ACAT changes: what are they and how do they affect you?

Many people, especially individuals and small businesses, may be familiar with the ACT Civil and Administrative Tribunal (usually referred to as the ACAT or Tribunal). With their focus on early alternative dispute resolution and proactive case management, the ACAT hears claims in a wide variety of areas, most notably civil disputes residential tenancy, mental health and unit titles claims.

In December 2016 several changes were made to the Tribunal’s powers. The main change was an increase in the civil disputes jurisdiction of claims to $25,000, a significant increase from the previous maximum of $10,000. The ACAT website states the increase is to “ensure that the civil dispute jurisdiction of ACAT continues to be able to address the needs of the Canberra community.[1]

A few months in, does it look like parties to an ACAT civil claim have benefitted from the changes? Below, we explain the updated procedures, crunch some numbers and provide our insights into how this may affect you.

Different procedures

To accommodate the widening of the ACAT’s jurisdiction, new procedures have been adopted to progress claims in a timely and cost-efficient manner. For contested claims up to $3,000, a Conference and Determination process has been implemented. The Tribunal will list the matter for a preliminary conference, with parties to file all material prior to the conference. If the matter is not resolved at the conference, it will usually be scheduled before a different ACAT Member on the same day for hearing.

For those bringing claims over $15,000, the Tribunal may use the Conference and Evaluation process. Parties will be required to submit a case summary and position summary prior to a preliminary conference being held. If the dispute does not settle at the conference, the matter will proceed to a directions hearing where a timetable will be set to take the matter to hearing.

Both processes are intended to assist in:

  • deciding the real issues in dispute between the parties; and
  • discussing and helping the parties reach a settlement before the hearing; or
  • having the matter listed for hearing in a swift and fair manner.

One of the other changes affecting the civil claims includes the requirement for Presidential Members of the Tribunal to be eligible as Magistrates. Other interstate tribunals also employ a judicial head, so it remains to be seen whether this will change the culture of the ACAT, as some fear it may.

Reasons for changes

The dual purpose in raising the maximum jurisdiction was to:

  • improve access to justice to those for bringing claims beyond the previous $10,000 limit but still of relatively low value; and
  • alleviate some of the pressure on the Magistrates Court, which hears civil claims up to $250,000.

It remains to be seen whether the increase in jurisdiction will see a larger number of matters being filed in the Tribunal rather than the Court. Between July 2014 and June 2015, 1997 matters were lodged in the civil jurisdiction of the Magistrates Court.[2] In comparison, the Tribunal’s 2015-2016 Annual Review, published a month before the changes were implemented, indicated a general downward trend in the number of civil dispute applications lodged as follows:

ACAT

Existing matters in the Magistrates Court which now fall into the Tribunal’s jurisdiction can also be transferred to the Tribunal on application by either of the parties. If the Court considers it to be the interests of justice to transfer the matter, it will make that order accordingly.

The jurisdictional increase also brings the ACAT more in line with its interstate equivalents. For example, since May 2014 the NSW Civil and Administrative Tribunal (NCAT) has determined consumer claims up to the value of $40,000, an increase from its previous limit of $30,000.[3] In Victoria, the VCAT Civil Claims List can hear disputes for any amount of money that arise out of the purchase or supply of goods or services of any value (noting the claim must have a connection to the state of Victoria).

The jury is out

The change in the civil claims maximum to $25,000 took many by surprise. Whilst most had been expecting an increase, the 250% jump was far more than would be considered a proportionate increase in line with inflation.

The move clearly had community support and good policy reasons behind it. However, the increase has also put more pressure many Tribunal users, especially sole traders and small businesses which regularly provide goods and services for under $25,000. As mentioned above, until recently the ACT Magistrates Court had jurisdiction of matters between $10,001 and $250,000. One of the key differences between the Magistrates Court and Tribunal is that the Tribunal is a “costs-free jurisdiction”, meaning that parties to an application must bear their own costs, including legal costs, unless the Tribunal otherwise orders.[4]

Therefore, whilst a litigant could previously have expected to recover their legal fees along with a sizeable debt of, say, $20,000, this is no longer the case. Except in special circumstances, legal fees will have to be worn by the claimant, or they may consider prosecuting a claim without lawyers. Despite the Tribunal’s aim to be friendly to self-represented litigants, running an ACAT case from start to finish is often a daunting prospect for most.

It remains to be seen whether the ACAT can handle the increased number of claims which have trickled down from the Magistrates Court, whilst upholding its key “cheap and fast justice” function. Watch this space for a full review when the annual figures are released. In the meantime, if you need help with an ACAT claim, or have any questions about your options, please contact Litigation. Bradley Allen Love assists clients, whether claimants or respondents to an application, in preparing their cases, advising in relation to required evidence and legal points which may arise as part of the claim, and can support or attend the Tribunal as required.

[1] From: http://www.acat.act.gov.au/application-type/civil_disputes_and_common_boundaries/increase-in-civil-jurisdiction.

[2] ACT Magistrates Court Annual Review 2014-15, from: http://www.courts.act.gov.au/__data/assets/pdf_file/0005/971321/act_magistrates_court_annual_review_2015.pdf.

[3] Consumer Claims Regulation 2014 (NSW) regulation 4.

[4] ACT Civil and Administrative Tribunal Act 2008 (ACT) section 48.