Appeal an NCAT decision

Section 32 of the Civil and Administrative Tribunal Act 2013 tells you which NCAT decisions you can appeal against to the Appeal Panel. 

Refer to the NCAT Guideline 1 - Internal Appeals (PDF , 273.7 KB) and the Civil and Administrative Tribunal Act 2013 for more information.

If you cannot appeal to the NCAT Appeal Panel you may have the right to appeal to the NSW Supreme Court.

Before lodging an internal appeal, consider whether you want to present your own case to NCAT or have a lawyer or non-lawyer agent represent you. You will usually need to be present to give your instructions to your lawyer or agent.

In an internal appeal you can be represented by another person if you were able to be represented in your original matter with NCAT, i.e. in the decision you are appealing against. In all other cases the Tribunal will need to give permission for you to be represented by another person. You should ask for this permission when you are notified to attend the Tribunal for a ‘call over’.

If you want to be represented you will need to fill out a Notice of Representation by a Legal Practitioner or Agent and submit it to the NCAT registry in person or by post. If a non-lawyer agent is representing you, you also need to sign the Notice of Representation before it is submitted. 

To apply for your matter to be heard by the Appeal Panel, you need to fill out a Notice of Appeal form.

You will need to include the following information in your Notice of Appeal form:

• a copy of the orders made by NCAT and any written reasons of the Tribunal
• details of the NCAT decision you are appealing against – refer to the written reasons of the Tribunal and Orders you have received for these details
• your contact details and the details of your representative (if you have one) – you are named the appellant in this appeal
• the contact details of all respondents and the details of their representatives (if they have one) – refer to the written reasons of the Tribunal and Order in your original matter with NCAT for these details
• the orders you want the Appeal Panel to change
• an outline of why you consider the Tribunal’s decision was wrong – seek legal advice on this if you can as this can be complicated
• the orders you say the Appeal Panel should make instead of the ones which have been made
• a copy of any other documents you are relying on in the appeal.

On the Notice of Appeal form you will also be asked whether you are asking for leave to appeal. If you do not have legal representation and/or you are unsure whether you need to ask for leave:

• answer ‘yes’ that you are asking for leave
• give reasons why you consider your matter should be heard by the Appeal Panel. 

The general rule is that you need to lodge your appeal to NCAT within 28 days from when you are notified of the Tribunal’s original decision or from when the reasons for the decision are first given (either orally or in writing), whichever is later. In residential proceedings, this timeframe is 14 days instead of 28 days. You should also check the legislation which is relevant to your matter as it may state a shorter or longer timeframe for lodging an appeal.

If you want to lodge the Notice of Appeal but the deadline has passed, you have to ask the Tribunal for an extension of time. You will need to give a good reason for not lodging the Notice of Appeal within the time allowed. It will be up to the Tribunal to decide whether or not to accept a late Notice of Appeal.

You need to post or bring the Notice of Appeal and all attachments to NCAT registry. You cannot lodge it online or by email or fax. You will need to give the Tribunal:

• The original Notice of Appeal and the attachments
• Two (2) copies of the Notice of Appeal and attachments for the Appeal Panel
• One (1) copy of the Notice of Appeal and attachments for each respondent (which NCAT will send to the respondent) – e.g. if there are two respondents you will need to give the Tribunal the original Notice of Appeal and attachments plus four copies.

Keep a copy of everything you lodge with the Tribunal for your own record.

A significant fee applies to appeals heard by the Appeal Panel at NCAT. Check the fees and charges schedule to see the fee that applies and how you pay it. Also refer to the fees page for information on eligibility for a reduced fee or fee waiver.

After the appeal is lodged correctly and the fee is paid, you will receive a Notice of the date, time and location you need to attend for the listing of your case. This listing is called a callover.

While you wait for the Appeal Panel to make its decision, the original decision of NCAT still applies and the orders can be enforced by the other party.

If you want the original decision to be suspended (put on hold) you need to fill out a Stay of original decision pending appeal form. You need to explain your reasons for asking for the decision to be suspended as the Tribunal will not automatically grant the ‘stay’ just because you are appealing the decision.

Please post or bring your application to the NCAT Registry. You cannot lodge it online or by email or fax. You can lodge the stay application at the same time you lodge the Notice of Appeal form and should indicate on the Notice of Appeal whether you are applying for a stay.

