If a party to Tribunal proceedings thinks that the Tribunal has decided a matter wrongly, the party can apply to have the the decision changed. There are two ways of trying to have the decision changed:
- applying to the Tribunal for the decision to be varied or set aside: or
- making an appeal to the Appeal Panel of the Tribunal.
This is changed
The processes for trying to have a decision of the CTTT changed were to apply to the CTTT for a rehearing or, in limited circumstances, make an appeal to the District Court or, in very limited circumstances, apply to the Supreme Court.
Applications to vary or set aside
If the Tribunal has made a decision in a party’s absence, and the absence has resulted in the party’s case not being adequately put to the Tribunal, that party can apply to the Tribunal for it to vary or set aside the decision (NCAT Reg 2013, clause 9(1)(b)).
The Tribunal will give all parties an opportunity to make submissions on the application before it decides whether to vary or set aside the decision.
You can also apply for a decision to be varied or set aside if all the parties consent to the variation or setting aside of the decision (NCAT Reg 2013, clause 9(1)(a)).
The time limit for making an application to vary or set aside a decision is seven days from the decision (clause 9(3)). (After that, you will also need to ask for an extension of time under section 41 of the NCAT Act 2013.) As at May 2016, the fee for making the application is $97 (pensioner concession $25).
If a party thinks the Tribunal has made a wrong decision, it can make an appeal to the Appeal Panel of the Tribunal. (These appeals are referred to as ‘internal appeals’: NCAT Act 2013, section 32.)
If the appeal is on a question of law, the Appeal Panel must hear the appeal (NCAT Act 2013, section 80(2)(b)).
If it is not on a question of law, the appeal may be heard ‘with leave’ – that is, the party will have to convince the Appeal Panel to hear the appeal. In particular, the party will have to show that they have suffered a ‘substantial miscarriage of justice’ because:
- the decision was not fair and equitable; or
- the decision was against the weight of evidence; or
- there has arisen significant new evidence that was not reasonably available at the time of the proceedings (NCAT Act 2013, Schedule 4, clause 12(1)(a)-(c)).
If you want to appeal against a termination order and a warrant for possession has already been executed, the appeal can be heard only if it is on a question of law (NCAT Act 2013, Schedule 4, clause 12(2)(b)).
Appeals against a decision in residential proceedings must be made within 14 days of the party being notified of the decision, or of receiving a written statement of the reasons for the decision (NCAT Rules 2014, Rule 25(4)(b)). The time limit is longer for general consumer or commercial proceedings: 28 days (NCAT Rules 2014, Rule 25(4)(c)). See section on Notice of decision for more on getting a written statement of reasons.
As at May 2016, the fee for making an appeal is $396, or $100 if you receive a pension or social security payment, legal aid or assistance from a community legal centre.
This is changed
The fee for making an appeal is much higher than the fee was for applying for a rehearing in the CTTT ($37).
If you are considering making an appeal, you should ask for a written statement of the reasons for the Tribunal’s decision. This will also extend the usual time limit for making the appeal to 14 days after receiving the statement of reasons: NCAT Rules 2014, Rule 25(4)(b). Note, however, that if the appeal is against an order for termination and possession, you should still make sure you apply before a warrant of possession is enforced.
When making an appeal, consider asking the Registrar of the Tribunal for a waiver of all or part of the fee, or to postpone payment of the fee (NCAT Reg 2013, clause 6(4)). You will have to show that there are ‘special reasons’ for doing so.
When a party makes an appeal, the Tribunal will give other parties an opportunity to make submissions on the issues raised. The Appeal Panel will then decide whether to hear the appeal.
If the Appeals Panel hears an appeal, it will conduct a hearing. The Appeal Panel will decide whether to conduct it as a new hearing of all the issues in dispute, or to hear new evidence and arguments from the parties, to add to or substitute for evidence and arguments already heard in the proceedings (NCAT Act 2013, section 80(3)).
After the hearing, the Appeal Panel will decide whether to:
- dismiss the appeal and leave the original decision standing, or
- allow the appeal, set aside the original decision and make new orders.
If a party thinks the Appeal Panel has made a wrong decision on a question of law, the party can make an appeal to the NSW Supreme Court, with leave of the Court (NCAT Act 2013, section 83(1)). Appeals must be made within 28 days of being notified of the Appeal Panel’s decision (Uniform Civil Procedure Rules 2005, Rule 50.3). You should get advice from a lawyer before making an appeal to the Supreme Court.