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Discrimination toolkit

The NSW Civil and Administrative Tribunal

 

The Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal (NCAT) deals with discrimination, harassment, vilification or victimisation cases that have been referred to NCAT by the President of the NSW Anti-Discrimination Board (ADB).

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The NSW Civil and Administrative Tribunal (NCAT) started in January 2014. Before NCAT discrimination cases were dealt with by the NSW Administrative Decisions Tribunal ('ADT'). As NCAT develops it might change some of its procedures we set out below. Always contact the NCAT Registry or check its website to confirm the proper procedures you need to follow in your case.

Does it cost me any money to take my case to NCAT?

No. It does not cost anything to start your case in NCAT, and there are no filing fees.

If you hire a private lawyer you will have to pay their fees. You might also have to pay for getting your evidence together - getting medical reports or issuing summonses for example (see What is a summons and a subpoena?).

Do I need a lawyer to represent me in NCAT?

Not necessarily. You can represent yourself in NCAT. The NCAT's procedures are designed to help people who are not legally represented.

You can be represented by a lawyer. We think this is a good idea because discrimination law is technical and complex, and NCAT staff (including tribunal members) cannot give you legal advice or help you present your case. You might be able to get free legal representation from Legal Aid NSW (see Legal Advice and Representation) or your closest community legal centre (see Legal Advice and Representation).

You can also be represented by an 'agent' with the Tribunal's permission. This is a representative who is not a lawyer such as a union official or a disability advocate.

If you want a lawyer or an agent to represent you, you and your lawyer will need to sign a form (sometimes called a ‘Notice of Representation’), lodge it with the NCAT Registry and serve it on the respondent(s). You will need to follow up with the NCAT Registry or tribunal member about whether or not you have permission to have an agent represent you. If you don’t have a lawyer to represent you, it is very important to at least get some legal advice about your case as soon as possible after the ADB process is finished.

The types of things you could ask a lawyer are:

  • What are my chances of winning the case?
  • Have I named the correct respondents?
  • Have I described the type of discrimination correctly?
  • What evidence will I need to prove my case?
  • How should I prepare documents for the tribunal?
  • What happens at the tribunal (case conference, mediation and hearing)?
  • What orders should I ask the tribunal to make if I win, and how much money can I ask for?
  • How much will it cost for you to represent me?
  • How long will this process take?
  • What happens if I lose?

When can I go to NCAT?

Your complaint can only go to NCAT if it is referred there by the ADB.

You don't have to fill in an application form or pay any fees to start your case in NCAT.

If the ADB declined your complaint in the first place, you will not be able to take your case to NCAT (see What will the ADB do with my complaint?).

The ADB can refer your case to NCAT if the ADB accepted your complaint for investigation but later declined it (see What if my complaint is not accepted?). In this situation you will need to ask NCAT's permission for your case to go ahead. This is called 'applying for leave'.

The ADB can refer your case to NCAT - and you won't have to 'apply for leave' - if your complaint was not resolved through conciliation, or if your complaint was with the ADB for more than 18 months.

When the ADB refers your complaint to the NCAT they send a bundle of documents called the 'President's Report' to the NCAT. The President's Report contains:

  • a document called the 'President's Summary of Complaint' (see below);
  • copies of your complaint and any other documents you gave to the ADB; and
  • copies of any documents the respondent gave to the ADB.

Once the ADB has done this they will close your file, which means your dealings with them are over.

What is the 'President's Summary of Complaint'?

The President's Summary of Complaint includes a form prepared by staff at the ADB which sets out:

  • the names and contact details of you and the respondent;
  • the 'period of your complaint' (that is, what time frame is covered by the complaint);
  • whether your complaint was declined by the ADB;
  • the number of complaints you have made;
  • the 'type of complaint' you have made, which means: the ground and the area of discrimination and the sections and parts of the law that apply to your complaint;
  • how the other party might be 'liable' (legally responsible) for what happened - for example, are they the individual who treated you badly or are they that person's employer (who might be 'vicariously liable' for the discrimination); and
  • any 'defences' from the respondent.

As well as this form, the President's Summary of Complaint also contains a summary of your complaint, the respondent's reply and what happened at the ADB. It might also mention legal issues that your case raises.

What happens when my complaint is referred to NCAT?

