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Victorian Civil and Administrative
Tribunal Amendment Bill 2014
Introduction Print
EXPLANATORY MEMORANDUM
General
The Victorian Civil and Administrative Tribunal Amendment Bill 2014
amends the Victorian Civil and Administrative Tribunal Act 1998 to
enhance the powers and efficiency of the Tribunal and enact a new regime
for expert witnesses and expert evidence.
The Bill will--
· enable the Tribunal when exercising its review jurisdiction to invite an
original decision-maker to reconsider the decision;
· enable the Tribunal to make an order in relation to fees, separate from
its power to award costs;
· introduce a legislative scheme for the Tribunal in relation to expert
witnesses and their evidence;
· provide a range of mechanical and technical amendments to improve
the Tribunal's ability to manage proceedings.
Clause Notes
Clause 1 sets out the main purpose of the Bill.
Clause 2 provides that the Bill comes into operation on a day or days to be
proclaimed, or by 1 February 2015 if any provisions are not
proclaimed by that date.
Clause 3 defines the term Principal Act as the Victorian Civil and
Administrative Tribunal Act 1998.
571223 1 BILL LA INTRODUCTION 4/2/2014
Clause 4 inserts a new definition expert witness into section 3 of the
Principal Act. This amendment defines the term expert witness
to mean a person who has specialised knowledge based on the
person's training, study or experience. This definition is
consistent with the Civil Procedure Act 2010.
Clause 5 inserts in section 8 of the Principal Act a new subsection (3) to
provide that the Tribunal consists of--
· a President; and
· the Vice Presidents, Deputy Presidents, senior members
and ordinary members; and
· the principal registrar and registrars referred to in
section 32.
This amendment combines sections 8 and 9 of the Principal Act,
and inserts a reference to the principal registrar and registrars, to
clarify that they may constitute the Tribunal in certain
circumstances.
Clause 6 repeals section 9 of the Principal Act because the amendment in
clause 5 combines sections 8 and 9 of the Principal Act and
inserts a reference to the principal registrar and registrars to
clarify that they may constitute the Tribunal in certain
circumstances.
Clause 7 inserts a new section 32A in the Principal Act providing that the
principal registrar may delegate relevant functions to a member
of staff referred to in section 32(1)(c). A delegation may only be
made if the function is a function of the principal registrar under
the rules, and if the rules specify that the function may be
delegated. The President must approve the delegation in writing
and the delegation itself must be in writing pursuant to
subsection (3).
Subsection (2) provides that 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.
Subsection (4) defines appropriately qualified, such that it
includes having the qualifications, experience or standing
appropriate to perform the function.
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Clause 8 inserts a new section 51A in the Principal Act to provide that the
Tribunal may at any time in a proceeding for review of a decision
invite the decision-maker to reconsider the decision.
Subsection (2) lists the decisions that the decision-maker may
make, on being invited by the Tribunal to reconsider.
This provision also applies to enabling enactments, subject to any
contrary provision. Subsection (3) provides that, if the decision-
maker varies the decision or sets aside the decision and
substitutes a new decision, if the proceeding continues it is taken
to be a proceeding for review of the decision as varied or the new
decision.
Subsection (4) provides that the Tribunal must ensure that a
proceeding's priority is not affected by an invitation under this
section, unless the parties consent. This is to ensure that a
proceeding's priority for hearing and a proceeding's priority for
determination will not be affected, other than with the consent of
the parties, as the result of an invitation under section 51A(1).
Subsection (5) provides that the Tribunal cannot make an order
for costs under section 74(2)(b) of the Principal Act only because
an applicant withdraws a proceeding following reconsideration
by the decision-maker under this section. The Tribunal retains its
usual discretion in all other respects under section 74(2)(b).
Clause 9 inserts a new section 60A in the Principal Act, which provides
that the Tribunal may order, on its own initiative or on the
application of a party, that a person cease to be a party to a
proceeding if the Tribunal considers that--
· the person's interests are not, or are no longer, affected
by the proceeding; or
· the person is not a proper or necessary party to a
proceeding, whether or not the person was one
originally.
