Appeals to VCAT orders are complex and may be neither economic nor practical. Errors in law are the only grounds for an appeal to a VCAT order. The expense of Supreme Court appeals vary greatly and successful parties may seek costs.
Transfer from court to VCAT
Sometimes parties may commence proceedings in a court rather than at VCAT. It is possible pursuant to section 188 of the ACL&FTA, to request the matter be stayed and enable to parties to apply at VCAT. In exercising this discretion, the court must have regard to the costs, duration and advantage and disadvantage to the parties. This cannot be done if the matter has been transferred from VCAT to the court.
Similarly, sometimes parties may commence proceedings in at VCAT rather than a court. It is possible, pursuant to section 77 of the VCAT Act, for VCAT to strike out a matter if it thinks it more appropriately dealt with by another body or court. VCAT may do this upon request or at its own initiative.
Appeals are highly complex and may not necessarily provide a practical long term or economic resolve in a tenancy matter. Comprehensive advice should always be sought before undertaking to appeal a VCAT decision.
Appeals from an order by VCAT are made pursuant to section 148 of the VCAT Act. The appeal itself is regulated (Supreme Court (General Civil Procedure) Rules 2015; Supreme Court (Miscellaneous Civil Proceedings) Rules 2008).
If a possession order is based on an error in law and the warrant has not yet been executed, there may be grounds for an appeal to the Supreme Court. If the warrant has been executed, the ability of the Supreme Court to reinstate the tenancy or grant an injunction to prevent the premises from being relet until the appeal is determined is unclear.
If a party is seeking to appeal a decision from VCAT, they must file an appeal within 28 days from the date of the order, or the provision of reasons for the decision. It may be possible to apply outside of the 28 days, with leave of the court.
Until the order in question is stayed by VCAT (s 149 VCAT Act, or interim orders are made by the Supreme Court), parties are expected to comply with orders and warrants may be executed. This means, for example, while a possession order may be appealed against, the warrant may still be executed according to the terms of the order until a stay in granted suspending the warrant. Therefore, generally, the filing of an appeal with the Supreme Court must be done before the warrant is executed. This may be earlier than 28 days as a time limit to file the originating motion.
Appeals may only be lodged on an error of law. They cannot be lodged simply because VCAT made a finding of fact that the parties disagree with. Whether a decision contains an error of law is a complex question, and legal advice should be sought as soon as practicable.
Generally in order for a lawyer to be able to review the grounds for appeal, written reasons for a decision should be requested at the time of the hearing (s 117 VCAT Act). Alternatively, if this has not been done, parties may request a copy of the audio recording from their hearing.
For more information about appeals, consult Pizer’s Annotated VCAT Act (5th edn), VCAT Act or contact a lawyer. Further, when filing an appeal, while not strictly required, it is generally necessary to obtain a transcript of the proceeding. Currently there is no fee waiver available for this service. Costs are estimated at around $200–$300 per hour of transcription. Refer to VCAT for approved services and quotes.
Supreme Court appeals are subject to the costs of the jurisdiction. That is to say, where in VCAT parties are generally presumed to bear their own costs of proceedings (s 109 VCAT Act), in the Supreme Court costs “follow the event”. If a party is successful, they may recover their costs from the other side. If they are not successful, they may need to pay their own lawyers (subject to any conditional costs agreements), as well as substantial costs of the other side, subject to the orders and discretion of the court. Costs in appeals can range immensely and again legal advice should be sought to give a reasonable estimate.
In some cases, where a party is the respondent to an appeal, they may choose to defend VCAT’s decision. If the defence of the decision is unsuccessful, they may be entitled to be indemnified for their costs if they are unsuccessful (s 4 Appeals Costs Act 1998 (Vic) (“AC Act”)). However, it should be strongly noted that there is no guarantee that a party will be entitled to such a certificate, and that it should not be expected to protect them from the costs of the proceeding. Certificates are capped at $50,000 for a respondent. It is important to note that if the respondent does anything that causes the discontinuance of the appeal, this may be grounds to be refused an indemnity certificate to protect the respondent against the other parties’ costs of the appeal (s 10 AC Act). Accordingly, parties who are the subject of an appeal should seek legal advice immediately (see Legal services that can help), and consider other mechanisms to protect themselves against adverse cost orders.
