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1
Commercial and Consumer Tribunal Bill 2003
COMMERCIAL AND CONSUMER
TRIBUNAL BILL 2003
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
The objective of the Commercial and Consumer Tribunal Bill 2003 (the
Bill) is to:
· establish a tribunal to deal with the matters it is empowered to
deal with under an empowering Act; and
· have the tribunal deal with matters in a way that is just, fair,
informal, cost efficient and speedy.
To achieve these objectives, the Bill establishes the Commercial and
Consumer Tribunal (the CCT). The CCT amalgamates the following
tribunals:
· Queensland Building Tribunal (QBT);
· Retirement Villages Tribunal (RVT);
· Property Agents and Motor Dealers Tribunal (PAMDT); and
· Liquor Appeals Tribunal (LAT).
The CCT will also deal with matters from a number of new and
emerging jurisdictions, such as architects, engineers, plumber and drainers,
building certifiers and residential services accreditation. The focus of the
CCT will be on resolving disputes, reviewing decisions of agencies and
conducting disciplinary proceedings. The CCT prescribes the processes for
how the CCT, its members and registry will operate. Other Acts, known as
empowering Acts, will prescribe the types of matters to be dealt with, and
orders to be made, by the CCT.
The objectives of the Bill are further met by basing the CCT on the key
principles of natural justice, fairness, accessibility, independence and
transparency, with a commitment to speedy processes, informality (through
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Commercial and Consumer Tribunal Bill 2003
self-representation) and early dispute resolution methods such as
mediation.
Reasons for the Legislation
The Department of Tourism, Racing and Fair Trading (DTRFT) has
reviewed the operations of tribunals in its portfolio with a view to
achieving cost savings, efficiency gains and service delivery improvements
for clients. As a result of the review, in 2001 the Government approved the
following three-phase reform:
· Phase 1: shared tribunal accommodation and registry services;
· Phase 2: the development of legislation that would see the
consolidation of the roles of Chairperson of three tribunals into
one; creation of the role of presiding case manager, a quasi-
judicial role designed to handle directions-type hearings; and
other administrative improvements to tribunal processes; and
· Phase 3: the establishment of an amalgamated tribunal to broadly
consider matters relating to consumers and commercial interests.
Phase 1 has been finalised. Phase 2 was finalised with the passing by the
Legislative Assembly of the Tribunals Provisions Amendment Act 2002 (the
2002 Act) in September 2002. The Bill represents the finalisation of Phase
3.
How objectives are to be met by the proposed legislation
The objectives will be met through the proposed legislation, which is
based on a number of key principles that will underpin the operation of the
CCT, namely:
· Natural justice provisions are made in the Bill which contribute
to a process of natural justice for the CCT. For example, parties
are given a chance to lodge a defence; to extend time limits for
compliance with procedures; and to seek to have sensitive
information about themselves suppressed, in the event that
publication of that information be likely to cause them harm or
disadvantage;
· Fairness provisions are made in the Bill that parties will,
depending on the nature of the matter, have an opportunity to
"have their say" and to call witnesses and make submissions;
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Commercial and Consumer Tribunal Bill 2003
· Speediness provisions are made in the Bill for expedited
hearings and hearings on papers only, both of which contribute to
speedy processes;
· Transparency provisions are made in the Bill that the CCT is
not subject to direction or control, except as specifically provided
in the Bill. Also, provisions are made that the CCT's decisions
must be published, unless there are compelling reasons for not
doing so;
· Emphasis on self-representation provisions are made in the Bill
for parties to represent themselves, thus ensuring the CCT
maintains informality. However, in light of the fact that some
matters involve complex or financially-involved issues, provision
is also made for the tribunal to consider applications for legal and
non-legal representation;
· Emphasis on alternative dispute resolution provisions are made
in the Bill for the tribunal to use mediation as a means to resolve
disputes. Current tribunals already make regular use of
mediation, and this is expected to continue under the CCT.
Successful mediation saves time and money for the parties as
well as the expense to government, and therefore the community,
of conducting a hearing before a member. Detailed provisions on
how mediation is to be conducted are also provided for, including
provisions establishing the confidentiality of a mediation
conference;
· Retention of member expertise provisions are made in the Bill
to retain member expertise through the ability of the Chairperson
to establish sitting lists, on which members can build up a
knowledge base before possibility cross-sitting on lists and
expanding their range of expertise. In addition, provision is
made for the CCT to use the advice of experts to inform the
tribunal on technical matters, helping to achieve a more fully-
informed decision; and
· More single-member hearings although it is anticipated that
more single-member hearings will be conducted by the CCT,
provisions are made in the Bill for the Chairperson to use their
discretion to select one, two or three members to constitute the
CCT for a matter, with particular regard to the complexity of and
public interest in a matter. Such provisions support the notion
that the more complex or contentious a matter is, the more likely
it is that a panel of members may hear the matter.
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Commercial and Consumer Tribunal Bill 2003
Alternatives to the proposed legislation
The Bill is essential in meeting the decision of the Government to reform
and amalgamate tribunals.
Estimated administrative cost
It is not anticipated there will be additional cost to government as a result
of the Bill. The aim of the review was to achieve cost-savings in the
operation of portfolio tribunals. However, it should be noted that users will
not be charged full cost-recovery through application and other fees, as this
would make accessibility to the CCT practically impossible. Accessibility
goes toward achieving the objective of a fair tribunal.
Consistency with Fundamental Legislative Principles
While the Bill has been drafted taking into consideration fundamental
legislative principles, it has on occasion been necessary to depart from the
fundamental legislative principles outlined in section 4 of the Legislative
Standards Act 1992. Those instances, and the justification for their
inclusion in the Bill, are detailed below:
· Termination of membership: the transitional provisions in the
Bill provide that a member of a former tribunal is not entitled to
seek remuneration or compensation for the portion of their
appointment that is terminated by commencement of this Bill.
While this may be perceived as infringing upon the rights of an
individual, the provisions simply make it clear beyond any doubt
that on commencement of the CCT effectively terminates the
appointments of all members, except for the current Chairperson
of the QBT/PAMDT/RVT and the one other full-time QBT
member, who are both being carried across to the CCT. There is
no right to compensation as a result. Those members affected by
these provisions are still entitled to apply for appointment to the
CCT when expressions of interest are called.
Consultation
Government
Interdepartmental consultation has occurred. An Interdepartmental
Steering Committee, comprising central agency representatives as well as
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Commercial and Consumer Tribunal Bill 2003
representation from other agencies with an interest in the Bill, has overseen
the development of the Bill.
Community
Tribunal stakeholders attended a series of face-to-face meetings with
Departmental officers and the Chairperson of the QBT/PAMDT/RVT in
late 2002. At these meetings, an overview of the reform process was
presented, the Chairperson spoke of her vision for the amalgamated
tribunal and stakeholders had an opportunity to ask questions and raise
issues. Separate meetings, conducted along similar lines, were held with
LAT stakeholders and consumer representatives.
Legal practitioners have also been reached through the Chairperson
speaking at a number of meetings and symposiums for legal practitioners
on the issue of the tribunal amalgamation.
The Bill was released for targeted public consultation in March 2003 to a
range of commercial and consumer groups representing the broad focus
areas of the tribunal.
Results of Consultation
There is general support for the provisions of the Bill from both
government and commercial and consumer stakeholders. Specific issues
raised by stakeholders during consultation include:
· Appeals from tribunal decisions: the provisions of the Bill allow
for appeals from tribunal decisions only on a question of law, to
the District Court, and only by leave of that Court. For some
jurisdictions, particularly the QBT, this represents a narrowing of
current appeal rights, while for others it is no change. It is
necessary to narrow appeal rights to give some certainty about
tribunal processes to tribunal users. Judicial review will still be
available on appropriate decisions; and
· Single-member hearings: the Bill provides that the Chairperson
will have discretion to select up to three members to constitute
the tribunal; however, it is expected that in many cases, a single,
legally-qualified member sitting alone would constitute the
tribunal. For some jurisdictions which are used to a three-
member tribunal, this will be a significant change. However, the
Chairperson will retain discretion to convene multi-member
panels and will be guided by the provisions of the Bill which set
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Commercial and Consumer Tribunal Bill 2003
out criteria for selecting members, for example, with regard to
the complexity of and public interest a matter. Concerns by
stakeholders over a possible loss of expertise through single-
member hearings are allayed by giving the tribunal the ability to
call upon expert advisors to assist in matters of a technical
nature.
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Clause 1 sets out the short title of Bill as the Commercial and Consumer
Tribunal Act 2003.
Clause 2 provides that the Bill commences on 1 July 2003.
Clause 3 provides that the Bill binds the State and, where the jurisdiction
exists, other States and the Commonwealth.
Clause 4 provides that the objects of the Bill are to establish a tribunal to
deal with matters that an empowering Act gives it jurisdiction to hear and
to have that tribunal deal with matters in a way that is just, fair, informal,
cost-efficient and speedy.
