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New South Wales
Consumer, Trader and Tenancy
Tribunal Bill 2001
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Objects of Act 2
4 Definitions 2
Part 2 Establishment of Tribunal
Division 1 Establishment and membership
5 Establishment of Consumer, Trader and Tenancy Tribunal 4
6 Membership of Tribunal 4
7 Appointment of members 5
8 Qualifications of members 5
9 Performance management and review 5
Consumer, Trader and Tenancy Tribunal Bill 2001
Contents
Page
Division 2 Organisation and functions
10 Divisions and sittings of Tribunal 5
11 Constitution of Tribunal for particular proceedings 6
12 Functions of Chairperson 6
13 Deputy Chairperson (Registry and Administration) 7
14 Functions of other Tribunal members 8
Division 3 Assessors
15 Appointment of assessors 8
16 Inquiries by assessors 8
17 Assessors sitting with Tribunal 9
18 Costs of assessors 9
Division 4 Registrar and staff
19 Registrar and staff 9
20 Functions of Registrar and Deputy Registrars 10
Part 3 Jurisdiction of Tribunal
21 General statement of jurisdiction 11
22 Other jurisdictions excluded in certain cases 11
23 Transfer of proceedings to courts or to other tribunals 12
Part 4 Procedure of Tribunal
24 Application to Tribunal 13
25 Notice of proceedings 13
26 Parties to proceedings (joint liability) 14
27 Presiding member 14
28 Procedure of Tribunal generally 15
29 Procedural directions by members 16
30 Proceedings causing disadvantage 17
31 Assistance to Tribunal 17
32 Amendments and irregularities 18
33 Proceedings on hearing to be conducted in public 18
34 Circumstances in which hearing may be dispensed with 19
35 Opportunity for parties to present case 19
36 Representation of parties 19
37 Interpreters 21
38 Oral evidence by telephone etc 21
39 Powers in relation to witnesses 21
40 Issue of summons 22
Contents page 2
Consumer, Trader and Tenancy Tribunal Bill 2001
Contents
Page
41 Witness may be apprehended 23
42 Contempt of Tribunal 23
43 Enforcement of certain Tribunal orders 24
44 Protection of practising legal practitioners, witnesses and
others 25
45 Tribunal divided in opinion 25
46 Tribunal may reserve decision 25
47 Power to impose conditions 26
48 Powers when proceedings settled 26
49 Notice of decisions and reasons 26
50 Power to correct decisions of Tribunal 27
51 Recovery of amounts ordered to be paid (other than
penalties) 27
52 Compliance with order of Tribunal 28
53 Costs 28
Part 5 Alternative dispute resolution
Division 1 Conciliation and preliminary measures
54 Tribunal to promote conciliation 29
55 Preliminary conferences 29
Division 2 Mediation and neutral evaluation
56 Definitions 30
57 Meaning of "mediation" and "neutral evaluation" 30
58 Appointment of mediators and neutral evaluators 30
59 Referral by Tribunal 31
60 Costs of mediation and neutral evaluation 31
61 Agreements and arrangements arising from mediation or
neutral evaluation sessions 31
62 Privilege 32
63 Secrecy 33
64 Other measures not precluded 33
Part 6 Appeals and rehearings
65 Review by prerogative writ etc generally excluded 34
66 Referral of questions of law to Supreme Court 34
67 Appeal against decision of Tribunal with respect to matter
of law 35
68 Rehearings by Tribunal 36
69 Original decision to operate unless otherwise ordered 38
Contents page 3
Consumer, Trader and Tenancy Tribunal Bill 2001
Contents
Page
Part 7 Miscellaneous
70 Privileged documents 39
71 False or misleading statements 39
72 Provision of information by Tribunal 39
73 Improper disclosure of information 40
74 Act to bind Crown 40
75 Seal of Tribunal 40
76 Authentication of documents 40
77 Proof of certain matters not required 41
78 Notices, service and lodgment of documents 41
79 Return of documents after proceedings concluded 42
80 Allowances and expenses of witnesses 42
81 Extensions of time 42
82 Proceedings for offences 43
83 Protection from personal liability 43
84 Annual report 43
85 Chairperson may furnish reports 43
86 Regulations 43
87 Forms 44
88 Repeal of legislation 45
89 Savings, transitional and other provisions 45
90 Amendment of Acts 45
91 Review of Act 45
Schedules
1 Divisions of the Tribunal 46
2 Provisions relating to members 48
3 Performance management and review 55
4 Provisions relating to assessors 57
5 Provisions relating to mediators and neutral evaluators 59
6 Savings, transitional and other provisions 61
7 Amendment of Acts 65
Contents page 4
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2001
New South Wales
Consumer, Trader and Tenancy
Tribunal Bill 2001
Act No , 2001
An Act to establish the Consumer, Trader and Tenancy Tribunal to adjudicate
certain consumer and commercial disputes and disputes between landlords and
tenants; to repeal the Fair Trading Tribunal Act 1998 and the Residential Tribunal
Act 1998 and to amend certain other Acts consequentially; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill as
finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Consumer, Trader and Tenancy Tribunal Bill 2001
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Consumer, Trader and Tenancy Tribunal Act 2001.
2 Commencement
(1) This Act commences on a day or days to be appointed by
proclamation, except as provided by subsection (2).
(2) Clause 4 of Schedule 6, and section 89 in its application to that clause,
commence on the date of assent.
3 Objects of Act
The objects of this Act are as follows:
(a) to establish a Consumer, Trader and Tenancy Tribunal to
determine disputes in relation to matters over which it has
jurisdiction,
(b) to ensure that the Tribunal is accessible, its proceedings are
efficient and effective and its decisions are fair,
(c) to enable proceedings to be determined in an informal,
expeditious and inexpensive manner,
(d) to ensure the quality and consistency of the Tribunal's decision-
making.
4 Definitions
(1) In this Act:
assessor means an assessor appointed under this Act.
Chairperson means the Chairperson of the Tribunal.
Deputy Chairperson (Registry and Administration) means the
member referred to in section 6 (1) (b).
Deputy Chairperson (Determinations) means the member referred to
in section 6 (1) (c).
Director-General means the Director-General of the Department of
Fair Trading.
Page 2
Consumer, Trader and Tenancy Tribunal Bill 2001 Clause 4
Preliminary Part 1
Division of the Tribunal means a Division of the Tribunal specified in
Schedule 1.
exercise a function includes perform a duty.
function includes a power, authority or duty.
legal practitioner means a barrister, or solicitor, within the meaning of
the Legal Profession Act 1987.
member means member of the Tribunal.
procedural directions means directions relating to the practice and
procedures to be followed in, and to the actual conduct of,
proceedings.
proceedings means proceedings in or before the Tribunal, and includes
any alternative dispute resolution procedures under Part 5.
Registrar means the Registrar of the Tribunal.
Tribunal means the Consumer, Trader and Tenancy Tribunal of New
South Wales established by this Act.
(2) Notes included in the text of this Act do not form part of this Act.
Page 3
Clause 5 Consumer, Trader and Tenancy Tribunal Bill 2001
Part 2 Establishment of Tribunal
Division 1 Establishment and membership
Part 2 Establishment of Tribunal
Division 1 Establishment and membership
5 Establishment of Consumer, Trader and Tenancy Tribunal
(1) A Consumer, Trader and Tenancy Tribunal of New South Wales is
established by this Act.
(2) The Tribunal has and may exercise such functions as are conferred or
imposed on it by or under any Act.
Note. The following Acts confer jurisdiction on the Tribunal:
Community Land Management Act 1989
Consumer Claims Act 1998
Consumer Credit Administration Act 1995
Consumer Credit (New South Wales) Act 1995
Credit Act 1984
Credit (Finance Brokers) Act 1984
Credit (Home Finance Contracts) Act 1984
Fair Trading Act 1987
Home Building Act 1989
Motor Dealers Act 1974
Motor Vehicle Repairs Act 1980
Residential Parks Act 1998
Residential Tenancies Act 1987
Retirement Villages Act 1999
Strata Schemes Management Act 1996
Travel Agents Act 1986
6 Membership of Tribunal
(1) The Tribunal consists of the following members:
(a) the Chairperson,
(b) the Deputy Chairperson (Registry and Administration),
(c) the Deputy Chairperson (Determinations),
(d) senior members,
(e) other members.
(2) Schedule 2 has effect with respect to the members.
Page 4
Consumer, Trader and Tenancy Tribunal Bill 2001 Clause 7
Establishment of Tribunal Part 2
Establishment and membership Division 1
7 Appointment of members
(1) The members are to be appointed by the Governor under this section.
(2) A member appointed under this section may be appointed on a
full-time basis or a part-time basis.
(3) This section does not apply to the Deputy Chairperson (Registry and
Administration).
8 Qualifications of members
(1) A person is eligible to be appointed as the Chairperson if the person is
a legal practitioner or is qualified to be admitted as a legal practitioner.
(2) A person is eligible to be appointed as a member (including the
Chairperson) under section 7 if the person has such qualifications or
skills as may be determined by the Minister.
(3) In determining any such qualifications or skills, the Minister is to have
regard to the following:
(a) whether the person has the ability to exercise sound and fair
judgment and to make objective and independent decisions
based on the merits of the case,
(b) whether the person has the ability to command the respect of
the parties in proceedings,
(c) whether the person has relevant expertise in one or more of the
areas of the jurisdiction of the Tribunal,
(d) whether the person has an understanding of, and is committed
to, the alternative dispute resolution procedures under Part 5.
9 Performance management and review
Schedule 3 has effect.
Division 2 Organisation and functions
10 Divisions and sittings of Tribunal
(1) The Tribunal comprises the Divisions specified in clause 1 of Schedule
1 and is to exercise its functions in accordance with that Schedule.
(2) The regulations may amend clause 1 of Schedule 1.
Page 5
Clause 10 Consumer, Trader and Tenancy Tribunal Bill 2001
Part 2 Establishment of Tribunal
Division 2 Organisation and functions
(3) More than one sitting of the Tribunal, or of any Division, may be held
at the same time.
11 Constitution of Tribunal for particular proceedings
(1) For the purposes of any proceedings, the Tribunal may be constituted
by 1, 2 or 3 of its members.
(2) The Chairperson may give directions as to which member or members
are to constitute the Tribunal for the purposes of any particular
proceedings or class of proceedings.
(3) In giving a direction as to the member or members who are to
constitute the Tribunal for the purposes of any particular proceedings,
the Chairperson is to have due regard to the degree of public
importance or complexity of the matters to which the proceedings
relate.
(4) A direction under this section in respect of particular proceedings may
be revoked, and another given in its place:
(a) at any time after the giving of the direction and before the
commencement of the hearing of the proceedings, or
(b) if the member constituting the Tribunal (or, in the case of
proceedings where it is constituted by 2 or more members, one
of those members) during the hearing of the proceedings, or
after the completion of the hearing but before the matter to
which the proceedings relate is determined:
(i) ceases to be a member, or
(ii) ceases to be available for the purposes of the
proceedings,
at any time after the member ceases to be a member or to be
available.
(5) The Tribunal, if reconstituted in accordance with subsection (4) (b),
may, for the purposes of the proceedings, have regard to any record of
the proceedings of the Tribunal as previously constituted, including a
record of any evidence taken in the proceedings.
12 Functions of Chairperson
(1) The Chairperson is responsible for the following:
(a) the effective and efficient operation of the Tribunal generally,
(b) the effective and efficient management of the Tribunal's work.
Page 6
Consumer, Trader and Tenancy Tribunal Bill 2001 Clause 12
Establishment of Tribunal Part 2
Organisation and functions Division 2
(2) In particular, the Chairperson has the following functions:
(a) to direct and monitor the procedural operations of the Tribunal
to ensure that those operations are fair, economical, informal
and as speedy as practicable,
(b) to allocate the work of the Tribunal among the members,
(c) to give procedural directions to the members,
(d) to review those directions on a regular basis.
(3) The procedural directions given by the Chairperson must:
(a) be made publicly available, and
(b) be consistent with this Act and the regulations.
(4) The Chairperson may also give directions in relation to the following:
(a) the practice and procedure to be followed in alternative dispute
resolution procedures under this Act,
(b) the places at which the Tribunal may sit,
(c) any matter in respect of which the Chairperson is authorised by
this or any other Act or the regulations to give directions,
(d) subject to this or any other Act and the regulations--any matter
necessary or convenient to be determined by direction of the
Chairperson for carrying out or giving effect to this Act.
(5) Subject to the regulations, the functions of the Chairperson (other than
a power of delegation under this section) may be delegated to any
member or to the Registrar or another member of the staff the
Tribunal.
Note. Section 49 of the Interpretation Act 1987 contains general provisions relating
to the delegation of functions.
13 Deputy Chairperson (Registry and Administration)
(1) The Deputy Chairperson (Registry and Administration) of the Tribunal
is to be employed under Part 2 of the Public Sector Management
Act 1988.
(2) The Deputy Chairperson (Registry and Administration) is responsible
to the Director-General for the effective, efficient and equitable
management of the staff and resources of the Tribunal.
(3) The Deputy Chairperson (Registry and Administration) is not a sitting
member and does not have the function of hearing or determining
matters that are the subject of any proceedings.
Page 7
Clause 13 Consumer, Trader and Tenancy Tribunal Bill 2001
Part 2 Establishment of Tribunal
Division 2 Organisation and functions
(4) The Deputy Chairperson (Registry and Administration) has and may
exercise the functions of the Registrar.
14 Functions of other Tribunal members
(1) A member has and may exercise the functions conferred or imposed
on the member by or under this or any other Act.
(2) Each member must comply with any procedural directions given by the
Chairperson.
Division 3 Assessors
15 Appointment of assessors
(1) The Chairperson may appoint any person whose name is on the list
compiled under Schedule 4 as an assessor for the purpose of particular
proceedings.
(2) An assessor has the functions conferred or imposed on an assessor by
or under any Act.
(3) Schedule 4 applies to and in respect of an assessor appointed under
this section.
16 Inquiries by assessors
(1) If proceedings are pending, the Tribunal or the Chairperson may, with
the consent of the parties to whom the proceedings relate, direct that
an inquiry into any issue raised in, or other matter connected with, the
proceedings be made by a single assessor.
