New South Wales Consolidated Acts New South Wales Consolidated ActsIn this Schedule--
"Division decision" means a decision of the Tribunal in exercise of a Division
function.
"Division function" means a function of the Tribunal allocated to the Division
by this Schedule.
"Division Head" means the Division Head of the Division.
"Division member" means a member who is assigned to the Division.
"substantive Division function" means a Division function other than--
(a) a Division function exercised in connection with the making of an ancillary or interlocutory decision of the Tribunal, or
(b) a Division function exercised by a registrar.
(1) The Division is to be composed of the following members--(a) the Division Head,(b) such other members as may be assigned to the Division by or under this Act.
(2) The Minister may not recommend the appointment of a person as the Division Head unless the Minister certifies that the Minister has consulted with the Minister for Innovation and Better Regulation about the appointment.
(1) The functions of the Tribunal in relation to the following legislation are allocated to the Division--Agricultural Tenancies Act 1990Australian Consumer Law (NSW)Boarding Houses Act 2012Community Land Development Act 2021Community Land Management Act 2021Contracts Review Act 1980Conveyancers Licensing Act 2003 (but only in relation to Division 3 of Part 4 of that Act)Credit (Commonwealth Powers) Act 2010Dividing Fences Act 1991Fair Trading Act 1987Holiday Parks (Long-term Casual Occupation) Act 2002Home Building Act 1989Motor Dealers Act 1974Motor Dealers and Repairers Act 2013Motor Vehicle Repairs Act 1980Pawnbrokers and Second-hand Dealers Act 1996Property and Stock Agents Act 2002Residential (Land Lease) Communities Act 2013Residential Parks Act 1998Residential Tenancies Act 2010Retail Leases Act 1994Retirement Villages Act 1999Strata Schemes Management Act 2015Sydney Water Act 1994Uncollected Goods Act 1995
(2) Subclause (1) extends to--(a) any functions conferred or imposed on the Tribunal by statutory rules made under legislation referred to in that subclause, and(b) any functions conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of proceedings for the exercise of functions allocated by that subclause (including the making of ancillary and interlocutory decisions of the Tribunal).
(3) However, the functions allocated to the Division do not include--(a) any functions of the Tribunal involving the exercise of its administrative review jurisdiction, or(b) any functions of the Tribunal allocated to the Occupational Division of the Tribunal.Note : Functions that are not expressly allocated to this Division or another Division are allocated to the Administrative and Equal Opportunity Division. See clause 3(1) of Schedule 3.
Note : If special constitution requirements for the exercise of a Division function are not specified by the following provisions, the Tribunal may be constituted in accordance with the general provisions of section 27 of this Act. The Tribunal may also be constituted in accordance with the general provisions of that section in connection with the exercise of Division functions for the purposes of making ancillary or interlocutory decisions of the Tribunal.
(1) The Tribunal, when exercising its substantive Division functions for the purposes of the Retail Leases Act 1994 , is to be constituted by 1 Division member who is an Australian lawyer.
(2) For this purpose, the Tribunal may (but need not) be assisted by 2 other members, in an advisory capacity only, consisting of--(a) a member who has experience as a lessor, or working on behalf of lessors, under retail shop leases, and(b) a member who has experience as a lessee, or working on behalf of lessees, under retail shop leases.
(3) A member assisting the Tribunal under this clause is not to adjudicate on any matter before the Tribunal.
(4) Terms used in this clause that are defined in the Retail Leases Act 1994 have the same meanings as in that Act.
(1) Meaning of "court" For the purposes of this clause,
"court" means any court, tribunal, board or other body or person (other than one referred to in subclause (2)) that--(a) is empowered under any other Act, or(b) by consent of, or agreement between, 2 or more persons has authority,to decide or resolve any issue that is in dispute, whether through arbitration or conciliation or any other means.
(2) However,
"court" does not, for the purposes of this clause, include--(a) a court, tribunal, board or other body or person that, in relation to a particular matter, is empowered by law to impose a penalty, admonition or other sanction for a contravention of a law or for misconduct or breach of discipline proved to have been committed in connection with that matter but is not empowered to award or order compensation or damages in respect of that matter, or(c) the Ombudsman, or(d) any person exercising the functions of an ombudsman under any law of the Commonwealth, or(e) any person authorised, under a law of the State or of the Commonwealth or of another State or a Territory, to make decisions or orders, or give directions, that are binding only on one party to a dispute.
(3) Effect of application to Tribunal or court If, at the time when an application was made to the Tribunal for the exercise of a Division function, no issue arising under the application was the subject of a dispute in proceedings pending before a court, a court has no jurisdiction to hear or determine such an issue.
