Transfer from An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. to VCAT
Sometimes parties may commence proceedings in a court rather than at VCAT. It is possible to request the matter be stayed and enable to parties to apply at VCAT (s 188 ACL&FTA). In exercising this Power to choose whether to do something or not. For example, a judge may have discretion to allow a party extra time to complete a document if it would be unfair to enforce the legal time limit., the court must have regard to the The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity costs., duration and advantage and disadvantage to the parties. This cannot be done if the matter has been transferred from VCAT to the court.
Transfer from VCAT to court
Similarly, sometimes parties may commence proceedings in at VCAT rather than a court. It is possible, By authority of, or in accordance with, or as directed by, some court order or legislation. section 77 of the VCAT A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation., for VCAT to strike out a matter if it thinks it more appropriately dealt with by another body or court. VCAT may do this upon request or at its own initiative.
Appeals under the Residential Tenancies Act
Appeals are highly complex and may not necessarily provide a practical long term or economic resolve in a The agreement between a landlord and a tenant for the rental of a property. matter. Comprehensive advice should always be sought before undertaking to The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision. a VCAT decision.
Appeals from an order by VCAT are made pursuant to 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 (6th 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 (1) Having control over property. Possession is not the same as ownership. For example, a bicycle you have borrowed from a friend is in your possession but you do not own it. (2) Having illegal drugs on your person or property. order
If a possession order is based on an error in law and the A document issued by a court directing an officer to take certain action. May be a warrant of apprehension, directing that a person be arrested and brought before a court; a warrant of commitment, directing that a person be arrested and imprisoned; a warrant of distress, directing that a person’s goods be seized to satisfy a debt; or a warrant of seizure and sale of real estate. 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 tenancy (see Re Cokyavuz  VSC 370 (28 June 2016)).
If a A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses. is seeking to appeal a decision from VCAT, they must file an appeal within 28 days from the date of the order, or the provision of reasons for the decision, whichever is later. It may be possible to apply outside of the 28 days, with leave of the court.
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 orders 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 in 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 The application that starts a court proceeding. The process, which is different for different courts, is set out in rules made by the court. Also called the originating process..
Grounds for appeal
Appeals may only be lodged on an error of law. 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.
Generally, in order 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 The time and place at which a court or tribunal hears the parties argue their case and makes a decision. (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 Formal delivery of legal documents to a person to tell them there are court proceedings against them which they must defend, or to make sure a witness in a case knows when they have to go to court to give evidence.. Costs are estimated at around $200–$300 per hour of transcription. Refer to VCAT for approved services and quotes.
Supreme Court appeals are subject to the costs of the The authority of a court or tribunal to hear matters brought before it, based on some factor such as area or law, amount of money claimed, or geographic area.. That is, where at VCAT, parties generally bear their own costs of the proceedings (s 109 VCAT Act), 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.
A promise to pay compensation to cover losses or expenses that may arise in the future if some stated event occurs. For example, if a business partnership ends and one partner continues to run the business, they generally agree to indemnify the others against any claims against the business in the future. Insurance contracts also indemnify the insured against stated risks. certificate
In some cases, where a party is the (1) A defendant in a civil case that has been appealed to a higher court. (2) A person against whom some originating motion has been issued by an applicant. See also appellant. to an appeal, they may choose to defend VCAT’s decision. If the (1) A defendant’s response to the legal claims made against them in court by a prosecutor or plaintiff. (2) A lawful excuse for conduct: for example, causing minor injuries to someone while saving them from certain death. (3) ‘The defence’ is also a way of referring to the defendant and their legal team. of the decision is unsuccessful, they may be entitled to be indemnified for their costs (s 4 Appeal Costs Act 1998 (Vic) (‘AC Act’)). Indemnity certificates are capped at $50 000 for each respondent.
However, it should be strongly noted that there is no A binding promise made as reassurance that another person will carry out their legal obligations (e.g. paying a debt). The person making the promise is called a guarantor. If the person being guaranteed fails to pay, the guarantor becomes responsible for the debt. that a party A document that sets out what a person wants to happen to their money and other property after they die. 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 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  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 A court order for money to be paid to someone to compensate them for a loss suffered as a result of a civil wrong or breach of contract. For example, a person who caused a serious permanent injury to another person can be ordered by the court to pay damages that compensate the injured person for their loss of income from being unable to work. See also aggravated damages; compensatory damages; general damages; liquidated damages; nominal damages; special 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 A formal document issued by a court which says someone must appear in court on the date stated in the document. See also service; writ. 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.
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 tenancy rights remain intact may undermine the purpose of the appeal;
- 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 A notice stating that a summary offence has been committed. It also states the amount of any fine that has to be paid. Includes many driving and parking offences. Also referred to as an ‘on-the-spot-fine’. (s 510C) or prosecute (pt 13).
The most notable of the offences in the RT Act are:
- It is an A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious). for a person to make false or fraudulent representations about a RT Act provision, or a term included/to be included in a tenancy agreement, or a matter affecting a person’s rights or duties under the RT Act, or a tenancy agreement or a proposed tenancy agreement (s 501).
- It is an offence for a person, by threat or intimidation, to persuade/attempt to persuade a personn to not exercise their rights to take or continue proceedings under RT Act (s 502).
- A landlord/a landlord’s representative must not, except in accordance with the RT Act, require, compel or attempt to compel a tenant to vacate the rented premises(s 229).
- A landlord/landlord’s representative who obtains possession of rented premises in respect of which a Notice to Vacate has been given under sections 256–259, must not let the premises to a person for use primarily as a residence before the end of six months after the date on which the notice was given (s 264), with the exception of the named family member in a section 258 notice.
- A person to whom a A finalisation, especially a decision made by a court or tribunal to finalise (determine) a case. of the A body set up to hear and decide disputes, usually with less formality and less strict rules of evidence than in a court proceeding. under this Act applies must comply with that determination (s 480).
CAV also oversees licencing and regulation of the All the property a person has, including real property and personal property. It is often used to describe property belonging to someone who has died, or the property of a bankrupt. Agents Act 1980 (Vic), and may elect to investigate and take action in relation to misconduct by a real estate A person who acts for someone else. They can make decisions, carry out tasks or make agreements for the other person. For example, if you ask someone to bid for you at an auction they will be acting as your agent..
If parties are seeking to give CAV the best opportunity to ensure compliance with the RT Act, parties should write an A document that presents written evidence in a court case, setting out what a witness says is true. The witness must swear that it is true and correct in front of an authorised official. This can be done on oath or by affirmation. The person in whose name the document is sworn is called the deponent. and A document or thing that is provided as evidence in a court case or referred to in a sworn statement. For example, a gun might be produced as an exhibit in a criminal case, and a bank statement might be produced in a civil case. any relevant documents. In the example of a non-lodgment of (1) An undertaking by someone to do or not do something, especially a good behaviour bond, which can be part of a sentence given by a court. (2) A tenant’s payment of money to a landlord at the start of a tenancy. The bond is held in case there is any damage to the property or the tenant fails to pay rent., an affidavit may simply include the A document that sets out an agreement between a landlord and a tenant for the renting out of property, or for the use of other personal property such as a car., a copy of the receipt to Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. bond receipt, and an email from the RTBA to say they have no bond on record for the premises.
Affidavits are not required, and complaints can be made on the phone. CAV will not always prosecute, but in severe cases of non-compliance, CAV will take action accordingly.