Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McMillan v Cone [2019] NSWCATAP 46 Hearing dates: 31 January 2019 Date of orders: 31 January 2019 Decision date: 25 February 2019 Jurisdiction: Appeal Panel Before: Dr R Dubler SC, Senior Member K Ransome, Senior Member Decision: (1) Appeal allowed. (2) The orders made in matter MV 18/32095 on 6 September 2018 are set aside. (3) The matter is remitted to the Tribunal for rehearing in Tamworth. (4) The respondent (GK Cone) is to provide to the Tribunal and the appellant (T McMillan) by 7 February 2019 a copy of all documents upon which the respondent intends to rely at the rehearing. (5) The appellant is to provide to the Tribunal and the respondent by 21 February 2019 a copy of all documents upon which the appellant intends to rely at the rehearing. Catchwords: APPEAL - failure to afford procedural fairness – appellant not provided with notification of the new date of the hearing. Legislation Cited: Nil Cases Cited: John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Category: Principal judgment Parties: Todd McMillan (Appellant) Geoffrey Cone (Respondent) Representation: T McMillan (Self Represented)(Appellant) G Cone (Self Represented)(Respondent) File Number(s): AP18/47913 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 06 September 2018 Before: D Moss, General Member File Number(s): MV 18/20951 REASONS FOR DECISION 1. This is an internal appeal from a decision of the Consumer and Commercial Division of 6 September 2018. The original application of the respondent involved a motor vehicle claim whereby it was alleged by the respondent that the appellant had misrepresented the mileage of a motor vehicle purchased by him from the appellant. 2. The matter was originally set down for hearing on 8 August 2018. The appellant prior to that date sought an adjournment due to the late service of the notice of hearing. In that request for an adjournment the appellant also requested due to a change of address that any reply should be sent to 442 Lemon Tree Passage Road, Salt Ash, New South Wales 2318. 3. The Tribunal adjourned the original hearing date. A new hearing date was appointed for 6 September 2018. The Tribunal posted notification of the new hearing date to the appellant but the notification was addressed to the appellant at 388 Sandy Creek Road McCullys Gap, New South Wales 2333. This notification was returned to the Tribunal at Newcastle and stamped "received on 24 September 2018". It was also marked "not known at this address". 4. The appellant, who has appeared in person before us today, has informed us that he never received notification of that new date for the hearing. The Tribunal proceeded to hear the application on 6 September 2018 in the absence of the appellant. The respondent appeared in person before the Tribunal on that day. The Tribunal was constituted by Member Moss who in her reasons stated that the Tribunal was satisfied that service was properly made upon the appellant of notification of the new hearing date and that the Tribunal thought that justice would be served if the matter was dealt with in the absence of the party, being the appellant. The Tribunal on that day ordered that the appellant pay $32,000 to the respondent by way of damages suffered. 5. On 7 October 2018 the appellant sent an email to the Tribunal advising that he had never received confirmation of the new date. The appellant has then filed his notice of appeal which is currently before the panel. We accept the appellant's evidence that he did not receive notification of the new hearing date of 9 September 2019 and that as a result he was unable to attend on that date. 6. Whilst this a somewhat unfortunate matter and not the fault of the Member or the respondent, there nevertheless was a failure to afford the appellant procedural fairness by giving him notification of the hearing of the new date. This amounts to an error of law on the part of the Tribunal: John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13] (4). As a result the orders will have to be set aside and a new hearing ordered. Orders 1. The orders of the Tribunal will be: 1. Appeal allowed. 2. The orders made in matter MV 18/32095 on 6 September 2018 are set aside. 3. The matter is remitted to the Tribunal for rehearing in Tamworth. 4. The respondent (GK Cone) is to provide to the Tribunal and the appellant (T McMillan) by 7 February 2019 a copy of all documents upon which the respondent intends to rely at the rehearing. 5. The appellant is to provide to the Tribunal and the respondent by 21 February 2019 a copy of all documents upon which the appellant intends to rely at the rehearing. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 February 2019