Within about a week of NCAT receiving your complaint from the ADB, NCAT will send you a letter and a copy of the President's Summary of Complaint (see above). The letter from NCAT will tell you what happens next.

The President's Summary of Complaint is a very important document, because it summarises your whole case for NCAT. Make sure you read it carefully and check that everything in it is correct and nothing has been left out. It's a good idea to get a lawyer to check it as well.

If there's anything about the President's Summary of Complaint that concerns you, make sure you mention it at the first NCAT case conference (see What is a case conference?).

NCAT says I need 'leave'. What does this mean and what will happen?

The first letter you get from NCAT will tell you if you need 'leave' (permission) before you can go any further. This is because your complaint had been declined by the ADB. If you do need leave, the letter will give you the place, date and time of your 'leave hearing'. The respondent is also invited to this hearing.

The leave hearing is when one tribunal member decides whether or not to let your case go ahead at NCAT - they can knock out ('dismiss') your case at this stage. It's up to you to convince the tribunal member that your case should be allowed to go ahead, even though the ADB declined your complaint.

The tribunal member will base their decision on what is in the President's Report and anything you and the respondent say at the hearing. Normally you are not allowed to give them any new evidence or documents at or before this hearing.

The tribunal member will consider things like:

  • whether your case fits within the law, and whether you have a reasonable chance of winning at a NCAT hearing;
  • the ADB's reasons for declining your complaint; and
  • whether the respondent has documents or information that might help you prove your case but you don't have access to them.

If you want an agent to represent you at this hearing, the agent will have to ask the tribunal member for permission on the day of the hearing.

The tribunal member might give their decision on the day or they might take some time to decide.

If your case is dismissed, the only place you can appeal that decision is the Supreme Court of NSW. You have 28 days to appeal. The Supreme Court will only look at whether NCAT got the law wrong ('error of law'). Appeals like these are a specialised and technical area of law so we strongly recommend that you get legal advice before doing this.

If NCAT grants leave for your case to go ahead, they will usually give you a date for your first 'case conference' (see below).

I don't need 'leave'. What happens next?

If you don't need leave, the first letter you get from NCAT will include the President's Summary of Complaint and give you a date for your first 'case conference' (see below). You will also get information on how to respond to the President's Summary of Complaint.

What is a 'case conference'?

A case conference is where you and the respondent meet with a tribunal member so that the tribunal member can organise how your case will be run. There can be case conferences at various stages of the tribunal process. The first one usually happens 3 to 5 weeks after NCAT sends you its first letter. Each case conference usually lasts 15 to 30 minutes.

You can go to a case conference in person, or you can do it over the phone if you have arranged it with the NCAT registry beforehand.

At the first case conference, the tribunal member will:

  • Find out if you have a lawyer to represent you. If you don't, they will ask whether you would like some advice from a lawyer; if you say yes, they will make an appointment for you to see a lawyer from Legal Aid NSW who can give you free advice about your case;
  • Decide whether you are allowed to be represented by an 'agent', if that's what you've asked for;
  • Go through the President's Summary of Complaint and ask you and the respondent if you agree or disagree with what's in it. This is your opportunity to ask for any changes to be made; it is very important to make sure everything that should be in your complaint is there;
  • Ask you and the respondent what evidence you are going to present to the tribunal;
  • Ask you whether you are going to have any witnesses or file any documents;
  • Ask you whether you want to issue any summonses (see What is a 'summons' and a 'subpoena'?). You need to ask for approval to issue summonses for all your witnesses, and for any documents you want but can't get. If approval is given you should find out the process you need to follow to issue the summonses;
  • Ask you and the respondent whether you want to try mediation (see What is mediation?). Although the Tribunal can order you to try mediation, it will usually only happen if all parties agree to it; and
  • Give you and the respondent the timetable for what will happen. This will give you a date for mediation (if you agreed to mediation), usually 3 to 4 weeks after the case conference, and dates for getting your evidence filed/lodged and served. Sometimes you will be asked to file/lodge and serve evidence before there is a mediation.