(2) The assessor making such an inquiry is to make a report to the
Tribunal.
(3) If a report is made to the Tribunal under this section, the Registrar is
to furnish a copy of the report to each of the parties concerned as soon
as is practicable.
(4) The Tribunal may adopt any findings or observations set out in a report
under this section.
(5) An assessor, in making an inquiry under this section, has and may
exercise such functions as the regulations may prescribe.
Page 8
Consumer, Trader and Tenancy Tribunal Bill 2001 Clause 16
Establishment of Tribunal Part 2
Assessors Division 3
(6) An assessor who has made an inquiry under this section in relation to
any proceedings is disqualified from further participation in those
proceedings unless the parties otherwise agree.
17 Assessors sitting with Tribunal
(1) The Tribunal may, in determining any proceedings or part of any
proceedings, be assisted by one or more assessors.
(2) An assessor assisting the Tribunal under this section may assist and
advise the Tribunal, but is not to adjudicate on any matter that is the
subject of the proceedings.
(3) The Tribunal may dispense with the services of an assessor at any
stage of the proceedings concerned.
18 Costs of assessors
(1) Any costs payable to an assessor who has assisted the Tribunal in
proceedings are payable by the Tribunal, except to the extent that
regulations provide that the parties in the proceedings are to pay such
costs.
(2) The regulations made for the purposes of this section may provide that
the parties are to pay such costs:
(a) in the proportions that they may agree among themselves or,
failing agreement, in the manner ordered by the Tribunal, or
(b) in any other manner prescribed by the regulations.
Division 4 Registrar and staff
19 Registrar and staff
(1) A Registrar of the Tribunal, and such Deputy Registrars and other staff
as may be necessary for the purposes of this Act, may be employed
under Part 2 of the Public Sector Management Act 1988.
(2) The Chairperson may enter into arrangements with any government
agency or other body or person (whether in the public or private
sector) for the provision of assistance to the Tribunal in connection
with the exercise of its functions.
Page 9
Clause 20 Consumer, Trader and Tenancy Tribunal Bill 2001
Part 2 Establishment of Tribunal
Division 4 Registrar and staff
20 Functions of Registrar and Deputy Registrars
(1) The Registrar has the following functions:
(a) to assist in managing the business and the affairs of the
Tribunal,
(b) such administrative or other functions as may be conferred or
imposed on the Registrar by or under any Act.
(2) A Deputy Registrar may exercise the functions of the Registrar:
(a) as directed by the Registrar, and
(b) during the absence of, or a vacancy in the office of, the
Registrar.
(3) Anything done or omitted to be done by a Deputy Registrar in
exercising a function of the Registrar has effect as if it had been done
or omitted to be done by the Registrar.
Page 10
Consumer, Trader and Tenancy Tribunal Bill 2001 Clause 21
Jurisdiction of Tribunal Part 3
Part 3 Jurisdiction of Tribunal
21 General statement of jurisdiction
(1) The Tribunal has such jurisdiction to decide matters, and such powers
to make orders and otherwise exercise any function in connection with
any such decisions, as is conferred on it by this or any other Act.
(2) Except as provided by this or any other any Act, the Tribunal has
jurisdiction in respect of matters arising before or after the
commencement of section 5.
22 Other jurisdictions excluded in certain cases
(1) For the purposes of this section, court means any court, tribunal, board
or other body or person (other than one referred to in subsection (2))
that:
(a) is empowered under any other Act, or
(b) by consent of or agreement between 2 or more persons has
authority,
to decide or resolve any issue that is in dispute, whether through
arbitration or conciliation or any other means.
(2) However, court does not, for the purposes of this section, include:
(a) a court, tribunal, board or other body or person that, in relation
to a particular matter, is empowered by law to impose a penalty,
admonition or other sanction for a contravention of a law or for
misconduct or breach of discipline proved to have been
committed in connection with that matter but is not empowered
to award or order compensation or damages in respect of that
matter, or
(b) a court, tribunal, board or other body or person prescribed, or
of a class prescribed, by the regulations for the purposes of this
section.
(3) If, at the time when an application was made to the Tribunal in
accordance with this Act, no issue arising under the application was
the subject of a dispute in proceedings pending before a court, a court
has no jurisdiction to hear or determine such an issue.
(4) Subsection (3) ceases to apply to the extent to which the application
concerned is dismissed for want of jurisdiction or withdrawn.
Page 11
Clause 22 Consumer, Trader and Tenancy Tribunal Bill 2001
Part 3 Jurisdiction of Tribunal
(5) Subsection (3) does not prevent a court from hearing and determining
any proceedings in which it is claimed that any order, determination or
ruling of the Tribunal is invalid for want of jurisdiction or from making
any order as a consequence of that finding.
(6) For the purposes of subsection (3), an issue arises under an application
made to the Tribunal only if the existence of the issue is shown in the
applicant's claim or is recorded in the record made by the Tribunal in
accordance with this Act.
(7) If, at the time when an application is made to the Tribunal in
accordance with this Act, an issue arising under the application was the
subject of a dispute in proceedings pending before a court, the
Tribunal, on becoming aware of those proceedings, ceases to have
jurisdiction to hear or determine the issue.
(8) Subsection (7) ceases to apply to the extent to which the proceedings
concerned are dismissed or quashed by the court, or by another court,
for want of jurisdiction or without deciding the issue on its merits, or
withdrawn.
(9) At a hearing of an application by the Tribunal, a finding or decision
made by a court, tribunal, board, body or person referred to in
subsection (2) is admissible as evidence of the finding or decision.
23 Transfer of proceedings to courts or to other tribunals
(1) If the parties in any Tribunal proceedings so agree, or if the Tribunal
of its own motion or on the application of a party so directs, the
proceedings are:
(a) to be transferred to a court (in accordance with the rules of that
court) that has jurisdiction in the matter, and
(b) to continue before that court as if they had been instituted there.
(2) If the parties in any proceedings that have been instituted in a court so
agree, or if the court of its own motion or on the application of a party
so directs, the proceedings are, if the proceedings relate to a matter for
which the Tribunal has jurisdiction:
(a) to be transferred to the Tribunal in accordance with the
regulations, and
(b) to continue before the Tribunal as if the proceedings had been
instituted in the Tribunal.
Page 12
Consumer, Trader and Tenancy Tribunal Bill 2001 Clause 24
Procedure of Tribunal Part 4
Part 4 Procedure of Tribunal
24 Application to Tribunal
(1) A person (the applicant) may, in accordance with the Act under which
the application is made, apply to the Tribunal to have a matter dealt
with by the Tribunal.
(2) Despite the provisions of any other Act, an application to have a matter
dealt with by the Tribunal must be made:
(a) in writing (or in such other form as may be prescribed by the
regulations), and
(b) in accordance with the regulations.
(3) The Registrar must cause notice of an application to the Tribunal to be
given to each party (other than the applicant) in the proceedings within
such time and in such manner as the Chairperson directs.
(4) It is sufficient compliance with subsection (3) if:
(a) the Registrar directs a party in the proceedings to serve notice
of the application on another party on the Registrar's behalf,
and
(b) notice is served on the other party in accordance with the
Chairperson's directions referred to in subsection (3).
25 Notice of proceedings
(1) If any proceedings are to be determined by a hearing, the Registrar
must cause notice of the time and place that is fixed for the hearing to
be given to each party in the proceedings.
(2) If a party who has been notified under subsection (1) fails to attend at
the time and place notified, the proceedings may be held in the absence
of the party.
(3) If a person who is a party in any proceedings:
(a) is a protected person within the meaning of the Protected
Estates Act 1983, or
(b) has a guardian, or
Page 13
Clause 25 Consumer, Trader and Tenancy Tribunal Bill 2001
Part 4 Procedure of Tribunal
(c) is both a protected person and a person who has a guardian,
the Registrar must cause notice of the time and place that is fixed for
the hearing to be given to the Protective Commissioner, any guardian
of the person, and any other person the Registrar considers appropriate
and any other person prescribed by the regulations for the purposes of
this subsection.
26 Parties to proceedings (joint liability)
(1) This section applies to or in respect of such classes of proceedings as
may be prescribed by the regulations.
(2) If a party in any proceedings to which this section applies has a right
to proceed against 2 or more persons having joint liability:
(a) it is sufficient if any one of those persons is (or are) served with
any notice in respect of the proceedings, and
(b) a decision in the proceedings may be given and enforced
against the person or persons subject to the liability.
(3) Section 97 (Joint liability) of the Supreme Court Act 1970 applies to
and in respect of a decision by the Tribunal in any proceedings to
which this section applies in the same way as section 97 of that Act
applies to and in respect of a judgment given in proceedings before the
Supreme Court.
(4) If at any time the Tribunal is of the opinion that a person should be
joined as a party in proceedings to which this section applies, the
Tribunal may, by notice in writing given to the person or by oral
direction during the proceedings, join the person as a party in the
proceedings.
27 Presiding member
(1) This section applies in relation to proceedings in which the Tribunal
is constituted by 2 or 3 members.
(2) If the Chairperson is one of the members of the Tribunal as constituted
for the purposes of the proceedings, the Chairperson is the presiding
member.
(3) If the Tribunal as constituted for the purposes of the proceedings does
not include the Chairperson but includes the Deputy Chairperson
(Determinations), that Deputy Chairperson is the presiding member.
Page 14
Consumer, Trader and Tenancy Tribunal Bill 2001 Clause 27
Procedure of Tribunal Part 4
(4) If the Tribunal as constituted for the purposes of the proceedings:
(a) does not include the Chairperson or the Deputy Chairperson
(Determinations), and
(b) includes one, and only one, senior member,
the senior member is the presiding member.
(5) In any case where subsections (2)(4) do not apply, the Chairperson is
to designate one of the members who constitute the Tribunal for the
purposes of the proceedings as the presiding member.
28 Procedure of Tribunal generally
(1) The Tribunal may, subject to this Act, determine its own procedure.
(2) The Tribunal is not bound by the rules of evidence and may inquire
into and inform itself on any matter in such manner as it thinks fit,
subject to the rules of procedural fairness.
(3) The Tribunal is to act with as little formality as the circumstances of
the case permit and according to equity, good conscience and the
substantial merits of the case without regard to technicalities or legal
forms.
(4) The Tribunal is to take such measures as are reasonably practicable to
ensure that the parties in any proceedings understand:
(a) the nature of the assertions made in the proceedings and the
legal implications of those assertions, and
(b) the procedure of the Tribunal and any decision or ruling made
by the Tribunal that relates to the proceedings.
(5) The Tribunal:
(a) is to act as expeditiously as is practicable, and
(b) is to ensure, as far as practicable, that all relevant material is
disclosed to the Tribunal so as to enable it to determine all of
the relevant facts in issue in any proceedings, and
(c) may require evidence or argument to be presented in writing
and decide on the matters on which it will hear oral evidence or
argument, and
(d) in the case of a hearing--may require the presentation of the
respective cases of the parties in proceedings to be limited to
the periods of time that it determines are reasonably necessary
for the fair and adequate presentation of the cases, and
Page 15
Clause 28 Consumer, Trader and Tenancy Tribunal Bill 2001
Part 4 Procedure of Tribunal
(e) may require a document to be served outside the State, and
(f) may adjourn proceedings to any time and place (including for
the purpose of enabling the parties to negotiate a settlement),
and
(g) may dismiss any proceedings if the applicant fails to attend a
hearing, and
(h) must, if requested by the applicant, allow the applicant to
withdraw the application, and
(i) may dismiss any proceedings if it considers the proceedings to
be frivolous or vexatious or for any other reason that appears to
it sufficient, and
(j) may order that any proceedings are to be stayed.
(6) The Registrar or Deputy Registrar is to give any party in proceedings
that have been stayed under subsection (5) (j), and who was not
present or represented when the proceedings were stayed, notice that
the proceedings have been stayed.
(7) Subsection (5) (g)(i) does not apply in relation to proceedings arising
under the Strata Schemes Management Act 1996 or the Community
Land Management Act 1989.
29 Procedural directions by members
(1) A member may, in any proceedings, give procedural directions in
relation to the proceedings.
(2) In the event of an inconsistency between any procedural direction
given by a member under this section and any procedural direction
given by the Chairperson under section 12, the procedural direction
given by the Chairperson is to prevail.
(3) Procedural directions under this section may be given by any member
(whether or not the member is hearing the matter to which the
proceedings relate).
(4) Without limiting the grounds on which a member may give procedural
directions, such directions may be given that, in the opinion of the
member, will enable costs to be reduced and will help to achieve a
prompt hearing of the matters in issue between the parties in the
proceedings.
Page 16
Consumer, Trader and Tenancy Tribunal Bill 2001 Clause 29
Procedure of Tribunal Part 4
(5) The powers conferred by this section extend to enabling a member, if
it appears just and expedient to do so, to direct that several matters that
are in some manner associated are to be heard and determined
together.
(6) The functions of a member under this section may be delegated to the
Registrar.
30 Proceedings causing disadvantage
(1) This section applies if the Tribunal is of the opinion that a party in any
proceedings is conducting the proceedings in such a way that
unreasonably disadvantages another party in the proceedings by any
conduct (including by failing to comply with an order or direction of
the Tribunal).
(2) The Tribunal may:
(a) if the party causing the disadvantage is the applicant--order
that the proceedings (or part of the proceedings) be dismissed
or struck out, or
(b) if the party causing the disadvantage is not the applicant:
(i) determine the proceedings (or part of the proceedings)
in favour of the applicant and make any appropriate
orders, or
(ii) order that the party causing the disadvantage be struck
out of the proceedings (or part of the proceedings).
(3) Before making any order under subsection (2) against a party, the
Tribunal is to have regard to the following:
(a) the extent to which the party is familiar with the procedures of
the Tribunal,
(b) the party's capacity to understand, and act on, a direction of the
Tribunal,
(c) whether the party suffers from a disability,
(d) whether the party is acting deliberately in failing to comply with
the Tribunal's directions.
31 Assistance to Tribunal
The Tribunal or Registrar may, in relation to any proceedings, request
a report or other assistance from the Director-General or any other
person or body.
