Tribunals (VCE SSCE Legal Studies): Revision Notes
Tribunals
Introduction to dispute resolution bodies
When parties involved in a civil dispute cannot reach an agreement between themselves, they have several options beyond taking the matter to court. In Victoria, there are three main types of bodies that can assist parties in resolving their disputes:
- Tribunals – specialist bodies that hear and determine certain types of civil disputes
- Ombudsmen – officials who investigate complaints about government departments and authorities
- Complaints bodies – organisations that resolve formal grievances about conduct
Research by the Australian Government's Productivity Commission in 2014 revealed that these dispute resolution bodies handle a substantial volume of matters each year. Between 2011 and 2013:
- Ombudsmen and complaints bodies dealt with approximately 542,000 complaints
- Tribunals handled around 395,000 matters
- Civil courts processed 673,393 cases
This data demonstrates that tribunals and other alternative dispute resolution bodies play a significant role in the Australian justice system, often handling similar volumes to traditional courts.
What are tribunals?
Tribunal: a dispute resolution body that resolves civil disputes and is intended to be a less costly, more informal and faster way to resolve disputes than courts.
Tribunals are specialist dispute resolution bodies that obtain their authority from parliament through legislation (statutes). When parliament passes a statute, it grants the tribunal specific powers to hear and determine particular types of matters and applications. This means tribunals can only deal with disputes that fall within their statutory jurisdiction.
Example of statutory authority:
The Mental Health Act 2014 (Vic) established the Mental Health Tribunal and gave it powers to hear applications about whether a person should be compulsorily treated in a mental health service. Through this statutory framework, tribunals develop expertise in handling specific types of disputes and can make decisions that are legally binding on the parties involved.
The role of tribunals in resolving civil disputes
Tribunals serve an important purpose in the Australian justice system by providing individuals with a low-cost, efficient and speedy method of dispute resolution. They increase community access to justice by offering an alternative to courts, which can be more formal, costly, stressful and time-consuming, particularly for smaller disputes that benefit from a less intensive resolution process.
Limitation: Class Actions
Tribunals have important limitations. They cannot hear every type of dispute. For instance, tribunals have no power to hear class actions (also called group proceedings or representative proceedings). A class action is a legal proceeding in which a group of seven or more people who have a claim against the same person based on similar or related facts bring that claim to court in the name of one person.
Similarities between tribunals and courts
Tribunals share some characteristics with traditional courts:
- An independent third party hears the dispute and makes a binding decision on the parties
- Parties are often referred to alternative dispute resolution methods (such as mediation) before a final hearing
- Decisions can be appealed to higher courts in certain circumstances
- Both follow legal procedures and apply relevant laws
Differences between tribunals and courts
Despite these similarities, there are significant differences that make tribunals attractive alternatives to courts:
| Feature | Tribunals | Courts |
|---|---|---|
| Cost | Generally lower fees for filing and hearing matters | Higher court fees, lawyers' fees, counsel fees, expert fees, with risk of adverse cost awards |
| Formality | Less formal setting with minimal technicality | More formal procedures and strict legal protocols |
| Speed | Typically faster resolution (often within weeks) | Can take months or years to reach final determination |
| Legal representation | Often discouraged or limited to certain circumstances | Common and sometimes necessary |
| Accessibility | Designed to be accessible to ordinary citizens with limited legal experience | May require legal expertise to navigate effectively |
| Specialisation | Focus on specific types of disputes with expert members | General jurisdiction or broader specialist areas |
Tribunals in Australia
Australia has both Commonwealth (federal) and state/territory tribunals. Each tribunal specialises in particular types of disputes and serves different communities.
Commonwealth tribunals
Commonwealth tribunals operate at the national level and deal with matters that fall under federal jurisdiction.
| Tribunal | Function |
|---|---|
| National Sports Tribunal | Provides dispute resolution services for sporting bodies, athletes and support personnel, including cases involving bullying, harassment, disciplinary issues, and selection disputes (such as whether an athlete has been chosen for a particular event) |
| Fair Work Commission (FWC) | The national workplace relations tribunal with power to resolve workplace disputes through mediation, conciliation and public hearings |
| National Native Title Tribunal | Hears and determines native title claims, which are applications seeking recognition of land title rights unique to First Nations people |
Victorian tribunals
Victorian tribunals operate at the state level and focus on disputes arising under Victorian law.
