Activity 5n

1. The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the ability of the Victorian Civil and Administrative Tribunal to achieve the principles of justice requires students to write about relevant strengths and weaknesses of costs considerations. Responses will vary according to the arguments selected.

   Arguments in support of the Victorian Civil and Administrative Tribunal (VCAT) achieving the principles of justice include:

• VCAT members who have specialised legal or professional knowledge appropriate to their list provide reliable, impartial determinations of legal disputes – many of them work every day in the area of the dispute they are hearing, so can bring practical experience to their understanding of the facts, thereby helping to achieve a fair outcome.
• The president and vice-presidents of VCAT are working judges, and appeals can be made regarding legal errors to the court system – this gives VCAT the benefit and fairness of professional and independent judges, while also allowing it the flexibility of using layperson sessional members who are on a more equal footing with the parties.
• VCAT decisions and orders are binding, providing certain outcomes for the parties – this achieves equality, because a wealthier party cannot ignore an unfavourable outcome without consequence; it also achieves fairness, because parties should be able to move on with their lives, knowing that the matter has been closed.
• VCAT processes are designed to provide timely outcomes – this enables access for both the parties involved in the dispute as well as the parties of disputes waiting to be heard. For example, VCAT members give determinations orally, usually on the day of the hearing. Parties may request written reasons for a determination to be provided later, which provides a check to ensure that the determination by the VCAT member was fair and impartial.
• Informal hearing rooms, where parties meet to present their cases to the tribunal member, ensure that litigants are treated equally by the process because a less-experienced party is less likely to be intimidated and unable to present their side of the dispute.
• Open hearings ensure that VCAT determinations are transparent, contributing to the fairness of its procedures and providing public scrutiny of whether it is providing equality between parties.
• Unlike the CAV, VCAT provides a forum for both consumers and traders to resolve disputes about the provision of goods and services – this provides both parties with equal access to speed and cost-effective methods of dispute resolution.
• The hearings are a less formal environment than court hearing, based on the rules laid out in the VCAT Act that VCAT must abide by the principle of natural justice but not the rules of evidence and procedure – this better enables parties to argue their own cases and reduces inequality between parties with different levels of experience because they can both use the same procedures (it also reduces inequality of opportunity between parties of different wealth because neither is advantaged by being able to afford counsel).
• VCAT fees are tiered according to the financial bracket of the applicant, and fees are kept lower than court fees – this enables access for low-income applicants, and achieves substantive equality by asking corporate applicants to contribute more to the funding of VCAT based on their higher use of the service and their higher annual income.
• Charging daily hearing fees only for longer or complex disputes provides incentives to resolve matters quickly, enabling access for parties without financial support and for parties to other disputes waiting for a hearing date.

        Arguments against VCAT achieving the principles of justice include::

• The vast majority of VCAT members are non-judicial, not independent of government, and may have a practical conflict of interest because they work for profit in the area in which they are hearing disputes on a sessional basis – they may not achieve fairness because they may not be legally knowledgeable or fully impartial.
• The right of appeal from VCAT decisions is limited, because appeals on issues of facts, such as whether the VCAT member arrived at a decision supported by the facts in the case, are not permitted – this check on fairness is denied.
• Appeals from VCAT decisions on questions of law are expensive and time-consuming, as they proceed to the Supreme Court Trial Division and Court of Appeal – these costs reduce access for parties who feel they have been treated unfairly.
• VCAT limits the use of legal representation, which creates a risk that parties do not receive a fair hearing because their case has not been advocated effectively – one party may also still be advised by a solicitor outside VCAT.
• VCAT encourages negotiation, but there is a risk that negotiations may not be conducted equally – a stronger party may attempt to intimidate their opponent into accepting an unsatisfactory outcome.
• The lack of formality in proceedings may leave parties feeling dissatisfied with the result, and concerned their legal claim was not adequately or fairly considered, or determined with consistency across cases – VCAT is criticised, particularly by people working in the legal field, for being the ‘Wild West’ of dispute resolution, as individual members can be unpredictable in their procedures and understanding of the law.
• If a party faces a lengthy hearing, accumulating daily hearing fees may deter them from bringing a claim, or from pursuing it fully – respondents may also be pressured into accepting a settlement in order to avoid the daily hearing fees of a longer resolution (these factors reduce practical access to justice).

2. The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence when referring to the arguments for and against VCAT, that it does achieve one principle of justice. Responses will vary according to the arguments selected.