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5)
The strengths of tribunals include the following.
More specialised than most courts- Their jurisdiction is limited either
to a specific area of law or to claims of a small monetary value. For
example, the Victorian Civil and Administrative Tribunal AntiDiscrimination List specialises in hearing cases involving
discrimination.
Less formal than courts -The rules of evidence and procedure are
relaxed. Legal representation may not be required. Tribunal personnel
do not wear wigs and robes. This informality means that people feel
less intimidated and find it easier to express themselves.
Faster than taking a case to court- Matters are usually by appointment,
so time is not spent waiting for the case to be called up on the day.
Disputes are resolved fairly quickly.
Less expensive than court action- In most cases, legal representation
is not required or is not allowed. Therefore, the parties do not have to
pay legal fees. Generally, there is a small stamp duty fee.
The decision of the tribunal is final - Appeals are restricted or not
allowed, this reduces costs.
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The weaknesses of tribunals include the following.
Limited right of appeal - It is the usual practice
to pass laws that prevent the court from hearing
appeals from tribunals, except on very limited
legal grounds.
Lack of formality -The less formal atmosphere
of a tribunal may allow a more confident party
to dominate. Some people may feel intimidated
and agree to conciliate a claim rather than
pressing for their rights.
Lack of legal representation - Some tribunals do
not allow legal representation. This may
disadvantage people who are less familiar with
their rights or less able to explain their claim.
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The Victorian Civil and Administrative (VCAT) was
established in 1998.
VCAT is divided into three divisions: a Civil Division,
an Administrative Division and a Human Rights
Division.
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Within each division are sections known as ‘lists’.
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Each list hears particular types of cases.
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VCAT’s key objective: to be cost effective, accessible
and informal, timely, fair and impartial, consistent
and quality decision-makers.
Disputes between individuals:
1) consumer matters
2) Credit
3) domestic building works
4) residential tenancies
5) retail tenancies
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Civil Claims list- Deals with disputes between buyers and
sellers of goods and services. E.g. Faulty goods.
Credit List- Hears disputes about credit contracts between
borrowers and financial institutions. E.g. Repossession
Domestic Building List- Hears disputes between builders
and owners
Legal Practice List- Hears disputes between clients and
lawyers.
Real Property List- Hears disputes relating to real estate.
Residential Tenancies List- Deals with disputes between
landlords and tenants. E.g. Non payment of rent, damage
to premises.
Retail Tenancies List- Hears disputes between landlords
and tenants of retail premises such as shops.
Disputes between individuals and
government:
1) land valuation
2) licences—business, travel agents, motorcar
traders
3) Planning
4) state taxation
5) Traffic Accident Commission (TAC)
decisions
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General List- Deals with government agencies
such as TAC.
Land Valuation List- Hears applications by
landowners to review land valuations.
Occupational and Business Regulation ListReviews decisions made by occupational and
licensing bodies; credit providers, estate agents,
motor car traders, prostitution service providers,
travel agents.
Planning and Environment List- Deals with
complaints about local council planning decisions
and permits.
Taxation List- Hears appeals against the
imposition of state taxes such as stamp duty,
payroll tax.
Disputes involving:
1) Discrimination
2) Guardianship
3) administration
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Anti- Discrimination List- Deals with
complaints about discrimination, and
applications for exemption from the Equal
Opportunity Act.
Guardianship List- Hears cases involving
people who cannot make reasonable personal
or financial decisions for themselves and
needs a guardian to be appointed to look
after their legal affairs.
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VCAT is headed by a president- Supreme
Court judge. Vice-presidents, are County
Court judges, assist the president.
Members, responsible for conciliating and
arbitrating individual disputes, are allocated
to each list.
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The dispute resolution methods adopted by VCAT may vary from list to list.
Generally, VCAT uses mediation, conciliation and arbitration to resolve disputes.
Compulsory conferences
In some instances, VCAT may direct the parties to attend a compulsory conference.
