Recent changes to the NSW Civil and Administrative Tribunal Rules

Changes to the NSW Civil and Administrative Tribunal Rules 20041 (NCAT Rules) came into effect on 11 October 2019 pursuant to the Civil and Administrative Tribunal (Amendment No 6) Rule 20192 (Amendment Rule). The changes introduced under the Amendment Rule include:

  • intend to clarify when reasons are given for the purpose of determining when the period for making an appeal commences
  • provide that hearings are not required in circumstances where a Registrar makes certain interlocutory decisions of the Tribunal
  • exclude sound recordings from records of orders made or decisions given in proceedings that are held in the Registry and which persons may inspect.

Change to Rule 25 – external and internal appeals

Rule 253 addresses the manner in which an external or internal appeal may be made. Under this Rule, if leave to appeal is needed, the appellant is required to lodge an appeal within 28 days generally (or 14 days if for internal appeal against a decision made in residential proceedings) from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision.

The Amendment Rule inserts a new sub-rule 25(4A) into the NCAT Rules which provides that the day on which reasons are given from which the 28 (or 14) days to appeal starts to run is the day on which reasons are first given, whether orally or in writing.

Changes have been reflected in this NCAT document.

Change to Rule 41 – Tribunal's interlocutory decisions by Registrars

Rule 414 confers on a Registrar a power to make certain interlocutory decisions on behalf of the Tribunal, including but not limited to:

  • extension of the period of time in connection with proceedings
  • appointment of a person to act as guardian ad litem for a party, or represent a party, in proceedings or making of an order for a party to be separately represented in proceedings
  • making of an order prohibiting or restricting the disclosure of evidence or documents in proceedings
  • setting aside of a summons or excusing compliance with a summons in connection with proceedings
  • granting of access to documents or things produced in compliance with a summons in proceedings.

The Amendment Rule inserts a new sub-rule 41(1A) into the NCAT Rules which provides that the Registrar's power to make interlocutory decisions set out in Rule 41 will not require a hearing, as these interlocutory decisions fall under the exception provided under s 50(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW).

Change to Rule 42 – inspections of documents in Registry

Rule 425 provides for the manner in which a person who is not a party to proceedings in the Tribunal may obtain access to "public access documents" in the Registry relating to proceedings that are finally determined.

Prior to the Amendment Rule, "public access document" was defined under the NCAT Rules to mean any of the following:

  • an originating document or reply
  • a statement, affidavit or document admitted into evidence in proceedings held in public
  • a transcript (if available) of proceedings held in public
  • a record of any order made or other decision given in proceedings
  • a record of the reasons given for a decision made in proceedings.

The Amendment Rule inserts "(other than a sound recording)" after "record" in the list above, meaning that sound recordings are no longer public access documents and will no longer be available for inspection to a person not a party to proceedings with respect to proceedings that have not been finally determined. Impliedly, sound recordings of proceedings that have been finally determined may be available for public access.

Changes have been reflected in this NCAT document.

Footnotes

1 https://www.legislation.nsw.gov.au/#/view/regulation/2014/26

2 https://www.legislation.nsw.gov.au/regulations/2019-496.pdf

3 https://www.legislation.nsw.gov.au/#/view/regulation/2014/26/part6/rule25

4 https://www.legislation.nsw.gov.au/#/view/regulation/2014/26/part10/rule41

5 https://www.legislation.nsw.gov.au/#/view/regulation/2014/26/part11/rule42

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.