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Appeal to the Appeal Panel

Information about how to appeal a NSW Civil and Administrative Tribunal (NCAT) decision to the Appeal Panel of NCAT.

When you can appeal

You may be able to appeal:

  • on a question of law
  • on any other question, with the leave (permission) of the Appeal Panel.

You need to lodge your appeal to NCAT within 28 days from when you are notified of the original decision or from when the reasons for the decision are first given (either orally or in writing), whichever is later. 

If you lodge your application after 28 days, it is up to NCAT to accept or refuse your application.

How to apply

You must fill out a Notice of Appeal form.

You may also want to fill out:

  • an Application for stay of original decision pending appeal form, and
  • a Credit card payment authority form.

You can get a blank copy of these forms from:

  • your nearest NCAT registry, or
  • the Forms page on the NCAT website.

Filing your completed forms

You can file your completed forms in person or by post. 

You must file:

  • the original form and attachments
  • two copies of your form and attachments for NCAT, and 
  • one copy of your form and attachments for each respondent.

You should make a copy of your completed form and attachments before you file them.

You should send your forms to the registry’s postal address, not its street address. You can find the registry’s postal address on the Contact us page on the NCAT website.

When you file your forms, you will have to pay a filing fee. For more information, see Fees at NCAT on the NCAT website. 

To pay by credit card, you must complete a Credit card payment authority form and file it with your Notice of Appeal and supporting documents.

If you are a pensioner or student or are eligible for a grant of legal aid or assistance from a community legal centre, you can ask to have the fee waived or reduced.

To do this, you must complete a Request for fee waiver form. Your Notice of Appeal form will not be accepted until your request for a fee waiver is decided.

For more information, see Reduced fees and fee waivers on the NCAT website.

Leave to appeal

The Appeal Panel will grant you leave to appeal if it is satisfied that you may have suffered a substantial miscarriage of justice because:

  • the decision was not fair and equitable
  • the decision was against the weight of the evidence
  • there is significant new evidence, which was not reasonably available at the time the decision was made. 

If you ask for leave to appeal, your application may be dealt with:

  • before the final hearing
  • at the final hearing, or
  • on the papers. 

Asking for an extension

If you file your Notice of Appeal after 28 days, you must ask NCAT for an extension of time. You will need to complete section 7. Extension of time and explain why you didn’t appeal in time. NCAT will grant you an extension if it decides there are good reasons for not lodging the appeal within the 28 day time limit.

If you are not granted an extension of time, you application may be dismissed because it is out of time.

Stay order

Filing a Notice of Appeal does not stay (stop) the operation of the original decision. The decision can still be enforced unless a stay order is made. You can ask for a stay order by completing an Application for stay of original decision pending appeal form.

You can ask for a stay order while you are considering whether to appeal.

Usually, you will need to attend a hearing, provide evidence and make submissions as to why a stay order should be made. The other party will also have the opportunity to provide evidence and make submissions as to why a stay order should not be made. 

NCAT will not make a stay order just because you have lodged an appeal. You will need to show that there are good reasons for NCAT to make a stay order.

NCAT will consider a range of factors, including:

  • the strength of your case
  • whether the appeal will be useless if the order is enforced 
  • whether you are able to pay the ordered amount, and the other party is likely to bring bankruptcy proceedings against you
  • whether the other party could repay the money if your appeal is successful.

If it is obvious that your appeal is very weak and has no real prospects of success, NCAT will likely refuse to make a stay order.

Interpreter or disability support

If your case has been listed for an oral hearing, you can ask for an interpreter or disability support to attend the hearing if you need it.

To do this, you must complete section 8. Hearing.

Serving the other party

NCAT will serve a copy of your Notice of Appeal on each respondent.

Timing of the appeals process

After your Notice of Appeal is served, the respondent can lodge a Reply to Appeal form and any documents they want to rely on within 14 days. A copy must also be sent to you.

Your case will be listed for call over within 28 days. This is usually done by audio visual link or telephone.

At the call over, the Appeal Panel will make directions for:

  • the parties to file their submissions and other material for the hearing
  • the parties to file the sounding recording and transcript of the original hearing
  • any preliminary matters, such as an application for stay orders or an extension of time
  • your case to be referred to alternative dispute resolution (ADR), if appropriate
  • the date for hearing your appeal or application for leave to appeal.

If your case resolves before or at the directions or ADR, your file will be closed.

If your matter is not resolved, your appeal will go to a hearing, or be decided on the papers.

If there is a hearing, it will usually be listed for no more than half a day. 

The sound recording and transcript

You should provide a copy of the sound recording and transcript from the original hearing to the Appeal Panel. This is especially important if you want to rely on something that was said at the original hearing.

You can get a copy of the sound recording by filing a Requesting for sound recording form and paying the fee.

NCAT does not prepare transcripts of its hearings, so you will have to get a transcript yourself. 

Legal representation

You don’t need to have legal representation at the hearing. You can represent yourself.

If a lawyer represented you at the original hearing, they may represent you at the appeal hearing.

If a lawyer didn’t represent you at the original hearing, you will need to ask the Appeal Panel for leave (permission) to have a lawyer represent you during the appeal hearing. You can do this at the call over or later. 

The hearing

The Appeal Panel may decide your appeal:

  • based on the written material only – this is called a hearing ‘on the papers’, or
  • by listing your appeal for a hearing.

An appeal will only be decided on the papers where:

  • both parties have agreed to that happening, or
  • both parties have had the opportunity to make submissions on whether there should be an oral hearing and the Appeal Panel has decided that it is appropriate in the circumstances.

Usually, you can only rely on the evidence you produced at the original hearing. However, the Appeal Panel may decide to admit new evidence if it considers it appropriate in the circumstances.

Conduct of hearing

Generally, your appeal will be conducted in three stages:

  1. you explain your case
  2. the other party responds to your case
  3. you reply to the other party’s submissions.

If you want to provide new evidence, the Appeal Panel will decide what procedure will be followed.

The decision

After hearing your appeal, the Appeal Panel will make such orders as it considers appropriate. It may:

  • dismiss your application for leave to appeal
  • dismiss your appeal
  • allow your appeal and confirm or vary the decision
  • allow your appeal and quash or set aside the decision
  • order that your case be reconsidered in accordance with the directions of the appeal panel.

The Appeal Panel may give its on the day of the hearing or reserve its decision.

If you are unhappy with the decision of the Appeal Panel, you may be able ask for leave to appeal to the Supreme Court within 28 days. 

You can only appeal on a question of law. 

The Supreme Court can’t review the merits of the NCAT decision. That is, whether the right decision was made in the circumstances. 

Costs

The Appeal Panel may make a costs order against a party where:

  • the amount of the claim is more than $30,000, or
  • the amount of the claim is between $10,000 and $30,000 and the party against whom the order is to be made has unreasonably disadvantaged the other party by their conduct in proceedings, including by failing to comply with an order or direction of the Tribunal.

You are not entitled to receive costs if you are unrepresented.