Neighbourhood Tree Disputes: Report (html)

7. Resolving neighbourhood tree disputes in VCAT

Introduction

7.1 Court and tribunal proceedings are described as ‘formal’ because they are conducted before a judicial officer (judge or magistrate) or tribunal member, in accordance with court or tribunal processes and with notice given to affected parties.^[1] Unlike informal resolution, legal proceedings produce binding and enforceable legal outcomes.

7.2 The consultation paper asked the community which court/s or tribunal should have jurisdiction to hear formal tree disputes if a new Act was introduced. This chapter explores community responses and examines how tree disputes are currently decided in Victoria, interstate and overseas. It concludes by recommending that the Victorian Civil and Administrative Tribunal (VCAT) be given jurisdiction to decide matters under the new Act and examines some of VCAT’s processes for managing those disputes.

In which forum should disputes be resolved?

7.3 In Victoria, tree disputes can currently be heard in three places:

• most often in the Magistrates’ Court^[2]

• larger claims in the County Court^[3]

• more rarely cases involving very large or complex claims in the Supreme Court.^[4]

7.4 The operation of each of these jurisdictions was examined in the consultation paper in detail.

7.5 The Magistrates’ Court and VCAT are the jurisdictions that are most suitably placed to hear tree disputes under the new Act. Whether or not tree disputes should continue

to be heard in the Magistrates’ Court or in VCAT is a key consideration in the design of

a new Act.

7.6 The differences between them are discussed in the following section.

Magistrates’ Court of Victoria

7.7 The Magistrates’ Court has jurisdiction to hear civil matters such as tree disputes up to the value of $100,000.^[5] As a court of law and equity it can provide a wide range of remedies. It can order people to do certain things or to stop doing something where the payment of money may not be sufficient.^[6]

Fees—the Magistrates’ Court

7.8 Bringing a case before the Magistrates’ Court can be costly. In addition to the cost of legal representation, there are court fees.^[7] The Court application/filing fee ranges from $147.40 (for claims under $500), to $702.30 (for claims over $70,000). Other fees may apply, for example for serving documents on the other party ($73).^[8] These are generally applied on a sliding scale by reference to the value claimed for works or damages..^[9] The Magistrates’ Court may grant a fee waiver to persons experiencing financial hardship.^[10]

Alternative dispute resolution—the Magistrates’ Court

7.9 The Magistrates’ Court has a specific arbitration process for smaller claims, such as neighbourhood disputes, designed to keep costs down, encourage early resolution and divert simpler cases away from full hearings.^[11] Parties seeking relief under $10,000 are generally referred for compulsory arbitration.^[12] Parties may also mutually agree to undertake arbitration, or one party will apply and the other will be required to participate. The arbitration process is less formal and simpler than a hearing.^[13] The parties’ cases are heard by an independent arbitrator, who is empowered to make a binding decision about the case.^[14]

7.10 Other mechanisms to support early resolution of disputes include prehearing conferences, mediation and early neutral evaluation.^[15] Pre-hearing conferences, if directed by the Court, are compulsory for the parties and their lawyers and are generally heard before an experienced registrar. The registrar identifies and explores the issues and promotes settlement.^[16] If no resolution is reached, the registrar may make directions for the dispute to proceed to a hearing.^[17]

7.11 Referral to mediation can occur with or without the parties’ consent.^[18] It is usually conducted by a registrar, a judicial registrar or an external mediator.^[19] Mediation before a registrar costs $261.50, and $453.70 before a judicial registrar.^[20]

7.12 The Dispute Settlement centre of Victoria (DSCV) operates a Civil Claims Program for defended civil claims in the Magistrates Court for claims under $40,000.^[21] This ‘is a quick and inexpensive way for the parties to resolve their civil claim without … a court hearing’.^[22] The program operates in a number of Magistrates’ Court locations in metropolitan and regional areas.^[23] Mediations by DSCV are free.^[24]

7.13 The Court may direct any matter to proceed to early neutral evaluation.^[25] This involves a magistrate, in the presence of the parties and their legal representatives, hearing a statement of the relevant evidence and principles of law from each party, facilitating discussion and presenting a non-binding opinion on the likely outcome.^[26] If the parties do not reach a resolution, their matter can proceed to a hearing.^[27]

Subject-matter expertise—the Magistrates’ Court

7.14 The Magistrates’ Court currently hears fence disputes under the Fences Act 1968 (Vic). These disputes include matters about building and repairing fences, such as who pays, what type of fence is built and where.^[28] The Magistrates’ Court has power to make a broad range of orders about fencing disputes.^[29]

Flexibility and support—the Magistrates’ Court

7.15 The Magistrates’ Court ‘has the largest suburban and regional reach of any adjudicative body in Victoria’.^[30] It sits at 51 metropolitan and regional locations in Victoria^[31] and also operates through specialist court models that are comparatively informal and flexible.^[32] For example, the Neighbourhood Justice Division of the Magistrates’ Court sits at the Neighbourhood Justice Centre in the City of Yarra and has jurisdiction to hear a range of matters including fence disputes pursuant to the Fences Act 1968 (Vic).^[33]

7.16 Of all the Victorian courts, self-represented litigants appear most frequently in the Magistrates’ Court.^[34] The Magistrates’ Court has processes in place to make sure that it is accessible for the people who need it. It monitors its information, forms and processes to ensure that cases are resolved efficiently and is easy to use.^[35]

Victorian Civil and Administrative Tribunal (VCAT)

7.17 VCAT hears and decides civil and administrative cases in Victoria.^[36] It was established under the Victorian Civil and Administrative Tribunal Act 1998.^[37] VCAT is a ‘modern, accessible, efficient, cost-effective, and independent judicially-governed tribunal’.^[38]

7.18 VCAT does not currently have jurisdiction to hear private tree disputes between neighbours at common law because VCAT only derives its jurisdiction from Acts of parliament.^[39]

7.19 VCAT comprises four main divisions: the Administrative Division, the Civil Division, the Human Rights Division and the Residential Tenancies Division.^[40] Claims before VCAT can be monetary and nonmonetary in nature.

7.20 The Civil Division deals largely with monetary claims. It hears disputes over matters such as consumer issues, domestic building works, owners’ corporations matters, retail tenancies, sale and ownership of property, and use or flow of water between properties.^[41] Although VCAT is known for handling smaller civil claims,^[42] there is no limit on the amount that can be claimed in the Civil Division^[43]—VCAT may hear complex and high-value claims.

Fees—VCAT

7.21 Fees are significantly lower than in the courts. An example of an application fee in VCAT is $63.70 for an owners’ corporation, rent, or goods and services dispute.^[44] This is waived if the applicant holds a health care card and the claim is $15,000 or less. Fees increase as the value of the dispute increases.^[45] If the claim is for over $15,000, then hearing fees may apply for the second and subsequent hearing days.^[46]

7.22 VCAT has a fee relief program for people experiencing financial hardship.^[47] VCAT states on its website that ‘financial hardship means that paying the VCAT fee would make the person unable to provide the following for themselves, their family or other dependents: food, accommodation, clothing, medical treatment, education, other basic necessities’.^[48] Parties may also seek to have their fees waived on the grounds of financial hardship or if they are represented by a community legal centre. ^[49]

7.23 VCAT revised its fees in July 2016, making it more affordable.^[50] The Access to Justice Review found that this ‘new fee structure adequately meets concerns about the affordability of commencing applications for small civil claims’.^[51]

Subject-matter expertise—VCAT

7.24 VCAT has substantial review jurisdiction^[52] in a number of areas that intersect with tree disputes, including planning, environment, heritage and land management.^[53]

7.25 VCAT is headed by a President, who is a judge of the Supreme Court of Victoria.^[54] VCAT also has 14 Vice Presidents, who are judges of the County Court of Victoria.^[55] The President and Vice-Presidents are responsible for the management and administration of VCAT.^[56]

7.26 Claims in VCAT’s specialist divisions and lists are determined by members who ‘have specialist knowledge and qualifications’; most of whom also have a legal background.^[57] Similar requirements apply to commissioners of bodies that resolve tree disputes in New South Wales, Queensland and Tasmania.

The jurisdiction of VCAT and the Magistrates’ Court

7.27 VCAT’s jurisdiction to hear civil claims aligns with (and extends beyond) the Magistrates’ Courts jurisdiction to hear similar claims, particularly in relation to ‘debts, damages for breach of contract, other contractual disputes, and claims under the Australian Consumer Law’.^[58]

7.28 However, VCAT does not have the same powers as the Magistrates’ Court. VCAT typically cannot make an award for legal costs^[59] unless it is fair to do so,^[60] whereas the Magistrates’ Court has a broader discretion to award legal costs.^[61] In VCAT hearings, parties generally bear their own costs.^[62]

Flexibility and support—VCAT

7.29 VCAT’s is the busiest tribunal of its kind in Australia, finalising 83,424 cases in 2017–18.^[63] VCAT’s primary location is in Melbourne but it also hears cases in various Magistrates’ Court locations and local council customer service offices across the suburbs and regional Victoria,^[64] and sits at the Neighbourhood Justice Centre in the City of Yarra.^[65]

7.30 VCAT’s decision makers and processes differ from a court’s.^[66] It is less formal than a court. VCAT is bound by the rules of natural justice,^[67] but not by the complex rules of evidence,^[68] or other procedures of the courts.^[69] Hearings must be conducted with ‘as little formality and technicality’ and ‘as much speed’ as the law and a proper consideration of the matter allow.^[70] Parties may only appear with lawyers in limited circumstances or with VCAT’s permission.^[71] Unlike most courts, VCAT may conduct hearings in a ‘quasi-inquisitorial’ manner, taking an active role in determining the facts of a matter, such as by asking the parties questions.^[72]

7.31 VCAT’s website provides parties with informative material to help guide them through VCAT’s processes including videos and a YouTube clip.^[73] Further information is also available through the registries and the Litigant in Person Co-ordinator.

7.32 The Access to Justice Review noted that VCAT’s active case management systems are helpful. It provides an example of active case management in VCAT’s Human Rights List:

Once a person has filed their matter, VCAT will serve the documents on the respondent and, in some cases, contact the parties to discuss the matter proceeding direct to a compulsory conference or mediation. Alternatively, the case will be listed for a directions hearing where VCAT’s processes are explained and discussed with the parties.^[74]

7.33 VCAT’s website aims to assist people who speak languages other than English, by providing information in eight languages^[75] and free access to interpreters and translators.^[76]

7.34 VCAT has also improved the website’s accessibility for people with disabilities.^[77] VCAT’s Accessibility Action Plan 2018–2022 sets out how VCAT ‘will assist people with disability to gain better access to the tribunal’.^[78]

Alternative dispute resolution—VCAT

7.35 VCAT uses a range of alternative dispute resolution (ADR) processes to help parties resolve their dispute without a full hearing.^[79] They are conducted by ‘members, staff, and external mediators from a panel who are engaged on a sessional basis’.^[80]

Compulsory conference

7.36 Any claim may be referred to a compulsory conference before a hearing by a Tribunal member (or principal registrar) or parties may refer themselves.^[81] Compulsory conferences are conducted by a Tribunal member or the principal registrar.^[82]

7.37 Compulsory conferences are private and confidential. They allow the Tribunal member to take an active role in helping the parties to resolve the dispute. The Tribunal member will assist parties in identifying issues of fact and law, encourage settlement, and offer opinions as to the strengths and weaknesses of each party’s case.^[83]

7.38 If resolution cannot be achieved through the compulsory conference, then the Tribunal member can issue orders and directions for the final hearing at a later date. Parties do not incur additional costs for compulsory conferencing.^[84] Conversations during compulsory conferences are generally confidential and cannot be used in hearings.^[85]

Mediation

7.39 Any claim may be referred to mediation and is conducted pursuant to section 88 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). This can occur with or without the consent of the parties.