4(2) sets out how the objects are to be achieved by listing key principles
for the tribunal's operations. These principles firstly are defined in terms of
being just, and then more particular principles of accessibility, informality,
speediness of processes and responsiveness to the needs of users of the
tribunal. These key principles emphasise the role of the tribunal as an
informal and accessible forum in which matters can be heard and dealt
with. 4(2)(b) further lists the ways in which the Bill achieves fairness,
namely by establishing a dispute resolution system that is response to user
needs and has a range of procedures at its disposal.
Clause 5 refers to the dictionary in the schedule to the Bill for definitions
of terms used in the Bill.
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Commercial and Consumer Tribunal Bill 2003
PART 2--THE TRIBUNAL
Clause 6 formally establishes the CCT.
6(2) provides that in constituting the tribunal for a particular matter, the
Chairperson will use their discretion to select 1, 2 or 3 members to sit
6(3) provides that in considering how many members to select, the
Chairperson must have regard to the complexity of and public interest of a
matter, as well as the speed with which the matter could be resolved. This
clause provides the Chairperson with a guide to selecting members to
constitute the tribunal. Matters that have potential to affect the interests of a
broad section of the community may benefit from the selection of more
than one member, who would bring their respective knowledge and
expertise to the consideration of the matter.
Clause 7 provides that the CCT will have a seal which is to be judicially
noted.
Clause 8 provides that the broad jurisdiction of the tribunal is given to it
by an empowering Act. Empowering Acts are listed in schedule 2 of the
Bill. This Bill will contain generic procedures and processes while
empowering Acts will give the tribunal its jurisdiction and range of orders
to be made.
8(2) also clearly sets out that the tribunal will not be subject to external
control or direction in exercising that jurisdiction. This will encourage
confidence in the independence and transparency of the tribunal
Clause 9 gives the tribunal broad powers to carry out its functions. The
tribunal may do all things necessary or convenient to be for, or in relation
to, exercising its jurisdiction, while 9(2) provides that an empowering Act
and other provisions of this Bill may also confer powers on the tribunal.
9(2) provides that in addition to powers under the Bill, the tribunal also
has powers under an empowering Act.
Clause 10 provides that nominations for membership of the tribunal
must be called for by advertisement in a newspaper circulating throughout
the State. This ensures that the widest possible pool of potential members
is reached.
Clause 11 provides that a member must either be a lawyer of five years
or more standing, or, for non-legally qualified members, must have
knowledge of or experience in the business or industry relevant to an
empowering Act. This provision makes clear that the particular knowledge
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Commercial and Consumer Tribunal Bill 2003
of industry and community representatives is valued in the tribunal's
decision-making processes.
11(1) provides that the Chairperson must be appointed on a full or part
time basis, while 11(2) provides that other appointments may be made on a
full or part-time basis.
11(5) provides that appointments will be made for a maximum of five
years. This is to ensure that members do not become complacent in a
longer-term appointment and remain focussed on providing high-quality
decision-making for the tribunal.
11(6) provides that member appointments are made under this Bill and
not under the Public Service Act 1996.
11(7) clarifies that the Chairperson may hold another office in addition to
their appointment as Chairperson so long as their appointment to the other
office has been made by the Governor-in-Council.
Clause 12 provides that remuneration for a member is set by the
Governor-in-Council and is as per the terms of their instrument of
appointment.
12(2) makes clear, however, that if a member's appointment is
terminated under the following clause then the member is not entitled to
compensation for the balance of their appointment lost through
termination.
Clause 13 sets out the circumstances under which a member's
appointment may be terminated. In addition to circumstances such as
incapacity, conviction of an indictable offence, misconduct and taking
advantage of the laws of bankruptcy, the clause provides that members who
perform their duties carelessly, incompetently or inefficiently may also
have their appointment terminated. This clause continues the grounds for
termination of a member's appointment implemented by the 2002.
Clause 14 makes express provision for a member's resignation.
Clause 15 generally empowers the Chairperson to direct the business of
the tribunal, including the professional development and training of
members and the implementation of policies, procedures and practice
directions, as well as other duties that might be prescribed under an
empowering Act.
15(2) makes clear that a member must comply with a direction given by
the Chairperson.
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Commercial and Consumer Tribunal Bill 2003
15(3) obliges a member to perform the functions of their office under
this Bill or an empowering Act, while 15(4) takes this obligation further by
providing that the member must also comply with procedures and policies
implemented by the Chairperson. This provision reinforces the
Chairperson's role in directing the overall business of the tribunal.
Clause 16 allows the Chairperson to delegate their powers to another
member.
16(2) allows the Chairperson to delegate some powers to the director of
the registry. 16(3) then allows the director to sub-delegate those powers to
another appropriately qualified officer of the staff of the registry. This
clause enables the Chairperson to focus on their quasi-judicial
responsibilities in the conduct of a hearing, leaving the director to focus on
the overall business of the tribunal. Given that the director is managing
business across a number of jurisdictions, with the prospect to manage
business for other jurisdictions in future, it is important that the director
have the ability to subdelegate their delegated powers from the Chairperson
to ensure the efficient operation of the Tribunal. An expectation that a
single person can personally oversight the scheduling of hearings over a
number of jurisdictions is unrealistic.
16(4) defines "appropriately qualified" for the purposed of the director
subdelegating their powers to another officer of the staff of the registry. The
term here means includes an officer who has qualifications, experience or
standing appropriate to exercise the subdelegated powers. By defining the
parameters of who is "appropriately qualified", the Bill seeks to ensure that
the director's subdelegation of powers from the Chairperson is not
undertaken lightly and is exercised in due recognition of the gravity of
power being subdelegated.
Clause 17 sets an expectation that that the Chairperson and the director
will work cooperatively together, a necessary provision given the range of
jurisdictions the tribunal will be working in and that the director may on
occasion perform a delegate duty of the Chairperson.
Clause 18 allows the Governor-in-Council to appoint an acting
Chairperson and other members.
Clause 19 provides for conflict of interest requirements of members.
19(1) provides that if a member is aware they have a conflict of interest,
they must notify the Chairperson.
19(2) then allows the member to disqualify themselves from the
proceeding after disclosing the conflict of interest. However, 19(3)
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Commercial and Consumer Tribunal Bill 2003
provides that the member may continue to deal with the matter if both the
Chairperson and the parties agree. If the Chairperson has the conflict of
interest, under this Clause, they declare it to the parties.
PART 3--THE REGISTRY
Clause 20 establishes the registry of the tribunal, the position of director
of the registry (formerly known as the registrar) and that the registry
consists of the director and other staff.
20(3) provides that the registry may perform registry services for other
tribunals.
Clause 21 provides for the employment requirements for appointment as
the director. In recognition of the significance and range of duties
performed by the director, this clause provides that a person is eligible for
appointment as the director only if the person has particular knowledge and
experience of public administration and something else of substantial
relevance to the functions of the director.
21(2) establishes that the director and staff of the registry are appointed
and employed under the Public Service Act 1996.
21(3) provides that the director may act in another office in addition to
that of director of the registry.
Clause 22 establishes that the director is subject to the direction of the
chief executive in relation to carrying out the director's duties and that the
director is responsible for managing the registry and the administrative
affairs of the tribunal.
22(2) lists a number of specific duties the director has, including:
· 22(2)(a) ensuring that there is a register of applications made;
· 22(2)(b) ensuring that such a register is available to be searched
upon payment of the relevant fee;
· 22(2)(g) publishing the decisions of the tribunal; and
· 22(2)(h) keeping account of money paid into and out of the
tribunal's trust account.
22(3) makes clear, however, that this is not an exhaustive list of duties.
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Commercial and Consumer Tribunal Bill 2003
Clause 23 allows the director to delegate powers to another
appropriately qualified member of the registry's staff.
Clause 24 requires the director to keep and make available to the public
records of the tribunal, in particular, details of tribunal proceedings.
24(3) provides that the director must not make records public if ordered
not to do so by the tribunal. This ensures that in the case where there is
sensitive or personal information that forms part of a proceeding, such
information will not be made publicly available thereby causing harm to
the person or persons to which the information relates.
Clause 25 allows the chief executive to appoint an acting director, if the
need arises.
25(3) clarifies that an acting director would need to have the same
qualifications and experience as the director would.
PART 4--PRESIDING CASE MANAGER
Clause 26 establishes the role of presiding case manager. The presiding
case manager will consider a range of directions-type matters. This
position was first established under the 2002 Act.
26(1) provides that more than one presiding case manager can be
appointed by the Governor-in-Council.
26(2) provides that the minimum requirements for the role is to be a
lawyer of five years or more standing, recognising the position's quasi-
judicial decision-making role.
Clause 27 allows for an acting presiding case manager to be appointed,
if needed.
Clause 28 sets out how the presiding case manager is to conduct their
duties and what types of matters the presiding case manager is to deal with.
