CAN A LAWYER REPRESENT A PARTY IN NSW CIVIL & ADMINISTRATIVE TRIBUNAL (NCAT)
About the NSW Civil and Administrative Tribunal
The New South Wales Civil and Administrative Tribunal (NCAT) was established in January 2014. NCAT is governed by the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). NCAT replaced 22 former NSW tribunals exercising their jurisdiction across many areas of law, including the Consumer, Trader and Tenancy Tribunal (CTTT) into super tribunals .
There are three types of lawyers who appear in NCAT
Those who appear as of right, those who appear by leave of the Tribunal and those who appear as respondents in legal professional disciplinary proceedings in the Tribunal’s Occupational Division.1
Divisions of Tribunal
NCAT is divided into four specialist divisions and an internal Appeal Panel:
• Administrative and Equal Opportunity;
• Consumer and Commercial;
• Guardianship; and
Legal representation is not as of right in NCAT
NCAT has jurisdiction to determine tenancy disputes in a way that is just, quick and cheap with as little formality as possible. Claims filed in NCAT pursuant to the provisions of the Residential Tenancies Act 2010 (NSW) (RT Act), a party in all proceedings in the Consumer and Commercial Division has the carriage of their own case and is not entitled to be represented by any person, unless the Tribunal grants leave.2 Such leave, however, may be granted under s 45(1)(b)(i)(ii) of the NCAT Act. Thus a party to a tenancy dispute may seek to be represented by their real estate agent or a legal practitioner. Under s 45(2) of the NCAT Act representation is permitted without the leave of the Appeal Panel in an internal appeal if the party had a right to be represented. Exceptions to this rule are contained in the division schedules for a specific case.
NCAT’s jurisdiction and interstate party disputes
The High Court held in Burns v Corbett  HCA 15 that NCAT does not have jurisdiction to hear matters arising between residents of different States of Australia. For instance, where the landlord is a resident of one State and the tenant a resident of a different State. However, in a recent decision in Johnson v Dibbin; Gatsby v Gatsby  NSWCATAP 45, NCAT Appeal Panel held that the Tribunal is a “court of State” capable of exercising jurisdiction between cross-border residents. The Attorney General appealed the decision to the NSW Court of Appeal against NCAT Appeal Panel claiming that the Tribunal has no jurisdiction between residents of different States. The NSW Court of Appeal held that the Tribunal was exercising judicial power. It found that the Tribunal is not a court of a State and did not have authority to determine matters between residents of different States. This issue relates to residents of different States, not Territories. Therefore, NCAT has jurisdiction to deal with matters where one of the parties is a corporation, a resident of a Territory and a nonpermanent resident of a different State. It also follows that NCAT still has jurisdiction to deal with matters if a party resides outside of Australia. Such matters are common in residential disputes.
Application for leave to represent a party
An application by a person — not just a legal practitioner under s 45 of the NCAT Act may be made orally or in writing at any stage in the proceedings.3 In considering the application under rule 32(1) of the Civil and Administrative Tribunals Rules 2014 (NSW) (NCAT Rules) the Tribunal may have regard to:
(a) such of the following circumstances as it considers are relevant to the proceedings:
(i) whether the proposed representative has sufficient knowledge of the issues in dispute
to enable him or her to represent the applicant effectively before the Tribunal;
(ii) whether the proposed representative has the ability to deal fairly and honestly with
the Tribunal and other persons involved in the proceedings;
(iii) whether the proposed representative is vested with sufficient authority to bind the
(b) any other circumstances that it considers relevant.
Costs do not always follow the event
An important feature in which NCAT differs from the courts in respect to legal costs in Consumer and Commercial Division of the Tribunal. Under s 60(1) of the NCAT Act, the general rule is that each party to proceedings will have to bear their own legal costs unless circumstances justifying a costs order against the unsuccessful party.4
Notwithstanding s 60 of the NCAT Act, rule 38(2) of the NCAT Rules apply to proceedings in the Consumer and Commercial Division for which legal costs may be awarded
where there are no special circumstances, NCAT will award if:
(a) the amount claimed or in dispute in the proceedings is more than $10,000 but not
more than $30,000 and the Tribunal has made an order under clause 10 (2) of
Schedule 4 to the Act in relation to the proceedings; or
(b) the amount claimed or in dispute in the proceedings is more than $30,000.
Costs of representation may be disclosed
Under rule 33 of the Rules, the Tribunal may require the person representing the party to disclose the estimated cost of representation by the person.
If an application for leave is refused by NCAT
If the Tribunal rejects your application to appear in the proceedings, you can still assist a party by drafting their application to the Tribunal, prepare their statement and draft his or her submissions. There is the option of a McKenzie friend (a support person), where you can attend the hearing and provide assistance and advice to the self-represented litigant. But as a McKenzie friend you have no right to address the court on behalf of the self-represented litigant.
About PETERBURG OPPENLÄNDER
Peterburg Oppenländer is national law firm headquartered in Sydney city providing quality and innovative legal services and business solutions to individuals and corporations in a changing world.
+61 2 8747 0326