Subsection (2) provides that an order under subsection (1) may
include any other matters of a consequential or ancillary nature
that the Tribunal considers appropriate. This 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 and Environment Act 1986), and to make
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directions as to how decisions of the Tribunal under this
provision are recorded on the Tribunal's electronic systems.
Clause 10 inserts a note at the foot of section 64(1) of the Principal Act to
alert the reader that the rules may provide for the Tribunal to be
constituted by the principal registrar for performing certain
functions. The note refers to the rule-making power in the new
section 157A and further alerts the reader that, where the rules
provide that the Tribunal may be constituted by the principal
registrar for performing certain functions, a registrar may also
perform those functions by virtue of section 32(3).
Clause 11 makes amendments to sections of the Principal Act concerning
mediation and the settlement of proceedings to put beyond doubt
the Tribunal's ability to conduct a mediation or give effect to a
settlement in respect of part of a proceeding.
Sections 89, 90, 91 and 93(1) and (3) of the Principal Act are
amended to clarify that they apply to a proceeding or any part of
it.
Clause 12 substitutes a new section 94 of the Principal Act providing that
Schedule 3, which deals with expert witnesses and expert
evidence, has effect.
Clause 13 substitutes a new section 108 which replaces and simplifies the
process for reconstituting the Tribunal.
Subsection (1) provides that at any time before the conclusion of
the hearing of a proceeding, a party may apply to the Tribunal, or
the President or a member of the Tribunal may give notice to
parties, for reconstitution of the Tribunal for the purposes of the
proceeding.
After the application is made or notice is given, subsection (2)
provides that a presidential member, after allowing the parties
to make submissions, may decide that the Tribunal should be
reconstituted. This is simpler than the pre-existing process,
which included an additional step involving the Tribunal as
presently constituted. If the Tribunal is to be reconstituted,
subsection (2)(b) provides that the President must reconstitute
the Tribunal and subsection (3) provides that 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.
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Clause 14 inserts a new Division 8A into Part 4 of the Principal Act which
sets out a new power for the Tribunal to make orders in relation
to fees, separate from its power to award costs. The new
section 115A defines fee to mean a fee payable in a proceeding
under this Act, the rules, the regulations or an enabling
enactment. That section also defines party so that it does not
include a person who is a party only because the person has
intervened or is entitled to intervene in a proceeding, or is a party
because of section 83 of the Planning and Environment Act
1987.
The new section 115B provides that the Tribunal may make an
order--
· in accordance with subsection (1)(a), 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;
· in accordance with subsection (1)(b), as to which party
must pay the whole or any part of a fee in future in the
proceeding;
· in accordance with subsection (1)(c), 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;
· in accordance with subsection (1)(d), 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.
Subsection 2 provides that subsection (1)(b) will not apply if the
Act, the rules, the regulations or an enabling enactment requires
the fee to be paid by a particular party.
Subsection (3) provides a list of factors that the Tribunal must
consider when making an order under this section, other than in a
proceeding to which section 115C applies.
Subsection (4) provides that, 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.
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The new section 115C establishes a presumption that a party
who has substantially succeeded in certain proceedings against
another party should be reimbursed by that party for any fees
paid in the proceeding, unless the Tribunal orders otherwise
having regard to the matters specified in subsection (3)(a)
and (b). A successful party is defined in subsection (4).
Sub-clause (1) provides that section 115C applies only in
proceedings relating to small claims as defined in clause 4C of
Schedule 1 to the Principal Act, as well as proceedings under the
Domestic Building Contracts Act 1995, Owners Corporations
Act 2006 (except proceedings under section 191), Residential
Tenancies Act 1997 (except proceedings in which the Director
of Housing is party) and proceedings of a kind prescribed by
regulations for the purpose of this section.
Subsection (2) enacts the presumption. This subsection also
permits the Tribunal to make reimbursements in multi-party
proceedings (see section 37(c) of the Interpretation of
Legislation Act 1984).
In relation to proceedings that do not fall within the presumption,
it is intended that section 115B will apply.
