Going to VCAT: A Practical Guide for Victorian Individuals and Businesses

What VCAT Is

VCAT is a Victorian tribunal established by the Victorian Civil and Administrative Tribunal Act 1998 (Vic). It is organised into divisions, each containing specialist lists. Procedure in any given proceeding may be modified by the enabling Act, Schedule 1 to the VCAT Act, the VCAT Rules, applicable practice notes, list guidance and any orders or directions made in the proceeding.

VCAT is not a court. It is intended to be more accessible than a court, but its decisions are binding and the practical consequences of a VCAT outcome can be as serious as those of a court judgment.

Jurisdiction and Powers

VCAT's jurisdiction is statutory and list-specific. It is conferred by the VCAT Act and the enabling Acts that send disputes to it; there is no general jurisdiction over Victorian civil disputes. Examples of enabling legislation include:

• residential tenancies and rooming house disputes under the Residential Tenancies Act 1997 (Vic);
• owners corporations disputes under the Owners Corporations Act 2006 (Vic);
• domestic building disputes under the Domestic Building Contracts Act 1995 (Vic);
• consumer claims under the Australian Consumer Law and Fair Trading Act 2012 (Vic);
• review of administrative decisions by State government agencies under the various enabling Acts;
• planning matters under the Planning and Environment Act 1987 (Vic);
• guardianship and administration matters under the Guardianship and Administration Act 2019 (Vic); and
• disputes about enduring powers of attorney — see our guide on revoking an enduring power of attorney.

Starting a Proceeding

The initiating document, portal or form, the applicable fee (and any exemption or concession), who must give notice or effect service, and the material to be lodged all depend on the enabling Act, the list, the case type, current VCAT directions and any orders already made in the proceeding. The parties must follow the case-specific notice, filing and procedural requirements identified in VCAT's directions and communications, together with any list-specific guidance.

Responding to a Claim

Response, points-of-defence and supporting material requirements depend on the enabling Act, the list, the case type and the current VCAT directions. A respondent given notice of a proceeding should ordinarily:

• read the initiating material and any orders carefully and identify the factual and legal issues;
• gather and preserve relevant evidence;
• lodge any required response or points of defence within the time specified in the directions or applicable rules;
• consider whether a counterclaim or set-off applies;
• attend any directions hearing, compulsory conference or mediation as directed; and
• engage constructively in any settlement process conducted by VCAT.

Where a party does not appear, VCAT may proceed in that party's absence or make other procedural or final orders, depending on notice, jurisdiction and the case. Section 120 provides a limited application to reopen where an order was made in a person's absence and the statutory requirements are met; whether an application succeeds depends on the circumstances.

Hearings

VCAT hearings vary widely. Constitution of the Tribunal depends on the enabling Act, the list and the case, and may include the President, a Vice President, a Deputy President, senior or ordinary members, or a multi-member panel as permitted by the Act. Parties present their case, call witnesses and respond to questions from the Tribunal, and cross-examination is permitted where relevant.

Under section 98(1)(b), the Tribunal is not bound by the rules of evidence except to the extent it adopts them, and may inform itself in any way it sees fit subject to the Act and procedural fairness.

Evidence

Careful preparation of evidence is important. Common forms of evidence include:

• contracts, written correspondence and contemporaneous records;
• photographs and video showing condition or events;
• independent expert reports — building, valuation, accounting, medical, as relevant;
• statements from witnesses with direct knowledge of the relevant events; and
• financial records, where loss or value is in issue.

The evidence a party can prepare and the way it is filed and served is subject to VCAT's directions and any list-specific requirements, including for expert evidence, witness statements and electronic documents. Prepared witness material should be checked against contemporaneous records where they exist.

Representation

Section 62 of the VCAT Act governs when a party may be represented by a professional advocate. Section 62(2) sets out specified categories in which a party is entitled to be represented — for example where another party is legally represented, the party is a child, the party has a disability, or an enabling enactment provides for representation. Schedule 1 and enabling Acts can modify the position for particular lists. In other cases leave is required under section 62(1)(c).

