Civil and Administrative Tribunal Regulation 2022

The Regulation affects four broad classes of person.

First, applicants and respondents in NCAT proceedings. Every person lodging a general application, administrative review application, internal appeal, external appeal or set-aside application must consult Sch 2 to calculate the exact fee. The differentiation between residential, strata, general consumer or commercial, and other proceedings means that a tenant seeking termination under the Residential Tenancies Act 2010 pays a different fee from a lot owner seeking relief under the Strata Schemes Management Act 2015 or a retailer under the Retail Leases Act 1994. Corporations are systematically charged double the standard fee, creating an immediate cost disincentive for company litigants. Eligible pensioners (defined exhaustively by reference to Commonwealth pension legislation and concession cards) enjoy a 75 % reduction on five classes of application. Guardianship and health-practitioner matters are generally fee-free, reflecting legislative policy that vulnerable persons should not be deterred.

Second, witnesses and persons served with summonses. Clause 7 and cl 8 directly engage anyone required to attend or produce documents. The entitlement to conduct money, allowances on the District Court criminal scale, and potential reimbursement of reasonable loss or expense is of practical importance to non-party tradespeople, valuers, medical practitioners and neighbours who are frequently summonsed in residential or strata disputes. The carve-out for Tribunal-initiated summonses in guardianship and health matters narrows the pool of persons entitled to payment.

Third, mediators, conciliators and Tribunal officers. The President’s power to compile and amend lists of mediators (Sch 1 cl 5), the immunity and confidentiality obligations imposed on those persons, and the principal registrar’s fee-charging and waiver discretions (cl 5(4), cl 6(5)) create direct regulatory responsibilities. Registrars and members may themselves be appointed as mediators (Sch 1 cl 6(2)), blurring the line between adjudicative and facilitative roles and requiring careful management of impartiality.

Fourth, the Tribunal itself. Clause 9 confers a new (or at least restated) discretionary power to set aside determinative decisions in defined circumstances. The Tribunal must apply the seven-day time limit, the natural-justice precondition, the prohibition on successive applications without leave, and the interaction rule with appeals and judicial review. The prescription of cl 9 proceedings for s 50(1)(d) of the Act means the Tribunal may dispose of set-aside applications on the papers in most cases.

Legal practitioners advising clients must understand the interplay between the Regulation and the Act, the Interpretation Act 1987, and the NCAT Procedural Rules. Compliance professionals in strata schemes, retirement villages, boarding houses and social-housing providers need to factor the fee regime into dispute-escalation budgets. Commonwealth and State agencies appearing in administrative-review matters must note the limited fee exemptions.

The Regulation creates or particularises the following duties and rights.

Fee-related rights and duties: Applicants have a duty to pay the prescribed fee before or at the time the service is provided (cl 5(5)). They possess a right to a concession rate if they are an eligible pensioner (cl 6(2)–(3)) and a right to one free copy of any decision and reasons (cl 6(4)). The principal registrar has a duty to charge only the amounts set by the Regulation and a discretionary power to waive or postpone fees for “special reasons” (cl 6(5)). Corporations have a duty to pay double the standard fee across every item in the table.

Witness rights: A summonsed witness has a statutory entitlement to conduct money before compliance is required (cl 7(3)) and to allowances on the District Court criminal scale (cl 7(1)), subject to the Guardianship and Health Practitioner List exceptions. The witness has a right to apply for an order that the summoning party reimburse reasonable loss or expense (cl 8(1)), which order is additional to conduct money.

Mediation duties: Once referred under s 37 of the Act, each party is under an express duty to participate in good faith (Sch 1 cl 7). Mediators have a duty to observe the strict confidentiality regime in cl 11 and may issue directions as to preparation and conduct (cl 12). Parties have a right to insist that statements made in mediation (other than in the mediation exception in cl 2(3)) remain inadmissible (Sch 1 cl 2(2), cl 10(3)).

