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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.
1,764 case citations
Before: Kempthorne AC
Before: Hill J
Before: Colvin J
Before: Mr P, Jackman J
Before: Payne JA at [1]Kirk JA at [2]Free JA at [3]
The Court of Appeal held that suing on an existing judgment is a recognised legal route and is not automatically abusive just because direct enforcement was also possible. The appellants had started their action within the limitation period. The respondent did not establish that the delay caused manifest unfairness or prevented a fair trial, and the Court found no separate feature making the proceedings abusive. The enforcement provisions in Pt 8 of the Civil Procedure Act did not exclude an action on a judgment. The appeal was allowed and the respondent's dismissal motion was rejected.
Before: Ward P, Stern JA, Griffiths AJA
The Court of Appeal held that s 67G does not protect every document an NDIS provider creates or holds while serving a participant. It applies where possession of the material is because of a duty, function or power derived from the NDIS Act, not simply because the provider is registered or its work is regulated by that Act. The particular LBW records were not shown to have been held because of the statutory duties relied on by MM. As a result, s 67G did not conflict with the State provision requiring their production in this case. The Court allowed the Attorney General’s appeal and set aside the declaration made below.
Before: K Robinson, Principal MemberDr K George, Senior Member
Before: Peden J
Before: Smith J
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Before: Callaghan J
Before: Member J, Mr J
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