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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: Ward P at [1]Adamson JA at [3]Stern JA at [279]
BK challenged the District Court's rejection of his claim that police battered him after arresting and handcuffing him. The Court of Appeal unanimously accepted that the State's failure to call apparently available uniformed officers warranted an adverse inference and that the appeal should be allowed. The judges did not all agree on whether the State had breached the Browne v Dunn rule or whether the trial judge had mishandled the burden of proving lawful justification. The majority considered the evidence insufficient to make a reliable final decision about what happened, so it set aside the original orders and sent the case back for a retrial. Adamson JA would instead have found for BK, but that was not the Court's final disposition.
Before: Adamson JA
The Court did not dismiss MWP's leave proceedings because MWP paid the ordered security for costs before the dismissal motions were decided, although it had missed the original deadlines. The Court treated the separate $221,200 payment as a condition for obtaining a stay, not as a payment MWP was independently required to make. Because MWP said it did not want the stay, the Court revoked it. MWP had to pay Emmott's costs of the relevant motions on the ordinary basis, but the Court did not require immediate payment of earlier costs orders.
Before: Mitchelmore JA at [1], Griffiths AJA at [2], Price AJA at, [110].
The Court of Appeal held that the first adjudicator's decision counted as a determination because it came after the required adjudication steps and consideration of the parties' positions. Kwik Flo could not simply treat that decision as having no effect and start again before another adjudicator. The second application re-raised the same jurisdiction issue, supported by additional evidence, and SE Ware had consistently objected to that process. The appeal was dismissed with costs.
Before: Gray C
Before: Washington C
Before: Gray C
Before: Young AC
Before: Porter C
Before: Pain J
Before: Bennett J
Before: Griffiths AJ
Before: Ierace J
Before: Slattery J
Before: Meek J
Before: Kunc J
Before: Chen J
Before: Mullins P, Brown JA, Cooper J
The Court of Appeal rejected both challenges to the convictions. It found that counsel had a defensible reason for not using the sexually explicit photographs and videos and for advising the appellant not to testify, and that the appellant accepted that advice. The trial evidence did not raise a sufficient basis for a jury to consider that the appellant honestly and reasonably believed the complainant consented. Because the conviction appeal failed, the Court did not consider the separate sentence argument, and refused leave to appeal sentence.
Before: Treston J, Mullins P, Brown JA, Bradley JA
The Court of Appeal did not decide the case by asking whether each piece of evidence independently proved Negrine's involvement. It looked at the evidence together. It held that the jury could infer from the communications, timing, search for Godschling, material found during police searches and Negrine's flight that he was part of the agreement to import cocaine. The Court therefore dismissed his appeal.
Before: Barrett AsJ
Before: Delany J