The tribunal member will use the information you and the respondent give them at the case conference, to write a document called the 'Tribunal's Summary of Complaint'. This will set out:

  • The issues that you and the respondent agree on;
  • The issues that you and the respondent do not agree on;
  • The evidence you will need to give NCAT to try and prove your case;
  • The evidence the respondent will need to give the NCAT to try and prove its defence;
  • A date for mediation if mediation has been agreed to or ordered;
  • A timetable for getting your evidence ready, that you and the respondent will have to follow if there is no mediation or if your case does not resolve at mediation.

At the end of the case conference you should ask the tribunal member for a copy of the Summary of Complaint to keep for your records.

How do I prepare for my case conference?

Before the first case conference, you should:

  • Read and follow the instructions in the information sheet given to you by NCAT - 'How to Respond to the President's Summary of Complaint';
  • Check the President's Summary of Complaint very carefully to make sure everything that should be there is included;
  • Check that all the times when you suffered discrimination, harassment, victimisation or vilification are there, and check that all the people and the organisations you are complaining about are named as respondents. You must use the registered legal name of the organisation, which is not always the same as the name of the business (see Complaint checklist);
  • Think about whether you are willing to attend mediation;
  • Make a list of documents that could help you prove your case and decide whether you will need a summons to get them (see What is a ‘summons’ and a ‘subpoena’?);
  • Make a list of witnesses you think could come to NCAT and give evidence to help you prove your case, so that you can ask for approval to issue summonses for them;
  • Decide if you want a lawyer or agent to represent you.

Story icon  Fatima's story

Fatima works at a local school. She complains to the principal that another teacher discriminated against her because she is Lebanese. While the principal is investigating her grievance, Fatima tries to apply for a promotion, but the principal tells her she isn't allowed to apply while her grievance is being investigated.

Fatima's grievance is not resolved at the school so she makes a complaint to the ADB. She makes a complaint of race discrimination against the teacher and the school, and includes information about not being allowed to apply for the promotion.

Her complaint is not resolved at the ADB and her case goes to NCAT. When she is sent the President's Summary of Complaint she notices that it does not mention the promotion issue, which she thinks is 'victimisation'.

At the first case conference Fatima tells the tribunal member about this and asks if she can amend her complaint by adding victimisation. The respondent objects so the tribunal member decides to have a hearing at a future date to decide if victimisation should be included in Fatima’s complaint.

At the hearing the tribunal member decides that victimisation should be a part of Fatima’s complaint because she had mentioned the promotion issue to the ADB when she made her complaint there.

 

What happens after the first case conference?

If any issues come up at the first case conference which need to be decided, the next step could be a mini-hearing where a tribunal member will make a decision about that particular issue. For example if you asked for your complaint to be amended to include something you think should be a part of it, and the respondent doesn’t agree. If there are no preliminary issues to be decided and you and the respondent are going to try mediation, mediation will usually be the next step.

If you and the respondent are not having mediation, the next step is usually for you to prepare your evidence and then file/lodge and serve it according to NCAT’s timetable.

What is mediation?

Mediation in NCAT is similar to conciliation in the ADB (see Conciliation). It is run by a mediator, who is a tribunal member of NCAT or an experienced mediator from outside NCAT. Like a conciliator, the mediator cannot take sides, does not make decisions about who is right or wrong and cannot give legal advice. They are just there to help you resolve your case.

Mediation is confidential. What people say during mediation can't be quoted to the tribunal later at a hearing.

You can do mediation over the telephone if necessary, but usually people do it in person – and we think this is better in most cases.

If you and the respondent live in, or close to Sydney, mediation will normally take place at NCAT itself. If it is convenient for both you and the respondent, and you ask NCAT, mediation might take place in a location outside Sydney.

Mediation has many benefits. It's free, and it gives you another chance to try to resolve your case without having to go to a hearing. The success rate is quite high. Just because conciliation did not work at the ADB, don't assume mediation won't work at NCAT. The respondent may be more willing to settle the complaint at mediation, when the alternative is a tribunal hearing. Hearings can cost money, take time, and there's always a risk of losing.

Mediation can be done any time between the first case conference and the hearing. This means that even if you said no to mediation at the first case conference, you can usually change your mind later. If you do change your mind, make sure you contact the NCAT registry and let them know.

How do I prepare for mediation?

You prepare the same way you prepared for conciliation at the ADB. This includes preparing 'proposed terms of settlement' and giving them to the respondent before or at the mediation. (see from What happens before conciliation?).

