Victorian Civil and Administrative Tribunal Amendment Act 2014

Authorised by the Chief Parliamentary Counsel Authorised Version i Victorian Civil and Administrative Tribunal Amendment Act 2014 No. 23 of 2014 TABLE OF PROVISIONS Section Page 1 Purpose 1 2 Commencement 2 3 Principal Act 2 4 Definition of expert witness inserted 2 5 Establishment of Tribunal 2 6 Membership 3 7 New section 32A inserted 3 32A Delegation by principal registrar 3 8 New section 51A inserted 4 51A Tribunal may invite decision-maker to reconsider decision 4 9 New section 60A inserted 5 60A Removal of parties 5 10 Constitution of Tribunal in proceedings 5 11 Mediation and settlement of proceeding 5 12 New section 94 substituted 6 94 Expert witnesses and expert evidence 6 13 New section 108 substituted 6 108 Reconstitution of Tribunal 6 14 New Division 8A inserted in Part 4 7 Division 8A—Reimbursement of fees 7 115A Definitions 7 115B Orders as to reimbursement or payment of fees 7 115C Presumption of order for reimbursement of fees in certain proceedings 9 115D Division does not affect Tribunal's powers as to costs 10 15 Enforcement of non-monetary orders 10 16 Injunctions 10 17 New section 125A inserted 11 125A Assessment of costs or damages in undertakings 11 18 Immunity of participants 11 -- 1 of 23 -- Section Page ii Authorised by the Chief Parliamentary Counsel 19 New sections 157A and 157B inserted 11 157A Rules may provide for certain functions of the Tribunal to be performed by principal registrar 11 157B Review of decision of the Tribunal constituted by principal registrar 12 20 New section 167 inserted 12 167 Transitional provision—Victorian Civil and Administrative Tribunal Amendment Act 2014 12 21 Variations for various proceedings 13 11AF Costs of Tribunal appointed experts 13 66E Costs of Tribunal appointed experts 13 22 New Schedule 3 inserted 13 SCHEDULE 3—Expert witnesses and expert evidence 13 1 Objects of this Schedule 13 2 Directions in relation to expert evidence 14 3 Directions to expert witnesses—conferences and joint experts reports 15 4 Use of conference of experts and joint experts reports in proceeding 16 5 Directions about giving of evidence, including concurrent evidence, by expert witnesses 16 6 Single joint experts 17 7 Tribunal appointed experts 18 8 Interaction with other powers of Tribunal 20 23 Repeal of amending Act 20 ═══════════════ ENDNOTES 21 -- 2 of 23 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Victorian Civil and Administrative Tribunal Amendment Act 2014 † No. 23 of 2014 [Assented to 1 April 2014] The Parliament of Victoria enacts: 1 Purpose The main purpose of this Act is to amend the Victorian Civil and Administrative Tribunal Act 1998 to— (a) enhance the powers and efficiency of the Tribunal; and (b) enact a new regime for expert witnesses and expert evidence. Victoria -- 3 of 23 -- Victorian Civil and Administrative Tribunal Amendment Act 2014 No. 23 of 2014 2 Authorised by the Chief Parliamentary Counsel 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 February 2015, it comes into operation on that day. 3 Principal Act In this Act, the Victorian Civil and Administrative Tribunal Act 1998 is called the Principal Act. 4 Definition of expert witness inserted Insert the following definition in section 3 of the Principal Act— "expert witness means a person who has specialised knowledge based on the person's training, study or experience;". 5 Establishment of Tribunal After section 8(2) of the Principal Act insert— "(3) The Tribunal consists of— (a) a President; and (b) the Vice Presidents, Deputy Presidents, senior members and ordinary members; and (c) the principal registrar and registrars referred to in section 32.". s. 2 See: Act No. 53/1998. Reprint No. 9 as at 1 January 2014 and amending Act Nos 11/2010 and 67/2013. LawToday: www. legislation. vic.gov.au -- 4 of 23 -- Victorian Civil and Administrative Tribunal Amendment Act 2014 No. 23 of 2014 3 Authorised by the Chief Parliamentary Counsel 6 Membership Section 9 of the Principal Act is repealed. 