As it stands, the original case has been granted leave to appeal to the High Court, but the REINSW wants Parliament to speed up the process.
The court system has never been a nimble instrument of reform, and REINSW President John Cunningham has called on the Government to step in and address the situation because of the impact on residential tenancy and the broad investor base.
“Inevitably there are disputes between parties which require resolution. These disputes must have an efficient and cost-effective means of resolution,” Mr Cunningham said.
“It is not satisfactory for Government to ignore the issue uncovered earlier this year as doing so creates additional problems, costs and disharmony between the parties involved.”
While courts are designed to interpret legislation, the situation of the NCAT appears to be an outcome that is incongruous with the legislative intent to provide a simple, quick and effective process for resolving disputes and reviewing executive action.
The situation would not have arisen in other states as the tribunals of parallel jurisdictions are ‘courts-of-state’ and can make orders in a way that is cross-vested across state borders.
“A resolution can be achieved in full or part by replicating legislation in other states where the problems created by the NSW legislation does not exist,” said Mr Cunningham.
The Government does have the capability to amend the legislation which establishes the NCAT, and to state its intent more clearly. Whether the Parliament did or did not intend for the NCAT to operate in a similar way to other state-based civil and administrative tribunals could be made clear through legislative amendments, which can be passed with haste to remedy the confusion.
“Instead, the Government is sitting on its hands waiting for a decision from the High Court,” said Mr Cunningham.
“The High Court is a very slow-moving creature, so it could take until the end of the year for the matter to be heard. Meanwhile, it exposes both tenants and landlords to additional issues than the original dispute. Importantly, the High Court may agree with the NSW Court of Appeal so the problem in these circumstances will continue.
“In the best interests of this important sector, the NSW Government must act swiftly and effectively and rush the required amendment to the legislation through Parliament as quickly as possible,” Mr Cunningham said.