These provisions were established in the 2002 Act and are being carried
over to the Bill. The provisions include:
· 28(1) the presiding case manager constitutes the tribunal when
dealing with a prescribed matter;
· 28(2) clarifying that the presiding case manager has the same
powers as the tribunal for the matter;
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Commercial and Consumer Tribunal Bill 2003
· 28(3) allows the presiding case manager to hear prescribed
matters. It is intended that prescribed matters will be directions
and procedural matters and that the presiding case manager
hearing such matters will speed up tribunal processes generally;
· 28(4) clarifies that when the presiding case manager deals with
a prescribed matter, they do so with the same powers as the
tribunal;
· 28(5) provides that the Chairperson or a legally-qualified
member must deal with a prescribed matter if the Chairperson
does not select the presiding case manager to deal with the
matter;
· 28(6) allows the presiding case manager to refer matters to
tribunal members if and when it is considered the matter is more
appropriately dealt with by a member; and
· 28(7) defines "legally-qualified member".
Clause 29 establishes that while the presiding case manager has
independence in the conduct of their duties, they must also comply with
any procedural directions given by the Chairperson.
Clause 30 requires the presiding case manager to disclose any known
conflict of interest and, if necessary, disqualify themselves from a matter.
PART 5--OPERATION OF TRIBUNAL
Division 1--Starting Proceedings
Clause 31 describes how a proceeding is started in the tribunal. This
process is essentially the same for all matters from different jurisdictions
and begins with the filing of an application form and payment of a
prescribed fee. The approved form prompts an unrepresented applicant to
provide the necessary information for proceedings. The application must
be served on all respondents, which are the persons against whom a claim
is made or an outcome or order sought. This clause also provides that an
applicant may be an "entity". By providing for an entity, this clause will
allow unincorporated bodies to lodge applications as a representative or
class action.
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Commercial and Consumer Tribunal Bill 2003
31(6) clarifies that for a public examination, the person who is to be the
subject of the examination is the person that must be served.
Clause 32 sets out the requirements for an unincorporated body in
making an application. 32(1) firstly clarifies that an unincorporated body
may only make application if permitted to do so under an empowering Act.
32(2) establishes the role of the prescribed officer in the unincorporated
body. The prescribed officer will be the person responsible for conducting
the business of the unincorporated body at the tribunal, ensuring the body
complies with tribunal processes and representing the body at hearings or
conferences such as a mediation conference. The prescribed officer may,
for example, be the president, secretary, treasurer or other similar office
holder in the unincorporated body.
32(3) obliges the unincorporated body to keep the director informed of
any changes to the prescribed officer, while 32(4) gives the tribunal the
power to require evidence of the unincorporated body that the prescribed
officer continues to hold that office.
Clause 33 requires a respondent to file in the tribunal and serve on the
applicant any defence or counterclaim in response to the application. This
provision only applies to certain proceedings as set out in 32(1). The
defence or counterclaim must be filed and served within 14 days, but
provision is made for the tribunal to extend this period. This allows for a
longer period to draft a defence where the application relates to complex
matters or where the respondent is for some reason unable to file within the
14 days. As with applications, the defence and counterclaim must be in the
approved form.
33(6) allows the tribunal to require service on others whom it considers
are affected by the defence or counterclaim and who should be joined as
parties.
33(8) allows the tribunal to deal with a matter in the absence of the
respondent where no defence or counterclaim is filed (such as a decision by
default).
Clause 34 allows the tribunal, on its own initiative or on application, to
amend pleadings. In this context, pleadings are the application, defence
and any counterclaim.
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Commercial and Consumer Tribunal Bill 2003
Division 2--Business Names
Clause 35 allows a proceeding to be started against a registered business
name or an unregistered business.
Clause 36 allows a proceeding to be started against a person in relation
to a registered business name and for orders to be enforced against the
person in the proceeding.
Clause 37 allows a proceeding to be started against a person carrying on
business under an unregistered name and for orders to be enforced against
the person in the proceeding.
Clause 38 requires the respondent where a proceeding is started under
clause 35 or 36 to file any defence or counterclaim in the name of a person
and not in the business name, and for service with the defence a statement
showing the names and addresses of all persons carrying on the business.
38(4) provides that non-compliance with the requirement to serve the
statement showing names and addresses can lead to the tribunal setting a
defence aside.
Clause 39 requires the applicant where a proceeding is started under this
Division to take all reasonable steps to find out the names of persons
carrying on business under the unregistered business name.
39(3) provides that the proceeding must be continued as against named
respondents, although the tribunal may allow further procedural steps to be
taken. The tribunal must be satisfied that named respondents are aware of
the proceedings before allowing continuation as against those named
respondents.
Division 3--Transfer of Proceedings
Clause 40 sets out that if a matter brought before a court is one that
could be heard by the tribunal, the court must order that the matter be
started again in the tribunal. This provision is designed to ensure the
tribunal hears the matters it is designed to hear in an informal, speedy and
cost-effective fashion rather than having those matters go to the courts.
40(2) allows the tribunal to order a matter be started in a court if the
tribunal considers it does not have jurisdiction to hear the matter. 40(3)
states that this power applies even if there has been a transfer under this
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Commercial and Consumer Tribunal Bill 2003
section already. However, if the tribunals makes an order under 40(2) then a
court must not make an order to transfer the proceeding.
Division 4--Service
Clause 41 provides that service of documents may be done by:
· serving it to the address of the licensee, if the document is for a
licensee under an empowering Act; or
· a way directed by the tribunal; or
· as stated in the Bill.
41(2) clarifies that none of these service requirements limit the service
provisions under the Acts Interpretation Act 1954.
Clause 42 provides that for proceedings started under Division 2of this
Part, service of the application may be affected by leaving it at the
respondent's place of business with a person who appears to be in control
at that place.
Clause 43 provides that a solicitor may accept service for a party to a
proceeding. If a solicitor accepts service, the solicitor must annotate the
served documents, and service is then taken to have been effected.
Clause 44 allows the tribunal to decide that, where a document has not
been served but has come into the possession of a party some other way,
service has been effected.
Division 5--Case Management
Clause 45 requires the tribunal to fix a time and place for whatever
proceedings the tribunal considers necessary to resolve matters to which an
application and any counterclaim relate.
Clause 46 provides that the proceedings of the tribunal are to be open to
the public unless the tribunal orders otherwise. This is a new provision and
gives confidence to the community that the tribunal is an open and
transparent forum in which decisions are made fairly.
46(2) provides the circumstances in which proceedings might be closed
to the public and includes matters of public interest and if there is a
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Commercial and Consumer Tribunal Bill 2003
provision in an empowering Act that prescribes a proceeding should not be
open to the public.
46(3) provides that a closed hearing can be ordered on application or on
the tribunal's own initiative.
46(4) provides that the tribunal may make orders about what persons
may attend a closed hearing.
Clause 47 sets out the general way that the tribunal is to conduct all
proceedings. Procedures are subject to this Bill and the rules of natural
justice and at the discretion of the tribunal. Proceedings are to be as
informal and expeditious as this Bill and the subject matter of proceedings
allow. The tribunal is not bound by evidentiary rules applying to courts and
may inform itself as it deems appropriate.
47(5) allows the tribunal to use electronic means to conduct proceedings,
if appropriate.
Clause 48 allows the tribunal to decide all or part of a proceeding on the
papers if parties agree and the Tribunal considers it appropriate to do so.
Clause 49 allows the Chairperson to issue practice directions. This
clause reinforces the Chairperson's general powers under 15 to conduct the
business of the tribunal.
49(2) makes clear that members and parties to a proceeding must
comply with these practice directions.
Clause 50 gives the tribunal broad powers to make whatever orders and
directions it deems necessary to bring a proceeding to a swift and fair
resolution.
50(3) explicitly provides that the tribunal may set time limits for the
completion of anything in relation to a proceeding and may require parties
to provide documents or other evidence.
50(4) requires compliance with orders and directions but allows parties
to apply for extensions of time to comply with an order or direction.
50(5) allows the tribunal to vary or revoke an order or direction at any
time on its own initiative as well as on the application of a party.
50(6) limits the tribunal's discretion under 50(5) so that the Tribunal may
not vary or revoke an order where to do so would adversely affect a party in
a way that could not be remedied by financial compensation.
Clause 51 limits the tribunal's power to order disclosure of documents,
providing that privileged documents, credit documents and additional
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Commercial and Consumer Tribunal Bill 2003
copies of documents do not have to be disclosed. 51(2) removes doubt that
an expert report is not privileged.
Clause 52 allows the tribunal to extend time limits and waive
compliance with procedural requirements in certain circumstances.
52(1) allows time limit extension for the commencement of a proceeding
under this Bill or an empowering Act.
52(2) allows the Tribunal where it is relevant to the conduct of a
proceeding to extend time limits for any procedural requirement contained
within this Bill, or in an empowering Act, or waive compliance with the
doing of anything under this Bill.
52(3) removes doubt that time limit extension and compliance waiver
under this section applies even if time has already expired.