7.40 Mediation is conducted by a person nominated by the Tribunal or principal registrar.^[86] Key issues are identified and settlement is encouraged. Mediation may target all the issues or a subset of them. Conversations are confidential and cannot be used in hearings.^[87]

7.41 The mediator or Tribunal member’s role is less active than in compulsory conferencing, as they cannot ‘give advice about a party’s prospects of success’ or ‘put forward options for settlement of the proceeding’.^[88]

Fast track mediation and hearing program

7.42 For some Civil Division claims for goods and services between $500 and $10,000 parties may participate in VCAT’s fast track mediation and hearing program.^[89]

7.43 The fast track program is administered by the Dispute Settlement Centre of Victoria (DSCV).

It began operating in VCAT’s main location in Melbourne and then in Geelong.^[90] The program leverages DSCV’s existing presence in regional areas.^[91] Parties engage in the program approximately six weeks after an application has been lodged. The typical process involves:

• an initial telephone conversation with DSCV mediators to explore options for resolution

• the parties are scheduled for mediation and provided with information about the mediation process

• mediation (up to 90 minutes).^[92]

7.44 If mediation does not result in an agreement, the matter will generally proceed to a VCAT hearing on the same day for a legally binding decision.^[93] VCAT can review agreements reached in mediation and issue consent orders.^[94] Even if no settlement is reached during mediation, ‘parties enter the final hearing with a better understanding of each other’s points of view’.^[95] Engaging in mediation before a hearing may also shorten the typical timeframe for VCAT hearings.^[96]

VCAT and the 1998 Fences Review

7.45 The possibility of conferring jurisdiction on VCAT to hear fence disputes was previously explored by the then Parliamentary Law Reform Committee^[97] in its 1998 review of the Fences Act:^[98]

VCAT could perform a larger role in providing an efficient and cost effective forum for the resolution of a wider range of neighbour disputes. Consequently, the Committee recommends the creation of a ‘Neighbour Disputes’ Division of the Tribunal with the jurisdiction under the proposed Boundaries and Dividing Fences Act at its core.^[99]

7.46 This recommendation was not, however, implemented. The Government’s 2001 response to this recommendation provides some context:

The Government … notes that there are complex issues to be considered in the relocation of any jurisdiction. In particular, the Government is concerned that regional and rural Victoria remain serviced in the comprehensive manner in which they are currently serviced by local Magistrates’ courts. It proposes to consider further the necessity of an entirely new Division at the Tribunal, and whether broader disputes would be better resolved in another arena.^[100]

7.47 Currently, fencing disputes are heard in the Magistrates’ Court.

The approach in other jurisdictions

7.48 As mentioned earlier in this report, neighbourhood tree disputes are heard in the Land and Environment Court of New South Wales (NSWLEC), the Queensland Civil and Administrative Tribunal (QCAT), and the Resource Management and Planning Appeal Tribunal (RMPAT) in Tasmania.

New South Wales

7.49 The NSWLEC adjudicates tree disputes under the NSW Act. The NSWLEC is a superior court, with equal status to the NSW Supreme Court.^[101]

Decision-making expertise

7.50 The NSWLEC is a specialist jurisdiction.^[102] Its decision makers are judges and commissioners, led by a chief judge.^[103]

7.51 Tree disputes are usually heard by ‘at least one Commissioner with specialist knowledge in arboriculture who is an arborist’.^[104] This provides the parties with some flexibility in relation to the need for expert evidence.

7.52 Judges of the NSWLEC may also hear and determine tree disputes. However, these hearings are conducted in Court rather than on-site.^[105] Judges contribute to the development of jurisprudence in this area and Tree Dispute Principles.^[106]

Case management and preliminary directions

7.53 There is a high level of self-representation among litigants in the NSWLEC for tree dispute matters. The NSWLEC’s assistant registrar helps triage matters when they are filed, keeps parties on track and assists them to comply with procedural requirements.^[107]

7.54 Once it is determined that the tree dispute falls within the scope of the NSWLEC’s jurisdiction, a preliminary hearing is held.^[108] A final hearing date is set for a time that is usually no more than six weeks after the preliminary hearing.^[109]

Alternative dispute resolution

7.55 The NSWLEC encourages the use of ADR to resolve disputes.^[110] However, the Commission was informed that parties are rarely referred to ADR once a hearing has commenced.^[111] The NSWLEC informed the Commission that only one legally complex tree dispute has been referred to ADR.^[112]

7.56 The Commission was told that informal negotiations have generally reached a stalemate by the time an application to the Court is made. However, the Court advised that if it appears that the parties may be open to negotiating a resolution, the Court may offer to adjourn the matter, and make consent orders if parties reach an agreement, for example, through mediation.^[113]

Final on-site hearing

7.57 Nearly all tree disputes are heard and determined on site on the same day.^[114] Commissioners will travel to the site of the tree dispute, including all regional areas.^[115]

7.58 The hearing begins on neutral territory to the parties, such as a footpath or alleyway. The Commissioner and the parties visit the tree owner’s site and the affected neighbour’s site to view and assess the tree. Decisions are normally made at the conclusion of the on-site hearing in the presence of the parties.^[116]

7.59 Although hearings are conducted on site, the usual formalities of the NSWLEC still apply, such as giving exhibit numbers to documents. ^[117]

Timeframes

7.60 A hearing generally occurs three months after the application is filed. This is shorter than matters in other lists of the Court.^[118] If a matter is urgent, it is heard in less than three months and may be heard in Court, however urgent matters of this kind are generally rare.^[119]

Queensland

7.61 QCAT is a tribunal established under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to determine and review disputes and administrative decisions.^[120]

7.62 QCAT is also a ‘court of record’^[121] (or a ‘court of the State’)^[122] ‘capable of being invested with the judicial power of the Commonwealth’.^[123] In Amos v Fett,^[124] QCAT explained that:

although the tribunal has the formal status of a court of record with summary jurisdiction, it is really a ‘court substitute’ characterised and distinguished by greater procedural flexibility and evidentiary freedom than a regular court; offering wider remedial options including making ‘fair and equitable orders’ in resolving minor civil disputes, awarding compensation for future rental losses caused by wrongful termination and granting relief from excessive hardship.^[125] [Footnotes omitted]

7.63 In Queensland Building & Construction Commission v Whalley,^[126] QCAT further explained that although it is a court of record, it is an ‘inferior court of record’ and that it:

has no jurisdiction other than as granted by the QCAT Act or other enabling legislation. It has no inherent power to make decisions appropriate to redress perceived or discovered wrongs in a matter before it as might be presumed to be the case in a matter before the Supreme Court.^[127]

7.64 QCAT is unusual because it also has an internal Appeal Tribunal. A person can appeal the decision of a QCAT member on a question of law, fact or combination of law and fact in certain circumstances with leave of the Appeal Tribunal.^[128] See Chapter 9.

Decision-making expertise

7.65 QCAT is led by the president, who is a Supreme Court judge.^[129] Tribunal members are legal experts or other specialists with knowledge relevant to the matter being heard.^[130] QCAT members who hear tree disputes do not have particular expertise in arboriculture, although they are legally qualified.^[131]

7.66 QCAT may appoint an independent tree assessor, a senior arborist with a qualification equivalent to an AQF Level 5 with five years of experience,^[132] to provide the Tribunal with expert evidence.^[133] The cost of a tree assessor is capped at $1000.^[134] QCAT will start from the general proposition that the parties are to share the costs of the tree assessor.^[135]

7.67 QCAT may appoint a tree assessor where it is obvious that parties cannot come to an agreement or where QCAT is unable to make a decision without expert arboricultural opinion (for example, in a complex matter with a large number of trees).^[136] Tree assessors travel throughout Queensland to conduct inspections.^[137] Even if a tree dispute is not heard on site, QCAT has the benefit of the tree assessor’s expertise where one is appointed. A QCAT tree assessor provides similar arboriculture expertise to that which a Commissioner of the NSWLEC would bring to a case.

Case management and preliminary directions

7.68 A directions hearing is conducted before a final hearing. At a directions hearing QCAT will triage the matter by identifying the nature of the dispute and the issues in dispute. Parties may be referred to ADR (mediation or compulsory conference) or advised to negotiate with one another. A tree assessor may also be appointed.^[138]

7.69 Section 29 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) requires the Tribunal to ensure that parties understand the practices and procedures of QCAT as well as the nature of the claims being brought and the power of the Tribunal in relation to the claims. Accordingly, QCAT will ensure that parties are educated about the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 and QCAT processes and powers.

7.70 Parties are also informed about the different implications of resolving their matter through ADR with an agreement versus resolution via court orders. At directions hearings parties are encouraged to talk to each other. The member can pause proceedings to allow parties to leave the hearing room to negotiate.^[139]

Alternative dispute resolution

7.71 There is a significant focus on alternative dispute resolution (ADR) within the tree disputes jurisdiction of QCAT. Only a small number of tree disputes proceed to a final hearing—most are resolved through ADR.^[140] A referral to a compulsory conference is more common than mediation.^[141]

7.72 Compulsory conferences have a high rate of resolution, with 207 out of 216 matters referred from 2013 to October 2018 having been resolved through this method.^[142] A compulsory conference is chaired by a Tribunal member, who may meet privately with each party to discuss the issue confidentially. All discussions at a compulsory conference are confidential.^[143]

7.73 If the compulsory conference results in an agreement, the member will produce a written record to be signed by all parties and the member. The majority of tree disputes referred to a compulsory conference are resolved in this way. If the compulsory conference does not result in an agreement, the member will make directions or orders aimed at reducing the issues to be determined at the hearing.^[144]

7.74 A similar process is applied for mediations.^[145] Mediation also has a high resolution rate; with 59 out of 61 matters referred to mediation from 2013 to October 2018 having been resolved through this method.^[146] If the parties reach an agreement, the mediator may record the terms of the agreement in writing and each party will then sign the agreement and receive a copy.^[147] If the parties are not able to resolve the matter at mediation, the issues in dispute will be identified and provided to the Tribunal.^[148] The matter will be set down for a subsequent hearing.^[149]

7.75 QCAT may conduct ADR on site, usually on the tree owner’s land.^[150] However, on-site ADR is usually reserved for applications relating to an obstruction of a view.^[151]

Final hearing

7.76 Matters are generally heard in QCAT’s main location in Brisbane or at regional Magistrates’ Court locations. QCAT members can travel to the nearest Magistrates’ Court in the area to hear these matters.^[152]

7.77 Final hearings in regional areas can be conducted via telephone conference.^[153] The Tribunal member coordinates the telephone conference from Brisbane and parties join by phone.^[154]

Timeframes

7.78 The average time for a matter to be resolved, from the lodgment of the application to the making of orders, is 16 weeks.^[155] QCAT noted that it very rarely needs to expedite matters. Where needed, it has power to order interim injunctive relief.^[156]

Tasmania

7.79 RMPAT is an independent tribunal that hears appeals relating to the management of natural and physical resources and planning and tree disputes under the Neighbourhood Disputes About Trees Act 2017 (Tas) (The Tasmanian Act).^[157]

Decision makers

7.80 RMPAT is led by an Australian legal practitioner of not less than five years standing.^[158] Tribunal members are appointed for their ‘knowledge and expertise in relevant areas to the appeal proceedings’.^[159] The Tribunal is ordinarily constituted by three members and matters are usually heard by the chairperson or a member.^[160]

Case management and preliminary directions

7.81 Once an application is filed, the Tribunal will review the application and determine if any additional information is required from the parties.^[161] RMPAT explained ‘an intake assessment of an application is made to ensure that information required by the legislation and the Tribunal has been filed. Requests for the provision of information may be issued before the application may proceed for service upon respondents or listing for hearing may occur’. In 4 of the 16 applications filed under the Tasmanian Act, the Tribunal has requested additional information from the applicant before acceptance of the application.^[162]

7.82 If the Tribunal is satisfied the application has met all the necessary requirements, it will set a preliminary conference within approximately 14 to 21 days.^[163] At the preliminary conference the Tribunal will consider a number of matters, such as the preparation of evidence and material, and whether ADR may be appropriate to assist the parties to resolve the dispute.^[164]

Alternative dispute resolution

7.83 At the preliminary conference RMPAT must consider whether the matter could be settled through ADR such as mediation, conciliation or neutral expert evaluation.^[165] The Tribunal notes that ‘virtually all disputes … will be referred’ to ADR before ‘proceeding to a full hearing’.^[166]

7.84 Mediation is the most common form of ADR used by RMPAT.^[167] The Tasmanian Act requires RMPAT to consider the following factors when determining whether or not to direct parties to resolve their tree dispute, including by making mediation or conference directions under sections 16A or 17 of the RMPAT Act:

• any threats of violence made by one of parties;

• any court orders restraining the behaviour of the parties; and

• whether the parties have already participated in any form of ADR.^[168]

7.85 Mediation can occur before a hearing or during a hearing following an order to stay proceedings. Matters discussed in mediation remain confidential.^[169]

7.86 RMPAT advised that a ‘significant proportion of applications are withdrawn before proceeding to hearing’. It was suggested that in the majority of these cases the parties had engaged in negotiations themselves or through formal mediation.^[170]

7.87 Parties who reach an agreement through ADR can submit their agreement to the chairperson for consideration as consent orders of the Tribunal. Consent orders will be issued if the chairperson is satisfied the orders are appropriate and within the Tribunal’s power.^[171]

Final hearing

7.88 If the parties cannot resolve their dispute through ADR, then the matter will proceed to a hearing in Hobart.^[172]

7.89 Site inspections are conducted as part of the hearing process, usually without parties or their representatives present. However, ‘if the parties wish to specifically ensure that the Tribunal members have regard to certain matters on the subject site’, then they may arrange such a site inspection and notify RMPAT and other parties.^[173]

Timeframes

7.90 RMPAT must deliver its decision in writing. A decision is usually made ‘14 to 21 days from the conclusion of the hearing’, depending on the complexity of the matter.^[174]

International jurisdictions

7.91 Neighbourhood disputes, including those about trees, are heard in tribunals in some international jurisdictions.

7.92 In New Zealand, tree disputes can be resolved in the Disputes Tribunal or the District Court depending on the type of claim. For claims in tort over destruction or damage to property and generally less than $15,000 (NZD),^[175] parties may take legal action in the Disputes Tribunal.^[176]

7.93 Legal action under the Property Law Act 2007 (NZ) is taken in the District Court.^[177] The Property Law Act 2007 (NZ) sets out a statutory scheme for resolving tree disputes separately to actions in tort and allows an affected neighbour to seek orders in the District Court for the trimming or removal of a tree on the basis that it causes actual or potential risk to their life, health or property.^[178]

7.94 In Singapore, neighbour disputes are resolved in specialised Community Disputes Resolution Tribunals (CDRTs) under the Community Disputes Resolution Act 2015.^[179] CDRTs operate under a division of state courts and deal exclusively with neighbour disputes. Matters are heard by tribunal judges who are appointed district judges of the State Courts.^[180]

7.95 The Act was implemented ‘to hear cases involving intractable disputes between neighbours, after all efforts including community mediation have been exhausted’^[181] and aims to ‘facilitate the resolution of community disputes by providing for a statutory tort for community disputes and for the establishment of Community Disputes Resolution Tribunals to deal with such disputes’.^[182]

Community responses—where should tree disputes be resolved?

