Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lee v Imad [2017] NSWCATAP 128 Hearing dates: 28 April 2017 Date of orders: 09 June 2017 Decision date: 09 June 2017 Jurisdiction: Appeal Panel Before: A P Coleman SC – Senior Member D Goldstein – Senior Member Decision: 1. Appeal allowed. 2. Set aside the orders made by the Tribunal on 6 February 2017 3. The sum of $5,320 held by the Tribunal pursuant to the Stay Orders of the Appeal Panel made on 2 March 2017 be returned to the appellant or at his direction. 4. Remit the matter to the Tribunal, differently constituted, to be determined according to law. Catchwords: PROCEDURAL DIRECTIONS: Tribunal failed to follow Procedural Direction with respect to acting as both decision maker and conciliator; irregularity leading to orders being set aside; CONCILIATION: process ought to take place before hearing of matter, particularly if member also acting conciliator; CONSENT ORDERS: Tribunal member acting as conciliator and hearing matter; effect on consent orders; where member expressed views on prospects of success during conciliation. Consent orders set aside. Legislation Cited: Civil and Administrative Tribunal Act (NSW) 2013 Cases Cited: John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 McDonald v McDonald [2016] NSWCATAP 252. Yuen v Thom [2016] NSWCATAP 243 Category: Principal judgment Parties: David Lee – Appellant Sarah Imad - Respondent Representation: Counsel: Mr D Maloney – Tenants' Advocate (with leave) – Appellant Ms A Dragic – Agent (with leave) - Respondent File Number(s): AP 17/08239 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer & Commercial Division Citation: N/A Date of Decision: 06 February 2017 Before: N Vrabac - Member File Number(s): RT 16/48585 and RT 16/55219 Reasons for decision Background 1. This is an internal appeal from a decision of the Consumer and Commercial division of the Tribunal made on 6 December 2016. 2. At that time the Tribunal made the following orders: 3. By consent, in full and final settlement of RT 16/48585 and RT 16/55219 the tenant, DAVID LEE, [address] is to pay the landlord, SARAH IMAD [address] the sum of $5,320.00 on or before 8 March 2017. 1. The appellant now seeks to have the consent order set aside. He says that the agreement that gave rise to the consent order was reached in circumstances where he did not understand that the proceedings had moved from being a hearing to a conciliation. The Tribunal Member who was hearing the matter also acted as the conciliator. The appellant says that the Tribunal Member did not follow the provisions of the NCAT Consumer and Commercial Division Procedural Direction 3 and that the Tribunal therefore had no power to make the consent order. 2. For the reasons that follow, we would allow the appeal, set aside the consent order and remit the matter to the Tribunal, differently constituted, to be heard according to law. The Proceedings below 1. The proceedings below concerned an application by the landlord for a payment by the tenant for a break lease fee and for payment of an occupation fee. There was also a claim by the tenant for payment of money by the landlord for compensation for various alleged breaches of the residential tenancy agreement by the landlord. At issue was also the validity of a termination notice served by the tenant. 2. The matter was listed for hearing before the Tribunal on 6 February 2017. Prior to that, on the first return date of the landlord's application, there had been an informal conciliation attended by the parties only (with no conciliator). 3. At the hearing on 6 February, the landlord was represented by her agent. The tenant, although previously having had the assistance of a tenant's advocate, represented himself. His wife attended with him. 4. The Appeal Panel was provided with a typed transcript of the hearing prepared on behalf of the appellant from the sound recording of the hearing. The respondent, through Ms Dragic, accepted that the transcript accurately records the relevant matters from the hearing. The summary of the hearing below is taken from that transcript. 5. The transcript records the commencement of the hearing and the Tribunal Member taking evidence in respect to the claims of each of the parties. This involved the parties and Tribunal Member going through the items of compensation claimed by the tenant and the evidence to support those claims. Each of the tenant and the landlord's agent made submissions to the Tribunal on the items claimed. There were submissions on the landlord's claim for a break lease payment. These matters occupied approximately 1 hour and 16 minutes of hearing time. 6. At 1:16:56 the transcript records the following (M is the Tribunal Member, AD is Ms Dragic, DL is the tenant and BL is the tenant's wife): M: Alright, well while we will separate and go there in two rooms over there. If one of you could have a look if you could you know give a detail (sic) produce some records of purchase for this fish market because that would be the most expensive. OK, If we could go over there. DL: Sorry um. ….. 