The Law Handbook 2024

Chapter 6.1: Tenancy 525 party is a resident in another state, VCAT cannot hear the matter and applications must be made to the Magistrates’ Court under Part 3A of the VCAT Act. These matters are referred to as ‘substitute proceedings’ (s 57C VCAT Act). For example, a rental provider who is on holiday in Queensland at the time of an application may still have standing if their residence is in Victoria or one of the territories. While there may be some exceptional matters, agency is unlikely to overcome this issue of jurisdiction (see Masters v Wilkinson (Residential Tenancies) [2021] VCAT 36). Part 3A of the VCAT Act was enacted on 29 November 2021 and affects all decisions from 25 February 2020. This part is retrospective in effect and makes valid orders that would otherwise be invalid for want of jurisdiction (s 57F VCAT Act). The Magistrates’ Court is able to hear the matter provided there is doubt that VCAT could not hear it for the reasons set out in the Meringnage case. Parties may apply to the Magistrates’ Court under its federal jurisdiction using Form 10A and the Residential Tenancies Annexure. All the substantive rights and time limits under the RT Act (s 57B(4)) remain the same. The costs of the application and cost discretion of the court remain the same as would have applied at VCAT in most cases (ss 57B(3)(i), 109 VCAT Act). However, the practice and procedures (including enforcement of orders) of the Magistrates’ Court apply, rather than the procedures of VCAT (unless the court determines otherwise). This impacts the forms, and includes additional requirements such as a need to file a notice of reply, affidavits of service, and may require some interlocutory applications to expedite time for hearing urgent matters (e.g. urgent repair hearings). There may be additional fees for interlocutory applications unless a fee waiver is granted by the registry on the basis of section 57B(3) (i). Appeals against Registrar decisions can be made (s 16K Magistrates’ Court Act 1989 (Vic) (‘ Magistrates’ Court Act ’); r 4.02 Magistrates’ Court (Miscellaneous Civil Proceedings) Rules 2020 (Vic)). Overarching and proper basis certificates are not required (s 4(2)(ja) Civil Procedure Act 2020 (Vic)). Evidence requirements should be consistent with that of VCAT (s 98(1)(b); cf. s 57(3)(c)). However, in practice, evidence requirements and witness examination tends to be similar to a Magistrates’ Court civil litigation; proceedings are more formal and adversarial (rather than inquisitorial as at VCAT), evidence and the examination of witnesses follows the practice of examination in chief, cross- examination and re-examination (r 40 Magistrates’ Court General Civil Procedure Rules 2020 (Vic)). Applications for reopening an order from the Magistrates’ Court should be accepted using the VCAT Application to Reopen an Order (s 120; cf. s 57C(3)(g) VCAT Act). However, in practice, Form 46B and a supporting affidavit will be required to address why the renter did not attend the hearing or file a notice of defence. Positive steps should be taken by the renter to ensure the local police station is aware the application to reopen the order has been lodged if the warrant has already been purchased. The right to written reasons for a decision (s 117 VCATAct) is not directly mirrored in the Magistrates’ Court (r 59.04 Magistrates’ Court General Civil Procedure Rules 2020 (Vic)). Appeals are also made directly to the Supreme Court (s 109 Magistrates’ Court Act; s 57C(3)(j) Magistrates’ Court General Civil Procedure Rules 2020 (Vic)). There is a 30-day time limit to lodge the appeal. However, in the case of evictions, if the warrant is executed, the appeal will be futile with respect to preserve the rental agreement. Appellants should also be more proactive in obtaining a stay in the practice court of the Supreme Court as the application to appeal will not stay the effect of the order as is the practice at VCAT. Contact the self-litigant coordinators of the Magistrates’ Court (see ‘Contacts’ at the end of this chapter). They can provide guidance and procedural information but are unable to provide legal advice. Cost The cost of a basic VCAT application is $70.10; this fee is indexed annually. Under the VCAT Act (s 132), parties may be eligible for fee waivers. Parties are presumed to bear their own costs of proceedings (s 109(1)). However, if a party’s conduct causes delay or procedural disadvantage to other parties, VCAT has discretion to award costs (s 109). Costs may be awarded against a party where an offer has been rejected and the subsequent VCAT decision is less favourable than the offer made (s 112). Rejected offers that may give rise to such costs must comply with sections 113 and 114 of the VCAT Act. If a party is successful (or has substantially succeeded) in their VCAT application, the