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The New South Wales Civil and Administrative Tribunal (NCAT) is a specialist tribunal which has the power to hear a broad range of matters. If you are looking to appeal an NCAT decision, there are a few considerations to keep in mind. 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 set out:

  • what decisions are appealable
  • the appeals process; and
  • the alternatives to an appeal.

What Decisions are Appealable?

The Civil and Administrative Tribunal Act 2013 (‘the Act’) allows you 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?

You 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).

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

  • NCAT has imposed a civil penalty (usually a fine);
  • it is an external appeal; or
  • 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:

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 (pausing) 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 (a claim made solely to harass the opposing party)
  • frivolous (a claim that has little chance of being won);
  • an abuse of process; or
  • unable to be brought because there is no reasonable claim at law.

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;
  • cost to the parties and NCAT; and
  • 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 the final oral hearing of the appeal;
  • at the 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?

If you are able to appeal an NCAT decision, the process for you 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. give the sealed Notice of Appeal to the party you are suing;
  5. receive a Reply to Appeal from your opponent within 14 days;
  6. receive Notice of Directions Hearing or “call over” within 28 days. A directions hearing is a brief hearing in front of the judge. The judge is able to discuss the progress of the appeal with both parties and give both parties instructions;
  7. comply with any directions made at the directions hearing for filing and delivery of submissions;
  8. the directions hearing will either order another directions hearing, alternative dispute resolution or an Appeal Panel hearing;
  9. the file will be closed if it is resolved or, if not resolved, set down for an Appeal Panel hearing;
  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 has 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. For example, typographical errors or inconsistency between the orders and the reasons for the decision.

Key Takeaways

Unlike most courts and tribunals, not all NCAT decisions are appealable. Depending on the type of decision, you may or may not be able to appeal. If you are unable to appeal, you should explore whether you may be able to appeal to the Supreme Court, Land Environment Court or Court of Appeal. In addition, you may have to seek permission from NCAT to appeal. If you have questions about appealing an NCAT decision, get in touch with LegalVision’s dispute resolution lawyers on 1300 544 755 or fill out the form on this page.

Please note that you may need permission from NCAT to have a lawyer represent you at hearings.

 

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