VCAT Update from Deputy President Bisucci – 19 May 2020

Eliza Minney
19 May 2020

Following a VPELA webinar this morning with Deputy President Bisucci, we provide the following updates in relation to the Tribunal’s relisting of adjourned matters and key updates moving forward:

Update on electronic hearings and when face-to-face hearings will recommence

• If face to face hearings resume, social distancing will become part of that process. At present, it is impossible for some of the rooms at the Tribunal to be used due to size so for the foreseeable future, hearings will be run via telephone or online platform;
• The Tribunal have had to digitize files, create electronic files, provide appropriate hardware to Members and are continuing to upgrade their facilities to respond to this “new normal”;
• Tribunal members working on “digitizing” the VCAT process/systems with external consultants which will significantly change how they operate at the Tribunal;
• There will be more communication released shortly from the Tribunal in relation to the “ultimate” digital platform to be implemented, however for upcoming matters it is likely the Tribunal will be conducting hearings via “Zoom”;
• There is no capacity for hearings being listed in October/November and the Tribunal is not considering requests to move hearing dates based on advocates availability. It was acknowledged that you can seek an adjournment to the hearing on the basis that the advocate you have briefed is not available, but you must be prepared that you will not receive a hearing until 2021;
• To date the Tribunal has processed around ¾ of matters listed for an administrative mention and only 12% of matters have taken up the option to have matters heard on the papers;
• New matters being listed within the Major Cases List are still receiving hearing dates within 28 weeks of lodgment.

How matters are being managed

• The Tribunal has broken files into three categories
  • The first category is “COVID displaced applications”, being matters which were listed for hearing between 17 March and 15 May. In relation to these matters:
    • All matters falling within this “first category” have been offered the opportunity to have the matter dealt with on the papers, with consent of all parties;
    • For those matters which were unable to obtain the consent of all parties to a hearing on the papers, the hearings will be relisted for hearing in August or September, with priority given to Major Cases List;
    • Hearing dates in June/July for these matters were unable to be accommodated given that there are existing hearings listed during this time and given that many of these did not have compulsory conferences, most are proceeding;
    • All of these hearings will be listed via telephone or an online forum – no physical hearings will be occurring in the immediate future;
    • If parties wish to convert their hearing to a compulsory conference, they can do so with the consent of all parties (or if don’t have consent – will need to request a Practice Day hearing) however a relisted hearing would not be able to be accommodated until 2021;
  • The second category of matters are those which were listed for hearing between 18 May 2020 and 29 May 2020. In relation to these matters:
    • There are some matters proceeding to compulsory conference/hearing via telephone – the criteria for this is that there is up to four parties only and all have to be professionally represented;
    • These matters are being relisted for hearing later this year (once the first category matters have been re-listed) and will also proceed via telephone or online hearing facilities;
    • Of these matters, 19 compulsory conferences have proceeded over the last two weeks.
  • The third category are matters listed between 1 June and 28 August 2020. In relation to these matters:
    • All will be confirmed for their current hearing/compulsory fixtures via orders being released over the coming days which will detail procedural steps for electronic hearings;
    • The criteria for compulsory conferences is that they must involve only three parties (all professionally represented) and will be conducted via telephone/online platform;
    • All other hearings will proceed via an online platform unless there is agreement by the parties that a face to face hearing must occur (noting that a face to face hearing unlikely to be accommodated until 2021);
    • Electronic hearings will require pre-filing of submissions and in some instances the preparation of electronic Tribunal books.

Short Cases List

• In relation to the “revamped” Short Cases List, matters eligible for this list will be allocated a three hour hearing (2 hours for parties to present its submission and 1 hour for the Tribunal to consider the matter and make a decision on the spot). These matters will be conducted via telephone or via an online platform and the process for “applying” to this List is including a request in any covering letter filing an application with the Tribunal. Even if you don’t request the matter be included in this list, the Tribunal’s listing team may consider it eligible for this list and a hearing will be listed within 12 weeks of lodgment.

Practice Day hearings

• Practice Day hearings are no longer an automatic feature of the Major Cases List. Friday’s will now be “unlocked” for Practice Day matters with a specific issue, final hearings for enforcement orders or preliminary hearings. Examples of requests likely to be considered appropriate for a Practice Day hearing include the extent of notice of an application;
• A key message from the Tribunal is it is now up to the parties to ensure compliance with the procedural requirements pursuant to the Initiating Order. If a procedural requirement has not been complied with and this is picked up at the compulsory conference stage, your matter could be adjourned and there on flow on effects for this (i.e. hearing listed 5 – 6 months later given current listing constraints).

Amendments to the Victorian Civil and Administrative Tribunal Act 1998 and Planning and Environment Act 1987

• The Tribunal has requested a number of changes to the Planning and Environment Act 1987 (Vic) (P & E Act) and Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) to streamline VCAT processes. The amendments are considered uncontroversial so as not to step into policy realm and include the following:
  • Amendment to section 84AB of the P & E Act to remove reference to consent of parties to confinement of issues in dispute. This would allow the Tribunal to confine issues in dispute at its own discretion;
  • Amendment to section 97 and 98 of the VCAT Act so as to allow the Tribunal to conduct hearing in expeditious manner and allow the Tribunal to regulate cross-examination;
  • Amendment to section 75 of the VCAT Act to clearly state and allow the Tribunal to deal with applications which are weak on their face;
  • Amendment to section 117 of the VCAT Act to allow for shorter reasons, so the Tribunal can provide quicker decisions, more brief in their content.

General

• Parties are encouraged to continue to file hard copies of amended plans in matters as Tribunal is having difficulty with electronic versions that have been submitted, particularly if they have been scanned in.

We welcome the changes/strategies being implemented by the Tribunal and if you have any questions as to how your matter has been affected or how to best handle the process moving forward, please do not hesitate to contact any of our Planning Law Team.