McErlane v Kelly [2015] NSWCATAP 93

McErlane v Kelly [2015] NSWCATAP 93

The appellant failed to provide evidence as to what he would have done or said had he attended the Tribunal hearing; thus, he did not satisfy the requirement under Regulation 9(1)(b) to show his case was not adequately put as a result of his absence. Accordingly, the Tribunal did not err in dismissing the application to set aside the order, and the appeal is dismissed.

Parties
Appellant: Christopher Stanley McErlane; Respondent: Tanya Kelly
Jurisdiction
Australia
Judgment Date
20 May 2015
Procedural Posture
Appeal / Appeal Decision
Outcome
Appeal dismissed; Tribunal's order confirmed
Legal Topics
Procedural Fairness, Setting Aside Decisions, Natural Justice
Administrative Law Procedural Fairness Setting Aside Decisions Natural Justice

Case Brief

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Parties

Christopher Stanley McErlane

Appellant

Tanya Kelly

Respondent

Procedural Posture

Appeal / Appeal Decision

Legal Issues

  1. 1 Whether the Tribunal erred in refusing to set aside its initial order due to appellant's absence at the hearing
  2. 2 Whether the appellant's case was not adequately put as a result of his absence
  3. 3 Whether Regulation 9(1)(b) of the Civil and Administrative Tribunal Regulation 2013 was correctly applied

Ratio Decidendi

The appellant failed to provide evidence as to what he would have done or said had he attended the Tribunal hearing; thus, he did not satisfy the requirement under Regulation 9(1)(b) to show his case was not adequately put as a result of his absence. Accordingly, the Tribunal did not err in dismissing the application to set aside the order, and the appeal is dismissed.

Court Disposition

Appeal dismissed; Tribunal's order confirmed

Orders

  • Appeal dismissed
  • Order of the Tribunal of 4 July 2014 that the appellant is to pay to the respondent the sum of $42,350 forthwith is confirmed