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As a business owner, you may encounter the NCAT during the resolution of your commercial dispute.  Whilst NCAT encourages self-representation to minimise costs, you can make a request to have a lawyer represent you at any time during the proceedings.  This article will explore how courts can grant this permission and in what circumstances permission is unnecessary. 

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What is NCAT?

NCAT, which stands for the NSW Civil and Administrative Tribunal, is a tribunal service that deals with a range of matters. These include: 

  • 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 the use of preliminary conferences, conciliation, and mediation.

NCAT encourages parties to represent themselves in hearings or otherwise to reduce costs and to provide an accessible and efficient way to resolve your dispute. However, it may be possible to have a representative present your case for you. NCAT may give permission or “grant leave” once you make a request for representation.

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 decisions without you that are binding.

You can apply before the tribunal hears your matter or at the hearing. However, the Tribunal Member will decide on the day whether to grant you permission for representation.

Seeking Permission for a Lawyer to Represent You

The Tribunal will typically give permission in the following circumstances:

  • The other party is a lawyer or has legal representation.
  • The other party is a government agency.
  • The Tribunal believes not having representation will put you at a disadvantage; or
  • the 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?

Yes! Your representative could also be a real estate agent if you are a landlord or an advocate, friend, or family member. However, you would 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).
  • You are a party to proceedings under the Retail Leases Act 1994 (NSW); or
  • you are a resident of a retirement village and your representative is a resident or the Residents Committee according to law.

Should I Have a Lawyer Represent Me? 

When making a decision as to whether you should have a lawyer represent you, there are a number of things to consider. The first, of course, is whether the Tribunal would allow you to be represented by a lawyer. 

Beyond this, however, it is important to consider the cost implications of engaging a solicitor. In situations where the value of your matter is reasonably high, you may be more likely to engage a legal practitioner. 

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 have the final decision as to whether you can appoint a lawyer, it is important to consider your best options. 

If you are unsure or are looking for guidance, 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

Can I have a lawyer represent me at NCAT?

Yes, you can have a lawyer represent you at NCAT. However, in most circumstances, you will be required to request permission from the Tribunal prior to having a lawyer represent you in your matter. 

Who can represent me at NCAT?

You may engage a lawyer to represent you at NCAT, so 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 or friend who is familiar with NCAT’s processes) but just be sure they have the background required, can deal fairly and honestly with the Tribunal and have permission to make decisions on your behalf.

Will I be appointed a lawyer at NCAT?

The Tribunal will not appoint you a lawyer but there are limited circumstances under which you will not need to apply to be represented by a lawyer.

If I am unable to appoint a lawyer, how can I better understand NCATs’ processes? 

The Tribunals website offers a great deal of information and details on the processes and procedures. If you are ever in doubt, you can call the registry which can provide you with some guidance. The registry will not be able to provide you with legal advice but can point you in the right direction with any procedural issues.

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