Costs

The starting position under section 109 of the Act is that each party bears its own legal costs. The Tribunal has a discretion to award costs where it is fair to do so, having regard to the factors in section 109(3) — including whether a party has acted in a way that unnecessarily disadvantaged another party, the nature and complexity of the proceeding, the strength of the respective claims and any offer of settlement. Some enabling Acts displace or modify this default for particular lists.

VCAT also charges application fees and hearing fees that vary by proceeding and applicant category, with concessions, waivers and reductions available in defined circumstances. Current fee tables, categories and any available waiver or reduction should be checked on the current official VCAT fee pages before filing.

Enforcing a VCAT Order

VCAT does not itself enforce its orders. Under section 121, a person in whose favour a monetary order is made may enforce it by filing the required certified copy in a court of competent jurisdiction, after which it is enforceable as an order of that court. Under section 122, a non-monetary order may be enforced in the Supreme Court and, on filing the required certified copy, is taken to be an order of that Court for enforcement purposes.

The applicable court, filing steps, fees and enforcement method depend on the order, its type and amount, and current court procedure. Recovery is not guaranteed and enforcement of a money order may involve further steps such as examination, instalment orders, warrants of seizure and sale, attachment of earnings or debts, or (in appropriate cases) insolvency proceedings.

Reopening, Appeal and Review

Section 120 provides a limited pathway to apply to VCAT to have an order made in a person's absence reviewed where the statutory requirements are met. Section 119 permits correction of clerical or accidental errors. Neither is a substitute for an appeal on the merits.

Under section 148, a party may appeal to the Supreme Court on a question of law with leave. Where VCAT was constituted by the President or a Vice President the appeal is heard by the Court of Appeal; otherwise by the Trial Division. Section 148 does not itself set a universal 28-day limit; the applicable Act, current Supreme Court rules, destination and order date must be checked immediately (the Trial Division's current guidance is 28 days from the date the VCAT decision was made). Judicial review is separately available in limited circumstances.

Federal Jurisdiction Limits

VCAT is not a 'court of a State' for the purposes of Chapter III of the Commonwealth Constitution and cannot exercise federal jurisdiction. The different-State- resident rule concerns natural persons resident in different States when the proceeding is commenced; it does not simply treat corporations, Territory residents or overseas residents the same way, and a federal matter must genuinely arise on the pleadings — the mere mention of Commonwealth law is not sufficient.

Current official VCAT guidance is that where VCAT determines that a matter involves federal jurisdiction, it cannot continue and must strike out the case. VCAT does not itself transfer such a proceeding. Part 3A of the Act enables eligible affected matters to be initiated in the Magistrates' Court, which may in defined circumstances transfer an appropriate proceeding to the County Court or the Supreme Court. Jurisdiction should be checked at the outset.

Settlement Opportunities

Whether a matter is referred to a compulsory conference or mediation depends on the list, the case and the directions made. There are statutory restrictions on the admissibility and use of things said or done at a compulsory conference and in mediation, together with exceptions and consent provisions; confidentiality obligations and the terms of any particular process also apply. A settlement may be recorded in consent orders only where VCAT has power to make the proposed orders and accepts them; otherwise settlement can be documented contractually and the proceeding withdrawn or otherwise disposed of as appropriate.

Where a dispute begins with a letter of demand, the settlement framework in our companion guide on receiving a letter of demand applies equally to VCAT.

Practical Tips for Applicants and Respondents

• Organise your documents. A tidy bundle, in chronological order, is worth more than extra pages of submissions.
• Keep submissions short. Members read quickly and value clarity over length.
• Address the legal test. Identify the legal test that applies and walk through it point-by-point.
• Make realistic settlement offers. A well-pitched offer can be relevant on costs if the matter goes to hearing and you do better than your offer.
• Comply with directions. Missed deadlines cost credibility with the Tribunal and can attract costs orders.
• Be prepared to compromise. A negotiated outcome is often better than the further time, cost and risk of contested hearing.

For specific tenancy issues, see our guide on tenant rights in Victoria.

Frequently Asked Questions