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CPPDSM4020A Present at tribunals

Version 1 Validation date 09/01/16 Approved Review© MRT Training RTO XXXXX CPPDSM4020A T Rowe January 2017

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Learning OutcomesAt the completion of this unit students should be able to:

Prepare for tribunal. Participate in conciliation processes for grievances and disputes. Use appropriate tribunal etiquette Present case before tribunal. Act as a witness.

MRT Training Pty Ltd is a Registered Training Organisation, registered to deliver accredited training from the Property Services Training Package CPP07 and management programs from the Business Services Package BSB07. We have approval on the National Training Information Service (RTO # XXXXXX).

MRT Training provides the training to obtain:

• Certificate of Registration• Real Estate Agents Licence• Continuing Professional Development *

* Different conditions apply in each jurisdiction for CPD

© This publication is copyright to MRT Training. Apart from fair dealing for the purpose of private study, research, criticism or review as permitted under the Copyright Act, 1968, no part may be reproduced without written permission.

Whilst every precaution has been taken to supply complete and accurate information, MRT Training and its partners assume no responsibility for any liability, loss or damage caused or alleged to be caused directly or indirectly by the instructions contained in or accompanying this publication. All parties need to make their own enquiries as to the suitability of the material in relation to their use.


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ContentsHow to use this Learner Guide..............................................................................................................5

About this Learner Guide......................................................................................................................6

Features of this Learning Guide.........................................................................................................6

Completing activities.........................................................................................................................6

Activities linked to competency.........................................................................................................6

EMPLOYABILITY SKILLS..........................................................................................................................7

What to do now.....................................................................................................................................7

Introduction to CTTT..............................................................................................................................8

What is the difference between the tribunal & a court?...................................................................9

1. Preparing a case for the Tribunal.......................................................................................................9

1.1 Process for making an application...............................................................................................9

1.1.1 Matters that the CTTT deals with..........................................................................................9

1.1.2 Starting proceedings in the CTTT........................................................................................10

ACTIVITY 1...................................................................................................................................10

1.1.3 Listing the matter................................................................................................................10

ACTIVITY 2...................................................................................................................................10

1.1.4 Types of Hearings................................................................................................................10

1.1.5 Conciliation.........................................................................................................................11

1.1.6 Adjournments.....................................................................................................................11

1.1.7 Deciding what orders are being sought..............................................................................12

ACTIVITY 3...................................................................................................................................12

1.1.8 Hearings..............................................................................................................................12

1.1.9 Orders.................................................................................................................................12

1.1.10 Costs.................................................................................................................................12

1.1.11 Applying for Urgent Hearings:...........................................................................................12

1.2 Documentation for a hearing.....................................................................................................12

1.2.1 Preparing for the hearing....................................................................................................13

ACTIVITY 4.......................................................................................Error! Bookmark not defined.

1.2.2 Legal representation...........................................................................................................13

2. Conciliation......................................................................................................................................14

ACTIVITY 5...................................................................................................................................15


43. The Tribunal Proceedings................................................................................................................16

3.1 Typical dispute hearing procedure............................................................................................17

3.2 Appropriate etiquette................................................................................................................18

3.3 Presenting the Case...................................................................................................................18

3.4 The Hearings Conclusion............................................................................................................21

3.5 Rehearing & Renewals...............................................................................................................21

3.6 Follow- up and Enforcement.....................................................................................................23

3.6.1 Enforcement of Orders.......................................................................................................23

3.6.2 Enforcing a Procession Order..............................................................................................23

3.6.3 Some FAQ’s.........................................................................................................................23

Glossary of legal terms........................................................................................................................25

ASSESSMENT SECTION.........................................................................................................................29

ASSESSMENT A:...................................................................................................................................30






ASSESSMENT B:...................................................................................................................................31

Part 1...........................................................................................................................................31

Part 2...........................................................................................................................................31

Part 3...........................................................................................................................................31


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About this unit of competency

This unit of competency specifies the outcomes required to appear effectively before a tribunal. It includes preparing for tribunal hearings, using appropriate tribunal etiquette, acting as a witness, participating in conciliation hearings and presenting a case.

The learning outcomes will enable you at the completion of the module to:• Prepare for tribunal• Participate in conciliation processes for grievances and disputes• Use appropriate tribunal etiquette accurately receive and relay information• Present a case before tribunal• Act as a witness

PrerequisitesThere are no prerequisites for undertaking this unit. The unit specifies outcomes that are required by a new entrant to the real estate industry gain basic understanding of the industry and to work ethically and effectively in a real estate agency. The unit consists of the following elements and performance criteria. These are the skills and knowledge you need to achieve competence in this unit.


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About this Learner ManualThis Learner Manual is suitable for a range of learning situations, such as:

Workplace – based learning Classroom learning Blended workplace/classroom learning Self-paced and/or flexible learning

It is recommended that you read the material and attempt ALL activities, as this will enable you to complete the unit competently and confidently.

Completing activitiesCompleting the activities will gradually build your skills necessary to gain competency in this unit. However, your teacher, trainer or assessor may identify certain activities that will suit your particular learning situation. Assessment activities can be modified or varied by the trainer/assessor in consultation with the learner, the employer, the supervisor or any combination of the above.

Many of the activities throughout this Guide require you to access your organisation’s documents and draw on your own experiences in the workplace or require you to access the Internet. Speak to your trainer/assessor if you are not currently employed in the real estate sector, or do not have access to such documentation or the Internet that you need to complete the activities.

Activities linked to competencyFor most learning situations, teachers and assessors will recommend that learners work through the Learner Guide and attempt all activities. In some situations teachers and assessors may prescribe specific activities, depending on the learner’s current skills and knowledge.

If you feel the need, ask your teacher/assessor to identify which activities you need to complete to suit your learning situation.


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EMPLOYABILITY SKILLSEmployability skills are generic skills which support your ability to perform effectively in the workplace. They are also known as transferable skills because the employability skills you learn in one workplace can be applied and further developed in other workplaces and roles.

Employability skills are: Communication Teamwork Problem solving Initiative and enterprise Planning and organising Self management Learning Technology

What to do nowWe suggest that you follow these steps in using this Guide:

1. Read the material in this Guide and attempt all activities.2. Complete the assignments and case studies that appear at the end of each chapter where applicable.3. Speak to your trainer or assessor about how you will be assessed in this unit.


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Introduction to NCATThe Consumer, Trader and Tenancy Tribunal (CTTT) was established under the Consumer, Trader & Tenancy Tribunal Act 2001. This legislation gave the Tribunal power to hear disputes and determine outcomes about a broad range of issues in NSW. From 1 January 2014, the Consumer, Trader and Tenancy Tribunal (CTTT) became part of the NSW Civil and Administrative Tribunal (NCAT) as the Consumer and Commercial Division.

The Consumer and Commercial Division of NCAT resolves a wide range of everyday disputes such as tenancy and other issues relating to residential property, and disputes about the supply of goods and services.

The NSW Civil and Administrative Tribunal (NCAT) was established on 1 January, 2014 and consolidates the work of 22 NSW tribunals into a new one stop shop for specialist tribunal services. NCAT will streamline back office administration. It retains the former specialist tribunal expertise and services. NCAT will enhance ease of access to tribunal services by providing a single service gateway. Across all types of matters, NCAT is committed to:

timely, fair, high-quality decision-making maintaining current levels of service retaining specialist expertise and services continuous improvement in service delivery

NCAT will provide tribunal services that are quick, accessible, economical and effective. NCAT has 4 Divisions: Administrative and Equal Opportunity Consumer and Commercial Guardianship Occupational

NCAT will deal with a broad and diverse range of matters from disputes about residential tenancy and building works to guardianship and administrative review of government decisions.

The Tribunal is an independent decision making body that offers a dispute resolution service. The Tribunal first tries to help the parties work out their own solutions to a problem. If this is not possible, the Tribunal can resolve the dispute by making orders. Orders are legally binding instructions that must be obeyed.

Establishment of NCATThe Tribunal has been established in response to the recommendations of the Legislative Council’s Standing Committee on Law and Justice, which conducted an inquiry into opportunities to consolidate tribunals in NSW between October 2011 and March 2012.

The parliamentary inquiry found the existing tribunal system can be ‘complex and bewildering’. It recommended tribunals be consolidated where appropriate and to promote access to justice. This approach is consistent with action governments across Australia have taken over the last 15 years to establish integrated civil and administrative tribunals.

The NCAT is the largest tribunal in New South Wales and provides a quick and accessible dispute resolution service in a wide range of disputes.

Jurisdiction of the NCAT for tenancy matters is the Residential Tenancies Act 2010 and Landlord & Tenant (Rental Bonds) Act 1977. The Tenancy Division of the Tribunal does not deal with issues or disputes between landlords and tenants in commercial or business settings.

The Residential Tenancies Act 2010 specifies that the Tribunal can make orders in the case of residential tenancy matters up to the value of $20,000 in the case of rental bond and $10,000 for all other rental disputes.


