The Victorian Civil and Administrative Tribunal Amendment Bill 2014 contains substantial reforms relevant to the planning jurisdiction.
Most significantly, the reforms would enable the Tribunal to:
- invite a responsible authority to reconsider its decision at any time in a review proceeding
- more actively manage the use and giving of expert evidence in proceedings
- make an order in relation to fees (including application and hearing fees), separate from its power to award costs
- make an order removing a person as a party to a proceeding if it considers that:
a. the person's interests are not affected by the proceeding; or
b. the person is not a proper or necessary party to the proceeding
- delegate certain functions of the Tribunal (such as making procedural orders or consent orders) to its registrars.
No doubt the latter reform will facilitate some efficiencies that will be warmly welcomed by all in the jurisdiction. However, the first two reforms are likely to be of most significance to councils. Here is a snapshot of those two proposed reforms.
New section 51A - Tribunal may invite decision-maker to reconsider decision
This new provision is relevant in review proceedings only. In the context of the planning jurisdiction, it would enable the Tribunal to invite a responsible authority to reconsider its decision at any time in the proceeding. The provision provides that on receiving the invitation to reconsider, the responsible authority may:
- affirm the decision
- vary the decision
- set aside the decision and substitute a new decision for it.
The provision does not appear to give the responsible authority the option of declining the invitation.
If the responsible authority varies its decision or sets it aside and substitutes a new decision for it, it is taken to be a proceeding for review of the decision as varied or the new decision.
The new provision requires the Tribunal to ensure that, as far as possible, a proceeding's priority is not affected by inviting the responsible authority to reconsider its decision, unless the parties consent. We suspect that, as a consequence of this, the Tribunal will specify a timeframe within which a responsible authority may reconsider its decision.
The provision specifically precludes the Tribunal from making a costs order against the applicant in the proceeding under s74(2)(b), only because the applicant withdraws an application after the responsible authority reconsiders its decision.
Interestingly, the provision does not appear to give a responsible authority any specific protection against a costs order made by the Tribunal under s109(2) in a proceeding where, after reconsidering its decision, the responsible authority affirms its decision and the Tribunal subsequently sets it aside.
New Schedule 3 – Expert witnesses and expert evidence
The objectives of Schedule 3 are to:
- enhance the case management powers of the Tribunal relating to expert evidence in proceedings
- restrict expert evidence to that evidence which is reasonably required to resolve a proceeding
- emphasise the paramount duty of an expert witness to the Tribunal.
The Schedule gives the Tribunal a broad discretion to give any direction under s80 that it considers appropriate in relation to expert evidence. It lists 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
- providing for the appointment of single joint experts (selected by agreement between the parties or, if they can’t agree, by the Tribunal) or Tribunal appointed experts
- requiring that two or more experts hold a conference (with or without the attendance of the parties, their lawyers or an independent facilitator) or prepare a joint experts report (specifying matters agreed/not agreed between the experts and the reasons for agreement/disagreement), or do both
- requiring that experts give evidence concurrently, be examined, cross-examined or re-examined in a particular manner or sequence, be permitted to ask questions of other experts giving evidence concurrently and give his or her opinion of any opinion given by other expert witnesses.
The Schedule prohibits:
- things said or done during an experts’ conference from being referred to at a hearing (of the same proceeding), except in so far as it is referred to in a joint experts report
- a party from knowingly communicating with a prospective single joint expert prior to his or her engagement in order to obtain an opinion on the relevant issues.
The Schedule also empowers the Tribunal to order that the parties pay any costs of a Tribunal appointed expert in proportions determined by the Tribunal.
Status of the Bill
The Bill is proposed to come into operation by 1 February 2015 at the latest. The Bill was passed by the Legislative Assembly on 13 March 2014 and introduced into the Legislative Council on the same day. Debate on the Bill in the Council is due to resume on 25 March 2014.
To access a copy of the Bill, Explanatory Memorandum or Second Reading, please click here.