Kelly v Szatow

Case [2020] NSWSC 407


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Kelly v Szatow [2020] NSWSC 407
Hearing dates: 16 July 2019
Date of orders: 16 April 2020
Decision date: 16 April 2020
Jurisdiction:Common Law - Administrative Law
Before: Harrison AsJ
Decision:

THE COURT ORDERS THAT:

 

(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
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 4, 28, 29, 60, 82, 83; cl 29 Sch 5
Civil Procedure Act 2005 (NSW), ss 56, 57, 58
Local Government Act 1993 (NSW), ss 329, 440
Local Government (General) Regulation 2005 (NSW), reg 290
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 50.3, 50.12, 50.16A
Cases Cited: Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATOD 137
Attorney General v Wentworth (1988) 14 NSWLR 481
Australian Securities & Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290; (2003) 202 ALR 450
Bauskis v Liew [2013] NSWCA 297
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Bourne v Murphy [1996] NSWCA 59
Bridge v Bowen [1916] HCA 38; (1916) 21 CLR 582
Briscoe-Hough v Tegg [2018] NSWCATAD 108
Burns v Corbett; Gaynor v…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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