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32 Amendments and irregularities
(1) The Tribunal may, in any proceedings, make any amendments to any
document (for example, an application) filed in connection with the
proceedings that the Tribunal considers to be necessary in the interests
of justice.
(2) Any such amendment may be made:
(a) at any stage of the proceedings, and
(b) on such terms as the Tribunal thinks fit,
but may only be made after notifying the party to whom the
amendment relates.
(3) If a provision of this Act or the regulations 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
otherwise determines.
(4) The Tribunal may, however, in dealing with any such irregularity,
wholly or partly set aside the proceedings or a decision in the
proceedings.
33 Proceedings on hearing to be conducted in public
(1) If any proceedings are to be determined by a hearing, the hearing is to
be open to the public, except as provided by this section.
(2) If the Tribunal is satisfied that it is desirable to do so by reason of the
confidential nature of any evidence or matter or for any other reason,
it may make any one or more of the following orders:
(a) an order that the hearing be conducted wholly or partly in
private,
(b) an order prohibiting or restricting the publication of the names
and addresses of witnesses appearing before the Tribunal,
(c) an order prohibiting or restricting the publication of evidence
given before the Tribunal, whether in public or in private, or of
matters contained in documents lodged with the Tribunal or
received in evidence by the Tribunal,
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(d) an order prohibiting or restricting the disclosure, to any of the
parties in the proceedings, of evidence given before the
Tribunal, or of the contents of a document lodged with the
Tribunal or received in evidence by the Tribunal, in relation to
the proceedings.
34 Circumstances in which hearing may be dispensed with
(1) The Tribunal may, with the consent of the parties in any proceedings,
determine the proceedings:
(a) by considering the documents or other material lodged with or
provided to the Tribunal, and
(b) without any hearing,
if it appears to the Tribunal that the issues for determination can be
adequately determined in the absence of the parties.
(2) The regulations may prescribe classes of matters or circumstances in
which the consent referred to in subsection (1) may be dispensed with.
35 Opportunity for parties to present case
The Tribunal must ensure that each party in any proceedings is given
a reasonable opportunity:
(a) to call or give evidence and otherwise present the party's case
(whether at a hearing or otherwise), and
(b) to make submissions in relation to the issues in the proceedings.
36 Representation of parties
(1) Except as provided by this section, a party in any proceedings has the
carriage of his or her own case and is not entitled to be represented by
any person.
(2) A party may, in accordance with the regulations, apply to the Tribunal
for permission to be represented by a person in the proceedings or in
part of the proceedings. The Tribunal may approve any such
application and make an order permitting the party to be represented.
(3) In any proceedings where an amount is claimed or disputed, a party is
not entitled to be represented by a legal practitioner if the amount does
not exceed $10,000 (or such other amount as may be prescribed by the
regulations) unless the Tribunal is of the opinion that the exceptional
circumstances of the case warrant such representation.
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(4) If a party been granted legal assistance under Division 2 of Part 2 of
the Fair Trading Act 1987, the parties in the proceedings are entitled
to be represented by a legal practitioner.
(5) Except as otherwise provided by the regulations, a person is not
entitled to demand or receive any fee or reward for representing a party
in any proceedings. This subsection does not apply to or in respect of
a legal practitioner.
(6) If a party is, in the opinion of the Tribunal, a special class of person,
the Tribunal may appoint another person, with that other person's
consent, to represent the party concerned. For the purposes of this
subsection, a special class of person means any of the following:
(a) a minor,
(b) a person who is totally or partially incapable of representing
himself or herself in proceedings because the person is
intellectually, physically, psychologically or sensorily disabled,
of advanced age, a mentally incapacitated person or otherwise
disabled,
(c) any other person of a class prescribed by the regulations for the
purposes of this subsection.
(7) However, even though the Tribunal is satisfied that a party is a special
class of person, the Tribunal:
(a) is not to delay the proceedings unduly because another person
has not been appointed under subsection (6) after a reasonable
period of time, and
(b) is to determine the proceedings as expeditiously as possible in
the interests of all the parties concerned.
(8) The Chairperson may give such directions as the Chairperson
considers appropriate in relation to the appointment of a person for the
purposes of subsection (6).
(9) This section does not apply in relation to proceedings arising under the
Strata Schemes Management Act 1996 or the Community Land
Management Act 1989.
Note. In the case of Tribunal proceedings under an Act referred to in
subsection (9), a party is automatically entitled to be represented in the
proceedings.
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Consumer, Trader and Tenancy Tribunal Bill 2001 Clause 37
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37 Interpreters
(1) A person may, in any proceedings, request the Tribunal to appoint an
interpreter for the purposes of communication between the Tribunal
and the person.
(2) The Tribunal must comply with a request made by a person under this
section unless it considers that the person is sufficiently proficient in
spoken English.
(3) If the Tribunal considers that a person in any proceedings is not
sufficiently proficient in spoken English, the Tribunal must appoint an
interpreter for the purposes of communication between the Tribunal
and the person, even though the person has not made a request under
this section.
(4) In this section, interpreter includes a person who interprets signs or
other things made or done by a person who cannot speak adequately
for the purposes of giving evidence in proceedings.
38 Oral evidence by telephone etc
(1) The Tribunal may allow a person to appear before it, or to give
evidence in any proceedings, and may conduct any aspect of its
proceedings, by telephone, audio visual link or any other means of
communication.
(2) If, any case where proceedings are held in public, a person appears or
gives evidence by any means referred to in subsection (1), the Tribunal
is to take such steps as are reasonably necessary to ensure that the
public nature of the proceedings is preserved and that the rights of all
the parties in the proceedings are not prejudiced.
39 Powers in relation to witnesses
(1) The Tribunal may:
(a) call any witness of its own motion, and
(b) examine any witness on oath, or require evidence to be verified
by a statutory declaration, and
(c) examine or cross-examine any witness to such extent as the
Tribunal thinks proper in order to elicit information relevant to
the exercise of the functions of the Tribunal in any proceedings,
and
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Clause 39 Consumer, Trader and Tenancy Tribunal Bill 2001
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(d) compel any witness to answer questions which the Tribunal
considers to be relevant in any proceedings.
Note. See section 80 for the payment of witnesses' allowances and expenses.
(2) If the Tribunal decides to call a person as a witness under subsection
(1) (a), the Tribunal may:
(a) seek to procure the voluntary attendance of the witness before
it by notifying the person in such manner as it thinks
appropriate in the circumstances, or
(b) issue a summons to compel the attendance of the person before
it.
(3) Nothing in subsection (1) enables the Tribunal to compel a witness to
answer a question if the witness has a reasonable excuse for refusing
to answer the question.
40 Issue of summons
(1) A summons for the purposes of this Act may be issued by the
Registrar:
(a) on the application of a party in the proceedings, or
(b) at the direction of the Tribunal.
(2) The fee prescribed by the regulations is payable for the issue of a
summons on the application of a party in the proceedings.
(3) Such a summons must be signed by the Registrar or as otherwise
prescribed by the regulations and may require the person to whom it
is addressed:
(a) to attend and give evidence, or
(b) to attend and produce documents or other things,
or both.
(4) The regulations may make provision for or with respect to excusing,
in prescribed circumstances, a person who produces documents or
other things in answer to a summons from attendance at the Tribunal.
(5) A person who, without lawful excuse, fails to comply with the
requirements of a summons is guilty of an offence.
Maximum penalty: 100 penalty units.
(6) A summons may be served within or outside the State.
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Consumer, Trader and Tenancy Tribunal Bill 2001 Clause 41
Procedure of Tribunal Part 4
41 Witness may be apprehended
(1) If a person who is served with a summons to attend before the
Tribunal fails to comply with the summons, the Chairperson or the
Deputy Chairperson (Determinations) may, on proof of the service of
the summons, issue a warrant for the apprehension of the person.
(2) A warrant issued under subsection (1) authorises the apprehension of
the witness, the bringing of the witness before the Tribunal and the
detention of the witness in custody for that purpose until released by
order of the Chairperson or Deputy Chairperson (Determinations) or
the Supreme Court.
(3) The apprehension of any witness under this section does not relieve the
witness from any liability incurred by reason of non-compliance with
a summons to attend before the Tribunal.
42 Contempt of Tribunal
(1) A person is guilty of contempt of the Tribunal if:
(a) the person fails to attend in obedience to a summons after
having been served with a summons to attend before the
Tribunal as a witness, or
(b) the person fails to produce any document or other thing in the
person's custody or control that the person is required by a
summons to produce after having been served with a summons
to attend before the Tribunal, or
(c) the person refuses to be sworn or to make an affirmation or
refuses or otherwise fails to answer any question that is put to
the person by the Tribunal after being called or examined as a
witness before the Tribunal, or
(d) the person wilfully threatens or insults:
(i) a member, assessor or officer of the Tribunal, or
(ii) any witness or person summoned to attend before the
Tribunal, or
(iii) any person who is a party in the proceedings concerned,
or
(iv) any person who is authorised to appear before the
Tribunal, or
(e) the person misbehaves himself or herself before the Tribunal,
or
(f) the person interrupts the proceedings of the Tribunal, or
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Clause 42 Consumer, Trader and Tenancy Tribunal Bill 2001
Part 4 Procedure of Tribunal
(g) the person obstructs or attempts to obstruct the Tribunal, a
member of the Tribunal or a person acting with the authority of
the Tribunal in the exercise of any lawful function, or
(h) the person publishes, or permits or allows to be published, any
evidence given before the Tribunal or any of the contents of a
document produced at a hearing that the Tribunal has ordered
not to be published, or
(i) the person publishes, or permits or allows to be published, any
evidence given before the Tribunal at a hearing held in private
or any of the contents of a document produced at a hearing held
in private, except to an officer or member of the Tribunal or as
permitted by the Tribunal or by the regulations, or
(j) the person does any other thing that, if the Tribunal were a
court of law having power to commit for contempt, would be
contempt of that court,
unless the person establishes that there was a reasonable excuse for the
act or omission concerned.
(2) Sections 152 and 152A of the Justices Act 1902 apply to and in
respect of contempt of the Tribunal, when constituted by (or by
members that include) the Chairperson or the Deputy Chairperson
(Determinations), in the same way as those sections apply to and in
respect of contempt of a Local Court presided over by a Magistrate.
43 Enforcement of certain Tribunal orders
(1) If the Tribunal makes an order in relation to any proceedings, the
Tribunal may, when the order is made or later, give leave to the person
in whose favour the order is made to renew the proceedings if the
order is not complied with within the period specified by the Tribunal.
(2) If an order has not been complied with within the period specified by
the Tribunal, the person in whose favour the order was made may
renew the proceedings to which the order relates by lodging a notice
with the Tribunal stating that the order has not been complied with.
(3) The provisions of this Act apply to a notice lodged in accordance with
subsection (2) as if the notice were an application made in accordance
with section 24.
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Consumer, Trader and Tenancy Tribunal Bill 2001 Clause 43
Procedure of Tribunal Part 4
(4) When a claim has been renewed in accordance with this section, the
Tribunal:
(a) may make any other appropriate order under this Act as it could
have made when the matter was originally determined, or
(b) may refuse to make such an order.
(5) This section does not apply if the operation of an order has been
suspended.
(6) A notice under this section must be in the form prescribed by the
regulations.
44 Protection of practising legal practitioners, witnesses and others
(1) A practising legal practitioner, or any other person appearing before the
Tribunal on behalf of a party in any proceedings, has the same
protection and immunity as a barrister has in appearing for a party in
proceedings in the Supreme Court.
(2) Subject to this Act, a person summoned to attend or appearing before
the Tribunal as a witness has the same protection, and is, in addition
to the penalties provided by this Act, subject to the same liabilities, as
a witness in proceedings in the Supreme Court.
45 Tribunal divided in opinion
(1) If the Tribunal is constituted by more than one member for the
purposes of the determination of any proceedings and the members are
divided in opinion, the opinion of a majority is taken to be the decision
of the Tribunal.
(2) However, a question of law (including the question as to whether a
particular question is a question of law) arising in proceedings
constituted by more than one member is to be decided in accordance
with the opinion of the member presiding at the proceedings.
(3) If, on a matter other than a question of law, opinion is equally divided,
the opinion of the presiding member is taken to be the decision of the
Tribunal.
46 Tribunal may reserve decision
(1) The Tribunal may reserve its decision in relation to any proceedings.
(2) A reserved decision of the Tribunal may be handed down:
(a) by the Tribunal at a subsequent sitting, or
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Clause 46 Consumer, Trader and Tenancy Tribunal Bill 2001
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(b) if the decision of a member is set out in writing and signed by
the member--by being delivered by any member, or
(c) by the Registrar, at a time and place of which the parties in the
proceedings have been given reasonable notice, or
(d) by publication to the parties in a manner approved by the
Chairperson.
47 Power to impose conditions
A power of the Tribunal to make an order or other decision includes
a power to make the order or other decision subject to such conditions
(including exemptions) as the Tribunal specifies when making the
order or other decision, except as may be provided to the contrary by
any other Act.
48 Powers when proceedings settled
(1) The Tribunal may, in any proceedings, make such orders (including an
order dismissing the application that is the subject of the proceedings)
as it thinks fit to give effect to any agreed settlement reached by the
parties in the proceedings if:
(a) the terms of the agreed settlement are in writing, signed by or
on behalf of the parties and lodged with the Tribunal, and
(b) the Tribunal is satisfied that it would have the power to make
a decision in the terms of the agreed settlement or in terms that
are consistent with the terms of the agreed settlement.
(2) The Tribunal may dismiss the application that is the subject of the
proceedings if it is not satisfied that it would have the power to make
a decision in the terms of the agreed settlement or in terms consistent
with the terms of the agreed settlement.
49 Notice of decisions and reasons
(1) The Tribunal must, within the time prescribed by the regulations, give
notice of its decision in a matter that is the subject of proceedings to
the parties in the proceedings. The notice must indicate that any party
may, within 14 days of receiving notice of the decision, request the
Tribunal to provide a statement of reasons for its decision.
