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Commissioners Corner – Adjudication FAQ’s

Monday August 6th, 2018

What is the role of the Office of the Commissioner for Body Corporate and Community Management?

The Office provides two functions: information and dispute resolution services under the Body Corporate and Community Management Act 1997 (“the Act”).

The dispute resolution service resolves matters in dispute either through department conciliation or a formal adjudication process.
The Office is not a complaints forum, nor an investigations body. We do not provide advocacy services, as we must remain impartial between the parties.
This article discusses dispute resolution by department adjudication.

What is the role of the Commissioner in dispute resolution?
The Commissioner has responsibility for the administration of dispute resolution as set out in the Act. Once an application is referred to an adjudicator, the Commissioner has no role in relation to the substance of the dispute or the outcome sought by the application. An adjudicator is the decision-maker for an adjudication application referred by the Commissioner and must exercise his or her functions independently and free of external influence.

The Commissioner’s role is first to determine whether an application complies with the requirements of the Act, and then to progress the application in accordance with the processes set by the Act, which generally includes:
1. providing a copy of an application to the respondent named in the application, the body corporate and each affected person;
2. inviting submissions - affording natural justice ie. an opportunity for people that could be materially affected by the outcome sought by the application or that may be able to help resolve the issues raised in the application to “have their say”;
3. inviting the applicant’s reply - to respond to any submissions received;
4. allowing an interested person (applicant, respondent, body corporate or person who has made a submission) to inspect and obtain copies of submissions made about an application and the applicant’s reply;
5. requiring an interested person to obtain, and give to the Commissioner, a report or other information;
6. assessing the application and making a dispute resolution recommendation;
7. in the context of this article, referring the application to department adjudication.

The Commissioner must determine:
if an applicant has provided evidence establishing the existence of a dispute between the parties for the purposes of the Act, and
whether jurisdictional requirements have been met.
The Commissioner has no role in assessing the merit of an application.
The Commissioner cannot waive compliance with the jurisdictional requirements of the Act regarding dispute resolution applications with the exception of deciding fee waiver applications.
A case manager will contact an applicant to ask for further information, on behalf of the Commissioner, before an application can move forward, if their adjudication application does not address all of the requirements prescribed by the Act. The application may be rejected by the Commissioner for a number of reasons including:
if the applicant does not provide the requested information
the Commissioner considers the applicant has not made a reasonable attempt through conciliation and it is appropriate to do so
a party to the application is no longer a person who can be included as a party to the application, in accordance with section 227 of the Act
the applicant fails, without reasonable excuse, to comply with a practice direction issued by the Commissioner
the outcome sought by the application is no longer relevant or required.

What is department adjudication?
An Adjudicator is a quasi-judicial decision maker who makes binding written orders with respect to an adjudication application. Department adjudication is conducted “on the papers”. There is no court-style hearing.
Although the Adjudicator determining the application has investigative powers, they too are impartial between the parties and the onus is on the applicant to prove their case in the grounds of their application.
Adjudicator’s orders can be appealed to the QCAT or enforced at the Magistrate’s Court.

What can I lodge an Adjudication application about?
An applicant can only lodge an application with the Office, if they have evidence of a “current dispute” with the respondent.
The Office can only deal with disputes about alleged breaches of the Act or registered community management statement (e.g.. including by-laws) for the scheme.
Given I can only file a dispute resolution application about a “current dispute”, what is a “current dispute”?
As a simplified example, a current dispute may be established if you have:
1. identified an alleged breach of the Act or by-law for the scheme on the part of the respondent and
2.asked them directly to take a specific action that would resolve your issue; but your request has been ignored or declined; then
3. you have a current dispute.

How do I attempt internal dispute resolution, before lodging an application?

Examples of internal dispute resolution include:
proposing a motion to be considered at a general meeting
proposing a motion to be considered by the committee
communicating in writing with the other person
issuing a BCCM form 1 Notice of a contravention of a body corporate by-law.
Who can I lodge a dispute application against?
Your dispute must be within the jurisdiction of the BCCM Office (see table below) before it can be dealt with. Jurisdiction for a dispute exists only between a party mentioned in column one (the applicant) and a party mentioned in column two (the respondent), in each row.
You are (the applicant )

They are (the respondent)
an owner, or
an occupier and
another owner or occupier; or
the body corporate
the committee and
a member of the committee
a member of the committee and
the committee
the body corporate and
an owner or occupier
a member of the committee
the body corporate manager
the caretaking service contractor
the letting agent
a service contractor
a former body corporate manager
a member of the committee
the body corporate manager
the caretaking service contractor
the letting agent
a service contractor and
the body corporate

If I’ve attempted internal dispute resolution and have a current dispute, what do I do next?
As an applicant, you must attempt to resolve your dispute with the respondent by either dispute resolution (self resolution), and by department conciliation before an adjudication application can be made.

The Commissioner may excuse the requirement for attempting departmental conciliation in limited circumstances. Please refer to Practice Direction 9- Matters not appropriate for conciliation.

What are the preliminary requirements when my dispute is about an alleged by-law breach?
The Act sets out preliminary procedures for applications seeking to enforce body corporate by-laws (Act, sections 184-186). These preliminary procedures are the requirements that must be met before an application seeking the enforcement of by-laws can be lodged with our Office.
Please refer to Practice Direction 6 – By-law enforcement applications for the steps you must take.

What do I have to include as the ‘Grounds’ to my application?
The Act requires that an adjudication application must include “the grounds, in detail, on which the outcome is sought” (Section 239B).
A written statement of grounds in Section 9 of the Form is an applicant’s opportunity to seek to “prove their case”. The statement (and supporting attachments) should clearly outline:
the history and nature of each outcome sought in chronological order;
what action has been taken by you and when;
the responses of the respondent to the dispute;
why you consider orders on the outcomes sought should be made; and
why the respondent is legally responsible- that is, on what basis you consider the Respondent has breached, or is continuing to breach his obligation/s under the Act and/or by-laws for the scheme, which you say entitles you to the outcomes you are seeking.

It is appropriate to attach all relevant documentation to your application however, these are not a substitute for a written statement of grounds. The statement of grounds provided should make reference (e.g. by attachment number, and where a large amount of documents are being attached to an application, the relevant page number) to any documents you may provide, illustrating how they are relevant to or support your application.
Please refer to Section 9 of the Guide and Practice Direction 14.

This article was contributed by Chris Irons, Commissioner for Body Corporate and Community Management.