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Crouching tiger hidden drag on Court


Cite as: (2004) 78(9) LIJ, p. 20

Victoria’s Chief Justice has labelled administrative tribunals a tiger ready to pounce on the power and influence of traditional courts.

Supreme Court Chief Justice Marilyn Warren has opened a debate on the burgeoning influence of administrative tribunals by questioning whether they enjoyed full independence and provided legal certainty.

In a speech to the Council of Administrative Tribunals, Chief Justice Warren said the growth over the past 30 years in the number of tribunals and the areas of law they covered had occurred while traditional courts fought over jurisdiction.

While the Supreme Court had been competing with the Federal and County Courts, it had not “seen, heard or sensed the tiger in the jungle”, she said.

This new power for tribunals was born out of a state government decision in 1984 to turn an “uncoordinated and piecemeal array of tribunals serviced or managed by another array of government departments” into the Administrative Appeals Tribunal of Victoria.

“It was the decisive launching moment in administrative law and judicial review in this state thus far,” the Chief Justice said.

“Suddenly, under the dual veil of expediency and efficiency, the infant tiger was born.

“Not much later the tiger reached maturation in the form of the Victorian Civil and Administrative Tribunal (VCAT).”

She said that since VCAT’s establishment in 1998, it had assumed new jurisdictions in areas such as retail tenancies, fair trading and domestic building disputes.

It had also taken on exclusive jurisdiction in a variety of areas, including all matters concerned with water, domestic buildings and planning.

Chief Justice Warren said that this meant a litigant in a multi-million dollar dispute could choose VCAT and effectively bypass the Supreme Court.

She said while it was instructive to contemplate the changes that had occurred through the proliferation of courts and tribunals competing for jurisdiction, power and resources, there were greater issues to debate.

“Judicial independence and the doctrine of separation of powers might be rendered expendable in the interest of speed, efficacy, economy and expertise.

“The Tribunal members may exercise substantial powers in relation to contempt. They may also be required to grapple with very difficult ethical issues.

“Many are required to do these things without legal training, experience or expertise. Many tribunal members are sessional or subject to fixed terms. Judges and magistrates are not.

“Tribunal members may, therefore, be more politically vulnerable than the judges.”

She said that VCAT was often portrayed to the public as preferable in the resolution of civil disputes because of its speed and efficacy.

However, debate was needed as to whether the tribunal approach offered legal certainty and application of the rule of law.

Chief Justice Warren said these questions also had implications for the Supreme Court.

Unless steps were taken, the Court’s trial role would diminish, save perhaps in criminal law.

The appellate role could also expect to expand she added.

“As inferior courts and tribunals have their powers, in particular their meritorious powers increased, there will be a commensurate expansion of the judicial review and appellate roles of the Supreme Court both at single judge and appellate court levels.

“At some point not too far away, policy decisions will need to be made as to the role of the Supreme Court beyond its constitutional status as the third arm of government.”

Chief Justice Warren’s comments were part of a speech titled The Growth in Tribunal Power that she presented to the Council of Administrative Tribunals on 7 June.

The speech fits in with Chief Justice Warren’s push to reclaim long-dormant aspects of the Supreme Court’s jurisdiction.

She told the LIJ in late May that the Court had already begun the process of conducting more major non-homicide criminal trials and more complex common law trials (July 2004 LIJ, pages 24-25).

VCAT president and Supreme Court Justice Stuart Morris told the LIJ that responding to Chief Justice Warren’s speech through an article was inappropriate.

Instead he pointed to a speech he gave at a Law Institute professional development event on 15 April.

In the speech, Justice Morris said that VCAT now determined about 85,000 cases each year on a total funding allocation of $23 million.

He said tribunals had now “gained ascendancy” in resolving civil disputes.

From 1998/99 to 2002/03, the number of matters initiated in VCAT’s Civil Claims List had more than doubled from 2498 to 5109.

He said the common thread to the shift in responsibilities from courts to tribunals has been Parliament’s dissatisfaction with the courts resolving particular types of disputes.

This dissatisfaction has normally been in relation to a lack of specialist knowledge, a lack of timely decision making and cost, particularly cost to the parties.

“It may also be that there has been a degree of concern about the legalisation of minor civil disputes, in particular,” Justice Morris said in his speech.

“By this I mean an undue emphasis on procedural considerations compared with the substance of a dispute.

“For my part, I do not believe that courts must operate in a legalistic and pedantic manner, where the emphasis is on form rather than substance.

“But parliaments have generally taken the view that to effect a change in the culture of dispute resolution it is better to vest the responsibility with a new organisation.”

With regards to the cost of litigation, Justice Morris said some processes undertaken in civil disputes before the courts, such as the extent of discovery and the application of exclusionary rules of evidence, added little for the cost involved.

“A system of justice must be designed not only to achieve just outcomes in particular cases, but to achieve justice in the resolution of civil disputes when considered overall.

“Obviously the burden of costs plays a major role in this.

“Even if there is a trade-off between the cost of resolving a dispute and the quality of the dispute resolution process and outcome, it is legitimate to choose a substantially less costly process if this has a minimal impact on the fairness of the process or the justice of the outcome.

“I suspect this is a choice the Parliament has made when it has vested so much responsibility in the tribunal.”

On 12 August, federal Attorney-General Philip Ruddock introduced into parliament the Administrative Appeals Tribunal Bill 2004, which he said had been designed to reinforce the Tribunal’s prime objective of providing a mechanism of review that was fair, just, informal and quick.

The Bill enacted reforms in the areas of reforms to the Tribunal’s procedures, removal of restrictive constitution provisions, better use of ordinary members, reform to the role of the Federal Court and changes to the qualification requirements for appointment as President.

Institute Planning and Local Government Committee chair John Rantino said he welcomed the debate on the increasingly influential role of tribunals.

Mr Rantino, who is a partner at Maddocks and whose work is almost wholly with VCAT, said it was desirable for tribunals to take on as big a role as its mandate allowed.

“It [the work] is being dealt with by people who either come to the tribunal with expertise or their expertise has evolved over the number of times they have done a particular type of case.

“Plus it’s less expensive.”

He said the adjudication of land valuations was one example of shared jurisdiction between the Supreme Court and VCAT where the matter was far better suited to the tribunal.

The Valuation of Land Act says that if the valuation in dispute involves a capital improved value of $250,000 or more either party could choose to go to the Supreme Court instead of VCAT.

The Court would then be asked to simply adjudicate between competing valuations from experts.

However, VCAT members involve themselves in the valuation of the land because they were usually people with the skills to do so, he said.

Mr Rantino said it was an advantage for the Court, VCAT and the parties involved that the matter was heard in the tribunal as the parties received the fairest hearing and the Supreme Court did not get tied up with small cases.

Jason Silverii


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