The Law Handbook 2024

Chapter 6.1: Tenancy 533 an indemnity certificate to protect the respondent against the other parties’ costs of the appeal (s 10 AC Act). Accordingly, parties who are the subject of an appeal should seek legal advice immediately (see Chapter 2.4: Legal services that can help) and consider other mechanisms to protect themselves against adverse cost orders. Protective cost orders In the decision of Bare v Small [2013] VSCA 204 (9 August 2013), the court considered protective costs orders ( PCO ). A PCO is made pursuant to section 24 of the Supreme Court Act 1986 (Vic). A PCO caps the costs associated with a proceeding, on terms seen fit by the court. A PCO may be granted where the court determines that the matter is important, in the public interest, the applicant is not seeking compensation or damages, the applicant lacks resources, the likely costs of the dispute, and that the applicant will likely discontinue with the proceeding because of the issue of costs (despite merit, though the latter is not clearly attended to by the decision). A PCO can be sought at any time during a decision once an originating motion and summons have been filed. A PCO requires an interlocutory hearing. Generally, if a party is seeking a PCO, it is beneficial to make the application at the earliest stage possible. For more information, seek legal advice (see Chapter 2.4: Legal services that can help) or contact the Supreme Court Self-litigant Coordinator (see ‘Contacts’ at the end of this chapter). Effect of the appeal The effect of the appeal will depend upon the orders sought by the parties in their application. It is possible, if an appeal is successful, that the court could effectively substitute its own decision. However, most commonly given the appeal is based on the grounds of questions of law, the court will give reasons for its decision and order that the matter be reheard at VCAT. VCAT may make a decision that is still not favourable. However, VCAT is bound by the decision and reasoning of the Supreme Court. Generally, the matter should resolve according to the principles set out by the Supreme Court decision. Often matters settle before being reheard formally at VCAT. Practical considerations Before lodging an appeal, parties should consider: • the length of an appeal, as appeals can take a number of months; • the costs of appeal; while there are application fee waivers, lawyer costs at the Supreme Court can be substantial; • the fact that other rental rights remain intact may undermine the purpose of the appeal; and • that if the appeal is successful, the matter may be reheard and have the same or similar outcome. Supreme Court Self-litigant Coordinator The Supreme Court offers excellent procedural advice about how to file an appeal. Self-help information kits and forms about filing a Supreme Court appeal are available on the Supreme Court’s website (www. supremecourt.vic.gov.au) . However, the coordinator cannot provide legal advice (e.g. identifying the merit of an appeal). For the coordinator’s contact details, see ‘Contacts’ at the end of this chapter. Offences under the Residential Tenancies Act There are numerous offences in the RT Act. Offences are reportable to CAV. Upon receiving a complaint, CAV may caution a party, issue an infringement notice (s 510C RT Act) or prosecute (pt 13). The most notable of the offences in the RT Act are: • It is an offence for a person to make false or fraudulent representations about a RT Act provision, or a term included or to be included in a rental agreement, or a matter affecting a person’s rights or duties under the RT Act, or a rental agreement or a proposed tenancy agreement (s 501). • It is an offence for a person, by threat or intimidation, to persuade or attempt to persuade a person to not exercise their rights to take or continue proceedings under RT Act (s 502). • A rental provider/rental provider’s representative must not, except in accordance with the RT Act, require, compel or attempt to compel a renter to vacate the rented premises (s 229).