The prospects of success of the proposed appeal
15There are eight grounds of appeal relied upon. Those grounds raise four arguments.
16The first is made by grounds of appeal 2 and 3. They are that in deciding whether the applicant had been denied procedural fairness before the Tribunal the primary judge erred in taking into account not only the events of 29 November 2013 but also the fact that the applicant was entitled to make and had made an application for the rehearing by the Tribunal of the completed proceeding. That application was made under s 68 of the CTTT Act.
17His Honour concluded at [55]:
"In substance the Tribunal had a process that is analogous to the process available in the courts. When the Tribunal refused to adjourn the matter on 29 November 2013 having before it only the plaintiff's email of that morning, it had to take [into] account not only the fact that it would be determining the proceeding in the plaintiff's absence, but also of the need for expedition. It was also entitled to take into account the lack of detail as to the plaintiff's illness and the lack of corroboration. The CTTT Act provided a mechanism for any injustice that that course might have occasion[ed] to be remedied if the plaintiff could demonstrate that the decision was not fair and equitable and he had suffered a substantial injustice. The plaintiff invoked that procedure, but failed. Having regard to his failure to adduce evidence to show what his defence would have been, I do not think that he can be heard to complain that the process was unfair."
18This conclusion does not involve any error. The relevant decision-making process is to be viewed in its entirety when addressing whether there has been procedural unfairness: see, for example, albeit in a different context, the approach adopted by Mason CJ (Murphy, Aickin and Wilson JJ relevantly agreeing) in South Australia v O'Shea [1987] HCA 39; 163 CLR 378 at 389. In some cases the original or primary decision-making process may involve a staged consideration before the making of the operative decision. In other cases, such as this one, the operative decision may be subject to an opportunity for reconsideration or rehearing by the decision-maker. That is a process distinct from one of appeal or review by another administrative body or a court. Here the decision-making process included the right to apply to the Chairperson of the Tribunal for a rehearing of the completed proceeding. The applicant exercised that right and by doing so was given the opportunity (and indeed was requested) to explain why a rehearing would achieve a different decision, and one favourable to him. The fact that he did not take advantage of that opportunity when requested did not itself involve any procedural unfairness.
19The primary judge's conclusion can also be justified on an alternative basis. Even if the applicant was denied procedural fairness in relation to the hearing and determination on 29 November 2013, he had and exercised that right of review, which gave him the opportunity to put any argument as to why the earlier determination was wrong. This circumstance justified the refusal of relief in the exercise of the Court's discretion: see Calvin v Carr [1980] AC 574 at 595-596; and R v Marks; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation [1981] HCA 33; 147 CLR 471 at 484-485.
20The second argument, made by ground 3, is that the primary judge did not give proper consideration to s 35 of the CTTT Act. That section required the Tribunal to ensure that each party was given a reasonable opportunity to present its case. Although his Honour addressed this provision, in the way he decided the applicant's claim, he did not need to determine whether the applicant had been denied procedural fairness or whether there had been any failure to comply with s 35: [2013] NSWSC 1890 at [26]-[30]. For these reasons this ground of appeal is irrelevant, and, to the extent that it asserts that the primary judge did not consider the operation of s 35, it is not correct.
21Next, the applicant argues that the decision of Truss DCJ was wrong (ground 6) and that the primary judge should have referred the application for hearing by a judge sitting in the Common Law Division instead of proceeding to hear it as a judge sitting in the Equity Division (ground 7). As to the former argument, the decision of Truss DCJ was not the subject of any application before the primary judge. Accordingly, the ground is irrelevant. As to the latter argument, nothing turns on the fact that the application should have been brought or dealt with in the Common Law Division. Section 41(2) of the Supreme Court Act provides that any judge of the Court may exercise its jurisdiction in any Division, with all the power and authority of a judge appointed or nominated to act in that Division.
22Finally, grounds of appeal 1 and 5 do not present any additional arguments to those already considered. It is said that the applicant suffered a substantial or further denial of procedural fairness as a result of his Honour's decision to dismiss the application to quash the judgment and orders of the Tribunal. Neither ground is to be understood as contending that there was any denial of procedural fairness in the way the proceedings were conducted before the primary judge, as distinct from the Tribunal.