REINSW has responded to the NSW Department of Justice’s review of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
The submission, prepared with the assistance of the REINSW Property Management Chapter Committee, recommends a solution to the federal jurisdiction issue and addresses the practical impact of NCAT’s operational issues and limited resources.
The elephant in the room
While the statutory review Factsheet issued by the NSW Department of Justice stated the jurisdiction issue would not be addressed in the review, REINSW is of the view that the issue is too important to be ignored.
“REINSW believes the review is the perfect opportunity to rectify the situation so as to minimise the consequential negative, daily impact it is having on consumers,” says REINSW CEO, Tim McKibbin.
McKibbin says REINSW has strongly urged the NSW Department of Justice to amend the NCAT Act so that NCAT becomes a court of record.
“REINSW acknowledges the limitations of the legislature in not providing an adequate provision in the NCAT Act appropriately dealing with the jurisdiction issue,” he says.
“However, if the legislature simply amended the NCAT Act so it included a provision equivalent to that in the Queensland Civil and Administrative Tribunal Act 2009 (QLD) (QCAT Act) the problem would be solved.”
McKibbin is referring to section 164(1) of the QCAT Act which was applied and upheld in Owen v Menzies  QCA.
The court found that the Queensland Civil and Administrative Tribunal is a court of record as enacted by the legislature, because the tribunal contains elements of implementing a judicial process that is one of impartiality, formally processing and implementing judgement orders.
“REINSW proposes that NCAT could operate in the same way by amending the NCAT Act and processes accordingly,” says McKibbin.
REINSW also recommended that the NSW Department of Justice consider the possibility of matters being heard by NCAT if a party’s real estate agent is domiciled in NSW, as opposed to the party itself. This concept is already permissible in practice, as per section 190(3) of the Residential Tenancies Act 2010 (NSW) whereby a landlord’s agent may make an application to NCAT on behalf of a landlord.
Better training required
Among other suggestions, REINSW proposed a training program in association with NCAT. Improving the skills of agents with NCAT's processes will greatly assist NCAT to resolve cases efficiently.
To implement this requirement, REINSW suggests a simple addition to the application form that asks applicants whether they have received training with the tribunal. It has been proposed in the submission that when issuing Hearing Notices, NCAT could also send a link to an online forum that provides training webinars on relevant and necessary topics.
“Taking this one step further, REINSW proposes that NCAT partners with it to provide relevant training to member agents,” says McKibbin. “Better trained agents will assist with efficiently resolving disputes.”
McKibbin says the mandatory training process would provide consumers with knowledge of how NCAT operates and how to best access the services it offers.
“REINSW calls for more fact sheets issued by NCAT to provide ongoing education to practitioners and consumers on matters relating to the Consumer and Commercial Division, he says,"
Consequently, NCAT will provide smoother and more timely results because parties will be better educated on NCAT’s processes, including case management, notices and listings, conciliation, the hearing and the orders.”
McKibbin says REINSW considers NCAT to be a vital forum for consumers to resolve their disputes efficiently, fairly, cost-effectively and objectively. However, like all forms of dispute resolution, REINSW recognises NCAT has its limitations.
“In support of improving the Tribunal’s operations and procedures, REINSW embraces this statutory review,” he says.
REINSW has been informed by member agents that the time NCAT allots to hearings is too short, often resulting in adjournments or the parties not having enough time to put forward their case.
This is an issue REINSW sought to address in its submission, noting that while it understands the service offered by NCAT is quicker for consumers than the court system, industry professionals have often experienced that often there are too many matters listed in one session.
REINSW also addresses the omission of the option for applicants to specify times and days that they are unable to have their matters heard, respectfully noting the lack of flexibility awarded to the applicant adds another burden to consumers.
REINSW addressed the delays experienced with NCAT (including adjournments), and highlighted that there were even more delays, due to the process of enforcing orders.
REINSW understands that the process involves the landlord or agent delivering the orders to the tenant on the same day of the decision or serving the orders via email or post. Further delays occur if the tenant has not listed their email address or, does not vacate the property when required, such that a warrant for possession is required and the Sheriff’s Office is needed.
In an effort to resolve the resulting delays and frustration in the enforcement process, REINSW recommends that NCAT implements an online streamlined automated process that allows it to directly inform the Sheriff’s Office of the orders and provide the orders to them electronically.