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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: Brereton J
Before: McGrath J
Before: Elkaim AJ
Before: Sirtes J
Before: Lonergan J
Before: Kirk JA at [1]; Lonergan J at [2]; Weinstein J at [3].
Before: Muller J
Before: McWilliam J
Before: Muller J
Before: Sirtes J
Before: Campbell J
Before: Campbell J
Before: Brereton J
Before: Schmidt AJ
Before: Baker J
Before: Campbell J
Before: Rees J
Before: Sirtes J
Before: McCallum CJ
ND tried to file another application seeking orders to preserve his deceased daughter’s body while his appeal continued. A judge had already refused substantially the same relief. ND said circumstances had changed because the deceased’s mother proposed to start proceedings about disposal of the remains. McCallum CJ concluded that this did not address the reasons the earlier request had been refused: the body was held by people or organisations outside the proceedings, and the appeal had been found insufficiently meritorious to justify interim orders. The Court also explained that legislation allows a single Court of Appeal judge to decide a stay application. The Registrar was directed not to accept the renewed application for filing.
Before: Payne JA at [1] Rigg J at [2] Boulten J at [3]
Before: McCallum CJ
Before: Baker J
Before: Taylor J
Before: Brereton J
Before: McNaughton J
Before: Stern JA; Ball JA; Free JA
The Court of Appeal decided that Keybridge did not have to indemnify Mr Bolton for the costs of defending the primary proceedings while those proceedings could still result in a liability that the Corporations Act does not allow a company to indemnify. The deed treated an indemnity and an advance as different things: cl 3.1 was an indemnity, while cl 3.3 dealt separately with advances and possible repayment. The phrase “to the full extent permitted by law” did not create a repayment obligation. The Court rejected Keybridge’s argument that cl 3.1 was limited to a defined period, but that issue did not change the outcome. Constitution cl 10.2 did not provide a separate basis for interim indemnity because it also lacked a repayment obligation.
Before: Leeming JA at [1] Stern JA at [45] Ball JA [46]
The Council remained liable for the injury caused when a tall, unstable cafe table fell onto a young child. The Court held that the risk was not insignificant and that the Council's attempt to broaden the comparison to risks involving other cafe furniture did not succeed, because those risks did not have the same essential character. However, the evidence did not establish that the child's scar or psychological effects were likely to reduce her future earning capacity. The Court therefore removed the $50,000 future economic loss award and reduced the judgment to $125,300.
Before: Leeming JA at [1] Ball JA at [2] Free JA at [96]
Viva had responsibility for structural repairs to the ramp, but that did not make it responsible for every workplace risk at the service station. The Court found the evidence did not show that Viva took too long to investigate and repair the ramp, or that a repair completed before the accident would have prevented it. The oil trucks’ weights were not shown to be within the ramp’s safe limits, and KTAS had adopted the manual handling practice because drivers refused to use the ramp. The Court also found that KTAS, rather than Viva, was responsible for providing its employees with a safe system for disposing of waste oil. Viva’s appeal succeeded.
Before: Nixon J
Before: Hmelnitsky J