Need to go to NCAT but don't know where to start? Our panel of tenancy law specialists discuss the NSW Civil and Administrative Tribunal (NCAT), including what to expect, the conciliation process, gathering evidence and tips on how to prepare for a matter.
This episode features Grant Arbuthnot (Tenants’ Union of NSW), Julia Murray (New England and Western Tenants Advice and Advocacy Service) and Brett Webb (Northern Aboriginal Tenants Advice Service), hosted by Leo Patterson Ross (Tenants' Union of NSW).
For more information, please refer to the Tenants' Union of NSW's NCAT Factsheet. You can find your Local Tenants’ Advice and Advocacy Service here.
TU NCAT Panel Discussion
Charlie Wilde: [00:00:00] Welcome to Renting Bytes, a podcast series by the Tenants Union of New South Wales, where we break down renting into bite-sized pieces. This episode was recorded during Law Week, at a panel discussion hosted by the Tenants Union. The topic was the New South Wales Civil and Administrative Tribunal, also known as NCAT. We wanted to focus on information tenants might need if they're looking at going to NCAT but aren't too sure how to go about it. Panelists talk about what you can do to prepare for the Tribunal, what you can expect at each stage of the process, as well as some tips for representing yourself at NCAT. Let's have a listen.
Leo Patterson Ross: Thanks everybody for coming. My name's Leo on the CEO of the Tenants' Union of New South Wales. Welcome to the Zoom and we're streaming now on Facebook. This session, answering questions [00:01:00] around the New South Wales Civil and Administrative Tribunal. Before we get too far into it, I just want to acknowledge that I'm coming to you from Aboriginal land. I'm on Cammeraygal Country in the north of what's now called Sydney. And our panelists will be calling in from Aboriginal land of their own. So our panelists today are um, Grant Arbuthnot who's the principal solicitor from the Tenants' Union of New South Wales and Grant's on Tharawal land. Julia Murray is an advocate from the New England and Western Tenants Advice and Advocacy Service, which covers a large region of the North and West of New South Wales. Julia is also from Tharawal land. We also have Brett Webb from the Northern Aboriginal Tenants Advice Service, which covers the north coastal and a bit of inland New South Wales. And Brett's on Bundjalung, Gumbaynggirr and Yaegl land up in the north of what's now New South Wales. We're here to talk about the New South Wales [00:02:00] Civil and Administrative Tribunal and our panelists are very experienced advocates. I did the math and between the three of them, they have 60 years of experience as tenant advocates. And I think they look great for that. They've still got that spark, but it means that they have a lot of experience and knowledge either appearing in the tribunal or advising other advocates, other people to go to the Tribunal, that we can share today. We felt that it was really important to run this session for Law Week New South Wales 2022, because a lot of people can feel a bit worried about going to the Tribunal. It's not something you do every week, unless you're a tenant advocate and it can be a bit strange and people have all sorts of questions. Sometimes those questions or concerns stop them from going to the tribunal and stop them from actually asserting their rights from getting the best possible outcome, whether it's taking the [00:03:00] landlord to the Tribunal or whether it's being taken to the Tribunal and knowing to turn up, to talk to the Tribunal and feel confident explaining the situation . This is being live streamed on Facebook, but we're also recording it. So it will be on tenants.org.au for people to continue to come back to and check in on and we'll draw out material from it as well. So let's get started with a bit of a warm-up for the panelists. We'll go down the list. What's one word you think of when you hear of NCAT or the Tribunal? Let's start with Grant.
Grant Arbuthnot: I think now it's the word 'evidence.' Doesn't matter how clever your argument is. If there's no evidence for the facts that you want the Tribunal to deal with, then you may very well not succeed. So it's, it's evidence [00:04:00] every time.
Leo Patterson Ross: Great. Uh, Julia. What's one word?
Julia Murray: Ah, look, it's a competitive field. I'm going to go with variable. When we advise tenants, we actually have to give a very broad scope of advice about what could happen at the tribunal, which is not to say that it's utterly random, but there are absolutely variables. And some of that comes down to the person who is hearing your matter and their worldview, let's say. I guess, you do need to be prepared for a range of scenarios. And I think we're probably gonna try and give you some hot tips on, on how to do that, but you sort of do need to have your wits about you and, and understand that not everything may go to plan, either because your view of what is going to happen may not be what actually happens or also because things can be variable even in the same circumstances in different hearings.
Leo Patterson Ross: Okay. Thanks Julia. And Brett, what's one word you think of when you [00:05:00] think of the Tribunal?
Brett Webb: Julia and Grant sort of summed it up. Evidence and probably expert evidence, what Julia was saying, telling the tenant, this could happen and some times something completely opposite happens. Sometimes Tribunal Members will pick things that we can't see, the way they interpret things.
Leo Patterson Ross: Great. So, Julia, what is NCAT? What is the Tribunal? Why was it set up?