7.96 The consultation paper asked which decision-making forum should have jurisdiction to hear tree disputes under a new Act.

7.97 Community members and stakeholders were invited to take into account the following factors in their responses:

• cost

• formality

• the capacity of parties to participate in proceedings and represent themselves

• expertise of the decision makers

• powers of the decision makers

• resources of the court/tribunal

• location of the court/tribunal.

Community support for VCAT

7.98 Most responses on this issue were in favour of VCAT hearing tree disputes.^[183]

7.99 Some community members explained that they considered VCAT to be less formal than a court and that it had the advantages of easier processes to navigate, and faster decision making.^[184] Arborist Ben Kenyon described VCAT as having a ‘round table feel’.^[185] One person noted that VCAT was less costly.^[186]

7.100 The City of Port Phillip explained that VCAT regularly makes decisions concerning vegetation in its Planning and Environment List. Port Phillip noted that vegetation and other environmental matters form an integral part of permit applications for development, and it would make sense for tree disputes concerning similar matters to be heard by the same decision-making body.^[187] On the other hand, Dr Gregory Moore OAM stated that VCAT’s current processes and procedures in matters involving vegetation can result in outcomes that disregard or overlook the merits of the tree.^[188]

7.101 VCAT proposed that it would be the most suitable jurisdiction to administer the new Act. It suggested that tree disputes should be resolved at the lowest judicial level possible, involve informal processes^[189] and low costs. VCAT highlighted its flexible processes and willingness to be more experimental than the courts. For example, directions hearings can be held over the phone and parties can be sent documents without the need to respond unless they object. VCAT is also reluctant to make parties attend the Tribunal more than necessary because of the associated costs, such as loss of income.^[190]

7.102 VCAT indicated that tree disputes may be best determined in the Civil Division. In that list members already deal with civil disputes between parties and, if needed, can be supported by the expertise of planning and environment members. VCAT also stated

that tree disputes involving damage to property could be heard in the Building and Property List.^[191]

7.103 VCAT expressed support for carrying out on-site inspections of the tree and properties in appropriate circumstances. VCAT explained that inspections might be helpful for obvious cases of damage but may not be appropriate for more complex issues which may require the attendance of experts and other witnesses. On-site inspections often occur in the Planning and Environment List in the form of a visit by a VCAT member accompanied by parties or unaccompanied, before, during or after the hearing.. Section 129 of the VCAT Act provides for the power of entry and inspection. ^[192]

7.104 VCAT’s preferred approach is for an on-site inspection to occur after a hearing has taken place when the evidence has been heard.^[193] Parties who are present during an inspection cannot argue their case but they can answer the member’s questions about factual issues. The way on-site inspections are conducted is at the discretion of VCAT and may vary between VCAT Lists.^[194]

7.105 VCAT also emphasised its ‘strong ADR culture’ and explained that in all of its Lists, parties have the opportunity to resolve their own disputes. VCAT is currently expanding its ADR program following recommendations of the Access to Justice Review.^[195]

Community support for the Magistrates’ Court

7.106 A number of people suggested that the Magistrates’ Court should have jurisdiction to hear tree disputes under the new Act.^[196]

7.107 The Magistrates’ Court submission advised that it is well placed to hear and determine tree disputes and that a statutory scheme ‘would readily work in conjunction with the suite of powers the [Magistrates’ Court] already possesses as a court of law’.^[197] The Magistrates’ Court highlighted that it has the ‘largest suburban and regional reach of any adjudicative body in Victoria’. Other advantages noted were that it has:

• equitable jurisdiction, allowing it to grant an injunction compelling a person to do or restrain from doing certain things and to provide a remedy where proceedings have not yet been commenced and damage has not yet occurred but is imminent

• a substantial video-hearing capacity

• the power to transfer a matter to a higher jurisdiction if needed

• power that may be exercised under the Civil Procedure Act 2010 (Vic) which provides for extensive case management of matters to ensure the ‘just, efficient, timely and cost effective resolution of the real issues in dispute’

• a suite of ADR mechanisms

7.108 The Court stated that it has successfully implemented other statutory schemes in its jurisdiction, such as the Fences Act 1968 (Vic).^[198]

7.109 Pointon Partners expressed the view that the Magistrates’ Court should have jurisdiction because it already determines fence disputes.^[199] It noted that where a dispute involves both fence and tree matters, then ‘the same court should be permitted to make orders in relation to both fences and trees’.^[200]

Community support for other options

7.110 A small number of people made suggestions for alternative decision-making forums.^[201] The City of Port Phillip and one community member supported the introduction of a land and environment court or a land court in Victoria, to exclusively decide land and environmental matters^[202] including disputes between neighbours about trees on private land

7.111 Pointon Partners and one community member suggested the introduction of a specialist tribunal for tree disputes:^[203]

constituted by one or more members with specialist knowledge of the key issues that are likely to arise (potentially lawyers, arborists, town planners, environmental consultants, etc). They might also include conciliators from DSCV, who would have significant experience in this area.^[204]

7.112 Pointon Partners further stated that where a party is unsatisfied with the outcome, they should be:

entitled to seek a review in the Magistrates’ Court, and that this right of appeal operate as a hearing ab initio.^[205]In this way, parties wishing to have complicated matters determined by the courts are not shut out from doing so. However, parties with simpler disputes (which are the overwhelming majority of disputes), would be entitled to have their dispute resolved in an informal, yet effective manner.^[206]

7.113 Dr Gregory Moore OAM suggested there may be a case for establishing an Office of the State Arborist which would have ‘powers similar to an ombudsman in tree-related matters on private and public land’.^[207] The State Arborist should have significant arboricultural understanding and could provide independent and impartial advice when a tree dispute occurs.^[208] The State Arborist could also ‘take part in mediation and court cases related to trees’.^[209] In Dr Moore’s view, this approach would be cost-effective, consisting of only a few positions, such as the State Arborist, a lawyer and support staff, and costs could be met from the fees paid by the parties to the dispute.^[210]

7.114 One person suggested that both VCAT and the Magistrates’ Court should have jurisdiction. This would allow an applicant to decide the jurisdiction in which to commence legal action.^[211]

7.115 Other responses proposed a role for local councils, through local laws or otherwise, to inspect trees and put tree owners on notice for trees causing interference. These community members suggested that tree owners who do not comply should be issued with a fine.^[212]

Community responses—important characteristics of a tree dispute forum

The expertise of decision makers

7.116 A large number of people suggested that one of the most important characteristics of a decision maker in tree disputes should be an expert in arboriculture or other relevant fields.^[213] Many endorsed the approach of the NSWLEC where commissioners trained in arboriculture determine matters.^[214]

7.117 Dr Gregory Moore OAM stated:

One of the advantages of the NSW Land and Environment Court in dealing with trees was that it appointed people with arboricultural expertise as commissioners to deal with cases involving trees … It would be worth considering following this model in Victoria.^[215]

7.118 Acting Commissioner David Galwey of the NSWLEC explained:

In my experience, appointing decision-makers with some arboricultural expertise to hear these matters allows discerning review of the situation and any specialist evidence. Experts’ evidence may occasionally be misleading, despite the experts’ obligation to a court. If the decision-maker has some expertise in the matter, this also allows many parties, especially in less complex matters, to come to court without having to pay for expert evidence. In NSW, the Commissioner hearing the matter has suitable expertise and can view the situation at the onsite hearing.^[216]

7.119 Nillumbik Shire Council noted that an arborist would be best placed to identify any risks posed by a tree.^[217] This approach was further supported by the City of Port Phillip.^[218] The City of Boroondara stated:

Cases should be heard by people with technical expertise in the field. Council considers that if a merits-based assessment is going to be made about a tree, then such decisions should be made by technical experts. This is the way in which the Planning and Environment List at the Victorian Civil and Administrative Tribunal (VCAT) operates. Council is also aware that some commissioners of the NSW Land and Environment Court have an environmental and/or arboricultural background.^[219]

7.120 One submission cautioned that the expertise and practices of arborists can vary greatly. Accordingly, they stated that skills and qualifications would be best assessed by a panel that included experienced arborists and in accordance with clear criteria.^[220]

On-site hearings or inspections

7.121 The community also felt strongly about the ability of the decision maker to conduct inspections or hear the matter on site.^[221]

7.122 The NSWLEC advised that on-site hearings are a crucial aspect of the NSW scheme.^[222] Acting Commissioner Galwey of the NSWLEC submited:

Having the hearing onsite is invaluable. Most matters in NSW are also completed onsite. There are often many factors to consider in a tree dispute, and the interaction between these can be important. It can be difficult to fully present this in a court.^[223]

7.123 QCAT members are supported by the expertise of Tribunal-appointed tree assessors. QCAT explained that a site inspection is a ‘critical’ part of the tree assessor’s assessment process.^[224]

7.124 The City of Boroondara, which also favoured inspections of the tree on site, gave the example of VCAT, which conducts site visits in planning disputes to determine subjective issues such as neighbourhood character. Boroondara stated that it believes these on-site visits have been helpful in this context. Boroondara explained that, in the context of a tree dispute, words and photos do not necessarily provide the complete story, and on-site visits can lead to more creative solutions.^[225]

Other important features

7.125 Other characteristics that community members considered important included:

• support for self-represented litigants^[226]

• conducting hearings in accessible locations so that parties do not have to travel great distances^[227]

• ensuring formal adjudication is not too costly.^[228]

The Commission’s conclusions—where should tree disputes be resolved?

VCAT to determine tree disputes under the new Act

7.126 The Magistrates’ Court has many characteristics that would make it suitable to administer the new Act. However, on balance, the Commission concludes that VCAT is better placed to administer the new Act and to resolve these community-based disputes. This conclusion aligns with community responses.

7.127 Tree disputes are generally small matters between two parties that involve factual interpretation, not complex legal analysis. The new Act is intended to help parties to reach a practical and low-cost solution to their dispute so that they can carry on living close to each other.

7.128 The Commission is impressed by the success of interstate schemes and observes that they do not demand significant resources. In these circumstances it is unnecessary to burden the courts with these cases.

7.129 Victoria does not have the benefit of a specialised Land and Environment Court as exists in New South Wales. Many of the practical features of the New South Wales and Queensland schemes could be adapted to work well in VCAT because VCAT has the most flexibility to enable this to occur.

7.130 Disputes would most appropriately be adjudicated in VCAT for the following reasons:

• Application costs can be kept to a minimum in VCAT proceedings and parties generally bear their own costs.

• The use of ADR is encouraged and VCAT has established ADR programs.

• VCAT has considerable flexibility in the way it can conduct hearings, is specifically designed for parties without legal representation and is less formal than a court.

• VCAT decision makers have existing relevant experience in hearing planning, environmental and small civil claims.

7.131 The Commission’s reasons are explained in the following section.

Affordability and fast decision making

7.132 It is less costly to pursue a matter in VCAT than in the Magistrates’ Court. VCAT has a fee relief program for people experiencing financial hardship.^[229] Fees may be postponed, reduced or completely waived.^[230]

7.133 Parties in VCAT are expected to bear their own costs.^[231] The Commission also acknowledges BCLS’ view that tree disputes should be a ‘no cost jurisdiction’ so that parties already experiencing financial hardship are not burdened by a cost order made against them.^[232]

7.134 Baw Baw Shire Council was in favour of awarding costs when matters are commenced vexatiously or without merit.^[233] VCAT may order costs in certain circumstances, such as where the matter was brought without merit, or to harass, annoy or distress someone, or is not well supported in fact or law.^[234]

7.135 Matters are likely to be resolved more quickly in VCAT, with many matters heard within four to eight weeks depending on their subject matter.^[235] VCAT aims to limit the duration of hearings where practical so as not to overburden parties.^[236]

Alternative dispute resolution and flexibility

7.136 Tree disputes in Queensland and Tasmania can often be resolved at mediation or negotiation prior to a hearing.^[237] QCAT’s resolution rates through ADR processes are high.^[238]

7.137 VCAT already offers extensive ADR services.^[239] Importantly, in 2017 VCAT and DSCV formally partnered to expand the provision of DSCV’s ADR services to VCAT.^[240] DSCV’s experience in managing tree disputes will be of great benefit to VCAT in determining tree disputes. The Commission considers that VCAT’s existing ADR mechanisms should be used for tree disputes that are initiated in the Tribunal.

