EPMEPM: Best Practice & Legislation

Preparing for Tribunal

The relationship between landlords and tenants is usually agreeable, but sometimes a dispute arises which cannot be resolved. Carol Riley, one of Australia’s most experienced practitioners, gives her top tips for preparing for Tribunal.

Disputes between landlords and tenants can arise for a variety of reasons, including unpaid rent, repairs and maintenance, bond claims, applications for possession orders, compensation claims and breaches of the tenancy agreement. While the majority of applications for a tribunal hearing are initiated by landlords themselves, or by property managers acting on behalf of landlords, tenants may also initiate the process.

It is important to remember that a property manager should only proceed with a case at tribunal under the instruction of the landlord – the parties to the case are the landlord and the tenant, not the property manager or their agency. The property manager’s role is to persuade the tribunal, and to do this they must make a clear, logical and well documented presentation.

Every agency should have policies and procedures regarding preparing for a case, including guidelines and templates. It is also useful to conduct regular training sessions around preparing and presenting to tribunals.

It is often possible to resolve disputes through mediation or negotiation, and these avenues should be investigated before lodging an application for a tribunal hearing.

File Management
The first tip for preparing for tribunal is one that applies even before a requirement exists for a hearing – file management. Good file management should be agency best practice at all times, and having your documents in order is never more useful than when preparing to lodge a tribunal application, or when called into evidence at a tribunal hearing.

At all times during the life cycle of a managed property, proper documentation should be maintained. Key file documents include the management authority, owner’s instructions, tenancy agreement, bond records, inspection reports including photographs, maintenance records, correspondence with the landlord and the tenant, and any other relevant documents.

File notes should be made and kept whenever key discussions are held over the phone or in a meeting, with these notes being made at the time or as soon as possible after the event. Remember to make a note of the date and time of the discussion.

It is important to maintain your file documents and have available a complete record of events should they be required.

Communication
Having clear communication may reduce the need for applications to the tribunal. Before you lodge an application to tribunal, ensure that you have clear instructions from your landlord to proceed, and discuss the desired outcome of the hearing. You should also discuss what other outcomes are possible, and whether the benefit of winning outweighs the time and effort involved.

Once a dispute has escalated to the point where an application for a tribunal hearing has been made, ensure that you continue to communicate clearly with the parties involved, and maintain records of discussions and meetings by making a file note each time.

What’s the Dispute?
Make sure that there is an actual dispute, and that there is a point of law upon which to argue. Property managers should have a thorough working knowledge of their State’s legislation – check the legislation in your State to understand the relevant provisions.

Make a simple list, perhaps in dot point form or a checklist, of all the issues that are important in the dispute. By doing this, you will begin to organise your case and start thinking about what documents, photos and other evidence you will need.

Remember to stick to the facts and to focus on what is important to your case.

Chronology
Prepare a detailed chronolog y or timeline of the incidents or issues that form the basis of the dispute. When you present your case to the tribunal, it can be useful to have a list of the important facts and events with their relevant dates.

Your diary and email records, along with documents held in your management file including file notes, can be useful when establishing a chronology.

Documentation and Evidence
Gather together all the documents relevant to the dispute and the application. Documents required for your hearing will vary, depending on the nature of the dispute. Generally, documents required include the tenancy agreement, bond records, inspection reports including photographs, maintenance records, correspondence with the landlord and the tenant, and file notes.

Rent receipts, account ledgers and reconciliation statements may also be required if your dispute is regarding rental arrears. Make sure that you have copies of these documents for your file. For maintenance or compensation, you may also require itemised supplier accounts, invoices and receipts.

By this stage you will have accumulated quite a few documents, so make sure they organised in a file or folder for ease of access.

Witnesses
Depending on the nature of the dispute, witnesses may be helpful in presenting your case. A witness would be someone who can confirm aspects of the case that you are presenting to the tribunal. Verbal evidence from a witness can be much more valuable then a written statement.

Consider whether there are any relevant witnesses to the facts, and recruit their co-operation.

Before the Hearing
Rehearse what you are going to say at the hearing. It is important to be concise and to stick to the facts.

Before the hearing, make sure that you have copies of your documents for yourself, the tenants and the tribunal Member. On the day of the hearing, dress neatly and professionally. Arrive at least 30 minutes prior to the scheduled time, to allow an opportunity to find the allocated hearing room, catch your breath and prepare.

Tribunal Etiquette
It is important to be aware of proper etiquette at the tribunal:

  • Turn off mobile phones
  • Remove sunglasses and hats
  • Do not take food or drink into the hearing room
  • Show respect for the Member at all items
  • Stand when a Member enters or leaves the room
  • Address the Member as Sir or Madam
  • Speak politely to all parties and witnesses
  • Use relevant legal and industry language where appropriate
  • Demonstrate respect towards other parties
  • Do not interrupt other parties
  • When entering or leaving the room while it is in session bow (as if nodding) to the Member

Aggressive, hostile or threatening behaviour is not tolerated at tribunal, nor is insulting or obscene language.

During the evidence part of the hearing:

  • Listen carefully
  • Never interrupt the questioner
  • Take notes if required
  • Answer questions clearly
  • Give short answers
  • Only answer the questions asked – do not offer additional, irrelevant information

The Hearing
After the arrival of the Member, each party is required to make an oath or affirmation that they will tell the truth. Each party informs the Member of any witnesses, and the witnesses may be asked to wait outside. Witnesses must also make an oath or affirmation that they will tell the truth, and this may be done at the start of the hearing or as they are called.

If you are the applicant, summarise the basis for the application and describe the remedy being sought. Tell your story clearly and chronologically. Produce your evidence and question witnesses as appropriate. Listen carefully to questions asked of you by the Member and answer the question asked. Be confident in your presentation.

As the respondent, the tenants then respond to your case by presenting their own evidence, asking questions of your witnesses and calling their own witnesses as applicable. After the respondents have presented their case, the applicant may then respond to their evidence and have the opportunity to ask questions of the respondents’ witnesses.

If you are the respondent, the tenants will present first, with you responding to their case.

After the Hearing
A debriefing is helpful after any tribunal hearing, with an evaluation of the events providing an opportunity for improvement of procedures within the agency. At an informal “no blame” session, appoint a facilitator, and focus on lessons to be learned. Remember – the aim is to encourage continual improvement.

During the session, these three key areas should be covered:

  • Describe the issue, including all factors leading up to it, and its impact
  • Undertake an analysis of what occurred – clarify the facts and look at how things might have been done better (it is important not to blame or accuse individuals)
  • Incorporate any lessons learned into agency procedures.

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