Our fair hearing obligation
The obligation to provide a fair hearing is an important part of VCAT’s role and applies to everything we do.
What is the fair hearing obligation?
We have a duty to make sure everyone who is part of a case (called ‘parties’) gets a fair hearing.
A fair hearing involves:
- a reasonable opportunity for all parties to present their case
- a reasonable opportunity to know the case to be made by the opposing party
- the case to be decided according to law by a competent, independent and impartial member (the person who hears and decides cases at VCAT).
This means we:
- must act fairly and according to the merits of the case
- are bound by the rules of natural justice
- may inform ourselves on any matter we see fit
- must allow a party a reasonable opportunity to call or give evidence, question witnesses and to make submissions to VCAT
- must conduct each hearing with as little formality and technicality, speed and a proper consideration of the matters before it permit
- may conduct all or part of a hearing by phone, video links or using any other technology
- may regulate our own procedure.
A VCAT member can’t act as an advocate or give legal advice to any parties.
How we make sure the hearing is fair
Sometimes a member has to interrupt what’s happening to make sure the hearing is fair.
For example, they may have to:
- explain the relevant law
- clear up uncertainty
- identify relevant issues
- make sure the hearing is run efficiently and costs are kept to a minimum
- ask a party or witness questions to get information about the issues which are central to the decision
- draw a party’s attention to the difference between ‘unsworn’ and ‘sworn’ evidence
- delay (adjourn) a hearing when it would be unfair to continue
- deal with inappropriate behaviour.
What a member must do to make sure a party has a reasonable opportunity to present their case depends on:
- the kind of decision to be made
- the nature and complexity of the issues in dispute
- the nature and complexity of the submissions the party wants to make
- what’s at stake - the significance to that party of a decision made against them
- competing demands on our time and resources.
- our power to regulate our own procedure.
For example, a member may have to step in more in a case where:
- a person may lose important freedoms and personal autonomy - for example, in a guardianship case
- a person may be made homeless - for example, in a rental property dispute.
Cases like these can involve the member more than a case about fee recovery, like in an owners corporation dispute.
A member can also take special measures to allow people with a disability to participate fully at VCAT.
What is our duty to assist self-represented parties?
Our obligation to make sure the hearing is fair applies to all parties, both represented or self-represented.
We aim to:
- balance the interests of people who represent themselves with those who are represented
- balance fairness for all parties
- run hearings efficiently
- make sure parties’ costs are kept to a minimum.
If a party is self-represented, the member may need to assist the party to give them a reasonable opportunity to present their case. The amount of assistance depends on the party’s capabilities.
For example, a self-represented person who understands the case against them and is familiar with how VCAT works may need less assistance than someone who:
- isn’t able to express themselves
- is distressed
- doesn’t understand what is happening at the hearing
- is unfamiliar with court or VCAT processes.
To understand the level of assistance a party may need, the member must assess that party’s capabilities to prepare and communicate their case.
This assessment may be based on their written communications with us as well as their verbal communication at the hearing.
If the member is aware that there may be an arguable point a self-represented party can’t articulate, the member may assist them to make that point or refer them to a duty lawyer or other provider of free legal services for legal advice.
Members may assist a party to identify relevant legal issues, but it’s not their role to act as an advocate or to provide legal advice.
What are the obligations of parties and representatives?
All parties (the people who are part of a VCAT case) and their representatives must participate in our processes in a responsible way so that we can make sure the hearing is fair.
As a party or representative, you must:
- treat the VCAT member and the other parties/representatives with courtesy and respect at all times
- act honestly and not knowingly give false or misleading information to us
- follow all rulings and directions we make
- act promptly, follow all directions we give to resolve the dispute to avoid delays
- co-operate with other parties and us to allow for the just, efficient, timely and cost-effective resolution of the real issues in dispute
- make a reasonable effort to make sure any costs that are part of the case are reasonable and fit with the complexity and importance of the issues and the amount in dispute
- participate in alternative dispute resolution if directed to by us
- when part of alternative dispute resolution, make a reasonable effort to resolve the dispute by agreement or narrow the scope of the issues in dispute if you can’t reach an agreement.
The State of Victoria, its departments and agencies have an obligation to act as a ‘model litigant’.
This means they must act with complete propriety, fairly and meet the highest professional standards.
This obligation can mean more than just acting honestly and following the law and VCAT rules. It also goes further than the requirement for lawyers to act according to their ethical obligations.