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Crown Solicitor's Office

The Super Tribunal – tips for appearing in the NSW Civil & Administrative Tribunal when in the Administrative and Discrimination Division

Extracted summary of a seminar given by Elizabeth Raper, Barrister, 5th Floor, Wentworth Chambers

Cases are sometimes won or lost at directions hearings. They are also won or lost based on procedural errors. As a consequence knowing the correct procedure and particularities of the jurisdiction in which you are navigating and may appear is one of the best ways to ensure that the government agency you represent is best served.

If you are to be an effective advocate you will need to inspire the confidence of the Tribunal member before whom you appear.

In terms of inspiring confidence, this confidence is often won in the first moments that you appear. Tips for inspiring confidence include your ability to identify for the Tribunal member:

  • why it is that you are able to appear – identifying the source of power giving you leave to represent a party;
  • for whom you are appearing;
  • the nature and limits of the jurisdiction; and
  • where the Tribunal obtains the power to do what it is you are seeking.

Whilst these may appear minor and perfunctory, they are not. Procedural matters are extremely important in making sure the matter progresses in the best and most efficient way possible. Therefore, make sure you are up-to-date with the new procedures in the NSW Civil & Administrative Tribunal ("NCAT" or "the Tribunal").

NCAT is called the Super Tribunal because it is the amalgamation of 22 Tribunals including the Administrative Decisions Tribunal (ADT). It comprises of four divisions:

  • the Administrative and Equal Opportunity Division;
  • the Consumer and Commercial Division;
  • the Guardianship Division; and
  • the Occupational Division.

The first question you need to ask yourself is – what is my Division? What are the parts of the schedules that are relevant to me and what are the procedural directions relevant to me? These can all be found on the NCAT website.

Legislation

The Administrative Decisions Tribunal Act 1997 (NSW) has been amended and renamed the Administrative Decisions Review Act 1997 (NSW).

Those parts of the former Administrative Decisions Tribunal Act 1997 (NSW) which concerned the administrative review of decisions, the giving of reasons and the preparation of documents for review hearings before the Tribunal are now in the renamed legislation – the Administrative Decisions Review Act 1997 (NSW).

The procedural powers of the Tribunal are no longer in the Administrative Decisions Tribunal Act 1997 (NSW) but contained in the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act")  and its associated rules and regulations – the Civil and Administrative Tribunal Rules 2014 and the Civil and Administrative Tribunal Regulations 2013.

Composition of the Tribunal

The Tribunal is made up of the following:

  • Presidents (referred to as Your Honour or President);
  • Deputy Presidents (referred to as Your Honour or Deputy President) because they are judges or magistrates;
  • Principal Members addressed as Principal Member or Tribunal Member with surname;
  • Senior Members addressed as Senior Member or Tribunal Member with surname; and
  • General Members addressed as Tribunal Member or Tribunal Member with surname.

TIP: If you are unsure as to how to address a member always refer to them a scale up in the hierarchy.

Forms

  • All forms are available on the NCAT website for each Division
  • Examples of the forms available include applications for Interim Orders and Summonses
  • Note there are no forms for affidavits/witness statements and for pleadings

With respect to applications for Summonses, the procedure is largely the same. The first review is before the Registrar. It is always good to be detailed in your application to say why you are seeking the categories. For example:

  • state the nature of the claim before the Tribunal;
  • identify the dispute(s) within the claim that are relevant to the document production
  • identify the legal or factual issues
  • why the categories sought go to these issues; and
  • explain the scope of the documents including time period.

Note: there no forms for affidavits/witness statements or pleadings – it is advisable to cut and paste from the top of one of the application of summons to give evidence, the reference to NCAT, case name, parties names, who you are filing it for, then set out in orderly form in terms of how you would deal with it and that's the same with respect to pleadings.

Procedural Directions

See the general directions as well as those particular to your Division, for example:

  • Division specific – Administrative and Equal Opportunity Division Procedural Direction 4 "Anti-Discrimination Matters"
  • Division specific – Administrative and Equal Opportunity Division Procedural Direction 8 "Mediation"
  • General division – NCAT Procedural Direction 2 "Summonses"

Representation

Your right to appear is dependent on the Division you are in. Check the NCAT Act and the schedules for your Division.

