For the first hearing of your case, the Tribunal will list it to be heard along with a number of other cases.
At the hearing, the first thing the Tribunal will do is call out the names of the cases on the list, to find out which cases have both parties in attendance. The Tribunal will ask these parties to step outside and try to settle their matter by conciliation. Then the Tribunal will begin to deal with the cases where parties have not turned up.
Although the Tribunal is supposed to operate in an ‘informal’ manner, you should conduct yourself in a way that shows you respect the Tribunal and are taking the proceedings seriously. The same goes for what you wear: you don’t have to wear a suit, but you should be neat and tidy.
The Tribunal is required to promote the use of ‘resolution processes’, such as conciliation, in which parties are assisted to resolve or narrow the issues between them (NCAT Act 2013, section 37).
What it does varies a lot: in some venues it might invite you to use a private conciliation room and the assistance of a Tribunal officer (a deputy registrar or a Tribunal Member); in other venues it might just ask you and the landlord to talk in the foyer.
In conciliation, put to the other party what you want. Show them your evidence, and ask to see their evidence. Listen to what they say they want, and consider possible ways of settling the dispute.
Anything said during conciliation cannot be used in a Tribunal hearing or other legal proceedings. (NCAT Reg 2013 Schedule 2, clause 2(2)). This means you (or the landlord) can offer concessions or compromises in an attempt to reach a settlement without these offers being used against you later.
If you agree
If you and the other party agree to settle the dispute, write down the terms of the settlement (the Tribunal will provide a form for this). Read it over carefully then hand it up to the Tribunal. The Tribunal will then make orders (‘consent orders’) that make the settlement binding and enforceable. (If there are parts of your settlement that the Tribunal cannot make orders about (for example, your social housing landlord will approve your application for a transfer), the Tribunal may ‘note’ these parts of the settlement, and make orders for the rest.)
If you don’t agree
If you cannot agree on a settlement, the matter will go to a hearing. Even if you cannot settle everything, you might still be able to agree on some things: for example, that repairs will be done by a certain date, while your compensation claim will go to a hearing; or that you and the landlord will exchange evidence by certain dates.
At the first hearing, the Tribunal may either start hearing evidence, with a view to making final orders on the day, or adjourn the proceedings to another day. This will depend on the nature of the case (the Tribunal will usually try to finalise rent arrears cases on the day; while cases that involve witnesses will generally be adjourned to a later date).
If the case is adjourned, the Tribunal will usually make some procedural orders (‘directions’) for the parties to exchange evidence, and you will be notified later by mail as to the time and venue of the next hearing.
You may have to revise your summary to take account of the other party’s case and their evidence.
Presenting your case
Generally, the party making the application will be asked to present their case first.
Use your summary to present your case in an orderly way (give a copy to the Member). When you get to presenting the facts of the case, the Tribunal may ask you to swear or affirm that what you say is true, and then take your testimony as evidence. The Tribunal Member may ask you questions; when you’re finished, the other party will be given an opportunity to ask you questions too (see ‘Witnesses’ below).
As you present the facts of the case, also refer to your documentary evidence (letters, photographs, etc) and hand these documents up to the Tribunal too.
When your landlord presents their case, listen carefully and make notes. If they present a document as evidence, check it to see if you’ve seen it before. If you haven’t, tell the Tribunal Member that you object, and that you should be given time to see it. (If the landlord has had plenty of opportunities – and orders – to show you the evidence before, you might even ask the Tribunal not to allow it as evidence at all.)
Also, if you have already presented your evidence, and your landlord gives evidence that contradicts or discredits you or one of your witnesses without having first put it to you or the witness, you may object. The Tribunal might then allow you or the witness an opportunity to explain the contradiction, or disallow the evidence altogether.
If you want to present evidence from another person, consider asking them to attend the Tribunal as a witness and give their evidence as testimony. This is better evidence than a statutory declaration, or a signed letter or report, because the Tribunal and the other party can ask questions of the witness and test their evidence.
Generally speaking, your witnesses should be persons who are willing to participate in the proceedings, and whose evidence you know will assist your case. It is usually not a good idea to call as a witness someone who is reluctant to attend or is hostile to you.
The Tribunal can issue a summons for a witness, which means they are legally required to attend; this may be useful if your witness needs to show their employer that they must take time off work. The Tribunal charges a fee for issuing the summons. If you summons a witness, you should also be prepared to pay ‘conduct money’ to help cover the cost of their attendance.
Witnesses can give evidence by producing documents, and by giving testimony. Witnesses’ testimony is given in the form of answers to questions put by the party who called them (this is called ‘examination’), the other party (‘cross-examination’) and by the Tribunal Member.
When you ask questions of your witnesses, try to use open questions that allow the witness to answer in their own words. Avoid closed questions that have a ‘yes/no’ answer and ‘leading questions’ that suggest their own answer. For example, ask: ‘Can you describe to the Tribunal the condition of the property?’; not ‘The property was in terrible condition, wasn’t it?’.
When you cross-examine the other party or their witness, do try to use closed questions, and ask only as much as you need to. You don’t want to let them give their side of the story all over again.