Lee v Imad [2017] NSWCATAP 128

Lee v Imad [2017] NSWCATAP 128

The Tribunal Member failed to comply with the mandatory Procedural Direction by not explaining the conciliation process or the difference between the hearing and conciliation roles before acting as conciliator after hearing most of the evidence, and by expressing strong views about the appellant's prospects beyond merely canvassing legal questions and issues. That failure was an irregularity under s 53(3) of the Civil and Administrative Tribunal Act (NSW) 2013. Because there was a significant prospect that the appellant would not have entered the agreement had the proper process been followed, it would be a miscarriage of justice to hold him to the consent order, so the order and...

Jurisdiction
Australia
Judgment Date
09 June 2017
Procedural Posture
Internal Appeal From NSW Civil and Administrative Tribunal Consumer and Commercial Division Residential Tenancy Proceedings / Appeal Panel Decision
Outcome
Appeal allowed; consent order set aside; matter remitted to the Tribunal differently constituted.
Legal Topics
['procedural Directions' 'conciliation' 'consent Orders' 'irregularity in Tribunal Proceedings' 'internal Appeal' 'procedural Fairness']
['administrative Law' 'residential Tenancy' 'civil Procedure' 'alternative Dispute Resolution'] ['procedural Directions' 'conciliation' 'consent Orders' 'irregularity in Tribunal Proceedings' 'internal Appeal' 'procedural Fairness']

Case Brief

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Procedural Posture

Internal Appeal From NSW Civil and Administrative Tribunal Consumer and Commercial Division Residential Tenancy Proceedings / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Tribunal Member failed to comply with Consumer and Commercial Division Procedural Direction Number 3 when acting as both decision maker and conciliator.' 'Whether the failure to comply with the Procedural Direction affected the validity or enforceability of the consent orders.' 'Whether the consent orders should be set aside and the matter remitted to the Tribunal differently constituted.']

Ratio Decidendi

The Tribunal Member failed to comply with the mandatory Procedural Direction by not explaining the conciliation process or the difference between the hearing and conciliation roles before acting as conciliator after hearing most of the evidence, and by expressing strong views about the appellant's prospects beyond merely canvassing legal questions and issues. That failure was an irregularity under s 53(3) of the Civil and Administrative Tribunal Act (NSW) 2013. Because there was a significant prospect that the appellant would not have entered the agreement had the proper process been followed, it would be a miscarriage of justice to hold him to the consent order, so the order and...

Court Disposition

Appeal allowed; consent order set aside; matter remitted to the Tribunal differently constituted.

Orders

  • ['Appeal allowed.' 'Set aside the orders made by the Tribunal on 6 February 2017.' 'The sum of $5,320 held by the Tribunal pursuant to the Stay Orders of the Appeal Panel made on 2 March 2017 be returned to the appellant or at his direction.' 'Remit the matter to the Tribunal, differently constituted, to be...