7 New section 32A inserted After section 32 of the Principal Act insert— "32A Delegation by principal registrar (1) Subject to subsection (2), the principal registrar, with the prior written approval of the President, may delegate to a member of staff referred to in section 32(1)(c) any function of the principal registrar under the rules that the rules specify may be delegated under this section. (2) The principal registrar may delegate a function under the rules only to a person the principal registrar is satisfied is appropriately qualified to perform the function. Note The rules may specify the person or class of person to whom a function may be delegated—see section 157A(5)(b). (3) A delegation under this section must be in writing. (4) In this section— appropriately qualified, for a function, includes having the qualifications, experience or standing appropriate to perform the function.". s. 6 -- 5 of 23 -- Victorian Civil and Administrative Tribunal Amendment Act 2014 No. 23 of 2014 4 Authorised by the Chief Parliamentary Counsel 8 New section 51A inserted After section 51 of the Principal Act insert— "51A Tribunal may invite decision-maker to reconsider decision (1) At any time in a proceeding for review of a decision, the Tribunal may invite the decision-maker to reconsider the decision. (2) On being invited by the Tribunal to reconsider a decision, the decision-maker may— (a) affirm the decision; or (b) vary the decision; or (c) set aside the decision and substitute a new decision for it. (3) If the decision-maker varies the decision or sets it aside and substitutes a new decision and the proceeding continues, it is taken to be a proceeding for review of the decision as varied or the new decision. (4) As far as possible the Tribunal must ensure that a proceeding's priority is not affected by the making of an invitation under this section, unless the parties consent. (5) The Tribunal cannot make an order for costs under section 74(2)(b) only because an applicant withdraws a proceeding following reconsideration by the decision-maker under this section.". s. 8 -- 6 of 23 -- Victorian Civil and Administrative Tribunal Amendment Act 2014 No. 23 of 2014 5 Authorised by the Chief Parliamentary Counsel 9 New section 60A inserted After section 60 of the Principal Act insert— "60A Removal of parties (1) The Tribunal may order that a person cease to be a party to a proceeding if the Tribunal considers that— (a) the person's interests are not, or are no longer, affected by the proceeding; or (b) the person is not a proper or necessary party to the proceeding, whether or not the person was one originally. (2) An order under subsection (1) may include any other matters of a consequential or ancillary nature that the Tribunal considers appropriate. (3) The Tribunal may make an order under subsection (1) on its own initiative or on the application of a party.". 10 Constitution of Tribunal in proceedings At the foot of section 64(1) of the Principal Act insert— "Note The rules may provide for the Tribunal to be constituted by the principal registrar for performing certain functions—see section 157A. If so, a registrar may also perform those functions—see section 32(3).". 11 Mediation and settlement of proceeding (1) In section 89 of the Principal Act— (a) after "a proceeding" insert "or any part of it"; (b) after "the proceeding" insert "or part". s. 9 -- 7 of 23 -- Victorian Civil and Administrative Tribunal Amendment Act 2014 No. 23 of 2014 6 Authorised by the Chief Parliamentary Counsel (2) In sections 90, 91 and 93(1) and (3) of the Principal Act, after "proceeding" insert "or any part of it". 12 New section 94 substituted For section 94 of the Principal Act substitute— "94 Expert witnesses and expert evidence Schedule 3, which deals with expert witnesses and expert evidence, has effect.". 13 New section 108 substituted For section 108 of the Principal Act substitute— "108 Reconstitution of Tribunal (1) At any time before the conclusion of the hearing of a proceeding— (a) a party may apply to the Tribunal for the reconstitution of the Tribunal for the purposes of the proceeding; or (b) the President or a member of the Tribunal as presently constituted may give notice to the parties that the President or member seeks the reconstitution of the Tribunal for the purposes of the proceeding. (2) If an application is made under subsection (1)(a) or notice is given under subsection (1)(b)— (a) a presidential member, after allowing the parties to make submissions, may decide that the Tribunal should be reconstituted; and (b) if so, the President must reconstitute the Tribunal. s. 12 -- 8 of 23 -- Victorian Civil and Administrative Tribunal Amendment Act 2014 No. 23 of 2014 7 Authorised by the Chief Parliamentary Counsel (3) If the Tribunal is reconstituted for the purposes of a proceeding, the reconstituted Tribunal may have regard to any record of the proceeding in the Tribunal as previously constituted, including a record of any evidence taken in the proceeding.". 