If you are in the process of deciding whether to appeal to NCAT, you may want to ask the other party whether they can suspend the operation of an order for a short period of time until you make your decision. It is up to that party whether they grant the request.  

NCAT will send a copy of the Notice of Appeal and attachments to each respondent. The respondent/s can then complete and lodge a Reply to Appeal form and any documents they rely on with the Tribunal. They must also provide NCAT with two copies of the Reply and attachments.

A Reply to Appeal needs to be lodged within 14 days of a respondent receiving a copy of the Notice of Appeal unless NCAT directs the respondent of a different timeframe.

A respondent who has lodged a Reply must give a copy of the Reply and any attachments to each appellant before, at the same time as, or as soon as practicable after lodging the Reply.

After your Notice of Appeal is accepted by the NCAT Registry, you will be notified to within 28 days to attend a ‘callover’ for your appeal. In other NCAT Divisions, this is known as a directions hearing.

The appeal itself will not be heard at the callover. Instead, the Appeal Panel will deal with any preliminary issues and give directions to help prepare the appeal for hearing. For example, the Appeal Panel may:

• give or deny permission to a party to be represented by a lawyer or agent (if the party requires permission of the Tribunal)
• determine an application for an extension of time for filing of the appeal or direct it to be dealt with at a later date
• determine an application for a stay of the original decision pending appeal or direct it to be dealt with at a later date
• determine whether leave to appeal is granted or direct it to be dealt with at a later date
• determine whether the Appeal Panel can allow fresh evidence or evidence in addition to what was available to the Tribunal in the original decision or direct this issue to be dealt with at a later date
• deal with matters relating to any other application for interim orders
• set a timetable for filing and serving submissions and other material by both parties
• list the matter for a further call over
• set a hearing date

At the callover, a party may be directed to provide the Appeal Panel and the other party with a sound recording or transcript of the original hearing, along with a typed copy of the relevant sections.

Sound recordings and transcripts take time to be produced. If you want to rely on what happened at the hearing or the oral reasons given, you should request a sound recording and contact a transcription service as soon as possible.

Orders can be made in the absence of a party that does not appear without a reasonable excuse. Parties will receive a copy of the orders after the callover.

You must follow all directions given at the callover. This includes giving your written submissions and other material to the Appeal Panel and the other party by the deadline set at the callover. You will likely need to prepare and give the following material:

• Evidence presented at the original hearing that you wish to rely on in the appeal
• New evidence not presented at the original hearing that you wish to rely on (the Appeal Panel will decide whether you can rely on this material at the hearing)
• Written submissions supporting your appeal
• Sound recording or transcript of the original hearing, along with a typed copy of the relevant sections you intend to rely on.

See more information about evidence and witnesses. You should look through all documents given to you by the other party. 

An oral hearing will take place unless the Appeal Panel decides otherwise. For example, if both parties agree for the matter to be decided based only on the written material and submissions, the Appeal Panel may deal with the matter ‘on the papers’.

NCAT hearings are less formal than court proceedings. Your appeal will be heard by a Panel made up of one or more Tribunal members.

At the start of the hearing, each party will be asked to present the material they wish to rely on. The Appeal Panel may exclude documents that were not filed with the Tribunal or given to the other party as directed at the callover. The Appeal Panel may also decide whether either party can rely on evidence that was not available at the time of the original decision. 

The appellant will usually present their case first, followed by the respondent(s). The appellant may also be given the opportunity to reply to any points raised.

The Appeal Panel may give its decision orally at the end of the hearing or reserve its decision to allow more time to consider the appeal. The decision is usually published within 3 months of the hearing.  

Under section 81 of Civil and Administrative Tribunal Act 2013, the Appeal Panel can:

• allow the appeal
• dismiss the appeal
• confirm, affirm or vary the decision under appeal
• quash or set aside the decision under appeal
• substitute the decision under appeal with another decision
• order the Tribunal to reconsider a part of the case or the whole case.

NCAT Registry will inform you when a decision has been made.

Costs

The same provisions for costs in the original NCAT decision are applied to internal appeals.

If you are seeking costs of the appeal, state this in the Notice of Appeal (in the orders sought section) or Reply to Appeal. You can also tell the Appeal Panel you are seeking an order for costs at the start of the hearing.

The Appeal Panel will deal with the issue of costs either during the hearing or later by reviewing submissions of each party on costs.