Monday 14 April 2014

Planning enters the fast lane at VCAT

The new Victorian Civil & Administrative Tribunal Amendment Act 2014 (the Amendment Act) will come into operation on or before 1 February 2015.  The purpose of the Amendment Act is to enhance the Tribunal's powers and efficiency, and both formalise existing practices and expand the regime for management of expert evidence at VCAT.  These new measures aim to ensure the Tribunal can efficiently manage and resolve cases brought before it, particularly in its planning jurisdiction.

These substantial reforms introduced in the Amendment Act will empower the Tribunal to:
1. Invite original decision-makers to reconsider a decision at any time in a proceeding (s 51A);
2. Order a person to cease to be a party to a proceeding if they are not an affected, proper, or necessary party (s 60A);
3. Order the reimbursement of VCAT fees from one party to another (s 115B). This entitlement will be presumed in certain matters where a party substantially succeeds (s 115C) and is distinct and separate from the Tribunal's power to make an order for costs (s 115D);
4. Delegate certain functions of the Tribunal to its registrars (s 157A); and
5. Actively manage expert evidence used in proceedings (Schedule 3).
This note discusses the first and last points in particular.

Council to reconsider its decision
New s 51A allows the Tribunal to invite the original decision-maker (eg, a council) to remake the decision under review during the course of a proceeding.  This may enable faster resolution of planning review proceedings.  This new provision gives a local council 'the opportunity to consider a proposed resolution to the dispute' rather than requiring a local council to find or make specific delegations or authorisations to give effect to a settlement.

Expert Evidence Directions
The Amendment Act also elaborates on existing powers and formalises current Tribunal practice in relation to expert witnesses and expert evidence.

The Tribunal accomplishes this by including in the Amendment Act the power to:
1. Call for the preparation of an expert report;
2. Limit expert evidence to specified issues;
3. Limit the number of expert witnesses called;
4. Provide for the appointment of a single joint expert or Tribunal appointed expert; and
5. Give any other direction that may assist expert witness functions in a proceeding.
Expert Witness Conferences & Joint Expert Reports

The Amendment Act formalises VCAT practice in relation to expert conferences and the preparation of joint expert reports.  The Amendment Act formalises the Tribunal's practice of ordering experts to enter a 'hot-tub'.  This is aimed at identifying areas of agreement between multiple experts and, therefore, narrow the issues in dispute.

A conference of experts can be held without the presence of the parties to a proceeding, the practitioners, or an independent facilitator.  Joint expert conferences may also lead to a joint expert report setting out areas of agreement and disagreement between experts.

Anything said or done during a conference of experts is confidential.  What occurs during the conference must not be referred to during a related hearing or proceeding without the agreement of the parties or by order of the Tribunal.

Single Joint Experts
The Amendment Act preserves VCAT's power to appoint an expert to assist VCAT in the proceeding or, alternatively, order an expert to be engaged jointly by the parties.

In making such a decision, the Tribunal must consider:

the proceeding's complexity;
the amount in dispute;
whether the issue falls in a substantially established area of knowledge;
the necessity of a range of opinions;
the likelihood of expediting or delaying the proceedings; and
any other relevant considerations.

Formalising Expert Evidence Provisions? 
The Amendment Act suggests a move towards formalising the approach to expert evidence at VCAT and a departure from a previously more informal process.  This is reiterated by the adoption of a definition of expert witness and a regime consistent with the Civil Procedure Act 2010, which does not currently apply to VCAT.

That said, the VCAT Practice Note PNVCAT2 - Expert Evidence remains unchanged and we understand that there are no plans to update it at this time.  It is worth also noting that the Practice Note adopts a definition of 'expert witness' which is more detailed than the definition in the Amendment Act.

Take home points 
1. The Tribunal will have new powers to improve the efficiency of managing cases brought before it.
2. In particular, in review proceedings, the Tribunal will be able to invite original decisions makers to
directly reassess their decision at any time during a proceeding.
3. The Tribunal's power to invite decision makers directly to reassess decisions will be particularly relevant to the planning jurisdiction.  Importantly, it may provide more options for developers and those engaged in major planning matters to seek faster resolution of their disputes.
4. The expert evidence provisions, for the most part, formalise current VCAT practices.
5. Although the extent to which the reforms will improve Tribunal functioning has yet to be seen, it is anticipated that these provisions as a whole will generally save time and money if factored into your case
preparation and instructions to experts.
6. Get in contact with the VGSO to assist and prepare you for these new reforms!

For advice on this topic please contact:

Eliza Bergin
Principal Solicitor
t 03 8684 0267

Juliette Halliday
Principal Solicitor
t 9032 3034

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