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Steps in a discrimination matter

Administrative and Equal Opportunity Division 

Step 1: Receive a letter from NCAT to tell you when to come in for a case conference​

Step 2: Consider whether you want a lawyer or agent to represent you

Step 3: Prepare for the case conference

Step 4: Take part in the case conference

Step 5: Take part in mediation

Step 6: Take part in another case conference(s) if mediation is unsuccessful

Step 7: Take part in a hearing

Step 8: Outcomes that can be expected from a discrimination matter

Step 9:  Receive NCAT’s decision 

Step 10:  If you are not satisfied with NCAT's decision, consider whether you have grounds for appeal

Step 11: Apply to NCAT to help enforce the decision    

Step 1 Receive a letter from NCAT about your case conference

After the Anti-Discrimination Board (ADB) refers a complaint to NCAT, or after NCAT gives permission for your complaint to go ahead, you will receive a letter from NCAT telling you when you should come in for a case conference. You will also receive a copy of the report from the President of the Anti-Discrimination Board enclosing correspondence relating to your complaint (the President’s Report).

The first case conference is usually held within four weeks of a complaint being received by the Tribunal from the Anti- Discrimination Board.

The first case conference is scheduled to last for between 30 and 45 minutes depending on how complex the complaint is and whether the parties are presenting their own case or have lawyers acting for them.

If you live outside the Sydney metropolitan area or there is another good reason that you cannot attend in person, you may be able to participate in the case conference by phone. Contact the Registry and they will arrange this for you. As mobile phone lines are not always reliable, please provide the Tribunal with a landline contact number if possible.

Step 2 Consider whether you want a lawyer or agent to represent you

You can either present your own case or have a lawyer or non-lawyer agent represent you. You and the person you have complained about can both receive free preliminary legal advice from lawyers from the Legal Aid Commission. Find more information about getting legal advice.

You will usually need to be present to give your instructions to your lawyer or agent. Your lawyer or agent needs to fill out a   Notice of Re​​presentation and submit it to the registry in person or by post. If a non-lawyer agent is representing you, you also need to sign the Notice before it is submitted. In both cases, you have to send a copy of the Notice to the person or body you have complained about (the respondent).

Your agent needs to ask for permission from the Tribunal member the next time the matter is listed. You should be present with the agent in case the Tribunal does not allow the agent to appear for you. A lawyer does not need to ask for permission from the Member.

Step 3 Prepare for the case conference

The things you should think about before coming to the case conference include:

  • whether you need to get some legal advice

  • whether you want to attempt to resolve the complaint by mediation rather than a hearing. Read more information about mediation at NCAT

  • if you do not want to participate in a mediation, the evidence that you will need to prove your case

Before the first case conference, you should read the President’s Report and complete your response to the President's Summary of Complaint. You should consider these things: 

  • if you are the person making the complaint (the applicant) you need to fill in the column titled 'Applicant's Response' on the Summary of Complaint

  • if you are the person being complained against (the respondent) you need to fill in the column titled 'Respondent's Response' on the Summary of Complaint.

  • you should write 'agree' in the column if you agree with what the President of the Anti-Discrimination Board has written and write 'disagree' if you disagree.

Step 4 Take part in the case conference

A case conference is an informal meeting with the a Tribunal member and the other parties to the complaint. The proceedings are normally not recorded. You should bring the President’s Report with you to the case conference.

At the case conference, a Tribunal member will talk to you and the other parties about the complaint. The purpose of the case conference is to clarify the issues in dispute and decide how those issues are to be resolved.

During the first case conference, the Tribunal member will go through the President's Summary of Complaint and discuss your responses. On the basis of your responses, the Tribunal member will fill in a document called 'Tribunal's Summary of Complaint'. That document will set out:

  • the conduct that you are complaining about

  • the respondent’s response to the complaint

  • the factual and legal issues in dispute.

If all the parties agree to mediation, you will be give a date for mediation.   A copy of the summary of complaint form will be sent to you after the case conference.   

Step 5 Take part in mediation

If your complaint is suitable for mediation and all the parties agree to take part in a mediation, you will be given a date for a mediation session three to four weeks after the case conference. A mediation will be held at a venue which is most convenient for all the parties.

The mediation is a confidential, informal meeting where an experienced mediator helps you and the person you have complained against (the respondent) come to an agreement.

