New South Wales Consolidated Acts

CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 2013 - SECT 34C

34C Proceedings after leave granted

(1) Proceedings taken to be commenced if leave granted If an authorised court grants leave for an original application or external appeal to be made to it instead of the Tribunal--

(a) proceedings for the determination of the application or appeal (
"substituted proceedings" ) are taken to have been commenced in the authorised court on the day on which the application or appeal was first made to the Tribunal, and

(b) the court may make such orders (including in relation to the Tribunal) as it considers appropriate to facilitate its determination of the application or appeal.

(2) Subsection (1) applies despite any limitation period under the Limitation Act 1969 or any enabling legislation that applies to the application or appeal concerned provided it was first lodged with the Tribunal before the expiry of the period.

(3) Jurisdiction and functions of authorised court The authorised court has, and may exercise, all of the jurisdiction and functions in relation to the substituted proceedings that the Tribunal would have had if it could exercise federal jurisdiction, including jurisdiction and functions conferred or imposed on the Tribunal by or under this Act or enabling legislation.

(4) Modifications to certain functions Despite subsections (1)-(3), the following provisions apply in relation to substituted proceedings--

(a) the authorised court is to be constituted as provided by its relevant courts legislation instead of as provided by this Act or enabling legislation,

(b) a party to the substituted proceedings is not required to pay any fees in relation to the commencement of the proceedings in the authorised court other than the fees referred to in section 34B(3)(b) unless the authorised court determines that additional fees are payable under its relevant courts legislation because of a substantial alteration in the nature of the claims in the proceedings,

(c) the legislation applicable to appeals against decisions of the authorised court apply to decisions of the court in the substituted proceedings instead of Divisions 2 and 3 of Part 6,

(d) if the authorised court is the District Court--the practice and procedure applicable in the District Court under its relevant courts legislation (and any laws applicable in relation to contempt of court) apply to the substituted proceedings instead of Parts 4 and 5, any enabling legislation, the procedural rules and practice directions,

(e) if the authorised court is the Local Court--the practice and procedure applicable in the Local Court under its relevant courts legislation applies to the substituted proceedings instead of Part 4, any enabling legislation, the procedural rules and practice directions, except that--

(i) the rules of evidence are to be applied to the proceedings if they would have been required to be applied if the proceedings were before the Tribunal, but the Local Court may, if it decides that it is appropriate to do so in the circumstances, not apply the rules of evidence if they were not required to be applied by the Tribunal, and

(ii) a person who is not an Australian legal practitioner can, with the leave of the Local Court, represent a party to the proceedings, but only in the circumstances that the Tribunal would have been permitted to allow it if the proceedings were before the Tribunal, and

(iii) a person who could have been made a party to, or intervened in, the proceedings if the proceedings were before the Tribunal can, with the leave of the Local Court, also be made a party or intervene, and

(iv) the Local Court may award costs in the proceedings only in the circumstances that the Tribunal would have been permitted to award them (and the costs are to be assessed in the same way as they would have been) if the proceedings were before the Tribunal,

(f) the authorised court may make orders giving effect to any settlement reached by the parties even if that settlement was reached before the substituted proceedings commenced,

(g) the power of the authorised court to make orders as to costs in relation to the substituted proceedings includes a power to make orders with respect to--

(i) the application for, and the granting of, leave for the application or appeal to which the substituted proceedings relate to be made to the court, and

(ii) any step taken in the Tribunal before leave was granted,

(h) any other modifications (including to the provisions of this Act or other legislation) as may be prescribed by the regulations for substituted proceedings of the kind concerned.

(5) The Minister is not to recommend the making of a regulation for the purposes of subsection (4)(h) unless the Minister certifies that--

(a) if the proposed amendments affect the exercise of jurisdiction or functions by the Tribunal--the President has agreed to the amendments, and

(b) if the proposed amendments affect the exercise of jurisdiction or functions by the District Court--the Chief Judge of the District Court has agreed to the amendments, and

(c) if the proposed amendments affect the exercise of jurisdiction or functions by the Local Court--the Chief Magistrate of the Local Court has agreed to the amendments.

(6) References to Tribunal in legislation To avoid doubt (but subject to the regulations)--

(a) any reference to the Tribunal in a provision of legislation that confers or imposes a function on the Tribunal is to be read as including a reference to an authorised court if the function is conferred or imposed on the court because of the operation of this section, and

(b) any reference to proceedings in the Tribunal in a provision of the kind referred to in paragraph (a) is to be read as including a reference to proceedings in the authorised court.

(7) Definitions In this section--

"modification" includes addition, exception, omission or substitution.

"relevant courts legislation" means--

(a) for the District Court--the District Court Act 1973 and the rules of court under that Act, and

(b) for the Local Court--the Local Court Act 2007 and the rules of court under that Act,

and includes the Civil Procedure Act 2005 and the regulations and uniform rules under that Act in their application to the Court concerned.