Impact of COVID-19 on court and tribunal procedures
In response to the Commonwealth and State Governments’ recent announcements and recommended health advice relating to COVID-19, the NSW courts and the Tribunal have announced important procedural changes, due to come into effect almost immediately. We take a look at these procedural changes insofar as they are relevant to parties to residential building disputes and related disciplinary matters, summarising the key developments below.
NSW Supreme Court
In its most recent update, on 23 March 2020, the Supreme Court announced that effective from Tuesday 24 March 2020, there will be no personal appearances in any matters, except where there has been leave of the Chief Justice or the head of jurisdiction (only granted in exceptional circumstances). The Court will be contacting parties in relation to future listings to advise parties of the video and teleconference facilities available. All documents are to be provided by electronic means through either the online court, e-subpoena, or online registry, andnly where electronic means do not presently exist will court documents be received via email. Effective 24 March 2020, the public registry will be closed. The Court’s website will carry updates.
The Technology and Construction list is not being conducted in open court with time excluded for consent directions to be submitted to 4pm Thursdays and matters where there is no consent being dealt with on position papers submitted by noon and where required, directions hearings by telephone or audio visual link (AVL).
NSW District Court
In a statement released on 23 March 2020, the NSW District Court announced no civil trials will commence from 23 March 2020 onwards. Where possible, the Court will continue as many matters as possible by utilising online court, audio visual equipment and digital technology.
On 23 March 2020, updated Directions were provided by the Chief Magistrate in relation to procedures for hearings and appearances.
Hearings listed from 23 March 2020 to 1 May 2020 will be vacated and listed for mention in the week of 4 May 2020.
Appearances will be permitted via telephone for small claims hearings, review lists, directions lists and motions lists.
In a statement released on 18 March 2020, NCAT has implemented temporary procedural changes to minimise contact at the Tribunal.
Where possible, directions hearings, call-overs, conciliation conferences and interlocutory hearings will be conducted by telephone or AVL, rather than in person. Return of Summons lists will be conducted via telephone.
There are specific arrangements in place for substantive hearings in the Divisions and for appeals.
With the consent of both parties and at the discretion of the Tribunal Member, substantive hearings in the Occupation Division can be conducted by telephone or AVL (although dependent on availability of technology). In regional areas where the presiding Tribunal Member is required to fly to a regional location, mediations and substantive hearings will not be conducted unless both parties agree to conduct the hearing or mediation via telephone or AVL.
In the Consumer and Commercial Division, substantive hearings in regional areas will continue to be conducted. From 23 March 2020, all Group Lists have been suspended until further notice. Group List matters already listed across NSW will be adjourned to a future date, with future hearings to be conducted via telephone where possible. Substantive hearings listed for either Greater Sydney or regional areas can be conducted by telephone or AVL at the discretion of the Tribunal Member and dependent on the availability of technology. Our observation is that substantive hearings not suitable for conduct by telephone or AVL are being vacated at the request of one or more parties.
Substantive hearings in appeals will where possible be conducted by telephone or AVL. ‘In person’ hearings are unlikely to occur any time before October 2020.
All NSW Courts and NCAT have released statements advising individuals against attending a court or tribunal location if that individual:
The procedural changes summarised above are subject to change at short notice in the coming weeks.
Authors: Christine Jones & Rebecca Weakley
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Sharman v Commissioner for Fair Trading, Department of Finance, Services and Innovation  NSWCATOD 26
(1) The decision under review is affirmed.
ADMINISTRATIVE LAW – administrative review – licensing – whether applicant meets requirements for Issue of supervisor certificate - application of Instrument as policy – experience requirements not met – not unfair or unjust to apply policy – whether applicant a fit and proper person to hold the certificate Administrative Decisions Review Act 1997; Home Building Act 1989
Roseland Projects Pty Ltd v Jiadong Yang  NSWCATAP 45
(1) Leave to appeal is refused (2) The appeal is dismissed.
APPEAL - exercise of discretion to award costs - costs to follow the event; no order as to costs - no demonstrated error - no substantial miscarriage of justice - costs of the appeal. Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989 (NSW)
Florida Kitchens Pty Ltd v Number One Cutting (T/S Number One Marble and Granite) (No 2)  NSWSC 216
COSTS – third party costs – indemnity costs –reasonable apprehension of bias – comments critical of delay – fair-minded lay observer or bystander test –whether conduct of litigation unreasonable – interests of justice test – whether exceptional circumstances exist to warrant indemnity costs order
Feng v OzWood (Australia) Pty Ltd  NSWCATAP 42
COSTS — whether “special circumstances” within the meaning of s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) is established — whether appeal was “lacking in substance”
COSTS — exercise of the power to fix costs - appeal brought by Mr Guowen Feng against a decision made by the Consumer and Commercial Division of the Civil and Administrative Tribunal dismissing his claim that the timber floorboards supplied and installed in his home by OzWood (Australia) Pty Ltd were defective.
Longbottom v Boughton  NSWCATAP 53
HOME BUILDING – whether the Tribunal erred in finding that the home owners had denied the plasterers access to the home building site – whether the home owners had denied the builder access to the home building site – whether the home owners by invoking the dispute resolution mechanism prevented the builder from terminating the home building contract – whether the home owners in denying the builder access to the home building site repudiated the building contract – whether the builder was entitled to terminate the home building contract –whether the Tribunal erred in dismissing the claim of misleading and deceptive conduct under the Australian Consumer Law (NSW)
APPEAL – whether a disputed finding of fact in a reply to appeal requires leave to appeal - whether the question as to whether or not, based upon facts fully found by the Tribunal, there is a repudiation of the contract, is a question of law
Minifie v Maxwell  NSWCATAP 30
APPEALS - Dividing fences - Renewal proceedings – Jurisdiction - Power to make orders in renewal proceedings - Whether orders appropriate - No error of law established
Paraiso v CBS Build Pty Ltd  NSWSC 190
CONTRACT - building - whether variations required to be in writing and signed - consequence of non-compliance - Home Building Act 1989 s7E - terms that do not require variations to be in writing and signed unenforceable
BUILDING AND CONSTRUCTION - whether defendant entitled to quantum meruit if not contractually entitled to payment for variations
ADMINISTRATIVE LAW - whether denial of procedural fairness - Tribunal member cross-examining plaintiff’s expert - bias - failure to invite counsel to cross-examine opposing expert - relief granted
Regulations and other miscellaneous instruments
Building Professionals Amendment (Subdivision Works Certificates) Regulation 2020 (2020-87) — published LW 13 March 2020
Building and Construction Industry Long Service Payments Amendment (Bushfire Relief) Regulation 2020 (2020-98) — published LW 20 March 2020
Environmental Planning Instruments
State Environmental Planning Policy (State and Regional Development) Amendment (State Significant Development) 2020 (2020-94) — published LW 16 March 2020
Proclamations commencing Acts - Reminder
Better Regulation Legislation Amendment Act 2019 No 23 (2019-623) — published LW 16 December 2019
Schedule 1 amends the following Acts—(a)Building and Construction Industry Security of Payment Act 1999 No 46,(b)Building and Development Certifiers Act 2018 No 63,(c)Building Professionals Act 2005 No 115,
Reminder: Proclamation, appoint 23 March 2020 as the day on which Schedule 1.8 and  to that Act commence.
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
Published by Christine Jones, Rebecca Weakley