52(4) limits the 52(3) discretion regarding extensions of time for filing a
defence to an application made within the initial 14 day period
allowed.52(5) limits the tribunal's discretion under this section so that the
tribunal may not extend time or waive compliance where to do so would
adversely affect a party (or potential party) in a way that could not be
remedied by financial compensation.
Clause 53 provides the tribunal with a broad power to include parties
where the tribunal forms the view, based on an application or on its own
initiative, that a person ought to be included as a party to a proceeding.
Clause 54 allows the tribunal to consolidate several proceedings into the
one proceeding where they involve the same question or will affect each
other.
Clause 55 further allows the tribunal to direct that several proceedings be
heard together or in any sequence the tribunal directs.
Clause 56 allows the tribunal to make any directions it considers
necessary in consequence of a decision to consolidate or sequence
proceedings.
Clause 57 allows the tribunal to vary any order to consolidate or
sequence proceedings.
Clause 58 allows the tribunal to deal with proceedings brought
vexatiously by summarily dismissing the proceeding and ordering costs to
be paid including compensation for inconvenience and embarrassment to
the party against whom the proceeding is brought.
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Clause 59 allows the tribunal to hear a matter in the absence of a
respondent, provided that reasonable steps have been taken to locate the
whereabouts of the respondent.
Clause 60 allows the tribunal to deal with a proceeding that is being
conducted by a party so as to cause disadvantage to another party including
by causing delays. Proceedings may be dismissed as against the party
causing disadvantage and order payment of any costs incurred
unnecessarily.
60(3) specifically empowers the tribunal to refuse to continue the
proceeding until an order regarding payment of costs is complied with.
Clause 61 regulates withdrawal by the applicant in a proceeding as
parties may disadvantage themselves by withdrawal, particularly
unrepresented parties.
61(1) allows an applicant to withdraw without leave before service of
any defence or counterclaim.
61(2) requires an applicant to obtain the leave of the tribunal to withdraw
following service of a defence or counterclaim.
61(3) requires the tribunal's leave for withdrawal by an applicant where
there is more than one applicant in a proceeding.
61(4) requires the tribunal's leave for an applicant to withdraw against
one respondent without withdrawing against others in a proceeding with
more than one respondent.
Clause 62 requires the Tribunal's leave for withdrawal by a respondent
of all or part of a defence or counterclaim.
Clause 63 requires the Tribunal's leave if, after withdrawal, an applicant
seeks to make a further application relying upon the same facts or grounds.
Clause 64 allows the Tribunal to award costs against a withdrawing
applicant.
Clause 65 requires a notice of withdrawal to be served on the other
parties where withdrawal is affected without leave. Where withdrawal
requires leave, the order giving leave effects the withdrawal.
Clause 66 allows the tribunal to hear a proceeding regardless of any
related criminal activity or disciplinary action, subject to the provisions of
an empowering Act. For example, parties may seek to have a dispute
resolved at the tribunal but one of the parties has engaged in criminal
activity related to the dispute. In such cases it is appropriate that the
tribunal seek to resolve the dispute but also that the party engaged in
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criminal activity or disciplinary action is pursued separately for those
actions.
66(2) clarifies that the tribunal may make an order to resolve a
proceeding even if a person has been charged with a criminal offence or has
a disciplinary action pending.
Division 6--Security for Costs
Clause 67 allows a respondent (defined as a party against whom a claim
is made) in a proceeding at any time to seek an order that another party
provide security for costs. Failure to comply with an order to provide such
security may lead to the tribunal dismissing the proceeding as against the
respondent. This type of procedure is most commonly used in building
disputes and does not automatically apply in all cases.
67(1) allows the tribunal to stay other proceedings started by a particular
applicant until an order for costs is complied with.
67(4) lists a number of criteria that the tribunal may consider in deciding
whether or not to make an order under 67(1). These criteria give the
tribunal a guide in considering a costs order and therefore help ensure an
order for security for costs is not going disadvantage one party over
another.
Clause 68 allows the tribunal to determine the form, timing and
conditions of security for costs.
68(2) allows the director to make such a determination where the
tribunal has not otherwise made provision.
68(3) requires the party the subject of an order to provide security for
costs to serve on the applicant for security details of compliance with an
order.
Clause 69 regulates the application and discharge of security for costs.
69(2) allows the tribunal to apply the security in satisfaction of an award
of costs where costs are awarded against the party supplying security.
69(3) requires the discharge of security where costs are not awarded
against the party supplying security, where the tribunal orders discharge,
where the party entitled to the benefit of the security consents to discharge,
and where there is a balance left after application in satisfaction of costs.
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Division 7--Costs generally
Clause 70 establishes beyond doubt that the purpose of this division is
that parties pay their own costs unless the interest of justice require
otherwise. This provision is in keeping with the objective of the Bill to
establish an informal and cost-effective tribunal.
Clause 71 establishes that, notwithstanding 70, the tribunal may award
costs on the application of a party or on its own initiative.
71(3) allows the Tribunal to make an order for costs during a proceeding
but provide that costs not be assessed until after the proceeding ends.
71(4) provides a non-exclusive list of discretionary factors the Tribunal
may take into account in awarding costs, including the outcome of the
proceeding, conduct of parties, relative strengths of claims and any
contravention of a relevant Act. If a department is a party, its adherence to
the principles of natural justice is also a relevant factor.
71(5) removes doubt that legal representation and being the beneficiary
of an order do not of themselves entitle a party to an award of costs.
71(6) removes doubt that provisions elsewhere in the Bill to award costs
are additional to this section.
71(8) allows the tribunal to direct that costs may be assessed by the
presiding case manager or another person appointed by the tribunal, for
example, a cost assessor.
Clause 72 allows the Tribunal to order a stay of proceedings as against a
party until costs from another proceeding awarded against that party are
paid.
Division 8--Representation
Clause 73 states the general philosophy of the tribunal is that parties
should represent themselves. This provision helps the tribunal to maintain
informality. For parties, the general philosophy expressed in this clause
helps them to avoid legal costs.
Clause 74 establishes that a party must represent themselves at
mediation unless the mediator, in the interests of justice, allows a party to
be represented at the mediation.
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Clause 75 is similar to clause 74 in that a person must represent
themselves at a pre-hearing conference, unless the tribunal considers it
appropriate to allow representation.
Clause 76 then sets out provisions for representation for parties at
proceedings.
76(1) provides that a State agency, unincorporated body or corporation
may only be represented by a person who is not a lawyer.
76(2) provides for circumstances where legal representation might be
appropriate. Parties are entitled to be represented by a lawyer for public
examinations and disciplinary proceedings. Continuing a provision from
the QBT Act, the Building Services Authority is entitled to be represented
by a lawyer in debt recovery proceedings. Otherwise, the tribunal may
direct that legal representation is appropriate if the parties agree and after
having regard to the circumstances. A non-exhaustive list of criteria is then
set out for the tribunal to consider and includes issues such as whether or
not parties can afford representation, the complexity of the issues and
ability of parties to represent themselves.
76(3) provides for representation by someone who is not a lawyer. This
provision makes it clear that non-legal representation is an exceptional
circumstance and that the tribunal would consider very carefully any
application for non-legal representation. Nonetheless the provision is
flexible enough to allow for non-legal representation where appropriate.
For example, in a retirement villages dispute an elderly resident may feel
more comfortable with having a friend or associate represent them during
the proceedings.
Division 9--Other provisions about proceedings
Clause 77 gives the tribunal a general power to summons witnesses and
produce documents or things and regulates the application of this power.
77(1) allows the tribunal to summons a witness on the application of a
party or on its own initiative to attend at a time and place notified in the
summons, to be examined on oath and to produce documents of things
stated in the summons.
77(2) regulates payment of witness fees to those prescribed by regulation
or, if there is no prescription, to reasonable fees decided by the tribunal.
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77(3) gives the tribunal the discretion to decide who pays the witness
fees and in what proportions.
Clause 78 creates offences for witnesses disobeying directions of the
tribunal. All the offences in this section have maximum penalties of 80
penalty units.
78(1) creates the offence of failing, without reasonable excuse, to attend
in response to a summons and to remain as required by the tribunal.
78(2) creates the offence of failing to take an oath as required by the
tribunal.
78(3) creates the offence of failing, without reasonable excuse, to answer
questions or produce documents or things required by the tribunal.
Reasonable excuses in this context would include answers or documents
protected by legal professional privilege.
78(4) clarifies that it is a reasonable excuse for the offence in 78(3) that
an answer or a document or thing required by the tribunal might tend to
incriminate the person.
78(5) allows the tribunal to excuse a person from attending at the time
and place notified in a summons for any reason at all.
Clause 79 allows the tribunal to issue a warrant for the arrest of a person
summonsed to attend who fails to attend and to adjourn proceedings until
the person is produced.
Clause 80 sets out offences for persons who give false or misleading
information to the tribunal and prescribes penalties accordingly.
