Requesting reasons & protecting a client’s identity

Last updated: 09 Feb 2022

Practice tip

If you are going to request written reasons, 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. This is because 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.

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.

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.

 

When should I request written reasons? 

As a starting point, you should request written reasons if your client instructs you to or your client intends to exercise appellant rights. 

It can be beneficial to also consider obtaining written reasons when you think that your client would benefit from them to understand the decision that the Member has made. 

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 client’s identity being suppressed or anonymised. If the client has experienced family violence, you should also consider providing advice on protecting their identity to minimise safety risks. If your client is unable to have to have their identity protected in written reasons, you should provide advice to them on the risks of requesting written reasons so that they can make an informed decision about whether to request written reasons. 

Where your client’s case concerns the interpretation of a novel point of law or you a provision of the Residential Tenancies Act about which there are not written decisions, you might also consider requesting written reasons in these instances. We recommend speaking to your supervising lawyer or Homeless Law staff for guidance on when to request written reasons. 

 

How do I protect my client’s identity? 

There are two ways to seek to protect the client’s identity: 

  1. You can request that the client’s identity be protected by anonymising them through VCAT making a direction under s 146(4)(b) of the VCAT Act. This will generally involve the client being given a pseudonym or initials. It can also include that no person other than a party to the proceeding or their legal representative can inspect the VCAT file unless the Tribunal orders. For an example, see: Unison Housing Ltd v DZ (Residential Tenancies) [2020] VCAT 1382 (16 December 2020) 
  2. You can make a request that the client’s identity be suppressed under s 17 and 18 of the Open Court Act 2013 (Vic). This requires you to give three business days’ notice of the making of the application to VCAT and to the other parties. For an example, see: Salvation Army Housing Victoria v LVM (Residential Tenancies) [2020] VCAT 1209 and Lodden Mallee Housing Services Ltd v OBG (Residential Tenancies) [2021] VCAT 1388 (17 November 2021). 

VCAT is often reluctant to make a suppression order unless there are strong reasons for protecting the client’s identity in this way. Homeless Law’s experience is that it is preferable to seek for a direction to be made under the VCAT Act as the threshold for such an order is lower and so it is more likely that it will be made. If you are unsure of which approach to take, please speak to your supervising lawyer or Homeless Law staff. 

How do I request my client’s identity is anonymised? 

You can request that your client’s identity is anonymised pursuant to s 146(4)(b) of the VCAT Act ahead of the hearing or at the hearing itself. If possible, you should seek the other party’s consent to your client’s identity being anonymised as this may assist you to obtain the order anonymising your client’s identity.  

You will need to provide evidence as to why your client’s identity should be anonymised. It may be helpful to provide evidence of your client’s experience of family violence, the impact that having their name published may have on obtaining future housing. You could also point to any particularly sensitive medical information including mental health information in support of an order under s 146(4)(b) of the VCAT Act. If your client has children, you can also request that their details are supressed.  

 

How do I request a proceeding suppression order?

Overview

A Request to protect a client’s identity can also be made under s 17 of the Open Courts Act 2013 (Vic) (OCA). Usually the request would suppress the client’s name and personal details as well as those of their children.  

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 of the Open Courts Act 2013 (Vic). 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.

You must give 3 days’ notice of an application for a suppression order to VCAT and to the other parties on the record: s 10(1).  

Practice tip

You should consider obtaining the residential rental provider’s consent to the proceeding suppression order or requesting 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 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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