High cost of choosing wrong Tribunal tactics

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Anyone heading for a hearing at NCAT who is considering “Trumpifying” their case by overloading the tribunal with documents, denying known facts to confuse the issue, and digging their heels in by dismissing genuine offers of compromise should think again as it could cost a bucketload of cash.

The former caretaker managers in the recent Acacia Gardens case have just had costs awarded against them for employing tactics that the tribunal Member felt warranted the “special” circumstances that can trigger a costs award.

Just to backtrack, although NCAT hearings are supposed to be conducted as low-cost, pay-your-own-way processes, there are special circumstances in which the Member hearing the case must consider awarding costs to one side or the other.

These include (but are not limited to):

  • whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,
  • whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
  • the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
  • the nature and complexity of the proceedings,
  • whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,
  • whether a party has refused or failed to comply with the duty imposed by section 36(3),
  • any other matter the Tribunal considers relevant.

*Section 36 (3) of the tribunals Act requires active participants in cases to “facilitate the just, quick and cheap resolution of the real issues in the proceedings.”

So how might you lose a case and have to pay the other side’s costs – or even win and have to pay, as has happened, albeit rarely – by choosing the wrong tactics?

Delaying the proceedings with unreasonable last-minute demands for information might do it, as would dumping reams of supposed evidence documents on the table just when everything was set to go.

Keeping vital information from the other side might set alarm bells ringing and lining up witnesses who have nothing to contribute would do it too.

Then there’s pursuing a case you know you can’t win unless the other side just gets fed up or runs out of money may raise legal hackles.

Getting “smart” during examination by the other side, by refusing to admit to facts that are known to be true is a delaying tactic that might work in an American TV courtroom but butters no parsnips in an Australian tribunal.

In the Acacia Gardens case, the respondents apparently declined to accept that they had been on the strata committee when it was plain that they had been. This was cited by the Member as one reason they were having costs awarded against them.

“The Tribunal is satisfied that the duration of the hearing, and thus the costs, was increased by the unreasonable failure to concede matters such as [the respondents’] membership of the strata committee,” Senior Member Graham Ellis SC said in his summing up.

Refusing to reasonably consider a genuine attempt to reach a compromise, was also one of the reasons given for awarding costs in that case.

These were not the only reasons given.  Other matters were taken into consideration, individually and collectively.  And it should be noted that the respondents in this case may yet appeal the decision, and the plaintiffs may also appeal against only receiving “ordinary” costs and not the higher amount of “indemnity” costs

The important thing to remember is that the awarding of costs to one side or another is not a penalty related to the rights and wrongs of the case, it’s more a reflection of how willing or not either party has been to reach a fair and equitable solution in a reasonable time.

That’s why it’s possible to win on the legal points but end up having to pay the other side’s costs because of the way you conducted the case. If you make the hearing go longer than it needed to, you could trigger the costs question.

So, if you ever do end up at a tribunal, try to suppress your inner Perry Mason and Rumpole of the Bailey, and make an effort to get to the facts as quickly and transparently as possible.

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  • #62187
    Jimmy-T
    Keymaster

    Anyone heading for a hearing at NCAT who is considering “Trumpifying” their case by overloading the tribunal with documents, denying known facts to co
    [See the full post at: High cost of choosing wrong Tribunal tactics]

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  • #62248
    TrulEConcerned
    Flatchatter

    Good article.

    I have enjoyed success recently at NCAT, as the applicant, where the respondent was a tad “economical” with the facts and dragged out NCAT proceedings unnecessarily. Earlier the respondent kept changing mediation dates. When I declined to agree to yet another change of date the respondent sought for one of several mediation sessions, the registrar agreed with me and binned the planned mediation and instead offered me a direct route to NCAT, rather than delay mediation by 5 weeks as the respondent sought.

    If I may suggest a strategy that worked for me at mediation and at NCAT and should work for others: put together your application for mediation (a prerequisite , in most cases, for a NCAT hearing) as though it’s the NCAT application you’re preparing or say, the “claim” you will provide to the local court, if you think you’ll end up there. That is, right from the get go,  be transparent in what outcome you seek and include every bit of evidence you intend to rely on at every step where you plan to seek redress, starting with mediation. In short: include chapter and verse of the relevant facts.

    Accept the dates offered you by Strata Mediation and/or NCAT, unless you honestly cannot attend at those times.

    That way the mediator and the Tribunal Member (if it ends up at NCAT) or the magistrate (if it ends up in the local court) can all see you as transparent. And that’s the impression you should want the presiding officer to a hold of you.

    Furthermore, treat mediation as a BIG DEAL. A really BIG DEAL. Here attendance is optional and in my experience, some parties do not attend (and they re not penalised) and often some parties’ preparation for mediation is akin to toddler trying to feed herself pasta: the contents end up nowhere near where they should be. Instead they end up all over the place. In the toddler’s case, all over the kitchen and at NCAT, good arguments are strewn in an incoherent manner and piles of evidence need to be waded through to get to the point.

    I have no idea why some prepare poorly for mediation. Perhaps some think they can “wing it” on the day and some think the other party will see that time and money is needed to progress the matter to NCAT and  hence will consent to an agreement reached at mediation.

    The most important lesson I learned at mediation is that agreements made by a party are not enforceable on their own. The party expecting the other party to honour its word must to NCAT to enforce it. That is, if a party agrees to do something or pay something can, as happened in my case, disown their own written agreement. This forces me to go to NCAT  and ask NCAT to order them to comply.

    #62262
    Jimmy-T
    Keymaster
    Chat-starter

    treat mediation as a BIG DEAL. A really BIG DEAL. Here attendance is optional and in my experience, some parties do not attend (and they re not penalised)

    Just to clarify, attendance is not compulsory for the respondents but it is for the plaintiffs.  Apart from in a few very specific circumstances, your application for an NCAT hearing requires you to confirm that you have genuinely attempted mediation.  If you didn’t turn up for the mediation, there will be no Tribunal.

    #62266
    Just Asking
    Flatchatter

    Mediation is not a dress rehearsal for NCAT. It is an opportunity for the parties to negotiate their own solution, on their own terms. Once they arrive at NCAT they will be subject to the solution imposed upon them by the tribunal.

    If the matter is not resolved at mediation that does not mean the mediation has been a waste of time. Parties can learn useful information about the motivation of the other party, how far apart from resolution the parties are, and insights into the likely manner the other party will run their case. You can better understand which aspects matter most to them. This all helps with preparing a strategy for NCAT, or the possibility of reaching a settlement further down the line.

    #62273
    TrulEConcerned
    Flatchatter

    Jimmy – you’re correct. I did not spell my thoughts out correctly. The applicant indeed must show that he/she attempted Mediation and it failed in part or in whole, before getting the green light to go to NCAT.

    Just asking – in many cases, your explanation of the benefits of Mediation make sense. Especially your point on determining how far apart the parties are, so that at NCAT everyone has a good idea of the chasm to be bridged. But I am involved in a couple of strata schemes where no good faith has been exhibited by the OC. In one case, an OC agreed in writing to doing something by a certain time and then ignored their promise completely. That is why I insist on giving everything (ie evidence) up front and early so as to flag that I am dead serious about the issues and can if need be at NCAT show not only the foot dragging by the OC in the time from Mediation to NCAT but also the time from when a matter was brought to the OC’s attention until it went to Mediation.

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