80(1) provides that a person must not state anything they know to be
false or misleading.
80(2) provides that a person must not produce a document containing
information they know to be false or misleading.
80(3) clarifies that 80(2) does not apply if a person tells the tribunal that
the document is false and misleading and gives the correct information, or
can reasonably obtain the correct information.
80(4) clarifies that it is sufficient to commence an offence against a
person under this section to state that a statement or document was `false or
misleading' without specifying if it was false or if it was misleading.
Clause 81 allows the tribunal to take evidence on oath and to administer
oaths.
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Clause 82 allows the tribunal to refer technical matters to an expert for
investigation and report.
82(2) provides that the expert must provide a written report and provide
the parties with copies of the report.
82(3) requires the report to be given in the reasonable time stated by the
tribunal.
82(4) clarifies that the tribunal is not bound by the findings of the report
while 82(5) provides that parties to the proceeding are responsible for the
costs of the report and in proportions determined by the tribunal.
82(6) provides that a State agency may, for the purposes of this section,
be an expert and provide a report. This continues a similar provision in the
QBT Act and an example based on that similar provision is included for
this section.
Clause 83 allows a member of the tribunal, and persons authorised by
the tribunal, to enter and inspect a building or land relevant to the
proceedings. In most instances, this will be the building or land where the
building work the subject of the proceedings are located. There may be
some instances, however, where other buildings or land are relevant, such
as adjoining premises where access is required to inspect building work the
subject of proceedings.
83(2) creates the offence, punishable by up to 200 penalty units, of
obstructing a member or person authorised to enter under this section.
Clause 84 sets out the procedure to be followed in effecting entry under
section 83. It is intended that coercion to effect entry be reduced to the
absolute minimum. To this end, before entry the authorised person or
member must make a reasonable attempt to give the owner or occupier
notice so that a mutually convenient time can be arranged. Identification
and authority documents must be produced to assure an owner or occupier
that the person is the authorised person. A copy of these documents must
also be given to the owner or occupier to keep.
Clause 85 allows the tribunal to inspect, copy or photograph a document
or thing produced to the tribunal, if it is relevant to the proceeding before
the tribunal.
85(2) allows the tribunal to retain possession of the document or thing
while it is necessary for the proceeding while 85(3) requires the tribunal to
permit a person otherwise entitled to possession of the document or thing
to inspect, copy or photograph it at a reasonable time and place decided by
the tribunal.
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Clause 86 lists matters that are contempts of the tribunal. These include
obstructing, interrupting, or disturbing proceedings, disobeying lawful
orders or directions, obstructing a person authorised to enter buildings or
land, and anything else that would be contempt of a court if the tribunal
were a court.
86(2) allows the Tribunal to order that a person in contempt of the
Tribunal be excluded from the place where the proceeding is conducted.
86(3) allows the staff of the registry to use reasonable force to effect
exclusion if so ordered by the tribunal. Staff can also use reasonable
assistance under this subsection, allowing for the assistance of security
staff if needed.
Clause 87 sets up procedures for the punishment of contempt.
87(1) provides that this section does not limit the tribunal's power to
exclude a person under the previous section.
87(2) requires the Chairperson of the tribunal to provide written
certification of the contempt to the Supreme Court.
87(3) limits the evidentiary requirement of 87(2) to the Chairperson's
being satisfied that there is evidence.
87(4) allows the Chairperson to issue a warrant for the arrest of the
person to be brought before the court.
87(5) brings certification under this section into line with provisions of
the Bail Act 1980 regarding charges for offences.
87(6), (7) and (8) require the court to inquire into the alleged contempt,
and, if satisfied that the person has committed the contempt, require the
court to deal with the matter as if the contempt had related to proceedings
in that court.
87(9) applies the Uniform Civil Procedure Rules 1999 to the court's
procedures and powers under this section.
87(10) is an evidentiary aid for the court regarding the Chairperson's
certificate under this section.
Clause 88 prevents a person being charged for an offence and dealt with
for a contempt regarding the same conduct.
Clause 89 establishes that immunities for members, mediators, experts,
representatives, witnesses and documents at or before the tribunal are the
same as those applicable to or for the District Court.
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Clause 90 allows the tribunal, during a proceeding, to suppress sensitive
information about a person on application by that person. The sensitive
information is then expressly removed as part of the public record available
about that particular matter. This clause gives the tribunal discretion to
remove from the public record details of a person that may, if publicly
available, harm the person in some way.
90(2) allows the tribunal a similar power but in relation to an application
for suppression after the proceeding is over.
90(3) requires the tribunal to clarify with the director, before making an
order to suppress, the extent of the sensitive information on the register and
the amount of time it would take to remove the information.
However, 90(4) provides that the tribunal is not limited by this
information by the director, not is it limited by the definition of "sensitive
information" provided in 90(5).
Division 10--Tribunal decisions and enforcement
Clause 91 requires decisions of the Tribunal that finally decide matters
the subject of the proceeding to be in writing, to state the reasons for the
decision, and allows them to be published. 91(3) qualifies this by
providing that the results of a disciplinary proceeding must be published
notwithstanding the provisions of this section.
Clause 92 defines the date of effect of decisions of the tribunal. Where
parties are present, it takes effect immediately. Where only one party is
absent, it takes effect when service is effected on that party. Where two or
more are absent, it takes effect on the day the last party is served.
Clause 93 sets up a procedure for a party to have the tribunal's decision
enforced by a court if it is not complied with. The person is required to
lodge with a court a certified copy of the decision, and an affidavit
regarding the non-compliance. No fee is to be charged for this registration.
Upon registration, the decision has the same effect as a decision of the
court and may be enforced accordingly.
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Division 11--Further action in relation to a proceeding
Clause 94 allows the tribunal to correct mistakes in decisions and
prescribes procedural requirements for correction of mistakes. Corrections
can be made on the application of a party or on the initiative of the tribunal,
and must be on the basis of evidence before the tribunal when the decision
was made. If a party applies for a correction, the application must be made
within 14 days of the date of the decision (94(3)) and must refer to the basis
of the mistake as defined in 94(1). Any tribunal member may make a
correction.
Clause 95 makes available the opportunity for relief from an order of the
tribunal where a person did not attend (and was not represented) when the
order was made and had a reasonable excuse for absence. An application
for a review of the order on this basis must be made within 14 days of
service of the order. The tribunal has power to confirm, vary or revoke the
order on the basis of this provision.
Clause 96 makes similar provision for the tribunal to vary an order on
the application of a party where it is ambiguous or where there are practical
difficulties with implementation. To prevent injustice, all parties must be
given an opportunity to be heard on an application under this provision.
Clause 97, to avoid jurisdictional overlap, prevents the Tribunal from re-
opening an order under clauses 93, 95 and 96 when an appeal has already
been filed in the District Court under clause 100.
Clause 98 provides that a question of law is to be decided according to
the presiding member's opinion.
Clause 99 allows the Tribunal on its own initiative or on the application
of a party to ask the District Court for its opinion on a question of law
arising in the proceeding. Proceedings in relation to the question stated are
stayed until the court makes its decision.
Clause 100 provides that appeals from decisions of the tribunal may be
made to the District Court and only by leave of the District Court and only
on a question of law. Appealable decisions under this provision do not
include interlocutory or procedural orders or directions, but only final
decisions in proceedings. This provision narrows the scope of appealable
decisions in order to give the tribunal more certainty about its decision-
making.
100(2), (3) and (4) list the procedures to follow in lodging the appeal.
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100(7) clarifies that the appellant under this section must pay the costs of
the appeal, including the costs of any transcripts.
PART 6--PROCEEDINGS BEFORE TRIBUNAL
Division 1--Review proceedings
Clause 101 empowers the tribunal to review decisions made under
empowering Acts. Such decisions are referred to as reviewable decisions.
Clause 102 sets out the procedure for filing and serving an application
for a review of a reviewable decision.
Clause 103 allows the tribunal to stay the effect of a decision by a
department pending the hearing of a review application in the tribunal,
subject to the provisions of an empowering Act.
103(3) allows the tribunal to require, in relation to the order,
undertakings to be made, including undertakings in relation to costs, as
well as making provision for lifting the order if stated conditions are met.
Clause 104 describes the orders the tribunal can make in relation to a
proceeding that reviews the decision of a department.
104(1) provides that the orders that can be made are to: confirm the
decision; set aside the decision and substitute another decision; or set aside
the decision and return the matter to the chief executive with directions the
tribunal deems appropriate. These are generic orders that apply to all
review proceedings considered by the tribunal.
104(2) clarifies that the tribunal has, in making the order, the same
powers as the person who originally made the decision and provides an
example.
104(3) clarifies that if a substituted decision is made, the substituted
decision is taken to be the decision of the person who originally made the
decision.
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Division 2--Disciplinary Proceedings
Clause 105 empowers the tribunal to conduct a disciplinary proceeding
upon application by a department.