It is a good idea to get some legal advice about this.

What happens if I settle my case at mediation?

If you come to an agreement with the respondent at mediation, the agreement will be recorded in a 'settlement agreement' (see What is a settlement agreement?). Make sure you know exactly what you are agreeing to before you sign the agreement. If you are not sure about anything, ask for some time to see a lawyer and get the lawyer to explain it to you.

After the settlement agreement is signed, the next step is for everyone to do what they agreed to do.

The respondent will normally only settle the case at mediation if you agree to withdraw your NCAT case. The agreement should say that you will withdraw your case only after the respondent has done everything they promised to do.

Talk to the mediator on the day of mediation about how to withdraw your case. It usually involves writing a letter to the NCAT registry saying that you are withdrawing your case.

You should only withdraw your case when the respondent has done everything they agreed to do.

Story icon  Martin's story

Martin complains to the ADB that he was refused service in a pub because he is Aboriginal. The pub owner doesn't respond to any of the letters the ADB sends him, so eventually the ADB terminates Martin's complaint and refers it to NCAT.

At the first case conference Martin and the pub owner are asked if they will try mediation. He is surprised when the pub owner agrees. Martin suspects that the man is treating the complaint more seriously now that it is in the tribunal.

Martin is even more surprised by what happens at the mediation: the pub owner agrees to apologise, promises that it will not happen again and agrees to pay Martin some compensation. Martin is happy that he gave mediation in NCAT a go.

What if mediation is not arranged or I have mediation but my complaint doesn't get settled?

You will have to prepare for a hearing.

At the first case conference, you will have been given a timetable listing all the things you and the respondent have to do to prepare for the hearing. If you agreed to mediation, the timetable will usually start after the mediation. If you didn't agree to mediation, the timetable usually starts after the first case conference.

The timetable usually includes instructions (called 'directions') which say that:

  • You must file/lodge and serve your documents/statements by a certain date (you are usually given 28 days but can ask for more time if you need it);
  • The respondent must file/lodge and serve their documents/ statements by a certain date (they are usually given 28 days after they receive copies of your documents/statements);
  • You must file/lodge and serve any response to the respondent's documents/statements by a certain date (you are usually given 14 days after you receive the respondent's evidence);
  • You and the respondent must tell each other which witnesses you want to cross-examine at the hearing, no later than 14 days before the hearing.

The timetable might also include instructions about summonses. Part of your preparation for the hearing is making sure you get approval (from NCAT) for any summonses you need, then getting them issued by the registry and properly served (see What is a 'summons' and a 'subpoena'?). It is your responsibility to follow up on every stage of the summons process.

It is important to stick to the timetable. You might be ordered to pay legal costs, or your complaint might be dismissed, if you fail to follow the timetable. If there are any genuine reasons why you can't (for example, illness, or delays caused by the respondent), ask NCAT for an extension of time. Before you do this, though, try to contact the respondent to see if they agree to an extension. It's easier to get an extension if the respondent has agreed to it. When you ask the tribunal for an extension, let them know what the respondent's answer was.

What else happens before the hearing?

There will usually be at least one more case conference before the hearing.

The second case conference happens so that the tribunal member can check that your case and the respondent's case are prepared and ready for hearing. Part of this means making sure that both sides have followed the timetable. If there is anything that has not been done, the tribunal member might give you more instructions or a new timetable.

When all the things listed in the timetable have been done, your case is ready for hearing and you will be given a hearing date.

What happens at a hearing?

A hearing is like a court trial. You and the respondent put forward your cases, and the evidence you have. One to three tribunal members will hear the case and then decide whether you have been unlawfully discriminated against.

One of the tribunal members hearing your case must be an ‘Australian lawyer’. Any other tribunal members hearing your case will be people who have knowledge and experience of the particular issues involved in your case.

The usual order in a hearing is:

Step 1: You (or your lawyer) make an opening statement.

Step 2: The respondent (or their lawyer) makes an opening statement.

Step 3: One at a time, all your witnesses give evidence in the witness box (you will usually be one of them). There are three stages to giving evidence:

  • the witness answers any questions that you (or your lawyer) asks. This is called 'examination-in-chief';
  • the respondent (or their lawyer) gets to ask the witness questions. This is called 'cross-examination'; and
  • you (or your lawyer) can ask your witness questions about information that came up in cross-examination. This is called 're-examination'.

