Federal diversity jurisdiction

NCAT Fact Sheet
Federal diversity jurisdiction
Do the parties in your matter permanently reside in different States? If so, NCAT may not be  able to determine your matter due to federal constitutional law.

(Open original document here – ncat_factsheet_federal_diversity_jurisdiction )


What types of matters are
In February 2017 the Court of Appeal handed down
a decision (Burns v Corbett; Gaynor v Burns
[2017] NSWCA 3) that indicates that NCAT may not
be able to determine matters between residents of
different States. These matters are sometimes said
to be within ‘federal diversity jurisdiction’. It is a
complicated question which matters might be
affected. Generally there must be two natural
people involved and at the time of lodging one must
be a permanent resident of one State and the
opposing party must be a resident of a different
There is no ‘diversity jurisdiction’ problem if one of
the parties is a corporation, a NSW government
agency, a resident of a territory, or a non-permanent
resident of a different State. In addition, there is no
problem if the matter does not involve the Tribunal
exercising judicial power, for example because it is
an administrative review matter in the Administrative
and Equal Opportunity or Occupational Divisions.

What happens if there is a
‘diversity jurisdiction’ problem?
You still apply to NCAT and NCAT will attempt to
help you come to an agreed settlement with the
other party. However, if you do not settle your
dispute or you want to have the agreed settlement
registered and enforced, you will need to go to the
Local or District Court, depending on the size of the
claim. The court is able to make the same orders
that NCAT could have made.

If you go to one of the courts, you will need to take
the following documents with you.

• A copy of the letter from NCAT that tells you that
NCAT declines to hear your matter.

• A copy of the application you lodged at NCAT
• If settlement reached, a copy of the agreed

You will also need to complete the relevant court
Summons and Affidavit. There is a link to these
documents on the NCAT website.

Can you go to the court

If an Act says that NCAT is the only body which can
deal with your matter (for example, the AntiDiscrimination
Act 1977 or s 119 of the Residential
Tenancies Act 2010) – no. For those matters, the
Local or District Court can grant leave for the
application or appeal to be made to the court only if it
is satisfied that the application or appeal was first
made to NCAT.
If a court as well as NCAT can determine your
matter – yes, you can go directly to the court.
Will I have to pay additional
In most cases, you will not need to pay any
additional fees. An additional fee may be payable if
there is a significant change compared to the
application originally lodged with NCAT.
When will the changes
These arrangements are effective from 1 December
2017 due to the commencement of the Justice
Legislation Amendment Act (No 2) 2017. If your
matter has been dismissed/declined prior to that
date you will receive a letter shortly outlining your
options or you can contact the NCAT Registry on
1300 006 228.

Further information
If you want more information about how the court will
deal with your matter, go to Part 3A, Diversity
Proceedings of the Civil and Administrative Tribunal
Act 2013.

Getting help
LawAccess NSW provides legal information,
referrals and in some cases, advice for people who
have a legal problem in NSW.
Tel: 1300 888 529 TTY: 1300 889 529 TIS: 131 45
Contact NCAT
1300 006 228 | http://www.ncat.nsw.gov.au
For more information and assistance visit the NCAT
website http://www.ncat.nsw.gov.au or contact NCAT
1300 006 228

Author: Garry Burns

Gary Burns is an Australian anti-discrimination campaigner. He successfully tested the homosexual vilification provisions of the NSW Anti-Discrimination Act 1977 with a complaint of personal homosexual vilification against broadcaster John Laws and Sydney radio station 2UE that concluded in his favour in 2002.[1] Burns went on to front public interest cases against high profile figures and media establishments for unlawful homosexual vilification.

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