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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: Gageler J
Before: Muller AJ
The parties who won at trial asked the Court to hear the appeal about the deceased’s will about three months earlier than it otherwise could be heard. They said delay was costly and made it harder to manage a large estate and related matters. The Court accepted that the estate was complex and costs were continuing, but the evidence did not show that the interim administrator was mismanaging it, that important decisions could not be made, or that the related cases would be significantly harmed by the delay. It was also unlikely that an earlier appeal hearing would enable action on the quarry before the relevant consent expired. Because an earlier hearing would require removing another appeal already allocated a place in the list, and the claimed prejudice was not sufficient on the evidence, the Court dismissed the application.
Before: Burns AJ
Before: Mitchelmore JA at [1], Stern JA at [2], Ball JA at [72]
The insurer challenged a review panel's finding that a passenger's traumatic brain injury was caused by a car accident. The Court of Appeal accepted that one part of the panel's reasoning was flawed: it inferred that the accident itself directly caused the injury without evaluating the plausible alternative that the injury was caused only when the passenger repeatedly struck his head on the ground. But the panel had also made a separate finding that the accident caused the passenger's agitation and head striking, and that the head striking materially contributed to the injury. That independent reasoning supported the result. The Court also found that the panel had not shifted the burden of proof and that its reasons for the separate causal finding were adequate. The appeal was dismissed.
Before: Mitchelmore JA at [1]Adamson JA at [2]Price AJA at [262]
The Court of Appeal concluded that the trial judge made a serious evidentiary error by repeatedly telling MTH that Mr Croft's convictions could not prove the underlying offending. Under the Evidence Act, a certificate of conviction could prove the elements of the offences in this civil case. The Court treated the certificate as if it had been tendered, found that the estate had not rebutted it, and entered judgment for MTH against the estate for $1,346,000. The Court dismissed her claims against the State and Sandra Croft. It held that the State's decisions did not meet the demanding statutory threshold for liability based on special statutory powers, and that the evidence did not establish Mrs Croft's liability.
Before: Mitchelmore and Adamson JJA at [1], Price AJA at [8]
The third respondent asked Price AJA to step aside from MTH's appeal because he had previously sat on the panel that dismissed Croft's criminal conviction appeal. The Court of Appeal applied the apprehended-bias test, which requires more than pointing to a judge's prior involvement: there must be a logical connection between that involvement and a feared failure to decide the present case impartially. The earlier criminal appeal dealt with two narrow legal grounds and did not assess the whole evidence or decide that there had been no miscarriage of justice. The Court concluded that the asserted connection was missing and dismissed the recusal application. The ruling did not determine the merits of MTH's appeal.
Before: Payne JAFree JA
The Court of Appeal refused Khanna permission to appeal. He had not shown that the case could realistically affect his financial position by at least $100,000, so an appeal as of right was unavailable. His proposed grounds also did not identify a sufficiently arguable mistake by the primary judge. The Court treated the medical causation findings as factual assessments and found that the applicant had not established a reviewable legal error or procedural unfairness.
Before: Mitchelmore JA, McHugh JA, Griffiths AJA
The Court of Appeal found that the School had not taken reasonable care to keep enough level sand in the long-jump landing area. The primary judge’s finding that Softfall covered the bottom of the pit had no evidentiary support, and the evidence that sand was raked only every two or three jumps had not been properly accounted for. The Court concluded that adequate, properly raked sand would probably have prevented Addison’s feet hitting a hard surface. It awarded $250,000 for future economic loss, retained the primary judge’s non-economic loss assessment, and entered judgment for $276,500 plus interest.
Before: D A C Robertson, Principal MemberDr K M George, Senior Member
Before: Dr J
Before: Ainslie-Wallace AM
Before: Adamson JA at [1]Dhanji J at [2]Weinstein J at [76]
Before: Stern JA at [1], Fagan J at [4], Ierace J at [5]
Before: Stern JA at [1], Hamill J at [2], McNaughton J at [3]
Before: Cole DCJ
Before: Haesler SC DCJ
Before: Haesler SC DCJ
Before: Nichols AC
Before: Washington C
Before: Walsh C
Before: Pike J
Before: Davies J
Before: Stevenson J
Before: Sullivan J
Before: Crowley J