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Victorian Civil and Administrative Tribunal
Amendment Act 2014
No. of 2014
TABLE OF PROVISIONS
Clause Page
1 Purpose 1
2 Commencement 2
3 Principal Act 2
4 Definition of expert witness inserted 2
5 Establishment of Tribunal 2
6 Membership 3
7 New section 32A inserted 3
32A Delegation by principal registrar 3
8 New section 51A inserted 4
51A Tribunal may invite decision-maker to reconsider
decision 4
9 New section 60A inserted 5
60A Removal of parties 5
10 Constitution of Tribunal in proceedings 5
11 Mediation and settlement of proceeding 5
12 New section 94 substituted 6
94 Expert witnesses and expert evidence 6
13 New section 108 substituted 6
108 Reconstitution of Tribunal 6
14 New Division 8A inserted in Part 4 7
Division 8A--Reimbursement of fees 7
115A Definitions 7
115B Orders as to reimbursement or payment of fees 7
115C Presumption of order for reimbursement of fees in
certain proceedings 9
115D Division does not affect Tribunal's powers as to
costs 10
15 Enforcement of non-monetary orders 10
16 Injunctions 10
17 New section 125A inserted 11
125A Assessment of costs or damages in undertakings 11
18 Immunity of participants 11
i
Clause Page
19 New sections 157A and 157B inserted 11
157A Rules may provide for certain functions of the
Tribunal to be performed by principal registrar 11
157B Review of decision of the Tribunal constituted by
principal registrar 12
20 New section 167 inserted 12
167 Transitional provision--Victorian Civil and
Administrative Tribunal Amendment Act 2014 12
21 Variations for various proceedings 13
11AF Costs of Tribunal appointed experts 13
66E Costs of Tribunal appointed experts 13
22 New Schedule 3 inserted 13
SCHEDULE 3--Expert witnesses and expert evidence 13
1 Objects of this Schedule 13
2 Directions in relation to expert evidence 14
3 Directions to expert witnesses--conferences and
joint experts reports 15
4 Use of conference of experts and joint experts reports
in proceeding 16
5 Directions about giving of evidence, including
concurrent evidence, by expert witnesses 16
6 Single joint experts 17
7 Tribunal appointed experts 18
8 Interaction with other powers of Tribunal 20
23 Repeal of amending Act 20
ENDNOTES 21
ii
Victorian Civil and Administrative
Tribunal Amendment Act 2014
No. of 2014
[Assented to ]
The Parliament of Victoria enacts:
1 Purpose
The main purpose of this Act is to amend the
Victorian Civil and Administrative Tribunal
Act 1998 to--
(a) enhance the powers and efficiency of the
Tribunal; and
(b) enact a new regime for expert witnesses and
expert evidence.
1
Victorian Civil and Administrative Tribunal Amendment Act 2014
No. of 2014
s. 2
2 Commencement
(1) Subject to subsection (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
operation before 1 February 2015, it comes into
operation on that day.
3 Principal Act
See: In this Act, the Victorian Civil and
Act No.
53/1998. Administrative Tribunal Act 1998 is called the
Reprint No. 9 Principal Act.
as at
1 January
2014
and
amending
Act Nos
11/2010 and
67/2013.
LawToday:
www.
legislation.
vic.gov.au
4 Definition of expert witness inserted
Insert the following definition in section 3 of the
Principal Act--
"expert witness means a person who has
specialised knowledge based on the person's
training, study or experience;".
5 Establishment of Tribunal
After section 8(2) of the Principal Act insert--
"(3) The Tribunal consists of--
(a) a President; and
(b) the Vice Presidents, Deputy Presidents,
senior members and ordinary members;
and
(c) the principal registrar and registrars
referred to in section 32.".
2
Victorian Civil and Administrative Tribunal Amendment Act 2014
No. of 2014
s. 6
6 Membership
Section 9 of the Principal Act is repealed.