| Tribunal | Function |
|---|---|
| Victorian Civil and Administrative Tribunal (VCAT) | A 'one-stop shop' that deals with a broad range of civil disputes, including small civil claims, residential tenancy disputes, discrimination claims and guardianship issues |
| Mental Health Tribunal | Protects people with mental illness by hearing applications from mental health patients who wish to challenge treatment orders or seek transfer to another designated mental health service |
Victorian Civil and Administrative Tribunal (VCAT)
Victorian Civil and Administrative Tribunal (VCAT): a tribunal that deals with disputes relating to a range of civil issues heard by various lists (sections), such as the Human Rights List, the Civil Claims List and the Residential Tenancies List.
VCAT is one of Australia's busiest and most important tribunals, receiving over 85,000 claims per year. It serves as Victoria's primary tribunal for resolving a wide variety of civil disputes without the need for court proceedings.
VCAT's structure and divisions
VCAT's Five Divisions:
VCAT is organised into five divisions, each handling different types of disputes:
- Administrative Division – reviews administrative decisions made by government bodies
- Civil Division – deals with civil claims including small claims matters
- Human Rights Division – hears discrimination and human rights complaints
- Planning and Environment Division – handles planning and environmental disputes
- Residential Tenancies Division – resolves disputes between landlords and tenants
Each division is further divided into one or more 'lists' (sections) that hear particular types of disputes. For example, the Residential Tenancies Division has one list – the Residential Tenancies List – which handles disputes about rental properties (such as failure to pay rent or failure to repair property).
The tribunal is managed by a President (who must be a sitting Supreme Court judge) and vice-presidents (who must be sitting County Court judges).
How VCAT provides accessible justice
VCAT's purpose is to provide Victorians with a low-cost, accessible, efficient and independent tribunal that delivers high-quality dispute resolution. It achieves this through several key features:
Low cost: VCAT generally charges low fees for filing claims and having matters heard. Legal representation is disallowed except in certain circumstances, which keeps costs down for parties.
Geographical accessibility: While VCAT's main centre is located in Melbourne, it operates several venues across Victoria, including regional areas, making it easier for people outside Melbourne to access the tribunal.
Speed of resolution: VCAT aims to hear cases within weeks of the application being filed. The Residential Tenancies List typically has a median wait time of around three to four weeks, and can resolve urgent repair disputes within two business days.
Independence: Cases are heard and determined by a member – an independent third party who has no affiliation with either party to the dispute. Members include the VCAT President, vice-presidents, deputy presidents, senior members and ordinary members.
Informal procedures: VCAT is required to conduct cases with as little formality and technicality as possible, ensuring accessibility for ordinary Victorians with limited or no legal system experience.
Alternative dispute resolution: VCAT offers dispute resolution methods such as mediation and compulsory conferences (which use a conciliation process) before making a binding decision on the parties.
VCAT procedures and terminology
In VCAT proceedings, the person who makes an application is called the applicant, while the other party is the respondent (the person responding to the claim or application).
If one of the parties is not satisfied with VCAT's decision, they can appeal to the Supreme Court of Victoria (or to the Court of Appeal in some instances). This appeal right ensures that VCAT's decisions are subject to judicial oversight and parties have recourse if they believe the decision was incorrect.
Case study: Sexual harassment claim
Worked Example: Sexual Harassment Claim – Leung v Chung [2023] VSC 38
This case demonstrates how VCAT handles discrimination matters and the types of remedies available in civil disputes.
Facts of the case:
In August 2019, a woman (the applicant) commenced employment at a company where the respondent (a man) worked as production manager and was her direct manager. The applicant alleged multiple instances of sexual harassment:
- On three occasions, the respondent touched and slapped her on the buttocks
- He made comments about her body shape
- He put his arm around her shoulders and drew her to him
- He tickled her waist
- He gave her an unwanted shoulder massage
After the applicant complained, the respondent was terminated from his employment. However, the applicant resigned because she felt unsafe at the workplace. Shortly afterwards, the respondent was rehired by the company.
VCAT hearing and decision:
The VCAT case took three days, with the applicant giving evidence. The respondent claimed the conduct was not unwelcome and showed the "supporting and caring nature" of the relationship. VCAT rejected this defence and held in favour of the applicant, noting that some of the respondent's comments were "vulgar" and "inappropriate".
