Housing and Tenancy

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Fairness

VCAT is under an obligation to provide a fair hearing. This obligation derives from:

  • The VCAT Act: sections 97, 98 and 102.
  • The VCAT Practice Note - PNVCAT 3 (Fair hearing obligation)
  • The Charter provides a party to a civil proceeding has the right to have the proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing: section 24(1) (based on article 14 of the International Covenant on Civil and Political Rights 1966)
  • General Comment No 32 to the ICCPR (Article 14), specifically the comments that the right to equality before courts and tribunals also ensures equality of arms.

The right to a fair hearing requires a party to be able to present his or her case and evidence to the court under conditions that do not place him or her at a substantial disadvantage when compared with the other party. There are a number of aspects to the right to a fair hearing however we have elected to focus on the right to procedural fairness.

What is procedural fairness?

The UN General Comment on article 14 states:

'The right to equality before the courts and tribunals and to a fair trial is a key element of human rights protection and serve s as a procedural means to safeguard the rule of law. Article 14 of the Covenant aims at ensuring the proper administration of justice...'[1]

The right to procedural fairness seeks to ensure that litigants have the opportunity to present their case in conditions without substantial disadvantage compared to the other party. The Clinic considers the following rights to be of significance in VCAT proceedings;

  • equal access to, and equality before, the courts (including equality of arms);
  • the right to legal advice and representation;
  • the right to procedural fairness.

Equality of arms

In Ragg v Magistrates' Court of Victoria and Corcoris [2008] VSC 1, Justice Bell of the Supreme Court noted 'the right to a fair trial entails protecting the 'equality of arms' principle, an inherent element of the due process of law in both civil and criminal proceedings.'[2] An important aspect of this is being able to receive all relevant information in relation to the case to be met before preparing a reply. The General Comment 32[3] noted the right to equality before the courts (which features in section 8 of the Charter) 'ensures equality of arms'[4] and that '[t]he principle of equality between parties applies also to civil proceedings, and demands, inter alia, that each side be given the opportunity to contest all the arguments and evidence adduced by the other party.'[5]

The right to a fair hearing also includes a number of other elements relating to issues of delayed hearings, independence of decision makers, public hearings and interpreters.


[1] General Comment No 32, para 2

[2] [2008] VSC 1 at

[3] General Comment 32 relates to the right to a fair hearing in article 14 of the ICCPR. We note that the right to a fair hearing in section 24 of the Charter.

[4] General Comment 32 at para 13

[5] General Comment 32 at para 13

When is fairness relevant in VCAT proceedings

A party is entitled to have a fair opportunity to be heard before a decision or order is made. It has been held that a failure to afford natural justice is an error of law. It is perhaps to consider fairness in light of VCAT proceedings. The right to a fair hearing may be raised in a request for adjournment or in relation to an application for the production of documents.

There are a number of circumstances where the right to a fair hearing may be relevant at VCAT.  Some common examples include where:

  1. Evidence: it is not unusual for parties at VCAT to refuse to provide evidence and it is also not uncommon for the Tribunal to proceed without requiring an exchange of evidence. This approach may have significant implications for your client. When requesting and insisting upon the provision of evidence it is necessary to frame such a request in terms of the relevant aspects of various fairness obligations on VCAT.
  2. Adjournments: from time to time it can be difficult to obtain adjournments at VCAT because of the high number of matters to be heard by the Residential Tenancies List. That said, adjournments can be critical to obtain a fair hearing. For example a hearing may be unfair without an adjournment because tenants have only recently obtained legal advice and representation or because more time is required to consider evidence provided by the landlord.

How to rely on fairness at VCAT

If you intend to rely on fairness arguments at VCAT it can be helpful to identify:

  1. the relevant facts;
  2. the applicable law set out above, and
  3. relate the facts to the law.

For example, (a) the tenant does not have access to a police report, (b) the equality of arms doctrine establishes that access to evidence is a critical part of a fair hearing, and (c) without access to the police report the tenant will be unable to understand and/or potentially challenge key aspects of the evidence being used to justify eviction.

It is important to require VCAT to make a formal ruling on these submissions as this may be relevant when considering appeal rights.