In Short
- NCAT encourages self-representation, but you can request legal representation.
- A lawyer can represent you if the tribunal grants permission or in certain cases where permission is not needed.
- Non-lawyer representatives may also be approved if qualified.
Tips for Businesses
If your business is facing an NCAT matter, consider if legal representation is necessary. Lawyers are permitted in some circumstances, especially when the case involves complex legal issues. You can also authorise a knowledgeable non-lawyer representative.
As a business owner or individual, you may find yourself before the NSW Civil and Administrative Tribunal (NCAT) when resolving a commercial dispute or personal matter. Whilst NCAT encourages self-representation to minimise costs, you can request that a lawyer represent you at any time during the proceedings. This article will explore in what circumstances legal representation can be beneficial, how tribunals can grant this permission and in what circumstances permission is unnecessary.
What is NCAT?
NCAT, which stands for the NSW Civil and Administrative Tribunal, is a tribunal service that deals with various matters including:
- tenancy issues;
- home building disputes; and
- consumer claims.
You will need to complete and lodge an application to start proceedings with NCAT. The application may result in a hearing before a Tribunal Member, but you also have the opportunity to resolve your matter without a hearing. The tribunal can order you to undergo alternative dispute resolution, for example, through preliminary conferences, conciliation and mediation.
Since NCAT deals with claims relevant to the everyday person, it encourages parties to represent themselves in hearings. This allows people to reduce costs and provides an accessible and efficient way to resolve disputes.
However, you may wish to have a representative present your case for you, especially if the other party has legal representation or if the matter is a complex commercial dispute involving a significant amount of money. While self-representation is encouraged for accessibility and efficiency, you can request a representative present your case. NCAT may give permission or ‘grant leave’ once you make a request for representation.
This guide provides key information on how to manage a business dispute as quickly and cost-effectively as possible.
How Do I Make a Request for Representation?
You must submit a request for representation in writing and set out the following information:
- the file number and parties’ names;
- the reason why you are seeking representation;
- the name and occupation of your proposed representative; and
- a statement that your proposed representative has your permission to make binding decisions without you.
Seeking Permission for a Lawyer to Represent You
The tribunal will typically give permission in circumstances where the:
- other party is a lawyer or has legal representation;
- other party is a government agency;
- tribunal believes not having representation will put you at a disadvantage; or
- tribunal believes you should be represented because there will be complex issues of law or fact in the proceedings.
Can Someone Other than a Lawyer Represent Me?
There is no requirement for your representation to be a lawyer. Your representative could also be a real estate agent if you are a landlord or an advocate, friend or family member. However, you will have to authorise this representative to act and make decisions on your behalf.
The tribunal will consider a variety of factors when determining whether to allow a non-lawyer to represent you. These include if your proposed representative:
- has sufficient knowledge of the issues to represent you effectively;
- can deal fairly and honestly with the tribunal; and
- has permission to make decisions on your behalf.
Represented Without Permission
There are limited circumstances when permission of the tribunal is not required to be represented. These include where you:
- have been granted legal assistance under the Fair Trading Act 1987 (NSW);
- are a party to proceedings under the Retail Leases Act 1994 (NSW); or
- are a resident of a retirement village and your representative is a resident or the Residents Committee.
Should I Have a Lawyer Represent Me?
When making a decision as to whether you should have a lawyer represent you, there are several things to consider. The first is whether the tribunal would allow you to be represented by a lawyer.
Beyond this, however, it is important to consider and weigh up the potential benefits against the anticipated legal fees of engaging a solicitor. In situations where the value of your matter is reasonably high, it is more practical for you to engage a legal practitioner. For low-value disputes, self-representation may be a more commercial option.
Alternatively, where you are aware the other party has engaged a solicitor, it may be wise to do so yourself. The power imbalance is an element to be considered by both the tribunal and other parties to the matter as it can significantly impact the outcome of the case.
Key Takeaways
There are a number of elements to consider when determining whether a lawyer can or should represent you at NCAT. While the tribunal will ultimately decide whether you can appoint a lawyer, it is important to consider your best options.
If you are involved in a dispute, our experienced litigation lawyers can assist you as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
You may engage a lawyer to represent you at NCAT as long as you have received approval from the tribunal. Alternatively, you may choose to have someone else represent you at NCAT (such as your real estate agent or a family member who is familiar with NCAT’s processes), but you should ensure that they have the background required, can deal fairly and honestly with the tribunal and have permission to make decisions on your behalf.
The tribunal’s website offers a great deal of information and details on the processes and procedures. If you are in doubt, you can call the registry, which can provide guidance. The registry cannot provide legal advice but can point you in the right direction with any procedural issues.
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