Al Bisher v Sabbagh [2021] NSWCATAP 100

Al Bisher v Sabbagh [2021] NSWCATAP 100

The procedural fairness appeal failed because the tenants, despite directions, did not provide a typed copy of the relevant parts of the lengthy sound recording or the oral reasons, leaving the Appeal Panel unable, consistently with the guiding principle in the NCAT Act, to determine what occurred at the hearing. The tenants had also repeatedly failed to comply with prior directions to provide their evidence, and any refusal to allow late photographs was taken to have followed that non-compliance. Leave to appeal was refused because the photographs were not evidence arising since the hearing, and the Appeal Panel was not satisfied that any factual error or substantial miscarriage of...

Jurisdiction
Australia
Judgment Date
22 April 2021
Procedural Posture
Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 (nsw) / Appeal Panel Decision on Appeal and Application for Leave to Appeal From Consumer and Commercial Division Decision Dated 13 January 2021
Outcome
Leave to appeal refused; appeal dismissed.
Legal Topics
['procedural Fairness' 'leave to Appeal' 'non Compliance With Tribunal Directions' 'sound Recording and Oral Reasons' 'new Evidence' 'weight of Evidence']
['administrative Law' 'residential Tenancy' 'civil Procedure'] ['procedural Fairness' 'leave to Appeal' 'non Compliance With Tribunal Directions' 'sound Recording and Oral Reasons' 'new Evidence' 'weight of Evidence']

Case Brief

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Procedural Posture

Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 (nsw) / Appeal Panel Decision on Appeal and Application for Leave to Appeal From Consumer and Commercial Division Decision Dated 13 January 2021

Legal Issues

  1. 1 ['Whether the Tribunal failed to afford procedural fairness by refusing to permit the tenants to email and rely on photographs during the hearing.' 'Whether leave to appeal should be granted on the basis that the decision was against the weight of evidence or that the photographs were significant new evidence not reasonably available at the time of the hearing.' "Whether the appellants' failure to provide a typed copy of relevant parts of the sound recording, including oral reasons, prevented the Appeal Panel from determining the procedural fairness complaint."]

Ratio Decidendi

The procedural fairness appeal failed because the tenants, despite directions, did not provide a typed copy of the relevant parts of the lengthy sound recording or the oral reasons, leaving the Appeal Panel unable, consistently with the guiding principle in the NCAT Act, to determine what occurred at the hearing. The tenants had also repeatedly failed to comply with prior directions to provide their evidence, and any refusal to allow late photographs was taken to have followed that non-compliance. Leave to appeal was refused because the photographs were not evidence arising since the hearing, and the Appeal Panel was not satisfied that any factual error or substantial miscarriage of...

Court Disposition

Leave to appeal refused; appeal dismissed.

Orders

  • ['Leave to appeal refused.' 'Appeal dismissed.']