9This Manual examines: -

The process for preparing and lodging a case for presentation to the Tribunal The required conciliation process Examine the appropriate etiquette to be followed at the Tribunal Examine what is required when a case is presented to the Tribunal Look at your role as a witness in Tribunal matters

What is the difference between the Tribunal & a court?One of the differences between a court and Tribunal is that a court is more formal, with more elaborate rules about how a case must be run. A Tribunal, in most cases, offers a straightforward, quicker and cheaper way of trying to resolve a dispute. Tribunals can save time by not using lawyers as often and asking people involved in a case to represent themselves.

In most cases, Tribunals are open to the public have a more relaxed approach to the rules of evidence than courts encourage (& often require) parties to speak on their own behalf (lawyers are only permitted in

special circumstances) often specialise in resolving disputes in a particular area (Courts generally have the power to hear a

much broader range of cases)

It is usually much cheaper to resolve a dispute at a Tribunal, than to have it litigated in a court.

1. Preparing a case for the TribunalThis section will examine what is required to prepare and submit a case to the Residential Tenancy division of the NCAT.

1.1 Process for making an applicationThe NCAT provides application forms, which can be downloaded from the application forms page, which is found on the Tribunal’s web site, or may be collected in person from NCAT Registry Offices and Fair Trading Centres.

Living in a rental property means that a tenant has entered into a ‘residential tenancy agreement’ with a landlord. The NCAT's Tenancy Division deals with disputes between landlords and tenants who have entered into such an agreement. Agreements can be between private landlords and private tenants.

The Residential Tenancies Act 2010 does not apply to hotels and motels, boarders and lodgers, protected tenancies, and commercial or retail tenancies.

Note: Agreements between social housing provider landlords and tenants are dealt with in the Social Housing division.

1.1.1 Matters that the NCAT deals withThe role of the NCAT is to resolve disputes between tenants, landlords, traders and consumers in a timely and effective manner. The common types of tenancy disputes that are dealt with by the Tribunal include:

Termination of the residential tenancy agreement Rental bond Breaches of the agreement, for example rent arrears Rent increases Uncollected goods


10 Recognising occupants as tenants Mortgagees in possession

If a tenant is given notice to vacate by a mortgagee, they may apply to the NCAT to recover any rent paid in advance, or other fees and charges to occupy the premises paid during the notice period.

1.1.2 Starting proceedings in the NCATThe process for lodging an application can vary depending on the type of application. To start proceedings at the NCAT, an application form must be completed and lodged. Applications can be lodged online, by post, or in person.

The Application Forms that can be used are: - Tenancy application form Tenancy termination and possession application form Tenancy rental bond application form

These forms may be downloaded from the NCAT website.

Application fees vary across the NCAT's Divisions and according to the amount in dispute. An application fee must be paid at the same time an application is lodged. If the fee is not paid the application may be dismissed.

ACTIVITY 1 Go to the CTTT web site and find where the application forms are stored for the Tenancy Division and download a copy of each application form. Also, find out the cost of lodging an Application in regard to a tenancy matter.

1.1.3 Listing the matterAfter an application is lodged, the matter is listed for conciliation and hearing. The NCAT sends both parties to the application a Notice of Conciliation and Hearing. The notice is generally sent within 14 days of the lodgement of the application. The Notice will include the time and place of the hearing. Both parties will need to attend the hearing on this date and at this time.

A hearing will be held at a venue nearest to the rental property. The Sydney metropolitan Tribunal registries are located at Sydney (Castlereagh St), Parramatta, Hurstville, Liverpool and Penrith. Regional registries are held in all the main regional centres throughout NSW. A list of all venues can be found on the NCAT web site.

A copy of the application and any documents provided with the application is attached to the notice of conciliation and hearing when it is sent to the respondent. This way the respondent knows what the dispute is about and how to prepare a reply.

ACTIVITY 2Locate the list of places where NCAT hearings are held; note the address of the nearest one to your place of residence.


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1.1.4 Types of HearingsThere are several types of hearings that are: -

Group HearingsThe majority of NCAT applications are listed for first hearing in a group list hearing. This means that a number of matters are listed together before a Tribunal Member.Where both parties appear they are encouraged to resolve their dispute through conciliation. If the parties reach an agreement during conciliation, the Tribunal Member will make consent orders. If conciliation is unsuccessful, or if only one party appears, the matter will either be heard on the day, if time permits, or be listed for another day.Special fixture hearingsSpecial fixture hearings, or formal hearings, are used where attempts at settlement have failed and more time is required to hear the case. These hearings can run over a few hours or over several days.Directions hearingsDirections hearings are used in complex matters where there is a need to establish jurisdiction, identify issues in dispute, set a timeframe for the hearing, or make directions for the exchange of evidence. Directions hearings are used extensively in large home building and complex strata and community schemes disputes.Determinations on the papersMatters can be determined on the papers with the consent of both parties. Parties are invited to submit all relevant information and submissions before a decision is made. In the Strata and Community Schemes division, all applications for adjudication are dealt with on the papers. Applications for rehearing in all divisions are also determined on the papers.

1.1.5 ConciliationConciliation is regularly used in conjunction with group listings, mainly for tenancy, social housing, general, home building and motor vehicles matters. If conciliation is successful, consent orders will be made on the day without the need for a hearing. Where conciliation is unsuccessful, the matter goes to a hearing.

1.1.6 AdjournmentsAn adjournment is when a hearing is moved to another day. If one party to the dispute wants the hearing adjourned, application must be made in writing to the NCAT explaining why they cannot be there. Work and training commitments are not acceptable reasons for an adjournment. Adjournment requests should be made at least 3 working days prior to the hearing. Otherwise, the adjournment request may be considered at the hearing. If the NCAT does not advise that an adjournment has been granted, the parties must attend the hearing. Otherwise, the hearing may go ahead in their absence.

Making an adjournment requestA request for an adjournment must be sent to the NCAT in writing as early as possible and can be faxed. The request for adjournment should include:

the file number on the hearing notice the time and date of the hearing the reason why an adjournment is necessary supporting documentation, if available the daytime phone number of both parties the time and dates which are available to appear

The person making the application should try to get the other party's written consent. Without their consent the matter will only be adjourned in exceptional circumstances.

Important: If the NCAT does not advise and confirm the adjournment, it should assumed that the matter will be heard on the listed hearing day.


121.1.7 Deciding what orders are being soughtWhen making an application to the tribunal it is very important that the person making the application understands what orders are being sought from the Tribunal.

The types of orders the NCAT can make depends on the Division the application was made in. Look at the application form for each Division for a list of the types of orders that can be made.

Most NCAT orders fall into two categories: Orders that a person or company pay money Orders that a person or company complete some work

Other types of orders that can be made include: Orders that a person or company doesn’t owe money Orders to replace a faulty item Orders that a proposed rent increase is excessive

ACTIVITY 3Review the application forms that were downloaded off the NCAT website and note the different types of orders which can be requested from the Tribunal in the Tenancies Section.

1.1.8 HearingsThe majority of NCAT applications are listed for first hearing in a group list where a number of matters are listed together before a Tribunal Member. The Tribunal Member will hear and evaluate the parties' evidence, consider submissions, makes a decision and issues a binding and legally enforceable NCAT order.

1.1.9 OrdersIn most cases, the Tribunal Member will make a decision on the day of the hearing. Most decisions are accompanied by brief oral reasons. The decision is then typed into orders that are issued to all parties. Major decisions are also made available to the general public and can be found on the Australian LegalInformation Services we site at http://www.austlii.edu.au/au/cases/nsw/NSWRT/

Tribunal decisions are binding and can only be appealed to the District Court of NSW on a matter of law. An application for rehearing may be granted by the Chairperson if it can be demonstrated that the applicant suffered a substantial injustice.

1.1.10 CostsEach party generally pays their own costs. The NCAT may order costs to be paid in certain circumstances, such as if the application is considered frivolous, vexatious, misconceived or lacking in substance, or the parties are legally represented.

1.1.11 Applying for Urgent Hearings:Urgent hearings are only granted under exceptional circumstances. This generally refers to cases where there is a threat to personal safety or property, or where there is significant hardship. To apply for an urgent hearing evidence must be provided to convince the NCAT that an urgent hearing is warranted. If the NCAT agrees to an urgent hearing the matter will generally be listed within seven days.


http://www.austlii.edu.au/au/cases/nsw/NSWRT/

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1.2 Documentation for a hearingAnyone undertaking an application to the Tribunal for a hearing should be well prepared. It is important to consider carefully all the issues of the case and to carefully gather all the relevant evidence. Make a dot point list of all the issues that are important to the case. This will help organise the argument and start thinking about the evidence needed to support the agent’s position. Stick to the facts and focus on what is important and relevant to the case.

