APPEALS — Procedural fairness — Hearing rule — Whether Appeal Panel of NSW Civil and Administrative Tribunal erred in law in holding that the Tribunal at first instance was entitled to disregard, without consideration, the plaintiff’s evidence because he did not attend the hearing to tender that material or make himself available for cross-examination — Whether Appeal Panel erred in law in holding that the Tribunal was justified in disregarding the plaintiff’s written submissions — Whether Appeal Panel erred in determining that the failure to consider the plaintiff’s evidence and submissions was immaterial — Leave to appeal granted and appeal allowed
Quick Take
1Under ss 36 and 38 of the Civil and Administrative Tribunal Act 2013 (NSW) and r 35 of the CAT Rules, a party's failure to attend a hearing does not, without more, entitle the Tribunal to disregard evidence and submissions filed and served before the hearing; the fact of absence goes to weight, not admissibility, and the Tribunal must assess filed material sufficiently to identify its nature, relevance and weight.
2Where an NCAT Appeal Panel assesses whether a procedural fairness breach was material, the correct test drawn from LPDT v Minister for Immigration (2024) 280 CLR 321 is whether the decision 'could' realistically have been different, not whether it 'would' have been different; applying the higher 'would have' threshold is an error of law.
3Section 38(5)(c) of the CAT Act requires the Tribunal to take reasonably practicable measures to ensure parties have a reasonable opportunity to be heard or otherwise have their submissions considered; written submissions filed by an absent party cannot be disregarded merely because they are intermingled with factual assertions.
Case Details
Citation[2026] NSWSC 1048
CourtNSWSC
JurisdictionNew South Wales
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