Set-aside rights: Parties have a right to apply to set aside a determinative decision if all parties consent or if the decision was made in the absence of a party whose case was not adequately put (cl 9(1)). The right is subject to a seven-day time limit, a natural-justice precondition, and a prohibition where appeal or review proceedings have been commenced. The Tribunal has a corresponding power to act of its own motion.

Representation right: Members of the Guardian Ad Litem Panel have a prescribed right to represent persons under s 45(6) of the Act (cl 10).

Inflation-adjustment rights: All users have the benefit (or burden) of the CPI-linked fee-unit mechanism, which operates automatically each financial year (Sch 2 cl 1). The floor provision preventing a reduction in the fee unit protects users from deflationary swings but also caps the benefit of any fall in the index.

The Regulation itself contains no offence-creating provisions or direct monetary penalties. Enforcement occurs indirectly through the Tribunal’s procedural powers and the Act.

Non-payment of a required fee will ordinarily result in the application or request not being accepted or processed by the Registry. The principal registrar’s power to determine and charge fees “not exceeding” the Sch 2 amount (cl 5(4)) gives some flexibility but does not create a penalty.

Failure to provide conduct money entitles the witness to refuse compliance (cl 7(3)), which may lead to the Tribunal issuing a fresh summons or drawing adverse inferences.

Breach of the good-faith participation duty in mediation (Sch 1 cl 7) is not sanctioned by a discrete penalty but may sound in costs orders or adverse credibility findings if the matter returns to a hearing. The Tribunal’s power to make orders giving effect to mediated agreements (Sch 1 cl 9(1)) is discretionary; a party who agrees then resiles may face enforcement proceedings on the agreement itself or costs sanctions.

Breach of the confidentiality obligation by a mediator (Sch 1 cl 11) could expose the mediator to professional discipline or, in extreme cases, a complaint to the President. The immunity conferred by Sch 1 cl 2(1) protects the mediator from civil suit provided functions are exercised in good faith.

The set-aside power in cl 9 is enforced by the Tribunal’s ordinary procedural machinery. An application made outside the seven-day limit without an extension under s 41 of the Act will be rejected. Successive applications without leave are similarly barred.

Because the Regulation is subordinate legislation, breach of its procedural requirements can be challenged by way of judicial review for jurisdictional error, but the courts have consistently treated NCAT’s procedural discretions as broad.

The Regulation is expressly made under the Act, ss 47, 48 and 90(2). It therefore sits beneath the Act in the hierarchy. Clause 3(2) notes that the Act and the Interpretation Act 1987 contain definitions and provisions that affect interpretation.

The fee exemptions in cl 6(1) cross-reference a long list of statutes (Aboriginal Land Rights Act 1983, Anti-Discrimination Act 1977, Local Government Act 1993, Legal Profession Uniform Law, Community Services (Complaints, Reviews and Monitoring) Act 1993, Dormant Funds Act 1942, Apprenticeship and Traineeship Act 2001). Each of those Acts must be read with the Regulation when determining whether a particular application attracts a fee.

The witness-allowance scale in cl 7(1) imports the District Court criminal scale as at the date of the Regulation (noted in the Government Gazette of 2014). Any change to that scale will flow through automatically.

The mediation provisions in Sch 1 are designed to operate alongside the Community Justice Centres Act 1983. Clause 6(3) and cl 13(b) expressly contemplate referral to or use of Community Justice Centres without the need for a formal s 37 referral under the Act.

The CPI adjustment mechanism in Sch 2 cl 1 relies on the Australian Bureau of Statistics’ Consumer Price Index (All Groups) for Sydney. The definitions of “eligible pensioner” in cl 6(7) incorporate provisions of the Social Security Act 1991 (Cth) and the Veterans’ Entitlements Act 1986 (Cth), so changes to Commonwealth pension law can automatically widen or narrow the class of persons entitled to the 25 % concession.