At the hearing the agent will be asked to provide evidence to support their case. Such evidence may include: Copy of the residential tenancy agreement and condition reports Written proof of the sale or service invoice, original purchase agreement or sales advice Receipts, quotes, reports and payment records Warranties in relation to the goods or services Correspondence between parties Photographs showing the condition and state of repair (or comparable items if relevant) Witness statements, statutory declarations or affidavits Any enforcement action undertaken Correspondence from a Fair Trading Centre Copy of contract, reports from building experts and the certificate of insurance (home building) Copies of the strata or community plan, minutes of relevant meetings resolutions, relevant registered

by-laws or notices (strata and community schemes) Copies of the agency authority to act on behalf of the landlord

It is necessary to take three copies of any documents so that there is a copy for the agent, one for the Tribunal Member and one for the other party.

An example of the evidence that might be taken to a Tribunal Hearing where the tenant was behind in the rental payments and the agent was seeking orders to terminate the lease and obtain payment of the arrears due might include: -Arrears

1. Evidentiary copy of the agent’s certificate of registration or licence 2. Management Agency Agreement3. Tenancy Agreement4. Hearing Notes5. Tenant rental ledger6. Termination Notice7. Event summary8. Evidence of arrears management, previous letters, etc…9. Copies of letters from tenant10. Copies of dishonoured cheques or payments

1.2.1 Preparing for the hearingBefore the date of the hearing, take the time to learn about what happens at the NCAT.

Go to the NCAT to watch other hearings in action. This will give an idea of what to expect on hearing day, and help plan for presenting the case to the Tribunal Member. View the hearing lists to find out when NCAT hearings are being held in the local area.

1.2.2 Legal representationLegal representation is not usually allowed at the NCAT if the amount claimed is $10,000 or less. The agent must present their own case at the hearing. However, the NCAT may consider allowing legal representation in certain circumstances such as:• It is considered necessary• The case would be unfairly disadvantaged• If the party is a corporation and is to be represented by one of its officers


14• If the party is an owners corporation (Strata) and the corporation is to be represented by one of the owners or by the strata managing agent• If the party is a community association and the association is to be represented by one of the proprietors who is a member of the association, or by the managing agent• If the party is a body registered under the Co-operatives Act 1992 and the body is to be represented by one of its officers• If the party is a firm and the firm is to be represented by one of its partners• If the party is an incorporated association registered under the Associations Incorporation Act 1984 and the association is to be represented by one of its officers• If the party is an unincorporated body of persons and the body is to be represented by a secretary or treasurer of the body, or a member of the executive or management committee of the body who was duly elected at a general meeting of members of the body• If the party has a trustee for the management of their estate and they are to be represented by the trustee• If the party is a government agency and is to be represented by an officer of that or any other government agency• If the party is a landlord and is to be represented by the managing agent of the property• If the party is the owner of a residential park and is to be represented by the park manager• If the party is the operator of a retirement village and is to be represented by an employee or agent (other than a legal practitioner) of the operator• If the party is a resident of a retirement village who is to be represented by a nominated resident of the retirement village or the Residents Committee of the retirement village• If another party is to be represented by a person who is a legal practitioner• If another party is a government agency• If the NCAT is of the opinion that complex issues of law or fact will arise in the proceedings.

A person can apply to be represented in writing before the matter is heard or they can apply at a hearing. The Tribunal Member will decide on the day if that person can be represented. A written authority, signed and dated by the person to be represented, for the representative, must be produced to the NCAT.

2. ConciliationConciliation is an alternative dispute resolution process used by the NCAT. The conciliation process involves bringing the people in dispute together to talk about their issues in an informal, private meeting and try to reach an agreement.

The conciliation process is closely linked to the hearing process, rather than as a separate step of dispute resolution, and is regularly used in conjunction with group listings. Conciliation is also used extensively in matters involving multiple applications about the same dispute, for example in residential parks and retirement village matters.

Learn how to prepare for conciliation and get the most out of the process.

During conciliation the agent would:• Advise the other party/person what the issues are• Show each other any evidence• Try to understand and respect each other's different points of view• Negotiate differences, discuss possible solutions and try to reach an agreement

If an agreement is reached during conciliation, the terms of the agreement will be made into a NCAT order.If the conciliation is unsuccessful, the hearing will then go ahead either on the same day or at a later date. Any negotiations discussed in conciliation cannot be repeated in the hearing room unless both parties agree.

Conciliation is a good way to reach agreement. Conciliation allows both parties to have some control over the outcome of the dispute and is more likely to result in an acceptable agreement.


15Conciliation creates an opportunity to:

• Present both sides of the story in a private, controlled environment• Listen and get a better understanding of the other people involved in the dispute• Resolve the dispute mutually, quickly and inexpensively• Find solutions without a Tribunal Member imposing a decision on one or other of the parties

As conciliated agreements are voluntary and represent the self-interests of each party, they are also more likely to be honoured by both parties. Participating in the conciliation process may also help deal with any future disputes may have.

An agent should prepare a statement in advance of a conciliation session. It should be clear & concise and, as with the opening statement at a hearing, should:

be accurate only include relevant facts make reference to the point of law in question include a description of the remedy being sought make reference to the reasons why it is believed that the remedy is justified

The NCAT provides conciliators at major hearing venues to assist parties during their conciliation discussions. In some regional areas the Tribunal Member will act as both conciliator and hearing member with the consent of the parties.

The conciliator's role in assisting parties come to an agreement is to: Facilitate open and honest discussions between the people in dispute Help to identify the issues in dispute Assist both people to come up with options and possible solutions Help write down any agreement you reach together

Conciliators attend to a number of parties at the same time and therefore may not be able to stay in the room during the entire conciliation process.

Please note: Conciliators do not provide legal advice or make decisions. They will however check that the parties understand the agreement and it is made with their consent.

The following tips will assist agents in their handling of the conciliation process: - Always be prepared to negotiate. Conciliation is about finding a common agreement that both parties

are happy with. No matter what the evidence no one is always absolutely right. Be respectful, open and honest in all negotiations Be polite at all times Listen intently to the other side’s point of view. Remember a solution to the problem is being sought,

not more conflict Understand and respect each other’s different points of view Work with the conciliator to find a resolution and avoid being obstructive Be clear about understanding the issues in the dispute Be clear about the remedy being sought Understand the needs of the other side, and the landlord. Be prepared to give ground to facilitate a solution without a formal hearing. Be fair and reasonable in the demands being made Negotiate differences, discuss possible solutions and try to reach a negotiated agreement, and Finally, view conciliation as an opportunity to gather additional information from the other party for

use if the matter proceeds to a hearing.

ACTIVITY 4. Go to the NCAT web site and download the information brochure regarding conciliation. Write in your own words how conciliation can assist in solving disputes between landlords/agents and tenants. If a conciliator


16was present, what would be their role be in the process? Answer this part after having read the Chairperson Directions to Conciliators.

A conciliated offer is an offer that is made during the conciliation process. The offer may be in the form of a payment or an action. A decision then needs to be made by the person receiving the offer on whether to accept the offer and finalise the matter, continue conciliation on the offer, or reject the offer and move into a formal hearing.

Decisions on conciliated offers should be made on a purely commercial basis and the following should be taken into account when arriving at a decision: -

The potential financial cost of continuing (including loss of income) The potential emotional cost of continuing The risk of receiving an adverse finding

Be aware that courts and tribunals are verse adverse to people who continue proceedings where a situation was available where they would have expected the conflict being resolved to the satisfaction of a reasonable person.

3. The Tribunal ProceedingsMembers of the NSW Civil and Administrative Tribunal (NCAT) are statutory office holders and are appointed by the Attorney General and Minister for Justice under the Civil and Administrative Tribunal Act 2013.

There are five categories of NCAT Members: President Deputy President Principal Member Senior Member General Member

There are over 400 Members hearing matters in NCAT with most positions being part-time or sessional. In many cases, Members bring specialist knowledge to tribunal decision-making.

NCAT hearings are legal hearings that are held in a less formal environment that a court hearing. However, businesslike conduct is expected from all participants and such behaviour helps to ensure the smooth conduct of hearings.

Applicants (the person making the application), Respondents (the person responding to the application and their witnesses) give accounts directly to the Member conducting the proceeding, and this evidence can be given orally, in writing, or both. Hearings are usually open to the public and all proceedings are recorded.

Either party may call expert and/or other witnesses to give supporting evidence. Witnesses may be cross-examined by the other parties to the dispute or questioned by the presiding Member. Expert witnesses have a primary duty to the Tribunal and not to the person who retained them. They are expected to advise on the matters that they are expert in, and not to be an advocate for one or either of the parties to the dispute.

The Tribunal may allow a person to appear before it, or to give evidence in any proceedings, and may conduct any aspect of its proceedings, by telephone, written submission, audiovisual link or any other means of communication.

If a party who has been notified of the hearing fails to attend (and has not contacted the Tribunal to try to make alternate arrangements), the Tribunal has the power to deal with the matter and make orders in their absence. These types of orders are commonly known as ‘ex parte’ orders. In normal circumstances, parties are required to run their own cases in the NCAT without legal representation. This reflects the ideal of keeping proceedings affordable, informal and uncomplicated by legal jargon.