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Consumer, Trader and Tenancy Tribunal Bill 2001 Clause 49
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(2) Any party may, within 14 days of receiving notice of the decision,
request the Tribunal, in the manner prescribed by the regulations, to
provide a statement of reasons for its decision. The statement must be
provided within 7 days after the request is made.
(3) The statement may be brief but must:
(a) set out the decision and the reasons for it, and
(b) set out the findings on any material question of fact, and
(c) refer to the evidence or any other material on which the
findings of fact were based.
50 Power to correct decisions of Tribunal
(1) If, after the making of a decision by the Tribunal, the Tribunal is
satisfied that there is an obvious error in the text of a notice of the
decision or a written statement of reasons for the decision, the Tribunal
may direct the Registrar to alter the text of the notice or statement in
accordance with the directions of the Tribunal.
(2) If the text of a notice or statement is so altered, the altered text is taken
to be the notice of the Tribunal's decision or the statement of its
reasons, as the case may be, and notice of the alteration is to be given
to the parties in the proceedings in such manner as the Chairperson
may direct.
(3) Examples of obvious errors in the text of a notice of a decision or a
statement of reasons for a decision are where:
(a) there is an obvious clerical or typographical error in the text of
the notice or statement, or
(b) there is an error arising from an accidental slip or omission, or
(c) there is a defect of form, or
(d) there is an inconsistency between the stated decision and the
stated reasons.
(4) The powers of the Tribunal under this section may be exercised by the
Chairperson or by the member who presided at the proceedings to
which the decision relates.
51 Recovery of amounts ordered to be paid (other than penalties)
(1) For the purposes of the recovery of any amount ordered to be paid by
the Tribunal (including costs, but not including a civil or other
penalty), the amount is to be certified by the Registrar.
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Clause 51 Consumer, Trader and Tenancy Tribunal Bill 2001
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(2) A certificate given under this section must identify the person liable to
pay the certified amount.
(3) A certificate of the Registrar that:
(a) is given under this section, and
(b) is filed in the registry of a court having jurisdiction to give
judgment for a debt of the same amount as the amount stated
in the certificate,
operates as such a judgment.
52 Compliance with order of Tribunal
(1) A person must not wilfully contravene or fail to comply with an order
of the Tribunal made under this or any other Act.
Maximum penalty: 50 penalty units or imprisonment for 12 months,
or both.
(2) Subsection (1) does not apply to or in respect of:
(a) an order for the payment of any money, or
(b) an order under section 52 of the Residential Tenancies
Act 1987,
(c) such classes of orders, or such classes of proceedings, as may
be prescribed by the regulations.
53 Costs
(1) Subject to this section and the regulations, the parties in any
proceedings are to pay their own costs.
(2) The Tribunal may, in accordance with the regulations, award costs in
relation to any proceedings.
(3) If costs are to be awarded by the Tribunal in accordance with
regulations, the Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on the basis set out in Division 6 of
Part 11 of the Legal Profession Act 1987 or on any other basis.
(4) In this section, costs includes the costs of, or incidental to, proceedings.
(5) This section does not apply in relation to proceedings under the Strata
Schemes Management Act 1996 or the Community Land Management
Act 1989.
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Consumer, Trader and Tenancy Tribunal Bill 2001 Clause 54
Alternative dispute resolution Part 5
Conciliation and preliminary measures Division 1
Part 5 Alternative dispute resolution
Division 1 Conciliation and preliminary measures
54 Tribunal to promote conciliation
(1) Before making an order to determine any matter that is the subject of
proceedings, it is the duty of the Tribunal to use its best endeavours to
bring the parties in the proceedings to a settlement that is acceptable to
all the parties.
(2) If such a settlement is reached, the Tribunal must make orders that give
effect to the settlement to the extent permitted by this Act.
(3) Any statement or admission made before the Tribunal or any person
at a meeting or other proceeding held for the purposes of
subsection (1) is not admissible at a hearing of the matter concerned or
in any other legal proceedings.
55 Preliminary conferences
(1) In addition to or in the course of any action taken under section 54, the
Tribunal may, before commencing to hear and determine an
application, confer with, or arrange for a member or the Registrar to
confer with, the parties in the proceedings and make any determination
with respect to the proceedings that is agreed to by the parties.
(2) If proceedings are referred under this section to a member or the
Registrar and the parties agree to the determination of the member or
the Registrar, the determination has effect as a decision of the Tribunal.
(3) If the proceedings are not determined under this section and the matter
proceeds to a hearing:
(a) evidence is not to be given, and statements are not to be made,
concerning any words spoken or acts done at a conference held
in accordance with this section unless the parties otherwise
agree, and
(b) any member who presided over a preliminary conference in
respect of the proceedings is not entitled to be a member of the
Tribunal determining the proceedings if any party in the
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Clause 55 Consumer, Trader and Tenancy Tribunal Bill 2001
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Division 1 Conciliation and preliminary measures
preliminary conference objects, in the manner and form
prescribed by the regulations, to the member's participation in
the proceedings.
(4) The Chairperson may direct that a preliminary conference is to be held
under this section in the case of any applications made to the Tribunal
of a kind specified in the direction.
Division 2 Mediation and neutral evaluation
56 Definitions
In this Division:
mediation session means a meeting arranged for the mediation of a
matter under this Division.
mediator means a person to whom the Tribunal refers a matter for
mediation under this Division.
neutral evaluation session means a meeting arranged for the neutral
evaluation of a matter under this Division.
neutral evaluator means a person to whom the Tribunal refers a
matter for neutral evaluation under this Division.
57 Meaning of "mediation" and "neutral evaluation"
(1) In this Act, mediation means a structured negotiation process in which
the mediator, as a neutral and independent party, assists the parties to
a dispute to achieve their own resolution of the dispute.
(2) In this Act, neutral evaluation means a process of evaluation of a
dispute in which the neutral evaluator seeks to identify and reduce the
issues of fact and law that are in dispute. The neutral evaluator's role
includes assessing the relative strengths and weaknesses of each party's
case and offering an opinion as to the likely outcome of the
proceedings.
58 Appointment of mediators and neutral evaluators
(1) The Chairperson may appoint any person whose name is on the list
compiled under Schedule 5 as a mediator or neutral evaluator for the
purpose of particular proceedings in the Tribunal.
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Consumer, Trader and Tenancy Tribunal Bill 2001 Clause 58
Alternative dispute resolution Part 5
Mediation and neutral evaluation Division 2
(2) Mediators and neutral evaluators have the functions conferred or
imposed on them by or under this or any other Act.
(3) Schedule 5 has effect in respect of a mediator or neutral evaluator
appointed under this section.
59 Referral by Tribunal
(1) The Tribunal may, by order, refer a matter arising in any proceedings
for mediation or neutral evaluation if the Tribunal considers the
circumstances appropriate.
(2) The mediator or neutral evaluator may, but need not be, a person
whose name is on a list compiled under Schedule 5.
60 Costs of mediation and neutral evaluation
(1) The costs of mediation or neutral evaluation, including the costs
payable to the mediator or neutral evaluator, are payable by the
Tribunal, except to the extent that the regulations provide that the
parties in the proceedings are to pay such costs.
(2) Regulations made for the purposes of this section may provide that the
parties are to pay such costs:
(a) in such proportions as they may agree among themselves or,
failing agreement, in such manner as may be ordered by the
Tribunal, or
(b) in any other prescribed manner.
61 Agreements and arrangements arising from mediation or neutral
evaluation sessions
(1) The Tribunal may make orders to give effect to any agreement or
arrangement arising out of a mediation session or neutral evaluation
session if the Tribunal is satisfied that it would have the power to
make a decision in terms of the agreement or arrangement or in terms
that are consistent with the agreement or arrangement.
(2) Nothing in this Division affects the enforceability of any other
agreement or arrangement that may be made, whether or not arising
out of a mediation session or neutral evaluation session, in relation to
the matters the subject of any such session.
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Clause 62 Consumer, Trader and Tenancy Tribunal Bill 2001
Part 5 Alternative dispute resolution
Division 2 Mediation and neutral evaluation
62 Privilege
(1) In this section, mediation session or neutral evaluation session
includes any steps taken in the course of making arrangements for the
session or in the course of the follow-up of a session.
(2) Subject to subsection (3), the same privilege with respect to
defamation as exists with respect to judicial proceedings and a
document produced in judicial proceedings exists with respect to:
(a) a mediation session or neutral evaluation session, or
(b) a document or other material sent to or produced to a mediator
or neutral evaluator, or sent to or produced at the Tribunal or
the office of the Registrar, for the purpose of enabling a
mediation session or neutral evaluation session to be arranged.
(3) The privilege conferred by subsection (2) only extends to a publication
made:
(a) at a mediation session or neutral evaluation session, or
(b) as provided by subsection (2) (b), or
(c) as provided by section 63.
(4) Evidence of any thing said or of any admission made in a mediation
session or neutral evaluation session is not admissible in any
proceedings before any court, tribunal or body.
(5) A document prepared for the purposes of, or in the course of, or as a
result of, a mediation session or neutral evaluation session, or any copy
of such a document, is not admissible in evidence in any proceedings
before any court, tribunal or body.
(6) Subsections (4) and (5) do not apply with respect to any evidence or
document:
(a) if the persons in attendance at, or identified during, the
mediation session or neutral evaluation session and, in the case
of a document, all persons identified in the document, consent
to the admission of the evidence or document, or
(b) in proceedings instituted with respect to any act or omission in
connection with which a disclosure has been made under
section 63 (c).
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Consumer, Trader and Tenancy Tribunal Bill 2001 Clause 63
Alternative dispute resolution Part 5
Mediation and neutral evaluation Division 2
63 Secrecy
A mediator or neutral evaluator may disclose information obtained in
connection with the administration or execution of this Division only
in any one or more of the following circumstances:
(a) with the consent of the person to whom the information relates,
(b) in connection with the administration or execution of this
Division,
(c) if there are reasonable grounds to believe that the disclosure is
necessary to prevent or minimise the danger of injury to any
person or damage to any property,
(d) if the disclosure is reasonably required for the purpose of
referring any party or parties in a mediation session or neutral
evaluation session to any person, agency, organisation or other
body and the disclosure is made with the consent of the parties
in the mediation session or neutral evaluation session for the
purpose of aiding in the resolution of a dispute between those
parties or assisting the parties in any other manner,
(e) in accordance with a requirement imposed by or under a law of
the State (other than a requirement imposed by a subpoena or
other compulsory process) or the Commonwealth.
64 Other measures not precluded
Nothing in this Division prevents:
(a) the parties in any proceedings from agreeing to and arranging
for mediation or neutral evaluation of any matter otherwise than
as referred to in this Division, or
(b) a matter arising in any proceedings from being dealt with under
the provisions of the Community Justice Centres Act 1983.
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Clause 65 Consumer, Trader and Tenancy Tribunal Bill 2001
Part 6 Appeals and rehearings
Part 6 Appeals and rehearings
65 Review by prerogative writ etc generally excluded
(1) Except as provided by this section, a court has no jurisdiction to grant
relief or a remedy by way of:
(a) a judgment or order in the nature of prohibition, mandamus,
certiorari or other relief, or
(b) a declaratory judgment or order, or
(c) an injunction,
in respect of any matter that has been heard and determined (or is to be
heard or determined) by the Tribunal in accordance with this Act or in
respect of any ruling, order or other proceeding relating to such a
matter.
(2) A court is not prevented from granting relief or a remedy of a kind
referred to in subsection (1) in relation to a matter in respect of which
the jurisdiction of the Tribunal to determine the matter was disputed
if the ground on which the relief or remedy is sought is that:
(a) the Tribunal gave an erroneous ruling as to its jurisdiction, or
(b) the Tribunal erred in refusing or failing to give a ruling as to its
jurisdiction when its jurisdiction was disputed.
(3) A court is not prevented from granting relief or a remedy of a kind
referred to in subsection (1) in relation to a matter in respect of which
the Tribunal has made an order if the ground on which the relief or
remedy is sought is that:
(a) the Tribunal had no jurisdiction to make the order, or
(b) in relation to the hearing or determination of the matter, a party
had been denied procedural fairness.
66 Referral of questions of law to Supreme Court
(1) A referral under this section is to be made in accordance with rules of
the Supreme Court.
(2) If, in any proceedings, a question arises with respect to a matter of law,
the Tribunal may decide the question or may refer it to the Supreme
Court for decision.
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Consumer, Trader and Tenancy Tribunal Bill 2001 Clause 66
Appeals and rehearings Part 6
(3) If a question with respect to a matter of law is referred to the Supreme
Court by the Tribunal:
(a) the Tribunal is not to make an order or a decision to which the
question is relevant until the Supreme Court has decided the
question, and
(b) on deciding the question, the Supreme Court is to remit its
decision to the Tribunal, and
(c) the Tribunal is not to proceed in a manner, or make an order or
a decision, that is inconsistent with the decision of the Supreme
Court.
(4) Any costs to the parties in proceedings arising out of the referral of a
question with respect to a matter of law to the Supreme Court are not
payable by the parties but are to be paid as a cost of the administration
of this Act.
(5) For the purposes of this section, a reference to a matter of law includes
a reference to a matter relating to the jurisdiction of the Tribunal.
67 Appeal against decision of Tribunal with respect to matter of law
(1) If, in respect of any proceedings, the Tribunal decides a question with
respect to a matter of law, a party in the proceedings who is dissatisfied
with the decision may, subject to this section, appeal to the Supreme
Court against the decision.
(2) An appeal is to be made in accordance with the rules of the Supreme
Court. The rules of the Supreme Court may provide that an appeal (or
such classes of appeal as may be specified in the rules) may be made
only with the leave of the Court.
(3) After deciding the question the subject of such an appeal, the Supreme
Court may, unless it affirms the decision of the Tribunal on the
question:
(a) make such order in relation to the proceedings in which the
question arose as, in its opinion, should have been made by the
Tribunal, or
(b) remit its decision on the question to the Tribunal and order a
rehearing of the proceedings by the Tribunal.
(4) If such a rehearing is held, the Tribunal is not to proceed in a manner,
or make an order or a decision, that is inconsistent with the decision of
the Supreme Court remitted to the Tribunal.