Julia Murray: Okay. NCAT stands for the New South Wales Civil and Administrative Tribunal. It is what is known, I think, as a super Tribunal, that was certainly as it was pitched to us and most States have one these days, and it does cover a broad range of different types of matters, but where we're concerned we're in the consumer and commercial division of NCAT and tenancy as I understand it, makes up the majority of the matters within the consumer and commercial division and the community consumer and commercial division is the biggest division of NCAT. So we're the main game, but it's a place [00:06:00] that we can go as tenants to try to resolve disputes. Broadly speaking, it's a dispute resolution mechanism, and it's purported to be quick, cheap and just, not necessarily in that order. There's a two-step process. The first everyone is asked to conciliate or negotiate, and then if that doesn't bear fruit, then the matter will be determined by a Tribunal Member. I guess that that's a summary of what we have before us.
Leo Patterson Ross: Thanks, Julia. So Brett, we've got this cheap, quick, just way to resolve issues with landlords.
Brett Webb: Yeah, the cheap, quick way to resolve issues. I mean, Tribunal Members, with the old face-to-face hearings, they used to say, look if you can go out, make an agreement it may not be what you want, but if you can live with it, both parties, it can be settled today, over and done with, no stress, it's all over and done with quick and it's not going to cost you much.[00:07:00] But we have had cases where matters have gone on for geez, probably nine months, probably three Tribunal adjournments and stuff like that. And solicitors representing landlords corporations... it must come in quite costly for them. In a matter we had just recently we went on since about June last year, it's only just been resolved, but the landlord had a solicitor for probably most of the way through with the Tribunal. They walked away with a dismissed application. The amount of money they could have spent and the stress they would have put the whole community through, was it really worth it? I think if it was promoted a bit more, you know, cheap, quick, easy resolution, and if both parties understood it properly, it might solve a lot of issues.
Leo Patterson Ross: That might help. So Grant, did you think NCAT is achieving what it was intended to achieve that quick, cheap and just?
Grant Arbuthnot: The answer as with almost any large [00:08:00] organization is yes and no. Um, the thing that I worry about with the Tribunal is the 'quick' that you know, there's 70,000 matters a year. And if it, if it was just one Member doing that, then that'd be a decision every one and a half minutes. But there's actually a hundreds of Members. So it's not as quick as that. The Tribunals' purpose, is toward, uh, finality of disputes and there is a lot of pressure for the Tribunal to do it quickly. And that means that the parties have to be well organized in what they present in order to head toward a just outcome. When it has to be done quickly, you need to be organized and present your material [00:09:00] efficiently. And not every participant is up to that.
Leo Patterson Ross: Trish on social media asked about how fair and independent the Tribunal is. And some other people are saying it feels weighted in favor of one way or the other. What do you think, is the just, quick and cheap, is that quickness part of the problem there or what, what else is happening?
Grant Arbuthnot: I think the, the root cause is that people are in dispute. That just because you take somebody to the Tribunal doesn't mean they back down, they will push back and argue against you. A Registrar from a previous Tribunal once got into trouble by saying landlords claim we're biased toward tenants, tenants claim were biased towards landlords, we must be getting it just about right. And it's still true, both sides of the business, wherein landlords and tenants, claim that the [00:10:00] Tribunal favors the other side. And I. I tend to think that we're better off with the Tribunal than with the previous system. We have, over time up to, I think about 25% of applications are by tenants. Whereas in the previous system it was in the Local Court and there were no applications by tenants. So it's a good step towards access to justice for tenants, because it is much more accessible than a Court.
Brett Webb: Could I just ask a question. Yeah. How many would you say is resolved through conciliation, would you say half matters?
Julia Murray: About three quarters isn't it Grant?
Brett Webb: Yeah, it's a fair bit ay?
Grant Arbuthnot: I think so. Regrettably, a lot of tenants don't attend for their own evictions and it's mostly for rent [00:11:00] arrears. That's the majority of the tenancy business of the Tribunal. But if you add together those that are done, where that with only one party there and by conciliation it's the vast majority of matters. But the quickness does depend in part on landlords and tenants coming to agreements to a fair extent.
Leo Patterson Ross: So just quickly, just to give us a little bit of a flavor, Brett, what what's sort of the top three issues that people go to the Tribunal about?
Brett Webb: Mainly rent arrears, landlords taking of course for, to recoup rent arrears or, um, property care usually at the end of a tenancy for the tenant debt, sorry. We've had a couple or a few go through for repairs and compensation as well, especially with social housing providers failure to do repairs over a period of time.[00:12:00] As I was saying earlier, that's where you need the expert evidence from a building inspector or a quote from a carpenter and joiner or someone like that.
Leo Patterson Ross: Grant, if someone's in a dispute with their landlord, they can't seem to move forward. What's the next thing to do?
Grant Arbuthnot: The next thing to do is some research and/or get some advice. The Tenants Advice and Advocacy Program website, which is tenants.org.au has a whole lot of information in it's fact sheets and other resources. There's a fact sheet on the Tribunal itself. And then there are fact sheets on all of the various issues you might take to the Tribunal, like repairs or access or termination, et cetera. So there's some, there's some material available to look at to see what the rules are like. And then, I think, get some advice from the local tenants advice service, and you can find them by putting your postcode [00:13:00] into the postcode engine at the bottom of the page at tenants.org.au. And you'll get their hours of operation and their phone number.