1. The reference to the fish market related to a claim by the appellant that the landlord compensate him for fish he had bought but which had spoiled due to the refrigerator at the premises breaking down. There then followed some additional submissions on various items of the tenant's claim. At 1:19:55 the following is recorded: M: Alright, anything else? Thank you Ms Dragic. OK, we can go into two separate rooms and see if I can do something with this. BL: Do I go with him? M: Of course, unless you are no longer together. BL: We are, always. M: Ms Dragic that way. ….. People exit the room. 1. The next entries on the transcript start at 2:14:16 (Children crying) and then from 2:15:30 to 2:16:53 there is recorded irrelevant conversation between the Tribunal Member and Ms Dragic. At 2:16:53 the following is recorded: Orders 2:16:53 M: OK in this matter 16/48585 and 16/55219, I have the jurisdiction to make the order made by consent as mandated by s 59 of the CAT Act. This was a residential tenancy agreement which came into being on the 9 January and ended on the 11 November 16. The rent was $1580 per week. Thereby I have the jurisdiction to determine this matter. The parties have agreed by consent in full and final settlement of both matters the tenant is to pay the landlord the sum of five three two zero on or before 8 March 2017. 1. The transcript then concluded with the Tribunal Member noting the orders would be emailed to the parties. 2. It is clear that from when the transcript records the parties leaving the hearing room after the entry at 1:19:55 until the next entry at 2:14:16, just before the orders are made as set out above, the parties and the Tribunal Member had left the hearing room and moved into separate rooms for a conciliation of the matter. The Member acted as conciliator. Nowhere in the transcript is there recorded any explanation of what that process would entail, nor any reference to the fact that the Member would be acting as conciliator even though the Tribunal was part-heard in the matter. The Notice of Appeal 1. By Notice of Appeal filed 20 February 2017, the appellant seeks leave to appeal on the basis that the decision of the Tribunal was not fair and equitable. He seeks an order that the consent order made by the Tribunal be set aside and the matter remitted to the Tribunal differently constituted for determination of the proceedings. 2. The grounds of appeal identified in the Notice of Appeal were that, firstly, the Tribunal Member had no power to enter into orders the settlement agreement pursuant to s 59 of the Civil and Administrative Tribunal Act, 2-013 ("CAT Act") because the Member failed to comply with the proper procedures when involving himself in the resolution process pursuant to s 37 of the CAT Act. The particulars of this ground identified the factual circumstances giving rise to the respective claims and asserted that when the matter was adjourned and the parties went into separate rooms… "the Member did not explain to the parties that he was about to engage in the resolution process and what his role would be in that process". 3. The appellant then makes reference to the Procedural Direction 3 of the Consumer and Commercial Division, in particular to clauses 4, 5 and 6 of that Procedural Direction (the text of which is set out in full below). The appellant asserts that when the Member adjourned the hearing and sent the parties to separate rooms, he "believed he was still in the process of a tribunal hearing". 4. The appellant states, as a further particular of the first ground: g. While in the separate room, the Appellant was advised by the member that he would find that the Notice of Termination is revoked and which would result in the landlord getting a break fee. The Member did not explain his reasons for drawing this conclusion. The Member comments led the Appellant to believe that his termination notice would be revoked. The Appellant agreed to a settlement proposal put to him by the Member because he believed an amount of compensation would offset the anticipated loss of the break fee. i. The entire 'resolution process', conducted by the same member who almost immediately before only just presided over the matters as the adjudicator, fell far short of the standards of a proper ADR process and, importantly, the requirements set out in Procedural Direction 3. The manner in which the member exercised his powers was improper and this resulted in the impermissible exercise of power pursuant to s 59 of the CAT Act. 1. The second ground of appeal asserts, for the same reasons particularised as in support of ground 1, that the consent agreement reached was "induced by undue influence on the part of the Member acting as both conciliator and adjudicator". The particulars of this ground are that: [w]hat the member said outside the hearing room had an enormous effect on the Appellant as he was seen as the person with the authority to decide the claims. The Appellant that the Tribunal member had made up his mind about the central question in the dispute and was about to rule against him and he had no choice but to accede to a (sic) unfair settlement agreement. 1. The appellant asserts that the Member therefore acted "beyond his powers" when conducting the conciliation process. He seeks orders that the consent order be set aside and the matter be remitted to the Tribunal differently constituted for determination. The Reply to the Appeal 1. The respondent denies that the appellant was unaware of the process. She says that the Member did explain the conciliation process to the agent when the parties went to separate rooms. She says that the Member went backwards and forwards between the respective rooms conveying offers and counter-offers. She says that "it is hard to believe that the tenant was not aware of what he was consenting too (sic) when agreeing to the offer put forward". 