14 New Division 8A inserted in Part 4 After Division 8 of Part 4 of the Principal Act insert— "Division 8A—Reimbursement of fees 115A Definitions In this Division— fee means a fee payable in a proceeding under this Act, the rules, the regulations or an enabling enactment; party does not include a person who is a party only because the person— (a) has intervened or is entitled to intervene in a proceeding; or (b) is a party because of section 83 of the Planning and Environment Act 1987. 115B Orders as to reimbursement or payment of fees (1) At any time, the Tribunal may make any of the following orders— (a) an order that a party to a proceeding reimburse another party the whole or any part of any fee paid by that other party in the proceeding, within a specified time; s. 14 -- 9 of 23 -- Victorian Civil and Administrative Tribunal Amendment Act 2014 No. 23 of 2014 8 Authorised by the Chief Parliamentary Counsel (b) an order as to which party must pay the whole or any part of a fee in future in the proceeding; (c) an order that a party to a proceeding pay, on behalf of another party, the whole or any part of any fee that may be required to be paid in the future by that other party in the proceeding; (d) an order that a party to a proceeding reimburse another party the whole or any part of any fee that may be paid in the future by that other party in the proceeding, within a specified time after the fee is paid. (2) Subsection (1)(b) does not apply if this Act, the rules, the regulations or an enabling enactment requires the fee to be paid by a particular party. (3) In making an order under this section, other than in a proceeding to which section 115C applies, the Tribunal must have regard to— (a) the nature of, and issues involved in, the proceeding; and (b) the conduct of the parties (whether occurring before or during the proceeding), including whether a party has caused unreasonable delay in the proceeding or has failed to comply with an order or direction of the Tribunal without reasonable excuse; and (c) the result of the proceeding, if it has been reached. s. 14 -- 10 of 23 -- Victorian Civil and Administrative Tribunal Amendment Act 2014 No. 23 of 2014 9 Authorised by the Chief Parliamentary Counsel (4) If the Tribunal makes an order under this section before the end of a proceeding, the Tribunal may require that the order be complied with before it continues with the proceeding. 115C Presumption of order for reimbursement of fees in certain proceedings (1) This section applies to the following proceedings— (a) a proceeding relating to a small claim within the meaning of Part 2AB of Schedule 1; (b) a proceeding under the Domestic Building Contracts Act 1995; (c) a proceeding under the Owners Corporations Act 2006, other than a proceeding on an application for review under section 191 of that Act; (d) a proceeding under the Residential Tenancies Act 1997, other than a proceeding in which the Director of Housing (within the meaning of that Act) is a party; (e) a proceeding of a kind prescribed by the regulations for the purposes of this section. (2) Subject to subsection (3), a party who has substantially succeeded against another party in a proceeding to which this section applies is entitled to an order under section 115B that the other party reimburse the successful party the whole of any fees paid by the successful party in the proceeding. s. 14 -- 11 of 23 -- Victorian Civil and Administrative Tribunal Amendment Act 2014 No. 23 of 2014 10 Authorised by the Chief Parliamentary Counsel (3) Subsection (2) does not apply if the Tribunal orders otherwise, having regard to— (a) the nature of, and issues involved in, the proceeding; and (b) the conduct of the parties (whether occurring before or during the proceeding), including whether the successful party has caused unreasonable delay in the proceeding or has failed to comply with an order or direction of the Tribunal without reasonable excuse. (4) In this section— successful party, in relation to a proceeding, means a party who has substantially succeeded against another party in the proceeding. 