Leo Patterson Ross: And so there's the Tenants' Advice services, there's the local services that are all around the State, there's general services and Aboriginal services. Um, Brett, what's the difference between the Aboriginal, the non Aboriginal services?
Brett Webb: Well, both the non-Aboriginal and Aboriginal services do a pretty good job, we try and achieve the same, same outcome. But I think the difference between our services is that we're sort of on occasions in their homes and see what the real issues are. Are there issues affecting their tenancy? Talking with a lot of the, you know, we're out in the community, face-to-face with the community. And taking on a lot of our tenants' advocacy work, most of our work's advocacy, um, the travel, the boundaries to travel in their homes, assisting with applications to the Tribunal or the [00:14:00] documentation that goes with it, assisting them with going through their, both material theirs and the landlords with Tribunal. I think it's more of that sort of work you know instead of the, I could be wrong, I can't speak on behalf of the non-Aboriginal services, but, I think that's what it probably is.
Leo Patterson Ross: Yeah, that makes sense. So, Julia, if a tenant contacts a TAAS or an Aboriginal TAAS, will the advocate be able to represent at the Tribunal?
Julia Murray: Look, we would love to be able to represent everybody who we spoke to, but, it may surprise you to know that there are not all that many of us, and we work on a sort of prioritization of vulnerability, type of scale. We advise everyone and every service makes their own decision, but broadly speaking, we advise everyone and, and help them to prepare where people have vulnerabilities in terms of, you know, literacy or other issues that make it difficult for them to self represent, in those instances we will consider representing, sometimes in a limited capacity and sometimes in a very [00:15:00] intensive capacity. It's very much based on our capacity to prioritize people and their particular needs. We'll help everyone we can, but we do have finite resources, unfortunately.
Leo Patterson Ross: What's some of the support that you might get, even if you're not represented?
Julia Murray: Okay. So yeah, everyone will get some advice about how to prepare and that sort of thing will include, as Grant said, the fact sheets are available. There's a lot of materials that we can send out to people. In some circumstances we do have sample submissions. That's if it's getting relatively pointy or there's a particular legal issue that, that people need to be on top of, but yeah, we'll run people through as best we can to help them understand what to expect, and make sure that they understand what the key elements are that they need to be able to present. Largely in terms of evidence, but also just basic stuff about how to present and how the tribunal member might conduct things. As I said earlier, we have to prepare people for a fairly broad cross section of what [00:16:00] is going to happen. Some members have a different shtick or approach to the way that they do things. But yeah, we attempt to prepare people as best we can to just give them the tips and tricks to feel as comfortable as possible when they get there and put their best foot forward.
Leo Patterson Ross: Grant, Wendy on social media said that someone at NCAT told her that she has to take her landlord to Fair Trading before applying to the Tribunal. Is that correct? Or can tenants go straight to the Tribunal?
Grant Arbuthnot: It's not compulsory in tenancy matters. Some strata matters you do have to go through mediation first, but with tenancy you can go straight to the Tribunal. Fair Trading takes complaints in tenancy matters. They do investigate some things and they also have the power to make rectification orders. And they also are responsible for regulation and licensing of real estate agents. So there are, there are some things that, that Fair Trading can do for people. But no it's [00:17:00] not, it's not compulsory to go there first. I usually encourage people to go to Fair Trading if they don't want to go to the Tribunal for some reason, that they can take the Fair Trading alternative dispute resolution road first and see if that helps. But no, it's not compulsory.
Leo Patterson Ross: And, you know, going to Tribunal costs at least a little bit of money. But the orders are binding, whereas Fair Trading is at least free to, to start with. So that might be part of the reason why someone might choose not to, it's a sort of a lower bar to start with, but you may not end up with the same results. So Brett, you've talked a little bit about you know, being prepared, getting the evidence, what's your best advice to help someone who's preparing for the Tribunal?
Brett Webb: To try and get as much evidence as possible. Keep copies of those evidence, ensure they keep communicating with one of our [00:18:00] advocates, to help put the documents together for the Tribunal. I think it's mainly having that witness statements or depending on what they're going for, making sure that they've got it in order and it's done early. Preparation can be helpful, you know, with getting what you need in a Tribunal order. And it makes it easier for the Tribunal as well to, to understand what's the application. So I think that's probably the best advice I used to give people that, if they're going to go through with it, be prepared and sometimes I'll tell them be prepared to be stressed out a bit too, because it can be a stressing process, especially the ones that I can go on for six months, with an organization. When communities have been a bit upset.
Leo Patterson Ross: Grant, what are some common mistakes tenants make when they're getting ready to go to the Tribunal?