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Clause 67 Consumer, Trader and Tenancy Tribunal Bill 2001
Part 6 Appeals and rehearings
(5) If a party has appealed to the Supreme Court against a decision of the
Tribunal on a question with respect to a matter of law, either the
Tribunal or the Supreme Court may suspend, until the appeal is
determined, the operation of any order or decision made in respect of
the proceedings.
(6) If the Tribunal suspends the operation of an order or a decision, the
Tribunal or the Supreme Court may terminate the suspension or,
where the Supreme Court has suspended the operation of an order or
a decision, the Supreme Court may terminate the suspension.
(7) If a rehearing is held, fresh evidence, or evidence in addition to or in
substitution for the evidence on which the original decision was made,
may be given on the rehearing.
(8) A reference in this section to a matter of law includes a reference to a
matter relating to the jurisdiction of the Tribunal.
(9) The regulations may exclude the making of an appeal under this
section in such classes or description of cases as may be prescribed.
68 Rehearings by Tribunal
(1) A party in any proceedings that have been heard and determined by the
Tribunal (the completed proceedings) may, in the manner and within
the time prescribed by the regulations, apply to the Chairperson to have
the completed proceedings reheard by the Tribunal.
(2) The grounds on which such an application may be made are that the
applicant may have suffered a substantial injustice because:
(a) the decision of the Tribunal in the completed proceedings was
not fair and equitable, or
(b) the decision of the Tribunal was against the weight of evidence,
or
(c) significant new evidence has arisen (being evidence that was
not reasonably available at the time the completed proceedings
were being heard).
(3) The applicant may request that the rehearing be limited to the matters
specified in the application.
(4) If the applicant is relying on significant new evidence as a ground for
the rehearing, the applicant must establish or otherwise produce the
new evidence in support of the application.
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Consumer, Trader and Tenancy Tribunal Bill 2001 Clause 68
Appeals and rehearings Part 6
(5) The Chairperson is not to grant the application unless:
(a) each other party in the completed proceedings has:
(i) been notified and given a copy of the application, and
(ii) been given an opportunity to respond in writing to the
application within the time prescribed by the
regulations, and
(b) the Chairperson has taken into consideration any such response.
(6) Subsection (5) does not apply in relation to such classes of applications
as may be prescribed by the regulations.
(7) The Chairperson is not to grant the application unless it appears to the
Chairperson that the applicant may have suffered a substantial
injustice.
(8) The Chairperson's decision whether to grant or refuse the application:
(a) may be made without the need for any hearing or meeting, and
(b) is not to be considered to be part of the Tribunal's proceedings,
and
(c) is final and not subject to review of any kind.
(9) If the application is granted, the Chairperson is to determine:
(a) the constitution of the Tribunal in a manner appropriate for the
purposes of the rehearing (having regard to the circumstances
of the case), and
(b) the matters that are to be reheard.
(10) The rehearing is to be dealt with by the Tribunal as a fresh hearing of
the matters to be reheard, but it does not give rise to any further
rehearing under this section.
(11) Subsection (9) does not prevent the Tribunal from dealing with any
matter that arises during the rehearing so long as it is a matter that is
related to the completed proceedings.
(12) If, in relation to any completed proceedings, more than one application
for a rehearing is granted by the Chairperson, all of the matters to be
reheard are to be reheard together.
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Clause 68 Consumer, Trader and Tenancy Tribunal Bill 2001
Part 6 Appeals and rehearings
(13) A person cannot make an application under this section for a rehearing
of completed proceedings if:
(a) the amount claimed or disputed under the completed
proceedings was more than $25,000 (or such other amount as
may be prescribed by the regulations), or
(b) the person is a corporation and the matter relates to a dispute
under the Consumer Credit (New South Wales) Act 1995.
(14) The regulations may exclude the making of an application for a
rehearing under this section in cases of any prescribed class or
description.
69 Original decision to operate unless otherwise ordered
(1) Lodgment of an appeal or application for a rehearing under this Part
does not affect the operation of the decision the subject of the appeal
or application or prevent the taking of action to implement the
decision, except as provided by any other Act or as otherwise ordered
under this section.
(2) An order staying the operation of a decision the subject of an appeal
or application under this Part may be made:
(a) by the Supreme Court in connection with an appeal under
section 67, or
(b) by the Chairperson in connection with an application under
section 68.
Page 38
Consumer, Trader and Tenancy Tribunal Bill 2001 Clause 70
Miscellaneous Part 7
Part 7 Miscellaneous
70 Privileged documents
(1) Nothing in this Act requires the disclosure of a document if the
Tribunal or the Chairperson is satisfied that evidence of the document
could not be given in proceedings before a NSW court within the
meaning of the Evidence Act 1995 by reason of the operation of any
of the following provisions of that Act:
(a) section 9 (Application of common law and equity), but only to
the extent that it preserves any privilege against the adducing of
evidence,
(b) section 10 (Parliamentary privilege preserved),
(c) Part 3.10 (Privileges) of Chapter 3.
(2) In this section:
disclosure of a document includes the following:
(a) the provision of copies of the document,
(b) the granting of access to the document,
(c) the disclosure of the contents of the document.
document includes a part of a document.
71 False or misleading statements
A person must not:
(a) in any proceedings, or
(b) in any application under this Act,
provide any information, or make any statement, to the Tribunal,
Chairperson or Registrar knowing that the information or statement is
false or misleading in a material respect.
Maximum penalty: 50 penalty units or imprisonment for 12 months,
or both.
72 Provision of information by Tribunal
(1) For the purposes of any investigation or disciplinary action that is
being carried out under any legislation administered by the Minister,
the Director-General may request the Tribunal to provide any
information that:
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Clause 72 Consumer, Trader and Tenancy Tribunal Bill 2001
Part 7 Miscellaneous
(a) relates to any such investigation or disciplinary action, and
(b) is within the knowledge or possession of the Tribunal.
(2) The Tribunal must comply with any such request unless the
Chairperson is of the opinion that to do so would compromise
proceedings of the Tribunal.
(3) The Chairperson may, if requested by the Director-General, make
available to the Department of Fair Trading any other information that
is within the knowledge or possession of the Tribunal.
(4) For the purposes of subsection (1), disciplinary action includes any
prosecution or enforcement activity.
73 Improper disclosure of information
A person must not disclose information obtained in exercising a
function under this Act unless the disclosure is made:
(a) with the consent of the person to whom the information relates,
or
(b) in connection with the execution or administration of this Act,
or
(c) for the purpose of any legal proceedings arising out of this Act
or any report of such proceedings, or
(d) with other legal excuse.
Maximum penalty: 50 penalty units or imprisonment for 12 months,
or both.
74 Act to bind Crown
This Act binds the Crown.
75 Seal of Tribunal
The Tribunal is to a have a seal and that seal is to be judicially noticed.
76 Authentication of documents
(1) Every document requiring authentication by the Tribunal is sufficiently
authenticated without the seal of the Tribunal if it is:
(a) signed by any member or the Registrar, or
(b) authenticated in a manner prescribed by the regulations.
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Consumer, Trader and Tenancy Tribunal Bill 2001 Clause 76
Miscellaneous Part 7
(2) Judicial notice is to be taken of the signature of the member concerned
or the Registrar when appearing on a document issued by the
Tribunal.
77 Proof of certain matters not required
In any legal proceedings, no proof is required (unless evidence to the
contrary is given) of:
(a) the constitution of the Tribunal, or
(b) any decision of the Tribunal, or
(c) the appointment of, or the holding of office by, a member.
78 Notices, service and lodgment of documents
(1) For the purposes of this Act, a notice or document may be given to a
person (and a document may be served on a person):
(a) in the case of a natural person--by:
(i) delivering it to the person personally, or
(ii) leaving it at, or by sending it by post to, the residential
or business address, or other address for service, of the
person that was last known to the person giving or
serving the document, or
(b) in the case of a body corporate--by leaving it at, or by sending
it by post to, the head office, a registered office or a principal
office of the body corporate, or
(c) in the case of a Government Department--by leaving it at, or
by sending it by post to, any office of that Department
addressed to the head of the Government Department.
(2) A notice or other document may be served on the Tribunal by leaving
it at, or by sending it by post to (or a document that is required or
permitted to be lodged with the Tribunal may be lodged at):
(a) the office of the Registrar, or
(b) if the Registrar has more than one office, any one of those
offices.
(3) Nothing in this section affects the operation of any provision of any
law or the rules of a court authorising a document to be served in a
manner not provided for by this section.
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Clause 78 Consumer, Trader and Tenancy Tribunal Bill 2001
Part 7 Miscellaneous
(4) The regulations may:
(a) provide for additional means of serving, giving or lodging any
notice or document, and
(b) provide that a notice or document of a class specified by the
regulations be served, given or lodged only in the prescribed
manner.
79 Return of documents after proceedings concluded
The Chairperson may cause a document or any other object provided
to the Tribunal for the purposes of any proceedings to be returned to
the person by whom it was provided if:
(a) the proceedings have concluded, and
(b) the time within which an appeal from the decision of the
Tribunal in the proceedings may be lodged (or the period of an
extension of time for lodging the appeal) has expired with no
appeal being lodged.
80 Allowances and expenses of witnesses
(1) A person who is required to appear or give evidence before the
Tribunal is entitled to be paid such allowances and expenses as are
ascertained in accordance with a scale of allowances and expenses
prescribed by the regulations.
(2) Subject to subsection (3), the allowances and expenses are to be paid
by the party at whose request a witness is summoned.
(3) The Tribunal may order that the allowances and expenses of a witness
referred to in subsection (2) be paid wholly or partly by the State out
of money otherwise lawfully available.
81 Extensions of time
(1) Despite any other provision of this or any other Act, the Tribunal may,
of its own motion or on application by any person, extend the period
of time for the doing of anything under any Act in respect of which the
Tribunal has jurisdiction.
(2) Such an application may be made even though the relevant period of
time has expired.
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Consumer, Trader and Tenancy Tribunal Bill 2001 Clause 82
Miscellaneous Part 7
82 Proceedings for offences
(1) Proceedings for an offence under this Act or the regulations are to be
disposed of summarily before a Local Court constituted by a
Magistrate sitting alone.
(2) Proceedings for an offence under this Act or the regulations may be
brought within the period of 12 months of the date on which the
offence is alleged to have been committed.
83 Protection from personal liability
Any thing done or omitted to be done by a member, the Registrar or
a Deputy Registrar in exercising the functions conferred or imposed on
the member, Registrar or Deputy Registrar by or under this or any
other Act does not, if the thing was done or omitted to be done in good
faith, subject the member, Registrar or Deputy Registrar personally to
any action, liability, claim or demand.
84 Annual report
(1) As soon as practicable after 30 June (but on or before 31 December)
in each year, the Chairperson must provide the Minister with a report
on the operations of the Tribunal for the period ending on 30 June in
that year.
(2) The Minister is to lay the report, or cause it to be laid, before both
Houses of Parliament as soon as practicable after receiving the report.
85 Chairperson may furnish reports
The Chairperson may, on behalf of the Tribunal, provide reports to the
Minister or to the Director-General concerning any matter the
Chairperson considers:
(a) to be of importance in relation to the administration of this Act
or in relation to the jurisdiction of the Tribunal or any matter
falling within its jurisdiction, or
(b) to be in the public interest.
86 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for
or with respect to any matter that by this Act is required or permitted
to be prescribed or that is necessary or convenient to be prescribed for
carrying out or giving effect to this Act.
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Clause 86 Consumer, Trader and Tenancy Tribunal Bill 2001
Part 7 Miscellaneous
(2) Without limiting the generality of subsection (1), the regulations may
make provision for or with respect to the following:
(a) the initiation, lapsing and withdrawal of proceedings,
(b) the means for, and the practice and procedure to be followed in,
the enforcement and execution of decisions of the Tribunal,
(c) the joinder, by the Tribunal or by a party in any proceedings, of
other parties,
(d) the circumstances in which proceedings may be heard ex parte
or in which default judgments may be obtained,
(e) the representation of parties in proceedings,
(f) the awarding of costs by the Tribunal in relation to
proceedings,
(g) any other matter relating to proceedings,
(h) the payment of interest on money adjudged by the Tribunal to
be payable and which remains unpaid,
(i) the functions of the Registrar or other officers under this Act,
including functions in relation to proceedings,
(j) records of the Tribunal and proceedings,
(k) mediation and neutral evaluation,
(l) the provision by the Tribunal of statistical information and of
services,
(m) the form of any summons or warrant under this Act,
(n) the fees payable in respect of an application to the Tribunal
(including the waiver or refund of any such fees).
(3) The regulations may create offences punishable by a penalty not
exceeding 10 penalty units.
87 Forms
The Minister may approve the form of any document to be used for the
purposes of this Act or the regulations and that is not otherwise
required or permitted to be prescribed under this Act.
Page 44
Consumer, Trader and Tenancy Tribunal Bill 2001 Clause 88
Miscellaneous Part 7
88 Repeal of legislation
The following Acts and Regulations are repealed:
(a) the Fair Trading Tribunal Act 1998,
(b) the Residential Tribunal Act 1998,
(c) the Fair Trading Tribunal Regulation 1999,
(d) the Residential Tribunal Regulation 1999.
89 Savings, transitional and other provisions
Schedule 6 has effect.
90 Amendment of Acts
Each Act specified in Schedule 7 is amended as set out in that
Schedule.
91 Review of Act
(1) The Minister is to review this Act to determine whether the policy
objectives of the Act remain valid and whether the terms of the Act
remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of
3 years from the commencement of section 5.
(3) A report on the outcome of the review is to be tabled in each House of
Parliament within 12 months after the end of the period of 3 years.
