Guest Blog on Australian Tribunal that Use Administrative Agency Approach In Many Traditionally Judicial Areas

After meeting Julie Grainger, a member of the Victorian (Australia) Civil and Administrative Tribunal (VCAT), I asked her to describe for this blog how the Tribunal works.  Its uses more of an administrative agency type approach in many substantive areas that most of us in the US tend to think can only handled by “traditional” courts.  I think we have a lot to learn from this.

____________________________________________________________

Greetings from Melbourne, Australia!

I recently had the pleasure of interviewing Richard whilst I was in the US conducting a research project titled “Litigants in Person in the Civil Justice System – learning from New Zealand, the United States and the United Kingdom”. The Churchill Memorial Trust awarded me a fellowship in 2012 to conduct this research.

Richard has requested that I post a blog about VCAT, where I work as a Tribunal member, conducting hearings with self represented parties on almost a daily basis.

VCAT is a state Tribunal located in Victoria, Australia. Whilst Australia is roughly the same size as the United States, our population is only 22.9 million (compared with the United States, which is 313.9 million). Victoria is Australia’s second smallest state, covering 227,600 square kilometres (roughly the size of the British Isles) with a population of about 5.6 million. Most of Victoria’s population (4.25 million people) live in our capital city, Melbourne.

Victoria

VCAT is the largest tribunal of its kind in Australasia. It was created on 1 July 1998 and amalgamated 15 boards and tribunals to offer a one-stop shop dealing with a range of disputes. A Victorian Supreme Court judge heads VCAT as President. County Court judges serve as Vice Presidents. Applications are heard and determined by the President, Vice Presidents, Deputy Presidents (appointed on a full time basis), Senior Members and ordinary Members (who may be appointed on a full time, part time or sessional basis).

Each year VCAT determines around 90,000 applications across a wide range of jurisdictional areas. The highest volume lists are Residential Tenancies, Civil Claims, Guardianship (adults with disabilities) and Planning and Environment (residential and commercial planning permit reviews). Other jurisdictions include anti-discrimination, health and privacy, mental health, land valuation, owners corporations (body corporate), domestic building, professional (doctors, lawyers, psychologists for example) and business regulation (taxi licences, fishing licences for example), taxation, retail tenancies, joint property disputes, transport accident claims and freedom of information.

VCAT’s purpose is to provide Victorians with a modern, low cost, accessible, efficient and independent tribunal delivering high quality dispute resolution including the use of alternative dispute resolution (ADR) processes. We aim for service excellence by being cost-effective, accessible, informal, timely, fair, impartial and consistent. VCAT’s head office is located in Melbourne’s CBD but it also conducts hearings at nine suburban venues and 27 regional venues.

Conduct of proceedings

VCAT aims to ensure that its forms and procedures are simple and easy to understand and that its hearings are as informal as possible.

All application forms and most other forms such as requests for adjournments or directions hearings are available to download from the VCAT website. Some application forms also come with a guide to help parties complete the form. The completed forms can be mailed, faxed or emailed to VCAT. They cannot yet be lodged online. Parties can also email any questions or other relevant documents to VCAT.

VCAT is not a court of pleadings but sometimes requires parties to file points of claim or defence. Orders will also sometimes be made prior to a hearing, which require parties to file particulars, exchange documents or file witness statements, for example.

VCAT is not bound by the rules of evidence. VCAT may inform itself on any matter as it sees fit and must conduct each proceeding with as little formality and technicality as a proper consideration of the matters before it permit. However, the Tribunal must act fairly and is bound by the rules of natural justice.

The complexity of the procedural requirements and the degree of formality during a hearing will depend on the nature and complexity of the claim.

Alternative dispute resolution (ADR)

VCAT believes that ADR can provide a quicker, more flexible and cost effective alternative to traditional litigation. VCAT currently offers ADR processes such as:

  • compulsory conferences (similar to conciliation or neutral evaluation)
  • mediations and
  • short mediation immediately followed by a hearing.

In some lists such as residential tenancies and civil claims, the member may spend some time at the beginning of the hearing seeing if the parties can agree to resolve the dispute without a full hearing. The member will encourage the parties to settle but will not participate in the settlement discussions. The member may suggest strategies to progress settlement discussions that have faltered but parties cannot disclose the details of any specific offers to the member. If an agreement between the parties is reached, the member will make an order reflecting the agreement. If the parties cannot agree, the member will start the hearing.