7.138 VCAT allows for more responsive and flexible processes than the Magistrates’ Court. Unlike most Australian courts, VCAT can take an active role in determining the facts of a matter before the Tribunal, usually by asking questions.

Accessibility and regional presence

7.139 Court processes are more difficult to navigate than those of a tribunal. VCAT has been established to enable people to participate in matters without lawyers. It provides active case management and resources to help selfrepresented litigants.^[241] It also provides free interpreter services^[242] and volunteers from Court Network who offer assistance, information and emotional support.^[243]

7.140 VCAT is making further improvements flowing from recommendations from the Access to Justice Review. It has partnered with Justice Connect^[244] ‘to identify the unmet needs of people representing themselves and scope a proposed model for a self-help service at VCAT’.^[245] This partnership builds on VCAT’s previous Self Help Centre pilot program^[246]

7.141 VCAT is also changing the way it manages cases. VCAT is instigating a ‘system where all parties can start a matter online, have access to an electronic case file and follow its progress online’.^[247] In July 2017, VCAT began a four-year digital strategy ‘to deliver better online services’.^[248]

7.142 VCAT has less regional reach than the Magistrates’ Court. VCAT’s only standalone location is in Melbourne’s Central Business District.

7.143 Since the publication of the government’s response to the Fences Review in 2001 which expressed concern about VCAT’s regional reach, VCAT has expanded its regional presence.^[249] VCAT’s Strategic Plan 2018–22 states:

We want to expand access for people living in regional areas. We will enhance our regional and suburban coverage with venues conveniently located in areas where our services are needed most. We are focussed on providing welcoming, fit-for-purpose venues that respond to local needs within local communities.^[250]

7.144 The Tribunal now visits a regional area every day in Victoria, as determined by scheduled hearings and needs.^[251] VCAT sits at regional locations in Magistrates’ Courts, local council customer service centres and the City of Yarra’s Neighbourhood Justice Centre. During 2017–18, VCAT held hearings at Magistrates’ Court locations in Bairnsdale, Ballarat, Benalla, Bendigo, Castlemaine, Colac, Dromana, Echuca, Geelong, Hamilton, Horsham,

Kerang, Korumburra, Mildura, Moe, Morwell, Portland, Sale, Seymour, Shepparton, Swan Hill, Wangaratta, Warrnambool and Wodonga.^[252]

7.145 VCAT offers parties a range of technologies to provide flexible processes such as telephone conference and video conference facilities.^[253] Video conferencing ‘allows a party or multiple parties to participate in a hearing from metropolitan, regional, rural, interstate or international locations including public and private facilities’.^[254] These facilities may be of particular benefit to people who live in regional areas and may help to limit the need to appear in person at a final hearing or on-site inspection or for mediation.

7.146 The Tribunal has started delivering on some aspects of its strategic plan, which will make its services more efficient and accessible for people living in regional areas:

• VCAT has extended principal registrar delegations to qualified regional staff members to speed up processing or matters (for example, certifying Tribunal orders). This was implemented in VCAT’s Review and Regulation and Legal Practice lists and will be further expanded, especially into regional areas.^[255]

• The new Shepparton Law Courts opened in March 2018 and have been specifically designed for use by all Victorian courts and by VCAT. This court has many innovative features, including a ‘remote judge’ facility that uses technology to enable a VCAT member in Melbourne to conduct a hearing in Shepparton.^[256]

Existing experience

7.147 VCAT has power to review decisions made by responsible authorities under the Planning and Environment Act 1987 (Vic) and heritage laws pursuant to the Heritage Act 2017 (Vic) and other Acts. VCAT’s existing experience in these areas supports the conclusion that it should be given jurisdiction to hear tree disputes. It will also ensure that where there is overlap with an existing law, VCAT is able to triage the matter into the most appropriate list or utilise relevant member expertise (see Chapter 10).

Alternative options

7.148 The Commission acknowledges the suggestions for other decision-making forums from community members. One is for a Victorian Land and Environment Court^[257] or a new specialist Tribunal.^[258] While the proposal has merit, the appropriateness of establishing such a court is outside the scope of this inquiry. The use of an existing jurisdiction is preferable to the creation of a new court or a new specialist tribunal. VCAT already has established expertise and programs that align well with the requirements for tree dispute hearings.

7.149 For similar reasons the establishment of an Office of the State Arborist is not recommended.^[259] Although such an office would be able to provide independent expertise, the new Act envisages a scheme that uses expert decision makers or where decision makers are guided by provision of independent expert evidence from suitably qualified and experienced arborists.

7.150 With its existing expertise in civil disputes, VCAT would also be better equipped to decide certain matters, such as the extent and apportionment of liability. VCAT can provide accessible locations in regional areas, opportunities to engage in alternative dispute resolution, and appeal and enforcement mechanisms. This approach is consistent with New South Wales, Queensland and Tasmania, which have conferred jurisdiction under their respective Acts to existing courts and tribunals.

7.151 The proposals for a resolution and enforcement process through local government recognise local councils’ expertise in tree management, particularly in public areas and developments on private land.^[260] However, the primary objective of local councils is to achieve the best outcomes for the local community as a collective in areas such as health services, planning, economic development, waste and environmental management, and human and community services.^[261] Local councils do not manage matters between private citizens. Any system for resolving tree disputes that is administered by local councils would therefore be at odds with the role and objectives of local councils under the Local Government Act 1989 (Vic).

The nature of jurisdiction given to VCAT

7.152 The new Act should provide VCAT with original jurisdiction to determine matters that fall within its scope. Jurisdiction should not be conferred in tree dispute matters on either the Magistrates’ Court or the County Court.^[262] Original jurisdiction means that VCAT is the first instance decision maker under the new Act. It does not have exclusive jurisdiction. It is the intention that VCAT hear the majority of tree dispute matters. However, the Supreme Court will also have jurisdiction to hear tree disputes. This is because the Supreme Court has unlimited jurisdiction under the Victorian Constitution unless processes specified in the Constitution are followed to limit it in some way. ^[263] The Commission does not recommend that those processes should be implemented.

7.153 The practical reality is that most tree disputes will be initiated by a party in VCAT rather than the Supreme Court because VCAT is less costly and less formal. However, for reasons of clarity, it may be useful for the new Act to state that VCAT is ‘to be chiefly responsible’^[264] for determining tree disputes and to introduce a provision which gives the

Supreme Court power to stay a proceeding commenced there if it could be heard in VCAT and the Court is satisfied that it would be more appropriately dealt with by VCAT.^[265]

Recommendation

19 The Victorian Civil and Administrative Tribunal should have original but not exclusive jurisdiction to determine tree disputes under the new Act.

Diversity jurisdiction

7.154 Given that VCAT is recommended as the appropriate forum in which tree disputes should be adjudicated, it is necessary to note that diversity jurisdiction issues may arise.

7.155 In Chapter 5 it is recommended that legal action under the new Act should be able to be brought against the owner of land on which the tree is situated. A situation may arise where a tree owner owns a property in Victoria but resides in another state.

7.156 This raises complex constitutional issues because the adjudication of a matter between natural people^[266] who permanently reside in different states^[267] requires the exercise of federal ‘diversity jurisdiction’. Diversity jurisdiction can be understood as the authority to exercise judicial power to resolve disputes between residents of different states.^[268] Diversity jurisdiction can only be exercised by a court of the state.^[269] VCAT is a tribunal and not a court of the state.^[270]

7.157 The High Court of Australia held in Burns v Corbett^[271] that New South Wales’ equivalent tribunal, the New South Wales Civil and Administrative Tribunal (NCAT), did not have authority to exercise diversity jurisdiction on an antidiscrimination complaint because it was a tribunal and not a court of the state.^[272]

7.158 Legal commentators have stated that this ruling also extends to VCAT.^[273] However, VCAT notes on its website that the High Court’s decision ‘is specific to NCAT proceedings … whether VCAT’s jurisdiction is affected is yet to be determined’.^[274] VCAT further states that if its authority were to be challenged in a case with similar grounds as Burns v Corbett^[275] then it can ‘hear from the parties on whether to refer a question of law to the Supreme Court of Victoria, and give notice to the State of Victoria to consider making submissions or to also be heard’.^[276]

7.159 The issue of diversity jurisdiction and VCAT is beyond the scope of this inquiry. However, the Commission acknowledges that some tree disputes under the new Act may be affected. Therefore, any future government consideration of diversity jurisdiction issues in VCAT should extend to consideration of the scenarios raised above and the implementation of the new Act.

Recommendation

20 Any Government consideration of diversity jurisdiction issues that apply to the Victorian Civil and Administrative Tribunal should also include consideration of the new Act.

VCAT process for tree disputes

Tribunal-referred alternative dispute resolution

7.160 It is intended that the new Act will provide an improved framework for the resolution of tree disputes generally, including through mediation that is either community-based or referred by VCAT.

7.161 Tribunal-referred mediation should be used wherever appropriate to resolve tree disputes under the new Act. The Commission is encouraged by the successful resolution of tree disputes through tribunal-ordered ADR in Queensland and Tasmania. The Commission was informed that the formality of the tribunal environment, combined with information about what orders can and cannot be made and the factors the tribunal will consider in reaching its decision, encourage parties to negotiate informally.^[277] Similarly, RMPAT explained that the majority of applications were withdrawn because parties had engaged in negotiations between themselves or had participated in formal mediation that had led to resolution of the dispute. Formal orders were not sought in these matters.^[278]

7.162 The usefulness of ADR generally will be further enhanced by community information which states that VCAT has the power to refer parties to mediation. See Chapter 12.

7.163 The fast track mediation hearing program should be expanded to tree disputes. This program is currently only available for disputes concerning goods and services up to $10,000.^[279] It is administered by DSCV and benefits from DSCV’s vast expertise in handling and mediating tree disputes. The program is currently expanding in regional areas.^[280]

7.164 The Commission acknowledges VCAT’s comments that fast-track mediation may not be suitable for all cases, particularly those that are more complex and involve multiple witnesses, because the matter may not be able to be referred to a hearing on the same day.^[281] The suitability of particular cases for the fast track program should be determined by VCAT but the Commission considers it may be of benefit in tree dispute matters.

7.165 For those matters that are referred to mediation by the Tribunal, the Commission favours the approach in the Tasmanian Act, which outlines a range of factors for the Tribunal to consider in determining whether this is appropriate (for example, whether there are threats of violence).^[282]

Recommendation

21 The Victorian Civil and Administrative Tribunal should consider extending the Fast Track Mediation and Hearing Program administered by the Dispute Settlement Centre of Victoria in VCAT to suitable tree disputes.

The expertise of decision makers

7.166 The Commission agrees with community responses about the advantages of having tree disputes heard and determined by expert decision makers.

7.167 VCAT matters are heard by members with expertise in fields relevant to the subject matter of VCAT’s Lists. In contrast decision makers in courts are judges and magistrates trained in the law.

7.168 One of the advantages of having matters heard by expert decision makers is that the decision maker can rely on their own expertise to evaluate a dispute and the evidence put forward by the parties, which can be important in cases where expert witnesses have adversarial bias. Parties who cannot access or afford an expert can also rely on the expertise of the decision maker. The use of expert decision makers also potentially allows for more creative and practical solutions to problems, as an expert decision maker is able to draw on their own practical experience to assess the workability of a solution.

7.169 Government should consider appointing members to VCAT with significant arboriculture experience to hear tree disputes, as occurs in New South Wales.^[283] Alternatively, VCAT should consider appointing Tribunal appointed independent tree assessors to provide expert assistance to the tribunal, as occurs in Queensland. An expert decision maker or tree assessor should hold a minimum qualification equivalent to an Australian Qualification Framework (AQF) Level 5 and at least two years’ experience. Arborists qualified at this level are specifically trained in the assessment and management of trees.^[284] Expert assessors should conduct on-site inspections, as occurs in Queensland.

