DOBELL v BLUE HAVEN POOLS AND SPAS PTY LTD [2009] NSWCA 77

New South Wales Court of Appeal

CITATION: DOBELL v BLUE HAVEN POOLS AND SPAS PTY LTD [2009] NSWCA 77

HEARING DATE(S): 30 March 2009 JUDGMENT OF: Allsop P at 21; Basten JA at 2; Handley AJA at 24

EX TEMPORE JUDGMENT DATE: 30 March 2009

(1) Grant the Applicants leave to appeal from the judgment and orders in the Common Law Division made on 22 July 2008.

(2) Treat the notice of appeal invalidly filed on 12 September 2008 as being filed pursuant to the grant of leave.

DECISION: (3) Allow the appeal and set aside the orders made in the Common Law Division.

(4) In lieu thereof, order that the summons in the Common Law Division be dismissed and that the plaintiff pay the costs of the first and second defendants.

(5) Grant the Respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of its costs in this Court, if not disqualified by s 6(7) of that Act.

CATCHWORDS: ADMINISTRATIVE LAW – procedural fairness – party's representative unable to attend Consumer, Trader and Tenancy Tribunal hearing because of illness – reasonable opportunity to be heard – no obligation to adjourn and commence search for absent party – whether failure to accord rehearing for want of jurisdiction rendered earlier decision given without hearing from one party procedurally unfair – Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 68 - WORDS AND PHRASES – "procedural fairness"

LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), ss 65, 67, 68 Supreme Court Act 1970 (NSW), s 69

CATEGORY: Principal judgment

CASES CITED: Kioa v West [1985] HCA 81; 159 CLR 550