Effective methods of dispute resolution include direct communication between the parties, the disputes committee, third party involvement or if all else fails, making an application to the ACAT.
Talk to the village operator or resident
Often the quickest and easiest way to solve a problem between a resident and the village operator, or another resident, is to discuss the issue directly with the person and attempt to come to a mutually agreeable resolution. Residents should also carefully read the terms of their contract and look at any legislation or guidance material.
Get help from a third party
An independent third party can be used to help resolve the dispute.
The ACT Disability & Community Services Commissioner, who is part of the ACT Human Rights Commission, can consider complaints about the provision of services for older people, including retirement villages. The Commissioner’s role is to consider concerns and complaints and assist the parties to resolve a matter through an informal, accessible conciliation process. If the matter cannot be resolved through conciliation, the complainant can make an application to the ACAT to have the matter heard and determined.
For more information about the ACT Human Rights Commission’s role visit hrc.act.gov.au, call the Commission on 6205 2222 or email to human.rights@act.gov.au.
Disputes committee
Retirement villages must establish a committee (a disputes committee) to resolve disputes that arise between residents and operators. The disputes committee consists of a member appointed by residents, a member appointed by the operator and a chair agreed upon by the representatives of the operator and residents to be independent. The disputes committee must, within 30 days after receiving notice of a dispute: resolve the dispute; arrange for mediation; or tell the parties that the dispute is unresolved.
It is not compulsory for residents and operators to use the disputes committee to resolve disputes before utilising other options.
A person can make a complaint to the ACT Human Rights Commission and try to resolve the complaint through conciliation at the Commission. Alternatively, the parties may proceed directly to dispute resolution by the ACAT or seek outside mediation.
Contact Access Canberra or the ACT Human Rights Commission
If a problem remains unresolved, Access Canberra can be consulted by calling 13 22 81. Access Canberra can provide information but cannot resolve disputes, give you legal advice or tell you what you should do.
You can also call the ACT Human Rights Commission on 6205 2222 for information about its complaint and conciliation service for retirement village complaints.
Apply to the ACT Civil and Administrative Tribunal (ACAT)
If the dispute cannot be resolved informally, an application can then be made to the ACAT for an order to settle the dispute. The ACAT provides a simple and inexpensive way to resolve issues arising from legislation in a manner which is fair and consistent.
Applications to the ACAT may be made by completing the Retirement Villages application form, and filing the completed form at the Tribunal Registry. When the application form is lodged you will be required to pay a filing fee or request that the filing fee be waived. People do not need a lawyer to represent them in ACAT. However, it can be beneficial to seek legal advice before going to ACAT or during an ACAT matter. This can help people understand how ACAT might decide their matter based on the law and what information is most relevant for them to provide.
ACAT cannot give people legal advice about disputes, but its members and staff can provide information about its processes.
ACAT has powers to make a wide range of orders to resolve retirement village disputes fairly and appropriately. Residents and operators are legally required to comply with ACAT’s orders.
Previous decisions of ACAT may provide some guidance on how ACAT may decide new cases. A selection of published decisions of ACAT are available on the ACAT website or in an online searchable database on the Australasian Legal Information Institute website at: austlii.edu.au
What needs to be included in the application?
The application form requires the name and addresses of both parties to the dispute (referred to as the ‘applicant’ and the ‘respondent’). You will need to summarise the details of the dispute, and what outcome or orders you seek from the ACAT.
If there are relevant documents such as a contract, minutes of a meeting, or other correspondence, you should attach that to your application.
How is the application filed?
You can file an application by delivering it in person to the ACAT Registry, or by sending it to the ACAT Registry by post, by email, or by facsimile.
You will need to pay the prescribed fee or seek a waiver before the application can be progressed.
Where is the ACAT?
The ACAT is located at Allara House, 15 Constitution Avenue, Canberra City.
The other contact details for the ACAT are:
- listed in the handbook under ‘Useful contacts’,
- Under Information on this website, or
- ACT Civil & Administrative Tribunal (ACAT)
What happens once an application is filed with the ACAT?
Directions Hearing
After the application is filed it will usually be given a date for a ‘Directions Hearing’. The ACAT Registry will send a Notice of the Directions Hearing, and a
copy of the application, to each party to the dispute.
Where time permits, the respondent will be requested to file a response to the application prior to the Directions Hearing.
At the Directions Hearing, the matter will be considered by a Member of the ACAT who will clarify the dispute referred to in the application, and the response to the application. The Member will discuss with the parties the best route to resolution of the dispute. This may include referring the parties to an alternative dispute resolution process such as a preliminary conference or mediation, where the dispute may be negotiated and final orders made by consent.
Even where a matter is listed for alternative dispute resolution, it will usually also be given a date for final hearing and the Member will make directions to assist each party with the proper preparation of their case. This usually includes directions about the filing of documents or witness statements.
The Orders and Directions made at the Directions Hearing will be typed and sent to each party.
These orders will confirm any conference, mediation or hearing dates which have been set.
Preliminary Conference/Mediation
A preliminary conference or mediation is convened by a member or Registrar of the ACAT. A conference or mediation is a more private and confidential forum in which the parties to the proceedings can discuss the dispute with the assistance of the Member or Registrar, and seek to negotiate an agreed outcome. Where agreement is reached, final orders can be made by consent.
Even where there is no overall agreement, the parties may be assisted in refining the real issues in dispute, which can be of assistance in the final hearing of the matter.
Final Hearing
A final hearing is conducted by a Member of the ACAT. During a hearing, each party will be given the opportunity to present their evidence and respond to the other party’s presentation. The ACAT will observe natural justice and procedural fairness in the hearing process, and will make a decision applying the provisions of the relevant legislation. The decision of the ACAT is recorded in final orders of the ACAT usually made at the conclusion of the hearing. A copy of the final orders is then issued by the ACAT registry and sent to each party.
Parties to the matter may seek written reasons for a decision, within 14 days of the decision being made. It is possible to appeal a decision to the Appeal Division of the ACAT by filing a notice of appeal within 28 days of the decision being made.
What is the role of Access Canberra?
Access Canberra administers the laws governing retirement villages and has the following responsibilities:
- provide information regarding retirement village legislation
- clarify legislative requirements
- deliver information sessions
- conduct inspection programs
- investigate allegations of non-compliance.
Access Canberra does NOT:
- resolve disputes between operators and residents
- recommend certain retirement villages
- comment on the performance or integrity of any ACT retirement village for prospective
What is the role of the Human Rights Commission?
The ACT Human Rights Commission (HRC) has a specific complaint handling role for complaints about retirement villages in the ACT. The HRC can help resolve concerns or complaints residents have with the village operator.
You can call the HRC to talk about your concern, how to make a complaint and options for resolving the complaint.
You can make a complaint by filling in the online form at hrc.act.gov.au, sending an email to human.rights@act.gov.au or calling the HRC on 6205 2222. The complaint process is free, flexible and informal. HRC staff will talk to you about the outcomes you are seeking and work with you and the operator to try and resolve your concerns quickly & informally. If the matter cannot be resolved, you can take your complaint to the ACAT to have the matter heard and determined.
The ACT Human Rights Commission also handles complaints about
- discrimination
- health services & health records
- exploitation or abuse of people over 60
- services for older people like in home support or transport
- disability services
- services for victims of crime.
Extracts from The Retirement Villages Handbook (pp 21-24) as at 21 July 2023