The Law Handbook 2024

514 Section 6: Houses, communities and the road may be some exceptions in relation to a rent arrears application made under section 91ZM (see Patten v AKY (Residential Tenancies) [2022] VCAT 1031 (5 September 2022)). Notice of Hearing After the rental provider has applied for a possession order, the renter will receive a Notice of Hearing from VCAT once a hearing date has been set. The hearing cannot be listed before the termination date specified on the Notice to Vacate or Notice of Intention to Vacate (s 329 RT Act). VCAT sends out a Notice of Hearing to all the parties advising them of the date, time and place of the hearing. Parties may also receive notice of hearings via SMS. To check if a hearing has been listed, contact VCAT’s Residential Tenancies List (usually, only a party’s name and the rental address are needed to find a hearing). It is a good idea to confirm that interpreters or other supports necessary for the parties to participate in the hearing have been organised. Parties may ask VCAT if they can attend the hearing over the phone. At the time of writing, most hearings are still being conducted via phone conference. Any evidence you wish to provide should be clearly labelled and sent to the other party and to VCAT well before the hearing. For more information, see ‘How to send and access evidence in a residential tenancy case’ on VCAT’s website (www.vcat.vic.gov.au/case-types/ residential-tenancies/access-documents-residential- tenancy-case) . Adjournments If the renter cannot attend the hearing, they should informVCAT and the other party as soon as possible, ask for an adjournment, and provide evidence to justify the adjournment. The renter should not rely on a statement by the rental provider or agent that they will withdraw or adjourn the application or that the renter does not have to attend the hearing. Practice Notices regarding adjournments can be found on VCAT’s website under PNRST 1. Attending the hearing Different VCAT members (i.e. the people hearing and judging matters) conduct proceedings differently, but all are bound by the VCAT Act. VCAT: • must act fairly (s 97 VCAT Act); • is bound by the rules of natural justice (s 98(1) VCAT Act); • is not bound by the rules of evidence (s 98(1)(b) VCAT Act); and • may inform itself on any matter, as it sees fit (s 98(1)(c) VCAT Act). VCAT must conduct each proceeding with as little formality and technicality as possible. VCAT must also determine each proceeding with as much speed as the requirements of the VCAT Act and the enabling enactment, and a proper consideration of the matters, permit. The tribunal must allow parties a reasonable opportunity to call and give evidence, examine, cross-examine, and re-examine witnesses and to make submission (s 102 VCAT Act). The tribunal must also be impartial and act without bias (cf. s 108 VCAT Act and Chen v Zan (Residential Tenancies) [2018] VCAT 1811 (19 November 2018)). Representation of parties Generally, unless the VCAT hearing is a possession order hearing (cl 67 sch 1 VCAT Act), or the other party is represented by a professional advocate, a party must seek leave (permission) from VCAT to be represented by a professional advocate (s 62 VCAT Act). You do not need to seek leave if the other party is represented by, or is, a professional advocate. At the hearing, the renter or the renter’s representative should lead the submissions about ‘formal’ matters (e.g. matters concerning the validity of the Notice to Vacate) and substantial issues (e.g. whether the rental provider is entitled to give the notice). Parties are presumed to bear their own costs in relation to VCAT proceedings (ss 109, 113–115, 115B VCAT Act). Requests for written reasons for the decision Parties to a hearing may request that VCAT provide written reasons for its decision, pursuant to section 117 of the VCAT Act. This request can be made at any time before or during the hearing, but not after the hearing (cl 76 sch 1 VCAT Act). It is usually courteous to ask VCAT at the beginning of the hearing.