In the various cases that were observed at VCAT, some disputes were resolved using the adversarial approach, and some via the inquisitorial approach, however it was also noted that some actively engaged in a mixture of the two. A prime example of an adversarial orientated dispute was witnessed in the civil hearing of John Margins v Alex Ferzano Furniture & Fittings. The case involved a civil dispute regarding the outstanding monies owed on a delivery of furniture by the applicant Alex Ferzano against the respondent John Margins, both of whom were representing themselves.
The member in charge of the hearing, specified that he wanted both parties to give their individual accounts of the dispute at hand, and what they wanted to gain out of it. At the same time, the presiding member also expressed that there would be an opportunity for either party to address any inconsistencies in either's recount of the facts. This approach was essentially an adversarial approach, as it allowed the individual parties to argue the issues in dispute, in front of some form of authority, who only intervened if fair process was not being followed, i.
e. when the parties started interrupting each other on several occasions. Following the parties' arguments, the member, in consideration of what he had heard, gave a decision on the spot in favour of the applicant for the outstanding monies. In the absence of alternatives to litigation such as VCAT, the applicant in such a scenario would be very limited in his options to seek recourse to the outstanding monies owed to him. Litigation would not be a viable option, particularly as the costs of doing so would outweigh the outstanding amount.
Alternatively, seeking to bankrupt the respondent would not be overly beneficial to the applicant either, particularly given that the amount outstanding was minute. Whilst this VCAT civil hearing was not a court per se, it functioned in much the same way and was very adversarial in nature, where the member essentially took a passive role and allowed the two parties to 'battle it out'. In the case of Fred & Vicki Karalis v Brian Jackson, a retail tenancy hearing, it was observed first hand how a hearing could be carried out via a combination of both an adversarial and inquisitorial approach.
This case involved a series of complex facts regarding the non-payment of rent, in which the applicant Brian Jackson and his representative sought to evict and claim rent monies owning. However, the respondent's and their representative alleged that the applicant landlord did not fulfil various duties and hence withheld rent payments. The presiding member allowed for an adversarial approach to begin proceedings, by allowing each party to state their case against each other.
However, when the facts and evidence became increasingly complex, such that both parties began to confuse themselves, the member would intervene and adopt an inquisitorial approach, and seek to actively be involved in helping determining the facts. The member would ask questions of individual parties, in order to clarify the facts, not only for herself, but also for the other party. She would also seek to rephrase certain facts to the opposing party in order to assist their understanding of the nature of the issue at hand, particularly as the respondent party were migrants.
Clearly the overriding object of the tribunal was to facilitate a settlement, which ultimately revolved around negotiation between the parties. This was particularly evident at one stage, when on a particular issue, the member even suggested whether mediation would be a likely avenue that they would explore as a form of alternative dispute resolution. However, in this case, the parties agreed that that would not be an option they would like to explore. In the end, the member did facilitate a resolution, in which looked to ideally satisfy both parties.
In a sense, not only did the case involve elements of an adversarial nature and an inquisitorial nature, but also elements of mediation where the member actively sought to facilitate settlement by suggesting other options and alternatives in accordance with the facts. Such a process can clearly be contrasted from that of adversarial litigation, where the main aim of such proceedings would be to seek judgement, rather than develop a settlement that is beneficial to all parties involved.
One further observation from attending several hearings, is that whether or not a hearing within VCAT is adversarial or inquisitorial in nature, entirely depends on the member and the dispute at hand rather than the individual facts being argued. In some hearings, the members took on a hard non-adversarial approach to resolving disputes, sometimes taking control of the proceedings when trivial issues were being argued amongst the parties. In one instance, in a civil claims case, whilst the applicant read out a list of costs they wished to be reimbursed for by the respondent, the member gave a 'yes, no, yes, no etc..
' approach, without any justification as to why he denied the claim for particular costs. On the other hand, in a case that involved a dispute amongst parties to a will, a soft- adversarial approach was taken by the member to ensure that emphasis was on compromise, to allow all parties to benefit in resolving the dispute. It should be therefore concluded that VCAT's establishment and purpose within the Victorian Justice System, that is, to provide Victorians with access to a civil justice system, which is modern, accessible, efficient and cost effective, is successfully achieved.
In the absence of alternatives to litigation, applicants in small disputes would be severely limited in their options to seek justice or settle disputes with binding authority. Litigation, however common, is not always a viable option, particularly when the costs and efforts of doing so would outweigh the benefits derived from a successful judgement. VCAT provides the most appropriate alternative to litigation in such disputes in both an adversarial and non-adversarial manner, in conjunction with other ADR means.