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Increase NCAT jurisdiction for better governance, says REINSW

13 February 2019 Tim Neary

The REINSW is calling on the state government to make an adjustment to the New South Wales Civil and Administrative Tribunal (NCAT) legislation to allow it to determine matters when the status of a court is required.

Until that happens, it has said that NCAT is hamstrung where disputes require the status of a court to be heard.

Tim McKibbin said that, in a recent case, the New South Wales Court of Appeal held that NCAT is not a court and therefore cannot determine cases where one or both of the parties are domiciled in another state.

“This decision is consistent with the Court of Appeal’s decision in another case that raised similar issues. That case went on appeal to the High Court of Australia, which upheld the decision in April 2018,” Mr McKibbin said.

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“We can, at this juncture, be confident beyond all doubt that NCAT cannot determine matters when the status of a court is required.”

Mr McKibbin said that with NCAT, disputes can be heard and determined efficiently and cost-effectively, but this efficiency falls away when a court is required.

“Currently, parties requiring dispute resolution, and a court to do so, need to manoeuvre through a number of convoluted processes to get their matter out of NCAT and into the local court or district court.”

He said that the procedure is both cumbersome and expensive.

“Accordingly, parties elect not to pursue their legal rights because the costs make it prohibitive. Clearly, that is unsatisfactory and required urgent attention; in fact, it needed urgent attention well before April 2018.”

Mr McKibbin said that, to date, the government’s response to this issue has been irresponsible.

“They have done absolutely nothing with the expectation of just hoping the problem will go away — hope is not a strategy,” he said.

He added that Queensland doesn’t have the same issue because it has section 164(1) in its legislation determining that the tribunal is a court of record.

“The status of QCAT as a court, and therefore section 164(1), was tested in a case that went to the Queensland Court of Appeal and was upheld.

“So what does the New South Wales government need to do? Simply clip and paste section 164(1) into the NCAT legislation, problem solved — it’s that easy.”

Increase NCAT jurisdiction for better governance, says REINSW
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