173.1 Typical dispute hearing procedureThe role of the Tribunal Member during a hearing is to control the proceedings and to direct the discussion. The parties are allowed to: -

tell their side of the story to the Tribunal Member present their evidence ask questions of each other

The Tribunal is not bound by the technical rules of evidence that operate in courts. For example, the member can ask questions and can inquire into any matter that the Member feels fit, provided that that the inquiry does not unfairly disadvantage either of the parties.

There are a number of stages to the Tribunal process.1. Parties should arrive in plenty of time for the hearing – ideally 15 minutes before the scheduled time. On arrival, each party should check in at Reception and then proceed to the designated Hearing Room. All parties will be required to show the NSW Sheriff the contents of their bag or other carry items and will have to pass through a metal detector before being allowed into the NCAT. This is to protect the safety of everyone who attends the NCAT.2. The Sheriff will direct attendees to the correct hearing room for the particular application. Upon arrival, sit down quietly and wait for the Member to enter. The Member enters through a side door, and as they enter everyone in the room is expected to stand. If the Member is not quite ready to commence proceedings, they may indicate for attendees to sit down until they are ready. When the Member is ready & addresses either party, that person should stand up and respond.3. The Member will introduce him/herself and start to call the applications listed. When the particular matter involving the agency is called, the agent should stand up, stating full name, agency name and the name of the persons being represented, then sit down. i.e. “Jonathon Smith of Smith & Co Estate Agents on behalf of Mr Peter Johnson and Ms Claire Jones”4. The Member will ask the agent if they have written authority. Before the Member starts the proceedings they’ll want to make sure the agent has a management agency agreement or other written authority to represent the Landlord. The agent should ask the Member if they may approach and then hand the documents to the Member and step back to the desk. The Member may also ask the agent to provide a copy of their Certificate of Registration or license5. The Member may take a few minutes to see if the parties can agree to resolve the dispute without a full hearing. If resolution cannot be found, then the Member will start the hearing.6. Each party to the hearing is required to swear an oath or make an affirmation that they will tell the truth, the whole truth and nothing but the truth.[Swear - means an oath under God to tell the truth; Affirm - means an affirmation to tell the truth]7. Each side informs the Member as to witnesses, if any. The Member may direct witnesses to wait outside the Hearing room until they are called. Witness will also be required to take an oath that they will tell the truth. This usually is done when they are called to give evidence.8. The applicant when asked then summaries the basis of the application and describes the remedy that they are seeking. Evidence is produced and witnesses are questioned as appropriate.9. The respondent then responds to the case presented by the applicant by presenting evidence, asking questions of the applicant’s witnesses and calling their own witnesses as appropriate.10. The applicant then responds to the respondent’s evidence and has the opportunity to ask questions of the respondent’s witnesses.11. Both the applicant & the respondent have the right to cross-examine each other and each other’s witnesses.12. If a document or other evidence is submitted that you have not examined before, let the Member know and ask to see the document.13. The Member may ask the parties if there is anything else that they may wish to add.14. In simple cases, the Member will generally pronounce the Tribunal’s decision immediately. However, in more complex cases the Member may provide the decision at a later date.15. Once the Hearing is completed the Member may move onto the next case, or if they leave the room then everyone stands.

Remember: -Version 1 Validation date 09/01/16 Approved Review© MRT Training RTO XXXXX CPPDSM4020A T Rowe January 2017

18NEVER act jovially or express pleasure if an order is made in favour of the agent and against the respondent. When the hearing is finished, thank the Member for their time.

If an applicant does not appear at the hearing, the application will be dismissed altogether, even if the respondent appears, and in that case it may make way for the respondent to discuss their grievances with the Tribunal member and be advised (informally encouraged) to make an application against the landlord.

It is completely unprofessional to not appear at a scheduled hearing unless there is a properly withdrawn application or request for an adjournment in writing.

Every attempt should be made to turn up on time for a hearing, but if for some unforeseeable reason that is not possible, it is very important that attempts be made to contact the Tribunal and advise them that every effort is being made to get there on time, but particular circumstances are preventing that from happening (better still have the agency office send an urgent fax and state the expected approximate time of arrival.

Withdrawing the application: If an agent wishes to withdraw an application, the NCAT must be notified in writing, and the agent should also notify the other party in writing that they have withdrawn the application and that the hearing is no longer required.

“As the applicant, under section 28 (5)(h) of the Consumer, Trader & Tenancy Tribunal Act 2001 we hereby withdraw our application for a hearing in reference to file no. RT 07/XXXXX scheduled for [day and date] at [time]”.

3.2 Appropriate etiquetteWhen in the Tribunal hearing make sure the following rules are adhered to:

• Dress professionally with suitable business attire - remember it is still a legal proceeding• Never attempt to speak privately to a Tribunal member• Be respectful of everyone• Do not speak until requested• Do not argue, or lose one’s temper• Stay calm at all times• Plan ahead to arrive early – at least 30 minutes prior to the hearing and sign in• Wait until the Tribunal member speaks before talking• Ask if a matter or process is not understood or there is any confusion as to what is expected • Know the file number of the particular matter• Turn mobile phones OFF (the Sherriff will check that this is done)• Do not eat or take food or drink into the hearing room• Enter and leave quietly• Never run• Stand when the Tribunal member enters• Address the Tribunal member as “Sir” or “Madam”

3.3 Presenting the CaseThe role of the Tribunal Member during a hearing is to control the proceedings and to direct the discussion. The parties are allowed to: -

tell their side of the story to the Tribunal Member present their evidence ask questions of each other

At the hearing the agent must inform the Member; of the witnesses (if any) they intend to call of the documents (if any) they intend to refer to if there is a need for a summons for production of documents and/or witnesses to attend


19 if a formal hearing is required of the details of any person (if any) designated to represent the agent at the hearing. Note: the

Tribunal will decide if representation is to be permitted the agent’s availability for the next hearing

Summons: If the Tribunal allows, a party may apply to the Registrar to issue a summons for witnesses to attend and/or produce documents. When a summons is served, the agent (or the landlord) must pay the reasonable expenses of the person summonsed and serve it at least 5 working days before the return date that is usually the next hearing date.

The Tribunal is not bound by the technical rules of evidence that operate in courts. For example, the Member can ask questions and can inquire into any matter that the Member deems appropriate, provided that that the inquiry does not unfairly disadvantage either of the parties.

After the parties are given an opportunity to conciliate and an agreement is not reached, the application will be heard. The role of the Tribunal Member during a hearing is to control the proceedings and to direct the discussion. The parties are allowed to tell their side of the story to the Tribunal Member, present their evidence, and then ask questions of each other.

After both parties have given their evidence the Tribunal Member will make a decision and give reasons. Sometimes, the decision is reserved and the decision and reasons are sent to you later. In normal circumstances, parties are required to run their own cases in the NCAT without legal representation. This reflects the ideal of keeping proceedings affordable, informal and uncomplicated by legal jargon.

There are four parts to presenting a case at the NCAT: -A. Summarising the case In summarising the case the agent should be clear and concise, accurate, make

reference to the point of law in question, describe the remedy being sought, and make reference to the direct evidence they have to support their case

B. Presenting the evidence Evidence is used to prove or support the elements of the case. It should be presented in a clear, concise and logical way. Evidence should give a clear account of the relevant facts that support the argument presented. It must be clear, relevant and relate to the law relevant to the case. Agents should not assume that the member understands or knows, they generally are hearing the evidence for the first time, so it must be explained and supported by direct evidence wherever possible. It must be remembered that the Tribunal Member can only make a decision based on law, and the evidence presented. If the evidence is not complete or is defective, then the agent is not going to receive the decision that they want. Under the NCAT Act, the evidence that can be admitted in a Tribunal Hearing is at the Member’s discretion. Evidence is essentially admitted on the grounds that it is relevant and within the immediate knowledge of the person making the statement.

C. Presenting witnesses While most cases before the NCAT are short and rely only on documentary evidence, more complex cases and those involving large sums of money may require witnesses to appear and give evidence or testimony. Applicants, respondent and the Member can all ask questions of a witness. When questioning witnesses for the agent, it is best to allow them to tell their stories in their own words. This way the witness will appear more credible and relaxed, and they will be comfortable in what they are saying. It is best, therefore, to ask open-ended question. Do not try and copy lawyers from television shows.After a witness has sworn their oath or made their affirmation, the questioner should ask them to state their name, relationship to the applicant/respondent and should then ask them to tell their story in their own words using open-ended questions (who, why, what and how). Further questions could be asked to clarify points. Witnesses should never be coached or advised how to answer questions prior to a hearing. When questioning other witnesses that have been called by the other side, generally Members will disallow questions that have been asked before, which attack the witness’s credibility (where this is not an issue) or where, in the Member’s opinion, the question is irrelevant. The best questions to ask witnesses under cross-examination are: -

o Short questions that are easily understoodo Direct questions that highlight inconsistencies in what the witness is saying


20o Closed questions that require ‘Yes’ or ‘No’ answers, thus stopping the witness for arguing their caseo Questions where the answer is already known

When questioning is complete the questioner should indicate this to the Member and thank the witness for their attendance and co-operation.

