VCAT: General Overview:
The Victorian Civil and Administrative Tribunal (VCAT) was created by the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the VCAT Act).
VCAT was modelled on the Federal Administrative Appeals Tribunal; but is now bigger than that tribunal and is being examined as a model for other states.
A ‘one-stop shop’ for the handling a range of disputes VCAT is the merger of 15 boards and tribunals; most notably the Administrative Appeals Tribunal, Small Claims Tribunal, Domestic Building Tribunal, the Anti-Discrimination Tribunal and the Residential Tenancies Tribunal as well as specific functions of various administrative and disciplinary boards and tribunals.
VCAT is Australia’s largest administrative tribunal with 88,523 originating applications and total funding of over $45 million annually.
· VCAT has a staff of 441 including 15 judicial members, 34 full-time members and 173 sessional members.
The vision for VCAT is to serve the community by resolving disputes in a timely, cost-effective and efficient way.
Up to 2 million Victorians have contact with VCAT annually; Victorians are more likely to interact with VCAT than any other jurisdiction.
In accordance with the VCAT Act, a Supreme Court Judge heads VCAT as President, and County Court Judges serve as Vice Presidents.
· Applications are heard and determined by Deputy Presidents (appointed on a full-time basis), Senior Members and ordinary Members (who may be full-time, part-time or sessional).
· Members have a broad range of specialised skills and qualifications, enabling VCAT to hear and determine cases of varying complexity and subject matter.
VCAT sits in a range of locations across the metropolitan area and in regional Victoria at venues such as Geelong, Ballarat, Bendigo, Shepparton, Morwell, Mildura, Warrnambool and Wangaratta. Main location is 55 King St Melbourne.
VCAT finalised over 90,000 cases bringing the clearance rate over 100% each year. The Residential Tenancies List remains the busiest list with over 61,000 applications lodged annually, followed by the Guardianship List with almost 11,000 applications and the Civil Claims List with over 7,500 commencements.
VCAT Legislation:
One of the most important features of VCAT is that it is a creature of pure statute. VCAT has no inherent jurisdiction, unlike the various Victorian and Federal Courts of the judicial system.
· As such, unless a power has been given under an enabling enactment, (defined in section 3 of the VCAT Act), the power does not exist.
VCAT has two types of jurisdiction, original jurisdiction and review jurisdiction (also called merits review).
· Essentially the review definition is defined as an enabling enactment to review a decision of a decision maker (such as a local council) as outlined in section 39-42 and 67 of the VCAT Act and in Williams v Superhealth Pty Ltd.
o Essentially in a review hearing VCAT first determines if the original decision was “not unreasonable”, “open” or “not reasonable” (Stewart v Shuet [1999] VSC 114) and VCAT will apply the Law as it stands at the time of the review hearing but may only consider the facts at the time of the original decision.
· Original jurisdiction requires VCAT to make a first instance decision. For example the Civil and Human Rights division deals with original decisions, whereas the Planning and Environment List would be a review jurisdiction (section 51 of the VCAT Act gives VCAT all the functions of the original decision maker).
Each List follows slightly different practices and procedures which can make VCAT a minefield for legal practitioners and the public.
· In many ways VCAT still acts like a number of largely separate Tribunals housed in the same building.
· However the VCAT Act sets out powers (and in some cases, procedure) for the entire Tribunal.
There are over 100 enabling jurisdiction that give VCAT rights; the main are ones:
· Victorian Civil and Administrative Tribunal Act 1998;
· Victorian Civil and Administrative Tribunal Rules 2008;
· Victorian and Administrative Tribunal (fees) Regulations 2012;
· Tribunals and licencing (Miscellaneous Amendments) Act 1998;
· The Planning and Environment Act 1987;
· Planning and Environment Regulations 1998;
· Domestic Building Contracts Act 1995;
· Domestic Building Contracts Regulations 2007;
· Building Act 1993;
· Owners Corporation Act 2006;
· Retail Leases Act 2003;
· Residential Tenancies Act 1997;
· Retail Tenancies Reform Act 1998;
· Property Law Act 1958;
· Valuation of Land Act 1960;
· Fair trading Act 1999;
· Australian Consumer Law and Fair Trading Act 2012;
· Guardianship and Administration Act 1986.
· Legal Professional Act 2004
Much of VCAT’s jurisdiction is now exclusive or mandatory and parties have no choice but to bring their disputes to VCAT. For example:
· Domestic Building claims;
· Planning and Environment disputes;
· Retail Leasing/Tenancy disputes;
· Residential Tenancy disputes;
· Certain property disputes such as those between co-owners of land or land valuation disputes;
However, other civil claims, such as claims under the Consumer Law dispute could, in many cases, also be properly brought in the Court with the appropriate monetary jurisdiction. For example small civil claims under $10,000 brought in VCAT could equally have been brought in the Magistrates Court. Most small monetary disputes are basically contractual in nature, and so can be brought under a breach of contract type claim in the Magistrates Court or a claim under Consumer Law. Further to that building disputes can be heard if they are commercial in nature can be heard at VCAT and on the Commercial Building List at the County Court.
The Four Divisions of VCAT:
VCAT has four divisions and 9 different lists under numerous enabling enactments and each list is led by a Deputy President or a Senior Member referred to as a Head of List.
· Administrative Division;
o Legal Practice List;
o Planning and Environment List;
o Review and Regulation List;
o The Administrative Division deals with applications from people seeking review of government and other bodies’ decisions that affect them; including:
o The development and use of land, including planning permits issued by local councils;
o Land valuation for rating purposes, and compensation for the compulsory acquisition of land;
o Transport Accident Commission findings;
o State taxation;
o Legal services;
o Business licences, professional registrations and disciplinary proceedings across a range of professions and industries;
o Freedom of Information applications;
o Work Safe assessments;
· Civil Division;
o Building and Property List;
o The Domestic Building, Retail Tenancies and Real Property Lists was merged on 1 July 2014 to form a new Building and Property List and enables commercial building issues to be hear along with domestic building issues.
o Civil Claims List;
o Owners Corporations List;
o Civil Division hears and determines a range of civil disputes relating to:
o Consumer matters;
o Domestic and commercial building works;
o Owners corporation matters;
o Residential and retail tenancy disputes;
o Sale and ownership of property (Real Property Matters);
o Use or flow of water between properties.
· Human Rights Division;
o Guardianship List;
o Human Rights List.
o Human Rights Division deals with matters relating to:
o Guardianship and administration;
o Equal opportunity;
o Racial and religious vilification;
o Health and information privacy;
o Decisions made by the Mental Health Review Board.
· Residential Tenancies Division;
o Residential Tenancies List.
o Residential Tenancies Division handles disputes between:
o Tenants and landlords;
o Rooming house owners and rooming house residents;
o The Director of Housing and public housing tenants;
o Caravan park owners and residents.
Daniel Epstein of Counsel
