Sebie v Pham

In *Sebie v Pham*, the New South Wales Court of Appeal considered an application for leave to appeal from a decision of the primary judge. The dispute concerned allegations of a failure by the primary judge to properly consider certain evidence, both oral and documentary, and whether the applicant had been denied procedural fairness.

The Court was required to determine whether the primary judge erred in failing to consider the evidence of a particular witness, despite that witness's affidavit having been read and the witness having been cross-examined before the primary judge, and the evidence being expressly analysed in the judgment. Further, the Court had to consider whether the primary judge erred in not taking into account documentary evidence that was not formally tendered, but rather emailed to the judge's chambers in purported response to a notice to produce. Finally, the Court had to assess whether the applicant was denied procedural fairness, given their absence from the hearing and the lack of any application to have their affidavit read or submissions made regarding their intended arguments.

The Court found that the primary judge had indeed considered the witness's evidence, as it was expressly analysed in the judgment. Regarding the documentary evidence, the Court emphasised the importance of evidence being formally tendered, and that documents emailed to chambers without formal tender were not properly before the court. On the issue of procedural fairness, the Court noted that the applicant had not appeared at the hearing, nor had they made any application to have their affidavit read or to present their arguments, and therefore could not claim to have been denied procedural fairness.

Consequently, the application for leave to appeal was dismissed with costs.