115D Division does not affect Tribunal's powers as to costs Nothing in this Division affects any power of the Tribunal under this Act or an enabling enactment to make an order for costs.". 15 Enforcement of non-monetary orders In section 122(1)(c) of the Principal Act, after "judicial member" insert "or the principal registrar". 16 Injunctions Section 123(6) of the Principal Act is repealed. s. 15 -- 12 of 23 -- Victorian Civil and Administrative Tribunal Amendment Act 2014 No. 23 of 2014 11 Authorised by the Chief Parliamentary Counsel 17 New section 125A inserted After section 125 of the Principal Act insert— "125A Assessment of costs or damages in undertakings The Tribunal may assess any costs or damages that are the subject of an undertaking given to the Tribunal under this Act or an enabling enactment.". 18 Immunity of participants In section 143(8)(b) of the Principal Act, after "this Act" insert ", the rules". 19 New sections 157A and 157B inserted After section 157 of the Principal Act insert— "157A Rules may provide for certain functions of the Tribunal to be performed by principal registrar (1) Rules under section 157 may include rules for or with respect to the functions of the Tribunal that may be performed by the Tribunal constituted by the principal registrar. (2) Rules referred to in subsection (1) cannot provide for the Tribunal constituted by the principal registrar to make any orders finally disposing of a proceeding, other than orders made with the consent of all parties to the proceeding. (3) To avoid doubt, a reference in subsection (2) to orders finally disposing of a proceeding does not include any orders striking out a proceeding in circumstances where a party has a right to have, or to apply to have, the proceeding or part of it reinstated. s. 17 -- 13 of 23 -- Victorian Civil and Administrative Tribunal Amendment Act 2014 No. 23 of 2014 12 Authorised by the Chief Parliamentary Counsel (4) In making rules referred to in subsection (1), the Rules Committee must consider whether the function is of a kind that ought to be performed by the Tribunal constituted by one or more members rather than the principal registrar. (5) Rules referred to in subsection (1)— (a) must specify whether the principal registrar may delegate the function under section 32A; and (b) may specify the person or class of person to whom the function may be delegated under that section. 157B Review of decision of the Tribunal constituted by principal registrar (1) The Tribunal constituted by any member may review a decision made by the Tribunal constituted by the principal registrar. (2) A review may be conducted under this section at the request of a party or on the Tribunal's own initiative. (3) A review under this section is to be conducted as a hearing de novo and nothing in Division 3 of Part 3 applies to the review.". 20 New section 167 inserted After section 166 of the Principal Act insert— "167 Transitional provision—Victorian Civil and Administrative Tribunal Amendment Act 2014 Each amendment made to this Act by the Victorian Civil and Administrative Tribunal Amendment Act 2014 applies, on and after the coming into operation of the s. 20 -- 14 of 23 -- Victorian Civil and Administrative Tribunal Amendment Act 2014 No. 23 of 2014 13 Authorised by the Chief Parliamentary Counsel amendment, in relation to all proceedings in the Tribunal, whether those proceedings were commenced before or after the coming into operation of the amendment.". 21 Variations for various proceedings (1) For clause 11AF of Schedule 1 to the Principal Act substitute— "11AF Costs of Tribunal appointed experts Despite clause 7(5) of Schedule 3, a person with a disability is not responsible for the costs of a Tribunal appointed expert under clause 7 of that Schedule.". (2) For clause 66E of Schedule 1 to the Principal Act substitute— "66E Costs of Tribunal appointed experts Despite clause 7(5) of Schedule 3, a person to whom the public health order applies is not responsible for the costs of a Tribunal appointed expert under clause 7 of that Schedule.". 22 New Schedule 3 inserted After Schedule 2 to the Principal Act insert— "__________________ SCHEDULE 3 Section 94 EXPERT WITNESSES AND EXPERT EVIDENCE 1 Objects of this Schedule The main objects of this Schedule are to— (a) enhance the case management powers of the Tribunal in relation to expert evidence in proceedings; and s. 21 -- 15 of 23 -- Victorian Civil and Administrative Tribunal Amendment Act 2014 No. 23 of 2014 14 Authorised by the Chief Parliamentary Counsel (b) restrict expert evidence to that evidence which is reasonably required to resolve a proceeding; and (c) emphasise the paramount duty of an expert witness to the Tribunal. 