Kelly v Szatow [2020] NSWSC 407

Supreme Court New South Wales

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 Burns (2017) 96 NSWLR 247; [2017] NSWCA 3 Cornish v Secretary, Department of Planning, Industry and Environment [2019] NSWSC 1134 Crane v Mission to Seafarers Newcastle Inc [2018] NSWSC 429 Davis v NSW Land and Housing Corporation [2016] NSWCA 325 Doula Spirit Pty Ltd v Andrew Argyrou [2014] NSWCATCD 227 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; (2003) 77 ALJR 1088 Gallo v Dawson (1990) HCA 30; 93 ALR 479 Gaynor v Burns [2016] NSWCA 44 House v The King (1936) 55 CLR 499 Jackamarra v Krakouer (1998) 195 CLR 516 at [3]-[5] Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 Jones v Sutton (No 2) [2005] NSWCA 203 Kelly v Smith [2018] NSWCATAD 122 Kelly v Szatow [2018] NSWCATOD 64 Kirk v Industrial Relations Commission of New South Wales [2010] HCA Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; 241 CLR 390 Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262 McGinn v Ashfield Council [2012] NSWCA 238 per McColl JA at [17] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration v SZVFW [2018] HCA 30; 357 ALR 408 Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289 Tomko v Palasty (No 2) [2007] NSWCA 369 at [55] Trust Company Ltd v Diamond Certification Laboratory of Australia Pty Ltd [2016] NSWCATAP 63 Uniform Civil Procedure Rules 2005 (NSW) Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 Whall v Stamp [2019] NSWCA 163 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 Woodhouse v Thalis [2018] NSWCA 97 Texts Cited: Category: Procedural and other rulings Parties: Peter Kelly (Plaintiff) Cheryl Szatow (First Defendant) Martin Smith (Second Defendant) Donna Greenfield (Third Defendant) Jeff Pettett (Fourth Defendant) Representation: Counsel: PE King (Plaintiff) M Hall (Defendants)