2. The respondent says that when the hearing was adjourned, all of the relevant issues had been put forward. The tenant had rejected the first two offers put forward and, if he felt the third offer was unfair, he was not obliged to consent to it. She says that at no stage during the negotiation process did the Member express any view to her agent as to which way the Member would rule. As such, the resolution process was properly conducted. A question of law arises 1. In our opinion, the matters raised by the Notice of Appeal, namely whether the Tribunal acted beyond its power by reason of the alleged failure to comply with the Procedural Direction as directed by the CAT Act, raises a question of law. Further, the question of whether the Tribunal complied generally with the CAT Act raises a question of law. As such, leave to appeal is not required: see s80(2)(b) of the CAT Act. This is notwithstanding the appellant categorising his appeal as one where the decision of the Tribunal was not fair and equitable which, if correct, would require leave to appeal. It is accepted that in such circumstances, the Appeal Panel should consider the question of law raised: see John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Evidence and other material on the Appeal 1. The appellant sought to rely on two statutory declarations sworn by the appellant and his wife in support of his appeal. He also sought to rely on the transcript of the hearing below, to which we have referred above. Obviously, the affidavits were not before the Tribunal as they deal with matters which occurred at the hearing. 2. Ordinarily appeals on questions of law do not lend themselves to the receipt of new evidence, however, the Appeal Panel can, and in our opinion should in this case, hear fresh evidence as the question before it is whether the Tribunal had power to make the consent orders the subject of the appeal and the answer to the question must depend on evidence which was logically not before the Tribunal: see the discussion, including as to the nature of appeals in Yuen v Thom [2016] NSWCATAP 243 and McDonald v McDonald [2016] NSWCATAP 252. 3. Accordingly, we received the statutory declarations of the appellant (Ex 1) and his wife (Ex 2) both declared on 20 March 2017. 4. We have also had regard to the written submissions of each of the parties and the transcript of the hearing. The Appellant's Evidence 1. The appellant's statutory declaration sets out his recollection of the events of the day of the hearing. Ms Dragic, for the respondent, objected to parts of the declaration which purported to give evidence of what the Member was thinking, or meant when he said certain things. We would not receive those parts of the declaration as evidence of those matters. We would only receive any such evidence as evidence of the appellant's perception or understanding of the events of the day. 2. After reciting the events at the hearing dealing with the respective claims, the appellant sets out how he and his wife went to a separate room. He says that he was very confused as to what was happening. It was the first hearing at NCAT he had attended and did not know if this was part of the hearing process. 3. He sets out that when the Member came into the room he said to him and his wife: "I do not like your case at all". He said the Member said it was his strong opinion that most of the items claimed by him would be very difficult to prove, stating: "Your argument for a compensation claim is very weak". He says that the Member stated: "I think you should try to negotiate a smaller figure than you are seeking. And, I will go over there to her (Ms Dragic) and present the offer for you. I want to help you get at least something, rather than nothing." 4. The appellant says that when the Member was making these comments, whilst he was grateful that the Member was on their side in trying to get them something, he was confused as to whether the Member was allowed to express his views on his case before he had made his decision. He says the Member said: " I really want to help you get the best outcome that you can achieve here. I want to be able to see you at the cricket, and feel that I did the best for you." 5. The appellant says that he asked the Member about his thoughts on the validity of the termination notice he had served on the landlord. He says he was very surprised by the Member's response which was: "Look, I don't even want to go there. There is no case in regards to that matter. What you should have done is, if the landlord has been difficult and is not addressing your concerns, then you should have put a complaint into NCAT, and you could have had a hearing on the matter and maybe you would've got a rent reduction or something along those lines." 6. After trying to explain their position, the appellant says that the Member said: "I have served on the NCAT Board for decades, including sometimes as Head Member…I see cases like this all the time, many cases where the landlords are bastards, and it is morally and ethically wrong that some landlords can get away with leasing some properties the way they do…This landlord was a bastard but you went about it the wrong way". 