All strata disputes are now dealt with by the State Administrative Tribunal (SAT). Although the SAT is considered to be less formal than the courts, engaging in a SAT hearing still requires a substantial amount of a particular type of preparation.
In this article, we identify some tips to help you prepare your matter for resolution by the SAT.
In some ways, the SAT can be regarded as less formal than the courts. For instance, there is no high bench, no bowing, no standing to speak and no formalities like ‘your Honour’ or ‘Sir’ or ‘Ma’am’.
The SAT may also be considered as less risky than the courts because it does not generally order costs against a losing party (unlike the court system). You will therefore only have to bear the costs of your own lawyer, if you choose to engage one.
Further, you can choose to represent yourself. The SAT website gives basic guidance on how to fill in the forms and information on for those who choose to represent themselves.
It is important to ensure you are thinking with clarity and objectivity when deciding whether or not you should engage in a SAT dispute. Often people who are disappointed by the findings of the SAT did not establish reasonable expectations of the process at the outset.
Emotions
We all know that our emotions can affect our judgement. The most knowledgeable person will lose their objectivity if they argue their own case.
It is therefore important to separate your emotions from the decision-making processes you have to go through when engaging in SAT proceedings. Don’t make decisions in the heat of the moment. Instead, allow yourself the time to set aside any emotional reactions to every event in the process.
Where possible, get some objectivity by consulting a mentor, lawyer, consultant or other adviser. If you have strong emotions about the issue, it may be best for someone else to represent you. Even if they do not bring much expertise (non-lawyers can appear before the SAT), they will be more objective than you.
Motivations
A motivation is a reason or desire to achieve a goal. Different people are motivated by different things. Maintaining control, achieving respect, advancing the cause of justice are some possible motivations. However, achieving any goal will typically come at a cost.
Take the time to identify what is motivating you to engage in the dispute. What goal do you really want to achieve? Can you achieve it some other way? Most importantly, clarify what price you are prepared to pay in order to achieve your goal.
If your motivations are inappropriate or unreasonable, for example, revenge or punishment, you should not engage in the dispute.
Biases
There is not enough space in this article for a discussion about how hidden biases and mental shortcuts can be significant blind spots in our thinking processes.
At least try to acknowledge that we all have such blind spots, which may need some attention. Once again, an independent viewpoint – a friend, a consultant or legal adviser should be able to provide that.
It may help to think about your matter using concepts that are often used by the SAT itself. That is, to break down your matter into the broad categories of issues, facts and contentions.
Issues
Identify what is in dispute. What is the question that needs to be answered? For example, ‘Whether or not the owner of lot 13 is in breach of by-law 16, which states that a lot cannot be used as un-hosted accommodation.’
Facts
Be clear on the objective facts of the matter. In doing so, it is crucial to distinguish between facts and opinions. It is important also to make sure that the facts are relevant to the issue.
Contentions
Contentions combine law and fact to address the issue and come to an opinion. For example, ‘John Smith used lot 13 as hosted, not un-hosted accommodation. There is no by-law that prohibits that.”
A lot of the work done in the months leading up to a final SAT hearing often involves weeding out irrelevant material.
While this may sound simple in theory, it can be difficult in practice. One reason is that people do not always communicate clearly. Another reason is that what might seem relevant might sometimes be open to interpretation.
The SAT is obliged to make its decisions based on relevant information. Further, it is only interested in hearing reasonable arguments built on the relevant information it receives. If an argument does not make logical sense or is not grounded in reality, then the presiding SAT Member will reject it.
It is natural for the SAT and other parties involved to regard unreasonable arguments raised in SAT proceedings as a waste of time. Although the SAT does not generally award costs, it may do so if the behaviour of a party is considered to be unreasonable. It may consider that such behaviour is a waste of the other party’s time and the SAT’s resources. Such resources include SAT Member time, allocation of hearing rooms, administrative and staff deployment.
Unless you are relatively experienced in conducting cases in the SAT, it may be best to seek advice and representation.
You might benefit from the technical assistance such as advocacy, engineering knowledge or legal skills. You might also benefit from the independent and clearer thinking that an outside party can bring.
For assistance with strata issues contact:
Managing Principal
Tel: 9200 4900
Disclaimer: This article contains references to and general summaries of the relevant law and does not constitute legal advice. The law may change and circumstances may differ from reader to reader. Therefore, you should seek legal advice for your specific circumstances. The law referred to in this publication is understood by Civic Legal as of publication date.
Article published in The WA Strata Magazine November 2021
