To read this content please select one of the options below:

Quality standards for tribunal decision making in strata disputes

David D. Knoll A.M. (Nine Selborne Chambers, Sydney, Australia and Faculty of Law, University of New South Wales, Sydney, Australia)

Journal of Property, Planning and Environmental Law

ISSN: 2514-9407

Article publication date: 8 September 2023

Issue publication date: 15 February 2024

13

Abstract

Purpose

This study aims to investigate Australian civil tribunal decisions to ascertain compliance with decisional quality standards in Australian law, with a particular focus on strata and community title cases.

Design/methodology/approach

An orthodox doctrinal legal analysis and assessment of cases and tribunal policies was adopted. All Australian jurisdictions were surveyed, including federal, state and territory jurisdictions. The case law in each jurisdiction was screened to identify whether the principles applicable to decisional quality were engaged and then analysed as to the extent of that engagement.

Findings

Where a party presents a substantial, clearly particularised argument relying upon established facts, tribunals are obliged to address those facts and the arguments by way of an active intellectual process. However, appellate decisions disclose a degree of deference not often accorded to judicial officers, and there is a need for a more disciplined approach to ascertain whether any errors have been made by a tribunal lie on the critical path to the decision. As strata and community title disputes become more complex, the importance of decisional quality standards can only increase.

Research limitations/implications

Up to date as of 1 March 2023.

Practical implications

The present position would appear to be that where a party presents a substantial, clearly particularised argument relying upon established facts, a tribunal must address its mind to those facts and the arguments by way of an active intellectual process. The requirement is limited to circumstances prescribed by a statute and factual and legal issues which are necessary to be determined in order for the tribunal to be satisfied as to circumstances prescribed by a statute. However, where the errors are not gross and plainly obvious, appeals from defective tribunal decisions are unlikely to succeed. There is a degree of deference not often accorded to judicial officers. That deference is unfortunate when tribunals are allocated jurisdiction over what quite often are significant property disputes.

Social implications

The impact on community living of uncorrected poor quality tribunal decisions can be immense, depending on the degree of error. For example, water ingress into people’s homes might remain unremedied for many years, as, for example, occurred in the Marinko case.

Originality/value

The research and analysis is entirely original. A search of journals and textbooks did not identify any prior analysis, at least in the Australian context, relating to decisional quality standards of tribunals.

Keywords

Acknowledgements

The author acknowledges the helpful comments of Professor Edward Ti, Mark Atkinson and David Edwards while of course taking responsibility for all errors in this paper.

This paper is based on a paper given by the author at the ACSL Conference hosted in the Singapore Management University at SMU’s Centre for Commercial Law in Asia from 1–3 March 2023.

No prior analysis of the issues addressed in this article in the strata and community title context have been identified.

The law cited is up to date as of 1 March 2023.

Citation

Knoll A.M., D.D. (2024), "Quality standards for tribunal decision making in strata disputes", Journal of Property, Planning and Environmental Law, Vol. 16 No. 1, pp. 3-19. https://doi.org/10.1108/JPPEL-05-2023-0027

Publisher

:

Emerald Publishing Limited

Copyright © 2023, Emerald Publishing Limited

Related articles