7. The appellant said that having heard the Member express these views, he formed the opinion that he Member had more or less already decided the matter RT 16/48585. He said he felt that the Member had decided that the notice of termination was invalid and that he (the appellant) would be made liable for a break fee. He said that this confused him. He felt that they were in a compromised position with the Member having already made up his mind and that the only option was to pursue something so that he did not end up with nothing. 8. The appellant then sets out the process of offers being conveyed by the Member between the parties. There was discussion about a broken window at the rented premises which, following certain comments by the Member, the appellant formed the view that no compensation would be payable. He says he and his wife explained to the Member what they perceived to be the unfairness of the situation. The Member said: "I will try to get the agent to concede something, more out of ethical reasons than anything else." 9. The Member left the room and came back with an offer by the landlord to reduce the break rent fee by $1,000. The appellant says that because of the conversations with the Member, he felt that this was the best he was going to get. This was the offer he accepted which led to the money award contained in the consent order. 10. Importantly, the appellant says that: "[a]t no point during the hearing or while we were in separate rooms did Member Varbac explain that he was pausing, adjourning or changing proceedings". 11. The statutory declaration of the appellant's wife, Mrs Berena Lee, effectively corroborates the appellant's version of events. She also says that the Member gave no explanation as to any change of hearing or conciliation process and that when they went to separate rooms, she still believed that the Member was adjudicating on her husband's claim whilst in that room. She says that she felt that by the Member's comments they were steered into making the agreement and felt pressured to do so and had no other option. The Respondent's position 1. The respondent's agent Ms Dragic, who also appeared for her at the hearing and conciliation, did not give sworn evidence but informed the Appeal Panel during her submissions that when she was in the separate room with the Member, he did explain the conciliation process to her. She says that it is hard to believe that the appellant, an intelligent businessman, who was apparently engaging in the negotiation process, did not appreciate the difference between the hearing process and the conciliation process. She submitted that the appellant did not have to accept the final offer and settle the matter. 2. She submitted that there was no basis to set aside the consent order based on the agreement. The Procedural Direction – statutory provisions 1. Pursuant to s 26(1) of the CAT Act, the President may give procedural directions (Procedural Directions) relating to the practice and procedures to be followed in, and to the actual conduct of, proceedings in the Tribunal. The Procedural Directions must be publicly available and consistent with the CAT Act and the relevant enabling legislation and procedural rules (s 26(2)). Pursuant to s 26(4) each Member of the Tribunal and the parties to proceedings must comply with any applicable procedural directions. 2. In this case, the applicable Procedural Direction is the Consumer and Commercial Division Procedural Direction Number 3. It is dated 24 December 2013 and made by the Deputy President of the Consumer and Commercial Division pursuant to an Instrument of Delegation dated 20 December 2013 signed by the President of the Tribunal pursuant to clause 12(1)(a) of Schedule 2 to the CAT Act. 3. It is in the following form: Introduction 1. These directions are issued pursuant to section 26 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) and set out the procedure which is to apply when the same Member assists in conciliation of a dispute in Consumer and Commercial Division proceedings and then if the matter fails to resolve, determines the matter at hearing. 2. The Tribunal is obliged pursuant to section 37 of the NCAT Act to promote the use of resolution processes such as conciliation to resolve or narrow the issues between them in the proceedings. The Tribunal's duty is also to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible. To meet both of these requirements the Tribunal may use the same Member to both conciliate and hear a matter, particularly in regional areas. Conciliation 1. Conciliation is an informal process to produce agreed outcomes that are lawful and acceptable to both parties. 2. Where there is no Tribunal Member or Deputy Divisional Registrar allocated to assist parties to reach an agreement, the Member hearing the list will explain the conciliation process to the parties in accordance with Tribunal procedures. 3. The Member will establish with the parties that there are no serious impediments to attempting to resolve the matter by conciliation. 4. The Member may facilitate discussions to assist resolution but will not provide legal advice or opinion to the parties. Legal questions and issues may however be canvassed with the parties. 5. Should the parties reach an agreed settlement by conciliation, the Member will establish that the agreed settlement is one which is within the powers of the Tribunal to make. The Member will also confirm the agreement is voluntary and that the parties understand the agreement. 