Clause 106 provides for the process for a State agency to follow in
starting a disciplinary proceeding, including the grounds for the charge and
the nature of the matter being referred to the tribunal.
106(3) requires the chief executive of a department to give the person the
subject of the proceeding at least 14 days notice of the date of the hearing.
Clause 107 sets out the disciplinary actions the Tribunal may take if a
department is able to establish grounds.
107(1) gives the tribunal broad powers to make orders as provided in an
empowering Act or as provided by the following subsections (2), (3) and
(4).
107(2), (3) and (4) list the orders the Tribunal may make against a person
when grounds for disciplinary action have been established. These orders
include penalties for amounts whose maxima are set as penalty unit
equivalents (200 for an individual and 1,000 for a corporation), as well as
orders to complete or pay compensation and licence limitations or
cancellation. These subsections are illustrative of the types of orders the
tribunal can make and are not exhaustive.
107(6) shows how the penalties are to be enforced.
Clause 108 allows the Tribunal, on application by a State agency, to
issue an order prohibiting the carrying out of work or other actions. The
work or action may be under way, or may not yet have commenced. This
provision is akin to an injunctive power. The person the subject of a stop
order may show cause why the order should not continue in force and the
order may be rescinded if the Tribunal is not satisfied that it should remain.
Breach of a stop order is an offence carrying a maximum penalty of 500
penalty units.
108(6) provides that the tribunal's ability to issue a stop order may be
limited or excluded by an empowering Act.
Clause 109 allows the tribunal to suspend a licence without notice to the
licensee. This provision mirrors the department's power under an
empowering to suspend a licence with immediate effect, but properly
allows greater discretion in terms of the grounds and duration of
suspension. If a suspension is made without notice, the tribunal must give
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the suspended person reasonable opportunity to show cause why the
suspension order should be rescinded. If the tribunal orders the surrender of
the licence, failure to comply is an offence carrying a maximum penalty of
80 penalty units
109(6) provides that the tribunal's ability to issue a stop order may be
limited or excluded by an empowering Act.
Division 3--Public Examinations
Clause 110 empowers the tribunal to conduct a public examination of a
person upon application by a department. A public examination is a form of
disciplinary proceeding and is undertaken for more serious matters.
Clause 111 outlines the procedure before a public examination starts.
The tribunal must firstly be satisfied that each person to be examined has
received in writing the grounds for the public examination. If the tribunal is
satisfied then 111(2) provides that the tribunal must then fix a time and
place for the examination.
111(3) provides that notice may be given to an executive officer if a
corporation is the subject of the examination.
111(4) specifies that each person that is the subject of the examination
must receive a notice including details of the time and place of the
examination and the ability of the party to make written and oral
submissions at the examination.
Clause 112 removes self-incrimination privileges in relation to
answering questions asked at a public examination and applies if a person
refuses to answer a question at a public examination. Public examinations
are reserved for the most serious of cases and as such the need for the
person being examined to answer questions is essential to the outcome of
the examination. The existence of a right to silence in a public examination
renders the public examination power almost irrelevant. If questions put to
a witness before a public examination concern matters that are peculiarly
within the knowledge of the witness and would be difficult or impossible to
establish by any alternative evidentiary means, it is in the interests of the
public that the uncooperative witness be obliged to answer questions. The
interests of the parties injured or who could be injured in the future by the
conduct of the witness or of other persons to whom the information being
sought relates, will likely in most cases outweigh any possible detriment to
the witness.
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112(2) requires the Tribunal to advise the person that if the answer may
tend to incriminate the person, the person may make a claim that the
answer may be incriminating, and the effect of making such a claim under
this section.
112(3) creates the offence of refusing to answer a question in these
circumstances, unless the person has a reasonable excuse, such as legal
professional privilege. The offence carries a maximum penalty of 500
penalty units.
112(4) makes it clear that self-incrimination is not a reasonable excuse in
terms of the offence created by 112(3).
112(5) restricts the admissibility of the answer in proceedings against
the person to proceedings in which the truth or falsity of the answer itself
are relevant, such as proceedings for the offence of perjury. The clause
notes that public examinations and proceedings for the review of a decision
by the department are not proceedings against the person, and so the
answer may be admitted in evidence in such proceedings. This will allow
the person to start review proceedings against the department if it takes any
administrative action, such as licence suspension, on the basis of the
answer.
Division 4--Other matters
Clause 113 establishes that the tribunal may hear and decide matters
referred to the tribunal under an empowering Act. The effect of this
provision is to clarify that the tribunal may conduct other types of
proceedings in addition to those listed in this part, if an empowering Act
gives the tribunal to power to do so.
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PART 7--WAYS TRIBUNAL MAY RESOLVE
PROCEEDINGS
Division 1--Hearing of proceedings
Clause 114 establishes that the tribunal may conduct a hearing to decide
matters within its jurisdiction.
114(1), (2) and (3) set out how a hearing is generally to be conducted
and includes matters relating to allowing the parties to call or give
evidence, examine and cross-examine witnesses and to make submissions.
As well, the tribunal is given the power to proceed in a hearing in a party's
absence should that party fail to attend as notified by the tribunal.
114(4) clarifies that this clause is subject to the particular requirements
of 124 in relation to expedited hearings.
Division 2--Decision by default
Clause 115 empowers the Tribunal to make default decisions for debts
for liquidated amounts where an application has been made and the
respondent has not filed a defence or counterclaim. Decisions by default
generally relate to building disputes that are currently dealt with by the
QBT.
115(2) requires a request for default decision to be filed in the approved
form and limits the amount to the amount originally claimed, plus the
application fee, and legal costs and interest as prescribed by regulation.
115(3) and (4) allow the registrar to give a decision by default.
115(5) requires proof of service before a default decision can be given.
Clause 116 allows the Tribunal to set aside a default decision. This will
allow a proceeding to continue where, for example, the respondent has a
reasonable excuse for not filing a defence and counterclaim.
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Division 3--Mediation
Clause 117 allows the Tribunal to appoint a mediator for a dispute and
review proceedings. The mediator attempts to secure a negotiated
settlement of the matters in dispute and may make no orders or decisions
on behalf of the Tribunal. The director may exercise the Tribunal's power to
appoint a mediator.
In recognition of the fact that mediation is a requirement in some
empowering Act prior to lodging an application with the tribunal, 117(2)
provides that the tribunal must have regard to any other mediation
processes attempted before making a decision to refer a proceeding to
mediation. However, this provision does not limit the tribunal's ability to
refer matters to mediation.
117(5) allows the parties to nominate a particular mediator and for that
mediator to be appointed at the discretion of the Tribunal. If a nominated
mediator is appointed, however, the parties are responsible for the costs of
that mediator over and above the costs normally paid to a mediator
appointed by the Tribunal on its own account. Mediators appointed other
than under these provisions are paid by the Tribunal as a service to parties.
117(8) allows a mediator, including a mediator nominated by the parties,
to be appointed only if the mediator has suitable qualifications and
experience.
Clause 118 gives discretion to the Tribunal to allow a mediation to be
conducted by electronic means where appropriate. Otherwise, 118(2)
allows the mediator to conduct the mediation at their discretion.
Clause 119 forbids the admission of anything said or done in the course
of a mediation conference in any other proceeding of the Tribunal.
119(2) requires the mediator to report to the Tribunal the issues each
party considers are the issues in dispute, and the orders each party seeks.
119(4) requires the mediator to report to the Tribunal the terms of any
settlement reached between the parties in the course of mediation.
119(5) provides discretion for the Tribunal to make orders giving effect
to the settlement. This discretion is provided as a safeguard against
unsophisticated parties gravely disadvantaging themselves in mediation.
119(6) requires the Tribunal to keep the terms of a settlement
confidential, unless requested otherwise by parties, or on its own initiative.
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Clause 120 makes clear that a mediator is to maintain secrecy about
information disclosed at mediation conferences. However, a mediator may
divulge information in the circumstances provided in 120(2), which
include if the parties agree; for statistical purposes; for an inquiry about an
offence happening during the mediation; for a proceeding of fraud alleged
to have occurred, or been connected with, the mediation; or if there is a
requirement imposed under an empowering Act.
Clause 121 debars a member of the Tribunal who has been appointed as
mediator for a proceeding from doing anything else in the proceeding other
than presiding at a pre-hearing conference.
Clause 122 limits the maximum time allowed for a mediation conference
where a proceeding is listed for an expedited hearing to two and a half
hours. This allows for same day hearing of certain disputes as set out
below.
Division 4--Expedited hearings
Clause 123 provides that the tribunal may conduct an expedited hearing
if an empowering Act provides that an expedited hearing may be
conducted.
Clause 124 sets out procedures for an expedited hearing.
124(1) requires the filing and exchange of all relevant documents as
directed by the tribunal prior to a hearing.
124(2) sets out special procedures for expedited hearings. These are that
cross-examination is allowed only at the discretion of the tribunal; that the
parties themselves must arrange the attendance of any witnesses supporting
their cases; and that the time for the hearing may be limited at the direction
of the tribunal and allocated equally between the parties.
