For newcomers, especially of little legal knowledge, the NCAT Act can be a lot to chew on. In this relaxing piece FORCIN helps you ease into things by discussing the provisions of the Civil and Administrative Tribunal Act 2013 (NSW) that might take you by surprise.
Civil and Administrative Tribunal Act 2013 (NSW), in short CAT Act or NCAT Act, is an act of the NSW Parliament creating the NCAT. It contains provisions and schedules dealing with various “units” within the NCAT. These are: Administrative and Equal Opportunity Division, Occupational Division, Consumer and Commercial Division, Guardianship Division and Appeal Panel.
As for a first-timer the CAT Act can be daunting, FORCIN provides you with this crash course. Read on to find out about some provisions that may seem unexpected, if not simply odd. That way you can avoid the pain of learning about them when it is too late.
PROVISION 51: “Hearing” on the papers
The popular idea of a hearing is that it involves some time spent in a courtroom before a judge or a tribunal member. That the other party will be present and providing their submissions and evidence. That there will be some oral arguments. Perhaps even some questioning of witnesses.
However, under section 51 of the CAT Act, the NCAT can dispense with the hearing. This means the Tribunal may decide that there will be no hearing. If the Tribunal dispenses with a hearing, it can then make its decision without any oral submissions and cross-examination of witnesses. In other words, the decision will be made purely “on the papers”.
Are there any “preconditions” before the Tribunal can dispense with a hearing?
Yes!
In the words of the legislation the Tribunal must be satisfied that the issues “can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal”.
However, in the past the Tribunal determined matters without a hearing without even checking if a party received the other party’s submissions and evidence. This indicates that the Tribunal views the threshold set by s 51 as low.
PROVISION 64: Gag orders
So you come to the Tribunal because you think the NSW Government violated your privacy and you want justice?
Or maybe you want to get some documents with government information?
Whatever it may be, little do you expect that you might leave the NCAT with an order prohibiting you from discussing some parts of your life in public.
But this can happen.
For instance, in a decision dated 9 September 2021 in Wojciechowska v Commissioner of Police, NSW Police Force a NSW barrister Deborah Dinnen prohibited publication of the matters contained in a bundle filed to the exclusion of the applicant. Importantly, Deborah Dinnen did not frame her order as only applying to the Registrar or the respondent. Instead, Deborah Dinnen framed her orders as binding the world at large. As if she were the NSW Parliament legislating over what one can and cannot speak about.
Oh wait.
Except for that the NSW Parliament perhaps would know better than that.
After all it always has upcoming elections to think about.
Sounds like a thriller based in the Soviet Union or another totalitarian part of the world?
You wish.
This is non-fiction straight from the grand state of New South Wales.
PROVISION 45: REPRESENTATION WITH PERMISSION
To be legally represented in NCAT, you need NCAT’s permission, says s 45 of the NCAT Act. The reason? The reason can be perhaps be gleamed from the conditions the Tribunal imposes when permitting a person to be legally represented. Namely, often a party is permitted to have a lawyer on the condition that that represented party is to pay all of its legal costs even if they win.
REPRESENTATION WITHOUT PERMISSION
In some divisions of NCAT you do not need permission to be legally represented.
Hang on.
Haven’t we just said the opposite?
That’s right.
And what we said was correct. But what we say now is also correct. And this is why the NCAT legislation can be confusing.
“By default” you need ask for a permission to be represented by a lawyer. But sometimes, also by default, you do not. For example, your lawyer can represent you without the NCAT’s leave in the proceedings in the Administrative and Equal Opportunity Division of NCAT. The same goes for the disciplinary proceedings against a lawyer or a medical practitioner.
Even though the NCAT Act is not the longest statute out there, it is full of surprises. Especially for the self-represented.
You should be especially cautious in the matters arising under the GIPA Act: your opponent is the government. And it is likely to be your exact opposite. It will be well across all the quirks and pitfalls of the legislation it created.
Never forget that after all GIPA Act is an alleged gift of the government to the people. And, as the ancient wisdom tells us, beware of Greeks bearing gifts.
Has the NCAT gagged you? Do you want to share how that happened? Contact FORCIN!