Could the need for a Retirement Industry Ombudsman not be more amplified than the real life VCAT case outlined below. A pensioner couple versus the might of a Minter Ellison ready to smite them into legal oblivion, if this couple is wrong in law then the law will do that all by itself. Is this really what the Andrews state government wants for their older citizens living under the umbrella of retirement living.
The Victorian Civil Administrative Tribunal feature the following on their web site under disputes over goods or services, 'If the claim is for goods and services under $15,000, we generally don’t allow a lawyer or other professional representative to speak for you at VCAT'. The only reason VCAT can approve of legal representation at a hearing is on the basis that 'the Tribunal is satisfied that no other party to the proceeding will be unfairly disadvantaged if the representation is allowed'. VCAT have seen fit to grant a retirement village operator the right for the legal firm Minter Ellison to defend them at a hearing against a pensioner couple in a dispute over just $2,000. Is there not an imbalance created here, an imbalance that is almost immeasurable.
The no legal representation under $15,000.00 principal does not deny either party the right to legal advice prior to a hearing, it only speaks of legal representation at a hearing. For claims relating to goods or services under $15,000.00 each party is generally to present their own case based on legal advice received prior to the hearing, designed to level the playing field, to remove the legal formality of a court room.
VCAT has followed a legal process, the one primary consideration however is that the tribunal must be satisfied that no party will be unfairly disadvantaged. The party negatively impacted here is a pensioner couple and it is difficult to comprehend that this is not so in this case. Would the mere cost to them of their own legal council to represent them at the hearing not qualify as 'unfairly disadvantaged'. Without financial resources a pensioner couple would have to take the role of a Perry Mason against a legal firm such as a Minter Ellison over matters of law, would that not qualify as 'unfairly disadvantaged'.
This is a very good example as to why VCAT is much too often a bridge too far for most if not all retirement living residents, that the road to consumer protection is too long and too arduous. The reality is the effort required defeats all but the hardy, or is it the foolhardy. Who will spend their retirement years standing against the legal might of say a Minter Ellison, there is no greater imbalance here in the battle over just $2,000. There is no greater example of why most retirement village residents no matter how just the motives of their case simply surrender, simply suffer the injustice being done to them. There was once a claim that there is nothing wrong with retirement villages as there are so few complaints, the answer to that is in the cumulative experience of retirement living residents.
