Tribunal Advocacy
Preparation: Ten steps to the Tribunal hearing room door
For the Combined Community Legal Centres Quarterly Meeting: February 2013
1. Know the substantive jurisdiction at issue
a. Tribunals have statutory jurisdiction, usually conferred on them by other substantive
legislation. If you’re “in the Tribunal” then you probably have something justiciable within it.
You need to ensure that the Tribunal has substantive jurisdiction to deal with the dispute and be
able to precisely identify why that is. You need to know not only “your section”, but the statutory
scheme as a whole. Read each section. That will equip you on any construction argument.
2. Know the procedural matters specified by legislation
a. All Courts and Tribunals operate pursuant to statutory procedural schemes (like for most Courts
in NSW, the Civil Procedure Act 2005 and UCPR).
b. In Tribunals, procedural matters will be set out in the Tribunal’s own enabling Act, ie: the
Consumer, Trader and Tenancy Tribunal Act 2001 or Administrative Decisions Tribunal Act 1997.
See ss28 and s.73 respectively for “procedure generally”. There are also provisions dealing with
representation, rules of evidence, costs etc.
c. You must know it well, have it with you, and decide how it operates in your case.
3. Understand any other published material vis the procedural operation and employ it
a. Forms: for commencing proceedings and interlocutory steps. There are 42 forms on the ADT
website including the forms for applications to various divisions, but also sample affidavits/stat
decs. There are also (coincidentally, not overlapping) 42 forms on the CTTT website including,
again, applications to the various divisions, and also sample Scott Schedules for HB matters,
requests for summons, stat dec forms.
b. Practice Notes: available online. Arise by dint of the statute (ie: Chairperson’s Directions per s.12
of the CTTT Act or ss.90-91 of the ADT Act). Very informative for things that relate generally to
the manner for preparation for hearing.
c. Directions: See Practice Notes etc. Be prepared to obtain directions as to how you best think the
case should be prepared, within the usual manner in which the Tribunal operates (legislation
and published practice notes). Tribunals generally don’t have a formal procedure for pleadings
or written evidence-in-chief or written submissions. However, if the issues of your case justify it,
then it will only assist you in preparation and assist the Tribunal to have directions for the
preparation of, at the least, evidence in chief in writing (statements or affidavits or stat decs) if
not Points of Claim and opening submissions in writing in advance.
d. Borrow from CPA/UCPR: Absent specific provisions, borrow from the operation of other
courts/UCPR if need be: provided its within the scope of how the Tribunal can operate.
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4. Preparing your whole case conceptually: the litigation model
Source of Law
Cause of Action
Element
Element
Element
Fact
Fact
Fact
Fact
Fact
Fact
Evidence
Evidence
Evidence
Evidence
Evidence
Evidence
a. This is a good way to think about any case, especially one that operates within a prescribed
statutory framework as Tribunal proceedings do.
b. The fact that you’re in a particular Tribunal means that the source of law should be known (or at
least, in dispute if jurisdiction is in issue). The causes of action arise by dint of statute. This can
be straightforward (like a s.187 of the Residential Tenancies Act 2010) or more complex (like an
application under s.8 of the Consumer Claims Act 1998 or s.48O of the Home Building Act 2001).
Nevertheless, a cause of action will generally have elements/components/aspects which need to
be made out in order to be successful. Those will be based on asserted facts, which are usually
the things upon which you take instructions. That needs to be converted into evidence (and see
(6) below).
c. Although the rules of evidence are not binding (as opposed to not applying) they are highly
advisable to have in mind. French CJ said in recent proceedings about the CTTT, that “[t]he
exercise of the Tribunal's freedom from the rules of evidence should be subject to the cautionary
observation of Evatt J in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott that those
rules "represent the attempt made, through many generations, to evolve a method of inquiry best
calculated to prevent error and elicit truth"” (see Kostas v HIA (2010) 241 CLR 391 at [17]).
Slavish adherence is unnecessary. Technicality is unwelcome. However, “best” evidence is
usually evidence that would otherwise be admissible (ie: first hand rather than hearsay or
opinion admissible pursuant to s.79 of the Evidence Act rather than inexpert opinion).
d. As a general approach, square away your evidence in chief in writing, so you can the focus on (a)
your submissions and (b) any cross-examination when you’re in the hearing room.
5. Preparing your opening: say what you want and why you should get it.
a. A written outline of submissions is in my view a necessary step in preparation. You will then be
committed to justifying the orders you seek or resist (having regard at least to your own
evidence). Any matters of jurisdiction, statutory construction, evidentiary dispute will come to
light. It assists your preparation, and if a decision is going to be reserved, it becomes more
important.
b. Endeavor to identify “issues for determination” in your written submissions. You can identify in
writing and/or submit in opening: “This case is about 3 things, being (1) x, then (2) y and then
(3) z”.
