Victorian Civil and Administrative Tribunal (VCAT)

The Victorian Civil and Administrative Tribunal (VCAT) has the power to review administrative decisions made by Victorian government agencies in a wide range of matters. This power derives from the Victorian Civil and Administrative Tribunal Act 1998.

For a decision to be reviewable by VCAT, the legislation under which the original decision was made must specify that administrative review is available via VCAT.

Decision defined

The Act defines the making of a decision as when a person:

• makes, suspends, revokes or refuses to make a decision, order, determination or assessment;
• gives, suspends, revokes or refuses to give a certificate, direction, approval, or consent;
• issues, suspends, revokes or refuses to issue a licence, authority or other instrument;
• imposes a condition or restriction;
• amends or varies any of the above;
• makes a declaration, demand, direction or requirement;
• retains or refuses to deliver up an article;
• does or refuses to do any other act or thing.

If a person’s interests are deemed to be affected by a decision, they can apply to VCAT for a review of the decision. The interests can be of any kind and are not limited to property, economic or financial interests.

VCAT objectives

The Act states VCAT is bound by the rules of natural justice and must act fairly. A review must involve a fresh hearing on the merits, and VCAT is not bound by the rules of evidence, or court practices or procedures. This means, for example, the tribunal can consider new material, whether or not it existed at the time the decision was made.

VCAT must conduct each review with as little formality and technicality, and as much speed, as practicable.

VCAT functions

VCAT makes and reviews decisions about issues including:

• co-owned land and goods;
• guardianship and administration;
• building and construction;
• commercial leases;
• mental health treatment and care;
• voluntary assisted dying;
• equal opportunity;
• environment and resources;
• traditional owners and Aboriginal heritage;
• privacy;
• legal practice.

Applications for review

VCAT can make a preliminary assessment of an application and take action accordingly.

It can reject an application for review if it is made by a person not entitle to make it, outside of a time limit, or does not comply with the Act or enabling Act.

VCAT can dismiss (close indefinitely) or strike out (close with a right of reinstatement) an application if it considers the application:

• is frivolous, vexatious, misconceived, or lacking in substance; or
• is otherwise an abuse of process;
• involves any party failing to take specified actions.

It can also take those steps if it considers a party is acting in a way that unnecessarily disadvantages another party to the proceedings. Such actions include not complying with a tribunal order without reasonable excuse, causing an adjournment, or trying to deceive the other party or VCAT.

It has a right to transfer the matter to a more appropriate forum, to another tribunal, a court or any other person.

It can consolidate 2 or more proceedings that have the same related facts and circumstances, or rule that those proceedings remain separate but be heard and decided together.

VCAT has the power to require parties to an application to attend a compulsory  conference, held in private, to clarify the issues in the proceeding and promote a resolution. Anything said or done in the course of a compulsory conference is generally not admissible in any VCAT hearing.

It can refer the matter to a specified mediator for mediation, with or without the consent of the parties. The mediator must notify the tribunal whether the mediation has been successful or not. Anything said or done in the course of mediation is generally not admissible in any VCAT hearing.

VCAT can refer any question to a special referee to decide the question or provide an expert opinion. It can  refer any question of law to the Supreme Court for decision.

Review

The decision-maker must provide to an applicant a written statement of the reasons for the decision, within 28 days. This statement must be supplied to VCAT with an application for review.

After reviewing a decision, VCAT can:

• affirm the decision;
• vary the decision;
• set aside the decision and:
  • substitute its own decision;
  • return the decision to the decision-maker for reconsideration, with directions.

VCAT must give reasons for its decision within 60 days.

Review of a VCAT decision

A party can apply for leave (permission) to appeal a VCAT decision to the Supreme Court within 28 days of the decision. The court can decide an appeal on a question of law or fact, not on merits.

After reviewing a decision, the court can:

• affirm the decision;
• vary the decision;
• set aside the decision and:
  • substitute its own decision;
  • return the decision to the tribunal for reconsideration, with directions.

Costs

VCAT fees are set by the Victorian Government and are usually lower than the cost of court proceedings. Fee relief is available for those in hardship.

Parties must pay their own costs unless the tribunal orders one party to pay the other party’s costs. Reasons for this include a party causing unreasonable delay or obstruction, contravening a tribunal order, or trying to deceive the other party or VCAT.

Offences

A prison term of up to 3 months and/or a fine of up to 50 penalty units ($8261) applies to a person who does not comply with an VCAT order.

A prison term of up to 6 months and/or a fine of up to 60 penalty units ($9913.20)  applies to a person:

• who does not comply with a summons to attend the tribunal or produce a document or other material;
• who refuses to be sworn in or make an affirmation, or to answer a question, before the tribunal;
• knowingly gives false or misleading information to the tribunal;

A person can be guilty of contempt of VCAT if they:

• insult, obstruct or hinder a tribunal member or person attending a hearing;
• misbehave at or interrupt a hearing;
• obstruct or hinder a person from complying with a tribunal order or summons.

VCAT can impose a prison term of up to 5 years or a fine of up to 1000 penalty units ($165,220).

For advice or representation in any legal matter, please contact Armstrong Legal.