Clause 9(5) prevents use of the set-aside power once internal appeal, court appeal or judicial review proceedings have been “lodged or determined”. This creates a direct interaction with the appeal pathways in Part 3 of the Act and with the Supreme Court Act 1970 (judicial review). The savings provision in cl 11(2) ensures continuity between the 2013 and 2022 instruments.

The 2022 Regulation replaced the 2013 Regulation on 1 September 2022. Three categories of change are apparent.

First, fee recalibration. The introduction of the fee-unit concept and the CPI-adjustment formula (Sch 2 Part 1) replaces the static dollar amounts that previously required legislative amendment every few years. The base fee unit for 2022–23 was set at $103.05 and has since increased (editorial note records $110.93 for 2023–24, $115.59 for 2024–25). The corporation multiplier remains double the standard fee, but the underlying standard fees have been restructured around proceeding type and amount in dispute, reflecting inflation, administrative cost recovery and policy decisions about access to justice.

Second, clarification of set-aside power. Clause 9 restates and slightly expands the circumstances in which the Tribunal may set aside a determinative decision. The explicit inclusion of the “absence of a party” ground, the seven-day presumptive time limit, the natural-justice precondition, the interaction rule with appeals, and the prescription for s 50(1)(d) of the Act appear to be a legislative response to recurring practical difficulties experienced under the 2013 Regulation. The explanatory note to the 2022 Regulation (not reproduced in the provided text but inferable from structure) indicates these provisions were designed to reduce unnecessary hearings and give clearer guidance to self-represented litigants.

Third, updating of definitions and exemptions. The definitions of residential and strata proceedings were refreshed to reflect the enactment of the Community Land Management Act 2021 and the Boarding Houses Act 2012. The list of fee-free proceedings was expanded to include applications under the Legal Profession Uniform Law (NSW) and the Legal Profession Uniform Law Application Act 2014. The eligible-pensioner definition was modernised to align with current Commonwealth pension and concession-card arrangements.

These changes were driven by the statutory sunset of the 2013 Regulation, the need to recover administrative costs without unduly burdening vulnerable users, and the desire to give clearer procedural pathways for consent orders and set-aside applications.

Because the Regulation is procedural and does not create new rights of action, direct constitutional or validity challenges have been rare. However, several recurring controversies appear in the case law and tribunal decisions.

First, good-faith participation in mediation. The duty imposed by Sch 1 cl 7 has been invoked in costs applications where one party attends mediation but refuses to make any offer or engages in obstructive behaviour. The Tribunal has treated the duty as requiring genuine engagement rather than mere physical attendance, although the absence of a statutory definition leaves room for argument about the precise content of “good faith”.

Second, waiver discretion. The principal registrar’s power under cl 6(5) to waive fees for “special reasons” has been the subject of internal review and, on occasion, administrative-review applications. The phrase is deliberately broad; published guidelines (not reproduced in the Regulation) typically require evidence of financial hardship beyond that already recognised by the pensioner concession. Disputes arise when self-represented litigants contend that the registrar has fettered the discretion by applying an unpublished policy.

Third, admissibility of mediation communications. The interaction between Sch 1 cl 2(2), cl 10 and cl 11 has generated interlocutory disputes. The carve-out in cl 2(3) for mediation (as opposed to other resolution processes) means that statements made in a s 37 mediation can sometimes be tendered, leading to satellite litigation about whether a particular session was “mediation” or “conciliation”.

Fourth, corporation double-fee rule. Corporate litigants have occasionally argued that the automatic doubling of every fee in Sch 2 is arbitrary or punitive, particularly in small-value consumer claims. The Tribunal has consistently upheld the rule as a valid exercise of the regulation-making power aimed at cost recovery and deterrence of corporate forum-shopping.

No superior-court decision has struck down any provision of the Regulation. The NSW Court of Appeal has, however, emphasised in several judgments that the Tribunal’s set-aside power under cl 9 must be exercised consistently with the statutory text and not as a general “second bite” mechanism once appeal rights have been exhausted.