Section 115D provides that nothing in Division 8A affects any
power of the Tribunal under the Principal Act or an enabling
enactment to make an order for costs. This provision makes it
clear beyond doubt that Division 8A is not constrained by, and is
separate from, powers in relation to costs.
Clause 15 amends section 122(1)(c) of the Principal Act to enable the
principal registrar, in addition to a judicial member, to certify that
a non-monetary order is appropriate for filing in the Supreme
Court.
Clause 16 repeals section 123(6) of the Principal Act as that provision is
superseded by the new section 125A (see clause 17).
Clause 17 inserts a new section 125A in the Principal Act, which provides
that the Tribunal may assess any costs or damages that are the
subject of an undertaking given to the Tribunal under the
Principal Act or an enabling enactment.
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Clause 18 amends section 143(8)(b) of the Principal Act to ensure that the
statutory immunity in section 143(8) adequately reflects the
potential expansion of powers exercised by the principal registrar
pursuant to rules made under new section 157A.
Clause 19 inserts new sections 157A and 157B in the Principal Act.
The new section 157A(1) provides that the Tribunal may make
rules that provide for certain functions of the Tribunal to be
performed by the Tribunal constituted by the principal registrar.
This provision, in conjunction with clauses 5 and 10, enables the
principal registrar and registrars to perform certain functions that
in the past could only be performed by members.
Subsection (2) provides that 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 consent of all parties to the
proceeding.
To avoid doubt, subsection (3) provides that a reference in
subsection (2) to orders finally disposing of a proceeding does
not include any orders striking out a proceeding where a party
has a right to have, or apply to have, the proceeding or part of it
reinstated. This is to clarify that section 157A is intended to
enable the rules to allow the principal registrar to make orders
that are non-binding final dispositions. Orders of this nature do
not amount to a dismissal of a proceeding and are not intended to
be excluded, on this basis alone, from the rule-making power.
Subsection (4) requires that, when making rules under
section 157A, 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.
Subsection (5) provides that the rules referred in subsection (1)
must specify whether the principal registrar may delegate the
function under section 32A and may specify the person or class
of person to whom the function may be delegated under that
section.
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Section 157B provides that the Tribunal constituted by any
member may review a decision made by the Tribunal constituted
by the principal registrar. The review is to be conducted as a
hearing de novo, and may be at the request of a party or on the
Tribunal's own initiative.
In circumstances where the principal registrar delegates functions
pursuant to the new section 32A to a member of staff, the review
power under section 157B applies (see section 42A(1)(c) of the
Interpretation of Legislation Act 1984).
Clause 20 inserts a new section 167 in the Principal Act to provide for
transitional arrangements for the amendments made by the Bill.
Section 167 provides that each amendment made to the Principal
Act by this Bill applies from the date of commencement of the
amendment, including in relation to proceedings commenced in
the Tribunal before the coming into operation of the amendment.
Clause 21 amends provisions of the Principal Act in relation to Tribunal
appointed experts by substituting two clauses in Schedule 1 as a
result of the new regime for expert witnesses set out in clause 22,
without altering the operation of the provisions.
Clause 22 inserts a new Schedule 3 in the Principal Act, which governs
expert witnesses and expert evidence. These provisions are
modelled on the approach in the Civil Procedure Act 2010,
modified to reflect the different nature of Tribunal proceedings
and processes.
Clause 1 of Schedule 3 provides that the main objects of
Schedule 3 are to enhance the case management powers of the
Tribunal in relation to expert evidence in proceedings, to restrict
expert evidence to that evidence which is reasonably required to
resolve a proceeding and to emphasise the paramount duty of an
expert witness to the Tribunal.
Clause 2 of Schedule 3 provides that the Tribunal may give any
directions under section 80 that it considers appropriate in
relation to expert evidence in a proceeding. This makes it clear
that the Tribunal has the power to give appropriate directions and
impose reasonable limits in actively managing and controlling
expert evidence. Clause 2 includes a note at the foot of subclause
(2) to clarify that the Tribunal, in accordance with section 102(2)
of the Principal Act, may refuse to allow a party to call evidence
in certain circumstances, which includes expert evidence (see
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clause 8(1)(a)). Section 65O of the Civil Procedure Act 2010
sets out a requirement for leave for adducing additional expert
evidence. While that provision has not been replicated in this
Schedule, it is intended that the Tribunal should consider
restricting further evidence being admitted.
