The Appeal Panel of the NSW Civil and Administrative Tribunal has made it very clear that not agreeing with a decision of the Tribunal does not give you an automatic right to appeal. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again. This is because there must be an error on a question of law or considerations to require leave to appeal being granted.

The principles for granting leave to appeal are clear with many Appeal Panel decisions referring to Collins v Urban [2014] NSWCATAP 17. A more helpful summary was given by the Court of Appeal in  Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 where it state at 28 (citations omitted):

“Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguably. It is well established that it is not sufficient to merely show that the trial judge was arguably wrong.” 

Very simply and in plain English this means that if the Tribunal did not make an error of law then to gain leave to appeal you must be able to hang your hat on an issue of principle, a question that is of importance (generally, that is, the answer will affect others), or that the injustice due to the decision is very, very clear.

In Consumer and Commercial division of the Tribunal the requirements of s32 and c1ause 2(1) of Schedule 4 to Civil and Administrative Tribunal Act 2013 must also be made out. In summary this means that there must have been a substantial miscarriage of justice on the basis that:

  • The decision under appeal was not fair and equitable
  • The decision under appeal was against the weight of evidence or
  • Significant new evidence has arisen that was not reasonably available at the time of the hearing for the decision under appeal

Not all decisions are appealable. If you disagree with a decision of the Tribunal then you should consider seeking urgent legal advice to see if there has been an error of law or if you can reasonably argue that you have grounds for leave to appeal. Note the general rule for time to appeal is that it must be lodged within 28 days however, with some types of matters the time to lodge and appeal may be 14 or even 21 days so you need to act quickly.

This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.

Author: Allison Benson