7.170 The use of tree assessors may also limit expert costs for the parties in these matters. As noted earlier, parties will generally share the cost of a tree assessor, up to a total of $1000.^[285]

7.171 Queensland’s tree assessor model may also be of use to VCAT in regional areas. There is a large pool of tree assessors in Queensland who travel to inspect trees across Queensland.^[286]

7.172 VCAT has suggested that tree disputes would best fit in the Civil Division.^[287] The Commission observes that tree disputes between neighbours are unique and sit at the intersection of civil disputes between neighbours and the broader environmental context. Community feedback also stressed the importance of recognising the public and environmental benefit of trees. Additionally, tree disputes are likely to involve complex matters relating to planning laws and regulation, for which this expertise would be highly valuable in a decision maker.

Recommendation

22 Government should consider appointing members with arboricultural expertise to the Victorian Civil and Administrative Tribunal to hear tree dispute matters. Alternatively, in order to obtain expert opinions on arboriculture matters and to obtain the complete context of the dispute, the Victorian Civil and Administrative Tribunal should consider adopting the Queensland Civil and Administrative Tribunal approach of using independent tree assessors throughout Victoria.

On-site hearings or inspections

7.173 The Commission agrees with community responses about the importance of inspecting a tree in its physical context in order to make a thorough assessment of both the arboricultural problem and the broader context of the dispute. An on-site hearing would be easier to implement and more appropriate in VCAT than in the Magistrates’ Court. VCAT informed the Commission that on-site inspections often occur in the Planning and Environment List.^[288]

7.174 A member of VCAT notes the following about the importance of on-site inspections:

When I conduct inspections of properties after a hearing it is surprising how often the person letting me onto the property says words to the effect of ‘thank you, you are the first person to come and have a look’. The benefit of a site inspection cannot and should not be underestimated. It has been said to me in other hearings that Council officers do not have time to undertake inspections. Expert witnesses sometimes say they have inspected the site but in reality it is a streetscape inspection only and not an inspection of the whole of the site. Often these approaches are just not good enough … in a case such as this one, where there are narrow properties; neighbours saying their amenity is being unreasonably impacted; and the rear/back gardens of the properties are not clearly visible from the street boundaries, the veracity of the opinions and decision making becomes questionable in the absence of an inspection.^[289]

7.175 The Commission is persuaded by the advice of the NSWLEC and QCAT about the importance of inspecting a tree, either via on-site hearings or inspections by tree assessors, and how this feature is critical to the success of these interstate schemes. The NSWLEC noted that an on-site hearing provides the decision maker with the ‘complete picture’ of the tree and the dispute and enables the most efficient and practical resolution. The Court stated that the hearing process would not be as successful if decisions were made on the basis of descriptions, reports, photographs and drawings alone. The Court noted that nearly all tree disputes can be heard and determined entirely on site.^[290] The Commission has also been guided by responses from arborists and local councils which suggested that inspection of a tree in its physical context is often necessary for a professional arboricultural assessment.

Recommendation

23 The Victorian Civil and Administrative Tribunal should conduct on-site final hearings or on-site inspections for all tree disputes.

1. Although proceedings in a tribunal are considered less formal than court proceedings: Department of Justice and Community Safety (Vic), Courts and Tribunals (Web Page, 9 August 2018) <https://www.justice.vic.gov.au/justice-system/courts-and-tribunals>; see also Victoria Legal Aid, Victoria’s Courts and Tribunals (Web Page, 31 December 2018) <https://www.legalaid.vic.gov.au/find-legal-answers/courts-and-legal-system/victorias-courts-and-tribunals>.

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2. The Magistrates’ Court has jurisdiction to hear civil matters where claims for works or damages are no more than $100,000: Magistrates’ Court Act 1989 (Vic) ss 3(1) (‘jurisdictional limit’); s 100(1)(a)–(b).

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3. The County Court has unlimited jurisdiction to hear all applications, claims, disputes and civil proceedings regardless of the type of relief sought or the subject matter that are not by this or any other Act excluded from its jurisdiction: County Court Act 1958 (Vic) s 37(1)(a); see also County Court of Victoria, Fees and Costs for Civil Proceedings (Web Page, 2019) <https://www.countycourt.vic.gov.au/forms-and-fees/fees-and-costs-civil-proceedings>.

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4. Claims for $200,000 and above in civil proceedings are heard in the Supreme Court of Victoria: Victoria Legal Aid, Victoria’s Courts and Tribunals (Web Page, 13 December 2018) <https://www.legalaid.vic.gov.au/find-legal-answers/courts-and-legal-system/victorias-courts-and-tribunals>; see, eg, the Major Torts List which is ‘designed to facilitate and expedite the passage of large or otherwise significant tortious claims to trial’: Supreme Court of Victoria Common Law Division, Practice Note SC CL No 4: Major Torts List, October 2018, 1 <https://www.supremecourt.vic.gov.au/law-and-practice/practice-notes>; see also Supreme Court of Victoria, How the Court Works (Web Page, 2019) <https://www.supremecourt.vic.gov.au/about-the-court/how-the-court-works>.

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5. Magistrates’ Court Act 1989 (Vic) s 3 (definition of ‘jurisdictional limit’).

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6. The jurisdictional limit for claims for equitable relief is also $100,000: see Magistrates’ Court Act 1989 (Vic) ss 3, 100(1)(b). Section 31 of the Supreme Court Act 1986 gives the Magistrates’ Court power (subject to its jurisdictional limit) to grant such general equitable remedies as the Supreme Court has power to grant in like cases. The most common form of equitable relief sought is injunctive relief: Judicial College of Victoria, Magistrates Court Bench Book (at 31 January 2012) 1.6 ‘Equitable jurisdiction’.

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7. Current values are set out in the Magistrates’ Court of Victoria, Fees and Costs Ready Reckoner (effective 1 January 2019).

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8. Ibid.

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9. Ibid.

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10. Magistrates’ Court Act 1989 (Vic) s 22(2).

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11. For the purpose of the Magistrates’ Court Act 1989 (Vic), an arbitration is a simplified procedure of hearing a claim for monetary relief of $10,000 or less: s 102(1).

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12. Unless the Court determines otherwise or approves the parties’ application to have the matter heard without arbitration: Magistrates’ Court Act 1989 (Vic) ss 102(1)–(3). On its website, the Magistrates’ Court states that ‘Defended civil matters for car accidents and claims less than $1000 are referred straight to arbitration’: Magistrates’ Court of Victoria, Resolving A Dispute (Web Page, 13 December 2018) <https://www.mcv.vic.gov.au/civil-matters/resolving-dispute>.

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13. Magistrates’ Court Act 1989 (Vic) s 103(2).

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14. Ibid s 104(3).

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15. Submission 16 (Magistrates’ Court of Victoria). See also Magistrates’ Court Act 1989 (Vic) s 107; Magistrates’ Court General Civil Procedure Rules 2010 (Vic) Ord 50; Magistrates’ Court of Victoria, Mediation (Web Page, 14 January 2019) <https://www.mcv.vic.gov.au/civil-matters/resolving-dispute/mediation>.

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16. Magistrates’ Court Act 1989 (Vic) s 107; see also Magistrates’ Court of Victoria, Pre-Hearing Conferences (Web Page, 13 December 2018) <https://www.mcv.vic.gov.au/civil-matters/resolving-dispute/pre-hearing-conferences>.

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17. Magistrates’ Court Act 1989 (Vic) ss 107, 107(2)(a); Magistrates’ Court of Victoria, Pre-Hearing Conferences (Web Page, 13 December 2018) <https://www.mcv.vic.gov.au/civil-matters/resolving-dispute/pre-hearing-conferences>.

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18. Magistrates’ Court Act 1989 (Vic) s 108(1).

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19. An external mediator can be selected from the Magistrates’ Court Single List of External Mediators: Magistrates’ Court of Victoria, Mediation (Web Page, 14 January 2019) <https://www.magistratescourt.vic.gov.au/jurisdictions/civil/procedural-information/mediation-process-2011-single-list-external-mediators>.

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20. Magistrates’ Court of Victoria, Fees and Costs Ready Reckoner (effective 1 January 2019).

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21. ‘Except at the Melbourne Magistrates’ Court, defended civil claims in the Magistrates’ Court of less than $40,000 value are referred to mediation conducted by the Dispute Settlement Centre of Victoria.’: Magistrates’ Court of Victoria, Mediation (Web Page, 14 January 2019) <https://www.mcv.vic.gov.au/civil-matters/resolving-dispute/mediation>.

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22. Dispute Settlement Centre of Victoria, Civil Claims Program (Web Page, 22 May 2019) <https://www.disputes.vic.gov.au/about-us/civil-claims-program>.

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23. Ibid.

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24. Dispute Settlement Centre of Victoria, DSCV FAQS (Web Page, 3 June 2019) <https://www.disputes.vic.gov.au/information-and-advice/dscv-faqs>.

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25. Early neutral evaluation is ‘a process for parties to try and resolve a dispute by presenting their arguments to a magistrate. A magistrate will make an evaluation and indicate a possible court outcome’. Any dispute may be referred to early neutral evaluation but mainly disputes where the amount of the claim is $50 000 or more or issues raise complex legal arguments or factual disputes: Magistrates’ Court of Victoria, Early Neutral Evaluation (Web Page, 3 December 2018) <https://www.mcv.vic.gov.au/civil-matters/resolving-dispute/early-neutral-evaluation>.

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26. Ibid.

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27. Early neutral evaluation does not prejudice parties’ chances in any future hearing, as the magistrate who presides over the process will not determine the case at hearing: Magistrates’ Court of Victoria, Early Neutral Evaluation (Web Page, 3 December 2018) <https://www.mcv.vic.gov.au/civil-matters/resolving-dispute/early-neutral-evaluation>.

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28. Magistrates’ Court of Victoria, Information Guide: Fencing Disputes (9 January 2019) <https://www.mcv.vic.gov.au/news-and-resources/publications>.

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29. Fences Act 1968 (Vic) s 30C; see also Department of Justice and Community Safety (Vic), Fencing Law in Victoria (Web Page, 31 January 2019) <https://www.justice.vic.gov.au/justice-system/laws-and-regulation/civil-law/fencing-law-in-victoria>.

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30. Submission 16 (Magistrates’ Court of Victoria).

    ↑

31. Magistrates’ Court of Victoria, The Court System (Web Page, 4 December 2018) <https://www.mcv.vic.gov.au/court-system>.

    ↑

32. See, eg, Magistrates’ Court of Victoria, Annual Report 2015–2016 (2016) 47–71.

    ↑

33. Magistrates’ Court Act 1989 (Vic) ss 4M, 4O(3)(d); Magistrates’ Court (Miscellaneous Civil Proceedings) Rules 2010 (Vic) r 11.02(a).

    ↑

34. Department of Justice and Regulation (Vic), Access to Justice Review Background Paper—Self-Represented Litigants (Report, 2015) 2.

    ↑

35. Magistrates’ Court of Victoria, Annual Report 2015–2016 (2016) 26.

    ↑

36. Victorian Civil and Administrative Tribunal, VCAT Annual Report 2017–2018 (Report, 2018) 2.

    ↑

37. Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 1, 8.

    ↑

38. Department of Justice and Regulation (Vic), Access to Justice Review Report and Recommendations (2016) vol 1, 245.

    ↑

39. VCAT has original jurisdiction and review jurisdiction. See Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 3 (‘enabling enactment’), 42–44, 67, 69.

    ↑

40. See, eg, Victorian Civil and Administrative Tribunal, VCAT Annual Report 2017–2018 (Report, 2018) 9.

    ↑

41. See, eg, Ibid 11. In other divisions such as the Residential Tenancies Division and Human Rights Division, claims are more likely to be non-monetary, and deal with issues such as anti-discrimination, tenancy or guardianship: Department of Justice and Regulation (Vic), Access to Justice Review Report and Recommendations (2016) vol 1, 245. These lists are not exhaustive.

    ↑

42. Generally considered to be claims not exceeding $10,000. ‘This is consistent with the definition of a ‘small claim’ in part 2AB of schedule 1 of the Victorian Civil and Administrative Act 1998 (Vic) which applies to proceedings under the Australian Consumer Law and Fair Trading Act 2012 (Vic) and Part 5 of the Magistrates’ Court Act 1989 (Vic)’: Department of Justice and Regulation (Vic), Access to Justice Review Background Paper —VCAT Small Civil Claims (Report) 5 <https://engage.vic.gov.au/accesstojustice>.

    ↑

43. Department of Justice and Regulation (Vic), Access to Justice Review Background Paper—VCAT Small Civil Claims (Report) 3

    <https://engage.vic.gov.au/accesstojustice>.

    ↑

44. Fees are generally applied on a sliding scale depending on the amount in dispute. Victorian Civil and Administrative Tribunal, Owners Corporations Fees (Web Page, 1 July 2018) <https://www.vcat.vic.gov.au/resources/owners-corporations-fees>; Victorian Civil and Administrative Tribunal, Renting a Home Fees (Web Page, 1 July 2018) <https://www.vcat.vic.gov.au/resources/renting-a-home-fees>; Victorian Civil and Administrative Tribunal, Goods and Services Fees (Web Page, 1 July 2018) <https://www.vcat.vic.gov.au/resources/goods-and-services-fees>.

