Presentation on theme: " The strengths of tribunals include the following. 1) More specialised than most courts- Their jurisdiction is limited either to a specific area of law."— Presentation transcript:
The strengths of tribunals include the following. 1) 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 Anti- Discrimination List specialises in hearing cases involving discrimination. 2) 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. 3) 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. 4) 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. 5) The decision of the tribunal is final - Appeals are restricted or not allowed, this reduces costs.
The weaknesses of tribunals include the following. 1) 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. 2) 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. 3) 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.
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. Within each division are sections known as ‘lists’. Each list hears particular types of cases. 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
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
General List- Deals with government agencies such as TAC. Land Valuation List- Hears applications by landowners to review land valuations. Occupational and Business Regulation List- Reviews 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.
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.
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.
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: 1) identify and clarify the nature of the issues in dispute 2) promote a settlement 3) 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.
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 vice- president 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.
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.
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
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.
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.