Significant changes to Victorian Civil and Administrative Tribunal powers

In brief

New legislation will implement significant changes to the administration of the Victorian Civil and Administrative Tribunal in a bid to improve efficiencies. Special Counsel Meg Lee and Lawyer Katherine Kirby discuss the key changes to VCAT's powers in the context of its planning jurisdiction.

Inviting decision-makers to remake decisions (new section 51A)

The Victorian Civil and Administrative Tribunal Amendment Bill 2014 (Vic) (the Bill) proposes changes to the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the Act). It includes a new power for the Victorian Civil and Administrative Tribunal (VCAT), in a review proceeding, to invite the original decision-maker (usually a council) to reconsider its decision.¹ The Bill provides that the decision-maker can then either affirm, vary or set aside and remake the existing decision. However, if the decision is varied or substituted by the original decision-maker, the proceeding is then taken to be a proceeding for review of the decision as varied or substituted.

The Bill provides that VCAT cannot make a costs order against the applicant on the basis that the proceeding is withdrawn by the applicant after it has been reconsidered by the decision-maker.² Further, VCAT must ensure (as far as is possible) that this process does not affect the 'priority' of the hearing or determination of the proceeding without the parties' consent.³ It is unclear if this means that the timeframes for the hearing cannot be affected.

Attorney-General Robert Clark has suggested that this amendment will particularly assist planning review proceedings, citing the following example:

the power would allow [the Tribunal] to formally request that a local council reconsider a decision to grant a permit with certain conditions, thus providing the council itself with the opportunity to consider a proposed resolution to the dispute, rather than having to decide whether or not to authorise council planning officers to agree to possible resolutions during negotiations...⁴

Power to order the removal of parties (new section 60A)

The Bill proposes to insert a new section 60A, which provides VCAT with the power (on its own initiative or upon the application of a party) to make an order removing a party from a proceeding if:

• the person's interests are not, or no longer, affected by the proceeding; or
• the person is not a proper or necessary party to the proceeding.⁵

This power could have application in planning disputes where there are objectors who are not impacted by the development, but have a general interest and seek to be a party and agitate issues on this basis. That is, despite having a theoretical right to 'standing', a party could be removed. It remains to be seen how actively VCAT will use this power.

The provision also enables VCAT to make orders of a 'consequential or ancillary nature'. The explanatory memorandum provides the example that this power 'allows the Tribunal to make an order dispensing with service where parties have indicated they do not wish to participate in proceedings (as occurs, in particular, in certain matters involving objectors under the Planning & Environment Act 1986)...'⁶

Fee orders (new Part 4, Division 8A)

One of the new powers proposed by the Bill is to enable VCAT to make orders in relation to fees to:

• require one party to reimburse another party for the whole or part of any fee paid in a proceeding, or to be paid in a future proceeding; or
• require a particular party to pay the whole or part of a fee in a future proceeding (or to pay that fee on behalf of another party who is required to pay a fee).⁷

This power is separate from, and in addition to, VCAT's power to make orders for costs.

VCAT is required to have regard to the nature of and issues in the proceeding, the conduct of the parties (including any unreasonable delay or failure to comply with orders/directions) and the result of the proceeding (if available). VCAT has the power to stop the proceeding until the fee order has been complied with.

Expert witnesses (new Schedule 3)

While the Act currently makes provision for the calling of experts to advise VCAT, the Bill proposes to insert a new Schedule 3, which provides a framework for dealing with expert witnesses and expert evidence, based on the regime applying to the courts under the Civil Procedure Act 2010 (Vic).⁸ These amendments are likely to have significant application in large and complex planning matters.

The objects of the Schedule are stated to be to:

• enhance the case management powers of VCAT in relation to expert evidence in proceedings;
• restrict expert evidence to that evidence which is reasonably required to resolve a proceeding; and
• emphasise the paramount duty of an expert witness to VCAT.

Broadly, under this Schedule, VCAT has the power to give directions in relation to expert evidence including, for example:

• the appointment of single joint experts (that is, one expert engaged jointly by two or more parties);
• limiting the issues dealt with by experts;
• to direct expert witnesses to hold a conference of experts;
• preparation of a joint expert report;
• the timing of expert evidence in the proceeding;
• the giving of evidence concurrently with other similar experts; and
• to direct an expert to give an opinion on another expert's opinion.

The Schedule also includes regulation of the use of expert conferences and joint experts' reports in proceedings and a framework for the appointment of single joint experts for two or more parties. Schedule 3 also provides VCAT with the power to make an order appointing an expert to assist VCAT and sets out the framework relating to any such appointment.

VCAT has always had a more relaxed approach to evidence than the courts and the more proactive and senior members will often actively manage expert evidence so as to interpose like witnesses to present on the same day. However, these changes go beyond mere procedure and timing of evidence and allow VCAT to act more like the New South Wales and Queensland specialist courts. Some of these changes could lead to increased costs for parties; others may lead to greater efficiencies, depending upon how VCAT uses the new powers.

Other key amendments

Clause 5 of the Bill clarifies that VCAT may be comprised of the principal registrar of a list and other registrars in particular situations, in addition to the President, Vice Presidents, senior members and ordinary members.⁹ A new section 157A enables the Victorian Civil and Administrative Tribunal Rules 2008 (Vic) (the Rules) to provide that certain functions may be performed by a Tribunal constituted by the principal registrar.¹⁰ However, the Bill prohibits the principal registrar from making any orders finally disposing of a proceeding, unless such orders are consent orders or the orders are to strike out a proceeding in circumstances where a party has a right to have (or apply to have) the proceeding reinstated, in whole or part.

A decision made by VCAT constituted by the principal registrar can be reviewed, de novo, by a tribunal constituted by any member.¹¹ Such a review can be initiated by VCAT itself or at the request of a party.

A new section 32A will enable the principal registrar (with the approval of the President) to delegate his/her functions under the Rules to any members of staff (including other registrars), provided that the Rules specify that the power can be delegated.¹² It has been suggested that this will improve efficiencies in all registries and will be of particular benefit in regional areas, to enable local staff to make certain decisions rather than sending documents to Melbourne.¹³

Next steps

The Bill was introduced to Victorian Parliament in early February and was passed in the Legislative Assembly on 13 February 2014. It has undergone second reading in the Legislative Council. Once passed in the Legislative Council, the Bill will commence operation on 1 February 2015, if not proclaimed earlier.¹⁴

Once the amendments in the Bill have commenced operation, they will apply to all proceedings, regardless of whether the proceedings were commenced before the operation of the provisions.¹⁵