Grant Arbuthnot: I think the assumption that the Tribunal has more knowledge than it actually does.[00:19:00] It's likely that the Tribunal, the particular Member you're in front of has heard a story like this before, but they haven't heard your story. And so you need to very efficiently tell them the story and provide evidence to back up the various elements or parts of that story. If you're the applicant, then the onus is on you to demonstrate what you say took place, and the Tribunal can't find in your favor, if they're not convinced of the facts.
Leo Patterson Ross: Julia what are some of your tips to help people get organized, have that evidence to back up story?
Julia Murray: I don't know that I'd suggest too much that Brett and Grant haven't already mentioned, but you know, it is to just be prepared and actually to Grant's point perhaps of almost stepping outside your body, which [00:20:00] is a very hard thing for people to do, but imagine that you don't know everything that you know about, you know, you're trying to tell your story very succinctly and with evidence that actually supports what you're saying to somebody who doesn't know anything about it. So it's really important to keep thinking about how am I going to demonstrate the thing that I'm trying to say to this person who, who doesn't know the background and needs to understand quickly and clearly what's going on. So I suppose, yeah, it's just about that preparation. And as I said, one of the important things that we do as a Tenants Advice service is run people through what it's going to look like so that they can feel a little bit relaxed and see that the things that we've told them are going to happen are happening, even if it's not happening exactly the way that it might be predicted. I think getting organized is about thinking through your matter and your angle and your evidence so that it's all gonna be there on the day.
Leo Patterson Ross: Okay. So if we're at the point where [00:21:00] we're applying to the Tribunal, we've got all that evidence together. Brett, what should people expect when they arrive at the Tribunal? What's it going to look like? Is it going to be like going to Court or something they've seen on TV or something like that?
Brett Webb: I usually tell him that it's sort of like a courtroom, but you know, we're not solicitors, we're advocates. Certain Tribunal Members want things conducted a certain way. I usually tell them whether there's a risk and what could happen the end of the day. And it's always best of course, to try and reach that agreement in conciliation. To keep someone in their home, that's the main thing. Some people get really nervous and some people are pretty casual. Most people are pretty stressed out when they go to the Tribunal, they don't know what's gonna happen. But, depending on the member and depending on what the evidence is put in front of them.
Leo Patterson Ross: Okay. So, Julia, you're there it's it's time for the matter [00:22:00] to begin. You've got the listing details, you go in, are you going to be the only one in the hearing room? What's happening at the Tribunal?
Julia Murray: So in the first instance, and we should say that this is somewhat replicated during COVID times with phone hearings, the general principle is that a number of matters have been put down out at the same, in the same hearing room whether virtual or live, at the same time. And that is called a group list. And as the name suggests, there are multiple people present. So you might get, depending on whether you're in a more regional or more urban, environ, you might have, you know, five sets of five matters. So five sets of parties, in the room with you. And so there will be a roll call. And so that's the first part of the process. Once they establish who's there, then they'll different members have a different process in terms of how they go about it. Some of them will just make a generic spiel about how great it is to come to agreements and send [00:23:00] everyone on their way to try and cut such a deal, and others will start at the top of the list and deal individually with each matter and give them instructions or say, you know, can you sort this out? And sometimes, you know, if you're at the end of the list, you can be waiting while all of these other matters get dealt with in all their gory detail in terms of the procedures or, you know, they'll start fighting or whatever, and you'll just be sitting there sort of just going okay. But yeah, so they'll basically work their way through the list generally. There'll be some members who who'll just identify, okay, both parties are here for three of the matters and they'll give them all the spiel without going into detail about their particular matter. They'll encourage them to conciliate and to come to an agreement. And some of them will give a speech about, one of them used to quote the Rolling Stones. Can't always get what you want. Uh, that's a classic. Some of them will say, this is really going to grind you down. You need to sort this out, you know, find a way to cut a deal, different degrees of [00:24:00] encouragement to negotiate. But you'll basically be encouraged, whether you've tried before or not, you'll be encouraged to try and cut a deal.
Leo Patterson Ross: Okay. So before we get to the conciliation and we go out, Grant, how do you address, how do you speak to the, to the Member? Um, should you be interacting at this point where they're doing the roll call that Julia's talked through?
Grant Arbuthnot: No ordinarily not. You would not be speaking directly to the Member unless you're asked a question. Or until you're invited to sit down at one of the tables in front of the Member for the matter to be heard, at least preliminarily. So it's, it's not a matter of making claims, shouting at the Member. It's a matter of dealing with them in the way they want to deal with matters because they're in charge. And if you annoy them, it doesn't help.[00:25:00] So wait until you're asked, unless there's something really urgent or extraordinary that needs to be dealt with.
Leo Patterson Ross: Brett what do you call the Tribunal Members? Do you say Your Honour or something like that?
Brett Webb: We usually call them by their surname. Mr. Smith or Mr. Whoever their name is, or if we can't remember their names, I usually say Mr. Member, or Sir, or Miss, because sometimes lately with the phone hearings, if you don't catch their name when they first notify you, um, sometimes you got to ask them again can you please repeat your name again through the hearing, but I usually say Miss or Sir, or Miss. Member or Mr. Member.
