NSW Procedural Fairness NCAT Hearing

[EmmaG]

I have just experienced how excruciatingly painful it is to get a fair outcome via NCAT and how biased the members are towards landlords.

I'd like to appeal to the decision made by the member on a number of grounds outlined below:

1. We objected in writing PRIOR to the hearing to the Real Estate agent ( REA) having any legal counsel during the proceedings, in the interests of fairness. The member still allowed the REA’S lawyer to be present in the room. When we objected at the start of the hearing, the member noted that he was allowed to be there as a member of the public. The lawyer still nevertheless provided counsel and the REA turned to him for advice on regular occasions and to reference documents in evidence that they were not familiar with and he whispered in her ear o many occasions during the proceedings. The Member could see this but never intervened or objected to this behaviour.

Q1. Can I appeal on the basis, that having legal counsel next to the agent or positioned behind her in the public section does not matter. They were still granted counsel.

2.The member allowed the landlords submission of an Expert Report in a non NCAT format which they relied upon heavily and also placed great weight upon during the proceedings and in the decision making Yet we followed Procedural Directions,. at significant additional expense. So we feel that this is yet again procedurally unfair that one party followed the Procedural Orders and yet the other did not and that their evidence gets more weight than ours.

Q2. What is the point of procedural directions set forward by the President then!We did raise this as an issue in the hearing and this was ignored by the member. Is this deemed procedurally unfair?

3. The member did not to rely on many of our legal arguments nor the specific legislation or case law we referenced in our Oral Submission. These were critical to our case. The member noted that they would look into the legislation. They never made any reference to this in their reasons or decision making.

Q3. Can we argue that the question of law which has been overlooked by the Member?

4. The members reasons for siding with the landlord are illogical and contradictory in nature.

Q4. Can you put forward an argument for an appeal due to illogicality?

5. The member notes that none of the parties who offered Stat Decs were there for cross examination. Yet at no stage in the entire tribunal process or procedural directions does NCAT ever make it known that you advise for the authors of a stat dec to attend a hearing and that it will add more more weight to your case if they do.

Q5. Surely this is an unfair process to find out after the fact that we could have asked these people to attend and that this would have impacted the decision making?

6. Critical evidence was presented in the hearing based on Code of Practice and Australian Standards yet the Member would not allow this evidence regarding the definition in the Australian Standards to be admissible in the proceedings. This evidence absolutely would have changed the entire outcome and demonstrated a huge failure by the landlord with respect to a serious health and safety violation and in addition deceiving the tribunal and us.

Q6. Can we argue that the member should have allowed the evidence to be offered to support the claims we had made. The Code of Practice is surely considered to be part of a legal framework. Compliance with the WHS Act and Regulations can be achieved by following the industry standards. In our case the landlord did not. Therefore the Member cannot rule out something so significant that enabled someone to get off the hook.

I am not a lawyer but I find the decisions of the member to be unfair and I was hoping someone might have some input on whether or not I have grounds to appeal

 

[Scruff]

This looks like a very complicated case and you should certainly obtain legal advice.

With that said however, it does appear to me that there are at least two issues:

1. The member is correct in that all NCAT hearings are open to the public unless a request has been made for a private hearing and that request has been granted. As you are probably aware, s45 of the NCAT Act states "(1) A party to proceedings in the Tribunal: (a) has the carriage of the party’s own case and is not entitled to be represented by any person, and (b) may be represented by another person only if the Tribunal grants leave for the person to represent the party." The question here is therefore whether or not it is in the spirit of the law and inline with the intentions of the NCAT Act for a legal practitioner to be providing counsel to either party whist they are not a party to the proceedings themselves. My personal view is that this should not happen, as each party has every opportunity to obtain legal advice prior to the hearing. Unfortunately however, in the real world, I think that this argument would probably fail and such conduct would probably be permitted because providing counsel does not technically qualify as "representation". While the practioner may be providing counsel to a party, they are not actually presenting the case on behalf of that party. So while this is a question worth asking, I don't think that you'll get anywhere.
   
2. The second issue is your statement "The member noted that they would look into the legislation." You mention a "question of law" and it's important to know the difference between a "question of law" and a "question of fact". A question of law relates to interpretaion and a question of fact relates to the facts of the case. A question of law must therefore be answered before any related questions of fact can be considered. From the information you have provided, it appears that the member has been posed with a question of law, but then proceeded to make decisions before that question of law has been answered. If that is the case, then it appears that the member has made a procedural error. It should also be noted that if the tribunal can not reach a decision in regard to a question of law by itself, then that question needs to be referred to the Supreme Court under s54 of the NCAT Act. Under s54, the tribunal is prohibited from making any decisions regarding matters related to the question raised until it receives a reponse from the Supreme Court. Furthermore, once that response is received, the tribunal is not permitted to make a decision that is inconsistent with the opinion of the Supreme Court.

If you believe that a question of law was raised and incorrectly handled by the member, then that is certainly something that you sould raise with a lawyer.

 

[EmmaG]

Thanks so much for your response.

Our case is indeed very complicated. It was a residential tenancy matter but the duty of care encroached into the WHS law territory.

We put forward a question of law as it pertained to the WHS 2011 Act in both our written and oral submissions. It would appear that WHS law does not fall under NCAT jurisdiction, so to your point the Member should have referred to the Supreme Court under s54 of the NCAT Act. I referred the Member to a distinct section of that Act, so I will raise this point in my appeal and have also requested a sound recording to further support the fact that we raised this.

I do have one more question for you ( if you don't mind) but if the Appeals Panel refers the matter to the Supreme Court does that mean the matter is heard or do they just seek a decision on one aspect of the case that they are not permitted to rule on?

Thanks in advance.

 

[Scruff]

If a question of law is referred to the Supreme Court inder s54, then the matter will be ajourned by NCAT until it receives an answer. The question referred will be about interpretation and how the law is to be applied, so the case can't continue until that is known. Remember that the Court doesn't make any decision in relation to the case, it only provides guidance to NCAT on how to apply the law.

So the matter hasn't been heard as yet - that will happen after a reponse has been received by NCAT from the Court. The NCAT hearing or appeal will then resume as normal and any decision by NCAT in matters that relate to the question of law that was referred, must be inline with the Supreme Court's interpretation.

So basically, if the Appeals Panel agrees that the question should be referred, then the matter will be adjourned.