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Ever tried convincing NCAT they are wrong?
In the NCAT strata application fact sheet it say the following parties can seek an order under s 230 of the SSM Act
To make orders to the written agreement signed by parties during a mediation session
Who can apply?
Persons who are parties to mediation
It also says an application to the Tribunal is required.
Section 230 of the SSM Act is an interesting section because it is a section that does not have the words “ … the Tribunal may on application …”
Forty six or so sections of the SSM Act have those words, they enliven the section as a lawyer would say.
The absence of words has meaning just as the inclusion of words does; that is a standard statutory interpretation principle. The absence of the words means 230 is not a section that requires an application for the Tribunal to make an order. In fact reading the section, included at the end of this, the key triggers for the section seem to be a letter of request, a referral and mutual agreeance by the parties.
I recently was a part of mediation and the parties mutually agreed to a settlement. The parties were told by the FT mediator that NCAT requires an application under s 230 to make an order because “that is what NCAT told them”. I disagreed and told them why; FT didn’t care.
So I sent the mediator a copy of the NCAT strata application fact sheet and requested that the mediator make the application because “that is what NCAT tells them” (it is on the sheet; link included below).
Easy enough for FT to agree with NCAT’s (wrong) view when I was ‘required’ to make the application but FT was very quick to change its tune in relation to NCAT’s view when it was FT required to so something.
FT have declined to have the mediator make the application as per the Fact Sheet.
FT have apparently written to NCAT telling NCAT they do not agree with the NCAT view.
The interesting part will be how NCAT respond. When I took it up with the Registrar that NCAT’s view of s 230 had no basis in law all I got in return was ‘you need to make an application’; the standard authoritarian response that typifies bureaucracy in Australia. I have gone back to NCAT and asked for a legal basis for their view. I await their answer.
I have asked FT for a copy of FTs letter to NCAT and a copy of whatever response they get because I all too well know NCAT can be wrong.
In 2015 when NCAT was charging the wrong amount for an adjudication application I spoke to FT about it and it was easy enough to convince then that over charging was going on. But would FT take it up with NCAT; no chance, it was left to me. I found that pathetic.
After a few exchanges with NCAT two pieces of legislation and a regulation was changed in 10 days to fix the problem because it is somewhat embarrassing to have to explain how the over charging had happened and potentially refund each person ( maybe 1000+) the $16 they were over charged. The NCAT registrar sent a lovely letter claiming there was some ambiguity in the legislation and it had been resolved. There never was any ambiguity, it was all very clear; NCAT had made a mistake and overcharged a significant number of people.
With this s 230 issue I again see FT don’t want to know about problems with the system, until it directly effect them, and that NCAT is once again playing the authoritarian card first.
230 Agreements and arrangements arising from mediation sessions
(1) The Tribunal may make orders to give effect to any agreement or arrangement arising out of a mediation session.
(2) An order may be made whether or not the mediation was carried out in accordance with this Part or by a mediator within the meaning of this Part.
(3) Without limiting subsection (1), the Tribunal may make an order that gives effect to the terms of a written agreement signed during a mediation session by persons who were parties to the mediation.
(4) A mediator may request the registrar to refer a matter to the Tribunal for the making of an order under this section, but only with the consent of the parties to the mediation.
(5) This Part does not affect the enforceability of any other agreement or arrangement that may be made, whether or not arising out of a mediation session, in relation to the matters the subject of a mediation session.
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