Division 5--Summary decision
Clause 125 allows the tribunal to give summary decision for an applicant
in a proceeding where the respondent has no defence other than a dispute
about the amount of the claim, and the tribunal decides there is no need for
a hearing about that part of the proceeding where decision is sought.
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125(3) allows the tribunal to direct that the amount of a claim be
calculated in a way it specifies, and to provide that that amount, when
calculated, and costs, be given as decision.
125(4) allows, with the leave of the tribunal, any number of applications
for summary decision in a proceeding.
Clause 126 allows the tribunal to give summary decision for a
respondent in a proceeding where the application has no merit or the
respondent has an adequate defence.
Clause 127 provides that all matters in a proceeding not dealt with by
summary decision continue.
Clause 128 requires evidence in any application for summary decision to
be given by affidavit, and sets out standard affidavit requirements for
summary decision.
Clause 129 requires service of affidavits and supporting documentation
on the other party at least four business days before a matter can be dealt
with by summary decision.
Clause 130 provides that the tribunal may order the attendance of
parties, witnesses and other relevant persons and the production of
documents in deciding an application for summary decision.
Clause 131 provides that the tribunal may order a stay of enforcement of
a summary decision, such as where other issues remain unresolved.
Clause 132 allows the tribunal to set aside or vary a summary decision.
Division 6--Pre-hearing conferences
Clause 133 establishes the basis of a pre-hearing conference.
133(1) makes it clear that the tribunal may direct any number of pre-
hearing conferences.
133(2) provides a wide range of matters able to be dealt with at a pre-
hearing conference. In particular, it removes doubt that the tribunal may
make interim orders about a proceeding at a pre-hearing conference.
133(4) requires pre-hearing conferences to be in private unless the
tribunal specifically directs otherwise.
133(5) makes it clear that all other procedures to be followed at a pre-
hearing conference are at the discretion of the tribunal.
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Commercial and Consumer Tribunal Bill 2003
Clause 134 allows the Tribunal to require the attendance of a party
personally or by a representative who has authority to settle proceedings on
behalf of the party at a pre-hearing conference.
Clause 135 prohibits the admission of anything said or done at a pre-
hearing conference in other proceedings other than where parties agree,
where the evidence is a direction given at the pre-hearing conference, or
where the evidence relates to an offence or contempt.
Clause 136 requires a member who has presided at a pre-hearing
conference to disqualify him or herself from hearing the proceeding where
a party objects or otherwise at the member's discretion.
Clause 137 allows the tribunal to make adverse directions against a party
not attending a pre-hearing conference.
Division 7--Settlement offers
Clause 138 allows a party to make an offer to settle a proceeding as
against any other party at any stage of a proceeding and to make as many
offers as the party wishes. Offers for payment must, however, specify
timing and terms of payment.
138(5) provides that payment offers may include terms that payment is
made into the tribunal's trust account.
Clause 139 provides that all offers are made without prejudice to the
proceeding, and that the tribunal is not to be told of any offer until after its
final decision.
Clause 140 requires offers to be open to be accepted until just before the
tribunal's decision is delivered, or for them to state a shorter period for
acceptance.
Clause 141 provides that the tribunal may make a range of adverse
orders against a party whose offer is accepted but who does not comply
with its terms.
Clause 142 provides for the consequences of a party rejecting an offer to
settle.
142(1) establishes that this section applies where an offer has been made
to settle but has been rejected and the final decision of the tribunal in
relation to the matter is in fact mot more favourable than the settlement
offer which was rejected.
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Commercial and Consumer Tribunal Bill 2003
142(2) requires the tribunal to award costs against the party that rejected
the settlement offer mentioned in 142(1).
142(3) limits the application of this section in proceedings involving
more than two parties to settlement offers resolving all matters at issue.
142(4) limits the way the Tribunal calculates whether an offer was or
was not more favourable than its decision in a proceeding to costs incurred
up to the time the offer was made.
PART 8--MISCELLANEOUS
Clause 143 declares the tribunal to be part of the administering
department for the purposes of the Financial Administration and Audit Act
1977.
143(2) establishes that the chief executive may enter into agreement with
a State agency which refers matters to the tribunal under an empowering
Act in order to recover the costs of conducting a proceeding for that matter.
Clause 144 requires the tribunal to maintain a trust account for the
purposes of holding funds for proceedings. Interest on the account is used
to offset the costs of keeping the trust account.
Clause 145 requires an annual report to be prepared by the Chairperson
for each fiscal year and forwarded to the Minister for tabling in the
Legislative Assembly.
Clause 146 allows offences under this Bill to be dealt with as summary
offences.
Clause 147 limits the time for summary offence proceedings.
Clause 148 requires all penalties for offences under this Bill to be paid to
the department that is bringing the action under the relevant empowering
Act.
Clause 149 prohibits contracting out. This provision has effect on all
contracts, even those entered into before this Bill comes into effect.
Clause 150 provides that an executive officer commits an offence if the
company commits an offence, namely the offence of failing to ensure the
company complies with the Bill. The overall aim of this section is to make
directors and other executive officers of a company personally responsible
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Commercial and Consumer Tribunal Bill 2003
for the acts of the company, thereby preventing them from escaping
personal liability by hiding behind a company structure.
150(1) imposes a duty on executive officers to ensure that their company
complies with this Bill.
150(2) provides that an offence by a company is taken to have been
committed by the company's executive officers, with penalties to apply as
for commission of the relevant offence by an individual.
150(3) allows evidence that a company commits an offence under the
Bill to be used as evidence that each and every executive officer committed
the offence.
150(4) provides a defence for executive officers in regard to this section,
namely that the executive officer exercised reasonable diligence, or was not
in a position to influence the relevant conduct of the company.
Clause 151 allows the tribunal to accept the purported signature of the
director, presiding case manager or of a member as being the actual
signature.
Clause 152 allows the tribunal to accept certificates from the director or
presiding case manager as evidence of the things certified.
Clause 153 indemnifies officials for acts and omissions made in good
faith under this Bill. For this provision, officials include persons authorised
by the tribunal to enter and inspect property.
Clause 154 allows the Chairperson to approve forms.
Clause 155 establishes a regulation-making power.
PART 9--TRANSITIONAL PROVISIONS
Clause 156 lists definitions that apply to this part.
Clause 157 clarifies beyond doubt that the QBT, RVT, PAMDT and RVT
are abolished on commencement of this Bill.
Clause 158 provides that a proceeding started in a former tribunal must
be continued under this Bill if it is not finalised at the commencement of
this Bill.
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Commercial and Consumer Tribunal Bill 2003
158(2) provides that a former member may continue hearing the
proceeding and that only for that purpose do they constitute the tribunal.
This ensures continuity of proceedings.
158(3) clarifies that the former member is entitled to remuneration as
determined by the Governor-in-Council for completing the hearing.
158(4) clarifies that these provisions also apply to a mediation.
Clause 159 provides that the tribunal has jurisdiction to hear a matter
that arose before the commencement of this Bill.
159(2) provides that this is the case, even if a former tribunal might not
have had jurisdiction to hear the matter.
Clause 160 clarifies that orders, directions or decisions of a former
tribunal carry over as orders, directions and decisions of this tribunal.
Clause 161 clarifies that records of a former tribunal are also records of
this tribunal.
Clause 162 provides that the Chairperson of the QBT (who is also the
Chairperson of the PAMDT and the RVT) immediately before the
commencement of this section, will carry over to be the Chairperson of this
tribunal until 30 June 2005. This ensures that the appointment of the
Chairperson, who was appointed in June 2002 to lead the tribunals through
the amalgamation process, will be carried over as Chairperson of this
amalgamated tribunal.
Clause 163 provides that the presiding case manager appointed under
the QBT Act will carry over to be the presiding case manager under this
Bill for the remainder of their term of appointment under the QBT Act.
Clause 164 provides that the one other full-time member of the QBT
will carry over to be a full-time member of this tribunal up until 30 June
2005 on conditions as set by the Governor-in-Council and subject to the
provisions of this Act.
164(2) clarifies that this full-time member is not entitled to seek
compensation simply because their appointment is shortened under the
provisions of this section.
Clause 165 establishes beyond doubt the abolition of a number of
positions, and appointments to those positions, on commencement of this
Bill.
165(1) provides that the person who, immediately before the
commencement of this section, held appointment as Deputy Chairperson of
the QBT, goes out of office on the commencement.
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Commercial and Consumer Tribunal Bill 2003
165(2) and (3) provide that the person who, immediately before the
commencement of this section, held appointment as the Chairperson and
Deputy Chairperson respectively of the LAT, go out of office on the
commencement.
165(4) and (5) provide that the person who, immediately before
commencement of this section, held an appointment as either the
chairperson of the PAMDT or RVT, goes out of office on the
commencement.
