Unit 4Area of Study 1

Booklet 1.2 Answers

What is the Victorian Civil and Administrative Tribunal (VCAT)

• The Victorian Civil and Administrative Tribunal is a ONE STOP SHOP dealing with a range of civil disputes. It is made up of three divisions: Civil Division, Human Rights Division and Administrative Division. It provides a cheaper, quicker and less formal method of resolving disputes than the adversarial court system.

What types of disputes does VCAT hear?

• Disputes relating to consumer matters• Disputes relating to discrimination• Disputes relating to guardianship• Disputes between people and government

agencies about land valuation.

What are some of the strengths of VCAT?

• VCAT is an avenue of dispute resolution that is easily ACCESSIBLE to people in the community and it uses informal processes that are easily understood by the general public. VCAT is also staffed by expert bodies that have specific knowledge of a particular area of law eg: Anti-Discrimination law.

Example of a division of VCAT and a list in that division

• Administrative Division: Planning and Environment List (deals with appeals and applications about the use and development of land).

• Civil Division: Civil Claims List (deals with disputes between buyers and sellers of goods and services).

• Human Rights Division: Anti-Discrimination List (deals with complaints about discrimination).

The four main roles of VCAT

VCAT is low cost

VCAT offers timely resolution of disputes

VCAT hearings are accessible and informal

VCAT is staffed by expert bodies

Jurisdictions of VCAT

• VCAT’s power comes from many Acts. Specifically, it comes from the Victorian Civil and Administrative Tribunal Act 1998 (Vic.) and other acts such as the Equal Opportunity Act 2010 (Vic.)

Original and review jurisdictions of VCAT

• VCAT reviews decisions of other decision makers such as decisions made by the Victims of Crime Assistance Tribunal (VOCAT). When VCAT reviews a decision it can: affirm the decision, vary the decision, set aside the decision and make another decision. It is legally binding.

Appeals from a decision made by VCAT

• Appeals from a decision made by the tribunal can only be made on a point of law. If the tribunal was presided over by President or Vice President it will be heard in the Supreme Court of Appeal. All other appeals are heard in the Supreme Court (Trial Division).

How one of the lists operates – the Anti-Discrimination List

• The Anti-Discrimination List in the Human Rights division of VCAT deals with matters relation to discrimination.

• The Equal Opportunity Act 2010 (Vic.) states that it is unlawful to discriminate on a number of grounds or attributes such as age, gender, marital status.

• If a person has been unlawfully discriminated against, they can take their complaint to the Victorian Equal Opportunity and Human Rights Commission, which will try to help the parties reach a resolution through conciliation.

• If the person is unhappy with the result in the Victorian Equal Opportunity and Human Rights Commission, they can take their complaint to VCAT and have it heard in the Anti-Discrimination List.

• VCAT also hears applications for exemptions allowed under the Equal Opportunity Act 2010 (Vic) such as single sex schools. Exemptions from the act are made directly to VCAT, not to the VEOHRC.

How does the Anti-Discrimination List settle disputes?

• The Anti-Discrimination List will attempt mediation or order a compulsory conference. If a dispute is not successfully resolved at mediation it will be sent to a hearing before a VCAT member.

Order of the Anti-Discrimination List

• The tribunal can: • Issue an order requiring the person found to be discriminating against the

complainant to stop discriminating against the complainant• Order the person to pay the complainant an amount that the tribunal

thinks fit to compensate the complainant for loss, damage or injury suffered as a consequence of the discrimination

• Order the person to perform specified acts to compensate for any loss, damage or injury suffered by the complainant.

• Find the complaint or any part of it proven and refuse to take further action on the matter

• Appeals against VCAT can only be made on a point of law. • The case that you need to use to explain the operation of the Anti-

Discrimination List is Stern v. Depilation & Skincare Pty Ltd VCAT 2725 (2009).

Dispute Resolution Methods

• What is Alternative Dispute Resolution?Alternative Dispute Resolution (sometimes

referred to as Appropriate Dispute Resolution) is a less formal method of dispute resolution such as mediation, conciliation, arbitration where a civil dispute is reconciled between the parties with the help of an independent third party.

Mediation

• What is mediation? It is a method of dispute resolution for civil disputes using

one or two third parties (mediators) to help the disputing parties reach a resolution. The mediators do not make the suggestions, they help the parties to negotiate between themselves. The decision is not legally binding.

