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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.
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The Court of Appeal restored most of Nagana’s case for a hearing. It held that the reviewability question is not limited to whether the decision affected Nagana’s own legal rights. On the assumed facts, the refusal to issue an environmental protection order could itself affect the practical enjoyment of cultural rights connected with the Springs. A refusal to commence court proceedings under s 505 was different and did not itself affect rights. The declaration claim could proceed because the Chief Executive had communicated a then-final decision and the alleged statutory duty to consider protective powers was arguable. The Court did not decide whether the claimed cultural rights were in fact impaired or whether the Chief Executive ultimately had a duty to act.