NSW Civil & Administrative Tribunal Reference Group Discussion Paper submissions Papers 5(a) and 5(b)

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1 NSW Civil & Administrative Tribunal Reference Group Discussion Paper submissions Papers 5(a) and 5(b) 3 May 2013 Owners Corporation Network ABN T: E: eo@ocn.org.au

2 [Reference Group Discussions Paper Submissions] 2 Executive Summary The Owners Corporation Network is the peak body and a not for profit organization whose members are owners of residential strata lots. This submission is focused on residential strata matters and building defects in residential strata buildings OCN supports the creation of the NSW Civil & Administrative Tribunal, and as identified in the discussions papers, we see this an opportunity to resolve the current key problems which our members are faced with under the current system. CONTENTS Hearings 3 Issue 1 Open or closed hearing 3 Issue 2 Dispensing with a hearing 3 Issue 3 Reasons for decision 4 Compliance and enforcement 4 Issue 4 Offences 4 Issue 5 Contempt 6

3 [Reference Group Discussions Paper Submissions] 3 Hearings Issue 1 Open or closed hearing The OCN supports the view that hearings should be open to the public unless the Tribunal otherwise orders. In this regard, the OCN believes that the provisions contained in section 33 of the Consumer, Trader and Tenancy Tribunal Act 2001 (the CTTT Act) are adequate and should be adopted by NCAT. We reiterate our previous submission that it should be a requirement that the Tribunal is satisfied that participants to any litigation are adequately advised as to the procedural and evidentiary requirements of the Tribunal. Again, whilst we appreciate that the CTTT is an informal jurisdiction, there is tendency in the Tribunal to broadly apply the rules of evidence, but the application of those rules is often inconsistent particularly in the strata/community title area. The inconsistent application of evidentiary rules is confusing for all parties but may be particularly so for unrepresented litigants, not familiar with the requirements of expert evidence, and who as plaintiffs bear the onus of proof. See for example Walsh, Aida v. Concrete Concepts (Aust) Pty Ltd [2013] NSWSC 72. It is desirable, in our view, that the Tribunal satisfies itself that all parties are clear as to the procedure that the Tribunal member will adopt in relation to a hearing. If not satisfied then the Tribunal should be empowered to stay proceedings until it is satisfied that parties understand the legal implications of the proceedings and what they are required to do in relation to the production and service of evidence. This will avoid potential prejudice to a party that may occur during the hearing and as a result of it. Issue 2 Dispensing with a hearing The OCN supports the view that NCAT should be able to determine proceedings without a hearing (i.e. to proceed on the papers). The Tribunal should be empowered to dispense with a hearing without the consent of all parties if it is obvious to the Tribunal that it can fairly deal with the matter without the presence of the parties. The power to dispense with a hearing should be automatic in circumstances where there is a default in appearance of a respondent. The production of practice notes in all areas of the Tribunal s jurisdiction should state the circumstances

4 [Reference Group Discussions Paper Submissions] 4 in which the Tribunal may dispense with a hearing. Issue 3 Reasons for decision The OCN supports the recommendation contained in the Reference Group Discussion Paper 5(a) at section 4.3. Compliance and enforcement Issue 4 Offences The OCN supports measures designed to require compliance with the procedures and directions of the Tribunal. The development of strong tools for the use of the Tribunal will minimize delays and hence save costs for all parties in proceedings. The critical issue identified by our members is also identified in the Reference Group Discussion Paper 5(b) at section 3.1. They relate to the paucity of prosecutions for 0ffences and the disparity between penalty levels across the various Tribunal Acts. The fact that prosecutions for offences are rare may be because of (but not limited to): No contraventions of the offence provisions have occurred (we suggest that this is unlikely). A lack of confidence in the relevant department s perceived ability or willingness to commence and maintain prosecutions, therefore no complaint is ever made. The lack of guidance provided as to the procedure and manner in which offence provisions may be prosecuted. When complaints are made, there is a lack of resources to investigate and prosecute offences. The offence provisions will only act as an effective deterrence to non-compliance with those provisions if it is demonstrated that the Tribunal will in appropriate cases, take steps to prosecute noncompliance.