D. Developing arguments In preparation for, or when presenting a case, a range of issues are considered to develop arguments which could lead to an outcome which would favour the Landlord. They are: -

o To be certain of the outcomes being sought and to make sure that an objective view will support the sought outcome

o All the evidence that may be required to support the case is availableo Applicable legislation to the outcome sought, is clear, not open to misinterpretation and is

referencedo It is clear where the other party is at fault and how the other party can remedy the situationo The strengths and weaknesses of the other party’s case should be examined and applicable

arguments be developedo The agent’s argument should be written down in logical yet simple languageo Where possible, each argument should be backed up by reference to relevant legislation,

contracts, agreements and other evidenceo During the case, making notes on how the other party’s case differs from the agent’s

arguments will help to identify the areas of conflict and help to highlight the differing issues that need to be resolved or countered with other evidence

Some people have a natural talent for public speaking, while others have to strive a little harder to achieve the same level of competency. Keep the following points in mind when presenting a case to a Tribunal: -

Stand, until invited by the Member to be seated Ask the Member ‘may I approach’ before walking up to the Member’s bench Speak slowly, clearly & concisely! Maintain eye contact. Make submissions to the Member, not the desk Don't read notes word for word. This is a problem for novices who prefer the security of reading a

prepared speech. Not only does reading make eye contact difficult, but it is also very easy to get lost, should the Member decide to ask any questions. Try summarising in point form, and try to speak from memory

Do not to fidget. Aside from the odd gesture for emphasis, try not to make any distracting movements The use of humour is ill advised. It may be interpreted, by the Member, as a sign of disrespect for the

proceedings If the agent wishes to make a point in their submission which is in opposition to a Member’s

comments, such comments should be prefaced with the phrase: "With respect, Sir … or Madam". If referring to court cases as part of a submission:

o Refer to civil cases as "Derwent and Stevens", not "Derwent v Stevens"o Refer to criminal cases as "Ernst against Milovic", not "Ernst v Milovic".o Cases should be cited in full. For example, (1998) 137 CLR 234 should be cited as "...decided

in 1998, volume 137 of the Commonwealth Law Reports at page 234”

At all times agents should conduct themselves professionally, politely and with confidence: Take notes, when the other party is speaking, (do not interject when they are speaking; another

opportunity will be provided for a response, when they have finished) Present arguments to the Member; do not argue with the Member Do not make derogatory gestures or comments towards the respondent Remember all proceedings are sound recorded, that includes before and during all hearings, so be

aware of what is being said when sitting at the table, even when the Member is not present

3.4 The Hearings ConclusionAfter both parties have given their evidence the Tribunal member will make a decision and give reasons.


21Sometimes the decision is reserved and the decision and reasons are sent to you later. In normal circumstances, parties are required to run their own cases in the NCAT without legal representation. This reflects the ideal of keeping proceedings affordable, informal and uncomplicated by legal jargon. A person can apply to be represented in writing before the matter is heard or the application can be made at a hearing.

The Tribunal will decide on the day if the applicant can be represented. A signed and dated written authority for the representative must be produced to the Tribunal. If an applicant requires legal representation, the application must be requested in writing, and should seek to demonstrate how the applicant would be unfairly disadvantaged if not represented.

3.5 Rehearing & RenewalsIf a party is not satisfied with the decision of the Tribunal, they can lodge an application to have the matter reheard. A rehearing is not automatically granted.

The application must be made within 14 days' of the date of the receipt of a notice of the order, or 14 days after receiving written reasons for a decision.

The person making the application for the rehearing must establish, on the balance of probabilities, the grounds for rehearing.

In order to be successful, the party seeking the rehearing must show that they have suffered a substantial injustice because: -

the result would be different if a rehearing were held AND the decision was not fair and equitable, or the decision was against the weight of evidence, or significant new evidence is now available that was not available at the time of the hearing

Ultimately, the Chairperson has the discretion to grant or dismiss applications for rehearing.

Appeal: Parties who are not happy with the outcome of the hearing also have the option of lodging an appeal with the Supreme Court. Appeals to the Supreme Court must only be about errors made by the Tribunal in applying the law. The Act does not permit parties to lodge appeals about the merits of their case.

If the orders are about the payment of money, apply to the Tribunal Registry for a Certified Money Order, which can then be enforced as a debt in the Local Court. If a non-money order has not been complied with by the date specified by the Tribunal, the person, in whose favour the order was made, may renew the proceedings by lodging a Notice to renew proceedings form. This may allow the opportunity, in certain circumstances, to change a specific performance order into a compensation order. Normal application fee applies.

RE-LIST period specified in order: If a 30, 60 or 90 day re-list is granted as part of the order, no application fee is payable if the re-list is requested within the allowed timeframe. Whenever a specific performance order for arrears for persistent breach, ask for a 90 day re-list, the Member will decide if it is appropriate or not.


22An Excerpt from actual ‘successful’ re-hearing submission:FOR YOUR URGENT ATTENTIONDear Chairperson,I refer to the above-mentioned application and the subsequent dismissal of the application on the 15th of October 2003. I believe this application has been dismissed without just cause.FILE NO. 03/31495: “BACKGROUND TO APPLICATION”

Fixed term lease for 12 months 18/1/03 to 18/1/04 Termination Notice was issued for breach of agreement being rent arrears (date vacant possession

specified was 21/7/03) and was issued in accordance with Section 57 of the Act) Tenants did not vacate on date specified on Termination Notice so application was made to the NCAT

(23/7/03). Application was made for Termination & Possession, Rent Arrears, and Occupation Fee & Claim on Bond in accordance with Section 64 of the Act

4/8/03 - Tenant contact agents and advises they will be vacating premises tomorrow 5/8/03 and will not be attending the hearing

Hearing on 4/8/03: Orders for Vacant possession as of 5/8/03 (agreed to as per tenant’s advice), an order for payment of arrears to 4/8/03 of $2242.86 and a daily occupation fee from 5/8/03 of $41.43/day. As the order specified, a letter was duly delivered to the tenants at the property by 6pm that day

The tenants vacated on 5/8/03 and returned the keys on same A compensation order could not be applied for or granted at this hearing, as there was no way of

calculating what the compensation amount would be at this time 8/8/03- The bond was received and applied to the rent arrears

FILE NO. 03/37247: “BACKGROUND TO APPLICATION” All possible steps were taken to re-let the property as quickly as possible, including newspaper

advertising, Internet advertising, open houses, For Lease signage, recruitment of additional agents to aid in re-letting of property

Application was made to the NCAT on 4/9/03 (being the 30th day from the vacant possession date) and was received by the NCAT on same day. The orders applied for were Rent arrears to 5/8/03, Compensation order for breach of fixed term agreement & Extension of time

Hearing 22/9/03 10am- hearing was adjourned because new address given to us by tenant was found to be fictitious and therefore tenant had not received notice of hearing. Notices were then sent to last known address being the property at181 Milton Street

A lease agreement was entered into & the new tenant took up occupancy on the noon 26/9/03 Hearing 15/10/03- application was dismissed

We are willing to withdraw the application for rent arrears in relation to file no. 03/37247 as we have a certified copy of the original arrears order.

The Landlords have endured undue financial hardship due to the tenant’s breach, a 12 month tenancy agreement was entered into covering noon 18/1/03 to noon 18/1/04 @ $290 per week which is a value of $15,121.43. The tenants’ payments of $7120.06 (including the bond applied as rent) are less than 50% of the agreement liability. There are still $1124.23 outstanding rent arrears plus the rent loss amount of $2154.36, this totals over three thousand dollars rent losses incurred by the Landlord.

We also draw attention to the NCAT notice in relation to the dismissed hearing of 15/10/03, which reads ‘…from that alleged breach on those ‘. This breach is substantiated by the hearing of 8/10/03 and is not alleged but fact. The matter represents itself that ‘if a tenant should breach a ‘fixed term’ agreement, have a termination notice issued, vacant possession ordered by NCAT and subsequently handed up, that the Landlord would have no claim after the vacant possession date’. This would then render the purpose of fixed term agreements useless, there is no point having a fixed term if it cannot be enforced.

The Landlord is entitled to compensation for losses arising out of or caused by a tenant’s breach of the agreement. The tenants’ failure to pay rent constitutes a breach of the agreement; this is confirmed by the agreement being terminated & vacant possession being ordered by the NCAT. This does not absolve the tenant from their contractual obligations. As it stands, the Landlord has taken more than reasonable steps to mitigate


23the loss incurred by the breach of the agreement by the tenant (refer annexure A ‘Marketing’ attached) and the property was reoccupied on the 26/9/03.

