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NCAT legislative change unsatisfactory

13 December 2017

REINSW CEO Tim McKibbin has labelled legislative changes made in response to NCAT not being able to determine matters between residents of different States as unsatisfactory.

The amendment to the Civil and Administrative Tribunal Act 2013 inserts a new part in the Act, which began on 1 December 2017. This allows interstate parties to commence proceedings in the Local or District Court after the NSW Civil and Administrative Tribunal (NCAT) has declined to hear the matter due to ‘federal diversity jurisdiction’.

Mr McKibbin said: “This in my view is a very unsatisfactory response. The legislation is addressing the symptoms of the problem and not the root cause. The real problem is the jurisdictional impediment of NCAT to hear matters between residents of different States. It is this matter that needs legislative activity.”

The legislative change was made in response to the NSW Court of Appeal in Burns v Corbett; Gaynor v Burns [2017] NSWCA 3, which found that the NCAT could not determine matters between residents of different States.

The amendments are accessible at www.legislation.nsw.gov.au and will be at Part 3A of the Civil and Administrative Tribunal Act 2013, Schedule 1 of the Civil Procedure Act 2005, s 44(1)(d2) of the District Court Act 1973 and s 30(1)(b2) of the Local Court Act 2007.

Which matters are affected?

It will generally affect applications involving two people who at the time of lodging are permanent residents of different States. 

Applications are not affected where one of the parties is a corporation, a NSW government agency, resident of a territory, or a non-permanent resident of a different State.

There is also no problem if the matter does not involve the Tribunal exercising judicial power (e.g. administrative review applications).

New fact sheet

NCAT has produced a fact sheet to help parties affected by federal diversity jurisdiction. Download it here.