Leo Patterson Ross: Yeah. Julia, are there any other things tenants should be aware of when they're representing themselves at the Tribunal?
Julia Murray: I think Grant's point about not interrupting is a, it's a cracker, regardless of the [00:26:00] type of Member none of them like to be interrupted, and we'll talk about it I think in the context of a more formal hearing in particular, you just have to sit on your hands and your, and your mouth. And just respond when given the opportunity to, but yeah, obviously you don't want to be put in a situation where you don't say something that you need to have said, it's just making sure that it's at the right time. And yeah, I think preparation is key for people who are self representing. But also bearing in mind the point that Grant's made, which is your presentation is not as important as the evidence that you've got that is going to demonstrate whatever you're trying to say.
Leo Patterson Ross: So we've gone through the roll call, uh, you and the agent or the landlord are there. So then you're going to be sent out for that conciliation process. What should tenants know about going into that process? Julia?
Julia Murray: So the first thing is that you will be put under pressure either before, during or after the conciliation process to cut a [00:27:00] deal. That's what the Tribunal and to greater and lesser extents, but most Members are very encouraging of, of cutting a deal. So you just need to be mindful that that is going to be sitting there. And some registries, particularly the more mainstream or urban registries have got conciliators who, when there's face-to-face hearings will be a part of that process. And that's a whole different dynamic because you've got someone who, again, is trying to get you to cut a deal. Uh, but also might put some variables into it. And, and of course the conciliator isn't there the whole time. People need to be prepared that they're going to go into an interaction. It's a negotiation. It's always a good idea to, to think about what your position is, what you think the other person's position is. That's super important to be predicting what you think they're going to want. And I mean, to me, not everyone approaches it this way, but you do want to try and identify common ground. You want to think about what is it that I'm going to be able to offer the other person that they might go for, and [00:28:00] part of the conciliation process and the speeches that the members give say, you know, something that you need to be able to live with. You know, everyone needs to come to it in a spirit of sorting it out. It's a dispute resolution mechanism and there are definite advantages of settling it early in the process. So that's a hundred percent something you should be thinking about, but also, I suppose you also do need to draw a line between how much are you going to concede? And if the person on the other side is stonewalling or really not giving anything, at what point are you gonna, you know, how important is this thing to you that you, whether you want to kick on or not? So I guess the preparation that I always suggest is thinking about what you think that you're going to encounter in. You'll have some sense of what the person is after what you're after. I suppose it's about how you can approach that in a, as constructive, a way as possible, but without being bulldozed, or selling yourself short.
Leo Patterson Ross: Great. Um, Brett, you would [00:29:00] have seen conciliation done well, done badly, gone wrong. What's your tips for getting through that process?
Brett Webb: I think bad conciliation is committing to some sort of agreement that the tenant is probably gonna find hard to comply with. Especially with a rent arrears one. The first tip is if you're conciliating in rent arrears ensure that the tenant can meet that agreement with the amount of, you know, paying rent and paying off the arrears. It's no good trying to walk it away and they realize I can't pay $200 a week off the arrears, I can only afford $50. That's one thing. Two, as what Julia said, you've got to reach common ground with landlords. That could be the agents there. It could be community housing provider or, DCJs (Department of Communities and Justice). Once you come to that common ground, usually you can, most cases you can move forward with performance orders or SPOs (Specific Performance Orders). I think [00:30:00] Three is making sure that the orders comply with the tenancies Act (Residential Tenancies Act 2010 NSW), and something that's not really outrageous, pretty simple, something simple. So that way the tenant can understand as well.
Leo Patterson Ross: Right. Uh, Grant if conciliation hasn't worked, so you've been through that, couldn't find that common ground couldn't find an agreement what's likely to happen next?
Grant Arbuthnot: If it's the simplest sort of problem, it might get heard on the occasion and orders will be made, but it's more likely if it's going to be contested, then the Tribunal will do what is called 'making directions.' And those are orders for people to send in to the Tribunal and send to each other, the documentary evidence on which they are going to base their case. So that when you [00:31:00] do get to a hearing at another time, everybody has seen all the paperwork and there's not, there's not a whole lot of stuff that isn't known. And the hearing can be more efficient. So. If they're going to make directions, then they should also ascertain that they do have jurisdiction to hear the application. Sometimes people ask the Tribunal for stuff they don't have, you know, ordering off the menu, just isn't available. For example, some people in social housing have applied for orders that they be transferred from one house to another, and the Tribunal simply doesn't have power to do that. And so there wouldn't be directions made. If you've applied for something that can't be ordered, it's more likely to be dismissed unless there is some amendment that the Tribunal thinks is appropriate to bring it within [00:32:00] the Tribunal's work.
Leo Patterson Ross: I've spoken to tenants who've have been worried that if there was something, one part of their application or one part of the landlord's application might be off menu and not allowed to ask for, um, does that invalidate the whole application or can it be dealt with just by itself?