• What is the role of the mediator in mediation?The mediator does not interfere but allows the parties to

discuss the issue, explore options and attempt to resolve it by reaching an agreement that satisfies both parties.

Processes used in mediation

• The parties use a neutral way to discuss difficult issues privately with a third person who will listen and help each party to understand the other person’s point of view. It addresses the underlying reasons for the behaviours.

Types of disputes not suitable for mediation

• Disputes where there is no continuing relationship between parties.

• Disputes in which there are overwhelming emotions that can interfere with the negotiating process.

• Disputes that have a history of broken promises.

How does the court use mediation?

• Magistrates’ Court, Supreme Court and County County courts all refer CIVIL cases to mediation to speed up resolution and reduce the backlog of cases. Courts may order a proceeding to mediation and the cost is shared between the parties.

Eg: The Judge-led Mediation Program (established in the Supreme Court and County Court in 2010).

Does VCAT recommend mediation?

• Yes, VCAT can recommend mediation. The preferred methods of ADR used by VCAT are mediation and compulsory conferences. Mediation is relied upon extensively in the Anti-Discrimination List, Domestic Building List and other lists. If parties agree to a settlement in mediation, the mediator will notify VCAT. If a settlement is not reached, the dispute will be taken to a hearing.

Conciliation

• What is conciliation?A process of dispute resolution for CIVIL

disputes involving an independent third party to help disputing parties reach a solution to their dispute. The third party MAKES SUGGESTIONS but the parties reach decisions by themselves. The decision is not legally binding.

How does conciliation differ from mediation?

• Conciliation differs from mediation in that the conciliator exercises a greater influence over the outcome in that they are able to make suggestions to the parties. In mediation, the mediator is not able to make suggestions to the parties so plays a less intrusive role in the process.

Processes used in conciliation

• Two parties who are having a civil dispute get representatives to represent them. A conciliator sits with them and offers suggestions to their dispute. Resolution is made voluntarily. The decision is not legally binding.

Does VCAT recommend conciliation?

• VCAT can order the parties to a dispute to take part in a compulsory conference to identify and clarify the nature of the issues in the dispute. This is done using a conciliation process.

Arbitration

• What is arbitration?A method of dispute resolution for civil disputes

where a third party (arbitrator) is appointed to listen to both sides of the dispute and makes a decision that is binding on both of the parties.

How does arbitration differ from mediation and conciliation?

• Arbitration is more formal than conciliation or mediation but is not as formal as a court hearing. An arbitrator has the power to make a binding decision on both parties whereas the mediator listens to the dispute and conciliator only listens to the dispute and makes suggestions to the parties. Arbitration is legally binding, whereas mediation and conciliation are not legally binding.

Processes used in arbitration

• An arbitrator listens to the arguing parties plea and then makes a decision that is legally binding. It can be used in claims less than $10,000 in the Magistrates’ Court and in private and commercial civil disputes.

How do the courts use arbitration?

• The Magistrates’ Court uses arbitration when the claim is less than $10,000 (usually heard before a Magistrate). Arbitration is sometimes used in VCAT – the Residential Tenancies List.

Judicial determination

• What is judicial determination?Judicial determination is a dispute resolution

process whereby parties to a legal dispute present evidence and submit arguments to a judicial officer (includes a judge, Magistrate of VCAT member) who then makes a binding determination (decision) about the outcome of the case.

Are decisions made by VCAT considered judicial determination?

• Yes, because VCAT operates in a similar way to the courts, although less formal. VCAT is not subjected to the strict rules of evidence and procedure used in the courts but the outcome is still decided by a judicial officer.

Processes used by courts to reach agreement through judicial determination

• Two disputing parties are represented by lawyers. The third party (the judicial officer) listens to the evidence and makes a binding decision. The decision is then legally binding for criminal and civil cases and hearings at VCAT.

Distinguish between judicial determination and alternative methods of dispute resolution

• Judicial determination involves (def…….) It uses formal processes of the court: rules of evidence and procedures and the outcome is legally binding. It can be used for both criminal and civil disputes and in VCAT hearings whereas mediation and conciliation are not legally binding and do not involve strict rules of evidence and procedure.

Notes

• Often Alternative Dispute Resolution is called Appropriate Dispute Resolution. This is because the courts see ADR as being equal to the processes of the traditional adversarial court and therefore ADR sits ‘inside’ the courts system, not as a separate alternative.