Gallo v Duflou [2014] NSWCATAP 115

Gallo v Duflou [2014] NSWCATAP 115

The Tribunal denied the unrepresented appellant procedural fairness because it did not explain that he had, or may have had, a right to question the respondent's witnesses or the purpose of cross-examination, despite the respondent's reliance on expert evidence whose authors did not attend, the prior instruction that relied-on witnesses must attend, and the respondent having cross-examined the appellant's witness. The expert evidence was critical to the finding against the appellant, so the absence of that explanation and opportunity caused practical injustice and meant the Tribunal failed to ensure a reasonable opportunity to be heard under s 38(2) and s 38(5)(c) of the Act.

Jurisdiction
Australia
Judgment Date
23 December 2014
Procedural Posture
Internal Appeal / Appeal From Orders Made by the Tribunal in the Consumer and Commercial Division on 8 July 2014 Requiring the Appellant to Pay the Respondent $17,864.
Outcome
Appeal upheld.
Legal Topics
['opportunity to Be Heard' 'unrepresented Litigant' 'cross Examination of Witnesses' 'expert Evidence' 'internal Appeal']
['administrative Law' 'consumer and Commercial Law' 'procedural Fairness'] ['opportunity to Be Heard' 'unrepresented Litigant' 'cross Examination of Witnesses' 'expert Evidence' 'internal Appeal']

Case Brief

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Procedural Posture

Internal Appeal / Appeal From Orders Made by the Tribunal in the Consumer and Commercial Division on 8 July 2014 Requiring the Appellant to Pay the Respondent $17,864.

Legal Issues

  1. 1 ['Whether the Tribunal denied the appellant procedural fairness by failing to ask whether he wished to cross-examine the authors of the expert report and letter relied on by the respondent.' 'Whether the Tribunal should have adjourned the hearing to allow the appellant an opportunity to cross-examine those witnesses.' 'Whether the appellant required and should be granted leave to appeal on grounds concerning the weight of evidence and further evidence.']

Ratio Decidendi

The Tribunal denied the unrepresented appellant procedural fairness because it did not explain that he had, or may have had, a right to question the respondent's witnesses or the purpose of cross-examination, despite the respondent's reliance on expert evidence whose authors did not attend, the prior instruction that relied-on witnesses must attend, and the respondent having cross-examined the appellant's witness. The expert evidence was critical to the finding against the appellant, so the absence of that explanation and opportunity caused practical injustice and meant the Tribunal failed to ensure a reasonable opportunity to be heard under s 38(2) and s 38(5)(c) of the Act.

Court Disposition

Appeal upheld.

Orders

  • ['Appeal upheld.' 'Order made by the Tribunal below quashed.' 'Pursuant to s 81(i)(e) of the Act, order that the case be reconsidered by the Tribunal below, with such further evidence as the Tribunal allows, consistently with the rules of procedural fairness.']