Judicial review of NCAT decisions

A dispute about the display of decommissioned military firearms at an RSL venue. Whether a bus driver should have his bus driving licence revoked after leaving a child at a bus stop in the rain. The cancellation of a family daycare’s approval due to insufficient staff to children ratios. Whether strata by-laws allowed for the installation of hardwood flooring resulting in noise disturbance to an apartment below. What could they all possibly have in common?

At first glance, probably not much. However, all are matters which the NSW Civil and Administrative Tribunal (NCAT) has jurisdiction to hear and determine.

In 2024, NCAT will celebrate its 10thyear. Combining 20 formerly separate NSW tribunals, NCAT has jurisdiction over a variety of disputes including tenancy and social housing, guardianship and financial management, consumer claims, home building matters, professional disciplinary matters in respect of lawyers and medical practitioners, as well as administrative review of government decisions.

The internal appeals process within NCAT permits decisions at first instance to be scrutinised by an internal Appeal Panel and, where appropriate, corrected by the Appeal Panel. Generally, the Appeal Panel can consider whether the Tribunal which originally heard the proceedings made an error on a question of law. This saves parties the time and expense in, for instance, proceeding straight to the Supreme Court of NSW.

If a party remains unsatisfied with the outcome on internal appeal, applications for judicial review can then be made to the administrative law list of the Supreme Court of New South Wales. The Supreme Court’s power is limited to reviewing the Appeal Panel decision for a jurisdictional error, or an error of law on the face of the record.

Unlike in the federal jurisdiction, the NSW Government has not codified the law on judicial review (see, for example, the Administrative Decisions (Judicial Review) Act 1977 (Cth) or the Judicial Review Act 1991 (Qld)). Consequently, the grounds for such review are continuing to evolve with the case law, and many of these grounds of judicial review intersecting.

Administrative decision-making is almost always empowered by legislation and accordingly must address the question posed by the legislation. While this principle appears self-evident, it is often a pitfall for administrative decision makers in failing to observe the legislative requirements. This can be a complex process in NCAT, particularly when more than 100 pieces of legislation confer jurisdiction on NCAT’s Administrative and Equal Opportunity Division (including the Tattoo Parlours Act 2012 and Paintball Act 2018). Thankfully, and despite this, practitioners can usefully draw upon their knowledge of well-established grounds, including: a denial of procedural fairness, apprehended and/or actual bias, findings made without evidence, an unreasonable exercise of discretion and a failure to consider cogent and critical evidence, in seeking review of an NCAT decision.