Dobell v Blue Haven Pools And Spas Pty Ltd

The applicants, Mr and Mrs Dobell, sought judicial review of a decision made by the Consumer, Trader and Tenancy Tribunal (the Tribunal) which had ordered them to pay $10,000 to Blue Haven Pools and Spas Pty Ltd. The applicants' representative, a solicitor, was unable to attend the hearing due to illness, and the Tribunal proceeded to hear the matter and make orders in their absence. The applicants argued that this failure to accord them a hearing, and the subsequent refusal of a rehearing, constituted a denial of procedural fairness.

The primary legal issue before the Court of Appeal was whether the Tribunal had denied the applicants procedural fairness by proceeding with the hearing in the absence of their legal representative and by refusing to grant a rehearing. This involved considering whether the applicants had been afforded a reasonable opportunity to be heard, and whether the Tribunal had a duty to adjourn the hearing or grant a rehearing in the circumstances. The court also considered the effect of s 68 of the *Consumer, Trader and Tenancy Tribunal Act 2001* (NSW) on the Tribunal's power to grant rehearings.

The Court of Appeal held that the Tribunal had not denied the applicants procedural fairness. The court reasoned that the applicants had been given notice of the hearing and had chosen to be represented by a solicitor who was unable to attend. The Tribunal was not obliged to adjourn the hearing indefinitely or to commence a search for the absent party. While the Tribunal had erred in its understanding of its power to grant a rehearing under s 68, this error did not render the original decision procedurally unfair, as the applicants had been given a proper opportunity to present their case, even if that opportunity was not ultimately taken up due to the solicitor's illness. The court found that the applicants had not demonstrated that they had been denied a reasonable opportunity to be heard.

The Court of Appeal granted the applicants leave to appeal and treated their notice of appeal as validly filed.