15 February 2019

NCAT jurisdiction needs urgent attention

The New South Wales Court of Appeal held in a recent case that the NSW Civil and Administrative Tribunal (NCAT) is not a Court and therefore cannot determine cases where one or both of the parties are domiciled in another State, according to the Real Estate Institute of New South Wales (REINSW).

“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,” says REINSW CEO, Tim McKibbin.

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

“NCAT is a judicial forum within which parties to a dispute can have their matter heard and determined competently, and due to its processes, efficiently and cost effectively.

“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.

“This 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 requires urgent attention, in fact it needed urgent attention well before April 2018.

“So, what’s the Government’s response been to date? Irresponsibly, they have done absolutely nothing with the exception of just hoping the problem will go away – hope is not a strategy.

“Does Queensland have this problem? The answer to that question is no. Why? Because, Queensland has this Section in their QCAT legislation (that is, the Queensland Civil and Administrative Tribunal Act 2009):
Section 164 Tribunal is a court of record
(1) 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 NSW Government need to do? Simply clip and paste Section 164 (1) into the NCAT legislation, problem solved – it’s that easy. But what are they doing? They are continuing their earlier strategy of just hoping it will all go away. Let’s be crystal clear, it won’t.

“REINSW is calling on the Premier to direct Minister Kean and the Attorney General to prioritise this matter. The resolution is simple and should be implemented immediately.”

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