A compulsory conference is an informal pre-hearing conference. A compulsory
conference may be held to:
identify and clarify the nature of the issues in dispute
promote a settlement
identify the questions of fact and law to be decided
Parties who fail to attend a conference may have their case struck out or a decision
made against them. Statements made during a conference can only be used during
a hearing if both parties agree.
Mediation
To help settle disputes, VCAT can arrange for a case to be mediated, if appropriate.
If a case is referred to mediation by VCAT, parties must attend and can be required
to pay a fee for the mediation service.
If the mediation is successful, the mediator notifies VCAT that the parties have
agreed to settle.
If mediation is not successful, the matter will be referred back to VCAT for hearing.
Statements made during mediation cannot be used as evidence.
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When a hearing is held, it takes place before a member of
VCAT.
Parties have the opportunity to call or give evidence, ask
questions of witnesses and make submissions.
VCAT is not bound by the rules of evidence. A person is not
excused from giving evidence on the grounds that it may be
self-incriminating.
Generally the hearing is conducted in public. However, VCAT
can order that the hearing or part of the hearing be in
private.
VCAT also has the power to restrict or prohibit the
publication of certain evidence.
VCAT may also conduct a hearing by means of a conference
using telephone, video or other telecommunication links. In
addition, if the parties agree, the hearing can be conducted
entirely ‘on the papers’, that is, without either party
appearing in person at the hearing.
VCAT can allow the use of a lawyer or professional advocate
to help settle the matter.
A party who is dissatisfied with VCAT’s decision can
lodge an appeal, on a question of law, against an
order of VCAT to:
1)
the Court of Appeal, if the president or vicepresident was sitting on the VCAT panel that made
the order
2)
the Trial Division of the Supreme Court in all other
cases.
 In order to have an appeal heard by the Supreme
Court or the Court of Appeal, the court must grant
permission to appeal (leave of appeal)
 When the Supreme Court or the Court of Appeal hears
an appeal from VCAT it may:
1)
affirm, vary or set aside the order
2)
make an order that VCAT could have made in the
proceedings
3)
send the case back to VCAT to be heard again.
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The type of orders that VCAT can make in a
hearing vary from list to list. In general VCAT
can:
1) Require a party to pay money
2) Require a party to do something, such as
perform work, carry out repairs, vacate
premises
3) Require a party to refrain form doing
something
4) Declare that a debt is or is not owing
5) Review, carry or cancel a contract
6) Dismiss a claim.
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The Civil Claims Lists hears disputes
under the Fair Trading Act 1999.
This includes small claims for the
payment of money not exceeding
$10 000 or performance of work of a
value not exceeding $10 000. It also
hears some disputes under the Motor
Car Traders Act 1986.
Dispute settlement procedures:
-mediation
-conciliation
-arbitration
The Residential Tenancies
List hears disputes between
a landlord and a residential
tenant relating to a
residential tenancy where
the money involved in the
dispute is less than
$10 000.
 Dispute settlement
procedures:
 -mediation
 -conciliation
 -arbitration
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The Anti-Discrimination List
hears complaints of
discrimination.
Dispute settlement
procedures:
-direction hearings
-mediation
Before making a complaint to
VCAT about discrimination a
person must, first take their
complaint to the Victorian
Equal Opportunity and
Human Rights Commission.
There they will attempt to
conciliate the claim.
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Lets read the newspaper reports together from Jules Book pg
238-239 and answer the questions:
1 Explain two reasons why tribunals were introduced.
2 Explain the role and structure of VCAT.
3 What dispute resolution methods would be used by VCAT to
resolve the disputes discussed in the newspaper articles above?
4 What remedies were awarded by VCAT in each of the newspaper
reports?
5 What do you consider to be the advantages and disadvantages of
using VCAT to resolve a dispute rather than the courts?
6 Explain two reasons why it may be necessary to use the system
of VCAT as an alternative to using courts to resolve disputes.
7 List two strengths and two weaknesses of using Tribunals.