Australia: Tribunals system in NSW reformed by establishment of NSW Civil and Administrative Tribunal (NCAT)

In brief - Consolidation of tribunal system to create efficiencies and better access to justice

NCAT creates a single point of access, reduces complexity and creates greater efficiency, consistency and transparency across the NSW tribunal system.

NSW Attorney General announces consolidation of tribunal system

On 26 October 2012, the NSW Attorney General, Greg Smith SC, announced consolidation plans for the state's tribunal system, intended to provide a single gateway for tribunal services and "a simple, quick and effective process for resolving disputes, supervising occupations and reviewing executive action".

This gateway is the NSW Civil and Administrative Tribunal, which commenced operations on 1 January 2014. NCAT's president, Justice Robertson Wright SC, was appointed on 16 October 2013.

Establishment of one-stop shop to replace "complex and bewildering" system

A parliamentary inquiry by the Legislative Council's Standing Committee on Law and Justice between October 2011 and March 2012 reviewed the potential for consolidating NSW tribunals and recommended consolidation because the existing system was "complex and bewildering". The establishment of a new tribunal that would act as a "one-stop shop" would promote better access to justice and create efficiencies.

Following the Committee's recommendations, the NSW Parliament passed the:

The Civil and Administrative Tribunal Act 2013 No 2 (NSW) ("the Act") consolidates this legislation and came into effect on 1 January 2014.

NCAT provides single point of access for tribunals in NSW

There are currently around 30 individual tribunals or tribunal-like bodies operating within NSW. From 1 January 2014, over 20 of these tribunals were incorporated into NCAT. Applicants will no longer need to apply to an individual tribunal, but can take advantage of the new single point of access and apply directly to NCAT, which will allocate a matter to the appropriate tribunal.

This single point of contact will start with a new website (with the website of each individual tribunal redirected to the NCAT website from the new year) and, from the perspective of its advocates, will create greater consistency and transparency across the tribunal services system, with common processes and infrastructure and the added benefits of the efficiencies expected by the consolidation of back end services.

Is NCAT the same as the "super tribunals" in other Australian jurisdictions?

NCAT will take note from the successes and the lessons learned from the "super tribunals" in Victoria, Queensland, Western Australia and the ACT, yet it will differ in at least one respect. The Attorney General confirmed that a "one size fits all" approach would not be taken in NSW, with the existing specialities of individual tribunals preserved to maintain this expertise.

The tailoring of NCAT to meet the needs of its users will see the creation of four divisions, with each of the existing tribunals to be grouped by their common elements within each division.

Existing tribunals categorised into four divisions under NCAT

Each existing tribunal (which will be known as a "list" or "subdivision") will form part of one of four distinct divisions of NCAT, grouped by specialities or common elements as follows:

  • the Administrative and Equal Opportunity Division which will include the Administrative Decisions Tribunal
  • Consumer and Commercial Division which will incorporate the Consumer, Trade and Tenancy Tribunal (CTTT)
  • Occupational Division which will include the professional discipline of lawyers
  • Guardianship Division which will include the Guardianship Tribunal

The NCAT president, who must be a Supreme Court judge to ensure the independence of the tribunal, will be assisted by four deputy presidents (who must also be qualified lawyers of seven years or judicial officers) to head up each division. The Act also provides for senior members to be appointed to a list to bring additional experience or expertise to the running of the list.

What impact will these changes have on the CTTT?

The CTTT was established by the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (repealed) with the objective of:

  • establishing a tribunal to determine disputes within its jurisdiction
  • ensuring that the CTTT was accessible, that its proceedings were efficient and effective and that its decisions were fair
  • enabling proceedings to be determined in an informal, expeditious and inexpensive manner
  • ensuring the quality and consistency of the CTTT's decision-making

From 1 January 2014 however, the CTTT will no longer act as a stand-alone tribunal, instead forming part of NCAT. As the Consumer and Commercial Division, each of its activities will form one of the lists within this division (eg the Consumer claims list or the Residential tenancies list).

NCAT to be accessible and to resolve proceedings efficiently and fairly

The Act has not sought to change the objectives or the way in which the tribunals (including the CTTT) operate. It provides for NCAT to:

  • enable the resolution of proceedings justly, quickly, cheaply and with as little formality as possible
  • ensure that it is accessible and responsive to the needs of all of its users
  • ensure that its decisions are timely, fair, consistent and of a high quality
  • ensure that it is accountable and has processes that are open and transparent

Successful elements of CTTT operations to be rolled out across NCAT network

One significant change though sees the Consumer and Commercial Division now falling within the jurisdiction of the Department of Attorney General and Justice rather than the Department of Fair Trading, a move that means the NCAT lists will be able to use the court infrastructure (rather than the Fair Trading offices) throughout NSW to provide greater access in regional areas.

Other than that, users should not expect to see any wholesale change in the processes or operations of the CTTT, with Stuart Westgarth remaining in charge as deputy president and division head of the Consumer and Commercial Division and with many of its rules, such as those concerning the requirement to seek leave to be legally represented, included within the Act.

Applications lodged before 1 January 2014 will not have to be resubmitted and the CTTT website will automatically redirect to the new NCAT site. Many of the successful elements of the CTTT's operations, such as the high number of applications submitted online, are to be expanded across the entire network of NCAT.

Residential building work and requirement to take part in dispute resolution process

Disputes with respect to residential building work carried out by a building contractor will no longer be referred to the CTTT but will be dealt with by the Consumer and Commercial Division of NCAT.

The change is not anticipated to impact future applicants. The NCAT application form for home building claims is in similar form to that of the CTTT, with NCAT's jurisdiction to deal with home building claims under the Home Building Act 1989 (NSW) the same as that of the CTTT pursuant to the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (NSW), which means that the jurisdictional limit of $500,000 and the time limits in which an application must be made remain the same.

One point to note is that despite the fact that this aspect of the work carried out by the Consumer and Commercial Division now forms part of the Department of Attorney General and Justice (rather than the Department of Fair Trading), applicants at present are still required to contact NSW Fair Trading before making an application to NCAT, where they may still be required to take part in a dispute resolution process and attach to their application to NCAT proof of such an attempt to resolve the dispute.

NCAT to have internal appeal panel to provide greater access to appeal system

The previous tribunal appeal system was seen to give its users very limited opportunity for their decisions to be appealed, with appeals in many instances proceeding to the District or Supreme Courts on a matter of law or procedural fairness.

NCAT changes this with an internal appeal panel for all four divisions. The president of NCAT sits on this appeals panel along with other senior members of the divisions and it is intended to provide greater access to the appeal system within the tribunal framework, in line with NCAT's mandate of access to justice.

NCAT will also have jurisdiction to hear external appeals in some circumstances and matters such as professional discipline matters may still see the preservation of existing rights to appeal directly to the court.

How will NCAT affect the operation of tribunal proceedings in NSW?

The establishment of NCAT is not expected to mark a wholesale change in the way NSW tribunal proceedings operate, with individual tribunals expected to continue to retain many existing procedures and rules, complemented by NCAT's procedural directions on specific issues such as service of documents.

A Rules Committee will be established within NCAT (and chaired by the president) to make rules of the Tribunal and to develop practice and procedure to be followed in proceedings. The NCAT Interim Rules are not yet finalised, with this aspect of development still a work in progress.

Suzie Hutchings James Neal
CBP Lawyers

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