If a party does not attend or was not represented at a Tribunal hearing, it may be possible to re-open any Tribunal order made in that hearing and have the matter heard again.
Section 120(4) of the Victorian Civil and Administrative Act 1998 (Vic) (VCAT Act) provides that the Tribunal may revoke or vary an order if:
it is satisfied the person had a reasonable excuse for not attending or being represented at the hearing; and
it is appropriate to hear and determine the application having regard to:
whether the applicant has a reasonable case to argue in relation to the subject-matter of the order; and
any prejudice that may be caused to another party if the application is heard and determined.
Applying for a review hearing
An application for review should be made in writing and can be lodged via email, post or in person. Under reg 4.24(3) of the Victorian Civil and Administrative Tribunal Rules 2018 (Vic) (VCAT Rules) the application must state:
The name, current address, telephone number and electronic address of the applicant;
The number of the original proceeding for which the review is requested;
The date on which and the manner in which the applicant became aware of the order in respect of which a review is requested; and
The applicant’s reasons for not attending or not being represented at the original hearing.
The applicant must exhibit any documents in support of these matters: VCAT Rules reg 4.24(3)(b). For example, if your client did not attend because of a medical reason, you should exhibit a letter from their medical practitioner establishing this.
A person cannot apply for more than one review in respect of the same matter without leave of the Tribunal: VCAT Rules reg 4.24(2).
A review application must be filed within 14 days of the person becoming aware of the order: VCAT Rules reg 4.24(1).
A person may apply to extend the 14 day time period under s 126(2)(a) VCAT Act.
The factors relevant to whether an extension of time will be granted are:
whether the applicant for the extension can show an acceptable explanation for the delay;
whether it is fair and equitable in the circumstances to extend time;
the applicant’s actions and in particular whether the applicant has continued to make the decision maker aware that they contest the finality of the decision as distinct from allowing the decision maker to believe that the matter was finally concluded;
whether the respondent has been prejudiced by the delay;
whether the delay may result, if the applicant for extension is successful, in the unsettling of other people or of established practices;
the merits of the substantial application; and
considerations of fairness as between the applicant and other persons otherwise in a like position.
If a client misses a review hearing, it is still possible to apply for a further review with leave of the Tribunal. Rule 4.24(2) of the VCAT Rules provides that no more than one application under s 120 can be made by the same person without leave of the Tribunal while rule 8.15(1) of the VCAT Rules provides that a subsequent application may be made by appearing before the Tribunal. In practice while the Tribunal has been sitting remotely, we understand it is possible to make a second review by email.
If an application is made to re-open an order under rule 8.15(1), the party making the application must immediately give notice of the application to all other parties under 8.15(2).
Considerations in deciding whether to revoke or vary an order
Reasonable excuse for not attending
In Alesci v Salisbury  VSC 475 at , the Supreme Court held that s 120 was to be construed ‘liberally’. This comment was specifically directed to the reasonable non-attendance requirement, the reasonable case to argue and prejudice provisions not existing at the time of the decision.
Whether the applicant has a reasonable case to argue
Tribunal members are required to actively enquire as to the merits of the substantive case before being satisfied that a review should be granted.
Accordingly, at a review hearing, lawyers should be in a position to provide the Tribunal member with a general overview about the outcome sought and the evidence to be relied upon in relation to the substantive matter.
Prejudice to another party
The Tribunal must also consider the prejudice that may be caused to another party if the application is heard and determined. Accordingly, be aware that residential rental providers may make submissions about the detrimental effects a review hearing may have on them (e.g. further lost rent etc.).
Note that under s 120(4B) of the VCAT Act, the Tribunal has the power to hear and determine the review application despite the prejudice requirement if the Tribunal is satisfied that any prejudice that may be caused to a party may be addressed by an order for costs under s 109 or an order for reimbursement of fees under s 115B or both. However, it is very rare that the Tribunal would make a costs order against a party in relation to a residential tenancies matter.
Change of position
Even where an applicant can prove they had a reasonable excuse for not attending the hearing, the Tribunal may still refuse to grant a review hearing on the basis that there has been a change of circumstances. One example of a change of circumstance would be the execution of a warrant to evict a renter. In such circumstances it is extremely unlikely that the Tribunal will approve a rehearing and set aside a possession order. It is therefore particularly important to act quickly to obtain a review before a warrant has been executed. In some instances, you may also need to apply for a stay in relation to a warrant under s 472 RTA to avoid any warrant being issued or executed.
Where a review application succeeds and a member decides to revoke or vary the original order, the matter will generally be reheard immediately following this application. This may not occur if the other party is not present at the hearing, or if the evidence required for the substantive hearing is not available.
Evictions and review hearings
Where a possession order has been made and the applicant seeks a review hearing:
It is important to apply for a review as soon as possible.