    ↑

45. Victorian Civil and Administrative Tribunal, Owners Corporations Fees (Web Page, 1 July 2018) <https://www.vcat.vic.gov.au/resources/owners-corporations-fees>; Victorian Civil and Administrative Tribunal, Renting a Home Fees (Web Page, 1 July 2018) <https://www.vcat.vic.gov.au/resources/renting-a-home-fees>; Victorian Civil and Administrative Tribunal, Goods and Services Fees (Web Page, 1 July 2018) <https://www.vcat.vic.gov.au/resources/goods-and-services-fees>.

    ↑

46. Victorian Civil and Administrative Tribunal, Fee Categories (Web Page, 9 May 2017) <https://www.vcat.vic.gov.au/resources/fee-categories>.

    ↑

47. Victorian Civil and Administrative Tribunal, Fee Relief (Web Page) <https://www.vcat.vic.gov.au/steps-to-resolve-your-case/

    fees-at-vcat/fee-relief>.

    ↑

48. Ibid.

    ↑

49. Ibid.

    ↑

50. See, eg, Victorian Civil and Administrative Tribunal, Annual Report 2016–17 (Report, 2017) 2, 29.

    ↑

51. Department of Justice and Regulation (Vic), Access to Justice Review Report and Recommendations (2016) vol 1, 284.

    ↑

52. ‘Review jurisdiction’ means VCAT has the power to review decisions made by an original decision maker such as a government agency, a statutory authority or other Administrative decision maker: Victorian Civil and Administrative Tribunal, Application for Review of a Decision (Web Page) <https://www.vcat.vic.gov.au/get-started/review-and-regulation/application-for-review-of-a-decision>.

    ↑

53. See, eg, Aboriginal Heritage Act 2006 (Vic) pt 8; Heritage Act 2017 (Vic) ss 109–12; Planning and Environment Act 1987 (Vic) ss 77–82B.

    ↑

54. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 10(1).

    ↑

55. Ibid s 11(1)–(2); see also Victorian Civil and Administrative Tribunal, List Of VCAT Members (Web Page, 1 February 2019)

    <https://www.vcat.vic.gov.au/about-us/list-of-vcat-members>.

    ↑

56. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 30(2); Victorian Civil and Administrative Tribunal, Our Leadership (Web Page) <https://www.vcat.vic.gov.au/about-us/our-leadership>.

    ↑

57. Victorian Civil and Administrative Tribunal, Annual Report 2017–18 (Report, 2018) 10; see also Victorian Civil and Administrative Tribunal, Who We Are (Web Page) <www.vcat.vic.gov.au/about-us/who-we-are>.

    ↑

58. Department of Justice and Regulation (Vic), Access to Justice Review Background Paper—VCAT Small Civil Claims (Report) 4

    <https://engage.vic.gov.au/accesstojustice>.

    ↑

59. An order of a court or tribunal stipulating that legal costs be paid by one party to another. Also known as ‘party–party’ costs. These costs are ‘either the amounts lawyers charge their clients for providing legal services or amounts recoverable by the successful party for the work done by their lawyers in legal proceedings. Legal costs include charges for the lawyers’ services and disbursements, including barristers’ fees, doctors’ reports and the reasonable costs of court recordings and transcripts.’ Parties can also agree that one party will pay the other parties’ costs to settle their dispute: see Supreme Court of Victoria, Costs Court (Web Page, 2019) <https://www.supremecourt.vic.gov.au/law-and-practice/areas-of-the-court/costs-court>.

    ↑

60. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 109(3).

    ↑

61. Magistrates’ Court Act 1989 (Vic) s 131.

    ↑

62. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 109(1).

    ↑

63. Victorian Civil and Administrative Tribunal, About VCAT (Web Page) <www.vcat.vic.gov.au/about-vcat>; Victorian Civil and Administrative Tribunal, Annual Report 2017–18 (Report, 2018) 7.

    ↑

64. Victorian Civil and Administrative Tribunal, Annual Report 2017–18 (Report, 2018) 87; see also Victorian Civil and Administrative Tribunal, Contact Us (Web Page) <www.vcat.vic.gov.au/contact-us>.

    ↑

65. Victorian Civil and Administrative Tribunal, Annual Report 2017–18 (Report, 2018) 87; see also Neighbourhood Justice Centre, What Happens at VCAT (Web Pag, 22 June 2018) <https://www.neighbourhoodjustice.vic.gov.au/attend-court/going-to-vcat/what-happens-at-vcat>.

    ↑

66. Victorian Civil and Administrative Tribunal, Annual Report 2017–18 (Report, 2018) 10; Victorian Civil and Administrative Tribunal, Submission No 34 to Victorian Government, Access to Justice Review (2016) 1.

    ↑

67. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98(1)(a). Natural justice means ‘the right to be given a fair hearing and the opportunity to present one’s case, the right to have a decision made by an unbiased … decision maker, and the right to have that decision based on logically probative evidence per Salemi v MacKellar (No 2) (1977) 137 CLR 396’: Peter Butt (ed), Butterworths Concise Australian Legal Dictionary (LexisNexis/Butterworths, 3rd ed, 2004).

    ↑

68. ‘… except to the extent that it adopts those rules …’: Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98(1)(b). The body of law regulating the ascertainment of facts in litigation. Evidence law operated to apply rules of proof as a constraint upon the adduction of facts in civil and criminal trials: Peter Butt (ed), Butterworths’ Concise Australian Legal Dictionary (LexisNexis/Butterworths, 3rd ed, 2004) ‘evidence’.

    ↑

69. ‘… except to the extent that it adopts those rules, practices or procedures’: Victorian Civil and Administrative Tribunal Act 1998 (Vic)

    s 98(1)(b).

    ↑

70. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98(1)(d).

    ↑

71. Ibid (Vic) s 62; see also Victorian Civil and Administrative Tribunal, Annual Report 2017–18 (Report, 2018) 10; Department of Justice and Regulation (Vic), Access to Justice Review Background Paper—Self-Represented Litigants (Report) 4 <https://engage.vic.gov.au/accesstojustice>.

    ↑

72. Victorian Civil and Administrative Tribunal (VCAT), VCAT Practice Note PNVCAT3: Fair Hearing Obligation, 1 January 2013, [13]–[14].

    ↑

73. Victorian Civil and Administrative Tribunal, YouTube (January 2019) <https://www.youtube.com/channel/UCc73nMfBWIiAc0w_Gb4vAEw>

    ↑

74. Department of Justice and Regulation (Vic), Access to Justice Review Background Paper—Self-Represented Litigants (Report) 5

    <https://engage.vic.gov.au/accesstojustice>.

    ↑

75. Victorian Civil and Administrative Tribunal, Other Languages (Web Page) <https://www.vcat.vic.gov.au/other-languages>.

    ↑

76. Victorian Civil and Administrative Tribunal, Practice Note— PNVCAT3 Fair Hearing Obligation, 1 January 2013 [10].

    ↑

77. Victorian Civil and Administrative Tribunal, Annual Report 2017–18 (Report, 2018) 18.

    ↑

78. Victorian Civil and Administrative Tribunal, VCAT Accessibility Action Plan 2018–2022 (Report, November 2017) 3; see also Victorian Civil and Administrative Tribunal, Annual Report 2017–18 (Report, 2018) 22.

    ↑

79. See Victorian Civil and Administrative Tribunal, Practice Note PNVCAT4: Alternative Dispute Resolution (ADR), 19 December 2018.

    ↑

80. Department of Justice and Regulation (Vic), Access to Justice Review Report and Recommendations (2016) vol 1, 204.

    ↑

81. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 83; See Victorian Civil and Administrative Tribunal, Practice Note PNVCAT4: Alternative Dispute Resolution (ADR), 19 December 2018, 5. See also Justice Legislation Amendment (Access to Justice) Act 2018 (Vic) s 64 and 65.

    ↑

82. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 83(1).

    ↑

83. Victorian Civil and Administrative Tribunal, Practice Note PNVCAT4: Alternative Dispute Resolution (ADR), 19 December 2018, 4–5; see also Victorian Civil and Administrative Tribunal, Compulsory Conferences (Web Page) <www.vcat.vic.gov.au/steps-to-resolve-your-case/resolve-a-case-by-agreement/compulsory-conferences>.

    ↑

84. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 83; Victorian Civil and Administrative Tribunal, Practice Note PNVCAT4: Alternative Dispute Resolution (ADR), 19 December 2018, 6. See also Victorian Civil and Administrative Tribunal, Compulsory Conferences (Web Page) <www.vcat.vic.gov.au/steps-to-resolve-your-case/resolve-a-case-by-agreement/compulsory-conferences>.

    ↑

85. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 85.

    ↑

86. Ibid (Vic) s 88(1).

    ↑

87. Ibid s 92; Victorian Civil and Administrative Tribunal, Practice Note PNVCAT4: Alternative Dispute Resolution (ADR), 19 December 2018, 3.

    ↑

88. Department of Justice and Regulation (Vic), Access to Justice Review Report and Recommendations (2016) vol 1, 204–5; Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 88; Victorian Civil and Administrative Tribunal, Mediations (Web Page) <https://www.vcat.vic.gov.au/steps-to-resolve-your-case/resolve-a-case-by-agreement/mediations>.

    ↑

89. Victorian Civil and Administrative Tribunal, Fast Track Mediation and Hearing (Web Page) <https://www.vcat.vic.gov.au/resources/fast-track-mediation-and-hearing>.

    ↑

90. The FTMH program is a staged program, starting in Geelong and Warrnambool: Victorian Civil and Administrative Tribunal, VCAT Annual Report 2017–18 (Report, 2018) 25.

    ↑

91. Victorian Civil and Administrative Tribunal, VCAT Annual Report 2017–-18 (Report, 2018) 25. Further regional expansion is planned.

    ↑

92. Victorian Civil and Administrative Tribunal, VCAT Annual Report 2017–18 (Report, 2018) 25.

    ↑

93. Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal); Victorian Civil and Administrative Tribunal, VCAT Annual Report 2017–18 (Report, 2018) 25.

    ↑

94. Victorian Civil and Administrative Tribunal, Practice Direction PNVCAT1: Common Procedures, 14 December 2018, cl 34. A consent order is a legal document issued by VCAT to confirm an agreement between parties: Victorian Civil and Administrative Tribunal, Consent Orders (Web Page) <https://www.vcat.vic.gov.au/steps-to-resolve-your-case/resolve-a-case-by-agreement/consent-orders>.

    ↑

95. Consultation 7 (Dispute Settlement Centre of Victoria).

    ↑

96. Ibid.

    ↑

97. A bipartisan committee of the Victorian Parliament which can inquire into and report on legal, constitutional or parliamentary reform, the administration of justice, and law reform. The Parliamentary Law Reform Committee is a former Joint Investigatory Committee of the Parliament of Victoria. On 1 August 2013 it merged with the Drugs and Crime Prevention Committee and became the Law Reform, Drugs and Crime Prevention Committee: see Parliament of Victoria, ‘Law Reform’, Committees (Web Page) <https://www.parliament.vic.gov.au/57th-parliament/lawreform>.

    ↑

98. Law Reform Committee, Parliament of Victoria, Review of the Fences Act 1968 (Report, 1998).

    ↑

99. Ibid 2.32.

    ↑

100. Victorian Government, Government Response to the Victorian Law Reform Committee Review of the Fences Act 1968 (Report, 2001) 1–2.

     ↑

101. Land and Environment Court Act 1979 (NSW) s 5(1); see also Land and Environment Court of New South Wales, About Us (Web Page, 29 April 2015) <http://www.lec.justice.nsw.gov.au/Pages/about/about.aspx>.

     ↑

102. Land and Environment Court Act 1979 (NSW) s 5(1).

     ↑

103. Ibid ss 7,12.

     ↑

104. Land and Environment Court of New South Wales, Practice Note No 2: Class 2 Tree Disputes, 1 December 2018, [42].

     ↑

105. Consultation 11 (Land and Environment Court of New South Wales).

     ↑

106. The Court will set out tree dispute principles, from time to time, when appropriate cases arise, to provide an understanding of how the Court has approached a particular aspect of such disputes. While tree dispute principles are stated in general terms, they may be applied to particular cases to promote consistency. Tree dispute principles are not legally binding’. For a list of the Court’s Tree Dispute Principles, see Land and Environment Court of New South Wales, Tree Dispute Principles (Web Page, 25 September 2017) <http://www.lec.justice.nsw.gov.au/Pages/practice_procedure/principles/tree_principles.aspx>.

     ↑

107. Consultation 11 (Land and Environment Court of New South Wales).

     ↑

108. Land and Environment Court of New South Wales, Practice Note Class 2: Tree Disputes, 1 December 2018, [14].

     ↑

109. Ibid [16].

     ↑

110. Land and Environment Court of New South Wales, Annual Review (Report, 2017) 18.

     ↑

111. Consultation 11 (Land and Environment Court of New South Wales).

     ↑

112. This occurred under section 26 of the Civil Procedure Act 2005 (NSW). This matter was resolved in mediation: Consultation 11 (Land and Environment Court of New South Wales).

