Dispute Resolution in a COVID-19 World
March 29, 2020
A number of government services are being impacted by the response to COVID-19. HIA understands that all existing government dispute resolution services such as courts and tribunals have made changes to their operating procedures to reduce face to face contact. Members involved in a dispute resolution process should receive advice from the relevant service, but if in doubt the following information may assist you to determine who your matter may proceed.
Expect delays – maybe negotiate?
Members should be aware that:
- Court and tribunal delays means that the formal resolution of home building disputes will be significantly delayed.
- Final hearings and conciliations or mediations are also likely to be delayed as a result of travel restrictions and illness or self-isolation rules.
This will be problematic for builders seeking payment and clients needing quick hearings to allow for the cost of repairs to be recovered.
What should I do?
The most obvious way to address this is for the parties to negotiate. Often a compromise is the best way to resolve a dispute but it can also help avoid legal and other costs and avoid wasted time on an issue that distracts builders from working on other jobs.
Unfortunately there may be parties who will take advantage of the current situation and seek to benefit from the delays. For example, owners who want to avoid payments, or cannot pay and builders who do not want to fix defects or complete work, or who cannot afford to do so. At any time, but particularly in the current situation, such behaviour is unlikely to be viewed as acceptable and there may be a hardening of attitudes towards such behaviours from courts and tribunals.
What has changed?
Below is an overview of the changes to state and territory dispute resolution bodies operations for dealing with disputes as a result of COVID-19. Please use the links to the relevant body for further information and for updates.
Australian Capital Territory
The ACT Civil and Administrative Tribunal (ACAT) website states that public access to their building is restricted and listed hearings will be heard by telephone or videolink. Future hearings will be delayed. The Court system also has information available from the ACT courts website.
New South Wales
The NSW Civil and Administrative Tribunal (NCAT) website indicates that non-substantive matters, including conciliation conferences will be conducted where possible by telephone or audio visual link.
Building matters will only continue to be heard in person in regional areas. In the Greater Sydney area matters may be heard by telephone or audio visual link where Tribunal members believe it is appropriate.
To date, Fair Trading has not issued any information specific to residential builders and trades, but you should check the Fair Trading website for the latest information.
The Northern Territory Civil and Administrative Tribunal (NTCAT) continue to operate with some limits
, including, for example that they will not be accepting any hard copy documents.
The Queensland Building and Construction Commission (QBCC) have advised that they will take all documents electronically either through an online inquiry or through your myQBCC account.
The Queensland Civil and Administrative Tribunal (QCAT) has provided extensive advice including an official direction regarding the carrying out of hearings and conferences.
The operation of the Magistrates Court of South Australia has been impacted. For further information please see SA courts information.
The Magistrates’ Court of Tasmania remains open subject to health controls and is only allowing the parties to the proceedings inside the court building. There may be other delays in cases involving participants from outside of Tasmania due to COVID-19 travel restrictions. Click for further information.
The Domestic Building Dispute Resolution Victoria (DBDRV) website has indicated that it is running a reduced service, there will be delays and they will correspond by email. Face to face conciliations and on-site building assessments have stopped.
The Victorian Civil and Administrative Tribunal (VCAT) is closed to the public and some matters will be heard by telephone. Click for more information.
The Department of Mines, Industry Regulation and Safety (DMIRS) dispute resolution is largely business as usual at this time. Staff are ‘triaging’ physical attendance needs for access into the building, otherwise all non-urgent face-to-face meetings should be reconsidered. All non-urgent correspondence should occur via either the website, email or telephone.
The State Administrative Tribunal (SAT) website indicates they will conduct all hearings and mediations by telephone or videolink where possible, documents are to be lodged electronically, and are generally discouraging attendance.
Similarly, courts appear be continuing to hold hearings, with the discretion for them to be held via telephone. Registries appear to be operating as normal (however encouraging electronic lodgement).
Should you require further information on this topic and how dispute resolutions process operate in your state or territory then please call a HIA Workplace Adviser on 1300 650 620.