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Requesting reasons and suppression orders

Last updated: 29 Mar 2021

Practice tip

It is very important that we have clear instructions from the client to request written reasons and they understand the purpose of any request for written reasons as the Tribunal member may ask the client directly for their confirmation.  See, for example Yarra Community Housing v Komi (Residential Tenancies) [2016] VCAT 1525. You should advise the client the benefits of written reasons, in particular, in providing written reasons the VCAT Member will have to explain their decision, considerations which they took into account and the procedural steps taken by the Member to come to the decision. Having written reasons may also assist the client understand the VCAT Member’s decision making process.

Written reasons are important should the client should they wish to exercise appellant rights or require the member to justify their decision, noting however that Homeless Law has a limited capacity to pursue appeals of VCAT decisions

You should also consider if written reasons might pose any risk to the client in the context of the allegations that are the subject of the proceeding. For example, written reasons in the context of a danger or damage eviction proceed may pose reputational risks or compromise associated criminal proceedings. You should consider if those risks could be overcome by the making of a proceeding suppression order under s 17 of the Open Courts Act 2013 (Vic). Any such risks and options (if any) to deal with them should be raised with your client when discussing the importance of written reasons.

Given the recency of the new Residential Tenancies Amendment Act reforms, Homeless Law pro bono lawyers are requested to inform their Homeless Law in-house contact if they receive written reasons in a matter they have acted in.

How do I request written reasons?

A party to a Tribunal hearing may request written reasons for a decision under s 117(2) Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). In residential tenancy matters, a request for written reasons must be made at hearing, either before or at the time of the notification of the Tribunal’s decision: VCAT Act schedule 1 cl 76. It is good practice to request reasons at the start of a hearing as some Tribunal Members are less receptive to written reason requests if made at the end of a hearing.

In non-tenancy matters, requests for written reasons must be made within 14 days of oral reasons: s 117(2) VCAT Act.

Note that Tribunal Members often apply significant judicial pressure on lawyers to withdraw requests for written reasons, asserting that they are not legally required to provide written reasons or can provide their reasons in a brief paragraph included in the VCAT orders. This is not correct and the Tribunal does not have the power to refuse written reasons under s 117 and schedule 1 clause 76. It is an error of law to refuse written reasons requested in accordance with the VCAT Act or provided written reasons that were of an inadequate standard: see Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43.

How do I request a proceeding suppression order?

Overview

If the client wishes to request written reasons, they may also wish to apply for a limited order suppressing, for example, the name and personal details of them and their children (if applicable) under s 17 of the Open Courts Act 2013 (Vic) (OCA).

Practice tip

You should consider requesting anonymisation of the residential rental provider’s name and details if it might identify your client.

What is the procedure for making a suppression order?

The procedure for making a proceeding suppression order is set out in s 19 OCA. The Tribunal may make a proceeding suppression order on its own motion, or on the application of a party to the proceeding, or any other person the Tribunal considers to have a sufficient interest in the making of the order: s 19(1). Subject to rules of court (if any) or unless the court or tribunal otherwise orders, an applicant for a proceeding suppression order is not required to give notice of the application to another party to the proceeding: s 19(3).

Practice tip

You should consider obtaining the residential rental provider’s consent to the proceeding suppression order or requesting an undertaking that they neither consent nor oppose the making of the order.

When will VCAT make a suppression order order?

Under s 4 OCA the Tribunal is to have regard to the primacy of the principle of open justice and the free communication and disclosure of information in determining whether to make a suppression order. That principle is only to be overridden or displaced if the Tribunal considers the specific circumstances of a case make it necessary.

A Tribunal may make a proceeding suppression order if it is satisfied of one or more of the grounds set out in s 18 OCA. In a tenancy context, those grounds are:

  • the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means (s 18(1)(a));
  • the order is necessary to protect the safety of any person (s 18(1)(c));
  • in the case of VCAT, the order is necessary to:
    • avoid the publication of confidential information or information the subject of a certificate under section 53 or 54 of the VCAT Act (s 18(1)(f)(i));
    • for any other reasons in the interests of justice (s 18(1)(f)(i)).

Some examples of cases where the names of the parties were anonymised by reason of a suppression order include:

Where and until when will the order apply?

Section 21 OCA provides that a suppression order applies only to the area specified in the order. A suppression order may be made to apply anywhere in Australia: s 21(2). However, the Tribunal must not make the order apply outside Victoria unless satisfied that having the order apply outside Victoria is necessary to achieve the purpose for which the order is made: s 21(3).

In the cases referred to at 2.3 above, orders were made on terms, including that the suppression proceeding order:

  • Applies throughout Australia on the basis that the name of the proceeding is published in the Tribunal law list and Tribunal reasons for decision for final orders are published on Austlli. Those materials may be accessed throughout Australia. The privacy of the [renter / renter and her children] would be breached if persons living outside Victoria know or come to know their identity.
  • Operates until the death of the [renter] / latter death of the [renter] and each of her children.

Practice tip

You should request that VCAT make a proceeding suppression order that applies throughout Australia and operates until the death of your client / the latter death of your client and each of their children.

Exceptions

A suppression order does not prevent a person from disclosing information if the disclosure is in the course of performing functions or duties or exercising powers in a public official capacity:

  • in connection with the conduct of any proceeding or the recovery or enforcement of any penalty imposed in a proceeding; or
  • in compliance with any procedure adopted by the Tribunal for informing a person of the existence and content of a suppression order made by the Tribunal.

See s 22 OCA.

Consequences

It is an offence to contravene a proceeding suppression order or interim order where a person knows or is reckless to whether the suppression order is in force: s 23.

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