We request a written statement of the reason why this case was deemed misconceived and dismissed. If found that our claim is justified we request the listing of a hearing immediately.

Julie FarahProperty Manager

3.6 Follow- up and Enforcement

3.6.1 Enforcement of OrdersThe NCAT is required to refer enforcement of its money orders to a court that has jurisdiction to deal with the monetary amount ordered by the Tribunal. This is generally the Local Court but if the amount is $40,000 or more the matter may need to go to the District Court.

If the other party does not comply with the Tribunal’s order to pay money, a request may be made for a certified copy of the money order from the Tribunal to enforce the order through the Court. The Registrar of the Court requires the creditor to obtain any necessary information relating to the debtor.

The Court does not play an investigative part in this process and the onus is on the creditor to provide sufficient details for enforcement action, for example, an address where the person can be found. If the debtor is a company or a business it is essential to obtain the full registered name of the entity. The name by which the company is known or business may not be the full registered name. There may be a need to contact the Australian Securities and Investments Commission for the correct company name or the Office of Fair Trading for the correct business name. A fee may be payable for these searches.

A certificate of an order by the Tribunal for the recovery of any amount to be paid may be registered as a judgment for a debt in the court. A fee is payable for the registration of an order by the Tribunal. Fees are also payable for the Sheriff’s Office to take action to recover the money owing. If the order is successfully enforced, these fees are also recovered as part of the debt.

A request for a certified copy of the money order can be made in writing to the Registrar or by you can call the Registry and request it by telephone.

3.6.2 Enforcing a Procession OrderIf a tenant has not vacated the place of dispute after midnight of the date the Tribunal ordered possession to be given, a warrant for enforcement for possession of the premises can be issued to allow a Sheriff’s Officer to gain possession of the premises to ensure the tenant departs and removes their goods. The Sheriff’s Office will advise of the costs involved and the agent will be able to make arrangements to execute the warrant.

A request for a warrant for possession can be made in writing to the Registrar. The request is to be made after midnight of the day possession was to be given. If the request is received by the Registry before 10am, the warrant will be sent by post or be available for collection at a NCAT Registry the same day between 3:30pm and 4:30pm.

A landlord has up to 28 days to apply for a warrant for possession from the date of possession in the order.

If a request for a warrant for possession is made out of time, the matter should be listed before a Tribunal member to determine if a warrant should be issued as a new tenancy agreement may be entered into. Costs for non-compliance with an order can be sought from the Tribunal if the application for the order is lodged within 30 days.


243.6.3 Some FAQ’sThe person who owes me money has moved, can I change the address on the certified copy of the money order?No, once a matter has been heard and finalised with a Tribunal order, addresses for parties cannot be changed. You can advise the Court of any changes to parties’ addresses, by a sworn affidavit if necessary. You can make enquiries at the Court about how this can be done.

How do you enforce an order to pay money?Write to the Registrar and ask for a certified copy of the order to pay money. You must take the certified copy to the Court near you for enforcement action. Costs can be added to the debt.

How enforceable are Tribunal orders?It is a serious offence to wilfully disobey orders of the Tribunal and if convicted, a fine and/or imprisonment can follow. The Office of Fair Trading's Compliance Branch investigates cases where wilful disobedience is alleged.


25

Glossary of legal terms

Act Law passed by Parliament, known as a 'bill' before assent by the State Governor or Governor-General. See also 'Statutes'

Adjournment When a case is put off to a later dateAdministrative law The rules governing decision-making by public officialsAdmiralty The law and court with jurisdiction over maritime affairs in generalAffidavit A written statement of facts made under oath or affirmed before a notary public,

justice of the peace, legal practitioner or other authorised officer. It can be used to support an application or can be tendered by a party to a proceeding as evidence in court

Agent An independent person or company with authority to act on behalf of anotherAppeal Application to a higher court to alter a decision of a lower court or tribunal, usually

because of a mistake in law. A common example would be an appeal from a decision of a single judge, which would go to a bench of three judges (in the Federal Court of Australia). Another example would be an appeal from the Federal Court of Australia to the High Court of Australia

Appearance The coming to court as a party, either in person or through counsel. The judge will often state 'I will take appearances.' A party also 'appears' when the file a 'notice of appearance' - this is saying they will take part in the proceeding

Appellant Person, person's organisation or corporation that starts an appeal in a court. Applicants, appellants, respondents, defendants, etc., are generally called 'parties

Appellate courts Courts to which an appeal is madeApplicant Person, person's organisation or corporation who applies to the court to start a

legal proceeding against another person or persons (also known as 'plaintiff' in civil matters and in some other courts). Applicants, appellants, respondents, defendants, etc. are generally called 'parties'

Application A document that starts a legal proceeding. Also used as a broad term for what the applicant is doing in the court: he or she is 'making an application'

Bar The practicing members of the legal professionBarrister A lawyer who presents cases in higher courtsCase at first instance The first time the facts of a case are considered - not an appealCase law The area of law developed by the courts while hearing and determining disputesCivil law Laws regulating the behaviour of individuals; a form of private lawCommon law Case law developed in common courts. This term is sometimes used to describe all

case law or judge-made lawConsent orders Parties may agree to written terms that they wish the court to approve. If the

parties agree on the orders they seek, the court will usually make those orders. A judge can make consent orders in court, or in chambers without the parties having to appear in court

Constitution A set of rules or principles according to which a state or other organisation is governed. A body of laws governing those who make laws. The Australian Constitution is an Act that sets out the structure of federal government and the powers of federal parliament

Counsel A barristerCopyright A right that gives the author of an artistic work, for a limited period, the exclusive

privilege of making copies of the work and publishing and selling the copiesCosts This term is used for the legal fees or expenses of a party to a matter in the Court.

On the determination of a case, the court has the discretion to 'award' costs and order that a party pays another party's legal expenses for the matter. It usually awards costs in favour of the successful party

Court books Prepared for final hearings which contain the latest copy of all the pleadings and


26all documents that the parties want to reply upon, usually in a folder or bound

Criminal law Laws concerned with both the rights of the individual and of society as a wholeCrown Prosecutor Legal representative of the Crown who institutes criminal proceedings against the

accusedCustom A long established tradition or usage that becomes customary law if it is (a)

consistently and regularly observed and (b) recognized by those states observing it as a practice that they must follow

Customary law The way people live and their rules including ceremonies, songs, stories; a way of life governed by a system of beliefs

Damages Compensation (usually money); most common outcome of civil casesDefendant Person brought to court to answer claims made by a plaintiff or to be charged with

a criminal offence. Applicants, appellants, respondents, defendants, etc., are generally called 'parties'

Determination of fact The court's role to discover the truth.Directions Before the trial or hearing of a matter a judge gives directions so that the parties

involved will be properly ready for the hearing. Generally it involves setting down a list of steps to be taken by the parties and the deadline for those steps. The steps usually involve filing of material and defining the issues that require a decision by the court.

Disclosure Revealing all relevant information.Discontinuance Occurs when a party who has started legal proceedings decides to stop them

without the court needing to determine the issues in dispute.Discovery The process by which the parties involved in legal proceedings inform each other

of documents they have in their possession and which relate to the matters in dispute between the parties.

Discretion The ability to choose whether to, or whether not to, proceed with a decision.Discretionary When the decision is made on what seems fit for the circumstances.Dissent To differ in opinion.Docket system System by which each case is allocated to a particular judge who will then see the

case through to completion.Equity The body of rules applied where there is no relief under common law. Equity: from

Latin æquitas meaning 'even' or 'fair'; being just, impartial. Justice applied in circumstances not covered by rules of law.

Estoppel (From Old French estoupail: 'stopper' or 'bung.') Legal rule that one cannot make an allegation or denial of fact that is contrary to one's previous actions or words.

Exhibit A document or item produced in court for inspection by the court, to be shown to a witness or because it is referred to in an affidavit.

Ex parte In the absence of a party. In some limited cases an application may be made to the court without informing anyone else involved in the proceedings of the application and this is said to be an ex parte application.

Extinguish To wipe out, make non-existent.Filing documents Lodging of documents usually with the court registry & having them accepted by

the court.Hearing A proceeding conducted by the court to resolve issues or fact and/or law, in which

evidence may be taken.Human rights Basic rights intended to protect all people from cruel and inhumane treatment,

threats to their lives, and persecution.Injunction A court order making a person do, or refrain from doing, something.Intellectual property ‘Abstract property’, such as a manuscript or computer software, over which the

owner has legal possession.Interlocutory Interlocutory proceedings are specific issues in a matter usually dealt with

between the filing of the application and the giving of the final hearing and decision. In the Federal Court of Australia, interlocutory issues are usually brought before the Court by a 'notice of motion' or an 'interlocutory process'.

Interrogatories A set of questions which one party to a court action asks the other party, in order


27to find out more about the other party's case.

