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| NCAT Appeal Decisions Digest April 2015 Decisions
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The NCAT Appeal Decisions Digest is a regular newsletter providing keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
Under the Civil and Administrative Tribunal Act 2013, parties have a right to appeal to the internal Appeal Panel from any decision made by the Tribunal in proceedings for a general decision or an administrative review decision. Detailed information about appeals is available on the NCAT website.
The following NCAT Appeal Panel decisions were handed down during the month of April 2015. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65
Consumer & Commercial Division - Motor Vehicle
Judgment of: WRIGHT J, President; M HARROWELL; J REDFERN, Principal Members Catchwords: ADMINISTRATIVE LAW – administrative tribunals – Civil and Administrative Tribunal (NSW) – duty to give reasons for decision – reasons inadequate – appeal allowed; CORPORATIONS – other matters – service – Corporations Act 2001 (Cth), s 109X – service by post on registered address of company – whether deemed service amounted to a reasonable opportunity to be heard or have submissions considered – no reasonable opportunity in this case; APPEAL AND NEW TRIAL – Civil and Administrative Tribunal Act 2013 (NSW), s 80(3) – whether to remit proceedings to the Consumer and Commercial Division or deal with the appeal by way of new hearing – proceed by way of a new hearing in this case; PROCEDURE – civil – judgments and orders – amending, varying and setting aside – setting aside – Civil and Administrative Tribunal Regulation 2013 (NSW), cl 9 – principles – conditions for discretion to be enlivened – principles for exercise of discretion – whether deemed service amounted to a reasonable opportunity to be heard – order set aside; PROCEDURE – civil – judgments and orders – actions on judgments – conditional orders – Civil and Administrative Tribunal Act 2013 (NSW), s 58 – set aside order conditional upon payment of costs; PROCEDURE – civil – costs – recovery of costs – litigants in person – not Australian legal practitioner – recovery of out-of-pocket expenses but not for time expended |
| Paul Thomas Kenny and Patricia Leigh Kenny v Leighton Killalea [2015] NSWCATAP 66
Consumer & Commercial Division - Tenancy
Judgment of: J REDFERN, Principal Member; G MEADOWS, Senior Member Catchwords: APPEAL - Residential tenancies - breach of obligation to maintain residential premises in reasonable state of repair - notice to terminate lease - defect in notice - decision not fair and equitable and against the weight of evidence - appeal allowed and decision made in substitution |
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Salhab v Roads and Maritime Services [2015] NSWCATAP 67
Occupational Division - Administrative Review
Judgment of: A/Judge K P O'CONNOR AM, Deputy President; J LUCY, Senior Member Catchwords: PASSENGER TRANSPORT – Cancellation of driver authority – affirmed at first instance – appeal – procedural fairness - in-hearing room identification – unreliability and prejudice – caution to be exercised – held reference by the Tribunal to the in-hearing room identification without expressing caution not unfair in context of case – appeal dismissed |
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Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68
Administrative & Equal Opportunity Division - GIPA
Judgment of: A/Judge K P O'CONNOR AM, Deputy President; P MOLONY, Senior Member Catchwords: GOVERNMENT INFORMATION (PUBLIC ACCESS) – access application – substantially refused on various statutory grounds – review by Tribunal – agency decisions set aside as to part, remitted as to remainder – Appeal by agency – whether power to substitute a new decision after review application filed – decisions to refuse to confirm or deny existence of documents (s 58(1)(f)) - whether agency obliged to give reasons for such a refusal – approach to review of such decisions –review of refusal decisions (s 58(1)(d)) – appeal allowed. Government Information (Public Access) Act 2009, s 58 (1)(b); s 58(1)(d); s 58(1)(f) |
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Wright v Commissioner of Police (Costs) [2015] NSWCATAP 69
Administrative & Equal Opportunity Division - Equal Opportunity
Judgment of: A/Judge K P O'CONNOR AM, Deputy President; D PATTEN, Principal Member; A SCHAHILL, Senior Member Catchwords: COSTS – Equal opportunity jurisdiction – Complaint of unlawful discrimination in employment - Appeals from both parties against first instance decision – Usual rule no order as to costs – Complainant applied for a proportion of his costs of the proceedings before Appeal Panel – Respondent employer submitted that the usual rule apply – Consideration – Usual rule to apply. Civil and Administrative Tribunal Act 2013, s 60 |
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Prieston v Panyiotou [2015] NSWCATAP 71
Consumer & Commercial Division - Commercial
Judgment of: R TITTERTON; A P COLEMAN SC, Senior Members Catchwords: COSTS: Retail Tenancy and commercial matters; Challenge to exercise of discretion; whether starting point is that costs follow event. APPEAL: new evidence, whether discretion in respect to costs ought be exercised differently |
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