Preparing for the Tribunal

Once an application has been lodged, the Tribunal will send each party a notice of hearing, with the time, date and place of the hearing, and a copy of the application.

‘Do I have to go?’

In a word: yes.

The Tribunal can and will make orders in your absence. It is much more likely to accept the evidence of the other party if you are not there to challenge it or present your side of the story.

If you really cannot make it to the hearing, you can ask the Tribunal to adjourn the proceedings to a later date. Be aware that the Tribunal will generally decide whether or not to adjourn at the hearing – so if you are not in attendance, you run the risk that the Tribunal will decide not to adjourn and hear the application in your absence. It is a good idea to inform the other party of your request prior to the hearing: the Tribunal is more likely to adjourn if the other party agrees with the request, and they will be more likely to agree if they are forewarned.

Alternatively, you may be able to arrange for another person to represent you in your absence. You will need to ensure that this person can competently represent you, and provide the person and the Tribunal with written authorisation of the representation. The Tribunal, however, does not have to accept this arrangement (NCAT Rules 2014 cl 32). It is better for you to attend, even if you are not feeling confident, and have a support person with you.

Be very cautious if the other party to the proceedings tells you that you do not need to attend – even if you have resolved the dispute. Unexpected things may happen if you are not there.

‘Can I bring other people to the hearing?’

Yes. Bringing a friend or support person can be helpful. They can sit in the public gallery during the hearing. Only in exceptional cases will the Tribunal let a support person speak for you or run the case on your behalf.

You can bring children to the Tribunal, but there is no childcare provided and they are not likely to have much fun. It is a good idea to try to arrange childcare.

If you’re bringing a person to give evidence as a witness, see the section on witnesses below.

Writing a summary

Writing a summary of your case is an excellent way to prepare for a hearing: you’ll be better organised, less nervous, and more likely to get your side of the story across to the other party and to the Tribunal.

The Tribunal may find it helpful too: give a copy to the Member and the other party at the hearing.

Try writing your summary using the following outline, or something similar:

Details of application

Set out your name, the landlord’s name, the Tribunal’s file number of the case, and whether you’re the applicant or the respondent.

Orders sought

State what you want the Tribunal to do: for example, ‘Order that the landlord install keyed window locks’, or ‘The landlord’s application for termination should be dismissed’.

Facts of the case

Set out the relevant facts of the case in the order they happened. If something is not relevant to the case, leave it out.

Argument

State your case: for example, ‘The landlord is in breach of the agreement because they have failed to provide locks that ensure that the premises are reasonably secure’ or ‘The tenancy should not be terminated. I have remedied the breach and taken steps to ensure that it will not happen again. Also, I would suffer undue hardship if the tenancy were terminated’.

Check the Residential Tenancies Act 2010 to see if there are particular factors for the Tribunal to consider in making its decision. For example, in applications about locks and security, the Act expressly says that Tribunal may consider the physical characteristics of the premises, the requirements of insurance companies, and the likelihood of unlawful entry and risks to the tenant’s personal safety (section 191(2)(a)-(c)). You should address these factors specifically.

Conclusion

This is a summary of your summary: restate what you want the Tribunal to do and why.

Under each heading in your summary, write a paragraph for each matter or event that is relevant to your case. (Some paragraphs might only be a sentence or two.)

Tip

Some dos and don’ts about writing a summary:

Do:

  • Use numbered paragraphs for clarity.
  • Present an argument, but avoid being argumentative. Stick to what is relevant to the present dispute.

Don’t:

  • Use underline, italicsor CAPITALS for anything other than headings. Only use them to emphasise something if your point is not clear without the emphasis, and never use them just to make your argument sound stronger. It won’t; instead it will sound cranky and unreasonable.
  • Impute motives to your landlord unnecessarily. For example, if your landlord did not do something they said they would do, just say that 'the landlord did not do as they said', rather than ‘the landlord lied’.

See the sample summary for more ideas about writing your own summary.

Most Tribunal proceedings are conducted without a lot of legal argument or references to caselaw.

However, you may wish to do some legal research of decisions by the Tribunal or the courts in similar or relevant cases to yours, to provide to the Member in the hearing, or simply to help yourself prepare.

Be aware that a past decision of the Tribunal does not bind the Tribunal to deciding a similar case in the same way. The Tribunal can and does make inconsistent decisions.

The following are excellent resources for legal research:

  • AustLII. The Australian Legal Information Institute is a free collection of online databases of Australian legislation and caselaw, including the decisions of the Tribunal and its predecessors. You can search the database of Tribunal decisions directly:

    www.austlii.edu.au/au/cases/nsw/NSWCTTT

    or go to the section of the Residential Tenancies Act 2010 you are interested in – for example:

    www.austlii.edu.au/au/legis/nsw/consol_act/rta2010207/s114.html

    and use the ‘note up’ function to find cases that refer to the section.

  • Residential Tenancies: law and practice, New South Wales, by Allan Anforth. Written by a longstanding member of the Tribunal, this book annotates the RT Act 2010 with references to relevant decisions of the Tribunal and the courts. Ask for it at your local library.
  • Your local Tenants Advice and Advocacy Service (TAAS). Each TAAS employs professional tenant advocates, who communicate with each other about developments in the law. The collective knowledge of the TAASs is huge.

Preparing your evidence

The type of evidence you will use depends on the facts and the argument of the case. Table 5.4 is a guide – you might think of more.

In almost all cases, your own testimony will be an important – perhaps the most important – piece of evidence.

Table 5.4. Guide to possible evidence

Case

Possible evidence

Repairs

Condition report

Letters/emails (eg requests for repairs)

Photographs

Expert reports (eg council inspectors, tradespersons)

Medical reports (eg health impact of damp or mould)

Receipts, invoices and quotes

Reasonable security

Condition report

Letters/emails (eg requests for better security)

Photographs

Statements from insurers about security requirements

Reports from NSW Bureau of Crime Statistics and Research

Rent increases

Rent and Sales Reports from Housing NSW

Consumer Price Index from the Australian Bureau of Statistics (in particular, the Sydney Rents Index)

Advertisements of properties to let

Witnesses (eg statements from neighbours as to what they pay in rent)


 

Termination by landlord – rent arrears

Rent receipts

Bank statements

Budget (eg prepared by financial counsellor)

Statements from neighbours

Medical reports (eg health impact of termination)

Termination by landlord – breach

Condition report

Letters/emails

Witnesses (eg neighbours)

Medical reports (eg health impact of termination)

Termination by landlord – without grounds

Letters/emails (eg requests that the landlord comply with the agreement)

Witnesses (eg neighbours, support workers, kids’ teachers)

Medical reports (eg health impact of termination)

 

Evidence from a witness is best given by them at a hearing. However, it is a good idea to get the witness to first make a written statement (preferably in the form of a statutory declaration). Written witness statements will help you, the Tribunal and the other party prepare for the hearing.

Gather as much of your evidence as you can before the first hearing. Make at least two copies of each document (you might be asked to give copies to the Tribunal or to the other party at the hearing).

Tip

Avoid writing notes on original documents; instead write a note on a separate piece of paper, date it and clip it to the original. Don’t underline or highlight parts of a document to make your point; use a sticky tab instead.