Appealing against the Decision of NCAT to NCAT Appeal Panel, District Court or Supreme Court.

04/09/2019

The NSW Civil and Administrative Tribunal (“NCAT”) has jurisdiction and functions as may be confirmed by the NSW Civil and Administrative Tribunal Act (the NCAT Act).  The jurisdiction of NCAT is wide and varied.  However one needs to find the authority for NCAT to deal with the matter in a particular Act.

The jurisdiction of NCAT consists of the following kinds of jurisdictions:

(a)       General jurisdiction.

(b)       The administrative review jurisdiction of the Tribunal.

(c)       The appeal jurisdiction of the Tribunal comprising its external and internal appeal jurisdiction; and

(d)      Enforcement jurisdiction of the Tribunal (see Section 28 of NCAT Act).

Included in the jurisdiction of NCAT which is the subject of this article are:

(a)      Claims within the provisions of the Home Building Act which relate to residential building works; and

(b)      Claims relating to strata issues in particular pursuant to the Strata Schemes Management Act 2015 (SSM Act 2015).

Following a hearing of the matter at NCAT the Member will make a decision.  An issue might arise as to whether that decision can be appealed.

Appeal to the NCAT Appeal Panel

Section 32 of the NCAT Act sets out the jurisdiction of the Tribunal in relation to “internal appeals”.  The matters which are referred to in the definition of “internally appealable” decision, is appealable by way of an internal appeal to the NCAT Appeal Panel.

Most (but not all) of the decisions of NCAT at first instance in relation to the Home Building Act or the SSM Act 2015 are internally appealable decisions. 

One needs to check the particular case to ascertain whether the decision of NCAT at first instance is an internally appealable decision.

Appeal from the decision of the NCAT Appeal Panel

Once the NCAT Appeal Panel has made its decision then there is an issue as to whether one can appeal that decision. 

Generally, however not in all cases, a party to an internal appeal can appeal against the decision of the NCAT Appeal Panel:

(a)       If the decision involved an error of law on a question of law; and

(b)       With leave of the Supreme Court of NSW.

One exception to this rule is that an Appeal Panel’s decision that is an internal appeal from the decision the Registrar of the Tribunal cannot be appealed against. 

To apply to the Supreme Court of NSW one needs leave from the Supreme Court.  To seek leave, a Summons seeking Leave to Appeal must be filed with the Supreme Court of NSW within 28 days of the date of the Appeal Panel’s decision (Rule 50.12 of the Uniform Civil Procedure Rules 2005 (UCPR).

The Application to the Supreme Court must be made within the prescribed period (28 days) regardless of whether the reasons for the decision have been made available by the Appeal Panel.  The Applicant for leave may file the reasons for the decision when they become available but not later than 3 days prior to the hearing of the Summons for Leave to Appeal (Rule 50.12 of UCPR). 

Appeal from Civil Penalty imposed by Appeal Panel

Where the decision of the Appeal Panel imposed a civil penalty the Appeal can be made to:

(a)      The Supreme Court where the Appeal Panel is constituted by 1 or more senior judicial officers (as defined in the NCAT Act); or

(b)      The District Court where the Appeal Panel decision is constituted by a senior judicial officer (as defined in the NCAT Act).

Before appealing you need to carefully consider the issue as to the Appeal and possible or likely outcome.  This would require consideration of the original decision from which one wishes to appeal including the evidence before the original Member or Appeal Panel.  Also the Appeal must be filed within the times provided for by the various Acts.  There is some basis for obtaining an extension of time to appeal.  This should not be relied upon.

It is critical that these matters be considered as soon as possible after the original decision or appeal has been lodged.  One always needs to consider the cost benefit analysis and the consequences of various outcomes in relation to the Appeal Panel or other Appellant Court’s decision.

In those circumstances it is critical that you seek advice as soon as a Decision has been made so that the decision can be considered and advice given.

At Watson & Watson we are often requested to advise in relation to Appeals from the original NCAT proceedings.  This could be in relation to a decision that has not been favourable to a party or it may be by a party that has received a favourable decision at the initial hearing however the other party has appealed the decision.

If you receive a decision or have a decision that you are seeking a second opinion as to its correctness or otherwise please contact our experienced building and construction and strata lawyers at Watson & Watson.  Please contact Richard Watson Accredited Specialist Building and Construction or his Personal Assistant Shereen DaGloria to discuss your matter and to seek the appropriate advice.  Please note there are strict time limits and accordingly do not delay in seeking advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.