The NSW Civil and Administrative Tribunal (NCAT) has temporarily adjusted its practices and procedures in response to COVID-19. Currently, all stages of hearings are being conducted over the phone, audio-visual link, or on the papers, at least until the end December 2020. Any further changes to the Tribunal’s services will be announced on the Tribunal’s Coronavirus (COVID-19) web page.
Making an Application to the Tribunal
If you have a dispute with your landlord, housing provider or land lease community operator, consider making an Application to the Tribunal for an independent, legally binding decision. Refer to our general factsheet on the Tribunal for the kinds of application you can make and the time limits you should observe.
During COVID-19, parties are encouraged to make Applications online. If this is not possible, you can still download the Application from the Tribunal website and lodge it at Services NSW. Depending on the Tribunal’s caseload, it may take weeks before a matter is listed for hearing. If you require an urgent hearing, you should complete the Tribunal Application and attach to it a written request for an urgent hearing clearly indicating either your email or phone number for urgent contact. You will need to explain why an urgent hearing is required. The Tribunal may or may not allow the expedited hearing.
Always check with the Tribunal registry whether your Application or other request or correspondence have been received. Once you lodge your Application, you should receive an email or letter with a Tribunal file number and further directions about the timetabling of your case. There are six Registries across the State: Sydney, Liverpool, Newcastle, Penrith, Tamworth and Wollongong. The Registry that is handling your case will be noted at the bottom of the Tribunal’s letterhead.
Notice of Hearing and Directions
When an Application is made to the Tribunal, a Notice of Hearing and Directions will be sent out to the parties by the Tribunal either in email (if this is provided) or letter to the address nominated in the Application. The Applicant is the party making the Application and the Respondent is the party responding to the Application.
This Notice will contain important information including: the date and time of the hearing and timetabling of your case, including deadlines by which a party must file all the material that they intend to rely on at the hearing.
All listings for hearings are published on the Tribunal website. You can look up the Hearing List at the assigned Tribunal Registry. These lists provide details of hearings in the Tribunal’s Consumer and Commercial Division that are scheduled over the following 14 days.
Filing your evidence
Read the Tribunal directions carefully. You must comply with these directions including any specific instructions about how your evidence should be presented, such as using coloured photographs or ordering and numbering every page.
If you do not comply with the directions/deadline, the Tribunal may decide not to consider any material that is filed late. If you need further time to lodge your material or to respond to an Application made against you, you should make a written request for extra time to the Tribunal.
During COVID-19, there are temporary arrangements for lodging documentation by email to the Registry. If you are unable to post a physical copy of your documents because of COVID-19, request for a direction or permission to file your documents electronically by contacting the Tribunal registry. The size limit for an email to the Tribunal is 18MB. If there is more than one email, make sure to number them in order, for example: RT20/1111 Jones v Smith Filed by Jones Email 1 of 3
If you do file your evidence via email, you should ensure that the documents have been sent to the correct Tribunal Registry and check with Registry that it is received. A list of all the Tribunal Registries and their contact details are below.
As a rule of procedural fairness, you must serve on the other party the same (and all) documents you file with the Tribunal. This can be done by copying both the Tribunal and the other party in the email.
During a phone hearing
Most Tribunal hearings are now being conducted over the phone, although some hearings may be conducted by audio-visual linkup using Microsoft Teams. You will receive the Notice of Hearing specifying the date and time for hearing. You can also check the Hearing List on the Tribunal website.
It is important to provide the correct phone number for the Tribunal to ring you. If your number has changed or you are not sure, check and confirm with Registry, preferably two working days before your hearing.
Tribunal hearings can run late (or early), so be prepared to answer the phone in the two-hour (as a guide) window from the time of your hearing. If you do not answer the phone, it is likely that the Tribunal may make orders in your absence. If you do not get a call from the Tribunal during the listed time, ring Registry to check if the Tribunal is running late.
If both parties have supplied all of their evidence at the date of the first hearing, the Tribunal may proceed to deal with the matter. In practice, the duration of hearings can vary. You can check how much time your matter has been allocated by looking up the Hearing List at the assigned Tribunal Registry.
It is possible that your matter will take more than one hearing to resolve, particularly if there is some complexity to the matter or a lot of issues to consider. The parties should continue to negotiate and try to resolve the dispute outside of the hearing.
If you believe that the Tribunal has not properly reviewed your material or adequately considered your matter, raise this before the end of the hearing and ask the Tribunal Member for written reasons of their decision. For more information about challenging a decision, refer to our general factsheet on the Tribunal.
Thanks to the Inner Sydney Tenants’ Advice and Advocacy Service at Redfern Legal Centre for providing initial research and drafting of this section.
If a landlord or agent has applied to the Tribunal for an eviction hearing, you will receive a ‘Notice of Conciliation and Hearing’ with the date, time and place of the hearing.
You should attend the hearing and take all letters, receipts and other evidence to support your case.
The Tribunal Member will encourage you and the landlord/agent to resolve the problem together in conciliation. If you cannot come to an agreement about the tenancy, a hearing will commence. The Tribunal Member will then look at your evidence and that of the landlord or agent.
If you are a 'COVID-19 impacted tenant' and the landlord makes an application to terminate your tenancy solely for rent arrears during this moratorium period, the Tribunal in considering whether to terminate the tenancy, will consider: the advice from NSW Fair Trading from the formal rent negotiations, whether you have continued to pay rent, the nature of financial hardship experienced by the parties, availability and affordability of alternative accommodation, public health objectives, any special vulnerability of the impacted tenant, among other things. If the landlord has not acted in good faith during the rent negotiations, the Tribunal may not make a termination order.
If the Tribunal makes a termination order, you must return the premises to the landlord. The Tribunal will consider the relative hardship to you and the landlord and specify the day for vacant possession. However, even after the Tribunal has made a termination order, you may still save your tenancy if your termination was for rent arrears only and:
- the Tribunal has not found that you have ‘frequently failed to pay’ the rent or water usage charges, and
- the Sheriff hasn’t enforced the warrant for possession yet.