Chand v Azurra Pty Ltd (in liquidation)

The applicants, Mr. and Mrs. Chand, sought judicial review of decisions made by the Consumer, Trader and Tenancy Tribunal (the Tribunal) concerning a dispute with Azurra Pty Ltd (in liquidation). The applicants contended that the Tribunal denied them procedural fairness in its conduct of the proceedings. The matter came before the Court of Appeal of New South Wales, constituted by Hodgson, Basten and Macfarlan JJA.

The central legal issues before the Court of Appeal were whether the Tribunal had denied the applicants procedural fairness by: (a) failing to give weight to an expert report on the basis that it did not comply with the principles established in *Makita (Australia) Pty Ltd v Sprowles*; (b) excluding Mrs. Chand from the hearing room while her husband was being cross-examined, thereby denying her a reasonable opportunity to be present and participate in the proceedings on the second day of the hearing; and (c) making factual findings in the absence of supporting evidence. The Court also considered the application of the principle in *Jones v Dunkel* regarding the failure to call an available party eyewitness.

The Court of Appeal found that the Tribunal was entitled to disregard the expert report if it did not comply with the *Makita* principles, and that its decision to do so did not amount to a denial of procedural fairness. Furthermore, the Court held that excluding Mrs. Chand from the hearing room during her husband's cross-examination, while regrettable, did not constitute a denial of procedural fairness as she was still able to participate in the proceedings and was not prejudiced by her temporary absence. The Court also determined that the Tribunal's factual findings were supported by evidence, and that the *Jones v Dunkel* principle was not applicable in the circumstances.

The applicants' summons was dismissed with costs.