The Law Handbook 2024

726 Section 7: Consumers, contracts, the internet and copyright VCAT will only hear and determine the application for review at that time or whether it will hear and determine the original claim afresh if the review is granted. If the hearing is for review only and the review is granted, the claim will be reheard at a later date. A party is not entitled to seek more than one review without leave of VCAT (r 6.10(1) Victorian Civil and Administrative Tribunal Rules 2018 (Vic) (‘ VCAT Rules ’)). The party who applies for the review may have costs awarded against it, even in a small claim. If it appears to the member that there was sufficient reason for the party’s absence, and there is some merit in that party’s arguments, an order may be made that the claim be re-heard (s 120 VCAT Act). Further information relating to re-hearings can be obtained from the Civil Claims List Registry and from VCAT Rules. Appeals A settlement or order made by VCAT is usually final and binding on all parties, and there is no appeal from the order other than on a question of law (s 148 VCAT Act). For example, if VCAT acted outside its jurisdiction or denied a party natural justice, it would raise a question of law. Whether an order gives rise to an appellable question of law is a technical issue and it would be wise to seek legal advice promptly if you are considering an appeal. Appeals are made to the Supreme Court, which can award costs in relation to the appeal even if it arises from a small claim. VCAT is required – if requested to do so by any person affected by a decision made or about to be made by it – to give that person a statement of the reasons for its decision. If the claim is not a small claim, a party may request written reasons within 14 days (s 117(2) VCAT Act). However, if the claim is a small claim, written reasons must be requested before or at the time the decision is made. Ensuring that VCAT orders are carried out Orders for the payment of money If VCAT makes an order requiring the payment of money by a party who was not present or represented at the hearing, VCAT must send a copy of that order to that party (s 116 VCAT Act). Where VCAT has made an order requiring money to be paid to a person and the money has not been paid, that person can enforce VCAT’s order in the Magistrates’ Court. This is done by filing with the registrar of the Magistrates’ Court the following documents: 1 a certified copy of the order of VCAT; and 2 a sworn affidavit stating: a that the applicant is the person to whom payment is to be made under the order; and b the amount of money that has not been paid. When filing these documents, the applicant must choose the Magistrates’ Court in the area where they live or the Magistrates’ Court in the area where the party required to pay the money lives or has a place of business. Once these documents have been filed, the court makes an order in the same terms as VCAT’s order, and the court’s order may be enforced accordingly. (See ‘Enforcement of court orders’ in Chapter 5.2: Are you in debt?) If a trader against whom an order has been made is required to hold a licence (e.g. a motor car trader, or a travel agent), Consumer Affairs Victoria may be approached for advice regarding enforcement. Orders that do not require payment Whether or not VCAT orders the payment of money, it can order that work be done to rectify defects in goods or services or order that goods be returned. This type of order (a non-monetary order) can be enforced by filing the following documents in the Supreme Court (s 122 VCAT Act): 1 a certified copy of the order of VCAT; 2 a sworn affidavit as to non-compliance; and 3 a certificate from a judge or the principal registrar of VCAT that the order is appropriate for filing in the Supreme Court. Another way to ensure that non-monetary orders are carried out is for VCAT to adjourn the proceedings to an administrative mention, or to strike out the case with a right of reinstatement. Either of these orders allows the party in whose favour the order operates to bring the case back if the order is not complied with. Both advising VCAT of progress at an administrative mention, or applying to reinstate a proceeding that has been struck out, is done by writing to the registrar and sending a copy to the other party. The registrar then notifies the parties of any new hearing date.