  • For example – In the Admin/EO Division there is no need to seek leave (Sch 3, cl. 9 of the NCAT Act and para 3 of the Anti-Discrimination Matters Procedural Direction), but for Revenue matters there is.

TIP: Print out the legislation and have a copy at hand marked up so you can refer to the provisions you are relying on when you appear.

First case conference (Admin/EO Division)

  • the Tribunal member will complete a "Summary of Complaint" Form
  • discussion re amendments to the complaint, whether leave will be granted for the parties to be legally represented, the parameters of the complaint, applications for summonses and a timetable for the filing and service of statements and documents. (See the full summary of all the issues discussed at the case conference – paragraph 5.2 of the Anti-Discrimination Matters Procedural Direction)

It is different from many other jurisdictions – the first case conference, just like in the Federal Court and the Federal Circuit Court, will involve many of the issues in the case being traversed and there will be an expectation by the Tribunal that you are ready to discuss all those issues. The procedural direction at para 5.2 sets out in detail many of the issues.  Sometimes informal mediation may occur.

With respect to these conferences it's worth remembering that they're not all recorded. Therefore no transcript will be available of the decision. It is therefore vital for you to record as much as you can as accurately as possible in case of an appeal.

NOTE: NCAT are becoming much tougher in terms of requiring parties to comply with the timetable.

Mediations

  • Discussion, see NCAT's Procedural Direction 8 "Mediations".

Generally it is in your client's interests to mediate, sometimes it will be futile, but it's generally advisable to be open to mediation.

The Procedural Direction sets out when it may not be. Representation is generally allowed but you need to seek permission.

The client's representative and the persons truly involved in the dispute or able to resolve the dispute because of their rapport with the aggrieved person are the most valuable persons at the mediation table.

Summonses

Discussion, see NCAT Procedural Direction 2 "Summonses".

The procedure for an application for Summons is largely the same as it was under the former Administrative Decisions Tribunal Act. The Registrars look closely at the applications and at the breadth of the applications being made and the time periods, description of documents and description of subject matter about which it's taking. Narrowing down the categories will go a long way to ensuring that a Summons is accepted by the Tribunal and issued. In terms of you rejecting a Summons, the Direction states quite clearly that you should try to resolve the dispute with the party that's applied for the Summons before the date upon which you're required to comply. The procedural direction requires the parties to have had communications well in advance of the date compliance with the summons is due. At the date of compliance the objector can formally object to it but it will be expected that the objection will be heard on that occasion before a member of the Tribunal so you will need to be prepared to make submissions in support of or against the summons on that occasion.

Pleadings

  • When to request them
  • How to respond

Whilst there is nothing in the legislation, the pleading of discrimination matters is not without complexity and understanding where the complaint fits in the statutory provisions is difficult. If the Tribunal does not order the applicant to file pleadings in the form of Points of Claim, through a series of letters try and get the applicant to articulate what their complaint is about – whether it's direct or indirect discrimination etc. In terms of your response it is the same as under the ADT – it is best to say why the claim cannot be made out and to make the relevant issues clear to the Tribunal. 

Hearings in camera

  • See s. 49(2) of the NCAT Act.
  • See also NCAT Administrative and Equal Opportunity Division Procedural Direction 9 "Publication, Anonymisation and Suppression".

You can apply under s. 64 NCAT Act for there to be restrictions on public access to or reference in judgments to exhibits and material that are put before the Tribunal.

Procedure in Court

Substantive hearings in NCAT are largely the same as before the ADT.  However appeals are being set down for shorter periods where the Appeal Panel hears a number of appeals on one day.

Costs

  • Under s. 60 of NCAT Act the presumption is that each party will pay their own costs.  However the section sets out a number of circumstances under s. 60 (3) where costs will be awarded.  What is of particular note generally and with respect to matters in this Tribunal is that where a party has refused or failed to comply with the duty imposed under s. 36 costs may be awarded. Section 36 is a general provision described as "a guiding principle to be applied to practice and procedure". The guiding principle of the NCAT Act and the procedural rules is to facilitate a "just cheap and quick resolution" of the real issues.