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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: Yasmin Allen AM
Before: Espinosa C
Before: Needham J
Before: Christensen AJ
Before: Ward P at [1]Adamson JA at [2]Ball JA at [3]
The Court of Appeal decided that an employer that misses the 42-day deadline for serving a pre-filing defence cannot later file a defence alleging contributory negligence. The reason is that contributory negligence affects liability, not just the amount of damages: deciding it requires assessment of both the worker’s and employer’s responsibility for the loss. The Court also held that a note suggesting a late defence could address contributory negligence did not change the proper meaning of the Act. It set aside the primary orders, struck out the defence and entered judgment for the worker, with damages still to be assessed.