(4) Subclause (3) ceases to apply to the extent to which the application concerned is dismissed for want of jurisdiction or withdrawn.
(5) Subclause (3) does not prevent a court from hearing and determining any proceedings in which it is claimed that any order, determination or ruling of the Tribunal in exercise or purported exercise of a Division function is invalid for want of jurisdiction or from making any order as a consequence of that finding.
(6) For the purposes of subclause (3), an issue arises under an application made to the Tribunal for the exercise of a Division function only if the existence of the issue is shown in the applicant's claim or is recorded in the record made by the Tribunal in accordance with this Act.
(7) Effect of pending court proceedings on Tribunal If, at the time when an application is made to the Tribunal for the exercise of a Division function, an issue arising under the application was the subject of a dispute in proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue.
(8) Subclause (7) ceases to apply to the extent to which the proceedings concerned are dismissed or quashed by the court, or by another court, for want of jurisdiction or without deciding the issue on its merits, or withdrawn.
(9) Evidence from court proceedings In proceedings on an application to the Tribunal for the exercise of a Division function, a finding or decision made by a court, tribunal, board, body or person referred to in subclause (2) is admissible as evidence of the finding or decision.
(10) Clause prevails over other law This clause has effect despite Part 3 of this Act or any other Act or law to the contrary.
(1) If the parties in any proceedings for the exercise of a Division function so agree, or if the Tribunal of its own motion or on the application of a party so directs, the proceedings are--(a) to be transferred to a court (in accordance with the rules of that court) that has jurisdiction in the matter, and(b) to continue before that court as if the proceedings had been instituted there.
(2) If the parties in any proceedings that have been instituted in a court so agree, or if the court of its own motion or on the application of a party so directs, the proceedings are, if the proceedings relate to a matter for which the Tribunal has jurisdiction to exercise a Division function--(a) to be transferred to the Tribunal in accordance with the procedural rules (if any), and(b) to continue before the Tribunal as if the proceedings had been instituted in the Tribunal.
Despite section 45 of this Act--
(a) a party to proceedings for the exercise of a Division function is entitled to be represented by an Australian legal practitioner without requiring the leave of the Tribunal if the party has been granted legal assistance under Division 2 of Part 2 of the Fair Trading Act 1987 , and
(b) a party to proceedings for the exercise of a Division function for the purposes of the Retail Leases Act 1994 is entitled to be represented by an Australian lawyer or other agent without requiring the leave of the Tribunal.
Note : The leave of the Tribunal will, however, be required under section 45 of this Act in other cases.
(1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal.
(2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with.
(3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act.
(4) When proceedings have been renewed in accordance with this clause, the Tribunal--(a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or(b) may refuse to make such an order.
(5) This clause does not apply if--(a) the operation of an order has been suspended, or(b) the order is or has been the subject of an internal appeal.
(1) The Tribunal or principal registrar may, in relation to any proceedings for the exercise of a Division function, request a report or other assistance from the Commissioner for Fair Trading.
(2) This clause does not limit the ability of the Tribunal to obtain reports or assistance from other persons or bodies.
(1) The Tribunal may exercise the powers conferred by this clause if the Tribunal is of the opinion that a party in any proceedings for the exercise of a Division function is conducting the proceedings in such a way that unreasonably disadvantages another party in the proceedings by any conduct (including by failing to comply with an order or direction of the Tribunal).
(2) The Tribunal may--(a) if the party causing the disadvantage is the applicant--order that the proceedings (or part of the proceedings) be dismissed or struck out, or(b) if the party causing the disadvantage is not the applicant--(i) determine the proceedings (or part of the proceedings) in favour of the applicant and make any appropriate orders, or(ii) order that the party causing the disadvantage be struck out of the proceedings (or part of the proceedings).
(3) Before making any order under subclause (2) against a party, the Tribunal is to have regard to the following--(a) the extent to which the party is familiar with the procedures of the Tribunal,(b) the party's capacity to understand, and act on, a direction of the Tribunal,(c) whether the party suffers from a disability,(d) whether the party is acting deliberately in failing to comply with the Tribunal's directions.
(4) The provisions of this clause are in addition to, and do not limit, the provisions of section 55 (Dismissal of proceedings) of this Act.
(1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because--(a) the decision of the Tribunal under appeal was not fair and equitable, or(b) the decision of the Tribunal under appeal was against the weight of evidence, or(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).Note : Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds.
(2) Despite section 80(2)(b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if--(a) the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010 , or(b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order.