7 New section 32A inserted
After section 32 of the Principal Act insert--
"32A Delegation by principal registrar
(1) Subject to subsection (2), the principal
registrar, with the prior written approval of
the President, may delegate to a member of
staff referred to in section 32(1)(c) any
function of the principal registrar under the
rules that the rules specify may be delegated
under this section.
(2) The principal registrar may delegate a
function under the rules only to a person the
principal registrar is satisfied is appropriately
qualified to perform the function.
Note
The rules may specify the person or class of person to
whom a function may be delegated--see
section 157A(5)(b).
(3) A delegation under this section must be in
writing.
(4) In this section--
appropriately qualified, for a function,
includes having the qualifications,
experience or standing appropriate to
perform the function.".
3
Victorian Civil and Administrative Tribunal Amendment Act 2014
No. of 2014
s. 8
8 New section 51A inserted
After section 51 of the Principal Act insert--
"51A Tribunal may invite decision-maker to
reconsider decision
(1) At any time in a proceeding for review of a
decision, the Tribunal may invite the
decision-maker to reconsider the decision.
(2) On being invited by the Tribunal to
reconsider a decision, the decision-maker
may--
(a) affirm the decision; or
(b) vary the decision; or
(c) set aside the decision and substitute a
new decision for it.
(3) If the decision-maker varies the decision or
sets it aside and substitutes a new decision
and the proceeding continues, it is taken to
be a proceeding for review of the decision as
varied or the new decision.
(4) As far as possible the Tribunal must ensure
that a proceeding's priority is not affected by
the making of an invitation under this
section, unless the parties consent.
(5) The Tribunal cannot make an order for costs
under section 74(2)(b) only because an
applicant withdraws a proceeding following
reconsideration by the decision-maker under
this section.".
4
Victorian Civil and Administrative Tribunal Amendment Act 2014
No. of 2014
s. 9
9 New section 60A inserted
After section 60 of the Principal Act insert--
"60A Removal of parties
(1) The Tribunal may order that a person cease
to be a party to a proceeding if the Tribunal
considers that--
(a) the person's interests are not, or are no
longer, affected by the proceeding; or
(b) the person is not a proper or necessary
party to the proceeding, whether or not
the person was one originally.
(2) An order under subsection (1) may include
any other matters of a consequential or
ancillary nature that the Tribunal considers
appropriate.
(3) The Tribunal may make an order under
subsection (1) on its own initiative or on the
application of a party.".
10 Constitution of Tribunal in proceedings
At the foot of section 64(1) of the Principal Act
insert--
"Note
The rules may provide for the Tribunal to be constituted by
the principal registrar for performing certain functions--see
section 157A. If so, a registrar may also perform those
functions--see section 32(3).".
11 Mediation and settlement of proceeding
(1) In section 89 of the Principal Act--
(a) after "a proceeding" insert "or any part of
it";
(b) after "the proceeding" insert "or part".
5
Victorian Civil and Administrative Tribunal Amendment Act 2014
No. of 2014
s. 12
(2) In sections 90, 91 and 93(1) and (3) of the
Principal Act, after "proceeding" insert "or any
part of it".
12 New section 94 substituted
For section 94 of the Principal Act substitute--
"94 Expert witnesses and expert evidence
Schedule 3, which deals with expert
witnesses and expert evidence, has effect.".
13 New section 108 substituted
For section 108 of the Principal Act substitute--
"108 Reconstitution of Tribunal
(1) At any time before the conclusion of the
hearing of a proceeding--
(a) a party may apply to the Tribunal for
the reconstitution of the Tribunal for
the purposes of the proceeding; or
(b) the President or a member of the
Tribunal as presently constituted may
give notice to the parties that the
President or member seeks the
reconstitution of the Tribunal for the
purposes of the proceeding.
(2) If an application is made under
subsection (1)(a) or notice is given under
subsection (1)(b)--
(a) a presidential member, after allowing
the parties to make submissions, may
decide that the Tribunal should be
reconstituted; and
(b) if so, the President must reconstitute the
Tribunal.
