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UBSS Sydney CBD Campus
Level10&11233CastlereaghStreet
SydneyNSW2000
MBA
BUSINESS LAW

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Alternative dispute resolution
Alternative methods of resolving disputes have arisen because
of the;
1) Cost of conducting litigation in the courts
2) Delays in having a matter heard
3) Strict evidence requirements in courts

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Mediation
Compulsory mediation is now required for small claims
up to $20,000 in NSW and in some matters in the
District and Supreme Courts.
Parties can also choose mediation after a case has started.
Mediation requires an independent 3rd party ( normally a lawyer who
has trained to become a mediator)
A mediator can guide parties to an agreement but cannot impose a
decision
Independent expert mediation is also a cheaper method of resolving
issues where complex technical issues arise

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Commercial Arbitration
Commercial arbitration has long been used as a method of settling larger
commercial disputes. It is a determinative process meaning findings can
be binding
It is a process where the parties agree to accept the decision whether right
or wrong. All the states have enacted Commercial arbitration legislation
while the Commonwealth enacted the International Arbitration Act 1974
(Cth)
Some cases may involve just documentary evidence or expert testimony.
Other matters may be quite similar to a court case
The decision of the arbitrator is binding. This is why it is called a
determinative process
A decision on legal issues (question of law) however can still be appealed

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Arbitration clauses
Many commercial agreements have an ‘arbitration clause’
inserted in a business contract (should there be a dispute) for the
following reasons;
1) Quicker resolution
2) Private and confidential
3) Less expensive
4) Technical experts can have
knowledge in an area that a judge
may not have
5) Final and enforceable

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Judicial and Quasi- Judicial tribunals
Specialist judicial bodies have been set up to deal with legal
matters at both Federal and State Level. Those judicial bodies
can only deal with those specialist areas that the enabling Act
allows
They are not courts but perform many of the functions and have
many of the powers of courts

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The differences between courts and tribunals
1) Tribunals specialise in a particular area and the head,
member or chairperson normally has specialist skills
2) Courts are run by lawyers and judges are lawyers
3) Tribunals are less formal
4) Tribunals often do not allow lawyers
5) Appeals are restricted
6) Rules of evidence are less important
7) Tribunals do not create precedent

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Appeals from Tribunals
State and Federal tribunal decisions can be
appealed on a number of grounds including
• Breach of natural justice in making decision
• Procedural irregularities in making the
decision
• No authority of the decision maker
• The decision was not allowed under the act
• An improper use of the power in the act
• That there was an error of law
• That there was fraud
• A lack of evidence to justify the decision
• The decision was contrary to law

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Some Federal Tribunals
Administrative Appeals Tribunal
• Reviews Commonwealth government decisions of
ministers, government departments and statutory
bodies. The tribunal has been given jurisdiction covering
over 400 statutes
Breaking News The current Federal Labor Government
has disbanded the above tribunal
Australian Competition and Consumer Commission
• Covers competition law ,monopolies, duopolies
and Consumer law (ACL).

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NSW Civil and Administrative Tribunal
(NCAT)
It is a super tribunal that covers reviews of decisions of
government departments and professional bodies
Also;
The Consumer and commercial division is responsible for;
 Consumer claims up to $40,000 as well as between suppliers and
traders
 Commercial matters( travel agents, business agents)
 Home building disputes(up to $500,000)
 Tenancy and Strata disputes
 Motor vehicles (up to $40,000)
 Shop lease disputes

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NCAT (cont)
The Administrative and Equal Opportunity division
• Reviews administrative decisions and
discrimination matters
The Occupational Division
• Deals with complaints about professional conduct and licensing
There are similar tribunals in most states of Australia
(though the names of those tribunals are often different)

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Other tribunals and Statutory Bodies
Licensing courts
Arbitration Courts
Small claims tribunals
Fair Trading tribunal
Ombudsman

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Ombudsman
The term Ombudsman means agent or representative of the
people
They investigate complaints in their particular areas of expertise
In NSW there is a ;
• Telecommunications Industry Ombudsman; orders up to $100000
• Financial Ombudsman; can make orders up to $500,000
Federally there is a;
• Taxation Ombudsman
• Law enforcement Ombudsman
• Immigration Ombudsman
• Postal Industry Ombudsman