What is a separate representative fact sheet

Role of a separate representative

A separate representative is an independent person, usually a lawyer, appointed to represent the interests of an individual (called 'the Person') during NCAT proceedings.

The role of the separate representative is to:

• Get the views of the Person, if possible, and to inform the Tribunal of those views.
• Give to the Tribunal any other relevant information in relation to the Person.

If NCAT makes an order appointing a separate representative, NCAT will ask Legal Aid NSW to arrange a lawyer to act as separate representative for the Person.

Guardianship Division

In NCAT’s Guardianship Division, a separate representative may be appointed for the person that application or review is about.

The separate representative must also follow the principles of the Guardianship Act 1987 and make sure the Person’s welfare and interests are to be given paramount consideration.

The separate representative is not an advocate for the interests of other parties in the proceedings.

Administrative and Equal Opportunity Division

In NCAT’s Administrative and Equal Opportunity Division, a separate representative may be appointed for:

• A party to the proceedings
• A child (person under 18 years) who is not a party to the proceedings, where the proceedings directly or significantly affect that child.

How is a separate representative different to a legal representative?

The separate representative is not bound by the views of the Person. In this way they are different from a legal representative because they do not act on the instructions given by the Person.

Before the hearing

To prepare for the hearing, it is expected that the separate representative will:

• Meet with the Person and attempt to get their views about the application.
• Review the evidence and gather any additional evidence which is relevant to the application and likely to assist NCAT.
• Explain the role of a separate representative to the Person and other parties to the application (where appropriate).

At the hearing

At the hearing, the separate representative should:

• Act in accordance with the Civil and Administrative Tribunal Act 2013 and any other relevant legislation.
• Inform NCAT about the views of the Person.

During the hearing, the separate representative may:

• Call witnesses and give evidence
• Test evidence and cross-examine witnesses
• Make submissions about whether the evidence supports the legal tests or requirements for an order to be made
• Make submissions about the best interests of the Person

If the person has capacity to give instructions

If the appointed separate representative considers that the Person is capable of providing instructions, the separate representative should inform NCAT of this.

In these circumstances, and where the Person is a party to proceedings, the separate representative may seek leave to act as the legal representative for the Person.