Since the introduction of the new strata legislation, Strata Schemes Management Act, 2015 (NSW) (“SSMA”) it is no longer the case that you may automatically have legal representation at mediation. In fact, under Section 220 of the SSMA, you have no entitlement to legal or other representation, unless all the other parties to the dispute give their consent.
NSW Civil & Administrative Tribunal (“NCAT”)
Under the Civil and Administrative Tribunal Act 2013, Section 45, a party to proceedings in a NCAT matter must represent itself and is not entitled to be represented by any person except with the leave or approval of NCAT. Even if leave is granted, NCAT retains the power to revoke any such leave given.
While there is no express indication under that legislation as to what matters will be taken into account when NCAT exercises its discretionary powers to grant or refuse leave for legal or other representation, NCAT did issue a guideline paper indication what factors would be taken into account when determining whether or not to grant leave. Those guidelines listed the following instances in which NCAT would usually grant leave for legal representation:
- if the proceedings are in the Home Building List and involve a claim or dispute for more than $30,000;
- if another party in the proceedings is, or is to be represented by, an Australian legal practitioner;
- if the application is for a penalty to be imposed under the Strata Schemes Management Act 2015 or the Community Land Management Act 1989;
- if the proceedings relate to a “tenancy” within the meaning of the Agricultural Tenancies Act 1990 (NSW) and involve a claim or dispute for more than $30,000;
- if another party in the proceedings is a government agency;
- if the Tribunal is of the opinion that the party would be placed at a disadvantage if not represented at the hearing; and
- if the Tribunal is of the opinion that representation should be permitted due to the likelihood that complex issues of law or fact will arise in the proceedings.
So, even if your matter falls within the categories above, there is still no guarantee that you will be entitled to legal representation.
For more details, please review the full NCAT guidelines here.
Please note that this article is provided for information purposes only and is not a substitute for professional legal advice.