If either party does not want to have a mediation, or your complaint is not suitable for mediation, you will need to prepare your case for a hearing.

Step 6 Take part in another case conference(s) if mediation is unsuccessful

If there is no mediation, or the complaint is not resolved by mediation, a timetable will be given for you to file and serve relevant documents. Those documents will include statement or affidavits from witnesses.

If you are the applicant, you will be expected to provide evidence to prove your case and to support your claim for damages or other remedies. The evidence may be in the form of documents or may be from witnesses that you intend to call. Read more about preparing your evidence.

If you are the respondent, you will be expected to provide evidence to defend the claim made by the applicant. The evidence may be in the form of documents or may be from witnesses that you intend to call. 

You should also consider whether you want to apply to the Tribunal for a summons to be issued for a person to give evidence or provide documents. You need to get the Tribunal’s approval before issuing a summons .

A hearing date may be allocated at the second case conference. However, in most cases, a third case conference will be held after the end of the timetable. At that case conference a hearing date will be allocated if the matter is ready for hearing. Depending on the number of witnesses and the complexity of the case, a hearing may be allocated for between one and three days.

Hearings can be held in regional areas of NSW if that is the most convenient location for all the parties.

Step 7 Take part in a hearing

A panel of up to three Tribunal members will hear your case. One member will be an experienced lawyer and the other two members will have specialist knowledge in the area of discrimination involved in your case.

During the hearing, you and the respondent will be asked to present your evidence. If you are the applicant, you will present your evidence first. This involves calling each witness to give their evidence in the witness box after giving an oath or affirmation. In most cases the evidence that they will give will be in their statement or affidavit.

The other party will then be allowed to cross-examine each witness. The party calling the witness can then re-examine the witness by asking any questions that arise from the cross-examination.

When all the evidence has been given, you and the respondent give your submissions. Submissions are arguments about the facts that the Tribunal should find or the law that it should apply.

In some cases, the Tribunal will be able to give you their decision at the end of the hearing. However, in most cases the member will need time to consider the case and will give their decision at a later date. You will usually receive the decision in less than three months. Complex matters may take longer.        

Step 8 Outcomes that can be expected from a discrimination matter

There are several possible outcomes when NCAT decides a complaint about discrimination, harassment, victimisation or vilification. NCAT can:

  • find that there has been a breach of theAnti Discrimination Act 1977

  • award compensation of up to $100,000 for loss or damage suffered because of the breach

  • order the person responsible for the discrimination, harassment, victimisation or vilification not to continue or repeat the conduct

  • order the person responsible to take certain actions such as reinstating a person to their job if they have been dismissed

  • order the person to publish an apology or a retraction.   

NCAT may dismiss a matter if:

  • after hearing the matter, the Tribunal is not satisfied that the Anti Discrimination Act 1977 has been breached

  • after hearing an application for dismissal by the respondent, the Tribunal decides that the proceedings are frivolous, vexatious, misconceived or lacking in substance

  • you settle the matter or withdraw the complaint for any other reason

  • you have failed to appear in the proceedings (unless you provide a reasonable explanation for failing to appear)

  • the Tribunal considers that you are not preparing the matter for hearing (called a ‘want of prosecution’).       

Step 9 Receive NCAT’s decision

The decision will posted to the parties and will appear on the NSW Caselaw website.

There are several possible outcomes when the Administrative Decisions Tribunal makes a decision on a complaint referred by the Anti-Discrimination Board (ADB).

Step 10 If you are not satisfied with NCAT's decision, consider whether you have grounds for appeal

You may have the right of appeal to the Appeal Panel ​of NCAT, if you can establish that the Tribunal went wrong either in the procedure it followed or in the way it interpreted or applied the law. Learn more about making an appeal​.

In some instances there is also a right of appeal to the Supre​me Court. If you are not sure of your appeal rights you should seek legal advice.

Step 11 Apply to NCAT to help enforce the decision

If the person you complained about, or who complained about you, does not comply with an order of the Tribunal, you can apply to NCAT for help.

If the order from NCAT does not involve money, you can apply to NCAT Registrar for a certificate of order. The order can then be filed in the Supreme Court for enforcement.

If the order from NCAT involves money, and the person has not paid, you can apply for a certificate from NCAT Registrar. The certificate can then be filed as a judgment debt in the court that has jurisdiction to recover the amount.