Page 45
Consumer, Trader and Tenancy Tribunal Bill 2001
Schedule 1 Divisions of the Tribunal
Schedule 1 Divisions of the Tribunal
(Sections 4 (1) and 10)
1 Divisions
The Tribunal comprises the following Divisions:
(a) the General Division, in which the Tribunal's jurisdiction is to
be exercised in respect of:
(i) consumer claims under the Consumer Claims Act 1998
(other than consumer claims that relate to motor
vehicles or to matters arising under section 42A of the
Property, Stock and Business Agents Act 1941), and
(ii) except as provided by paragraphs (b)(h), all other
matters in respect of which the Tribunal has jurisdiction,
(b) the Commercial Division, in which the Tribunal's jurisdiction
is to be exercised in respect of matters arising under the
following Acts:
(i) the Consumer Credit Administration Act 1995,
(ii) the Consumer Credit (New South Wales) Act 1995,
(iii) the Credit Act 1984,
(iv) the Credit (Finance Brokers) Act 1984,
(v) the Credit (Home Finance Contracts) Act 1984,
(vi) the Travel Agents Act 1986,
and in respect of consumer claims under the Consumer Claims
Act 1998 that relate to matters arising under section 42A of the
Property, Stock and Business Agents Act 1941,
(c) the Home Building Division, in which the Tribunal's
jurisdiction is to be exercised in respect of any matter arising
under the Home Building Act 1989,
(d) the Motor Vehicles Division, in which the Tribunal's
jurisdiction is to be exercised in respect of consumer claims
under the Consumer Claims Act 1998 that relate to motor
vehicles,
(e) the Residential Parks Division, in which the Tribunal's
jurisdiction is to be exercised in respect of any matter arising
under:
(i) the Residential Parks Act 1998, and
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Consumer, Trader and Tenancy Tribunal Bill 2001
Divisions of the Tribunal Schedule 1
(ii) the Landlord and Tenant (Rental Bonds) Act 1977 that
relates to a residential park,
(f) the Retirement Villages Division, in which the Tribunal's
jurisdiction is to be exercised in respect of any matter arising
under the Retirement Villages Act 1999,
(g) the Strata and Community Schemes Division,in which the
Tribunal's jurisdiction is to be exercised in respect of matters
arising under:
(i) the Community Land Management Act 1989, and
(ii) the Strata Schemes Management Act 1996,
(h) the Tenancy Division, in which the Tribunal's jurisdiction is to
be exercised in respect of matters arising under:
(i) the Residential Tenancies Act 1987, and
(ii) the Landlord and Tenant (Rental Bonds) Act 1977
(other than matters that relate to residential parks).
2 Other provisions
(1) An Act conferring jurisdiction on the Tribunal may provide for that
jurisdiction to be exercised in any specified Division.
(2) In case of doubt, the proper Division for dealing with any matter may
be determined by the Registrar.
(3) Matters may be transferred between Divisions in accordance with
directions of the Tribunal.
Page 47
Consumer, Trader and Tenancy Tribunal Bill 2001
Schedule 2 Provisions relating to members
Schedule 2 Provisions relating to members
(Section 6 (2))
1 Definitions
In this Schedule:
judicial office means the office of:
(a) Magistrate, or
(b) Judge of the District Court, or
(c) judicial member of the Industrial Relations Commission, or
(d) Judge of the Land and Environment Court, or
(e) Judge of the Supreme Court.
member does not (except in clause 10) include the Deputy
Chairperson (Registry and Administration).
2 Terms of appointment
(1) Subject to this Act, a member holds office for such period as is
specified in the instrument of the member's appointment.
(2) The term of an appointment must not exceed 5 years.
(3) A member is eligible for re-appointment.
3 Full-time member may serve on part-time basis
(1) The Governor may, at the request of a member appointed on a
full-time basis, determine that the person may work on a part-time
basis for a specified period or periods.
(2) A person appointed on a full-time basis who was not, at the time of
appointment, the holder of a judicial office must devote the whole of
his or her time to the duties of the office of member, except during any
period referred to in subclause (1).
(3) Despite subclause (2), a member may:
(a) hold, and exercise the functions of, a judicial office or another
statutory or other public office, or
(b) engage in any other employment,
with the consent of the Chairperson.
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Consumer, Trader and Tenancy Tribunal Bill 2001
Provisions relating to members Schedule 2
4 Remuneration
(1) A member appointed on a full-time basis is, while working on a
full-time basis, entitled to be paid:
(a) remuneration in accordance with the Statutory and Other
Offices Remuneration Act 1975, and
(b) such travelling and subsistence allowances as the Minister may
from time to time determine in respect of the member.
(2) A member appointed on a part-time basis or working on a part-time
basis is entitled to be paid:
(a) such remuneration as is determined by the Minister, and
(b) such travelling and subsistence allowances as the Minister may
from time to time determine in respect of the member.
(3) A member who is the holder of a judicial office is not, while receiving
remuneration as such an officer, entitled to remuneration under this
Act.
5 Provisions where judicial officer is holding office as Chairperson,
Deputy Chairperson (Determinations) or senior member
(1) The appointment of a person who is the holder of a judicial office as
the Chairperson, Deputy Chairperson (Determinations) or senior
member, or service by a person who is the holder of a judicial office
as Chairperson, Deputy Chairperson (Determinations) or senior
member, does not affect:
(a) the person's tenure of that judicial office, or
(b) the person's rank, title, status, remuneration or other rights or
privileges as the holder of that judicial office.
(2) The person's service as Chairperson, Deputy Chairperson
(Determinations) or senior member is, for all purposes, taken to be
service as the holder of that judicial office.
6 Chairperson holding office on another tribunal
(1) Nothing in any Act or other law operates to disqualify:
(a) a state tribunal member from also being appointed and holding
office as Chairperson of the Tribunal, or
(b) the Chairperson of the Tribunal from also being appointed and
holding office as a state tribunal member.
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Consumer, Trader and Tenancy Tribunal Bill 2001
Schedule 2 Provisions relating to members
(2) However, if the Chairperson of the Tribunal is appointed to or holds
office as a state tribunal member, the latter office is taken to be a
part-time office only despite any provision made by or under any Act
or other law:
(a) requiring the holder of the office to devote the whole of his or
her time to the duties of that office, or
(b) prohibiting the person from engaging in employment outside
the duties of that office.
(3) If the Chairperson of the Tribunal also holds office as a state tribunal
member, the Chairperson is not entitled to any remuneration payable
in respect of that office by or under any Act. However, nothing in this
clause affects any other right of the Chairperson to remuneration that
is conferred or recognised by this Act.
(4) In this clause, state tribunal member means a member of any tribunal
(other than the Tribunal) established by an Act of the Parliament of
New South Wales.
7 Vacancy in office
(1) The office of a member becomes vacant if the member:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to the
Minister, or
(d) retires on medical grounds, or
(e) is nominated for election as a member of the Legislative
Council or of the Legislative Assembly or as a member of a
House of Parliament or a legislature of another State or
Territory or of the Commonwealth, or
(f) becomes bankrupt, applies to take the benefit of any law for the
relief of bankrupt or insolvent debtors, compounds with his or
her creditors or makes an assignment of his or her remuneration
for their benefit, or
(g) is unavailable for duty as a member for a period of 28
consecutive days except on leave granted, in the case of the
Chairperson, by the Minister, or in the case of any other
member, by the Chairperson, or
(h) becomes a mentally incapacitated person, or
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Consumer, Trader and Tenancy Tribunal Bill 2001
Provisions relating to members Schedule 2
(i) is convicted in New South Wales of an offence that is
punishable by imprisonment for 12 months or more or is
convicted elsewhere than in New South Wales of an offence
that, if committed in New South Wales, would be an offence so
punishable, or
(j) is removed from office under this clause.
(2) The Governor may remove a member from office:
(a) for incapacity, incompetence or misbehaviour, or
(b) if the member fails to enter into a performance agreement (as
referred to in clause 1 of Schedule 3), or
(c) if the member commits a serious or continuing breach of the
member's performance agreement or a direction under
clause 1 (5) of Schedule 3 in relation to the agreement, or
(d) if the member commits a serious or continuing breach of his or
her obligations to comply with a code of conduct (as referred to
in clause 1 (4) of Schedule 3) or a direction under clause 1 (5)
of that Schedule in relation to the code, or
(e) if the Minister is satisfied, following a recommendation by the
Peer Review Panel (as referred to in clause 2 of Schedule 3),
that the member should not continue to hold office as a
member.
8 Acting Chairperson
(1) The Minister may appoint the Deputy Chairperson (Determinations) or
a senior member to be Acting Chairperson during the absence from
duty of the Chairperson.
(2) The Minister may make any appointment for a particular absence or
for any absence that occurs from time to time.
(3) An Acting Chairperson has the functions of the Chairperson and
anything done by an Acting Chairperson in the exercise of those
functions has effect as if it had been done by the Chairperson.
(4) In this clause, absence from duty includes a vacancy in the office of
Chairperson.
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Consumer, Trader and Tenancy Tribunal Bill 2001
Schedule 2 Provisions relating to members
9 Appointment of acting Deputy Chairperson (Determinations) or acting
senior member for a period
(1) The Minister may appoint, as an acting Deputy Chairperson
(Determinations) or acting senior member of the Tribunal, a person
qualified for appointment as such if satisfied that the appointment is
necessary to enable the Tribunal to exercise its functions effectively
during the period of the appointment.
(2) The person's appointment is for the period (not exceeding 12 months)
specified in the instrument of appointment.
(3) An acting Deputy Chairperson (Determinations) or acting senior
member has the functions of, and is taken to be, Deputy Chairperson
(Determinations) or senior member, as the case may be, subject to any
conditions or limitations specified in the instrument of appointment.
10 Seniority
(1) The members have seniority according to the following order of
precedence:
(a) the Chairperson,
(b) the Deputy Chairperson (Registry and Administration) and the
Deputy Chairperson (Determinations) who are equal in
seniority,
(c) senior members according to the days on which their
appointments took effect or, if the appointments of 2 or more
of them took effect on the same day, according to the
precedence assigned to them by their instruments of
appointment,
(d) other members according to the days on which their
appointments took effect.
(2) If a person is re-appointed under this Act, the person's seniority is to
be determined as if there had been no break in the person's service.
11 Leave
(1) The entitlement of a member to annual and other leave is to be as
stated in the instrument of the member's appointment.
(2) A member may be granted leave:
(a) in the case of the Chairperson--by the Minister, and
(b) in any other case--by the Chairperson.
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Consumer, Trader and Tenancy Tribunal Bill 2001
Provisions relating to members Schedule 2
12 Superannuation and leave--preservation of rights
(1) In this clause:
eligible member means a member of the Tribunal who, immediately
before holding that office, was:
(a) a public servant, or
(b) an officer or employee of a public authority declared by an Act
or proclamation to be an authority to which this clause applies.
superannuation scheme means a scheme, fund or arrangement under
which any superannuation or retirement benefits are provided and
which is established by or under an Act.
(2) An eligible member:
(a) may continue to contribute to any superannuation scheme to
which he or she was a contributor immediately before
becoming an eligible member, and
(b) is entitled to receive any payment, pension or gratuity accrued
or accruing under the scheme,
as if he or she had continued to be such a contributor during service as
a member of the Tribunal.
(3) Service by the eligible member as a member of the Tribunal is taken
to be service as an officer in his or her previous employment for the
purposes of any law under which the member continues to contribute
to the scheme or by which an entitlement under the scheme is
conferred.
(4) The eligible member is to be regarded as an officer or employee, and
the State is to be regarded as the employer, for the purposes of the
scheme.
(5) This clause ceases to apply to the eligible member if he or she
becomes a contributor to another superannuation scheme, but the
eligible member is not prevented from receiving a resignation benefit
from the first superannuation scheme.
(6) An eligible member retains any rights to annual leave, extended or
long service leave and sick leave accrued or accruing in his or her
previous employment.
(7) An eligible member is not entitled to claim, under both this Act and
any other Act, dual benefits of the same kind for the same period of
service.
Page 53
Consumer, Trader and Tenancy Tribunal Bill 2001
Schedule 2 Provisions relating to members
13 Full-time member entitled to re-appointment to former employment in
certain cases
A person who:
(a) ceases to be a full-time member because of the expiration of the
period for which the person was appointed or because of
resignation, and
(b) was, immediately before being appointed as a full-time
member:
(i) a public servant, or
(ii) an officer or employee of a public authority declared by
an Act or proclamation to be an authority to which this
clause applies,
is entitled to be appointed to some position in the Public Service or the
service of that public authority, as the case may be, not lower in
classification and salary than that which the person held immediately
before being appointed as a full-time member.
14 Effect of other Acts
(1) The Public Sector Management Act 1988 (except Part 8) does not
apply to the appointment of a member and the member is not, as a
member, subject to that Act.
(2) If by or under any Act provision is made:
(a) requiring a person who is the holder of a specified office to
devote the whole of his or her time to the duties of that office,
or
(b) prohibiting the person from engaging in employment outside
the duties of that office,
the provision does not operate to disqualify the person from holding
that office and also the office of a part-time member or from accepting
and retaining any remuneration payable to the person under this Act as
a part-time member.
15 Oaths
The Governor may require oaths to be taken by the Chairperson, the
Deputy Chairperson (Determinations) or a senior member of the
Tribunal.
Page 54
Consumer, Trader and Tenancy Tribunal Bill 2001
Performance management and review Schedule 3
Schedule 3 Performance management and review
(Section 9)
1 Members required to enter into and comply with performance
agreements and code of conduct
(1) This clause does not apply to the Deputy Chairperson (Registry and
Administration).
(2) As soon as practicable after being appointed, each member is required
to enter into a performance agreement with:
(a) in the case of a member other than the Chairperson--the
Chairperson, or
(b) in the case of the Chairperson--the Minister.
(3) The performance agreement is to deal with the performance by the
member of the duties of his or her office, and in particular may deal
with the following matters:
(a) participation by the member in a performance appraisal scheme,
(b) the member's accountability for his or her productivity and
performance.
(4) Each member must comply with:
(a) the member's performance agreement, and
(b) the code of conduct established for members by the
Chairperson.
(5) If a member (other than the Chairperson) does not comply with the
member's performance agreement or the code of conduct, the
Chairperson may direct the member to take specified action to
improve his or her duties so that the member will in future comply
with the agreement or code.
2 Peer Review Panel
(1) A Peer Review Panel is established by this Act.
(2) The Panel is to consist of:
(a) the Deputy Chairperson (Registry and Administration), and
(b) the Deputy Chairperson (Determinations), and
(c) one other person appointed by the Minister.
