The New South Wales Civil and Administrative Tribunal (NCAT) is a specialist tribunal which has jurisdiction to hear a broad range of matters. Although you have the right to appeal most decisions in most courts and tribunals, not all decisions handed down by the NCAT are appealable. This article will then set out what decisions are appealable, the appeal process and the alternatives to an appeal.

What Decisions are Appealable?

The Civil and Administrative Tribunal Act 2013 (‘the Act’) allows parties to appeal or seek permission to appeal to an NCAT Appeal Panel from decisions made in the following divisions:

  • Administrative and Equal Opportunity;
  • Guardianship;
  • Occupational (but only those relating to occupations licensed by state law and regulated by state authorities such as builders, mechanics and real estate agents); and
  • Consumer and commercial.

It may also be possible to appeal decisions of a registrar that are declared to be appealable decisions.

What Decisions are not Appealable?

Parties cannot appeal an NCAT decision made in the following divisions:

  • Administrative and Equal Opportunity (but only those relating to certain legislation such as Anti-Discrimination, Child Protection or Native Title); and
  • Occupational (but only those relating to certain professions such as medical, health and legal).

Parties also cannot appeal an NCAT decision made in the following proceedings:

  • Where NCAT has imposed a civil penalty;
  • Where it is an external appeal; or
  • Where the internal Appeal Panel has made the decision.

Where it is not possible to appeal a decision, it may be possible to appeal to the:

  • Supreme Court;
  • Land and Environment Court; or
  • Court of Appeal.

What are the Different Types of Decisions?

NCAT can make three different kinds of decisions. These decisions are either:

  • Final (which determine the outcome of the proceedings);
  • Ancillary (which is preliminary to a final decision); and
  • Interlocutory (which is concerned with adjourning a hearing, issuing a summons or summary dismissal of proceedings).

A summons is a type of order which directs a party to appear before a judge or magistrate. Summary dismissals are decisions which will ‘throw out’ a claim for being either vexatious or frivolous, an abuse of process, or where there is no reasonable cause of action.

When Do You Have the Right to Appeal an NCAT Decision and When Do You Need Permission?

Your rights to appeal a decision depend on whether the decision is final, ancillary or interlocutory.

For example, you will have the right to appeal against a final or ancillary decision when you are appealing on a question of law. That is when there is a dispute as to the interpretation of the law. However, you will always require permission when appealing an interlocutory decision.

What Will NCAT Consider When Deciding to Grant Permission?

When deciding whether to grant permission to appeal, the Appeal Panel will consider whether:

  • The matter involves issues of clear injustice, principle or questions of public importance;
  • The cost to the parties and NCAT; and
  • The appeal is proportionate to the importance and complexity of the subject matter of the proceedings.

The NCAT will determine whether permission is granted to appeal an interlocutory decision at either the:

  • Final oral hearing of the appeal;
  • Oral hearing before the final hearing; or
  • On the basis of the written submissions without an oral hearing.

What is the Process if You Want to Appeal an NCAT Decision?

The process for an applicant to appeal a decision usually involves the following steps:

  1. Complete a Notice of Appeal form;
  2. Lodge the Notice of Appeal within 28 days;
  3. Pay the prescribed fee or complete a fee waiver request form;
  4. Serve the sealed Notice of Appeal on the respondent;
  5. Receive a Reply to Appeal from the respondent within 14 days;
  6. Receive notice of directions hearing or “call over” within 28 days;
  7. Comply with any directions made for filing and service of submissions;
  8. Refer for formal directions, alternative dispute resolution or set down for hearing;
  9. File to be closed if it is resolved or set down for the Appeal Panel hearing if not resolved;
  10. Attend the hearing; and
  11. Receive a decision.

What are the Alternatives to an Appeal?

An appeal may not always be possible or even appropriate where there is a difficulty or problem with an NCAT decision.

As an alternative to an appeal, a party may ask the tribunal to do the following:

  • Set aside the decision (but only where all parties agree or where the NCAT made a decision without one of the parties);
  • Set aside the proceeding or decision (but only where there has been a failure to comply with the law or procedural rules); or
  • Correct an error in a decision or the reasons for a decision such as typographical errors or inconsistency between the orders and the reasons for the decision.

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Do you need assistance with appealing an NCAT decision? You may need to request permission to have a lawyer represent you but we would be happy to help! Get in touch with our disputes lawyers on 1300 544 755.

Rachel Amiri

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