CGU Insurance Limited v Plummer [2016] NSWCATAP 79

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CGU Insurance Limited v Plummer [2016] NSWCATAP 79 Hearing dates: 9 November 2015 Date of orders: 11 April 2016 Decision date: 11 April 2016 Jurisdiction: Appeal Panel Before: N Hennessy LCM, Deputy President T Simon, Senior Member Decision: 1. Leave for the appeal to proceed on questions other than questions of law is refused. 2. The appeal is dismissed. Catchwords: APPEAL – appellant did not attend first instance hearing because it did not receive Notice of Hearing – whether Appeal Panel should receive evidence and hear submissions that appellant would have made at first instance PRACTICE AND PROCEDURE – service of Notice of Hearing – difference between delivery and receipt – service deemed to have been effected when notice delivered PROCEDURAL FAIRNESS – notice of hearing – whether party has been given a reasonable opportunity to be heard if notice of hearing not received – party bound by manner in which proceedings were conducted at first instance EVIDENCE – whether fresh evidence should be received on appeal when party did not attend first hearing Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 32, 38, 80 and 81 Civil and Administrative Tribunal Rules 2014 (NSW), cl 13, 25(4)(c) Consumer Claims Act 1998 (NSW) Cases Cited: Deputy Commissioner of Taxation v Meredith [2007] NSWCA 354 Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Texts Cited: Aronson and Groves, Judicial Review of Administrative Action, (5th ed 2013 Lawbook Co) DC Pearce and RS Geddes note in Statutory Interpretation in Australia, (8th ed 2014, LexisNexis Butterworths) Category: Principal judgment Parties: CGU Insurance Limited (Appellant) Simon Plummer and Angela French (Respondents) Representation: Solicitors: TurksLegal (Appellant) Moray & Agnew Lawyers (Respondent) File Number(s): AP 15/50518 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: [2015] NSWCATCD Date of Decision: 30 July 2015 Before: G Meadows, Senior Member File Number(s): GEN 15/36200