VCAT are now holding hearings by telephone and Zoom.
We understand that by default hearings will be listed by phone with parties being provided a dial in phone number for the purpose of their hearing. This dial in number is not a freecall number and so you should discuss with your client the arrangements for the hearing, including offering, if necessary, to teleconference them into the hearing.
For certain hearings it may be preferable to have the matter heard by Zoom. If your client would prefer this, you should make a request to VCAT setting out the reasons for your request (See Arranging a video-link if your client is in prison).
All hearing documents must be emailed 48 hours before your hearing to avoid delays.
The Tribunal processes and procedures are relatively relaxed and informal and seek to encourage self representation. When you arrive at the Tribunal you should announce yourself at either the General Registry or the Registry for the relevant specialised list (eg: residential tenancies). When a Member and hearing room have been allocated, your matter will be called by registry staff.
When entering or leaving the hearing room, you should briefly bow to the sitting Member (if present). If the Member is not present and there are no other matters to be heard, you may sit directly at the bar table. If there are several other matters to be heard you may wish to wait at the back of the hearing room with your client until the Member calls your matter. Similar to a court room, simple matters and matters by consent will be dealt with first. Remember to sit on the right side of the bar table if you are the applicant and on the left if you are the respondent.
If a matter proceeds by telephone hearing or video conference, the Tribunal will usually provide dial-in details prior to the hearing. These details may have to be confirmed by contacting VCAT (email@example.com; 1300 018 228) prior to the hearing.
At the beginning of a hearing the case will be called and the Tribunal Member will ask who is present. Tribunal Members may be addressed as ‘Madam’, ‘Sir’ or ‘Member’.
The residential rental provider will generally have a summary of proofs document to hand up to the Member. You should ask the residential rental provider for a copy of their summary of proofs before the Tribunal hearing.
As a general rule, applicants are required to present their case first. Before the proceeding begins, the Member will generally ask for an overview of the matter by the applicant and may inquire as to whether a settlement has been reached or whether orders can be made by consent.
If settlement cannot be reached, the parties will need to make submissions and call witnesses. If you are the applicant you will need to proceed first and all witnesses and submissions will need to establish the basis for your application. If you are the respondent you will need to respond to the submissions and evidence of the applicant.
Are you entitled to appear?
Parties are generally expected to self-represent before the Tribunal however there are a number of exceptions.
Section 62(1) of the VCAT Act 1998 (Vic) (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));
the Tribunal permits the party to be represented (s 62(1)(c)).
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).
Right to appear in possession order application
Clause 67 of Schedule 1 of the 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. This means that parties have an automatic right to representation in possession order hearings and leave to appear does not have to be obtained.
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 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 information).