6
Victorian Civil and Administrative Tribunal Amendment Act 2014
No. of 2014
s. 14
(3) If the Tribunal is reconstituted for the
purposes of a proceeding, the reconstituted
Tribunal may have regard to any record of
the proceeding in the Tribunal as previously
constituted, including a record of any
evidence taken in the proceeding.".
14 New Division 8A inserted in Part 4
After Division 8 of Part 4 of the Principal Act
insert--
"Division 8A--Reimbursement of fees
115A Definitions
In this Division--
fee means a fee payable in a proceeding
under this Act, the rules, the regulations
or an enabling enactment;
party does not include a person who is a
party only because the person--
(a) has intervened or is entitled to
intervene in a proceeding; or
(b) is a party because of section 83 of
the Planning and Environment
Act 1987.
115B Orders as to reimbursement or payment
of fees
(1) At any time, the Tribunal may make any of
the following orders--
(a) an order that a party to a proceeding
reimburse another party the whole or
any part of any fee paid by that other
party in the proceeding, within a
specified time;
7
Victorian Civil and Administrative Tribunal Amendment Act 2014
No. of 2014
s. 14
(b) an order as to which party must pay the
whole or any part of a fee in future in
the proceeding;
(c) an order that a party to a proceeding
pay, on behalf of another party, the
whole or any part of any fee that may
be required to be paid in the future by
that other party in the proceeding;
(d) an order that a party to a proceeding
reimburse another party the whole or
any part of any fee that may be paid in
the future by that other party in the
proceeding, within a specified time
after the fee is paid.
(2) Subsection (1)(b) does not apply if this Act,
the rules, the regulations or an enabling
enactment requires the fee to be paid by a
particular party.
(3) In making an order under this section, other
than in a proceeding to which section 115C
applies, the Tribunal must have regard to--
(a) the nature of, and issues involved in,
the proceeding; and
(b) the conduct of the parties (whether
occurring before or during the
proceeding), including whether a party
has caused unreasonable delay in the
proceeding or has failed to comply with
an order or direction of the Tribunal
without reasonable excuse; and
(c) the result of the proceeding, if it has
been reached.
8
Victorian Civil and Administrative Tribunal Amendment Act 2014
No. of 2014
s. 14
(4) If the Tribunal makes an order under this
section before the end of a proceeding, the
Tribunal may require that the order be
complied with before it continues with the
proceeding.
115C Presumption of order for reimbursement
of fees in certain proceedings
(1) This section applies to the following
proceedings--
(a) a proceeding relating to a small claim
within the meaning of Part 2AB of
Schedule 1;
(b) a proceeding under the Domestic
Building Contracts Act 1995;
(c) a proceeding under the Owners
Corporations Act 2006, other than a
proceeding on an application for review
under section 191 of that Act;
(d) a proceeding under the Residential
Tenancies Act 1997, other than a
proceeding in which the Director of
Housing (within the meaning of that
Act) is a party;
(e) a proceeding of a kind prescribed by
the regulations for the purposes of this
section.
(2) Subject to subsection (3), a party who has
substantially succeeded against another party
in a proceeding to which this section applies
is entitled to an order under section 115B
that the other party reimburse the successful
party the whole of any fees paid by the
successful party in the proceeding.
9
Victorian Civil and Administrative Tribunal Amendment Act 2014
No. of 2014
s. 15
(3) Subsection (2) does not apply if the Tribunal
orders otherwise, having regard to--
(a) the nature of, and issues involved in,
the proceeding; and
(b) the conduct of the parties (whether
occurring before or during the
proceeding), including whether the
successful party has caused
unreasonable delay in the proceeding or
has failed to comply with an order or
direction of the Tribunal without
reasonable excuse.
(4) In this section--
successful party, in relation to a proceeding,
means a party who has substantially
succeeded against another party in the
proceeding.
