Australia, July 2 -- New South Wales Land and Environment Court issued text of the following judgement:

1. This is an appeal by Mr Michael Udy (the Appellant) against orders made by the Tribunal (the Tribunal below) concerning the termination of a fixed term residential tenancy agreement between the Appellant and Mr Graham Barton (the Respondent).

2. The Respondent did not appear at the hearing for this appeal. It is true that an Appeal Panel must afford a party to proceedings before it with a reasonable opportunity to be heard and a failure to do so would be a denial of procedural fairness (or natural justice): Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 (Re Refugee Tribunal) at [100]; Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 38(2) and (5)(c). However, a party is not denied procedural fairness if the party does not, without a reasonable explanation, take up a reasonable opportunity to be heard of which the party has been made aware: J R S Forbes, Justice in Tribunals (Federation Press, 6th ed, 2024) at [12.11]; Troy Hood trading as UR Place Landscape v Rutten [2016] NSWCATAP 250 at [5]; Merrick v Hines [2021] NSWCATAP 108 at [24]-[54]; Nayar v Uren [2024] NSWCATAP 47 at [24].

3. Having regard to the following matters, we decided the hearing should proceed despite the absence of the Respondent:

1) The Respondent was provided with additional time to appear because the commencement of the hearing was delayed by half an hour.

2) Unsuccessful searches for the Respondent or the Respondent's agent were undertaken outside the hearing room before the hearing commenced.

3) The material on file for this appeal indicated that the Respondent had been notified of the hearing date by the Appeal Registry. In addition, the Respondent had previously appeared at interlocutory stages of this appeal, including a hearing for a stay of the orders of the Tribunal below for which the Appellant applied.

4) Neither the Respondent nor his agent contacted the Appeal Registry before the hearing to provide an explanation for the Respondent's non-attendance.

5) Clause 9 of Civil and Administrative Tribunal Regulation 2022 (NSW) would in any event allow the Respondent to apply to the Appeal Panel to set aside or vary its decision if the Panel was satisfied that the Respondent's absence resulted in the Respondent's case not being adequately put to the Panel.

4. The non-appearance of an opposing party does not result in the party waiving the right to have the proceedings determined according to law: Bebonis v Angelos (2003) 56 NSWLR 127; [2003] NSWCA 13 at [49]. Consequently, the Appellant is not relieved of the burden of satisfying the Appeal Panel that there are sufficient grounds to allow the appeal.

5. We are not satisfied that there are sufficient grounds to allow the appeal. These are our reasons for dismissing the appeal.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1971941cd85b4f0e8ed6165e)

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