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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: McWilliam J
The appellant could not reopen the appeal judgment because the appeal court had already dealt with the substance of his late-filing argument, even though it had described the issue as apparently not raised before the primary judge. Once further appeal avenues were exhausted, the stay on enforcing the first-instance costs order was lifted. The respondent’s evidence supporting early release of the $30,000 security was incomplete, but the Court was nevertheless satisfied on balance that the appeal costs would exceed that amount. The security was released towards the costs liability, and each side had to pay its own costs of these applications.
Before: N Adams CJ at CL at [1]; Cavanagh J at [90]; Muston J at [95].
Before: Muston J
Before: Richardson J
Before: Sirtes J
Before: Price AJA
REST lost its motion for an injunction pending appeal, but the court did not consider that it had acted so unreasonably that it should pay the other parties’ costs on the higher indemnity basis. The ordinary costs rule applied, so REST had to pay the specified respondents’ costs on an ordinary basis. The Dexus respondents received no costs order because they did not ask for costs and had not actively participated.
Before: Leeming JA at [1]; Adamson JA at [108]; Griffiths AJA at [109]
The Court of Appeal upheld NCAT’s findings against Dr Schwartz. His registration condition prohibited conscious sedation by any route unless an approved anaesthetist or sedationist was responsible for the sedation and monitoring. The Court held that the condition should be understood using the guidance and context applicable when it was imposed, not a later guidance document that distinguished minimal from moderate sedation. The expert evidence gave the Tribunal a basis to find that intramuscular fentanyl caused conscious sedation. The Court also rejected the other pressed grounds, including complaints that findings based on missing medical records involved an onus reversal or inadequate reasons. It emphasised that saying a tribunal “erred in law” does not itself identify a question of law.
Before: Coleman J
Before: Lonergan J
Before: Hamill J
Before: Fagan J
Before: White J
Before: McWilliam J
Before: McWilliam J
Before: Ainslie-Wallace AJ
Before: Williams J
Before: Williams J
Before: Cavanagh J
Before: Faulkner J
Before: Nixon J
Before: Campbell J
Before: Bell CJ at [1]; Ward P at [129]; Griffiths AJA at [130].
The Court of Appeal upheld the finding that the Commonwealth was liable for receiving money that came from a company director’s unauthorised profits. The director’s profits were treated in equity as belonging to the company from the time they were obtained, even though the company had not legally owned the securities or received a proprietary order against the director. The ATO’s knowledge of the source of the funds was established by findings that were not successfully challenged. A personal order requiring the director to account did not remove the company’s proprietary interest. The Commonwealth also could not introduce its statutory-duty argument for the first time on appeal because the company might have met it with evidence or cross-examination at trial.
Before: Muller J
Before: Muller J
Before: McWilliam J
Before: McHugh JA
This decision dealt with how the appeal would be prepared, not whether Ittyerah should receive a compliance certificate. The Court left the question of additional evidence to the judges hearing the appeal. It refused permission to subpoena two work colleagues because there was no evidence that affidavit evidence had been sought or would be unavailable, and because affidavit evidence would better assist the appeal process. The Court postponed the question of subpoenas to Dr Eagle until after she prepared a supplementary report. It also stated, without needing to decide the point, that an independent health assessor exercising professional judgment would not be acting at the Board’s direction for the relevant statutory non-compellability provision.
Before: Muller J
Before: Sirtes J