165(6) establishes beyond doubt that former members are not entitled to
compensation because their appointment ends by virtue of the abolition of
a former tribunal.
Clause 166 provides that the director of the central tribunals registry
appointed under the QBT Act at the commencement of this Bill will
continue on to be director of the registry established under this Bill.
Clause 167 provides that the staff of the registry under the QBT Act at
the commencement of this Bill will continue on to be staff of the registry
established under this Bill.
PART 10--REPEAL AND CONSEQUENTIAL
AMENDMENTS
Clause 168 provides that the Queensland Building Tribunal Act 2002
(the QBT Act) is repealed on commencement of this Bill.
Clause 169 provides that Schedule 1 amends a number of Acts.
SCHEDULE 1--CONSEQUENTIAL AMENDMENTS
ARCHITECTS ACT 2002
Clauses 1-6 omit provisions from this Act which are now to be covered
by generic provisions in this Bill.
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Commercial and Consumer Tribunal Bill 2003
Clauses 7 and 8 omit two definitions and substitutes new definitions.
DOMESTIC BUILDING CONTRACTS ACT 2000
Clause 1 omits a definition of "tribunal" and substitutes a new definition.
JUDICIAL REVIEW ACT 1991
Clause 1 omits reference to the QBT Act from the list of Acts that
provide for non or limited judicial review of decisions and substitutes the
Queensland Building Authority Act 1991. This Act will now contain the
relevant provisions not subject to judicial review. Under the QBT Act, there
is limited exemption from the operation of the Judicial Review Act 1991 for
the tribunal's exercise of powers in minor domestic building disputes. The
Bill, through this consequential amendment, proposes to continue that
exemption. Appeal on a question of law, as described in clause 100, would
remain in tact, however.
LIQUOR ACT 1992
Clause 1 omits reference to the Liquor Appeals Tribunal and substitutes
a generic reference to the tribunal.
Clause 2 omits references to positions and terms that will be made
outdated by effect of this Bill.
Clause 3 omits a number of definitions that will be made outdated by
effect of this Bill and substitutes new definitions.
Clause 4 omits the current Part 2 and substitutes a remodelled Part 2.
This new Part 2 clarifies the types of matters that are to be dealt with by this
Bill.
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Commercial and Consumer Tribunal Bill 2003
Clauses 5 and 6 omit references to terms that will be made outdated by
effect of this Bill.
Clause 7 amends the Liquor Act to clarify that liquor appeals are to be
conducted as reviews of reviewable decisions as provided by clause 100 of
this Bill.
Clause 8 establishes the jurisdiction of the tribunal to review decisions
referred by the Liquor Act.
Clause 9 omits a number of sections that will now be covered by generic
provisions in this Bill.
Clause 10 renumbers a division of the Liquor Act.
Clause 11 clarifies which parties are entitled to appeal to the tribunal to
have decisions reviewed as reviewable decisions.
Clauses 12 to 16 omit a number of sections that will now be covered by
generic provisions in this Bill.
Clause 17 omits a number of sections that will now be covered by
generic provisions in this Bill and substitutes a new provision that clarifies
that this Bill applies to the extent that Part 2 of the Liquor Act does not
provide for an appeal to the tribunal.
Clauses 18 and 19 make amendments to the provision of the Liquor Act
which allows Police and Local Government to provide appropriate
comment or objection in relation to an application made under the Liquor
Act within a reasonable time. Currently if these agencies do not lodge their
information by either the closing date for objections or within 14 days of
being notified by the chief executive the LAT will not consider their
comments as a valid objection. However, the chief executive is able to
review their submission regardless of the date of receipt.
Council and police are central to the examination of issues of amenity,
health and social impact and the inability of the tribunal to review their
information hinders consideration of the application on its merits. The
amendment is to enable the chief executive to state a time period (or later
extend the period) if Council or police have problems in delivering on time.
For example, if the full Council or planning committee is to consider the
matter these meetings may be at monthly or 6 week intervals
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Commercial and Consumer Tribunal Bill 2003
PEST MANAGEMENT ACT 2001
Clause 1 omits reference to the QBT Act and substitutes references to
this Bill.
PLUMBING AND DRAINAGE ACT 2002
Clauses 1 to 6 omit references to the QBT and substitute references to
the CCT.
Clauses 7 and 8 substitute new definitions.
Clauses 9 to 28 omit references to terms that will be made outdated by
effect of this Bill.
PROFESSIONAL ENGINEERS ACT 2002
Clauses 1-6 omit provisions from this Act which are now to be covered
by generic provisions in this Bill.
Clauses 7 and 8 omit two definitions and substitutes new definitions.
PROPERTY AGENTS AND MOTOR DEALERS ACT 2000
Clause 1 renames the heading of a chapter of the Act.
Clauses 2 to 5 omit parts from this Act which will be made outdated by
the effect of this Bill.
Clause 6 substitutes a new reference.
Clauses 7 to 10 omit a number of sections that will now be covered by
generic provisions in this Bill.
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Commercial and Consumer Tribunal Bill 2003
Clause 11 omits a number of sections and substitutes a new provision
that clarifies that the tribunal may hear disciplinary proceedings referred to
it under this Act.
Clause 12 rewords a provision to establish that the tribunal may conduct
a marketeer proceeding upon application by the chief executive under this
Act.
Clauses 13 and 14 omit provisions which will now be covered by
generic provisions in this Bill.
Clause 15 omits a number of provisions that will be made obsolete by
effect of this Bill and substitutes a provision from the Act that establishes
that the tribunal may extend the time in which a party can file a claim or
seek a review of a decision.
Clauses 16 to 19 omit provisions which will now be covered by generic
provisions in this Bill.
Clauses 20 to 23 omit references in definitions that will be made
outdated by effect of this Bill and substitute new references in their place.
QUEENSLAND BUILDING SERVICES AUTHORITY
ACT 1991
Clauses 1 and 2 omit references that will be made outdated by effect of
this Bill and substitute new references in their place.
Clause 3 transfers a provision from the QBT Act into this Act.
Clauses 4 to 11 omit references that will be made outdated by effect of
this Bill and substitute new references in their place.
Clause 12 transfers provisions from the QBT Act into this Act. These
transferred provisions are building-specific provisions. Amendments have
been made where necessary to avoid confusion. For example, the term
"tribunal work" is now used in place of the previous term "building work".
The provisions of clause 12 give jurisdiction to the tribunal to hear and
determine matters and make order previously made by the QBT.
Clauses 13 to 15 omit references that will be made outdated by effect of
this Bill and substitute new references in their place.
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Commercial and Consumer Tribunal Bill 2003
Clause 16 transfers a number of definitions from the QBT into this Act.
Amendments have been made where necessary, for example, references to
"tribunal" have been changed from references to the QBT to the CCT.
RACING ACT 2002
Clauses 1 to 3 omit references that will be made outdated by effect of
this Bill and substitute new references in their place.
RESIDENTIAL SERVICES (ACCREDITATION) ACT
2002
Clause 1 omits a number of references to the QBT in this Act and
substitutes references to the CCT.
Clause 2 omits reference to the QBT Act and substitutes a reference to
this Bill.
Clause 3 omits a provision which will now be covered by a generic
provision in this Bill.
Clause 4 omits a reference that will be made outdated by effect of this
Bill and substitutes a new reference.
Clause 5 omits a number of provisions that will now be covered by
generic provisions in this Bill.
Clause 6 omits reference to the QBT and substitutes reference to the
CCT.
RETIREMENT VILLAGES ACT 1999
Clauses 1 to 4 omit a number of references that will be made outdated by
effect of this Bill and substitute new references in their place.
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Commercial and Consumer Tribunal Bill 2003
Clause 5 omits a provision which will now be covered by a generic
provision in this Bill.
Clauses 6 and 7 omit a number of references that will be made outdated
by effect of this Bill and substitute new references in their place.
Clause 8 omits a provision which will now be covered by a generic
provision in this Bill.
Clause 9 omits references in a number of sections to provisions that will
be made outdated by effect of this Bill and substitutes new references in
their place.
Clauses 10 and 11 omit provisions of the Act that will now be covered
by generic provisions in the Bill
Clause 12 omits a reference that will be made outdated by effect of this
Bill and substitutes new references in their place.
Clauses 13 to 19 omit provisions of this Act which will now be covered
by generic provisions of this Bill.
Clauses 20 to 22 omit a number of references that will be made outdated
by effect of this Bill and substitute new references.
Clauses 23 and 24 omit provisions of this Act which will now be covered
by generic provisions of this Bill.
Clause 25 substitutes reference to "a tribunal" with "the tribunal",
namely, the CCT.
Clause 26 omits provision which will be made outdated by effect of this
Bill.
Clause 27 and 28 omit a number of definitions used in this Act which
will be made outdated by effect of this Bill.
Clause 29 inserts a number of new definitions for use in this Act.
SCHEDULE 2--DICTIONARY
Schedule 2 contains a number of definitions for words and phrases used
in the Bill.
© State of Queensland 2003