115D Division does not affect Tribunal's powers
as to costs
Nothing in this Division affects any power of
the Tribunal under this Act or an enabling
enactment to make an order for costs.".
15 Enforcement of non-monetary orders
In section 122(1)(c) of the Principal Act, after
"judicial member" insert "or the principal
registrar".
16 Injunctions
Section 123(6) of the Principal Act is repealed.
10
Victorian Civil and Administrative Tribunal Amendment Act 2014
No. of 2014
s. 17
17 New section 125A inserted
After section 125 of the Principal Act insert--
"125A Assessment of costs or damages in
undertakings
The Tribunal may assess any costs or
damages that are the subject of an
undertaking given to the Tribunal under this
Act or an enabling enactment.".
18 Immunity of participants
In section 143(8)(b) of the Principal Act, after
"this Act" insert ", the rules".
19 New sections 157A and 157B inserted
After section 157 of the Principal Act insert--
"157A Rules may provide for certain functions of
the Tribunal to be performed by principal
registrar
(1) Rules under section 157 may include rules
for or with respect to the functions of the
Tribunal that may be performed by the
Tribunal constituted by the principal
registrar.
(2) Rules referred to in subsection (1) cannot
provide for the Tribunal constituted by the
principal registrar to make any orders finally
disposing of a proceeding, other than orders
made with the consent of all parties to the
proceeding.
(3) To avoid doubt, a reference in subsection (2)
to orders finally disposing of a proceeding
does not include any orders striking out a
proceeding in circumstances where a party
has a right to have, or to apply to have, the
proceeding or part of it reinstated.
11
Victorian Civil and Administrative Tribunal Amendment Act 2014
No. of 2014
s. 20
(4) In making rules referred to in subsection (1),
the Rules Committee must consider whether
the function is of a kind that ought to be
performed by the Tribunal constituted by one
or more members rather than the principal
registrar.
(5) Rules referred to in subsection (1)--
(a) must specify whether the principal
registrar may delegate the function
under section 32A; and
(b) may specify the person or class of
person to whom the function may be
delegated under that section.
157B Review of decision of the Tribunal
constituted by principal registrar
(1) The Tribunal constituted by any member
may review a decision made by the Tribunal
constituted by the principal registrar.
(2) A review may be conducted under this
section at the request of a party or on the
Tribunal's own initiative.
(3) A review under this section is to be
conducted as a hearing de novo and nothing
in Division 3 of Part 3 applies to the
review.".
20 New section 167 inserted
After section 166 of the Principal Act insert--
"167 Transitional provision--Victorian Civil
and Administrative Tribunal Amendment
Act 2014
Each amendment made to this Act by the
Victorian Civil and Administrative
Tribunal Amendment Act 2014 applies, on
and after the coming into operation of the
12
Victorian Civil and Administrative Tribunal Amendment Act 2014
No. of 2014
s. 21
amendment, in relation to all proceedings in
the Tribunal, whether those proceedings
were commenced before or after the coming
into operation of the amendment.".
21 Variations for various proceedings
(1) For clause 11AF of Schedule 1 to the Principal
Act substitute--
"11AF Costs of Tribunal appointed experts
Despite clause 7(5) of Schedule 3, a person
with a disability is not responsible for the
costs of a Tribunal appointed expert under
clause 7 of that Schedule.".
(2) For clause 66E of Schedule 1 to the Principal Act
substitute--
"66E Costs of Tribunal appointed experts
Despite clause 7(5) of Schedule 3, a person
to whom the public health order applies is
not responsible for the costs of a Tribunal
appointed expert under clause 7 of that
Schedule.".