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Consumer, Trader and Tenancy Tribunal Bill 2001
Schedule 3 Performance management and review
(3) The Panel has the following functions:
(a) to review matters relating to the members that are referred to it
by the Chairperson, the Director-General or the Minister, and
(b) to provide advice to the Chairperson, Director-General or
Minister on the matters that are referred to it.
(4) Such matters may include:
(a) any education issues in relation to members, and
(b) any training needs for members, and
(c) the investigation of complaints, and the taking of disciplinary
action, against members.
(5) The Panel may recommend to the Minister that a member who is the
subject of a review by the Panel should, or should not, continue to hold
office as a member.
(6) In any case where the Chairperson or the Deputy Chairperson
(Determinations) is the member who is the subject of a review, the
Minister is to convene a Panel in such manner as the Minister thinks
appropriate.
(7) The Deputy Chairperson (Registry and Administration) cannot be the
subject of a review under this clause.
Page 56
Consumer, Trader and Tenancy Tribunal Bill 2001
Provisions relating to assessors Schedule 4
Schedule 4 Provisions relating to assessors
(Section 15)
1 Appointment of assessors
(1) The Chairperson may appoint persons to be assessors of the Tribunal.
(2) The appointment of a person as an assessor is to be for such period as
is specified in the instrument of appointment.
(3) An assessor is entitled to be paid such remuneration and other
allowances as may be determined by the Minister.
(4) The Chairperson may remove an assessor from office at any time.
2 Lists of persons eligible for appointment as assessors
(1) The Chairperson may compile a list or lists of persons considered by
the Chairperson to be suitable to be appointed as assessors.
(2) Different lists may be compiled for different types of matters or to take
account of any other factors.
(3) A person may be included in a list under this clause only if the person
consents to being included in the list.
(4) The Chairperson may amend or cancel any list compiled under this
clause for any reason that the Chairperson considers appropriate.
(5) The Chairperson is to review at least annually any list compiled under
this clause.
3 Protection from person liability
Any thing done or omitted to be done by an assessor under this Act
does not, if the thing was done or omitted to be done in good faith for
the purposes of this Act, subject the assessor personally to any action,
liability, claim or demand.
4 Effect of certain other Acts
(1) The provisions of the Public Sector Management Act 1988 do not
apply to or in respect of the appointment of an assessor and an assessor
is not, as an assessor, subject to that Act.
Page 57
Consumer, Trader and Tenancy Tribunal Bill 2001
Schedule 4 Provisions relating to assessors
(2) If by or under any Act provision is made:
(a) requiring a person who is the holder of a specified office to
devote the whole of his or her time to the duties of that office,
or
(b) prohibiting a person from engaging in employment outside the
duties of that office,
that provision does not operate to disqualify the person from holding
that office and also from being appointed as an assessor or, subject to
subclause (3), from accepting and retaining any remuneration payable
to the person under this Act as an assessor.
(3) Subclause (2) does not operate to authorise an officer of a court to
accept or retain any remuneration payable to the officer as an assessor.
Page 58
Consumer, Trader and Tenancy Tribunal Bill 2001
Provisions relating to mediators and neutral evaluators Schedule 5
Schedule 5 Provisions relating to mediators and
neutral evaluators
(Section 58)
1 Appointment of mediators and neutral evaluators
(1) The appointment of a person as a mediator or neutral evaluator is to be
for such period as is specified in the instrument of appointment.
(2) A mediator or neutral evaluator is entitled to be paid such
remuneration and other allowances as may be determined by the
Minister.
(3) The Chairperson may remove a mediator or neutral evaluator from
office at any time.
2 Lists of persons eligible for appointment as mediators or neutral
evaluators
(1) The Chairperson may compile a list or lists of persons considered by
the Chairperson to be suitable to be appointed as mediators or neutral
evaluators.
(2) Different lists may be compiled for different types of matters or to take
account of any other factors.
(3) A person may be included in a list under this clause only if the person
consents to being included in the list.
(4) The Chairperson may amend or cancel any list compiled under this
clause for any reason that the Chairperson considers appropriate.
(5) The Chairperson is to review at least annually any list compiled under
this clause.
3 Protection from personal liability
Any thing done or omitted to be done by a mediator or neutral
evaluator does not subject the mediator or neutral evaluator personally
to any action, liability, claim or demand if:
(a) the thing was done or omitted to be done in good faith for the
purposes of a mediation session or neutral evaluation session
under this Act, and
Page 59
Consumer, Trader and Tenancy Tribunal Bill 2001
Schedule 5 Provisions relating to mediators and neutral evaluators
(b) when the subject-matter of the mediation or neutral evaluation
was referred for mediation or neutral evaluation, the mediator's
or neutral evaluator's name was included in a list compiled
under this Schedule.
4 Effect of certain other Acts
(1) The provisions of the Public Sector Management Act 1988 do not
apply to or in respect of the appointment of a mediator or neutral
evaluator and a mediator or neutral evaluator is not, as a mediator or
neutral evaluator, subject to that Act.
(2) If by or under any Act provision is made:
(a) requiring a person who is the holder of a specified office to
devote the whole of his or her time to the duties of that office,
or
(b) prohibiting a person from engaging in employment outside the
duties of that office,
that provision does not operate to disqualify the person from holding
that office and also from being appointed under this Act as a mediator
or neutral evaluator or, subject to subclause (3), from accepting and
retaining any remuneration payable to the person under this Act as a
mediator or neutral evaluator so engaged.
(3) Subclause (2) does not operate to authorise an officer of a court to
accept or retain any remuneration payable to the officer as a mediator
or neutral evaluator.
Page 60
Consumer, Trader and Tenancy Tribunal Bill 2001
Savings, transitional and other provisions Schedule 6
Schedule 6 Savings, transitional and other provisions
(Section 89)
Part 1 Preliminary
1 Regulations
(1) The regulations may contain provisions of a savings or transitional
nature consequent on the enactment of this Act.
(2) Any such provision may, if the regulations so provide, take effect from
the date of assent to this Act or a later date.
(3) To the extent to which any such provision takes effect from a date that
is earlier than the date of its publication in the Gazette, the provision
does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the
State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted to
be done before the date of its publication.
Part 2 Provisions consequent on enactment of this Act
2 Definitions
In this Part:
final closure date means the day occurring 8 months after the relevant
date.
former Tribunal means:
(a) the Fair Trading Tribunal established by the Fair Trading
Tribunal Act 1998, or
(b) the Residential Tribunal established by the Residential Tribunal
Act 1998.
relevant date means the day on which section 5 commences.
Page 61
Consumer, Trader and Tenancy Tribunal Bill 2001
Schedule 6 Savings, transitional and other provisions
3 Phasing-out and abolition of former Tribunals
(1) On and from the relevant date:
(a) no application may be made to bring any matter before a former
Tribunal, and
(b) a former Tribunal continues to exist, and any person holding
office as a member of the former Tribunal concerned
immediately before that date continues to hold office, only for
the purpose of the exercise by that Tribunal of its functions
under clause 6.
(2) A former Tribunal is abolished:
(a) when the last of its members ceases, in accordance with an
order under clause 5, to hold office, or
(b) on the final closure date,
whichever is earlier.
4 Chairpersons of former Tribunals cease to hold office
(1) The person holding office as Chairperson of the Fair Trading Tribunal
or as Chairperson of the Residential Tribunal:
(a) ceases to hold office as the Chairperson of the Tribunal
concerned on the date of assent to this Act, and
(b) is not entitled to any compensation by reason of ceasing to hold
office.
(2) Despite anything in the Fair Trading Tribunal Act 1998 or the
Residential Tribunal Act 1998, the Minister may appoint any person
as the Acting Chairperson of the Fair Trading Tribunal or the
Residential Tribunal (including as the Acting Chairperson of both
those Tribunals at the same time).
5 Members of former Tribunals
(1) The Minister may, by order published in the Gazette, declare that the
member or members of a former Tribunal who are specified in the
order cease to hold office from the date specified in the order. Any
such member of a former Tribunal is not entitled to any compensation
by reason of ceasing to hold office, but is eligible (if otherwise
qualified) to be appointed as a member of the Consumer, Trader and
Tenancy Tribunal.
Page 62
Consumer, Trader and Tenancy Tribunal Bill 2001
Savings, transitional and other provisions Schedule 6
(2) A member of a former Tribunal who is holding office immediately
before the final closure date ceases to hold office on that date. Any
such member is not entitled to any compensation by reason of ceasing
to hold office, but is eligible (if otherwise qualified) to be appointed as
a member of the Consumer, Trader and Tenancy Tribunal.
6 Pending proceedings
(1) Proceedings in a former Tribunal (including any proceedings in a
former Tribunal that are the subject of an appeal to the Supreme Court)
that:
(a) were instituted before the relevant date, and
(b) have not been finally determined before that date,
may be continued and determined as if this Act had not been enacted,
and for that purpose the provisions of any Act that would have applied
to or in respect of the proceedings had this Act not been enacted
continue to apply.
(2) Subclause (1) ceases to have effect on the final closure date.
(3) An order made under any other Act by a former Tribunal, being an
order:
(a) having effect immediately before the relevant date, or
(b) made after that date in order to determine proceedings under
this clause,
is taken to be an order made by the Consumer, Trader and Tenancy
Tribunal under the corresponding provision of this Act and may be
enforced accordingly.
7 Pending proceedings after final closure date
(1) If proceedings were instituted before the relevant date but have not
commenced to be heard by a former Tribunal before the final closure
date, the proceedings are taken to have been duly instituted in the
Consumer, Trader and Tenancy Tribunal.
(2) If a former Tribunal had commenced to hear (but had not finally
determined) a matter before the final closure date, the Consumer,
Trader and Tenancy Tribunal is to continue to hear and determine the
matter.
Page 63
Consumer, Trader and Tenancy Tribunal Bill 2001
Schedule 6 Savings, transitional and other provisions
(3) For the purposes of subclauses (1) and (2):
(a) the Consumer, Trader and Tenancy Tribunal has and may
exercise all the functions that the relevant former Tribunal had
immediately before its abolition, and
(b) the provisions of any Act, statutory rule or other law that would
have applied to or in respect of the proceedings had this Act not
been enacted continue to apply.
(4) For the purposes of proceedings heard under subclause (2), the
Consumer, Trader and Tenancy Tribunal may have regard to any
record of the proceedings before the relevant former Tribunal,
including a record of any evidence taken in the proceedings.
8 Pending applications for rehearings
An application for the rehearing of a matter by a former Tribunal that
was made before the relevant date is, if the application has not been
dealt with by that date, to be dealt with in accordance with this Act as
if the application had been made under this Act.
9 References to former Tribunals
A reference in another Act, in an instrument made under an Act or in
any other document to either of the former Tribunals (including any
reference that is to be read as, or otherwise treated as, a reference to
either of the former Tribunals) to be read as a reference to the
Consumer, Trader and Tenancy Tribunal.
Page 64
Consumer, Trader and Tenancy Tribunal Bill 2001
Amendment of Acts Schedule 7
Schedule 7 Amendment of Acts
(Section 90)
7.1 Community Land Management Act 1989 No 202
[1] Section 3 Definitions
Omit the definition of Tribunal from section 3 (1). Insert instead:
Tribunal means the Consumer, Trader and Tenancy Tribunal
established by the Consumer, Trader and Tenancy Tribunal
Act 2001.
[2] Section 13A How can an association enforce the by-laws?
Omit "Residential" from the note.
[3] Section 75 Service of copy of order
Omit "certified" from section 75 (2).
[4] Section 91A Proceedings before Tribunal
Omit "Residential Tribunal Act 1998" from section 91A (1).
Insert instead "Consumer, Trader and Tenancy Tribunal Act 2001".
7.2 Consumer Claims Act 1998 No 162
[1] Section 3 Definitions
Omit the definition of Tribunal from section 3 (1). Insert instead:
Tribunal means the Consumer, Trader and Tenancy Tribunal
established by the Consumer, Trader and Tenancy Tribunal
Act 2001.
Page 65
Consumer, Trader and Tenancy Tribunal Bill 2001
Schedule 7 Amendment of Acts
[2] Section 14 Limitation on Tribunal's jurisdiction to make orders
Insert after section 14 (2):
(3) Subsections (1) and (2) do not apply in relation to a consumer
claim arising from the supply of a new motor vehicle that is
used substantially for private purposes within the meaning of
the Motor Vehicles Taxation Act 1988.
(4) For the purposes of subsection (3):
new motor vehicle means a motor vehicle that is not a second-
hand motor vehicle within the meaning of the Motor Dealers
Act 1974.
7.3 Consumer Credit Administration Act 1995 No 69
[1] Section 3 Definitions
Omit the definition of Tribunal from section 3 (1). Insert instead:
Tribunal means the Consumer, Trader and Tenancy Tribunal
established by the Consumer, Trader and Tenancy Tribunal
Act 2001.
[2] Section 28 Minister may order inquiry
Omit "section 75 of the Fair Trading Tribunal Act 1998" from section
28 (8).
Insert instead "section 83 of the Consumer, Trader and Tenancy Tribunal
Act 2001".
[3] Sections 28 (9) and 36 (2)
Omit "Fair Trading Tribunal Act 1998" wherever occurring.
Insert instead "Consumer, Trader and Tenancy Tribunal Act 2001".
[4] Section 45 Secrecy
Omit "section 19 of the Fair Trading Tribunal Act 1998 " from section
45 (1) (g).
Insert instead "section 19 of the Consumer, Trader and Tenancy Tribunal
Act 2001".
Page 66
Consumer, Trader and Tenancy Tribunal Bill 2001
Amendment of Acts Schedule 7
7.4 Contracts Review Act 1980 No 16
[1] Section 4 Definitions
Omit "Fair Trading Tribunal" wherever occurring from paragraphs (d) and
(e) of the definition of Court in section 4 (1).
Insert instead "Tribunal".
[2] Section 4 (1), definition of "Fair Trading Tribunal"
Omit the definition. Insert instead in alphabetical order:
Tribunal means the Consumer, Trader and Tenancy Tribunal
established by the Consumer, Trader and Tenancy Tribunal
Act 2001.
