In this article, legal columnist and former barrister HUGH SELBY explains how to make or defend a small claim in our local tribunal, the ACT Civil & Administrative Tribunal (ACAT).
In ACAT, claims can be up to $25,000 (unless both parties agree to a higher amount) covering transactions such as: end of residential lease claims for repairs and return of rental bond; sales and repairs of second hand cars and boats; crash repair costs; home renovations such as fences, decks, sheds, and upgrades to kitchens and bathrooms; building report on sale of a home; disputes with airlines about cancelled flights; and, claims made under warranty.
These cases typically come about for such reasons as:
- Attempts to save money: avoiding GST; patching when replacement was necessary; shortcuts such as using a handyman instead of a qualified trade.
- No paperwork.
- Being scammed: for example, by turning a small plumbing job into a big one.
- Poor trade work: tiling, flooring, roofing, electrical and plumbing.
- A business decision to resist any complaining customer’s demands.
The successful party cannot claim any legal costs from the loser, so the parties often represent themselves. Landlords may use property managers to present their case.
Before you start
As a claimant or defendant what do you have to do? First, put yourself in the decision maker’s position. Why should they prefer your account to that of the other side? If you can’t confidently answer that question then don’t litigate.
If you decide to go ahead then have you considered the time and stress that will be required. Is it still worthwhile?
What the decision maker decides includes:
- What was the agreement: to do what, when, at what price?
- What, if anything, was not done, or not done well enough?
- What, if any, is the amount of compensation required to make good?
The applicable law is often the Australian Consumer Law, but only when the dispute arises in trade and commerce, as when you purchase goods from a supplier business. Note that auction purchases are excluded from this law.
Otherwise, there are well established sales of goods legal concepts that come into play.
With tenancy cases read the terms of the lease carefully.
The standard of proof is balance of probabilities, so more than 50 per cent, and the burden of proving a case is on the claiming party.
Assertion and belief are not facts and so are not evidence.
The need for records
In word-on-word cases it is often impossible for the impartial decision maker to prefer one version to another. This means that the claimant loses.
That is why it is so important to have written and visual records. Examples include a written agreement, keeping a diary, text messages, photos, quotes, invoices, proof of payment (NO cash unless you have a receipt), sighting proof of appropriate work licence/s.
Tenants should always take care to note on the entry and exit inspection reports where they disagree with the landlord’s assessment of any damage and who is responsible for it.
The parties will be required between the first and second hearings (discussed below) to prepare written witness statements supported by any of the above material.
The first hearing is about preparation
There may be a filing fee. If short of funds then apply for a reduced or no fee.
The usual steps are that there are two hearings. Have a support person at both as you need a second opinion when responding to the suggestions of the other side and the decision maker.
The first hearing is a Directions hearing which takes place once the details of the claimant’s claim and the defendant’s response have been lodged. The parties can request to attend by AVL or by phone if personal attendance is impractical.
This hearing is a review of the preparation done by the parties. It may also include some comment about the respective cases from the person conducting the Directions hearing.
Whether this hearing is worthwhile depends on who is conducting it; whether s/he has read the file properly; are they aware of the relevant law?; and, do they show an appreciation that the parties consider this dispute to be an important matter?
Do not let the other side, or the person conducting the Directions hearing, bully you. Some matters will settle because the person conducting the Directions hearing can point out some key factor or factors that make the outcome inevitable. However, you may have an ACAT person who sees making the parties settle as the “be all and end all” of the process. The ACAT person wins, but one or both parties lose.
If there is no agreement, then the dispute goes to a hearing. Directions will be given to the parties as to further preparation, such as witness statements and timelines.
This is also the time to indicate whether interpreters are necessary, or whether one or more of the parties should appear on AVL or by phone (because, for example, they have left Canberra, or they are immobile, or have child-minding responsibilities)
The hearing
The second hearing is not like a court hearing. The rules of evidence that apply in courts influence, but do not mandate, how evidence is received in the tribunal.
The procedure, too, is much more flexible than in a court: for example, the Tribunal may take evidence on one discrete issue from both sides (such as the terms of any agreement) so as to properly evaluate the extent to which there was or was not performance of that agreement in later evidence that is again from both sides.
A key reason for the tribunal procedure being unlike that of a court is that untrained people cannot effectively cross-examine their opponent’s witnesses. Cross-examination is an essential part of the court adversarial approach. Without it the fact finder needs to ask more questions.
It’s important for all parties to be given a fair go. Despite all the written preparation, even decision makers who have carefully read all that material may find that the dispute has other important aspects that only emerge at the hearing. Those aspects can lead a decision maker to have a changing assessment of the case as it unfolds. Put another way: first impressions can be wrong impressions, as can second and third impressions.
Some decision makers think that small claims are just a process line, somehow less important than other matters heard in the ACAT. Some think that disadvantaged people are less truthful than well-educated people. They may fail to show you proper respect. You should politely point out that this is the wrong way to conduct a hearing.
How the decision will be given
The decision maker will often give it in spoken form the same day, after a short break to gather their thoughts.
Winners are happy and losers are not. If you have lost then step one is to calm down. Step two is to promptly ask the ACAT registry for a typed copy of that decision. Step three is to consider those reasons and discuss them with someone who does not have your emotional investment in the case. Only then do you decide about any appeal. Most losers rightly decide to accept the decision and move on.
More details on ACAT work at acat.act.gov.au/case-types
Former barrister Hugh Selby’s free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.
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