Changes to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) commenced on 20 September 2023 following assent to the Civil and Administrative Tribunal Amendment Act 2023 (NSW) (Amendment Act).

The Amendment Act implements recommendations that arose out of the Report of the Statutory Review of the NCAT Act, tabled in December 2021. This report concluded that the NCAT Act was generally appropriate to achieve its objectives specified in section 3. Changes to support the resolution of proceedings were proposed and have now been implemented.

Many of the amendments relate to proceedings under the Tribunal's Guardianship Division. However, some procedural changes will have an impact on proceedings relating to other divisions, including the Consumer and Commercial Division, which is the focus of this article.

Key changes

Written reasons for decisions

Section 62(2) of the NCAT Act requires the Tribunal, upon request by a party, to provide a written statement of reasons for a decision.

The Amendment Act's insertion of section 62(2A) exempts certain decisions from this requirement. This includes a decision to make an order dispensing with a hearing, a decision to grant an adjournment, a decision to not award costs (except if special circumstances were argued), a decision to award costs in the Consumer and Commercial Division or on internal appeal from that division, to make an order by consent between parties and other minor procedural decisions that do not have a final or determinative impact on the rights of the party.

According to the Amendment Act's second reading speech, this will allow the Tribunal to ensure that resources are focused on the efficient resolution of substantive issues in proceedings.

This amendment mirrors section 122(4) of the Queensland Civil and Administrative Tribunal Act 2009 which states that the general right to written reasons does not include specified decisions.

It is unclear how section 62(2A) (c) and (d) sit together, if for example, there was a decision to not award costs where special circumstances were argued in the Consumer and Commercial Division.

More generally, by exempting the Tribunal from providing written reasons for decisions to award costs in the Consumer and Commercial Division, parties may be hindered in deciding whether to appeal a costs decision or in formulating their grounds of appeal. It should be remembered that the Consumer and Commercial Division includes building claims with a value up to $500,000, where costs can be significant.

Enforceability of a Summons

Section 73(2) of the NCAT Act provides that a person is guilty of contempt of the Tribunal if the person, without reasonable excuse, does or omits to do anything that, if the Tribunal were a court of law having the power to commit for contempt, would be contempt of that court.

Before the Amendment Act, there was uncertainty as to whether rule 33.12 of the Uniform Civil Procedure Rules 2005 (NSW) applied to a summons issued by the Tribunal under section 48 of the NCAT Act. Rule 33.12 provides that failure to comply with a subpoena without a lawful excuse was contempt of court. A summons is the Tribunal's equivalent to a subpoena.

The Amendment Act has clarified this ambiguity by inserting section 73(2A). This subsection explicitly provides that a person is guilty of contempt of the Tribunal if they fail to comply with a summons issued by the Tribunal, without a reasonable excuse.

It is worthwhile remembering that in relation to contempt of the Tribunal, the Tribunal may exercise the same procedural powers as the District Court. That includes the power to issue a warrant, to keep in custody pending disposal of the charge and to issue a maximum fine of 20 penalty units or 28 days imprisonment. Both good reasons to take compliance seriously.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.