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Legislative Assembly for the ACT: 1998 Week 5 Hansard (27 August) . . Page.. 1488 ..

MR HUMPHRIES (continuing):

A framework of procedural rules is appropriate for these cases, as it is for other commercial disputes which proceed to litigation. On the other hand, many persons who appear before the tribunal, especially tenants, are unrepresented and accordingly the original intention of the legislation, that is, to establish an informal, low-cost and potentially speedy means of resolving disputes, remains valid. The Government notes that the Magistrates Court already has the capacity, for example in its small claims jurisdiction, to provide an informal and speedy means of resolving disputes.

In agreeing that the Tenancy Tribunal become part of the Magistrates Court, the Government proposes that modified procedures apply in cases not involving complex issues of fact or law. In these cases the court will be given the capacity to deal with disputes on a more informal basis. The court will therefore have the flexibility to respond equally to a range of different needs, including those of unrepresented parties with limited financial resources and those of parties who are fully represented and where more formal procedures may be appropriate.

To ensure that appropriate forms of procedures for the court's commercial and retail tenancy jurisdiction are in place by the time the new Act commences, the Government is establishing a procedural committee consisting of the Registrar of the Tenancy Tribunal, the two magistrates who presently deal with Tenancy Tribunal matters and four other persons representing lessors, tenants, the Law Society and the Consumer Affairs Bureau, respectively, to develop new procedural rules.

We are also concerned at the potential for parties and their lawyers to cause unnecessary delays in proceedings. The Government has accepted the working party's recommendation that costs should ordinarily follow the event rather than, as presently, be borne equally by the parties. This will help to address this problem. However, we also propose to investigate the possibility of imposing additional sanctions on those who delay or otherwise frustrate proceedings, with any such provision having general applicability across the broad spectrum of litigation.

There are many advantages in the approach I have outlined. Placing the commercial and retail tenancy jurisdiction squarely within the court's jurisdiction will, first, increase the court's capacity to manage its resources across the range of matters before it; and, given the recent appointment of an additional magistrate, assist the allocation of resources more readily to commercial and retail tenancy hearings, especially in the exercise of its more informal jurisdiction. Secondly, it will substantially overcome doubts and uncertainties identified by the working party in relation to the jurisdiction of the Tenancy Tribunal. Parties will be able to bring commercial and retail tenancy matters to the court, confident that it will have the jurisdiction to deal with them. Thirdly, it will ensure tenants have access to a speedy dispute resolution process; and lastly, it will continue to place emphasis on mediation as a first step in resolving disputes.

Examining the code of practice, the working party made a range of recommendations which seek to clarify the meaning and intent of provisions and are largely of a technical nature, relating to matters of drafting. Although some recommendations contain quite specific suggestions for amendments to the Act, these will necessarily be subject to review

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