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NCAT Appeal Panel | 2014-04-09
Tenants were terminated for non-payment of rent following an uncontested hearing where the landlord's agent gave evidence and the Member recorded findings in hearing notes. The tenants sought leave to internally appeal under s 80(2)(b) but did not raise any question of law; therefore leave required. Clause 12 Schedule 4 requires showing the appellant 'may have suffered a substantial miscarriage of justice' because the decision was unfair, against the weight of evidence, or there is significant new evidence. The tenants relied on phone logs and asserted contact and willingness to pay. The Appeal Panel found the record disclosed arrears and necessary findings, the phone logs were not fresh or persuasive, and there was no denial of procedural fairness. Leave was refused, the appeal dismissed, and the stay of the original orders lifted.
1,627 case citations
Before: Taylor J
Before: Ainslie-Wallace AJ
Before: Ainslie-Wallace AJ
Before: Stern JA at [1]; Rigg J [136]; Emmett J [158]
Before: Sirtes J
Before: Dhanji J
Before: Hamill J
Before: Nixon J
Before: Nixon J
Before: Bell CJ at [1]; Ward P at [94]; Leeming JA at [95].
The Court of Appeal ruled that the Tribunal’s Principal Member, sitting alone, had no power to set aside the earlier professional-conduct decision. That later decision was not a permitted ancillary or interlocutory decision, and the procedural-irregularity provision did not cure the lack of authority. The appeal could still be heard because the NCAT Act treats a purported decision as a decision even when it was beyond power. On the underlying composition issue, Bell CJ and Ward P considered that the National Law required practising health practitioners, but cl 8 of the NCAT Act allowed Dr Selby to continue dealing with the matter after his registration changed. Leeming JA agreed with the result while leaving the composition question undecided. The appeal was allowed and the purported setting-aside decision was removed.
Before: Ball JA; Free JA
Mr Mohareb made a second application asking the Court of Appeal to reconsider its decision on his first application to reopen an earlier judgment. The Court said the second application was trying to have it decide again something it had already decided, and was therefore an abuse of process. It dismissed the motion with costs. Separately, it sent the matter back to the Registrar for a three-judge bench to consider whether to examine a possible order under the Vexatious Proceedings Act. The Court did not make that order.
Before: Ainslie-Wallace AJ
Before: McWilliam J
Before: Mitchelmore JA at [1]; Rigg J at [161]; Muston J at [162]
Before: Coleman J
Before: Harrison AJ
Before: Muller J
Before: Muller J
Before: Brereton J
Before: Boulten J
Before: Leeming JA at [1] Mitchelmore JA at [27] Price AJA at [99]
The Court of Appeal dismissed a solicitor’s appeal against a finding of unsatisfactory professional conduct. The solicitor had told a costs assessor that a judge had noted there was no doubt his client had capacity. The hearing transcript showed that capacity remained in dispute and that the judge allowed further expert evidence. Although the solicitor said he honestly remembered the judge making the statement, he had no transcript or contemporaneous note when he wrote. The Court held that the letter’s wording, read in context, was an unqualified and potentially misleading account. Dishonesty was not required: the question was whether the solicitor’s conduct, assessed in its circumstances, fell below the competence and diligence reasonably expected of a lawyer. The Court considered the Tribunal’s use of “reckless” imprecise, but read it as meaning careless. A conceded error about whether the letter needed an express qualification did not affect the result. The appeal was dismissed with costs.
Before: Brereton J
Before: Kunc J
Before: Payne JA
Before: White J
Before: Muller J
Before: Coleman J
Before: Parker J
Before: Griffiths AJA
The Court of Appeal refused to stop the liquidators selling the Co-operative’s main property while the members pursued leave to appeal. The judge considered the proposed appeal grounds weak at this preliminary stage, and reasoned that the sale proceeds would remain available for the Co-operative if the winding-up orders were later set aside. The applicants had delayed bringing their motion, while creditors remained unpaid and the sale process was well advanced. The judge concluded that the practical balance favoured allowing the liquidation and sale process to continue.
Before: Cavanagh J at [1]; Rigg J at [146]; Roberts J at [147]