Administrative Law

ACT Civil and Administrative Tribunal

Review by the ACAT

On 2 February 2009, the ACT Administrative Appeals Tribunal was consolidated into the new ACT Civil and Administrative Tribunal ('the ACAT') upon the commencement of the operative provisions of the ACT Civil and Administrative Tribunal Act 2008 (ACT) ('the ACAT Act') and the repeal of the ACT AAT Act. Transitional provisions for uncompleted matters are found in the ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009, available at www.legislation.act.gov.au/sl/2009-2/default.asp.

The ACAT consolidates 16 jurisdictions and tribunals including:

• the administrative appeals tribunal;
• the discrimination tribunal;
• the guardianship and management of property tribunal;
• mental health tribunal;
• residential tenancies tribunal;
• the liquor licensing board;
• and civil dispute (small claims) matters under $10,000.

It also takes on responsibility for discipline of various occupations including motor vehicle dealers and finance brokers, constructions occupations, surveyors and architects as well as the health and legal professions.

What Kind of Decisions can the ACAT Review?

Examples of disputes that can be heard by the Tribunal

• disputes between neighbours;
• argument over a finance agreement;
• damages to property;
• tenancy issues including disputes between landlords and tenants and a tenant's dispute with strata management in which the tenancy is located;
• common boundaries;
• trespass and nuisance applications;
• contractual disputes;
• any administrative decision made under an ACT law;
• application for a mental health order;
• discrimination matters; and
• disputes with utility service providers.

There is a $10,000 limit on civil dispute applications although there are provisions for some exceptions. In the case of Residential Tenancy disputes the limit is $25,000 and up to $50,000 with the consent of the parties.

Applications cannot include claims for interest charges or lump sums in lieu of interest charges.

The Tribunal cannot hear any application made under a Commonwealth law. In addition, the Tribunal cannot be used for:

• disputes over parenting or the custody of children;
• disputes over child support;
• disputes about wills and probate;
• disputes about taxes or social welfare benefits;
• decisions pertaining to recruitment issues;
• civil claims in excess of $10,000; or
• criminal matters.

Who can Apply to have a Decision Reviewed?

Applicants may only bring a matter before the Tribunal if an authorising law gives the Tribunal the power to make a decision about that matter (see s 9 of the ACAT Act). There are over 160 authorising laws. The ACAT Act is the authorising law for civil disputes.

Generally the ACAT Act and the rules, regulation and procedural directions made under that Act set out the procedure that should be followed for any application. Sometimes however, an authorising law contains provisions about procedures or powers specifically about the particular subject matter it deals with. Where the provisions of an authorising law conflict with those in the ACAT Act, the authorising law prevails.

An applicant must check that there is an authorising law that provides ACAT with the power to deal with the application.

How to Apply

Applications to the Tribunal must be set out in writing and may be made on the forms that are available from the Registry of the Tribunal or can be downloaded from the Tribunal's website. The Registrar is able to assist with applications to the Tribunal (see s 13 of the ACAT Act).

If the application is for the review of a decision, applications must be made to the Tribunal within 28 days after the day the decision to be reviewed is made (see s 10(2) of the ACAT Act).

Does the Application Stop the Decision Taking Effect?

The application for review does not operate as an automatic stop to the decision being implemented; however the Tribunal may make any order (an interim order) it considers appropriate to protect the position of the party that applied for the order (see s 53 of the ACAT Act).

Obtaining an Authority's Reasons

If an authority that made the decision did not tell you the facts upon which its decision was based and the reasons for its decision, you may apply to the authority to request a written reasons statement which sets out the facts and reasons for the decision. This information may assist you identify grounds for review. The decision-maker must then give you that written material within 28 days (see s 22B of the ACAT Act).

In certain cases the decision-maker will be entitled not to give reasons for a decision where the matter involves the public interest.

Applications for reasons must be in writing.

The 28 day period in which to lodge an application for review then runs from the day on which you receive the authority's reasons, or its refusal to give reasons. Alternatively, you may apply to the Tribunal for review, and you will be given a copy of the reasons.

What Happens Next?

It is the policy of the Tribunal to manage all applications from the moment an application is lodged. The Tribunal will facilitate the resolution of applications in the first instance by listing applications for conference, directions, a preliminary conference under s 33 of the Act or mediation where appropriate. The Tribunal may also refer parties to other dispute resolution services at any time.

If need be the Tribunal can also set time limits for case preparation and monitor the progress of an application against these time limits as well as varying or enforcing compliance with the time limits so that applications are dealt with as quickly as is consistent with achieving justice.

Set out below is a brief overview of the steps that usually occur after an application is lodged.

Filing and serving of relevant documents

A. Civil Disputes

After an application has been lodged, the Tribunal will notify the other party (a respondent) and ask for a response to the claims made in the application.

B. Administrative Review

If the ACAT declares that the reasons statement is insufficient, the decision maker must, within 28 days of the Tribunal's declaration give the applicant an additional statement containing information, materials and anything else required to make the reasons statement sufficient (see s 22D of the ACAT Act).

