This article about adjudicators orders has been supplied by Chris Irons, Commissioner for Body Corporate and Community Management.
Do you ever feel like it’s impossible to predict how the law will apply to your community titles scheme, or how your by-laws will be interpreted if they are ever disputed?
Working out how the law applies to your scheme and circumstances can be challenging.
Previously we have briefly touched on the benefits of using past decisions to help understand how an adjudicator might interpret laws or by-laws in the event of a dispute. If you’ve been involved in a conciliation session, you may have had a conciliator explain how previous adjudication decisions may assist in predicting the likely outcome of your dispute if it were determined by adjudication.
With this in mind, some insight will be given into how past decisions are used by adjudicators to shape future decisions, and how they can help you understand how a dispute may be decided.
The first concept to understand is precedent. In general terms, precedent means that, where a case comes before a judge, magistrate or (in this case) an adjudicator with the same essential or material facts as a case decided by a higher court (in the same hierarchy), the legal issues must be decided in the same way. Essentially, decision-makers are bound by the findings of law reached by decision-makers at a higher level within their legal jurisdiction. This is called binding precedent.
For adjudicators, this means decisions made by the Queensland Civil and Administrative Tribunal (QCAT) — the appellate jurisdiction — Queensland’s District Court, Supreme Court and Court of Appeal, and the High Court of Australia must all be followed. If there are conflicting decisions made within a jurisdictional hierarchy, the decision made at the higher level will take precedence.
There is some uncertainty at the moment as to whether decisions in higher courts that are not in the same hierarchy should be considered binding, but they will, at least, be persuasive.
An adjudicator is not bound to follow the decision of another adjudicator in the same way. As they are at the same level in the hierarchy, decisions of adjudicators may be persuasive to other adjudicators, but not binding. They will, however, usually be based on the same decisions made by higher courts and tribunals, and will generally provide a good guide to how adjudicators interpret the law.
Decisions made in other jurisdictions, for example in other states or overseas, may not be binding on an adjudicator but may be of persuasive precedent. The relevance of the legal issue decided and the level of the court or tribunal that made the decision may affect how persuasive the decision will be.
When considering the application of a decision, it can be important to distinguish between the substantive reason for the decision (known as the ratio decidendi) and the decision-maker’s commentary or opinion on the law which is not essential to the decision (known as obiter dictum). Generally, obiter (other than ‘seriously considered dicta’ from High Court judgements) will not be binding.
In terms of understanding the past decisions of adjudicators, the following factors should be kept in mind:
- The outcome of a dispute is less important than the reasons behind the decision. For instance, in some cases pets have been allowed to remain in a scheme and in other cases they have been required to be removed. In applying such decisions, it will be necessary to consider the circumstances of each specific case, such as whether the particular pet had any proven impact on others in the scheme.
- Your dispute would need to have the same or similar underlying facts as a past decision for you to be comfortable that it would be decided the same way. For example, a dispute over the maintenance of a courtyard may have a very different outcome if the courtyard is part of a lot, rather than being an exclusive use area.
- Adjudicators’ decisions will generally explain the case law on which the adjudicator relied when making their decision. This may include references to other decisions by adjudicators, QCAT or higher courts. These references can be used to guide further reading on the relevant issues.
- More recent decisions are more likely to reflect the current state of the law, as subsequent decisions made by higher courts and tribunals may have changed the way the law has been interpreted over time.
- Where a decision has been overturned on appeal, it is important to understand the reasons behind the appeal decision. It may be that new evidence changed the underlying facts, or a technical or jurisdictional issue came into play, rather than an error being found in the application of the law.
There are several advanced search tools on Austlii to help you locate the most relevant decisions for the issue you are looking at, including:
Past decisions of adjudicators are published by the Australian Legal Information Institute (Austlii). They can be accessed
- exact phrase searches (e.g., “reasonable attempt to participate”)
- boolean queries (e.g., “nuisance AND 167 NOT dog”)
- searches of the document title only (e.g., “Surfers Paradise”).
Searches can also be sorted by date by clicking the relevant tab on your search results.
It is important to note that the Information Service of my Office is not able to offer an opinion on how an adjudicator is likely to interpret a matter or provide commentary about past adjudicators’ orders.
That said, the Information Service can give general information about body corporate legislation. For further information please contact 1800 060 119 or visit our website www.qld.gov.au/bodycorporate.
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Information Service Freecall 1800 060 119
Commissioner for Body Corporate and Community Management
This post appears in Strata News #229.
This article has been republished with permission from the author and first appeared on the BCCM Common Ground newsletter.