Judgment The final order or set of orders made by a judge after a court hearing, including reasons that usually set out the facts and law as applied in the case. Judgment is said to be 'reserved' when a judge needs time to consider all the evidence and argument and so postpones the delivery of the judgment from the date of the hearing in court to some later date. Judgment is said to be 'ex tempore' when a judge gives it orally immediately after the hearing of the matter.

Judicial discretion The right of a judge to make a choice, eg. in punishment or issuing certain orders.Jurisdiction The extent of legal authority or power. This means the areas of law that the court

has the authority or power to make orders. Examples of types of jurisdiction are: realm of law (Commonwealth or State jurisdiction), type of law (civil or criminal), and level of hearing (original jurisdiction or appellate jurisdiction). The Federal Court of Australia has jurisdiction under more than 150 Acts of the Commonwealth Parliament.

Law A rule established by authority, society, or custom.Leave 'Leave' is permission to do something. For example, if a person has left it too late

to appeal (they are over the time set by law), it may be possible for that person to ask the court for permission to appeal anyway. This would be by an application 'for leave to appeal'.

Legislation An act of parliament or piece of delegated legislation.Liberty to apply The right of a party to apply for further orders to be made by the court, without

the party having to commence a new action or file a formal document in a proceeding.

Liberty to restore The right of a party to bring the matter before the court earlier than the next scheduled hearing date.

Listing An event before a judge or registrar that is usually organised in advance and recorded on the court's case management system and notice boards.

Litigants People or companies who are parties to a dispute before a court - they are 'litigating' or involved in legal proceedings.

Litigants in person People who are a party to a dispute before the Court, who have no legal representative and are conducting the matter on their own behalf.

Matter A matter is the case, or the legal proceeding.Mediation (from Latin mediare: 'to be in the middle') A process in which an impartial third

party assists the parties to a dispute in an attempt to bring about an agreed settlement or compromise.

Motion An interlocutory application to the court in legal proceedings where the parties 'move' the court for particular additional orders, during the conduct of proceedings. Usually, the document specifying the orders sought is known as a 'notice of motion'.

Natural justice Rules of fair play originally developed in the common law courts.Notice to produce A document in which one party calls upon the other party to bring specific

documents to the court at a specified time.Notice of motion The document filed by a party to existing proceedings seeking interlocutory orders

not included in the original application.Obiter dictum A judge's statement made during a judgment, but not part of the reason for the

decision.On the papers To deal with an application on the written evidence and submissions filed by the

parties, without taking oral evidence or submissions.Order Command of the court. In the Federal Court of Australia it is also the chapters in

the Federal Court Rules eg. Order 1 Rule 1.Original jurisdiction The authority or legal power to hear a case in the first instance.Originating process This is a document that starts a proceeding in the court It is generally an

'application' to the court. In admiralty it will be called a 'writ' and under the Corporations Act the first document bears the name 'originating process'.

Parties People, organisations or corporations involved in a court case. Applicants,


28appellants, respondents, defendants, etc are all called 'parties'.

Plaintiff A party who initiates a civil action. Particularly in admiralty and corporations matters in the Federal Court of Australia and in other courts (but in most other cases in the Federal Court, known as the 'applicant').

Pleadings Written statements that define the issues to be decided in a case.Precedents Judgments quoted as an authority for deciding a similar set of facts; must come

from an equivalent or higher court. (From Latin præcedens: 'going before in time').Prima facie case (Latin for 'at first sight' or 'on first consideration.') A showing of sufficient evidence

to initially establish an applicant's case. If such a case is made out, the opposing party (the respondent) is then required to respond; if not, the case will be dismissed.

Procedural fairness The just administration of rules that provide how parties go about enforcing their legal rights.

Ratio decidenti The legal reasoning on which a judgment is based.Remedy Redress; make up for a wrong usually by compensation or an action.Repeal Cancellation of a statute or part of a statute or act.Respondent The person, organisation or corporation against whom legal proceedings have

been started by the applicant. Also known as the defendant in admiralty and corporations matters and in other courts.

Return date The date on which a matter is next listed before the court.Rites Religious or solemn ceremonies that must be observed.Rule of law The concept that everyone obeys the law; no-one is above it.Rules of standing Determining who is allowed to appear before the court.Security for costs If the court makes an order that the applicant provide security for costs for a

certain sum, then the applicant must provide to the registry, security to that value. This is to ensure that, if the applicant loses the case, and is ordered to pay the respondent's costs, those costs will be paid.

Separation of powers doctrine

Division of the power among legislative, executive and judicial arms of government to provide for checks and balances.

Service (serve) The sending or giving of documents to a party, according to the method in the rules of court. This may require documents to be delivered personally or be sent by mail or document exchange.

Short minutes of order

A draft of the order made by the court pending a formal order being prepared and sealed. In order to save time, a party may prepare the wording of an order to be made by the court as a short minute of order.

Stand over To adjourn a matter to another date.Statement of claim In the Federal Court of Australia this is one of the first documents filed by the

applicant. It is a pleading that sets out the facts that support the claims made in the case.

Statutes Acts of Parliament. See also 'Act'Statutory rule The generic name for all types of delegated legislation.Submissions. Legal argument (either oral or written) put to the court at a hearing.Subpoena A document issued in a legal proceeding requiring a person to give evidence or to

produce documents to the court at a certain place and time. A subpoena is a court order, and if properly issued and served, then disobeyed, the disobedient person could be in contempt of court.

Summons A document issued by a court directing a person to appear before it.Sunset clause A legal clause giving a final date after which no remedy may be sought, regardless

of the grounds of complaint.Terra nullius Empty land; land belonging to no-one.Tort A civil wrong where one person unreasonably interferes with the rights of

another.Trial Judicial examination and determination of issues between parties with or without

a jury.Tribunal A specialised adjudication body. The term is generally used to refer to Version 1 Validation date 09/01/16 Approved Review© MRT Training RTO XXXXX CPPDSM4020A T Rowe January 2017

29administrative dispute resolution bodies other than courts.

Ultra vires Where a body has acted outside its law-making powers.Writ. A written court order to do or refrain from doing something.

Assessment section - CPPDSM4020APresent at tribunal


30Assessment Information for Course ParticipantsTo be assessed as competent in this unit you must be able to demonstrate your underpinning knowledge and your ability to perform the tasks that relate to the learning outcomes (elements and performance criteria) specified for this unit. This assessment allows you to demonstrate your competence through one or more of the following assessment methods:

Knowledge based assessment questions Case Studies and / or Projects

The unit descriptor for this unit (which includes the elements and performance criteria, required skills, knowledge and understanding, range statements and evidence guide) has been included on the following pages for your information. The knowledge based questions and, case study and project activities (where applicable) in this assessment have been mapped to the performance criteria.

However, please note that in addition to successful completion of these assessment tasks, other assessment methods may be used to determine your competency. These may include practical demonstrations, role plays or third party/supervisor reports.

If you have extensive and current experience in the requirements of this unit, you may be eligible to apply for Recognition of Prior Learning as an alternative method of assessment. If you believe that this applies to you, please ask your trainer or assessor about applying for Recognition of Prior Learning.

Notes for Course Participants: Assessments are to be completed and returned or handed to your assessor / trainer by the agreed date.

You are completing a formal qualification so the standard of your work should reflect the quality of work you would want to achieve in the workplace. Your work should be neat, tidy and organised.

Where you have used external materials or resources to support your assessment work (eg: published authors or the internet) remember that you should reference the work correctly.

Should you have any difficulty with any part of your assessment you should immediately contact your assessor / trainer for assistance and advice.

Real Estate is a highly regulated industry sector and workers in the industry are expected to be able to understand and interpret the appropriate legislation.

Where required you should identify the legislation that relates to your answer. You should make reference to the appropriate Section or Paragraph of the relevant Act or Regulation that applies in your State or Territory.

Assessments: 1. Focus on the application of knowledge, skill and understanding of the performance criteria required in the

workplace and cover all aspects of workplace performance over a period of time2. Involve the evaluation of sufficient evidence to enable judgments to be made about whether competency

has been attained over a period of time3. Provide for feedback to the applicant about the outcomes of the assessment process and guidance on

future options4. Are equitable for all persons, taking account of cultural and linguistic needs5. Are valid, reliable, fair and flexible; and provide for reassessment on appeal6. Will be conducted by an authorised assessor


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Participant Declaration & Signature – CPPDSM4020A

Participant’s Name:

Address:

Tel: Mob: E-mail:

Principal/employer’s Name: E-mail:

1. I have read, understood & familiarised myself with the contents and assessment criteria for this unit of competence, as detailed on following pages

r

2. The work in the attached assessments is my own. I acknowledge and understand that copying the work of others’ is plagiarism and will result in re-assessment

r

3. I have kept a copy of these assessments r

4. I understand the appeal process set out in the Handbook, if I’m not happy with the assessment outcome

r

Participant’s signature: Date:

Participant’s comments:

Distance courses: Return your completed Assessment:For Trainer support/contact:

Ph: 1300 115 144Email: [email protected]

By mail to:MRTSuite 319, 410 Elizabeth Street, Surry Hills NSW 2010by email to: [email protected]

Assessment Outcome

Part A – Knowledge Based Assessment r Competent r Not yet Competent

Part B – Case Studies r Competent r Not yet Competent

Part C – Project r Competent r Not yet Competent

Assessor Comments / Feedback / Recommendations:

Assessor: The Course Participant is Competent in this assignment.