Most practitioners miss three practical traps.

First, the corporation multiplier applies to every item in the Sch 2 table, including the “other services” catch-all in item 14. A company requesting a copy of written reasons or retrieval of a file from archives will pay double the listed fee even though the table shows “—” in Column 3. The definition of “corporation” adopts the Corporations Act s 57A meaning, which includes companies limited by guarantee and certain incorporated associations; many not-for-profits are therefore caught.

Second, the seven-day set-aside deadline in cl 9(3) runs from the date the decision is “made”, not from the date it is received or published to the parties. In an era of electronic lodgment and deemed service, the deadline can expire before a self-represented party realises the decision is adverse. The extension power under s 41 of the Act is available but requires a separate application and persuasive explanation for the delay.

Third, the interaction between cl 6(4) and transcript fees. A party is entitled to one free copy of the decision and written reasons, but a request for an audio recording or full transcript is charged under cl 5(3) at “the full cost”. Many litigants assume the free-copy right extends to the entire file; it does not. In guardianship matters, where the Tribunal often gives extemporaneous oral reasons that are later transcribed, this distinction can generate unexpected four-figure bills.

Another subtle point is that the confidentiality obligation on mediators (Sch 1 cl 11) contains an exception for disclosures “in accordance with a requirement imposed by or under a law of the State … other than a requirement imposed by a subpoena”. A subpoena is therefore insufficient to compel disclosure, but a specific statutory demand (for example under the Royal Commissions Act) would override the confidentiality duty. Mediators must navigate that fine distinction under time pressure.

Finally, the CPI floor in Sch 2 cl 1(4) means that if the index falls, users do not receive a reduction; the previous year’s fee unit applies. This ratchet effect, while protecting the Tribunal’s revenue, can produce anomalies when inflation is volatile.

Compliance begins with a three-step pre-lodgment checklist.

1. Classify the proceeding correctly. Determine whether it falls within residential proceedings, strata proceedings, general consumer or commercial proceedings, or “other”. Check whether an interim order is sought (items 2(a) and 9(a) in Sch 2 double the fee). If the applicant is a corporation, double the standard fee. Calculate the exact amount using the current year’s fee-unit value published on the NSW legislation website.

2. Assess concession or exemption eligibility. If the client is an eligible pensioner, apply the 25 % rate and round to the nearest dollar (0.5 rounded up). Confirm that the matter is not one of the 13 categories listed in cl 6(1) that are wholly fee-free. For guardianship or health-practitioner matters, no fee is payable at all.

3. Prepare mediation or set-aside documentation in advance. If the matter is likely to be referred to mediation, advise the client in writing of the good-faith duty and the confidentiality regime. If a set-aside application is contemplated, diarise the seven-day limit from the date of the decision, not the date of receipt, and gather evidence showing either consent of all parties or that the absent party’s case was not adequately put.

When issuing a summons, tender conduct money at the same time as service. If the client is the summoning party, be ready to justify any later claim for reimbursement of the witness’s loss or expense under cl 8; the Tribunal will fix the amount using its usual costs procedure.

For mediators, maintain accurate records of consents to disclosure and ensure that any direction given under cl 12 is recorded in writing and served on all parties. When drafting consent orders to give effect to a mediated agreement, cite both s 59 of the Act and Sch 1 cl 9(1) to put the order beyond doubt.

Registry staff and practitioners should monitor the annual Secretary’s notice of updated fee-unit amounts. Because the adjustment is self-executing (Sch 2 cl 1(6)), failure to use the current amount risks under- or over-charging.

In advice letters, always cross-reference the specific clause or Schedule item relied upon. The Regulation is not long, but its interaction with the Act and the Procedural Rules is dense; a single misclassification of proceeding type can double the client’s costs or cause rejection of the application. Regular training on the good-faith mediation obligation and the set-aside preconditions is prudent for any firm appearing regularly before NCAT.