Innovative uses of technology

In addition to being able to download application and other forms from VCAT’s website, in the residential tenancies list, landlords (who make around 90% of all applications) can create notices to vacate and lodge applications online. Work is currently being done to extend this service to tenants. Tenants are also sent a hearing reminder by SMS three days before their hearing. In the guardianship list, financial administrators, who are required to report to the Tribunal every 12 months, now complete their reports on line. The Tribunal also conducts some hearings via telephone or videolink.

The right to a fair hearing

Since its inception, VCAT’s purpose has been to provide Victorians with a low cost, accessible, efficient and independent tribunal delivering high quality dispute resolution. One of VCAT’s primary obligations is to provide parties with access to a fair hearing. A fair hearing involves the opportunity to put a case, the right to be heard and the right to have the case determined impartially and according to law. However, a fair hearing is also about the information and assistance provided by the Tribunal to parties, particularly self represented litigants. VCAT’s Fair Hearing Practice note provides members with procedural guidance in relation to how to discharge the fair hearing obligation. The Fair Hearing Practice note is summary in posters located outside hearing rooms. You can find a copy of the Tribunal’s Fair Hearing Practice note at http://www.vcat.vic.gov.au/resources/document/pnvcat3-fair-hearing-obligation-effective-1-january-2013.

Grainger

VCAT also has a Litigants in Person Management plan, which identifies and shares best practice for VCAT staff, members and mediators in dealing with litigants in person through every stage in the process from filing through to enforcement, It also contains best practice guidelines for members conducting hearings with litigants in person and discussion of the relevant case law. VCAT members also receive training on conducting hearings with self represented parties.

Resources for self represented litigants

VCAT has produced a booklet and a video called “Taking it to VCAT” that give parties general information about the Tribunal and its practices and procedures. The booklet and the video can be found on our website at http://www.vcat.vic.gov.au/resources. The website also contains fact or FAQs sheets, links to other relevant websites and information about where to get free legal advice, information or assistance for each jurisdiction.

Legal representation

The overwhelming majority of parties at VCAT represent themselves (about 80%). Professional advocates need leave of the Tribunal to appear on behalf of a party unless that party is a child or a specified legal entity such as a public entity, a holder of or statutory office, a municipal council or an insurer or the other party consents or is represented by a professional advocate. The definition of professional advocate is very broad. It includes a person who is or has been a practising lawyer, a person who has a law degree or other tertiary legal qualification or a person who has had substantial experience as an advocate in proceedings of a similar nature to the proceeding before the Tribunal. Leave is only given for good reason (for example, if complex questions of law are involved or if a party is vulnerable due to a disability, mental health issues or because of that party’s cultural or ethnic background). If VCAT grants a party leave to be represented by a professional advocate, the other unrepresented party is usually allowed an adjournment to seek legal advice or representation.

VCAT may also permit a person who is not a professional advocate to represent a party such as a friend or family member.

Costs

Generally, each party pays their own costs regardless of the outcome of the claim. However, there is a discretion to award costs if it is fair to do so, having regard to factors such as whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party, whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding, the relative strengths of the claims made by each of the parties and the nature and complexity of the proceeding.

Interpreters

If a party needs an interpreter, VCAT provides an interpreter free of charge.

Reasons for decision

At the end of the hearing, a member either gives a decision “on-the-spot” and provides with parties with oral reasons or reserves the decision and provides the parties with written reasons, usually within six weeks of the end of the case. Tribunal orders are enforced by parties registering them with the Magistrates’ Court of Victoria and using the Court’s enforcement powers.  Decisions of VCAT can be appealed to the Supreme Court of Victoria but only on questions of law.

If you would like any further information about VCAT, you can go to our website, which is http://www.vcat.vic.gov.au or email me at Julie.grainger(at)justice.vic.gov.au.

Advertisements

About richardzorza

I am deeply involved in access to justice and the patient voice movement.
This entry was posted in Administative Proecdure, Simplification, Systematic Change and tagged , . Bookmark the permalink.