7.5 Credit Act 1984 No 94
[1] Section 5 Definitions
Omit the definition of Tribunal from section 5 (1). Insert instead:
Tribunal means the Consumer, Trader and Tenancy Tribunal
established by the Consumer, Trader and Tenancy Tribunal
Act 2001.
[2] Section 86 General order varying civil penalty
Omit "Fair Trading Tribunal Act 1998" from section 86 (5).
Insert instead "Consumer, Trader and Tenancy Tribunal Act 2001".
7.6 Credit (Finance Brokers) Act 1984 No 96
Section 4 Definitions
Omit the definition of Tribunal from section 4 (1). Insert instead:
Tribunal means the Consumer, Trader and Tenancy Tribunal
established by the Consumer, Trader and Tenancy Tribunal
Act 2001.
Page 67
Consumer, Trader and Tenancy Tribunal Bill 2001
Schedule 7 Amendment of Acts
7.7 Credit (Home Finance Contracts) Act 1984 No 97
Section 4 Definitions
Omit the definition of Tribunal. Insert instead:
Tribunal means the Consumer, Trader and Tenancy Tribunal
established by the Consumer, Trader and Tenancy Tribunal
Act 2001.
7.8 Electricity Supply Act 1995 No 94
Section 96A Review of certain decisions under electricity industry
ombudsman scheme
Omit section 96A (4). Insert instead:
(4) This section does not affect the jurisdiction of the Consumer,
Trader and Tenancy Tribunal established by the Consumer,
Trader and Tenancy Tribunal Act 2001.
7.9 Fair Trading Act 1987 No 68
Section 4 Definitions
Omit the definition of Tribunal from section 4 (1). Insert instead:
Tribunal means the Consumer, Trader and Tenancy Tribunal
established by the Consumer, Trader and Tenancy Tribunal
Act 2001.
Page 68
Consumer, Trader and Tenancy Tribunal Bill 2001
Amendment of Acts Schedule 7
7.10 Home Building Act 1989 No 147
[1] Section 3 Definitions
Omit the definition of Tribunal from section 3 (1). Insert instead:
Tribunal means (except in Part 4A) the Consumer, Trader and
Tenancy Tribunal established by the Consumer, Trader and
Tenancy Tribunal Act 2001.
[2] Section 48D Tribunal may attempt to resolve building disputes (as
inserted by Schedule 4 to the Home Building Legislation Amendment
Act 2001)
Omit "Fair Trading Tribunal Act 1998" from section 48D (6).
Insert instead "Consumer, Trader and Tenancy Tribunal Act 2001".
[3] Section 48HA
Insert after section 48H (as inserted by Schedule 4 to the Home Building
Legislation Amendment Act 2001):
48HA Protection from personal liability
Any thing done or omitted to be done by an independent expert
under this Division does not, if the thing was done or omitted
to be done in good faith for the purposes of this Division,
subject the expert personally to any action, liability, claim or
demand.
[4] Section 48K Jurisdiction of Tribunal in relation to building claims (as
inserted by Schedule 4 to the Home Building Legislation Amendment
Act 2001)
Omit "section 22 of the Fair Trading Tribunal Act 1998" from section
48K (9).
Insert instead "section 22 of the Consumer, Trader and Tenancy Tribunal
Act 2001".
Page 69
Consumer, Trader and Tenancy Tribunal Bill 2001
Schedule 7 Amendment of Acts
[5] Section 48L Tribunal to be chiefly responsible for resolving building
claims (as inserted by Schedule 4 to the Home Building Legislation
Amendment Act 2001)
Omit "section 23 of the Fair Trading Tribunal Act 1998" from section
48L (4).
Insert instead "section 23 of the Consumer, Trader and Tenancy Tribunal
Act 2001".
[6] Part 5, heading (as inserted by Schedule 4 to the Home Building
Legislation Amendment Act 2001)
Omit "Fair Trading".
7.11 Landlord and Tenant Act 1899 No 18
Section 3 Recovery of land may be refused in cases of retaliatory
eviction
Omit "Residential Tribunal" wherever occurring.
Insert instead "Consumer, Trader and Tenancy Tribunal".
7.12 Landlord and Tenant (Rental Bonds) Act 1977 No 44
[1] Section 4 Definitions
Omit the definition of Tribunal from section 4 (1). Insert instead:
Tribunal means the Consumer, Trader and Tenancy Tribunal
established by the Consumer, Trader and Tenancy Tribunal
Act 2001.
[2] Section 20 Rental Bond Interest Account
Omit ", the Residential Tribunal Act 1998" wherever occurring from section
20 (2A).
Page 70
Consumer, Trader and Tenancy Tribunal Bill 2001
Amendment of Acts Schedule 7
[3] Section 20 (2AB)
Insert after section 20 (2A):
(2AB) There is payable from the Rental Bond Interest Account such
amounts, as are agreed annually by the Minister, the Minister
administering the Property, Stock and Business Agents
Act 1941 and the Minister administering the Consumer, Trader
and Tenancy Tribunal Act 2001, for the payment of half the
costs and expenses incurred (in the year ending 30 June next
succeeding the year in which such an agreement is made) in the
administration of the Consumer, Trader and Tenancy Tribunal
Act 2001, but only to the extent to which those costs and
expenses relate to the exercise of the Tribunal's jurisdiction in
relation to matters arising under the following Acts:
(a) the Community Land Management Act 1989,
(b) the Residential Parks Act 1998,
(c) the Residential Tenancies Act 1987,
(d) the Retirement Villages Act 1999,
(e) the Strata Schemes Management Act 1996.
[4] Section 20 (2B)
Omit the subsection. Insert instead:
(2B) Despite subsections (2A) and (2AB), there is payable from the
Rental Bond Interest Account for the purposes set out in those
subsections such additional amounts as the Ministers referred
to in those subsections may at any time agree.
7.13 Motor Dealers Act 1974 No 52
Section 4 Definitions
Omit the definition of Tribunal from section 4 (1). Insert instead:
Tribunal means the Consumer, Trader and Tenancy Tribunal
established by the Consumer, Trader and Tenancy Tribunal
Act 2001.
Page 71
Consumer, Trader and Tenancy Tribunal Bill 2001
Schedule 7 Amendment of Acts
7.14 Motor Vehicle Repairs Act 1980 No 71
Section 4 Definitions
Omit the definition of Tribunal from section 4 (1). Insert instead:
Tribunal means the Consumer, Trader and Tenancy Tribunal
established by the Consumer, Trader and Tenancy Tribunal
Act 2001.
7.15 Property, Stock and Business Agents Act 1941 No 28
[1] Section 3 Definitions
Omit the definition of Tribunal from section 3 (1). Insert instead:
Tribunal means the Consumer, Trader and Tenancy Tribunal
established by the Consumer, Trader and Tenancy Tribunal
Act 2001.
[2] Section 63E Application of money for purposes of certain Acts
Omit ", the Residential Tribunal Act 1998" wherever occurring from
section 63E (1).
[3] Section 63E (1A)
Insert after section 63E (1):
(1A) In addition to the purposes set out in section 63D, such
contributions from the Statutory Interest Account as are agreed
annually by the Minister, the Minister administering the
Landlord and Tenant (Rental Bonds) Act 1977 and the
Minister administering the Consumer, Trader and Tenancy
Tribunal Act 2001 are to be paid for half the costs and
expenses incurred (in the year ending 30 June next succeeding
the year in which such an agreement is made) in the
administration of the Consumer, Trader and Tenancy Tribunal
Act 2001, but only to the extent to which those costs and
expenses relate to the exercise of the Tribunal's jurisdiction in
relation to matters arising under the following Acts:
Page 72
Consumer, Trader and Tenancy Tribunal Bill 2001
Amendment of Acts Schedule 7
(a) the Community Land Management Act 1989,
(b) the Residential Parks Act 1998,
(c) the Residential Tenancies Act 1987,
(d) the Retirement Villages Act 1999,
(e) the Strata Schemes Management Act 1996.
[4] Section 63E (2)
Omit the subsection. Insert instead:
(2) Despite subsections (1) and (1A), there is payable from the
Statutory Interest Account for the purposes set out in those
subsections such additional contributions as the Ministers
referred to in those subsections may at any time agree.
7.16 Residential Parks Act 1998 No 142
[1] Section 3 Definitions
Omit the definition of Tribunal from section 3 (1). Insert instead:
Tribunal means the Consumer, Trader and Tenancy Tribunal
established by the Consumer, Trader and Tenancy Tribunal
Act 2001.
[2] Section 91 Tribunal may refer certain matters for alternative dispute
resolution
Omit "Residential Tribunal Act 1998" from section 91 (4).
Insert instead "Consumer, Trader and Tenancy Tribunal Act 2001".
7.17 Residential Tenancies Act 1987 No 26
[1] Long title
Omit "Residential Tribunal".
Insert instead "Consumer, Trader and Tenancy Tribunal".
Page 73
Consumer, Trader and Tenancy Tribunal Bill 2001
Schedule 7 Amendment of Acts
[2] Section 3 Definitions
Omit the definition of Tribunal from section 3 (1). Insert instead:
Tribunal means the Consumer, Trader and Tenancy Tribunal
established by the Consumer, Trader and Tenancy Tribunal
Act 2001.
7.18 Retirement Villages Act 1999 No 81
[1] Section 4 Definitions
Omit the definition of Fair Trading Tribunal from section 4 (1).
[2] Section 4 (1), definition of "Tribunal"
Omit the definition. Insert instead:
Tribunal means the Consumer, Trader and Tenancy Tribunal
established by the Consumer, Trader and Tenancy Tribunal
Act 2001.
[3] Part 8, Division 2
Omit "Residential" from the note immediately following the heading to the
Division.
[4] Section 122 Disputes between operator and resident
Omit "Residential" from the note to section 122 (1).
[5] Section 123 Jurisdiction of Tribunal
Omit "Fair Trading" wherever occurring.
[6] Section 124 Compliance with orders of Fair Trading Tribunal
Omit the section.
Page 74
Consumer, Trader and Tenancy Tribunal Bill 2001
Amendment of Acts Schedule 7
[7] Section 125 Informal resolution of disputes
Omit the note to the section. Insert instead:
Note. Part 5 (Alternative dispute resolution) of the Consumer, Trader and
Tenancy Tribunal Act 2001 provides for conciliation and mediation.
Section 54 of that Act requires the Consumer, Trader and Tenancy
Tribunal, before making an order to determine a matter, to use its best
endeavours to bring the parties to a settlement that is acceptable to all the
parties.
[8] Part 8, Division 3, heading
Omit "Residential". Insert instead "Consumer, Trader and Tenancy".
[9] Section 126 Jurisdiction
Omit the note.
[10] Section 128 Order of Tribunal
Omit section 128 (1) (i) and (j).
[11] Section 188 Definition
Omit paragraph (b) of the definition of judicial body.
7.19 Statutory and Other Offices Remuneration Act 1975 (1976 No 4)
Schedule 2 Public Offices
Omit the following from Part 1:
Chairperson of the Residential Tenancies Tribunal (not being
the holder of a judicial office) appointed on a full-time basis
and working on a full-time basis
Member of the Residential Tenancies Tribunal (not being the
holder of a judicial office) appointed on a full-time basis and
working on a full-time basis
Chairperson of the Fair Trading Tribunal (not being a judicial
officer) appointed on a full-time basis and working on a
full-time basis
Page 75
Consumer, Trader and Tenancy Tribunal Bill 2001
Schedule 7 Amendment of Acts
Member of the Fair Trading Tribunal (not being a judicial
officer) appointed on a full-time basis and working on a
full-time basis
Insert instead at the end of Part 1:
Chairperson of the Consumer, Trader and Tenancy Tribunal
appointed on a full-time basis and working on a full-time basis
Member of the Consumer, Trader and Tenancy Tribunal (other
than the Deputy Chairperson (Registry and Administration))
appointed on a full-time basis and working on a full-time basis
7.20 Strata Schemes Management Act 1996 No 138
[1] Section 174 Copy of order to be served
Omit "certified by the Registrar to be a true copy" from section 174 (1).
Insert instead "of an Adjudicator under this Part".
[2] Section 195 Copy of order to be served
Omit "the order certified by the Registrar to be a true copy" from section
195 (2).
Insert instead "any such order".
[3] Section 210 Time at which order takes effect
Omit ", certified by the Registrar to be a true copy," from section 210 (1).
[4] Section 222 Proceedings before Tribunal
Omit "Residential Tribunal Act 1998" from section 222 (1).
Insert instead "Consumer, Trader and Tenancy Tribunal Act 2001".
[5] Section 222 (2)
Omit "(a)".
Page 76
Consumer, Trader and Tenancy Tribunal Bill 2001
Amendment of Acts Schedule 7
[6] Dictionary
Omit the definition of Tribunal. Insert instead:
Tribunal means the Consumer, Trader and Tenancy Tribunal
established by the Consumer, Trader and Tenancy Tribunal
Act 2001.
[7] The whole Act (except Schedule 4 and the Dictionary)
Omit "Residential Tribunal" wherever occurring.
Insert instead "Tribunal".
7.21 Sydney Water Act 1994 No 88
Section 58 Consumer claims
Omit "Fair Trading Tribunal constituted".
Insert instead "Consumer, Trader and Tenancy Tribunal as conferred".
7.22 Travel Agents Act 1986 No 5
[1] Section 54 Secrecy
Omit "section 19 of the Fair Trading Tribunal Act 1998" from section 54
(1) (g).
Insert instead "section 19 of the Consumer, Trader and Tenancy Tribunal
Act 2001".
[2] Section 54 (2)
Omit "Fair Trading Tribunal Act 1998".
Insert instead "Consumer, Trader and Tenancy Tribunal Act 2001".
Page 77
Consumer, Trader and Tenancy Tribunal Bill 2001
Schedule 7 Amendment of Acts
[3] Section 57 Regulations
Omit "Fair Trading Tribunal established by the Fair Trading Tribunal
Act 1998" from section 57 (2) (d).
Insert instead "Consumer, Trader and Tenancy Tribunal established by the
Consumer, Trader and Tenancy Tribunal Act 2001".
Page 78
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