What does “VCAT’s not a court of pleadings” actually mean?

In Dalton v Silberberg [2007] VCAT 1069, Deputy President Steel laid down the law in relation to the minimum standards for pleadings by unrepresented applicants in VCAT cases other than simple one-hour hearing cases, and struck out the applicant’s points of claim. The decision is also worth reading to ascertain VCAT’s Civil List’s attitude to how much vexation is necessary before dismissal becomes the appropriate course as opposed to the striking out of the statement of the applicant’s claim. The Deputy President adopted what the Supreme Court said in another case about pleadings in Tribunals:

‘a defendant is entitled to expect that a claim will be laid out with a degree of specificity such that, if it is obvious that the claimant seeks to pursue a claim which is untenable, that can be the subject of an application before trial’.

The nature of the claim is not revealed clearly by the reasons, but an extract of the applicant’s points of claim is set out. Compared with the tripe I have had to deal with on occasions dished up by clients suing their solicitors (described by the Legal Profession Tribunal’s Member Colbran on one occasion as ‘a potage of nonsense’), they seemed relatively orthodox to me. It is good that VCAT adopts the attitude evinced in this decision. Real oppression in the form of unnecessary legal costs is visited on respondents and their lawyers if they are forced to deal with waffly nonsense in place of at least a properly articulated story in which at least what is complained about is made clear with adequate background, along with what happened as a result, and what the link is between the two. Deputy President Steel said:

What standard should the Points of Claim meet?
11. The Respondents referred me to authorities decided in Victoria and other jurisdictions which state that it is essential that an Applicant’s claim make clear what is the case which the Respondent must meet. Unlike the Supreme Court, VCAT is not a court of pleadings with detailed rules about what must be contained in the documents filed in preparation for a hearing. On the other hand, the Tribunal must act fairly (Victorian Civil and Administrative Tribunal Act 1998 section 97) and is bound by the rules of natural justice (Victorian Civil and Administrative Tribunal Act 1998 section 98(1)(a)). As Ashley J put it in Barbon and Another v West Homes Australia Pty Ltd [2001] VSC 405:

“a party facing a hearing in the Tribunal is well entitled to know what case it must meet before the hearing commences. That is not say that the case must be outlined with exquisite particularity. It is not to say that a defendant is entitled to evidence rather than particularisation. None the less a defendant is entitled to expect that a claim will be laid out with a degree of specificity such that, if it is obvious that the claimant seeks to pursue a claim which is untenable, that can be the subject of an application before trial; such that, moreover, if adequate particularisation is not provided, the matter will be clear to the Tribunal on application by an aggrieved party.”

12. I respectfully adopt the principles set out by his Honour. They are exactly relevant in the present case. If the Respondent were facing only a one hour hearing of a small claim based on a simple consumer trader dispute then before the hearing the Tribunal would require only a statement of the basis of the claim and a few particulars, such as the date of the alleged contract, the date and type of the dispute and the amount claimed. In the present case, the Applicant’s claim, first stated as $5,000,000, then as $3,000,000 is currently unquantified, but it is not small. It is not fair and would not accord with the rules of natural justice to ask the Respondents to respond to the Applicant’s claim as it is currently put. The current Points of Claim could not be a basis for preparation of a fair hearing.’

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