November 2013 after they moved from Cranebrook. The appellant supported this evidence with an email his wife received from TPG dated 3 December 2015. The appellant went on to say that in March 2014, after he and his family moved into their new home at Yarramundi, his wife opened a new email address/account with Telstra. In support of this evidence the applicant provided a copy of the first account received in regard to the Telstra internet connection for this Telstra address/account.
6. The respondent asserted, on the basis of an email he had received from TPG, that notwithstanding the cancellation of TPG internet connection a TPG email address/account continues to exist. It was the respondent's contention that on the basis of this advice, the appellant, at all times, the appellant had access to his wife's TPG email address/account and would have seen the documentation sent by the respondent. The respondent also argued that as one of the appellant's referees had emailed his reference to the appellant's TPG address/account it must be active and was in fact activated by the appellant.
7. We are not persuaded by the respondent's assertions, or the inference he has asked us to draw. We note the enquiries the respondent made of TPG were on the basis of being the account holder of the TPG email address/account. The response could have been influenced by this, especially if it was thought to have been an enquiry relating to a possible re-connection to the internet through TPG. However, the TPG response to the respondent supports the evidence of the appellant. The response, we note, expressly states that the TPG email account of the appellant's wife was last accessed on the date the internet connection was cancelled (i.e. November 2013).
8. In our view nothing turns on the emailed reference. The reference was sent by the referee to the appellant's TPG address and the appellant's current Telstra address. It was the evidence of the appellant that his wife had received the reference at her current email address. We also note the reference was emailed in November 2015, which was prior to the TPG response the respondent had received. That response, as we have noted, said that the last time the TPG address had been accessed was in November 2013.
9. The appellant was critical of the Tribunal in having incorrectly searched his business name.
10. It is unnecessary for us to deal with these issues as we are satisfied, on the evidence before us, that the appellant did not receive the notices/letters from the Tribunal in regard to the proceedings initiated by the respondent. That is, we are satisfied he did not receive notice of the proceedings initiated by the respondent, nor did he receive prior notice of the hearing of 2 October 2016. Hence the service provisions in rule 13(4)(a) of the Civil and Administrative Tribunal Rules do not apply and the appellant was denied procedural fairness (denial of natural justice).
11. This does not mean the Tribunal faulted in its determination on 18 August and 2 October 2015, in finding that the appellant had received notice of the proceedings or the hearing on these days. The Tribunal clearly acted on the information contained on the file and the evidence of the respondent.

Should the Appeal Panel allow the appeal and set aside the decision of the Tribunal below?

1. While we make no findings in regard to the respondent's evidence before the Tribunal below, we note he relied "on the evidence of Mr Dennis Zheng" (see at [28] of the Tribunal's reasons for decision. That evidence was un-contradicted and accepted by the Tribunal as expert evidence (see at [31] and [40]). The Tribunal also accepted Mr Zheng's "table of repair estimate" in which he set out the work required and the costs thereof (see at [39]). Mr Zheng's estimate of the costs of the work was $21,199.20. As we have noted, the Tribunal made an order for the amount estimated by Mr Zheng.
2. In his evidence on appeal, the respondent said that Mr Zheng did not give evidence at the hearing before the Tribunal below. He said Mr Zheng did not attend the hearing. The respondent also conceded in his evidence that he had assisted Mr Zhang in preparing his report. He said he assisted Mr Zheng, at his request, as his written English was not good and he was unfamiliar with the format in which the report should be prepared. When questioned further, the respondent acknowledged he had in typed and set out the form of the report, including the "Table of Repair Estimate". He said the content of the report was that of Mr Zheng.
3. We re-iterate we have not considered the content of Mr Zheng's report for the purpose of this appeal. This is a matter for the Tribunal below when reconsidering the respondent's claim. However, in our view, having regard to the principles referred to in Stead (supra) we cannot conclude that had the appellant been given prior notice of the hearing and a reasonable opportunity to be heard and participated in the hearing the result would have been the same.
4. As we have noted above, the appellant wishes to be heard in regard to the respondent's claim, including the opinions contained in the expert report of Mr Zheng.
5. As we are satisfied the appellant was denied the opportunity to be heard in regard to the respondent' claim and on the principles set out by the Court of Appeal in Brennan and the High Court in Stead his appeal should be allowed and the decision of the Tribunal should be set aside.

Conclusion

1. For the reasons set out above, we find that the appellant has established that he was denied procedural fairness in that he was not given prior notice of the hearing. Indeed he had no notice of the proceedings until after the matter was heard and determined by the Tribunal below.
2. On the basis of our findings the appropriate orders are to allow the appeal and set aside the orders of the Tribunal. The Tribunal should be ordered to reconsider the respondent's case on the basis of the evidence he filed, any evidence filed by the appellant in response to that evidence and any evidence of the respondent in reply to the appellant's evidence.
3. Accordingly we make the following Orders: 1. The appeal is allowed. 2. The decision of the Tribunal is set aside. 3. The respondent's claim is to be reconsidered by the Tribunal together with any evidence filed by the appellant and any evidence of the respondent in reply thereto in accordance with orders to be made by the Tribunal.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 February 2016