As a Tribunal advocate it is important to be familiar with ss 97 (‘Tribunal must act fairly’) and 98 (‘General procedure’) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act).
These sections should be considered to embody ‘guiding principles’ of the Tribunal’s operations.
97 Tribunal must act fairly
The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.
98 General procedure
(1) The Tribunal-
is bound by the rules of natural justice;
is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;
may inform itself on any matter as it sees fit;
must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.
(2) Without limiting subsection (1)(b), the Tribunal may admit into evidence the contents of any document despite the non-compliance with any time limit or other requirement specified in the rules in relation to that document or service of it.
(2A) Without limiting subsection (1), at the hearing of a proceeding the Tribunal may admit into evidence any material put before the Tribunal at an earlier stage of the proceeding, or any material put before the Tribunal in another proceeding, if the Tribunal considers it desirable to do so.
(2B) Subsection (2A) is subject to any other provision of this Act, an enabling enactment or any other law that provides that evidence or material is not admissible in a proceeding.
(3) Subject to this Act, the regulations and the rules, the Tribunal may regulate its own procedure.
(4) Subsection (1)(a) does not apply to the extent that this Act or an enabling enactment authorises, whether expressly or by implication, a departure from the rules of natural justice.
Section 102 VCAT Act is also relevant to fairness considerations at the Tribunal. This section provides that the Tribunal must allow a party a reasonable opportunity to –
call or give evidence;
examine, cross-examine or re-examine witnesses; and
to make submissions to the Tribunal.
However, the Tribunal may refuse a party a reasonable opportunity to make submissions if the Tribunal considers there is already sufficient evidence of that matter before the Tribunal.