Housing and Tenancy

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Where do I go? What do I say?

VCAT processes and procedures are relatively relaxed and informal and seek to encourage self representation. When you arrive at VCAT you should announce yourself at either the General Registry or the Registry for the relevant specialised list (eg: residential tenancies). When a Member and hearing room have been allocated, your matter will be called by registry staff.

When entering or leaving the hearing room, you should briefly bow to the sitting Member (if present). If the Member is not present and there are no other matters to be heard, you may sit directly at the bar table. If there are several other matters to be heard you may wish to wait at the back of the hearing room with your client until the Member calls your matter. Similar to a court room, simple matters and matters by consent will be dealt with first. Remember to sit on the right side of the bar table if you are the applicant and on the left if you are the respondent.

At the beginning of a hearing the case will be called and the VCAT member will ask who is present.  VCAT members may be addressed as 'Madam', 'Sir' or 'Member'. 

The landlord will generally have a summary of proofs document to hand up to the Member. You should ask the landlord for a copy of their summary of proofs before the VCAT hearing. 

As a general rule, applicants are required to present their case first. Before the proceeding begins, the member will generally ask for an overview of the matter by the applicant and may inquire as to whether a settlement has been reached or whether orders can be made by consent. 

If settlement cannot be reached, the parties will need to make submissions and call witnesses.  If you are the applicant you will need to proceed first and all witnesses and submissions will need to establish the basis for your application. If you are the respondent you will (obviously) need to respond to the submissions and evidence of the applicant.

Are you entitled to appear?

Parties are generally expected to self represent before the Tribunal however there are a number of exceptions.

Section 62(1) provides 5 situations in which a party may be represented by a professional advocate but for your purposes the main situations in which you will be able to represent are:

  • Where another party is represented by (or is) a professional advocate (s 62(1)(b)(ii))
  • Where all the parties agree (s 62(1)(b)(iv))
  • Where the Tribunal permits the party to be represented (s 62(1)(c))

professional advocate is defined as a person who is or has been a legal practitioner, who is or has been an articled clerk, a person who holds a law degree or a person who holds substantial experience as an advocate in proceedings similar to Tribunal proceedings.

Right to appear in possession order application

Clause 67 of Schedule 1 provides that despite any rule to the contrary, where a possession order is sought under the Residential Tenancies Act 1997 that person may be represented by a professional advocate.

If your client is not entitled to be represented because the other party is not represented and the matter is not a possession order hearing, you will need to apply for leave to appear (s 62(1)(c)).

Any application for leave should be framed in terms of special circumstances of the client (literacy / age / language / disability / vulnerability) and also in terms of complexity of the matter (legal & factual complexity / likely duration). These submissions may also be strengthened by reference to sections 97 ('Tribunal must act fairly') and 98 ('General procedure' - natural justice) of the VCAT Act.  It might also be worth referring to the 'right to a fair hearing' in section 24 of the Victorian Charter of Human Rights and Responsibilities Act 2006.

An example of proceedings in which leave should be granted is an application for a compliance order under section 209 of the Residential Tenancies Act 1997. Given that compliance orders may form the basis of a notice to vacate it is clearly arguable that the outcome of this application has potentially very serious consequences for the tenant/resident. Further, arguments under the Charter of Rights and Responsibilities (Vic) (the Charter) may be of assistance.