The Law Handbook 2024

Chapter 7.4: Taking action as a consumer 725 Procedure at the hearing If you are an applicant making a claim in VCAT, you should follow the procedures given below on the day of the hearing of your claim. Note that VCAT’s website contains guides called ‘Preparing for a hearing in the Civil Claims List’ and ‘At the hearing of an application in the Civil Claims List’. NOTE Alternative dispute resolution processes – such as compulsory conferences and mediation – are available to assist in settlement of disputes (see ss 83–93, sch 1 cl 4H VCAT Act). For more advice, parties can contact the registrar of VCAT’s Civil Claims List. As soon as you arrive, go to the office and let the reception desk or bench clerk know that you have arrived. Ask which room your matter will be heard in. If you wish, you can sit at the back of the room where your matter will be heard, to get an idea of what happens during similar hearings. The matter will be heard by a member of VCAT, who should be addressed as ‘Sir’ or ‘Madam’. The member sits at the front of the room behind a desk. You will sit at a separate desk, with the respondent and any interested party at your left. The first thing a member may do is offer the parties an opportunity to discuss settlement of the matter. Parties are encouraged to do so, but are not required or ordered to do so. If the matter is settled, ask the member to make an order according to the terms of the settlement. If the matter is not settled, the member will proceed to hear the case. You will be asked to present your side of the story. Written notes made before the hearing may assist you to do this. Take with you all the written documentation you have. Reports and quotation(s) will often be important parts of the evidence. Take photos of the goods that have broken, or the wall that has cracked, if it will help the member understand what you are talking about. Where needed to explain a claim, a video can be part of your evidence (contact VCAT beforehand to arrange for audiovisual equipment, or bring a laptop or the mobile phone on which the video was recorded). If you have any witnesses, make sure they come to the hearing with you. It is best if you give your evidence before your witnesses. All oral evidence must be given truthfully. The official promise to tell the truth may be made by taking an oath or making an affirmation. The member will ask questions of you and your witnesses. The respondent is also able to ask questions. If your witnesses cannot attend on the day, they can make a statutory declaration before a qualified witness, stating what they know about the matter. You can then hand this to the member. Be aware that evidence given in person to VCAT, with the opportunity to be asked questions, is likely to be given more weight than a written statement. The member might decide that the hearing has to be adjourned so that the witness can attend in person. After you have presented your side, the respondent gets the chance to respond to your claim. You will be given a chance to ask the respondent questions about the things they or their witnesses say. Some issues ‘speak for themselves’ but some cases require expert evidence. An expert is a person who is qualified to give an opinion about a relevant issue. In a case about building work or building products, an expert might be a civil engineer, an architect or a building consultant. Practice Note 2, which can be found on the VCAT website, sets out the requirements for expert evidence. It is designed to stop unqualified people giving their uninformed opinions, and to make sure that the expert’s role is to assist VCAT to make a fair decision, rather than being a ‘gun for hire’. Usually, experts are required to put their opinion in a written report, and attend the hearing to explain their views. Care in the preparation of the case should ensure that evidence is not repeated. VCAT may not permit additional evidence on a matter if it considers that the matter has already been fully covered (s 102(2) VCAT Act). After both sides have put their case, the member will decide the matter in accordance with the relevant law and make an order. What if a party doesn’t appear? If a party does not appear at a hearing, VCAT will resolve the issue in dispute on the evidence produced. The VCAT order is lawful and as effectual as if the party had appeared and was fully heard. If an issue in dispute is determined in the absence of a party, that party may make an application for review to VCAT within 14 days after the party receives notice of the order. An application for review must be made by way of statutory declaration stating the reason for non-attendance. All parties are invited to the hearing of the review. The notice of hearing will state whether