Grant Arbuthnot: No, it can be, it can be separated and dismissed on its own. If you know, if you've got a repairs application in, for example, and you apply for six different orders and the Tribunal decides that you can't have, you know, one of the orders, like, for example, if, if it was a, a claim for compensation and you hadn't suffered any loss, then they might dismiss that summarily. But the rest of it still stands and you could get orders for say rent reduction and that repairs are done.
Leo Patterson Ross: Um, all right. So Brett, we talked a [00:33:00] bit before about, if, if someone's saying something that you really disagree with either the other side or the Member, how do you recommend tenants handle that situation?
Brett Webb: Sometimes tenants that get frustrated, they're going to, they're in the situation where they could lose their home. Sometimes they might butt in when the other side's giving their evidence and the only thing we can do is tell the tenant, look you'll have your opportunity to talk, it's a procedure what happens, usually the applicant goes first. And you get an opportunity to defend it. I had one a couple of weeks ago. The tenant was jumping in saying yeah, they're lying and stuff like that. And I said, look, you'll have the opportunity. And then when it came to her turn and she apologized to the Tribunal and to the other side as well, she's been through a lot this tenant, of course. And when she gave her evidence, asked her actually happened on that day, her version, she told the whole story and I'm pretty [00:34:00] sure, you could tell that it was two sides of the story. She was in some sort of provocation there with the neighbours. The Member did uh, reserve the decision , a couple of days later the decision came through. She kept her home with an SPO. In that situation, the Tribunal Member asked me to tell her, you've got to tell them, look, it's not your turn, you will get your opportunity. Um, we know you're just frustrated and you don't agree with what they are saying, but you'll have your opportunity. Usually they'll accept that.
Leo Patterson Ross: Julia, if you don't understand something that's happening, is it okay to ask them questions as it goes?
Julia Murray: Yeah, look, most Members are quite receptive and indeed it's kind of their role to talk parties through procedural matters. So if you don't understand why something's happening or how it's happening, you would expect the Tribunal Member to be able to answer those questions. I suppose the distinction I would make is if you're [00:35:00] asking something that constitutes advice, a Tribunal Member can't give you advice. You need to get that from a Tenants Advice and Advocacy Service, which you can do if you've got a future hearing, you can do before the next hearing and the Member will probably direct you to, to get that advice if it's not something they're able to do. But yeah, if you don't understand something and particularly if it's about the procedure or why something's happening, absolutely. The Tribunal Member should be able to give you an answer to that question. So respectfully ask the question. If it's not something that can answer, they'll tell you, but, I think it's fine to ask.
Leo Patterson Ross: Okay. So Grant. What's the kind of evidence that you might need in a hearing, what's helpful? Brett's talked to a lot about that being very important. You talked about it, you need to back up your story. What is that evidence that's useful?
Grant Arbuthnot: First of all, the residential tenancy agreement is evidence establishing the jurisdiction of the tribunal. [00:36:00] So you're in the right place if you can prove you've got a tenancy agreement. Then, uh, all sorts of things can be evidence, photographs, quotes, all the correspondence, whether it's emails, letters, texts. If people have diary entries, they may be relevant. Statutory declarations from people who, witnessed relevant events. There's all sorts of possibilities. The tribunal has seen over time, all sorts of different evidence. Um, there's been rat poo in a bottle. There's been, house bricks. There's just no end to physical and documentary evidence that's available.
Julia Murray: Can I just make a point?
Leo Patterson Ross: Yeah Julia, go for it.
Julia Murray: So just on that, Grant mentioned statutory declarations. It's a bit counterintuitive, but I think it's a point worth making. If you, as the tenant wants to make a statement [00:37:00] about something you've seen or heard, you need to put it in a statutory declaration in an ideal world, because there are some Tribunal Members that when you get to the hearing and you go to, to speak about your own circumstances, will say, well if you haven't put that in a stat dec (statutory declaration) in advance as a part of your evidence bundle, I'm not going to hear it, or I'm not going to give it weight. Not all members will be like that, but it's certainly, I think a lot of people find that counterintuitive, that they need to provide evidence in advance of their own words in terms of, you know, evidence that might, might actually be relevant to their case. So I just think that's a point worth making. It's not just other people who might've witnessed something, but your account of what happened at certain times. It's really important to put that in, in advance when you get your opportunity to submit your evidence. And I just think. Oh, that's probably one of my hot tips because a lot of people just, it doesn't occur to them that they need to do that.
Leo Patterson Ross: Um, you said a really interesting thing just then a phrase that I think some people might not know the [00:38:00] 'giving it weight.' A common frustration or common thing that people come up against is, if there's two pieces of evidence or there's two stories being told, they're not telling the same story. Ah, the Tribunal is going to give weight to a piece of evidence. How do they decide what's the more reliable piece of evidence? Um, what are they going to take into account more? Julia, you start since I'm bouncing off yours.
