Hylton v Hayes [2019] NSWCATAP 18

Hylton v Hayes [2019] NSWCATAP 18

The transcript showed that the Member commenced by describing the process as confidential conciliation, no evidence was tendered or read, there was no cross-examination, and the Member used language and explored resolution options consistent with conciliation or mediation. In those circumstances, despite no objection being made by the appellants' solicitor at the time, a proper hearing was not in fact held before the application was dismissed. That denial of procedural fairness was an error of law requiring the appeal to be allowed and the matter remitted to be heard by a different Member.

Jurisdiction
Australia
Judgment Date
15 January 2019
Procedural Posture
Internal Appeal to the Appeal Panel From a Consumer and Commercial Division Decision Dismissing an Application to Renew Proceedings / Appeal Determined
Outcome
Appeal allowed; matter remitted to the Consumer and Commercial Division of the Tribunal differently constituted.
Legal Topics
['procedural Fairness' 'question of Law' 'ncat Internal Appeal' 'dividing Fence Dispute' 'remittal']
['administrative Law' 'civil Procedure' 'consumer and Commercial Division Proceedings'] ['procedural Fairness' 'question of Law' 'ncat Internal Appeal' 'dividing Fence Dispute' 'remittal']

Case Brief

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Procedural Posture

Internal Appeal to the Appeal Panel From a Consumer and Commercial Division Decision Dismissing an Application to Renew Proceedings / Appeal Determined

Legal Issues

  1. 1 ['Whether the Tribunal denied the appellants procedural fairness by dismissing the renewal application after a process that was conducted as a confidential conciliation rather than a hearing.' 'Whether a proper hearing was held before the Tribunal dismissed the application.' 'Whether the appeal raised a question of law permitting an appeal as of right.']

Ratio Decidendi

The transcript showed that the Member commenced by describing the process as confidential conciliation, no evidence was tendered or read, there was no cross-examination, and the Member used language and explored resolution options consistent with conciliation or mediation. In those circumstances, despite no objection being made by the appellants' solicitor at the time, a proper hearing was not in fact held before the application was dismissed. That denial of procedural fairness was an error of law requiring the appeal to be allowed and the matter remitted to be heard by a different Member.

Court Disposition

Appeal allowed; matter remitted to the Consumer and Commercial Division of the Tribunal differently constituted.

Orders

  • ['Appeal allowed.' 'Matter remitted to the Consumer and Commercial Division of the Tribunal differently constituted.']