6. The Member will explain to the parties that the agreed settlement will be made into legally binding orders as it thinks fit to give effect to the agreed settlement reached by the parties. Hearing 1. If a matter is not resolved by conciliation the Member will advise the parties that the conciliation process has been concluded. 2. The Member will ask the parties whether they are ready to proceed to have their matter heard. 3. If the Member has taken part in the conciliation of the matter, the Member will ask the parties if they object to the Member proceeding to determine the matter. The Member will, in considering the objections raised, determine whether he/she will conduct the hearing or adjourn the matter to a later date before another Member. 4. If the matter is ready to proceed to hearing, the Member will outline to the parties that: 1. proceedings are no longer private and confidential and, where recording equipment is available, will be recorded; 2. any statements that were made or any concessions given in conciliation cannot be raised at the hearing unless both parties agree; 3. information about any settlement offers made in conciliation by either party cannot be raised during the hearing; 4. the inability to informally resolve the dispute by conciliation will not affect the outcome of the hearing. 1. When the hearing begins the Member will enquire of the parties whether there is agreement about any facts and issues so that only those issues still in dispute need to be determined at hearing. Adjournments 1. Where the parties are not ready to proceed to hearing or the Member decided he/she will not conduct the hearing, the Member will make appropriate procedural direction to ready the matter for hearing on the next occasion. 1. It can be seen that the language of the Procedural Direction is mandatory. That is, the Member is to apply the procedures set out therein. That is consistent with the language of s 26 of the CAT Act which proscribes that Members (and parties) must comply with applicable procedural directions. Did the Member comply with the Procedural Direction? 1. In our opinion, based upon the material before us, and in particular the transcript and the evidence of the appellant, it is clear that the Member did not comply with the Procedural Direction. He did not explain to the appellant the conciliation process at all, let alone in accordance with the Tribunal's procedures. Such procedures can be found, inter alia, in the NCAT Conciliation Fact Sheet which is appended to these reasons. 2. There is no evidence that the Member undertook any explanation of the different processes of him sitting as the Tribunal to hear and determine the dispute based upon the evidence of the parties and submissions they made as opposed to him acting as conciliator to assist the parties in reaching an agreement to resolve the issues in dispute between them. The simple fact that the parties were sent to separate private rooms, after the Tribunal Member had heard most, if not all, of the evidence in respect to the issues in dispute, is not enough to comply with the Procedural Direction. The Member was obliged to explain to the parties the differences in the two processes (hearing as opposed to conciliation) and the Member's differing role in those two processes. This was not done. 3. The situation in this case was perhaps made worse in that the conciliation took place after the Tribunal had heard most, if not all, of the evidence relevant to the issues in dispute. Whilst there is no fixed rule as to when conciliation should occur, ordinarily it could be expected that it would occur before the Tribunal had commenced to hear the evidence. This is particularly so when the Tribunal Member is to also act as the conciliator. That is reflected in the language of [1] of the Procedural Direction which in terms sets out "the procedure which is to apply when the same Member assists in conciliation of a dispute in Consumer and Commercial Division proceedings and then if the matter fails to resolve, determines the matter at hearing" (emphasis added). The language in [9] - [11] of the Procedural Direction also clearly indicates that normally the conciliation would occur prior to the Member hearing the matter should the conciliation fail to enable the parties to reach an agreement to settle the matter. 4. It no separate conciliator is available, it is preferable that any conciliation by the Member who is to hear the matter take place before that Member embarks on hearing the dispute. The Appeal Panel appreciates that there may be cases where a Member part-heard in the matter would then act as conciliator of the dispute. If that was to occur, the Member should, in the hearing room and whilst the proceedings are being recorded, take extra care to see if the parties were prepared to conciliate the matter. The Member should then clearly explain that the hearing process was to (at least temporarily) finish and the conciliation process was to begin. The parties should be asked to expressly consent to that Member also acting as conciliator. In such cases, it is particularly important, for obvious reasons, that the Member does not express any opinions at all about the strength or weaknesses of a party's case. Any discussion in the conciliation as to the issues of the case should be limited to what legal questions or issues may arise for determination. 