Renda v Wu [2016] NSWCATAP 238

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Renda v Wu [2016] NSWCATAP 238 Hearing dates: 20 July 2016 Date of orders: 08 November 2016 Decision date: 08 November 2016 Jurisdiction: Appeal Panel Before: R Seiden SC, Principal Member Dr J Lucy, Senior Member Decision: In proceedings RT 15/63146 and RT 16/04856: (1) Leave to appeal out of time is granted. (2) Leave to appeal on the ground that the appellant's evidence was rejected is refused. (3) Appeal allowed. (4) The proceedings are remitted to the Tribunal to be determined in accordance with these reasons and otherwise according to law. Catchwords: APPEALS – Leave to appeal out of time from decisions in two proceedings which were heard together – Appellant instructed by Tribunal registry to obtain independent advice before lodging appeal – Appellant took reasonable steps to obtain such advice - Delay in obtaining advice – Leave granted PROCEDURAL FAIRNESS – Opportunity to be heard – Witnesses' evidence relied upon by Tribunal to make findings on disputed questions of fact – Two witnesses not present at hearing - Failure to explain to self-represented party process of cross examination – Failure to invite self-represented party to apply for adjournment so that party might cross examine absent witnesses – Denial of procedural fairness established REMEDY – Whether denial of procedural fairness could make no difference to outcome – Consideration by Tribunal of application on its merits notwithstanding that it was out of time - Failure of Tribunal to consider extension of time – Impossible to conclude that breach of rules of procedural fairness could make no difference to outcome where extension not considered – Matter remitted for redetermination Legislation Cited: Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2010 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Ferella v Chief Commissioner of State Revenue (NSW) [2014] NSWCA 378 Gallo v Duflou [2014] NSWCATAP 115 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Lee v Cha [2008] NSWCA 13 Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157 Norfeld Pty Ltd v Amanda Lee Jones Trading as Watermark Patent & Trademark Attorneys [2014] NSWSC 992 Pusell v NSW Land and Housing Corporation [2016] NSWCATAP 215 Raslan v Pan [2015] NSWCATAP 12 Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam (2003) 214 CLR 1 Reece v Webber [2011] FCAFC 33; 192 FCR 254 Stead v State Government Insurance Commission (1986) 161 CLR 141 WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; 75 ALD 630 Williams v NSW Land and Housing [2012] NSWSC 1022 Category: Principal judgment Parties: Frances Renda (Appellant) Opal Xiao Wu (Respondent) Representation: Solicitors: F Renda (Appellant in person) S Ridgeway (Agent for the respondent) File Number(s): AP 16/20042 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2016] NSWCATCD Date of Decision: 15 March 2016 and 18 March 2016 Before: Z Antonios, Tribunal Member File Number(s): RT 15/63146 and RT 16/04856