(1) The plaintiff’s application for an extension of time to file an appeal is refused.
(2) The plaintiff’s application for leave to file an amended summons is refused.
(3) The plaintiff’s application for leave to appeal in relation to, firstly, the decision of the Senior Member of NCAT as to costs dated 4 May 2019 in proceedings 2017/343156 and 2017/242149; secondly, the decision of the Senior Member of NCAT as to costs dated 2 July 2018 in proceedings 2017/343134; and thirdly, the decision of the Appeal Panel of NCAT dated 24 July 2018 in proceedings 2018/22632; are refused.
(4) The plaintiff’s appeals in relation to, firstly, the decision of the Senior Member of NCAT dated 21 February 2018 in proceedings 2017/343156 and 2017/242149; and secondly, the decision of the Senior Member of NCAT dated 5 June 2018 in proceedings 2017/343134; are dismissed.
(5) In proceedings 2017/343156 and 2017/242149, the decisions of the Senior Member of NCAT dated 21 February 2018, and as to costs dated 4 May 2019, are affirmed.
(6) In proceedings 2018/22632, the decision of the Appeal Panel of NCAT dated 24 July 2018 is affirmed.
(7) In proceedings 2017/343134, the decisions of the Senior Member of NCAT dated 5 June 2018, and as to costs dated 2 July 2018, are affirmed.
(8) Costs are reserved.
Catchwords:
APPEAL – NSW Civil and Administrative Tribunal – Appeal in relation to five decisions concerning the Local Government Act 1993 (NSW) – Where the Tribunal lacked jurisdiction to hear the plaintiff’s claim – Where there was no evidence to support the plaintiff’s claim – Application of cl 29 Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW) to appeal a “profession decision” to the Supreme Court – Leave to appeal in relation to three costs decisions refused – Appeal in relation to two remaining decisions dismissed
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Kelly v Szatow [2020] NSWSC 407
Case
[2020] NSWSC 407
Decision Date
CaseChat Overview and Summary
In the case of Kelly v Szatow, the plaintiff sought to challenge five decisions made by the NSW Civil and Administrative Tribunal (NCAT) regarding the Local Government Act 1993 (NSW). The primary dispute involved whether the Tribunal had jurisdiction to hear the plaintiff's claim and whether there was sufficient evidence to support the plaintiff's allegations. The case was heard in the Supreme Court of New South Wales, where the plaintiff sought to appeal several decisions made by the NCAT.
The legal issues before the court were twofold: firstly, whether the NCAT had the requisite jurisdiction to hear the plaintiff's claim, and secondly, whether there was adequate evidence to substantiate the plaintiff's claims against the defendant. Additionally, the court considered the applicability of clause 29 of Schedule 5 of the Civil and Administrative Tribunal Act 2013 (NSW) in relation to the plaintiff's appeal of certain "professional decisions" to the Supreme Court. The court also had to determine the appropriate course of action regarding the plaintiff's application for leave to appeal three specific costs decisions.
The court found that the NCAT did not have the necessary jurisdiction to hear the plaintiff's claim as it fell outside the scope of the Local Government Act 1993 (NSW). Furthermore, the court concluded that there was insufficient evidence to support the plaintiff's claims. The court determined that clause 29 of Schedule 5 of the Civil and Administrative Tribunal Act 2013 (NSW) did not apply in this instance, thereby dismissing the plaintiff's appeal concerning three costs decisions. Ultimately, the appeal in relation to the two remaining decisions was dismissed, leaving the original decisions of the NCAT intact.
In summary, the court dismissed the plaintiff's appeal, maintaining the decisions of the NCAT. The plaintiff's application for leave to appeal concerning the three costs decisions was also refused. Consequently, the original decisions of the NCAT remained unchallenged and enforceable.