     ↑

113. Consultation 11 (Land and Environment Court of New South Wales).

     ↑

114. Only matters involving large sums of money or complex legal or structural engineering issues may be too complex to be determined on site, although an on-site hearing would be conducted before the matter is decided in Court: Consultation 11 (Land and Environment Court of New South Wales).

     ↑

115. Consultation 11 (Land and Environment Court of New South Wales).

     ↑

116. Ibid.

     ↑

117. Consultation 11 (Land and Environment Court of New South Wales).

     ↑

118. Ibid.

     ↑

119. Ibid.

     ↑

120. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 11. For a full list of matter types, see Queensland Civil and Administrative Tribunal, Matter Types (Web Page, 29 November 2017) <www.qcat.qld.gov.au/matter-types>.

     ↑

121. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 164.

     ↑

122. Within the meaning of section 77(iii) of the Australian Constitution: Owen v Menzies (2012) 293 ALR 571; see also Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 164.

     ↑

123. Pamela O’Connor, Tribunal Independence (The Australasian Institute of Judicial Administration Incorporated, 2013) 3 n 19.

     ↑

124. [2016] QCATA 120 [30].

     ↑

125. Amos v Fett [2016] QCATA 120 [30].

     ↑

126. [2018] QCATA 38.

     ↑

127. Queensland Building & Construction Commission v Whalley [2018] QCATA 38 [37].

     ↑

128. Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 146, 147. See also Queensland Civil and Administrative Tribunal, Decision About a Minor Civil Dispute (Web Page, 15 February 2019) <https://www.qcat.qld.gov.au/qcat-decisions/appealing-a-qcat-decision/decision-about-a-minor-civil-dispute>. Whereas Cf appeals of VCAT decisions, which are limited to questions of law and determined by a court with leave. In order to appeal on a question of law, a person needs to seek leave of the Supreme Court of Victoria Court, Court of Appeal if the decision was made by a judge at VCAT, or the Trial Division of the Supreme Court if the decision was made by a VCAT member: Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(1).

     ↑

129. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 175(1).

     ↑

130. Consultation 15 (Queensland Civil and Administrative Tribunal); Queensland Civil and Administrative Tribunal, Organisational Structure (Web Page, 24 September 2018) <https://www.qcat.qld.gov.au/about-qcat/organisational-structure>. The president decides which member(s) will hear a matter, with no more than three members hearing a matter.

     ↑

131. Consultation 15 (Queensland Civil and Administrative Tribunal).

     ↑

132. Consultation 15 (Queensland Civil and Administrative Tribunal).

     ↑

133. Queensland Civil and Administrative Tribunal, Practice Direction No 7 of 2013: Arrangements for Applications for Orders to Resolve Other Issues about Trees, 3 April 2014 [4]–[5].

     ↑

134. Ibid [6].

     ↑

135. Ibid [7].

     ↑

136. Consultation 15 (Queensland Civil and Administrative Tribunal).

     ↑

137. See generally Ibid [5].

     ↑

138. Consultation 15 (Queensland Civil and Administrative Tribunal).

     ↑

139. Ibid.

     ↑

140. Ibid.

     ↑

141. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 67; Consultation 15 (Queensland Civil and Administrative Tribunal). QCAT explained that members prefer to conduct compulsory conferences as a means of meeting the obligations set out in sections 28–29 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Section 28 refers to ‘Conducting proceedings generally’ and section 29 refers to ‘Ensuring proper understanding and regard’.

     ↑

142. Consultation 15 (Queensland Civil and Administrative Tribunal).

     ↑

143. See Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 70(2), 74; Consultation 15 (Queensland Civil and Administrative Tribunal).

     ↑

144. See Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 69; Consultation 15 (Queensland Civil and Administrative Tribunal).

     ↑

145. See generally, Queensland Civil and Administrative Tribunal Act 2009 (Qld) div 3.

     ↑

146. Consultation 15 (Queensland Civil and Administrative Tribunal).

     ↑

147. Queensland Civil and Administrative Tribunal, Mediation (Web Page, 12 April 2017) <https://www.qcat.qld.gov.au/going-to-the-tribunal/types-of-proceedings/mediation>.

     ↑

148. Queensland Civil and Administrative Tribunal, QCAT Practice Direction No 6 of 2010: Compulsory Conferences and Mediation,

     20 April 2010.

     ↑

149. Consultation 15 (Queensland Civil and Administrative Tribunal).

     ↑

150. Ibid.

     ↑

151. Disputes over trees that obstruct a view are outside the scope of this inquiry’s terms of reference.

     ↑

152. Consultation 15 (Queensland Civil and Administrative Tribunal).

     ↑

153. See, eg, Queensland Civil and Administrative Tribunal, Attending by Phone (Web Page, 12 March 2019) <https://www.qcat.qld.gov.au/going-to-the-tribunal/attending-by-phone>.

     ↑

154. Consultation 15 (Queensland Civil and Administrative Tribunal).

     ↑

155. Ibid.

     ↑

156. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 59(1); Consultation 15 (Queensland Civil and Administrative Tribunal).

     ↑

157. Resource Management and Planning Appeal Tribunal, Resource Management and Planning Appeal Tribunal (Web Page, 2 January 2019) <www.rmpat.tas.gov.au/>.

     ↑

158. Resource Management and Planning Appeal Tribunal Act 1993 (Tas) s 6(a).

     ↑

159. Resource Management and Planning Appeal Tribunal, Practice Direction No 7: Hearing Process, 19 November 2018 [7.2].

     ↑

160. Ibid.

     ↑

161. Resource Management and Planning Appeal Tribunal, Practice Direction No 18: Applications under the Neighbourhood Disputes About Plants Act 2017, 19 November 2018 [18.2.5].

     ↑

162. Information provided by RMPAT to the Commission, April 2019.

     ↑

163. Resource Management and Planning Appeal Tribunal, Practice Direction No 18: Applications under the Neighbourhood Disputes About Plants Act 2017, 19 November 2018 [18.3.1].

     ↑

164. Ibid [18.3.3], [18.3.5].

     ↑

165. Resource Management and Planning Appeal Tribunal Act 1993 (Tas) s 16a; see also Resource Management and Planning Appeal Tribunal, Practice Direction No 5: Alternative Dispute Resolution (Practice Document, 19 November 2018) [5.1].

     ↑

166. Resource Management and Planning Appeal Tribunal, Practice Direction No 5: Alternative Dispute Resolution, 19 November 2018 [5.2].

     ↑

167. Ibid [5.7].

     ↑

168. Neighbourhood Disputes About Plants Act 2017 (Tas) s 26(3).

     ↑

169. Ibid s 16A.

     ↑

170. Information provided by RMPAT to the Commission, April 2019.

     ↑

171. Resource Management and Planning Appeal Tribunal, Practice Direction 18: Applications under the Neighbourhood Disputes About Plants Act 2017, 19 November 2018 [18.3.4]

     ↑

172. Resource Management and Planning Appeal Tribunal, Practice Direction 7: Hearing Process, 19 November 2018 [7.3].

     ↑

173. Ibid [7.12].

     ↑

174. Resource Management and Planning Appeal Tribunal Act 1993 (Tas) s 24; Resource Management and Planning Appeal Tribunal, Practice Direction 7: Hearing Process, 19 November 2018 [7.13].

     ↑

175. Or, if everyone agrees, up to NZ$20,000 (NZD): Disputes Tribunal of New Zealand, What the Tribunal Can Help With (Web Page, 29 June 2016) <https://www.disputestribunal.govt.nz/can-help-with/>.

     ↑

176. Disputes Tribunal Act 1988 (NZ) s 10(1)(c). The Disputes Tribunal is less formal than a court; it encourages parties to come to an agreement and makes a decision on the dispute if the parties cannot reach agreement: Disputes Tribunal of New Zealand, ‘About the Tribunal’ (Web Page, 2 April 2019) <https://www.disputestribunal.govt.nz/about-2/>. If the amount claimed exceeds $15,000, an affected neighbour will usually need to make their claim in the District Court, which forms the base of New Zealand’s court hierarchy: Disputes Tribunal of New Zealand, What the Tribunal Can Help With (Web Page, 29 June 2016) <https://www.disputestribunal.govt.nz/can-help-with/>; Courts of New Zealand, Overview (Web Page) <https://www.courtsofnz.govt.nz/about-the-judiciary/structure-of-the-court-system>.

     ↑

177. The Disputes Tribunal Act 1988 (NZ) does not list the Property Act 2007 (NZ) as an enactment that confers jurisdiction to on it: see sch 1,

     Pt 1.

     ↑

178. It also allows an affected neighbour to seek orders on the basis that a tree unduly obstructs a view, and causes undue interference with the use and enjoyment of the applicant’s land due to leaf litter, overhanging branches or by blocking sunlight: Property Law Act 2007 (NZ)

     ss 334–5. However, these matters are beyond the scope of this inquiry.

     ↑

179. A full list of actionable neighbour disputes is listed in section 4 of the Community Disputes Resolution Act (Singapore, 2015 rev ed). Although tree disputes are not explicitly mentioned in this list, the Act states that this list is not exhaustive, Ibid s 4(2).

     ↑

180. Ibid s 14.

     ↑

181. Ministry of Culture, Community and Youth (Singapore), Community Dispute Management Framework (Web Page, 15 February 2019) MCCY <https://www.mccy.gov.sg/sector/initiatives/community-dispute-management-framework>.

     ↑

182. Community Disputes Resolution Act (Singapore, 2015 rev ed).

     ↑

183. Submissions 7 (Ben Kenyon), 11 (Name withheld), 23 (Name withheld), 27 (Name withheld); Consultations 3 (HVP Plantations), 6 (Ben Kenyon), 12 (City of Port Phillip); Survey Respondents 42, 121.

     ↑

184. Submission 27 (Name withheld); Consultations 3 (HVP Plantations), 6 (Ben Kenyon).

     ↑

185. Consultation 6 (Ben Kenyon).

     ↑

186. Submission 27 (Name withheld).

     ↑

187. Consultation 12 (City of Port Phillip).

     ↑

188. Consultation 2 (Dr Gregory Moore OAM).

     ↑

189. VCAT contrasted its informal processes to the more formal process of the court, such as pleadings: Consultation 5 (Victorian Civil and Administrative Tribunal). Pleadings are ‘written or printed statements that alternate between the parties to a dispute and define the issues to be decided in an action: Chadwick v Bridge (1951) 83 CLR 314; Child v Stenning (1877) 5 Ch D 695: Peter Butt (ed), Butterworths’ Concise Australian Legal Dictionary (LexisNexis/Butterworths, 3rd ed, 2004).

     ↑

190. Consultation 5 (Victorian Civil and Administrative Tribunal).

     ↑

191. Ibid. The Civil Division has three Lists: Civil Claims, Building and Property and Owners Corporations.

     ↑

192. Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal); see also Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 129.

     ↑

193. Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal).

     ↑

194. Ibid.

     ↑

195. Consultation 5 (Victorian Civil and Administrative Tribunal).

     ↑

196. Submissions 4 (Name withheld), 10 (Professor Phillip Hamilton), 21 (Pointon Partners Lawyers).

     ↑

197. Submission 16 (Magistrates’ Court of Victoria).

     ↑

198. Ibid.

     ↑

199. Submissions 21 (Pointon Partners Lawyers).

     ↑

200. Ibid.

     ↑

201. Submissions 12 (Dr Gregory Moore OAM),19 (Name withheld), 21 (Pointon Partners Lawyers), 23 (Name withheld); Consultation 12 (City of Port Phillip).

     ↑

202. Submission 19 (Name withheld); Consultation 12 (City of Port Phillip).

     ↑

203. Submissions 21 (Pointon Partners Lawyers), 23 (Name withheld).

     ↑

204. Submission 21 (Pointon Partners Lawyers).

     ↑

205. Ab initio (Latin) means ‘from the beginning’: Peter Butt (ed), Butterworths’ Concise Australian Legal Dictionary (LexisNexis/Butterworths, 3rd ed, 2004).

     ↑

206. Submission 21 (Pointon Partners Lawyers).

     ↑

207. Submission 12 (Dr Gregory Moore OAM).

     ↑

208. Ibid.

     ↑

209. Ibid.

     ↑

210. Ibid.

     ↑

211. Submission 5 (Name withheld).

     ↑

212. Submissions 5 (Name withheld), 6 (Name withheld).

     ↑

213. Submissions 4 (Name withheld), 19 (Name withheld), 23 (Name withheld), 25 (City of Boroondara).

     ↑

214. Submissions 12 (Dr Gregory Moore OAM), 17 (Name withheld), 21 (Pointon Partners Lawyers), 25 (City of Boorondara), 27 (Name withheld), 29 (David Galwey); Consultations 8 (City of Boroondara), 9 (Nillumbik Shire Council), 12 (City of Port Phillip), 14 (Robert Mineo).

