Parties have an automatic right to representation in possession order hearings and leave to appear does not have to be obtained.Clause 67 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) provides that despite any rule to the contrary, where a possession order is sought under the Residential Tenancies Act 1997 (Vic) (RTA) that person may be represented by a professional advocate.
For non-possession order hearings, parties are generally expected to self-represent before the Tribunal however there are a number of exceptions.
Section 62(1) VCAT Act provides five situations in which a party may be represented by a professional advocate. The most relevant for residential tenancies purposes are where:
another party is represented by (or is) a professional advocate (s 62(1)(b)(ii));
all the parties agree (s 62(1)(b)(iv));
the Tribunal permits the party to be represented (s 62(1)(c)).
As the consent of the other party is a reason that a party can be represented by a professional advocate, you should, where appropriate, seek the consent of the other party to represent your client.
A 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: s 62(8). If the residential rental provider is being represented by a real estate agent, you should consider if that constitutes a professional advocate which would allow your client to be represented pursuant to s 62(1)(b)(ii).
If your client is not entitled to be represented because the other party is not represented (or did not consent to your client being represented by a professional advocate) 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 ss 97 (‘Tribunal must act fairly’) and 98 (‘’Tribunal is bound by the rules of natural justice) of the VCAT Act. It might also be worth referring to the ‘right to a fair hearing’ in s 24 of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter).
Examples of proceedings in which leave should be sought include but are not limited to:
an application for compensation or a compliance order under ss 209, 209AA or 209AAB RTA. 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 renter. Further, arguments under the Charter may be of assistance;
an application to pre-emptively challenge a notice to vacate either generally under s 91ZZS RTA or on the basis of family violence under s 91ZZU(2) RTA given the inherent connection with applications for a possession order (see Checking notices to vacate and Family violence provisions for more); and
an application under s 91V RTA to end or create a tenancy in circumstances of family violence or personal violence or an application under s 420A for repayment of bond in circumstances of family violence given such an applications’ complexity and relative novelty and the likely vulnerabilities of the client (see Family violence provisions for more).