The Law Handbook 2024

532 Section 6: Houses, communities and the road section 148 of the VCAT Act. The appeal itself is regulated (Supreme Court (General Civil Procedure) Rules 2015; Supreme Court (Miscellaneous Civil Proceedings) Rules 2018). For more information about appeals, see Pizer’s Annotated VCAT Act (7th edn) or contact a lawyer. See also the Supreme Court’s website (www.supremecourt.vic.gov.au/going-to-court/ representing-yourself/appeal-or-review-a-decision/ appeal-a-decision-made-by-vcat) . Appealing a possession order If a possession order is based on an error in law and the warrant of possession has not yet been executed, there may be grounds for an appeal to the Supreme Court. If the warrant has been validly executed, it appears unlikely that the Supreme Court can reinstate the rental agreement (see Re Cokyavuz [2016] VSC 370 (28 June 2016)). Time limits If a party is seeking to appeal a VCAT decision, they must file an appeal within 28 days from the date of the VCAT order, or the provision of reasons for the decision, whichever is later (s 148(2) VCAT Act). It may be possible to apply outside of the 28 days, with the court’s permission. Until the order in question is stayed by VCAT (s 149 VCAT Act), or interim orders are made by the Supreme Court, parties are expected to comply with the order and warrants may be executed. This means, for example, while a possession order may be appealed against, the warrant may still be executed according to the terms of the order until a stay is granted suspending the warrant. Therefore, generally, the filing of an appeal with the Supreme Court must be done before the warrant is executed. This may be earlier than 28 days as a time limit to file the originating motion. Grounds for appeal Appeals may only be lodged on an error of law (s 148(1) VCAT Act). They cannot be lodged simply because VCAT made a finding of fact that the parties disagree with. Whether a decision contains an error of law is a complex question, and legal advice should be sought as soon as practicable. (See, for example, Tidd v Jeffcott [2020] VSC 861 (17 December 2020): regarding the incorrect construction of the law; and Gauthan v Panwar [2021] VSC 157 (25 March 2021): regarding the denial of procedural fairness and natural justice.) Generally, for a lawyer to be able to review the grounds for appeal, written reasons for a decision should be requested at the time of the hearing (s 117 VCAT Act). Alternatively, if this has not been done, parties may request a copy of the audio recording from their hearing. Further, when filing an appeal, while not strictly required, it is generally necessary to obtain a transcript of the proceeding. Currently there is no fee waiver available for this service. Costs are estimated at $200–$300 per hour of transcription. Refer to VCAT for approved services and quotes. Costs Supreme Court appeals are subject to the costs of the jurisdiction. That is, at VCAT parties generally bear their own costs of the proceedings (s 109 VCAT Act), whereas, in the Supreme Court, costs ‘follow the event’. Costs in appeals can range immensely and again legal advice should be sought to give a reasonable estimate. If a party is successful, they may recover their costs from the other side. If they are not successful, they may need to pay their own lawyers (subject to any conditional costs agreements). Unsuccessful parties may also have to pay the other side’s costs (which can be substantial), subject to the orders and discretion of the court. Indemnity certificate In some cases, where a party is the respondent to anappeal, theymaychoosetodefendVCAT’sdecision. If the defence of the decision is unsuccessful, they may be entitled to be indemnified for their costs (s 4 Appeals Costs Act 1998 (Vic) (‘ AC Act ’)). Indemnity certificates are capped at $50 000 for each respondent (s 5(2) AC Act). However, it should be strongly noted that there is no guarantee that a party will be entitled to such a certificate, and that it should not be expected to protect them from the costs of the proceeding. It is also important to note that if the respondent does anything that causes the discontinuance of the appeal, this may be grounds to be refused