Preliminary conference

After it receives the relevant documents the Tribunal will usually set the matter down for a preliminary conference. The conference is generally scheduled to take place about six weeks after the application was filed.

The purpose of the conference is to discuss and clarify the issues in dispute (especially any particular disputed facts) and the evidence likely to be presented at hearing. The conference registrar also will explore the possibility of a pre-hearing settlement of the application with the parties.

At the end of the preliminary conference the registrar, if it appears obvious that no resolution to the appeal is possible, will usually order an inquiry to take place as soon as practicable.

If the issues in dispute are resolved between the parties before the conference, the parties may sign and file with the ACAT, a consent judgment in accordance with the Consent Judgement order form provided by the Tribunal.

Alternative Dispute Resolution

If, before a hearing of an application the Tribunal considers that the matter is reasonably likely to be resolved through mediation, the Tribunal may refer the parties to a registered mediator and order the parties to attend.

During a mediation or conciliation conference the registered mediator will explore with both parties whether any common ground exists and whether a settlement can be reached that both parties agree on.

Hearing

Hearings are conducted in public unless the Tribunal directs otherwise; for example, that a directions hearing be held by telephone.

All parties to the hearing are notified well in advance of the hearing date.

The Tribunal has the power to proceed in the absence of a party who has had reasonable notice of the hearing date. Alternatively, the Tribunal may set a date for another hearing, order certain steps be taken, adjourn the hearing or dismiss the application.

Each side may call witnesses and take evidence via examination in chief, followed by cross-examination of the witness by the other side. Where an applicant is unrepresented and there are no other witnesses the Tribunal will often take evidence in chief from them and then invite the Respondent to cross examine.

The Tribunal may, by summons require a person to attend a hearing or produce a document. Failure to comply with such a summons may result in arrest of the person.

The proceedings generally conclude, again like court proceedings, with each side making closing submissions to the Tribunal.

The Tribunal may then issue an ex-tempore (on-the-spot verbal) decision immediately or, more commonly, will reserve judgment and deliver a written decision at a later date.

The Tribunal is not strictly bound by the rules of evidence, however evidence will be given more or less weight depending on its source, for example, answers to leading questions or hearsay evidence (whilst allowed) may be given less credibility / weight than evidence that is adduced in line with accepted principles.

What Remedy can the Tribunal Grant?

The remedies available in the Tribunal depend on the type of matter that has been heard. Generally, the authorising law will set out the powers of the Tribunal and the decisions it may make on an application. Some of the orders the Tribunal may make include:

• Interim orders to protect the position of the party that applied for the order;
• Reprimand a person and require them to give a written undertaking;
• Require a person to undergo training;
• Cancel, suspend or make conditional a person's licence or registration;
• Order an internal review of an administrative decision; or
• Confirm, vary, substitute or set aside an administrative decision.

Costs

The parties to an application must bear their own costs unless the ACAT Act otherwise provides or the Tribunal otherwise orders. If the Tribunal decides in the favour of the applicant, the Tribunal may order the other party to pay the applicant for the filing fee for the application.

Where one party to an application causes unreasonable delay, the Tribunal may order that party to pay the costs incurred by the other party arising from the delay.

Review by the ACT Administrative Appeals Tribunal (repealed 2 February 2009)

The ACT Administrative Appeals Tribunal (ACT AAT) was established under the Administrative Appeals Tribunal Act 1989 (ACT) (the "ACT AAT Act"). Section 3A stated that the main objects of the Act were:

(a) to establish an independent administrative appeals tribunal;

(b) to review decisions made by decision-makers under enactments if authorised by enactments; and

(c) to ensure that the AAT is accessible; and

(d) to ensure that proceedings in the AAT are efficient, effective and as informal as possible; and

(e) to ensure decisions of the AAT are fair; and

(f) to foster an atmosphere in which administrative review is viewed positively as a way of enhancing the delivery of services and programs; and

(g) to encourage, and bring about, compliance by administrators with territory laws.

In the early days of ACT Self-Government, the ACT AAT was co-located with the Commonwealth AAT, and AAT Deputy President Todd also held office as President of the ACT AAT. Subsequently, the ACT AAT became completely separate from the Commonwealth AAT, however there was still some similarities in the manner of operation of each tribunal.

The Tribunal comprised two divisions, the General Division and the Land and Planning Division. The Land and Planning Division dealt with decisions made under the Land (Planning and Environment) Act 1991 (ACT), the Tree Protection Act 2005 (ACT) and the Heritage Act 2004 (ACT).

On 2 February 2009, the ACT AAT was consolidated into the new ACT Civil and Administrative Tribunal upon the commencement of the operative provisions of the ACT Civil and Administrative Tribunal Act 2008 and the repeal of the ACT AAT Act. Transitional provisions for uncompleted matters are found in the ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009, available at www.legislation.act.gov.au/sl/2009-2/default.asp.