Simcoe v Bate [2019] NSWCATAP 216

Simcoe v Bate [2019] NSWCATAP 216

The Appeal Panel held that the Tribunal was entitled to proceed in Mr Simcoe's absence because the notice of hearing was posted to the address confirmed by Mr Simcoe as his address, there was no indication that it was returned undelivered, and the Tribunal Member recorded satisfaction that notice had been served and that justice required the matter be dealt with in his absence. Mr Simcoe provided no formal evidence of mail delivery difficulties or other reason why the notice did not reach him, did not make a set aside application, accepted that the work was incomplete and that some money was owing, and did not substantiate a fairly arguable case for a different amount. There was no error...

Jurisdiction
Australia
Judgment Date
27 August 2019
Procedural Posture
Internal Appeal From a Consumer and Commercial Division Decision / Appeal Panel Decision
Outcome
Leave to appeal on grounds other than a question of law refused; appeal dismissed.
Legal Topics
['failure to Appear' 'reasonable Opportunity to Be Heard' 'procedural Fairness' 'notice of Hearing' 'ex Parte Proceedings' 'leave to Appeal' 'substantial Miscarriage of Justice']
['administrative Law' 'consumer and Commercial Law' 'building and Construction'] ['failure to Appear' 'reasonable Opportunity to Be Heard' 'procedural Fairness' 'notice of Hearing' 'ex Parte Proceedings' 'leave to Appeal' 'substantial Miscarriage of Justice']

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Procedural Posture

Internal Appeal From a Consumer and Commercial Division Decision / Appeal Panel Decision

Legal Issues

  1. 1 ["Whether the Tribunal denied procedural fairness by proceeding in Mr Simcoe's absence on 26 November 2018." 'Whether the Tribunal was entitled to be satisfied that notice of hearing had been duly served on Mr Simcoe.' 'Whether leave to appeal on grounds other than a question of law should be granted because the decision was not fair and equitable and Mr Simcoe may have suffered a substantial miscarriage of justice.']

Ratio Decidendi

The Appeal Panel held that the Tribunal was entitled to proceed in Mr Simcoe's absence because the notice of hearing was posted to the address confirmed by Mr Simcoe as his address, there was no indication that it was returned undelivered, and the Tribunal Member recorded satisfaction that notice had been served and that justice required the matter be dealt with in his absence. Mr Simcoe provided no formal evidence of mail delivery difficulties or other reason why the notice did not reach him, did not make a set aside application, accepted that the work was incomplete and that some money was owing, and did not substantiate a fairly arguable case for a different amount. There was no error...

Court Disposition

Leave to appeal on grounds other than a question of law refused; appeal dismissed.

Orders

  • ['Leave to appeal on grounds other than a question of law is refused.' 'The appeal is dismissed.']