Step 4: The respondent's witnesses give evidence in the witness box, and they go through the same process. This time you (or your lawyer) do the cross-examination.

Step 5: You (or your lawyer) can make a closing statement summing up your case.

Step 6: The respondent (or their lawyer) can make a closing statement summing up their case.

If you are representing yourself, the tribunal might not follow this order. They are generally more flexible in how they run things when there aren't any lawyers involved.

When will NCAT give their decision?

They might give their decision on the spot, or they might take some time to decide - it can be anywhere from a few hours to several months.

What decisions can NCAT make?

The tribunal's job is to decide whether or not you have been unlawfully discriminated against, and if you have, what should be done about it.

If you lose your case, NCAT will say that your complaint has been 'dismissed'. If you win your case, NCAT will say that your complaint is 'made out' or 'proven' or 'substantiated'.

You might win some parts of your case and lose others. For example, you might prove that you were sexually harassed on one occasion but not on another occasion.

If you win (or partly win), the tribunal will decide what 'orders' it should make against the respondent. Their aim is to try to put you in the position you would have been in if the discrimination had not happened.

NCAT can make several kinds of orders, including:

  • the respondent has to pay you compensation (up to $100,000 for each complaint);
  • the person responsible for the discrimination, harassment or vilification is not to continue or repeat the action;
  • the respondent has to do certain things, such as giving you back your job;
  • the respondent has to publish an apology or a retraction (taking back what they said or did);
  • the respondent has to change discriminatory parts of a contract or agreement;
  • the respondent has to set up a program to stop future discrimination.

How much compensation will I get?

Compensation for discrimination is different in every case. The amount you get mostly depends on what evidence you present about how the discrimination has affected you (what you have lost because of it). The amount will also be influenced by how much has been awarded in past cases.

The maximum amount of compensation that can be ordered by NCAT is $100,000 for each complaint.

Compensation payments for discrimination are generally not high in Australia. People are rarely ever given anywhere near the $100,000 maximum. This has been flagged as an area for future reform.

Will I have to pay the other side's legal fees if I lose?

In NCAT, the general rule is that you will not have to pay the respondent's legal fees if you lose, and the respondent won't have to pay your legal fees if you win. In others words, you usually have to pay the costs of running your own case, whether you win or lose.

Sometimes, NCAT might order the loser to pay the winner’s legal fees. This might happen, for example, if the person who loses had a hopeless case, behaved very badly during the tribunal process or did not obey the tribunal’s directions.

Can I withdraw my case if I want to?

Yes. You can withdraw your case at any time before the end of the tribunal hearing. Talk to the NCAT registry about how to do it. It usually involves writing a letter to NCAT to tell them you are withdrawing your case, and giving a copy of the letter to the respondent.

If you withdraw your case late in the tribunal process (for instance just before or during the hearing), the other side might apply to the tribunal for an order that you pay their legal fees for defending the case. The tribunal can make this order, but it doesn't happen often. It might do it if you continued your case for a long time, even though you had little or no chance of winning.

What if I am not happy with NCAT's decision?

You might have a right to appeal if you lose your case. If you do, the appeal will be heard by the Appeal Panel of NCAT. This is made up of between one to three tribunal members (not the same ones who heard your case). The Appeal Panel will usually only look at whether NCAT got the law wrong ('error of law').

If you think NCAT got the law wrong (either the tribunal member/s in making the decision you lost your case, or the Appeal Panel if you appealed), you might also be able to appeal the decision to the Supreme Court of New South Wales.

You have 28 days from the date you receive the decision to lodge an appeal to the NCAT Appeal Panel or the Supreme Court.

If you are considering appealing an NCAT decision, you should definitely seek urgent legal advice. It is a technical and specialised area of law and there are risks you need to know about before you go ahead.

Can I get an interpreter?

Yes. If you need an interpreter when you go to NCAT, let the NCAT registry know and they will organise one for you. It won't cost you anything.

NSW Civil and Administrative Tribunal flowchart

This flowchart shows how a case runs in NCAT. Not all cases follow this exact order.

Flowchart detailing the steps a typical case will take in NCAT