5. Where there are no conciliators available to act as conciliators and the Member who is to hear the matter undertakes the conciliator role, there are obvious reasons why it is important for those Members to properly explain the difference in the two processes to the parties. It is trite to say that when parties appear at the Tribunal it is often their first experience with a Tribunal or a dispute resolution system. They are more often than not unrepresented. Indeed, subject to certain exceptions or leave of the Tribunal, parties are not entitled to be represented by another person (see s 45(1) of the CAT Act). Without a prior explanation as to the process, ordinarily a party to proceedings in the Tribunal would not necessarily, and should not be expected to, appreciate the differences between a person sitting in one room as the Tribunal hearing and determining the matter and that same person sitting with them alone in a separate room conciliating the matter in an attempt to enable the parties to reach consensual agreement to resolve their dispute. 6. In this case, the Member failed to follow the procedure to explain the conciliation process before that process was undertaken or during the process itself. His comment in the hearing room that they would then move into separate rooms and he would "see if he could do something with" the matter does not comply with the requirement to explain the conciliation process. 7. Further, the conciliation took place after the Member had heard most, if not all, of the evidence relevant to the issues in dispute. He then proceeded to express strong views about the appellant's prospects of success. On the evidence of the appellant, the Member went beyond canvassing the legal questions and issues as allowed by the Procedural Direction. That was also a breach of the Procedural Direction. Effect of breach of Procedural Direction 1. Having determined that the Member failed to follow the Procedural Direction it is necessary to address the consequences of that breach. The appellant submits that the breach means that the Tribunal had no power to make the orders it did. He also submits that the consent order should be set aside as being made under the undue influence of the Member having made his views as to the prospects of success known during the conciliation process. 2. We do not think it is necessary to decide this appeal on the questions of power or whether the consent orders are liable to be set aside for undue influence. In our opinion, the failure of the Tribunal to comply with the Procedural Direction, being a failure to comply with s 26(4) of the CAT Act is an irregularity within the meaning of s 53(3) of the CAT Act. That section provides: 53 Amendments and irregularities (3) If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal decides otherwise. (4) The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings. 1. Section 81(2) of the CAT Act provides that the Appeal Panel may exercise all the functions that are conferred or imposed by the Act on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal. In the circumstances, therefore, the Appeal Panel is able, if it determines, to set aside the proceedings or a decision in the proceedings if there has been an irregularity within the meaning of s 53(3). 2. In this case, we are of the opinion that it is appropriate to set aside the proceedings and the consent order made by the Tribunal based upon the agreement reached at the conciliation. That is because from the evidence of the appellant, it can be accepted that, had he had the conciliation process explained to him in accordance with the Procedural Direction, and had the Member otherwise complied with that Procedural Direction, there is a very significant prospect that he would not have entered into the agreement giving rise to the consent order. His evidence is clear that he thought the Member was still sitting as the Tribunal and determining the matter. He felt that the Member had expressed clear views as to his prospects of success. He felt that following the conciliation process he had no choice but to get something out of the matter and he thus entered into the consent agreement. 3. In our opinion, in light of the clear breaches of the Procedural Direction and the appellant's evidence, it would be a miscarriage of justice to hold the appellant to the consent order. 4. For the above reasons, the orders we make are: 1. The appeal is allowed. 2. The order of the Tribunal made on 6 February 2017 is set aside. 3. The sum of $5,320 held by the Tribunal pursuant to the stay orders made by the Appeal Panel on 2 March 2017 is to be released to the appellant, or at his direction. 4. The matter is remitted to the Tribunal, differently constituted, to be heard according to law. ******** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar Appendix NCAT Conciliation Fact Sheet NCAT Fact Sheet Consumer and Commercial Division Conciliation This fact sheet explains the conciliation process used by NCAT to resolve Consumer and Commercial Division disputes. What is conciliation? Conciliation is an alternative dispute resolution process where the people in dispute talk about their issues in an informal, private meeting with the aim of reaching an agreement. In NCAT's Consumer and Commercial Division, the conciliation process is closely linked to the hearing process, rather than as a separate step of dispute resolution. Parties are asked to attempt conciliation before the hearing can take place. Conciliation allows you to have control over the outcome of your dispute and is more likely to result in an agreement you both find acceptable. What happens in