2 Directions in relation to expert evidence (1) The Tribunal may give any directions under section 80 that it considers appropriate in relation to expert evidence in a proceeding. (2) Those directions may include, but are not limited to, the following— (a) the preparation of an expert's report; (b) the time for service of an expert's report; (c) limiting expert evidence to specified issues; (d) providing that expert evidence may not be adduced on specified issues; (e) limiting the number of expert witnesses who may be called to give evidence on a specified issue; (f) providing for the appointment of— (i) single joint experts; or (ii) Tribunal appointed experts; (g) any other direction that may assist an expert witness in the exercise of his or her functions as an expert witness in the proceeding. Note Section 102(2) empowers the Tribunal to refuse to allow a party to call evidence in certain circumstances, which includes expert evidence (see clause 8(1)(a)). s. 22 -- 16 of 23 -- Victorian Civil and Administrative Tribunal Amendment Act 2014 No. 23 of 2014 15 Authorised by the Chief Parliamentary Counsel 3 Directions to expert witnesses— conferences and joint experts reports (1) Directions under section 80 may direct expert witnesses in a proceeding— (a) to hold a conference of experts; or (b) to prepare a joint experts report; or (c) to hold a conference and prepare a joint experts report. (2) The Tribunal may direct under section 80 that a conference of experts be held with or without the attendance of all or any of the following— (a) the parties to the proceeding; (b) the legal practitioners (if any) of the parties; (c) an independent facilitator. (3) A direction to prepare a joint experts report may include, but is not limited to, the following— (a) that the joint experts report specifies— (i) the matters agreed and not agreed by the experts; and (ii) the reasons for any agreement or disagreement; (b) the issues to be dealt with in the joint experts report by the expert witnesses; (c) the facts, and assumptions of fact, on which the joint experts report is to be based. (4) Directions referred to in this clause may be general or in relation to specified issues. s. 22 -- 17 of 23 -- Victorian Civil and Administrative Tribunal Amendment Act 2014 No. 23 of 2014 16 Authorised by the Chief Parliamentary Counsel 4 Use of conference of experts and joint experts reports in proceeding (1) Unless the parties to the proceeding agree, or the Tribunal otherwise orders, anything said or done during a conference of experts, except as referred to in a joint experts report, must not be referred to at any hearing of the proceeding to which it relates. (2) A joint experts report may be tendered at the hearing of the proceeding as evidence (as appropriate) of— (a) joint or separate opinions of the experts; or (b) matters agreed by the experts; or (c) matters not agreed by the experts. 5 Directions about giving of evidence, including concurrent evidence, by expert witnesses (1) The Tribunal may give any directions under section 80 that it considers appropriate in relation to the giving of evidence by any expert witness. (2) Without limiting subsection (1), the Tribunal may direct that any expert witness— (a) give evidence at any stage of the proceeding, including after all factual evidence has been adduced on behalf of all parties; or (b) give evidence concurrently with one or more expert witnesses; or (c) give an oral exposition of his or her opinion on any issue; or (d) give his or her opinion of any opinion given by other expert witnesses; or s. 22 -- 18 of 23 -- Victorian Civil and Administrative Tribunal Amendment Act 2014 No. 23 of 2014 17 Authorised by the Chief Parliamentary Counsel (e) be examined, cross-examined or re-examined in a particular manner or sequence, including by putting to each expert witness, in turn, each issue relevant to one matter or issue at a time; or (f) be permitted to ask questions of any other expert witness who is concurrently giving evidence. (3) The Tribunal may question any expert witness to identify the real issues in dispute between 2 or more expert witnesses, including