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Where am I now? Lawlink > Administrative Decisions Tribunal of NSW > Practice and Procedures > Practice Notes > Practice Note Number 08
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ADMINISTRATIVE DECISIONS TRIBUNAL PRACTICE NOTE No. 8 Retail Leases Division The Retail Leases Act 1994 was amended on 12 October 2001 to enable unconscionable conduct claims to be lodged with the Tribunal. This Practice Note is being issued to replace Practice Note 3 issued on 9 May 2000 to take into account those amendments. The purpose of the Practice Note is to outline the procedures to apply for the case management of both retail tenancy claims and unconscionable conduct claims made under the Retail Leases Act 1994. These procedures are also designed to assist parties to settle their claim without the need for a formal hearing. It is important for applicants to note the different provisions relating to retail tenancy claims and unconscionable conduct claims. In respect to unconscionable conduct claims, these include a higher filing fee, an ability to apply for proceedings to be removed to the Supreme Court and a right of appeal to the Supreme Court (not to an Appeal Panel of the Tribunal). The higher fee and differing appeal rights also apply where the proceedings relate partly to a retail tenancy claim and partly to an unconscionable conduct claim. Application An Application under the Retail Leases Act 1994 will be dealt with as follows: 1. An Application under the Retail Leases Act 1994 must be filed together with the prescribed fee. 2. The Registrar of the Tribunal will check the application to see if it is accompanied by a Certificate from the Registrar, Retail Tenancy Disputes that mediation has failed to resolve the dispute. The Registrar will notify the Retail Tenancy Unit of the application. 3. The Registrar will give to the Applicant a sealed copy of the Application to serve on the Respondent. 4. The Registrar will organise a Directions Hearing before a Tribunal Member as soon as possible and no later than a date within 4 weeks. The Registrar will advise the Applicant and the Respondent by letter of the details of the Directions Hearing. Half an hour will be set aside for the Directions Hearing. 5. At the Directions Hearing the Tribunal Member may seek to conciliate between the parties, in accordance with s 74 of the Act, and make any order that is agreed to by the parties. 6. The Member may adjourn the matter and refer it to the Retail Tenancy Unit for mediation before the matter is given a hearing date. 7. The Tribunal can usually make arrangements for an officer of the Retail Tenancy Unit either to a) attempt an immediate resolution of your dispute or b) arrange a formal mediation session as soon as convenient to the parties. 9. The hearing will generally be listed within 8-10 weeks unless the urgency of the matter warrants an earlier date. 10. The hearing date will not be changed unless circumstances arise which are beyond the control of the parties or their representatives. 11. As to costs, Section 77A of the Retail Leases Act adopts the rule in section 88 of the Administrative Decisions Tribunal Act 1997 . The rule is that the Tribunal may award costs only if it is satisfied that there are special circumstances warranting an award of costs. Interim Orders Where an Applicant seeks an Urgent Interim Order under section 72(1)(g) or 72AA (4) of the Retail Leases Act pending a final decision of the Tribunal, the Application for an Urgent Interim Order will be dealt with as follows: 1. An Application for an Urgent Interim Order and an Application under the Retail Leases Act 1994 must be filed together with the prescribed fee. 2. The Registrar will give the Applicant a sealed copy of the Application to serve on the Respondent. 3. The Registrar will organise a date and time for the hearing of the Application for an Urgent Interim Order generally within 2 or 3 days. 4. The Registrar will contact the Retail Tenancy Unit and advise them of the time and date of the hearing and the nature of the Application. 5. At the hearing the Tribunal’s first objective will be to try to resolve the Application without the need for formal orders. The Tribunal will only make formal orders where the matter is unable to be resolved informally. 6. The Tribunal can usually make arrangements for an officer of the Retail Tenancy Unit either to a) attempt an immediate resolution of your dispute or b) arrange a formal mediation session as soon as convenient to the parties. 7. If the matter does not settle, the Member will determine the Application for an Urgent Interim Order and may list the Application under the Retail Leases Act 1994 for hearing within 8-10 weeks unless the urgency of the matter warrants an earlier date. If the matter is listed for hearing the Tribunal Member will make directions either after the hearing for an Urgent Interim Order or at a later directions hearing setting out the steps required to be taken by the Applicant and the Respondent to prepare for the hearing. Judge KEVIN O’CONNOR President 13 November 2001 |
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