conciliation? During the conciliation you would: • Tell the other person what your issues are • Show each other your evidence • Try to understand and respect each other's different points of view • Negotiate differences, discuss possible solutions and try to reach an agreement. NCAT provides information at all Consumer and Commercial Division hearing venues to assist you during your conciliation discussions. If you reach an agreement during conciliation, the terms of the agreement will be made into an NCAT order. Write down your agreement on the form provided and take it back to the Tribunal Member in the hearing room. The agreement is then made into a legally binding NCAT order. If conciliation is unsuccessful, the hearing will go ahead. Negotiations discussed during conciliation cannot be repeated in the hearing room unless both parties agree. Conciliators 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 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 parties to come up with options and possible solutions • Help write down any agreement reached. Conciliators do not provide legal advice or make decisions. They will however check that the parties understand the agreement and that it is made with their consent. A Conciliator is not an advisor and will not make decisions for you Conciliation ten top tips The below ten top tips can help you prepare for and get the most out of the conciliation process. 1. Think about what you want Think carefully about your issues and the outcome you want to achieve. Write a summary of these issues. 2. Work out how you will negotiate Be open-minded and flexible. Think about the other person's issues and how they will respond to your NCAT Consumer and Commercial Division Fact Sheet | Conciliation (October 2015) Page 1 views. Negotiation may involve some compromise to reach a solution you both find acceptable. 3. Tell your side of the story Briefly explain your side of the story and show your evidence to the other person. Explain how you would like to resolve the dispute. Focus on solutions. Try not to argue about who is right or wrong, or why. 4. Listen to the other person Listen carefully to the other person and look at their evidence. You might want to take notes. Allow them to talk and don't interrupt. Try to consider their point of view even if you don't agree. 5. Focus on the issues, not the emotions Stay focussed on the issues, not on your emotions or the behaviour of the other person. 6. Start negotiating Start coming up with possible solutions. Make offers and counter-offers. A successful conciliation happens when both parties agree on a solution. 7. Only agree to what you think is acceptable Be sure you only agree to an outcome you find acceptable. Keep in mind there has to be some give and take by both parties when coming to an agreement. 8. Ask for help if you're having problems If you're having problems, ask the Conciliator, Tribunal Member or a Registry officer for help. If you feel threatened by the other person, let the Conciliator or security officer know immediately. 9. If you reach an agreement Write down your agreement on the form provided. If a Conciliator is available they can help you write it down. Before your agreement is made into a legally binding order, you will be asked if you understand the agreement, and confirm you made it voluntarily. 10. If you don't reach an agreement If you can't reach agreement, the hearing will go ahead on the same day or at a later date. Think about whether your issues are important enough to come back on another day which may increase the time, cost and inconvenience to you. Common questions Do I have to attempt conciliation? Yes. Although conciliation is a voluntary process, NCAT is required by law to encourage parties to reach agreement through a resolution process, such as conciliation, before the hearing can take place. Who is involved in the conciliation? Generally only the people involved in the dispute attend the conciliation. An agent, advocate or interpreter may also be present. At larger hearing venues a Tribunal Conciliator may be available to help with conciliation discussions. Can my support person come with me? Yes, however you will need to seek permission from the other person. If they do not give permission, your support person cannot be present during the conciliation session. Why can't the Conciliator stay during the entire conciliation process? Where a Conciliator is available, their role is to assist a number of conciliating parties at the same time. It is not possible for them to spend all their time in one conciliation session. What happens if I'm not happy with the conciliated agreement? If you are not happy with the conciliated agreement, let the Tribunal Member know before it is made into a legally binding order. Tell them that you have reconsidered the settlement agreement and want to proceed to hearing. Can a consent order be changed afterwards? No. Once a conciliated agreement is confirmed by a Tribunal Member it becomes a legally binding order. Contact NCAT 1300 006 228 | www.ncat.nsw.gov.au For more information and assistance visit the NCAT website www.ncat.nsw.gov.au or contact NCAT on 1300 006 228. NCAT Consumer and Commercial Division Fact Sheet | Conciliation (October 2015) I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 14 June 2017 - Amendment to initial of Applicant's representative DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 June 2017