questioning more than one expert witness at the same time. 6 Single joint experts (1) The Tribunal may order that an expert be engaged jointly by 2 or more parties to a proceeding. (2) The Tribunal may make an order for the engagement of a single joint expert at any stage of the proceeding. (3) In making an order to engage a single joint expert, the Tribunal must consider— (a) whether the engagement of 2 or more expert witnesses would be disproportionate to— (i) the complexity or importance of the issues in dispute; and (ii) the amount in dispute in the proceeding; and (b) whether the issue falls within a substantially established area of knowledge; and s. 22 -- 19 of 23 -- Victorian Civil and Administrative Tribunal Amendment Act 2014 No. 23 of 2014 18 Authorised by the Chief Parliamentary Counsel (c) whether it is necessary for the court to have a range of expert opinion; and (d) the likelihood of the engagement expediting or delaying the proceeding; and (e) any other relevant consideration. (4) A single joint expert is to be selected— (a) by agreement between the parties; or (b) if the parties fail to agree, by direction of the Tribunal. (5) A person must not be engaged as a single joint expert unless he or she consents to the engagement. (6) Any party who knows that a person is under consideration for engagement as a single joint expert— (a) must not, prior to the engagement, communicate with the person to obtain an opinion on the issues concerned; and (b) must notify the other parties to the proceeding of the substance of any previous communications on the issues concerned. (7) Unless the Tribunal orders otherwise, a single joint expert's report may be tendered in evidence by any of the parties to the proceeding. 7 Tribunal appointed experts (1) The Tribunal may make an order appointing an expert— (a) to assist the Tribunal; and (b) to inquire into and report on any issue in a proceeding. s. 22 -- 20 of 23 -- Victorian Civil and Administrative Tribunal Amendment Act 2014 No. 23 of 2014 19 Authorised by the Chief Parliamentary Counsel (2) The Tribunal may make an order appointing a Tribunal appointed expert at any stage of the proceeding. (3) In making an order to appoint a Tribunal appointed expert, the Tribunal must consider— (a) whether the appointment of a Tribunal appointed expert would be disproportionate to— (i) the complexity or importance of the issues in dispute; and (ii) the amount in dispute in the proceeding; and (b) whether the issue falls within a substantially established area of knowledge; and (c) whether it is necessary for the Tribunal to have a range of expert opinion; and (d) the likelihood of the appointment expediting or delaying the proceeding; and (e) any other relevant consideration. (4) A person must not be appointed as a Tribunal appointed expert unless he or she consents to the appointment. (5) The parties are responsible for any costs of a Tribunal appointed expert and are to pay those costs in the proportions determined by the Tribunal. s. 22 -- 21 of 23 -- Victorian Civil and Administrative Tribunal Amendment Act 2014 No. 23 of 2014 20 Authorised by the Chief Parliamentary Counsel 8 Interaction with other powers of Tribunal (1) Nothing in this Schedule limits any other power the Tribunal may have— (a) in relation to case management, evidence or witnesses, including expert witnesses; or (b) to take any action that the Tribunal is empowered to take in relation to a contravention of a direction given or an order made by the Tribunal. (2) Nothing in this Schedule limits— (a) the jurisdiction of the Tribunal; or (b) any other powers of the Tribunal under any other Act (including any Commonwealth Act), the rules, practice notes or practice directions.". 23 Repeal of amending Act This Act is repealed on 1 February 2016. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ s. 23 -- 22 of 23 -- Victorian Civil and Administrative Tribunal Amendment Act 2014 No. 23 of 2014 21 Authorised by the Chief Parliamentary Counsel ENDNOTES † Minister's second reading speech— Legislative Assembly: 6 February 2014 Legislative Council: 13 March 2014 The long title for the Bill for this Act was "A Bill for an Act to amend the Victorian Civil and Administrative Tribunal Act 1998 to enhance the powers of the Tribunal and enact a new regime for expert witnesses and expert evidence and for other purposes." Endnotes -- 23 of 23 --