Julia Murray: Pieces of documentary evidence, which would include, you know, photographs. Emails, things that are dated and have been kept. Those things are all really important. You'll find that you'll get to a point where there'll be evidence that you need to present, that you don't have a particular document for, and so that'll be like an interaction you had with the real estate agent when they came over in a conversation that was had about a matter that hasn't since been documented and what you suggest at the time, you know, write something so that it is documented. But if [00:39:00] you're left in a situation where you haven't done that, then it becomes a question of, you know, how am I going to make this as strong as possible as evidence? And so the most strong piece of evidence, if somebody is saying something is a statutory declaration and those statutory declarations ought to be from the person who is making them and, and you wouldn't include something that someone else said in that statutory declaration, you get them to do their own statutory declaration. Cause it's a, it's like a primary piece of evidence and something that's sworn and witnessed by a Justice of the Peace or, or similar will carry more weight to the Tribunal Member then, you know, maybe an email or something. That might be signed or might be signed off on, but it isn't isn't sworn. The Tribunal will have a hierarchy of evidence and that type of evidence will fall higher than a different type of evidence that doesn't have the same legal weight. So I guess that's what they use. They'll use, you know, expert reports carry a lot of weight in repairs matters [00:40:00] and, and yeah, if two people are saying things that are opposite in statutory declarations, well, the Tribunal Member will form a view about which one is more credible and I'll use a variety of methods to do that. But all you can do is present them the most comprehensive and the most sort of credible evidence that that is independent and, and above questioning, I suppose.
Leo Patterson Ross: So I'll open this for anyone, Marcia in the chat has asked if a lot of the evidence that the tenant has is video evidence, how can they submit that and rely on it? Is it, is it the same as, you know, a written document or is it a bit special? Grant?
Grant Arbuthnot: Uh, there is, a set of rules about electronic evidence. You will find them on the NCAT website (ncat.nsw.gov.au). If you search the NCAT website for electronic, you will find the electronic evidence. I can't remember whether it's a direction or a guideline, but [00:41:00] there's, there's certainly material there that you should comply with. If you don't comply, the Tribunal might not look at it at all.
Leo Patterson Ross: So, after the Tribunal Member has heard both stories and, uh, seen all that evidence, what could happen, Brett? What's the, what's the range of outcomes there?
Brett Webb: What happens is that depending on who puts the application in, whether it's the landlord or the tenant, the worst case would be it could be dismissed. If a landlord's put an application in for termination, and if it gets dismissed, that's a win for the tenant. They keep their home. The other thing too is that a Member could say, right-o, well, I'm not going to decide now, I'll let you know in the mail. Could come through within 14 days later of the result of who, what decision they've made, or they could simply just make a, an order of compliance, specific performance order for either party to comply.
Leo Patterson Ross: Um, [00:42:00] so Aglavina's just asked about the stat decs, should they be provided for an entire witness statement? Uh, so everything that you're planning to rely on, or is it about specific events or specific parts of the story? What should the stat dec cover?
Julia Murray: If I understand the question, if it's a stat dec from one person, it can cover everything and probably should cover everything. I think the only distinction I would make is if there's another person involved, like say even your partner also witnessed something different or witnessed something else, you don't put in your stat dec, this is what my partner saw. They would do their own stat dec, but yeah, for one, they can be quite big, if you've got a lot to say, but I suppose you want to make sure that everything you put in there is relevant. And speaking to a Tenants Advice Service would be helpful in that regard to keep you on track. Cause there's so much going on in some of these things and you know, some aspects are [00:43:00] not so relevant for the Tribunal, even though some people feel very strongly that it is relevant for them, but broadly speaking, one person, one stat dec, as many issues and as much of the story as is relevant.
Leo Patterson Ross: And Marcia is checking, that they already have some witness statements with the name and address and other details, but, uh, should they convert those to stat decs? And I think what we're saying, I'm just going to answer the question. I think what we're saying is, it would have more weight. It will be taken more credibly by the Tribunal if its a stat dec. And some Members might even say, if I'm going to believe it at all, it should be, but it's not a strict requirement of the Tribunal that it's a stat dec, to lodge. So it doesn't mean that it's invalid evidence, but it will be more weighted. Um, that's what I'm hearing from Grant and Julia's responses earlier, is that fair Julia?
Julia Murray: Yes, but the only other thing I would say is if for some reason you're not able to get a stat dec signed [00:44:00] before your evidence cutoff period, the work around, which is not ideal, but you can do, is that you submit the detail of it, the statement unsigned. And then when you get to the Tribunal, you can have yourself, if it's your own statement as a tenant or the other person as a witness can swear to it on the day, but the content has been provided in advance. And the reason for that is because the Tribunal's very big on procedural fairness. And that's the reason why some members are very strict about not letting you speak in evidence, but only in submissions when you get to the Tribunal, is because each party is entitled to know the other's case before they actually get to the Tribunal. That's what the Tribunal's very concerned about. That's why the content of the statement is important to be given in advance so that if the other side wants to make a response to something that you've raised in that, that they can prepare their own evidence accordingly. So the work around, if you can't get, cause it can be really difficult to find [00:45:00] someone to sign a stat dec within time, we know that it's crazy running around with getting all your evidence together and how long postage takes these days. So the workaround can be the full content that you would then at the Tribunal, give an oath or affirmation to bring it into evidence in that more powerful way.