The applicant sought over $220,000 in damages, including:
- General damages: $110,000 for pain and suffering
- Aggravated damages: $20,000 for humiliation
- Special damages: compensation for medical expenses and loss of income
However, VCAT awarded only $10,000 for general damages and dismissed her claims for special and aggravated damages.
Appeal to the Supreme Court:
The applicant appealed to the Supreme Court of Victoria, arguing that the $10,000 award was "manifestly inadequate" – meaning it did not adequately compensate her for pain, suffering and loss of enjoyment of life.
The Supreme Court judge agreed, stating he had "no hesitation in concluding that the award of $10,000 in damages was inadequate in the extreme." However, he also noted that general damages for pain and suffering cannot be precisely calculated mathematically.
The Supreme Court ordered that the proceeding be sent back to VCAT to be heard by a different member, who would:
- Decide on a more appropriate amount of general damages
- Consider whether the applicant is entitled to additional types of damages, including special damages for lost earnings and aggravated damages for hurt and humiliation
Understanding types of damages
This case illustrates three important types of damages available in civil disputes:
General damages: a type of remedy that requires the payment of a sum of money to compensate for loss that cannot easily be quantified (e.g. pain and suffering).
Aggravated damages: an amount of money that a defendant may be ordered to pay when a plaintiff has suffered extreme humiliation, embarrassment or insult because of the defendant's conduct.
Special damages: an amount of money that one party is ordered to pay to another party to compensate for losses that are easily quantifiable (e.g. medical expenses or loss of wages).
Memory Aid – Three Types of Damages: "GAS"
- General damages – for non-quantifiable losses (pain and suffering)
- Aggravated damages – for humiliation and embarrassment
- Special damages – for quantifiable losses (medical bills, lost wages)
Current challenges facing VCAT
Accessibility Concerns
While VCAT generally provides a quicker and less expensive means of dispute resolution compared to courts, recent developments have raised concerns about its continued accessibility.
Increased fees: VCAT's fees have risen in recent times, particularly for disputes where parties challenge planning decisions made by local councils. These increased costs may create barriers for some individuals seeking to resolve disputes.
Extended wait times: In some of VCAT's lists, it can now take up to six months or more for a matter to be heard and determined. This represents a significant departure from VCAT's original purpose of providing speedy dispute resolution.
These issues have caused some people to question whether VCAT remains accessible to all individuals across all of its lists, highlighting the ongoing challenge of balancing demand, resources and accessibility in the tribunal system.
Exam guidance
What Examiners Are Looking For:
When answering questions about tribunals, examiners will be looking for you to:
- Define tribunals accurately and explain their statutory basis
- Compare and contrast tribunals with courts, identifying both similarities and differences
- Explain how tribunals increase access to justice through lower costs, reduced formality, and faster resolution times
- Apply knowledge of specific tribunals to scenarios (e.g. matching disputes to appropriate tribunals)
- Analyse the effectiveness of tribunals using real examples and identifying both strengths and limitations
- Evaluate whether tribunals achieve their purpose, considering current challenges such as increased fees and extended wait times
Command word tip: When asked to "evaluate" tribunals' effectiveness, structure your response by discussing their purposes, how well they achieve these purposes (with evidence), and any limitations or challenges they face. Reach a balanced conclusion about overall effectiveness.
Remember!
Key Takeaways:
-
Tribunals are specialist dispute resolution bodies that derive their powers from parliament through legislation and provide a less costly, more informal and faster alternative to courts for resolving civil disputes.
-
Key differences from courts: Tribunals generally have lower costs, less formal procedures, faster resolution times, and limited legal representation, making them more accessible to ordinary citizens.
-
VCAT is Victoria's main tribunal, comprising five divisions (Administrative, Civil, Human Rights, Planning and Environment, and Residential Tenancies) and handling over 85,000 claims per year.
-
Three types of damages: General damages compensate for non-quantifiable losses (pain and suffering), aggravated damages compensate for humiliation and embarrassment, and special damages compensate for easily quantifiable losses (medical expenses, lost wages).
-
Current challenges: Recent increases in VCAT fees and extended wait times (up to six months in some lists) have raised questions about whether tribunals remain accessible to all Victorians, potentially undermining their original purpose.
Memory Aid – VCAT's Five Divisions: "ACHPR"
- Administrative
- Civil
- Human Rights
- Planning and Environment
- Residential Tenancies