Subclause (2) sets out some of the different directions that the
Tribunal may give, including limiting expert evidence to
specified issues, limiting the number of expert witnesses who
may be called to give evidence on a specified issue, and
providing for the appointment of a single joint expert or a
Tribunal appointed expert.
Clause 3 of Schedule 3 sets out a specific discretionary power
for the Tribunal to direct two or more expert witnesses in a
proceeding to hold a conference, to prepare a joint report, or to
do both. This enables the real issues in dispute between experts
to be indentified and narrowed from an early stage of a
proceeding.
Subclause (2) provides that the Tribunal may direct who can and
cannot attend an expert conference, including the parties, legal
practitioners and independent facilitators.
Subclause (3) sets out some of the matters that the Tribunal may
include in a direction for two or more expert witnesses to prepare
a joint report, including matters agreed and not agreed, with
reasons for the agreement or disagreement.
Subclause (4) provides that a direction given by the Tribunal
under this clause may be general or in relation to specified issues.
Clause 4 of Schedule 3 governs the use of conference of experts
and joint experts reports in proceedings. Subclause (1) preserves
the confidentiality of an expert conference by prohibiting persons
from referring to the content of the conference at any relevant
hearing, except in so far as it is referred to in a joint report.
Subclause (2) sets out the use that can be made of a joint report in
a hearing.
Clause 5 of Schedule 3 provides that the Tribunal may at any
time give any direction that it considers appropriate in relation to
the giving of expert evidence. Subclause (2) sets out some of the
directions that the Tribunal may give, including that two or more
expert witnesses give evidence concurrently. Subclause (3) sets
out a specific discretionary power for the Tribunal to question an
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expert witness to identify the real issues in dispute between two
or more expert witnesses. These innovative approaches to the
management of expert evidence aim to improve the quality and
integrity of expert evidence and increase the usefulness of expert
evidence in the Tribunal.
Clause 6 of Schedule 3 sets out a specific discretionary power for
the Tribunal to order at any time in a proceeding that a single
expert be engaged jointly by two or more parties.
Subclause (3) requires the Tribunal to consider a number of
factors in determining whether to make an order for the
engagement of a single joint expert, including whether the
engagement of two or more experts would be disproportionate
to the complexity of importance of the issues in dispute and the
amount in dispute in the proceeding.
Subclauses (4) and (5) provide for the manner of selection of a
single joint expert. A person cannot be selected without his or
her consent.
Subclause (6) prohibits a party who knows that a person is being
considered for engagement as a single joint expert from
communicating with the person prior to engagement in order to
obtain an opinion on the relevant issues.
Subclause (7) sets out the use that can be made of a report
prepared by a single joint expert in the proceeding.
Clause 7 of Schedule 3 provides for a specific discretionary
power for the Tribunal to order at any time in a proceeding that
an expert be appointed to assist the Tribunal and inquire into and
report on an issue.
Subclause (3) requires the Tribunal to consider a number of
factors in determining whether to appoint a Tribunal expert.
Subclause (4) provides that a person cannot be selected to act as
a Tribunal appointed expert without his or her consent.
Subclause (5) provides for a specific discretionary power for the
Tribunal to order that the parties pay any costs of a Tribunal
appointed expert in proportions determined by the Tribunal.
This subclause re-enacts section 94(2) of the Principal Act.
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Clause 8 of Schedule 3 provides how Schedule 3 interacts with
other powers of the Tribunal. Subclause (1) provides that
nothing in this Schedule limits any other power the Tribunal may
have in relation to the things listed in subclause (a) and (b).
Clause 23 provides for the automatic repeal of this Act on 1 February 2016.
The repeal of this Act does not affect in any way the continuing
operation of the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
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