5 [Reference Group Discussions Paper Submissions] 5 The discussion paper does not attempt to set out the reasons why prosecutions for offences are rare. The OCN recommends that the reasons for the low rate of prosecutions should be further investigated by the NCAT Team, so that any barriers to successful prosecutions can be addressed. The inclusion of the offence provisions in the NCAT Act, in the terms set out at 4.1 of the discussion paper, is supported by the OCN. To strengthen compliance with the Tribunal s orders, the Tribunal should be vested with power to make orders which are designed to ensure that a party will comply with an order made in the proceedings. For example, NCAT should be vested with the following powers: The Tribunal should be vested with power to make an asset preservation order, similar to powers vested in Courts (refer Part 25 Rule 1 1 of the Uniform Civil Procedure Rules, 2005). The powers do not need to be as broad as those vested in the Court, and might be limited only to certain matters and having regard to the amount of the claim. The Tribunal should be vested with the power to make interim orders in relation to those parts of an applicant s claim that are not disputed. For example, in a Building Claim where liability for part of the defect claim is admitted, the Tribunal should be able to direct the respondent to undertake that work, or pay money to the applicant (as the case may be), prior to a final hearing. This will assist an Owners Corporation in discharging their section 62 obligations under the Strata Schemes Management Act, 1996 for the repair and maintenance of strata buildings. The OCN is of the view that non-compliance with a Summons to Produce either document or thing in the person s custody should also attract a significant civil penalty provision. There must be standardised procedures employed by, presumably, the Department of Attorney General and Justice in its enforcement decision making and process, so as to ensure consistency and confidence in that enforcement regime. The imposition of a civil penalty for non-compliance with a Summons to Produce to produce a document or thing should include suspension of the recipient s licence (if applicable) or orders preventing the holding of a licence in respect of matters under under the Home Building Act, 1989.In relation to the non compliance with a subpoena by a professional person, the Tribunal should be empowered, in addition to the imposition of a civil penalty, to report formally the non-compliance to that person s professional body or association.

6 [Reference Group Discussions Paper Submissions] 6 Issue 5 Contempt The OCN supports the recommendation contained in the Reference Group Discussion Paper 5(b) at section 4.2. The separate provisions relating to contempt of the Tribunal and the penalties relating thereto should be supported by additional provisions for failing to comply with an order of the Tribunal.

7 [Reference Group Discussions Paper Submissions] 7 Who We Are Strata is the fastest growing form of residential property ownership in Australia. Over half the new dwellings to be built in our metropolitan areas over the next decades will be strata titled. The growth of this sector raises increasingly important questions over property ownership and governance. 1 Formed in 2002, the Owners Corporation Network of Australia Limited (OCN) is the peak body representing residential Strata Title and Community Title owners, primarily in NSW and in other parts of Australia. OCN members and directors are all owners of residential strata lots. OCN is the key consumer voice. OCN's mission is to protect the rights of present and future strata owners. OCN: lobbies for necessary changes to Government policy and legislation and sits on various Government and industry boards and panels to advocate owners views; educates Executive Committee members and individual owners through meetings, seminars, workshops, guides, and a discussion forum to share experiences and disseminate information. The keynote achievements of OCN since incorporation include: Causing the NSW Government to convene the Joint Select Committee on the Quality of Buildings; Raise public awareness of the issue of private certification and building defects; Cause Legislative change recognising large strata schemes Cause Legislative change requiring the circulation of minutes and agendas; Creating awareness for the need for Sinking Fund Plans 10 year plans now required on a sliding scale relating to size and age of plan Causing developers to have a legislative obligation to deliver as built plans and drawings to the Owners Corporation Creating public awareness about strata issues short term tenancy abuse of common property Development of Public Seminar program to assist in good governance of strata and community title schemes OCN is a not for profit organisation who s Board members are unpaid volunteers. 1 City Futures Research Centre Strata Data Issue 4, October 2011