In the decision of Bare v Small  VSCA 204 (9 August 2013), the court considered protective costs orders (PCO). A PCO is made pursuant to section 24 of the Supreme Court Act 1986 (Vic). A PCO caps the costs associated with a proceeding, on terms seen fit by the court. A PCO may be granted where the court determines that the matter is important, in the public interest, the applicant is not seeking compensation or damages, the applicant lacks resources, the likely costs of the dispute, and that the applicant will likely discontinue with the proceeding because of the issue of costs (despite merit, though the latter is not clearly attended to by the decision).
A PCO can be sought at any time during a decision once an originating motion and summons have been filed. A PCO requires an interlocutory hearing. Generally, if a party is seeking a PCO, it is beneficial to make the application at the earliest stage possible.
The effect of the appeal will depend upon the orders sought by the parties in their application. It is possible, if an appeal is successful, that the court could effectively substitute its own decision. However, most commonly given the appeal is based on the grounds of questions of law, the court will give reasons for its decision and order that the matter be reheard at VCAT.
It is entirely possible that VCAT may make a decision that is still not favourable. However, VCAT will be bound by the decision and reasoning of the Supreme Court. Generally, on the issue of law, the matter should resolve according to the principles set out by the Supreme Court decision. In many cases, the matter settles before being reheard formally at VCAT.
Parties should consider the following before lodging an appeal:
• the length of an appeal as appeals can take a number of months;
• the costs of appeal (while there are application fee waivers) – lawyer costs at the Supreme Court can be substantial;
• the fact that other tenancy rights remain intact may undermine the purpose of the appeal;
• that if the appeal is successful the matter may be reheard, and have the same or similar outcome.
The Supreme Court offers excellent procedural advice in relation to how to file an appeal, but they cannot provide legal advice, such as identifying the grounds or merit of an appeal. For the coordinator’s contact details, see “Contacts”.
Self-help information kits and forms about filing a Supreme Court appeal are available on the Supreme Court’s website (www.supremecourt.vic.gov.au).
The RT Act provides for numerous offence provisions. Offences are reportable to CAV. Upon receiving a complaint, CAV may caution a party, issue an infringement notice (s 510C) or in some cases prosecute (pt 13).
Most notable of the offences in the RT Act are:
• It is an offence for a person to make a false or fraudulent representation as to a provision of the RT Act, or a term included, or to be included in a tenancy agreement, or a matter affecting a person’s rights of duties under the RT Act, or a tenancy agreement or a proposed tenancy agreement (s 501).
• It is an offence for a person, by threat or intimidation, to persuade or attempt to persuade not to exercise his or her rights to take or continue proceedings under this Act (s 502).
• A landlord or a person acting on behalf of a landlord must not, except in accordance with this Act, require or compel or attempt to compel the tenant under the tenancy agreement to vacate the rented premises (s 229).
• A landlord or a person acting on behalf of a landlord who obtains possession of rented premises in respect of which a Notice to Vacate has been given under sections 256–259 must not let the premises to a person for use primarily as a residence before the end of six months after the date on which the notice was given (s 264), with the exception of the named family member in a section 258 notice.
• A person to whom a determination of the tribunal under this Act applies must comply with that determination (s 480).
In relation to property managers and real estate agencies, CAV also oversees licencing and regulation of the Estate Agents Act 1980 (Vic), and may elect to investigate and take action in relation to misconduct by a real estate agent.
If parties are seeking to give CAV the best opportunity to ensure compliance with the RT Act, parties should write an affidavit and exhibit any relevant documents. In the example of a non-lodgment of bond, an affidavit may simply include the lease, a copy of the receipt to evidence bond receipt, and an email from the RTBA to say they have no bond on record for the premises.
Affidavits are not required, and complaints can be made on the phone. CAV will not always prosecute or deem it appropriate to prosecute, but in severe cases of non-compliance, CAV will take action accordingly.