Assessor:

Signature:

Date:


32CPPDSM4020A – Present at tribunal


33Unit descriptor This unit of competency specifies the outcomes required to appear effectively

before a tribunal. It includes preparing for tribunal hearings, using appropriate tribunal etiquette, acting as a witness, participating in conciliation hearings and presenting a case.

Employability skills The required outcomes described in this unit of competency contain applicable facets of employability skills. The Employability Skills Summary of the qualification in which this unit of competency is packaged, will assist in identifying employability skills requirements

Prerequisite units NilApplication of the unit This unit of competency supports the work of licensed real estate agents & real

estate representatives involved in appraising the sale price range or rental value of all forms of property for listing purposes

Competency field Real estateUnit sector Property development, sales & managementELEMENT PERFORMANCE CRITERIAElements describe the essential outcomes of a unit of competency.

Performance criteria describe the required performance needed to demonstrate achievement of the element. Where bold italicised text is used, further information is detailed in the required skills & knowledge &/or the range statement. Assessment of performance is to be consistent with the evidence guide.

1. Prepare for tribunal 1.1 Process for making an application to the relevant tribunal or court is followed1.2 Documentation required for application to the relevant tribunal is accurately completed1.3 Evidence & other documentation required for tribunal or court are prepared & reviewed in line with agency practice1.4 Advice from appropriate assisting professionals is sought in preparing for tribunal hearing, as required, in line with agency practice1.5 Pre-tribunal briefings are participated in as appropriate & required1.6 Procedure to follow where a matter has been settled prior to the hearing is

implemented in line with agency & legislative requirements2. Participate in conciliation processes for grievances & disputes

2.1 Purpose & role of conciliation is clarified within particular tribunal & case context2.2 Opportunities are explored to resolve grievances & disputes through conciliation2.3 Conciliators are provided with complete & accurate information regarding the grievance or dispute2.4 Clear & concise formal case statements are prepared & provided for the conciliator2.5 Opportunities are taken to obtain relevant information from other parties during the conciliation process2.6 Realistic assessments are made of conciliated offers against the likely

outcome of continuing with the conciliation process & any subsequent rulings from the adjudicating body

3. Use appropriate tribunal etiquette

3.1 Appropriate manner of entering & departing the tribunal room is used3.2 Appropriate manner of addressing the tribunal is used3.3 Relevant legal & industry language is used where appropriate

4. Present case before tribunal

4.1 Rules & procedures of the tribunal are applied.4.2 Case is outlined in a clear & concise manner to the tribunal.4.3 Evidence is given & routine examination of witnesses is undertaken appropriately.


344.4 Relevant decisions & precedents are referred to appropriately.4.5 Respondent submissions are responded to appropriately.4.6 Questions & directions from the tribunal are responded to appropriately.4.7 Statement of reasons for tribunal decision is requested in line with tribunal & agency practice

5. Act as a witness 5.1 Pre & post-tribunal briefings & debriefings are participated in as appropriate & required.5.2 Evidence provided reflects questions & directions asked by tribunal or legal representatives.5.3 Evidence is provided using factual descriptions & presented clearly & concisely.5.4 Conduct is according to requirements of tribunal processes & proceedings.5.5 Liaison with appropriate legal representatives is maintained.5.6 Appropriate & required documentation & reporting are undertaken & stored according to agency practice


35REQUIRED SKILLS AND KNOWLEDGEThis section describes the essential skills and knowledge and their level, required for this unit.

Required skills:

• ability to communicate with and relate to a range of people from diverse social, economic and cultural backgrounds and with varying physical and mental abilities

• analytical skills to interpret documents such as legislation, regulations, leases and contracts• application of risk management strategies associated with resolving disputes through recourse to a

tribunal or court• computing skills to access agency databases, send and receive emails and complete standard forms

online• decision making and problem solving skills to analyse situations and make decisions consistent with

legislative and ethical requirements• literacy skills to access and interpret a variety of texts, including legislation, regulations, leases and

contracts; prepare general information, papers, formal letters, reports and applications; and complete standard forms

• planning, organising and scheduling skills to prepare a case for a tribunal• research skills to identify and locate documents and information relating to tribunal powers and

procedures•Required knowledge and understanding:

acting as a witness purpose and role of conciliation relevant federal, and state or territory

legislation and local government regulations relating to:

anti-discrimination and equal employment opportunity

consumer protection, fair trading and trade practices

employment and industrial relations environmental issues financial services franchises and business structure leases OHS Privacy property sales and management

risks and risk management strategies role and jurisdiction of tribunal and

courts that hear matters relating to real estate operations

rules of evidence tribunal powers and role tribunal procedures, including: documentation required for applications

to tribunal procedure for presenting a case to a

tribunal or court procedure to be followed where a matter

has been settled prior to hearing process for making an application to a

tribunal or court role of witnesses tribunal etiquette

Critical aspects for assessment and evidence required to demonstrate competency in this unit

A person who demonstrates competency in this unit must be able to provide evidence of:• acting as a witness at a tribunal• knowledge of the role and jurisdiction of tribunals and courts that hear

matters relating to real estate operations• participating in conciliation processes for grievances and disputes• preparing a case for a tribunal• preparing and lodging applications for a tribunal• presenting a case at a tribunal


36

ASSESSMENT A (copied from within the Learner Manual):Please read and complete the following assessment activities. You are required to answer all activities in this Participant Assessment Section, unless otherwise instructed by your assessor. If an Activity requests a specific number of responses, you must provide all the required responses.

Your responses should aim to demonstrate that you have the required knowledge and skills to respond to the questions. Succinct responses are recommended. and the appropriate question number to this activity should be included on the answer sheet. Your responses will be used as part of the overall evidence requirements of the unit.

ACTIVITY 1 Go to the NCAT web site and find where the application forms are stored for the Tenancy Division and download a copy of each application form. Also, find out the cost of lodging an Application in regard to a tenancy matter.

ACTIVITY 2Locate the list of places where NCAT hearings are held; note the address of the nearest one to your place of residence.

ACTIVITY 3Review the application forms that were downloaded off the NCAT website and note the different types of orders which can be requested from the Tribunal in the Tenancies Section.

ACTIVITY 4Go to the NCAT web site and download the information brochure regarding conciliation. Write in your own words how conciliation can assist in solving disputes between landlords/agents and tenants. If a conciliator was present, what would be their role be in the process? Answer this part after having read the Chairperson Directions to Conciliators.


37

ASSESSMENT B:

You will be required to complete the following case study within the time frame set by your assessor. Please follow the instructions carefully and answer/complete each part of the case study. The length of your responses will be dictated by the space provided for each question/task and from your assessor.

Your responses should aim to demonstrate that you have the required knowledge and skills to complete the case study. Your responses will be used as part of the overall evidence requirements of the unit.

CASE STUDY

You are employed by ABC Real Estate Pty Limited which manages a property owned by Mr Michael and Mrs Michelle Mitchell, at 73 Abbott Street, Ruddertown. The tenants, Charlie and Charlene, have been an ongoing nightmare. In the 12 months that they have been in the property, they have broken several windows, put holes in many of the walls, and stained the carpet in every room. They are also in arrears with the rent by 4 weeks.

Despite regular inspections and a great deal of work by the Property Management staff, a number of warnings and the offers of payment plans, Charlie and Charlene have not rectified any of the issues that have been raised with them.

You have just taken over from the previous person who looked after the property and have suggested to the Landlord that they make an application to have the tenants evicted.

Part 1.You are to develop a “case overview” for the Landlord using the following as a guideline:

a. What is the dispute?b. Explain the relevant provisions of the Residential Tenancies Act.c. What is the ideal remedy?d. What are the chances of success?e. What are the likely costs and risks of taking the issue to the NCAT?f. What evidence would be required to substantiate your case?g. Would you recommend to the Landlords to proceed with the case? Give reasons for your answer.

Part 2.Using the case outline developed in Part 1 provide a summary of the case you would present to the NCAT. List all the evidence that you would present to the Tribunal in support of your case. Make sure you have also completed all the relevant forms to lodge your case with the Tribunal.

Part 3.Assume the Tribunal grants the orders you are seeking, which includes the tenant surrendering possession of the property. The tenant does not move out. Outline the process you would then need to follow to gain possession of the property on behalf of the Landlords.


files.transtutors.com · web viewthe consumer, trader and tenancy tribunal (cttt) was established...

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