Leo Patterson Ross: Great. So I think we'll take one last question from Cathy about presenting the argument. Um, let's ask Brett, but I'll open up to Grant and Julia after, should the tenant application focus on their own facts and evidence, or should they spend time focusing on refuting the claims made by the landlord with counter evidence? How do you make that balance?
Brett Webb: Well, in the last one, the last Tribunal matter I did, we went there prepared with our documents already served, with the statutory declaration from the tenant. It covered the allegations made against the, um, supporting documentation from a [00:46:00] GP, psychologist, from the coroner's office. And she lost a son in custody only a couple of months before. So she was going through a lot. We provided that documentation. The Tribunal accepted that she did take in some mitigating factors, going to a psychologist , barring certain people coming into her home since the incident. The Tribunal accepted that as well as a section 154(e) circumstance in social housing. No other prior Tribunals, her rent was up to date. There was no other Tribunal orders against her. So in that matter, I wasn't quite confident that she would keep the property. I was a bit worried because the Member sort of said, I've got to have to reserve my decision. I think the main thing was we just stuck to our guns on what we had to present. So I think that's what saved them.
Leo Patterson Ross: Grant, do you have, anything to add on the balance [00:47:00] there, between sticking to your own case and responding?
Grant Arbuthnot: I think the answer is both because the Tribunal is going to make findings of fact and then apply the law to them. And so you want to try to refute landlord's factual claims you disagree with, and if you have to admit them, then you might also want to tell the Tribunal how it is, that that's not as damning as it sounds.
Leo Patterson Ross: Yeah. Um, all right. So, Grant, we're going to start wrapping up if a tenant or community worker wanted some information or more information on, on an NCAT, are there any resources that you'd recommend people look at?
Grant Arbuthnot: I think tenants.org.au has the resources I mentioned [00:48:00] earlier, the NCAT fact sheet and other fact sheets. There's also the NCAT website (ncat.nsw.gov.au), which has a great deal of material on it, including lots of guidelines and directions that the Tribunal will use. Also your local tenants advice workers, the advocates themselves. I would encourage tenants to get advice and I would encourage community workers to build relationships with their local tenants advice service, so that the amount of assistance to tenants available is increased by collaboration.
Leo Patterson Ross: Great. All right. So, um, Julia, let's start with you. Have you got any parting words, any last thoughts that you want to make sure to say before we wrap up?
Julia Murray: I actually didn't have too much more to say, except to reiterate Grant's last point, I guess you should get advice just because. Unless you have been to the Tribunal [00:49:00] before, you may not. Uh, well actually no I do have a final piece of advice and it is just bear in mind, please just bear in mind that the Tribunal has a very specific purpose. They resolve disputes but it's only narrowly in relation to disputes that the law allows them to resolve. You can't get justice for the way that your real estate agent has treated you it doesn't constitute a breach of the law. And there are lots of examples of that. And that's why you should get advice to, to find out whether the matter that that is most important to you is actually something that the Tribunal can solve for you. There, there are aspects to what occurs in the tenancy relationship that cannot be solved by the Tribunal. And that's, that's not looking at social housing and things that fall under a different area. There are some areas that nominally are regulated by Fair Trading, but broadly speaking the behavior of your agent [00:50:00] very rarely falls into a category that the Tribunal can deal with and the Tribunal can't actually do anything about that, but look, get advice, and the struggle is real, but it may not be able to be resolved by the Tribunal. Get advice about whether your matter has prospects at the Tribunal and how best to go about it. And your local tenants advice service will very happily give you that advice.
Leo Patterson Ross: Great. Brett, any last thoughts from you?
Brett Webb: Um, more or less rephrase what Julia said. Any issues with your landlord ring a tenancy advice service. You know, we're the ones that can let them know whether the landlord's compliant with the Act or not. And, you know, some tenants are pretty good at representing themselves, but majority, you probably do need an advocate assisting you.
Leo Patterson Ross: And Grant?
Grant Arbuthnot: I suppose two things. One is when people have complex problems that might be amenable to a [00:51:00] Tribunal application, they have lived through it and everything is connected to everything else in the way they've experienced it. The tribunal can't deal with it in a holistic way. It has to be sliced up into bits that the law can operate on. So that's a difficult thing to do when you have been distressed by living through the problem. Two documents that you can create that can help do that. One, a chronology of events. So, you know, simple list of dates and times and notes on what happened. And the other one is an argument document. So when you, when you think you've established, what happened, make an argument about what should happen as a result and why, and both of those documents help you to see where there might be gaps [00:52:00] in your presentation to the Tribunal for what you're trying to achieve.
Leo Patterson Ross: Thanks Grant. So thanks all of our panelists and for the audience. We've ended up with quite a few people in the zoom, as well as people on Facebook. I hope this has been really helpful for everybody. Uh, thanks again, everybody. And hopefully we will put on more webinars like this into the future.