The Law Handbook 2024

724 Section 7: Consumers, contracts, the internet and copyright Notice of hearing or alternative dispute resolution The registrar will serve a copy of the application, as soon as practicable, on any person named as respondent. It is important for the applicant to name as respondents the people who have a sufficient interest in the resolution of the dispute to which the claim relates. VCAT will send a complete copy of the application and any attachments to each respondent. The registrar must also arrange a time and place for VCAT to hear the matter, taking into account the convenience and location of the parties, the place where the contract arose and the venues at which VCAT sits in its Civil Claims List. Notice of that time and place will be given to all parties. VCAT is committed to using alternative dispute resolution ( ADR ). It is important to carefully read any notice to attend VCAT. If the amount of the dispute is between $500 and $10 000, the dispute may be suitable for ‘fast track mediation’. This means that a mediator from the Dispute Settlement Centre of Victoria will assist to resolve the dispute. The notice will advise the nature of the proceeding, whether it is a hearing, directions hearing, compulsory conference, or mediation (including fast track mediation). The consequences of non-attendance may be that an order is made in favour of the other party. Preparing a claim It is important to prepare your case carefully and logically. Do not leave obtaining reports, quotations, witness statements, photos or the like to the last minute. Remember that what you complain about is likely to be contradicted by the other party; therefore, independent evidence may be crucial. Consider the possible reply that, for example, ‘the defect can be repaired, so the goods do not need to be replaced’, and ensure your evidence deals with this issue. If VCAT accepts that replacement is the appropriate remedy, it may order that the goods be returned to the respondent. If you believe that this would entail risk of damage or expense, then ensure your claim includes the additional cost. Two helpful documents that can be obtained from VCAT (in person or online) are ‘Preparing for a hearing in the Civil Claims List’ and ‘At the hearing of an application in the Civil Claims List’. If the matter settles before the hearing It is still worthwhile seeing if the problem can be settled with the other party or parties after the claim has been lodged, since the respondent has received the notice of the claim and now has an indication that the applicant is serious about pursuing this matter. The respondent may not want to go to VCAT and may be prepared to agree to requests. If the matter is fully settled, the claim can be withdrawn; if an uncleared cheque is received or a promise to do work is made, the claim should be adjourned or struck out with a right of reinstatement. When contacting the other party to discuss the possibility of settling, it is best to do so in writing to avoid misunderstandings. If you state that the discussion is ‘without prejudice’, it will mean that if a settlement offer is not agreed, the offers made and rejected will be kept secret from VCAT so that the tribunal member is not influenced by them. Hearings Proceedings before VCAT are open to the public; but VCAT can order that a hearing, or part of it, be held in private (s 101 VCAT Act). Representation In small claims, a party to the proceedings usually presents their own case; it is rare for legal representation to be allowed in small claims. A company can be represented by one of its officers. A lawyer will not be allowed to represent a party unless: • all the parties to the proceeding agree or VCAT so directs; and • VCAT is satisfied that the parties – other than the party who applied for the appearance of a lawyer – shall not be unfairly disadvantaged (sch 1 cl 4D(1) VCAT Act). An applicant who needs someone to represent them should provide a written authorisation. Costs in small claims Where the dispute is not a small claim, costs may be awarded at VCAT’s discretion (s 109 VCAT Act). The provisions relating to a small claim provide that no order for costs can be made (sch 1 cl 4I) (except for applications under section 120 for a review of a case decided in a party’s absence). Where an applicant succeeds in a claim, VCAT can order that the other party reimburse the applicant for the filing fee on the application and any other fees.