NSW Civil and Administrative Tribunal (NCAT)

Federal diversity jurisdiction

Do the parties in your matter permanently reside in different States? If so, NCAT may not be able to determine your matter due to federal constitutional law. 

What types of matters are affected?

On 6 November 2018 the NSW Court of Appeal handed down a decision in Attorney General for New South Wales v Gatsby [2018] NSWCA 254 that decided that NCAT is not able to determine matters between residents of different States. These matters are sometimes said to be within ‘federal diversity jurisdiction’.  

It is a complicated question which matters might be affected. Generally there must be two natural people involved and at the time of lodging one must be a permanent resident of one State and the opposing party must be a resident of a different State.  

There is no ‘diversity jurisdiction’ problem if one of the parties is a corporation, a NSW government agency, a resident of a territory, or a non-permanent resident of a different State. In addition, there is no problem if the matter does not involve the Tribunal exercising judicial power, for example because it is an administrative review matter in the Administrative and Equal Opportunity or Occupational Divisions.

What happens if there is a ‘diversity jurisdiction’ problem?

You still apply to NCAT, and NCAT will attempt to help you come to an agreed settlement with the other party.  

If you do not settle your dispute, or you want to have the agreed settlement registered and enforced, you will need to go to the Local or District Court, depending on the size of the claim. The court is able to make the same orders that NCAT could have made.

Going to court

If you go to one of the courts, you will need to take the following documents with you.

  • A copy of the letter from NCAT that tells you that NCAT declines to hear your matter.
  • A copy of the application you lodged at NCAT
  • If settlement reached, a copy of the agreed settlement.

You will also need to complete the following court forms used in federal diversity proceedings:

Can I go to court directly?

If an Act says that NCAT is the only body which can deal with your matter (for example, the Anti-Discrimination Act 1977 or section 119 Residential Tenancies Act 2010) - no.  For those matters, the Local or District Court can grant leave for the application or appeal to be made to the court only if it is satisfied that the application or appeal was first made to NCAT. 

If a court as well as NCAT can determine your matter – yes, you can go directly to the court.

Will I have to pay additional fees?

In most cases, you will not need to pay any additional fees. An additional fee may be payable if there is a significant change compared to the application originally lodged with NCAT.

Where can I get more information?

For more information on how the court will deal with your matter, go to Part 3A Diversity proceedings of the Civil and Administrative Tribunal Act 2013