22 New Schedule 3 inserted
After Schedule 2 to the Principal Act insert--
"__________________
SCHEDULE 3
Section 94
EXPERT WITNESSES AND EXPERT
EVIDENCE
1 Objects of this Schedule
The main objects of this Schedule are to--
(a) enhance the case management powers
of the Tribunal in relation to expert
evidence in proceedings; and
13
Victorian Civil and Administrative Tribunal Amendment Act 2014
No. of 2014
s. 22
(b) restrict expert evidence to that evidence
which is reasonably required to resolve
a proceeding; and
(c) emphasise the paramount duty of an
expert witness to the Tribunal.
2 Directions in relation to expert evidence
(1) The Tribunal may give any directions under
section 80 that it considers appropriate in
relation to expert evidence in a proceeding.
(2) Those directions may include, but are not
limited to, the following--
(a) the preparation of an expert's report;
(b) the time for service of an expert's
report;
(c) limiting expert evidence to specified
issues;
(d) providing that expert evidence may not
be adduced on specified issues;
(e) limiting the number of expert witnesses
who may be called to give evidence on
a specified issue;
(f) providing for the appointment of--
(i) single joint experts; or
(ii) Tribunal appointed experts;
(g) any other direction that may assist an
expert witness in the exercise of his or
her functions as an expert witness in the
proceeding.
Note
Section 102(2) empowers the Tribunal to refuse to
allow a party to call evidence in certain
circumstances, which includes expert evidence (see
clause 8(1)(a)).
14
Victorian Civil and Administrative Tribunal Amendment Act 2014
No. of 2014
s. 22
3 Directions to expert witnesses--
conferences and joint experts reports
(1) Directions under section 80 may direct
expert witnesses in a proceeding--
(a) to hold a conference of experts; or
(b) to prepare a joint experts report; or
(c) to hold a conference and prepare a joint
experts report.
(2) The Tribunal may direct under section 80
that a conference of experts be held with or
without the attendance of all or any of the
following--
(a) the parties to the proceeding;
(b) the legal practitioners (if any) of the
parties;
(c) an independent facilitator.
(3) A direction to prepare a joint experts report
may include, but is not limited to, the
following--
(a) that the joint experts report specifies--
(i) the matters agreed and not agreed
by the experts; and
(ii) the reasons for any agreement or
disagreement;
(b) the issues to be dealt with in the joint
experts report by the expert witnesses;
(c) the facts, and assumptions of fact, on
which the joint experts report is to be
based.
(4) Directions referred to in this clause may be
general or in relation to specified issues.
15
Victorian Civil and Administrative Tribunal Amendment Act 2014
No. of 2014
s. 22
4 Use of conference of experts and joint
experts reports in proceeding
(1) Unless the parties to the proceeding agree, or
the Tribunal otherwise orders, anything said
or done during a conference of experts,
except as referred to in a joint experts report,
must not be referred to at any hearing of the
proceeding to which it relates.
(2) A joint experts report may be tendered at the
hearing of the proceeding as evidence
(as appropriate) of--
(a) joint or separate opinions of the
experts; or
(b) matters agreed by the experts; or
(c) matters not agreed by the experts.
5 Directions about giving of evidence,
including concurrent evidence, by
expert witnesses
(1) The Tribunal may give any directions
under section 80 that it considers
appropriate in relation to the giving of
evidence by any expert witness.
(2) Without limiting subsection (1), the Tribunal
may direct that any expert witness--
(a) give evidence at any stage of the
proceeding, including after all factual
evidence has been adduced on behalf
of all parties; or
(b) give evidence concurrently with one
or more expert witnesses; or
(c) give an oral exposition of his or her
opinion on any issue; or
(d) give his or her opinion of any opinion
given by other expert witnesses; or
16
Victorian Civil and Administrative Tribunal Amendment Act 2014
No. of 2014
s. 22
(e) be examined, cross-examined or
re-examined in a particular manner or
sequence, including by putting to each
expert witness, in turn, each issue
relevant to one matter or issue at a time;
or
(f) be permitted to ask questions of any
other expert witness who is
concurrently giving evidence.
(3) The Tribunal may question any expert
witness to identify the real issues in dispute
between 2 or more expert witnesses,
including questioning more than one expert
witness at the same time.