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c. In your oral opening, you need to identify why you are there. This will be because the Tribunal
has the jurisdiction to deal with what order you seek (or resist). The best opening line in any
application is for example: “This is an application for an order pursuant to s.108(2)(d) of the
Anti-Discrimination Act 1977 requiring the respondent to publish an apology for [certain
conduct], in breach of section xx ” etc. That is superior and or more assistance than for example
any Lord Denning style opener like in Miller v Jackson [1977] QB 966 “In summertime village
cricket is the delight of everyone…”. Tribunal’s have statutory jurisdiction. Spend time identifying
that jurisdiction which you invoke, rather than worry about rhetorical flourish.
d. When making submissions orally, the key for yourself and anyone listening, is structure. If
you’ve ever wondered why most papers about advocacy are called “Then 10 somethings of
advocacy” or the “7 pillars of oral presentation” etc etc. Its simply an adherence to that same
formula.
e. If you’ve got a written opening, speak to that in order to keep your structure. If you don’t, say to
the Tribunal, for example, “There are three issues for determination in this case. I intend to
firstly, take you to the statutory regime, secondly, take you through the relevant factual
background and thirdly go through each of the issues for determination, which are (1) …, then
(2) …. (3)….”. Then stick to that structure. You will be much easier to follow and you make it
easier to stay on track.
6. Prepare your evidence in chief
a. See generally (4) above. Meet the facts needed to be proven to make out the elements of your
cause of action.
b. Some general tips for written lay evidence:
i. Make it neat, ordered and paginated.
ii. Make it as much as you can about documents and annex them;
iii. If things turn on conversations, try and set them out in direct speech (but note, other
than the opinion rule, there’s no direct rule of evidence requiring this);
iv. Just put in what matters. Be ready to answer the question if asked “what’s this relevant
to?”. If the only answer is something like, background or history or part of the narrative,
then you probably don’t need it.
c. Some general tips for oral evidence –in-chief (which is relatively rare):
i. Pace it;
ii. Get out everything you need;
iii. Otherwise see (b) above.
d. Some general tips for expert evidence:
i. Understand it and make it understandable;
ii. If you read any one paragraph of any one case, make it Makita v Sprowles at [87].
7. Prepare your cross examination: (getputblunten)
a. Get: if there’s anything you need to help make out your case, ask the witness to tell you;
b. Put: Tribunals operate within the bounds of procedural fairness. In my view Browne v Dunn,
although originally relating to leave to recall witnesses, really relates to having a witness of
opposing fact respond to your version – ie: a requirement of procedural fairness. Put when you
need to. If it is likely to be tedious and unnecessary, ask either your opponent or the Member to
be relieved of doing it provided no point will be taken about failure to put.
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c. Blunten: the great skill of cross. The simple tip is to know the facts of your case as well as you
can, in all its necessary detail. Frailties tend to expose themselves in this process. Watch Iriving
Young, read the books etc. Also remember, sometimes it works just to cut to the chase. For
example, Watson SC to Obeid Snr two weeks ago: question no.1: “Mr Obeid, tell me, would you
think it appropriate for a Minister knowingly to create a mining tenement over his friend’s
property”?
8. Prepare your closing submissions
a. A one day case, as many Tribunal matters are, you can just have one set of written submissions.
In a longer case you may use an original outline as the skeleton submissions, which you refine
your argument on contested issues and make more detailed by more extensive evidentiary
references etc.
b. When orally closing, the critical thing for yourself and for the Member, is to be structured: see
6(d) and (e) above.
c. When going through the statutory scheme (which should almost always happen), have a
purpose and don’t meander. Mark up your own copy of the Act/s and know which provisions
you need to go to. When going through the cases, do the same (usually with just a short
summary of any factual or statutory background, to demonstrate why your reference to it is
relevant). Never cite authorities you haven’t read in full.
9. Be physically prepared and organised: for yourself and the tribunal
a. Make sure you physically have everything and its readily referable;
b. Always have “the Act” as well as “the Tribunal Act”. Always have sufficient copies of the evidence
if you need to tender (including any ‘just in case’ documents). Always have copies of the cases.
c. To ensure (a) and (b) above, prepare yourself a folder with everything you might need to refer
to, with at least another couple of copies of what you need. Better yet, prepare 3 folders (if you
ignore everything else I say, just do this).
10. Be prepared to be polite and courteous
a. Talk to your opponent in advance. Agree on how to run things (ie: like you might go first in a
jurisdictional hearing etc) in advance so you don’t trouble the Member with it. Provide your
opponent with copies of things you might rely on.
b. Assist the Member as much as possible. If you feel you are getting the rough end (which in my
experience is relatively rare) simply revert to your knowledge of the procedural matters as to
how the Tribunal operates and be prepared to go to it.
c. Be prepared to be polite, restrained and courteous to everyone: Members, opponents, witnesses,
Tribunal staff.
Nick Eastman
Martin Place Chambers
21 February 2013
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