Holloway v Chairperson of The Residential Tribunal [2001] NSWCA 209

Holloway v Chairperson of The Residential Tribunal [2001] NSWCA 209

The Court held that the Chairperson of the Residential Tribunal, in exercising the power to order a rehearing under s 63 of the Residential Tribunal Act 1998, was bound to accord the tenants procedural fairness by giving them an opportunity to be heard, as the decision would deprive them of accrued rights. The statutory language of s 63(2) does not clearly exclude such requirements of natural justice; the threshold requirement refers only to an initial assessment but, where the threshold is met, the Chairperson may and often must go beyond the 'face of the application.' Therefore, the making of the s 63 order to rehear was in error and made without jurisdiction, as procedural fairness was...

Jurisdiction
Australia
Judgment Date
05 July 2001
Procedural Posture
Civil Appeal / Court of Appeal Judgment Following Appeal From Supreme Court Common Law Division Decision
Outcome
Appeal upheld; leave to appeal granted; orders below set aside; rehearing order quashed; costs awarded to appellants; other procedural orders made
Legal Topics
['natural Justice' 'rehearing Applications' 'procedural Fairness' 'residential Tribunal Procedure']
['administrative Law' 'procedural Law' 'residential Tenancy'] ['natural Justice' 'rehearing Applications' 'procedural Fairness' 'residential Tribunal Procedure']

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Procedural Posture

Civil Appeal / Court of Appeal Judgment Following Appeal From Supreme Court Common Law Division Decision

Legal Issues

  1. 1 ['Whether the Chairperson of the Residential Tribunal was obliged to hear both parties before making a determination under section 63 of the Residential Tribunal Act 1998 on a rehearing application' 'Whether absence of a party at the original hearing is sufficient to demonstrate that evidence not reasonably available at the hearing is now available within section 63(1)(c)' 'Whether there is a statutory intention to exclude the requirements of natural justice in determining a s 63 application.']

Ratio Decidendi

The Court held that the Chairperson of the Residential Tribunal, in exercising the power to order a rehearing under s 63 of the Residential Tribunal Act 1998, was bound to accord the tenants procedural fairness by giving them an opportunity to be heard, as the decision would deprive them of accrued rights. The statutory language of s 63(2) does not clearly exclude such requirements of natural justice; the threshold requirement refers only to an initial assessment but, where the threshold is met, the Chairperson may and often must go beyond the 'face of the application.' Therefore, the making of the s 63 order to rehear was in error and made without jurisdiction, as procedural fairness was...

Court Disposition

Appeal upheld; leave to appeal granted; orders below set aside; rehearing order quashed; costs awarded to appellants; other procedural orders made

Orders

  • ['Extend the time to apply for leave to appeal until 18 May 2001 and grant leave to appeal.' 'Appeal upheld.' 'Orders (1) and (2) made by Master Harrison on 30 August 2000 set aside.' 'Quash the order of the Chairperson of the Residential Tribunal of New South Wales that matters numbers 99/28238 and 99/25943 be...