6 Single joint experts
(1) The Tribunal may order that an expert be
engaged jointly by 2 or more parties to a
proceeding.
(2) The Tribunal may make an order for the
engagement of a single joint expert at any
stage of the proceeding.
(3) In making an order to engage a single joint
expert, the Tribunal must consider--
(a) whether the engagement of 2 or more
expert witnesses would be
disproportionate to--
(i) the complexity or importance of
the issues in dispute; and
(ii) the amount in dispute in the
proceeding; and
(b) whether the issue falls within a
substantially established area of
knowledge; and
17
Victorian Civil and Administrative Tribunal Amendment Act 2014
No. of 2014
s. 22
(c) whether it is necessary for the court to
have a range of expert opinion; and
(d) the likelihood of the engagement
expediting or delaying the proceeding;
and
(e) any other relevant consideration.
(4) A single joint expert is to be selected--
(a) by agreement between the parties; or
(b) if the parties fail to agree, by direction
of the Tribunal.
(5) A person must not be engaged as a single
joint expert unless he or she consents to the
engagement.
(6) Any party who knows that a person is under
consideration for engagement as a single
joint expert--
(a) must not, prior to the engagement,
communicate with the person to obtain
an opinion on the issues concerned; and
(b) must notify the other parties to the
proceeding of the substance of any
previous communications on the issues
concerned.
(7) Unless the Tribunal orders otherwise, a
single joint expert's report may be tendered
in evidence by any of the parties to the
proceeding.
7 Tribunal appointed experts
(1) The Tribunal may make an order appointing
an expert--
(a) to assist the Tribunal; and
(b) to inquire into and report on any issue
in a proceeding.
18
Victorian Civil and Administrative Tribunal Amendment Act 2014
No. of 2014
s. 22
(2) The Tribunal may make an order appointing
a Tribunal appointed expert at any stage of
the proceeding.
(3) In making an order to appoint a Tribunal
appointed expert, the Tribunal must
consider--
(a) whether the appointment of a Tribunal
appointed expert would be
disproportionate to--
(i) the complexity or importance of
the issues in dispute; and
(ii) the amount in dispute in the
proceeding; and
(b) whether the issue falls within a
substantially established area of
knowledge; and
(c) whether it is necessary for the Tribunal
to have a range of expert opinion; and
(d) the likelihood of the appointment
expediting or delaying the proceeding;
and
(e) any other relevant consideration.
(4) A person must not be appointed as a
Tribunal appointed expert unless he or she
consents to the appointment.
(5) The parties are responsible for any costs of a
Tribunal appointed expert and are to pay
those costs in the proportions determined by
the Tribunal.
19
Victorian Civil and Administrative Tribunal Amendment Act 2014
No. of 2014
s. 23
8 Interaction with other powers of Tribunal
(1) Nothing in this Schedule limits any other
power the Tribunal may have--
(a) in relation to case management,
evidence or witnesses, including expert
witnesses; or
(b) to take any action that the Tribunal is
empowered to take in relation to a
contravention of a direction given or an
order made by the Tribunal.
(2) Nothing in this Schedule limits--
(a) the jurisdiction of the Tribunal; or
(b) any other powers of the Tribunal under
any other Act (including any
Commonwealth Act), the rules, practice
notes or practice directions.".
23 Repeal of amending Act
This Act is repealed on 1 February 2016.
Note
The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
20
Victorian Civil and Administrative Tribunal Amendment Act 2014
No. of 2014
Endnotes
ENDNOTES
Minister's second reading speech--
Legislative Assembly:
Legislative Council:
The long title for the Bill for this Act was "A Bill for an Act to amend the
Victorian Civil and Administrative Tribunal Act 1998 to enhance the
powers of the Tribunal and enact a new regime for expert witnesses and
expert evidence and for other purposes."
By Authority. Government Printer for the State of Victoria.
21
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