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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
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The High Court held that the Fair Work Commission was allowed to consider whether a dismissed employee could have been redeployed to work being done by contractors, including by changing how the employer used its workforce. The law does not require an already vacant role in every case. But the Commission must assess the employer's enterprise as it existed at the time of dismissal, and it cannot simply imagine a different kind of business. The Court did not decide whether redeployment was actually reasonable for these employees. It dismissed the appeal and also held, on the joint reasons, that any error by the Full Bench in its appellate review approach would not amount to jurisdictional error if it understood its role.
Before: Jones JJ
The High Court drew a distinction between a commercial litigation funder and the lawyers conducting a class action. The Federal Court can, at settlement or judgment, distribute part of the recovery to a third-party funder through a common fund order, if the order is just. But in this case the lawyers’ proposed additional payment was calculated as a percentage of the recovery and was connected to their costs agreements. Because the lawyers were subject to NSW professional regulation, the Court held that it could not make an order giving effect to that arrangement. The Court did not reopen Brewster, which concerned an earlier-stage order under a different statutory power.
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The High Court held that NCAT does not exercise judicial power merely because it can order a New South Wales public sector agency to pay compensation under the PPIP Act. The Tribunal is conducting administrative review: it decides what outcome is correct and preferable and has discretion over whether to order compensation. A Tribunal registrar can certify an amount, but someone else must file the certificate in a court with jurisdiction before it operates as a court judgment. That difference meant the earlier High Court decision in Brandy did not control the case. The High Court allowed New South Wales's appeal and set aside the Court of Appeal's declaration that the Tribunal lacked jurisdiction.
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