     ↑

215. Submission 12 (Dr Gregory Moore OAM).

     ↑

216. Submission 29 (David Galwey).

     ↑

217. Consultation 9 (Nillumbik Shire Council).

     ↑

218. Consultation 12 (City of Port Phillip).

     ↑

219. Submission 25 (City of Boorondara).

     ↑

220. Confidential submission.

     ↑

221. Submissions 10 (Professor Phillip Hamilton), 29 (David Galwey); Consultations 9 (Nillumbik Shire Council), 12 (City of Port Phillip),

     14 (Robert Mineo).

     ↑

222. Consultation 11 (Land and Environment Court of New South Wales).

     ↑

223. Submission 29 (David Galwey).

     ↑

224. Consultation 15 (Queensland Civil and Administrative Tribunal).

     ↑

225. Consultation 8 (City of Boroondara).

     ↑

226. Submission 31 (Barwon Community Legal Service).

     ↑

227. Consultation 10 (Baw Baw Shire Council).

     ↑

228. Ibid.

     ↑

229. Victorian Civil and Administrative Tribunal, Fee Relief (Web Page) <https://www.vcat.vic.gov.au/steps-to-resolve-your-case/fees-at-vcat/

     fee-relief>.

     ↑

230. Ibid.

     ↑

231. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 109(1); see also Victorian Civil and Administrative Tribunal, Who Pays For My Legal Costs? (Web Page) <https://www.vcat.vic.gov.au/steps-to-resolve-your-case/on-hearing-day/who-pays-for-my-legal-costs>.

     ↑

232. Submission 31 (Barwon Community Legal Service).

     ↑

233. Consultation 10 (Baw Baw Shire Council).

     ↑

234. For a full list of circumstances in which VCAT can award costs, see Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 109(1); see also Victorian Civil and Administrative Tribunal, Who Pays For My Legal Costs? (Web Page) <https://www.vcat.vic.gov.au/steps-to-resolve-your-case/on-hearing-day/who-pays-for-my-legal-costs>.

     ↑

235. For example, owners corporation matters take eight weeks to reach a final hearing; residential tenancies matters take two weeks from the termination date to reach a final hearing; civil claims such as for goods and services take eight weeks to reach a final hearing. Some matters in the Building and Property List are resolved in eight weeks but many matters ‘may take longer for other reasons, such as the complexity of legal and technical issues particularly where the dispute concerns multi-unit developments, multiple related files, additional parties are joined to a proceeding and defects are identified after a proceeding starts.’: See Victorian Civil and Administrative Tribunal, How Long a VCAT Case Takes (Web Page) <https://www.vcat.vic.gov.au/about-us/how-long-a-vcat-case-takes>

     ↑

236. Consultation 5 (Victorian Civil and Administrative Tribunal).

     ↑

237. Consultation 15 (Queensland Civil and Administrative Tribunal); information provided by RMPAT to the Commission, April 2019.

     ↑

238. Consultation 15 (Queensland Civil and Administrative Tribunal).

     ↑

239. See, eg, Victorian Civil and Administrative Tribunal, Practice Note PNVCAT4: Alternative Dispute Resolution (ADR), 19 December 2018.

     ↑

240. Consultation 7 (Dispute Settlement Centre of Victoria).

     ↑

241. See, eg, Victorian Civil and Administrative Tribunal, Practice Note PNVCAT3: Fair Hearing Obligation, 1 January 2013, 4–5.

     ↑

242. Ibid 3.

     ↑

243. Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal). Volunteers cannot provide legal advice. Court Network is a community organisation that supports people accessing the court system: see Court Network, What We Do (Web Page, 2019)

     <https://courtnetwork.com.au/about/what-we-do/>.

     ↑

244. Justice Connect is a not-for-profit organisation that aims to improve access to the justice system by putting people in touch with pro bono (free) legal assistance, conducting research and engaging in advocacy: Justice Connect, How We Help (Web Page)

     <https://justiceconnect.org.au/how-we-help/>.

     ↑

245. Victorian Civil and Administrative Tribunal, VCAT Annual Report 2017–2018 (Report, 2018) 21.

     ↑

246. Victorian Civil and Administrative Tribunal, Building a Better VCAT: Strategic Plan 2014–17 (Report) 1.

     ↑

247. Victorian Civil and Administrative Tribunal, VCAT Annual Report 2016–2017 (Report, 2017) 24.

     ↑

248. Ibid 16.

     ↑

249. See, eg, Justice Kevin Bell, One VCAT–President’s Review of VCAT (Report, 30 November 2009) 71–2; Recommendations 54–56; Victorian Civil and Administrative Tribunal, Building A Better VCAT: Strategic Plan 2014–17 (Report) 3; Victorian Civil and Administrative Tribunal, VCAT For the Future: Strategic Plan 2018–22 (Report) 8.

     ↑

250. Victorian Civil and Administrative Tribunal, VCAT For the Future: Strategic Plan 2018–22 (Report) 8.

     ↑

251. Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal).

     ↑

252. Victorian Civil and Administrative Tribunal, VCAT Annual Report 2017–2018 (Report, 2018) 87.

     ↑

253. For a full list of facilities, see Victorian Civil and Administrative Tribunal, Practice Note PNVCAT7: Hearing Room Technology, 14 December 2018 <https://www.vcat.vic.gov.au/resources/vcat-practice-note-pnvcat7-hearing-room-technology>.

     ↑

254. Ibid.

     ↑

255. Victorian Civil and Administrative Tribunal, VCAT Annual Report 2016–2017 (Report, 2017) 14, 28.

     ↑

256. Victorian Civil and Administrative Tribunal, VCAT Annual Report 2017–2018 (Report, 2018) 30.

     ↑

257. Submission 19 (Name withheld); Consultation 12 (City of Port Phillip).

     ↑

258. Submissions 21 (Pointon Partners Lawyers), 23 (Name withheld).

     ↑

259. Consultation 2 (Dr Gregory Moore OAM).

     ↑

260. Submissions 5 (Name withheld), 6 (Name withheld).

     ↑

261. Local Government Act 1989 (Vic) s 3C; Victorian Government, Guide to Councils (Web Page) <http://knowyourcouncil.vic.gov.au/guide-to-councils/how-councils-work/local-government-in-victoria>.

     ↑

262. See Magistrates’ Court Act 1989 (Vic) s 100; County Court Act 1958 (Vic) s 37(1).

     ↑

263. Section 85(1) of the Constitution Act 1975 (Vic) provides that, subject to that Act, the Supreme Court has ‘unlimited jurisdiction’, so the Supreme Court will have jurisdiction to determine tree disputes unless the processes provided for in sections 18(2A) and 85(5) of the Victorian Constitution are followed to render VCAT’s jurisdiction exclusive.

     ↑

264. See, eg, Domestic Building Contracts Act 1995 (Vic) s 57.

     ↑

265. See, similarly, Australian Consumer Law and Fair Trading Act 2012 (Vic) s 188; Domestic Building Contracts Act 1995 (Vic) s 57. Depending on how such a provision is drafted, it might itself be considered to limit the jurisdiction of the Supreme Court: see Australian Consumer Law and Fair Trading Act 2012 (Vic) s 231; Domestic Building Contracts Act 1995 (Vic) s 134. This means that it will not be effective unless the process prescribed in section 85 of the Constitution Act is followed, including that the third reading of the Bill is passed by an absolute majority of both Houses of Parliament: Constitution Act 1975 (Vic) s 18(2A). Nevertheless, on balance the Commission is of the view that this approach is sensible even if it may attract the operation of section 85 of the Victorian Constitution.

     ↑

266. A natural person means a human being in the ordinary sense, as opposed to artificial persons or entities such as companies which are recognised as legal persons under the law: LexisNexis, Encyclopaedic Australian Legal Dictionary (at 15 April 2019).

     ↑

267. Within the meaning of section 75(iv) of the Australian Constitution. A resident of a state does not include a resident of a territory:

     Victorian Civil and Administrative Tribunal, Resolving Disputes Between Residents of Different Australian States (Web Page, 13 June 2018)

     <https://www.vcat.vic.gov.au/news/resolving-disputes-between-residents-of-different-australian-states>.

     ↑

268. Burns v Corbett (2018) 92 ALJR 423 [149].

     ↑

269. Within the meaning of s 77(iii) of the Australian Constitution.

     ↑

270. See generally Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 8.

     ↑

271. (2018) 92 ALJR 423.

     ↑

272. Burns v Corbett (2018) 92 ALJR 423 [64] (Kiefel CJ, Bell J, Keane J); see also Judiciary Act 1903 (Cth) s 39(2).

     ↑

273. Talitha Fishburn, ‘If NCAT is Not a Court It Has No Standing to Hear Interstate Party Disputes’ [2018] (Spring), The Journal of the NSW Bar Association, 33, 34; WestLaw AU, Lawyers Practice Manual Vic (online at 11 June 2019) ‘7 Administrative Law’ [7.1.204]; Victoria Legal Aid, ‘High Court Decision Affecting Your Practice in VCAT’, News (Web Page, 30 May 2018) <https://www.legalaid.vic.gov.au/about-us/news/high-court-decision-affecting-your-practice-in-vcat>.

     ↑

274. Victorian Civil and Administrative Tribunal, Resolving Disputes Between Residents of Different Australian States (Web Page, 13 June 2018) <https://www.vcat.vic.gov.au/news/resolving-disputes-between-residents-of-different-australian-states>.

     ↑

275. (2018) 92 ALJR 423.

     ↑

276. Victorian Civil and Administrative Tribunal, Resolving Disputes Between Residents of Different Australian States (Web Page, 13 June 2018) <https://www.vcat.vic.gov.au/news/resolving-disputes-between-residents-of-different-australian-states>. VCAT also states on this webpage that ‘any referral to the Supreme Court requires the consent of VCAT’s President’.

     ↑

277. Consultation 15 (Queensland Civil and Administrative Tribunal).

     ↑

278. Information provided by the Resource Management and Planning Appeal Tribunal to the Commission, April 2019.

     ↑

279. Victorian Civil and Administrative Tribunal, Fast Track Mediation and Hearing (Web Page) <https://www.vcat.vic.gov.au/resources/fast-track-mediation-and-hearing>. In its most recent annual report VCAT explains that ‘further regional expansion of the program is planned and the value of disputes mediated will gradually increase in stages to $15,000 over four years’: Victorian Civil and Administrative Tribunal, VCAT Annual Report 2017–2018 (Report, 2018) 25.

     ↑

280. See Victorian Civil and Administrative Tribunal, VCAT Annual Report 2017–2018 (Report, 2018) 25; see also Dispute Settlement Centre of Victoria, Civil Mediation at VCAT Program (Web Page, 7 June 2019) <https://www.disputes.vic.gov.au/about-us/civil-mediation-at-vcat-program>.

     ↑

281. Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal).

     ↑

282. Neighbourhood Disputes About Plants Act 2017 (Tas) s 26(3).

     ↑

283. Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) sets out how the tribunal may be constituted for various proceedings pursuant to enabling enactments. For example, part 1A, section 2A outlines how the Tribunal is to be constituted for the purposes of a proceeding under part 8 of the Aboriginal Heritage Act 2006 (Vic) as: (a) one member who has sound knowledge of, and experience in, Aboriginal cultural heritage; or (b) if it is constituted by 2 members, at least one member who has sound knowledge of, and experience in, Aboriginal cultural heritage; or (c) if it is constituted by 3, 4 or 5 members, at least 2 members who have sound knowledge of, and experience in, Aboriginal cultural heritage.

     ↑

284. See, eg, Department of Education and Training (Vic), Diploma of Arboriculture (Web Page, 2017) <https://www.skills.vic.gov.au/victorianskillsgateway/Students/Pages/CourseSearchDescription.aspx?type=course&CourseId=12920&new=1>.

     ↑

285. Queensland Civil and Administrative Tribunal, QCAT Practice Direction No 7 of 2013—Arrangements for Applications for Orders to Resolve Other Issues About Trees (Practice Document, 1 July 2013, updated 3 April 2014) 2; see also Queensland Civil and Administrative Act 2009 (Qld) s 112.

     ↑

286. Queensland Civil and Administrative Tribunal, Information Kit: Tree Assessors Expression of Interest (EOI) (2013) 3.

     ↑

287. Consultation 5 (Victorian Civil and Administrative Tribunal).

     ↑

288. Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal); see, eg, Gordon v Port Phillip CC [2016] VCAT 282 [6];

     Broome v Maroondah CC [2016] VCAT 1161 [11]; Jones v Darebin CC [2014] VCAT 1161 [12].

     ↑

289. Gordon v Port Phillip CC [2016] VCAT 282 [6].

     ↑

290. Consultation 11 (Land and Environment Court of New South Wales).

     ↑