I have been advised by many VCAT staff, the duty solicitor, VCAT members and recently those working in higher Courts that a tenant who is unable to attend a VCAT hearing can apply for a review. This advice is NOT correct.
It may work for most cases. However, in some cases where the tenant is about to be evicted or in the process of been evicted (been evicted while on the way to VCAT) applying for a review is the worst thing to do. Why, because, applying for review means it may take over one week for a hearing. By that time the landlord has evicted the tenant, and (as) there may not be any kind of restraining order in place.
Actually, I nearly fell in to this trap on two occasions. On the first occasion, I did not attend a VCAT hearing, so the interim restraining order in place was set-aside/dismissed. The landlord issued a ‘notice to vacate’ the same day for me to vacate by 11am the next day.
Before coming to VCAT at around 10am the next day I checked if the cardkey worked (same as locked changed). It did not. When I explained to the VCAT counter staff the situation. The staff naturally said “apply for a review”. But I knew that the review takes over a week and I knew that the landlord was eviciting me as we spoke. So I lodged a new application. This was accepted by the Tribunal as a fresh application based on fresh facts and circumstances.
On another occasion when I could not attend due to illness and asked the VCAT telephone enquiry line what had happened with the case. The staff member said the case was dismissed, and the case had been dismissed. This was on a Friday, so there was every chance that the landlord was going to evict me the next day. Nothing anyone can do to prevent this, as VCAT is closed on Saturday and Sunday.
I came to VCAT while ill the same day. Again, the VCAT staff said lodge a review application. I spoke to the duty solicitor, he also said lodge a review application. I then told him, so what happens in the meantime. (that is “isn’t the landlord going to evict me” while I wait for the review application to be heard). He was unable to answer. I pressed him for an answer, then he simply (while swallowing hard) said “then you need to lodge a new application”.
I did and this was accepted by the Tribunal as a review application.
So, although the VCAT rules may say the natural course is to make a review application, this can (will) mean the tenant is evicted, unless a review application can be heard the same day, just as a fresh application for an interim restraining order/injunction under the residential Tenancies Act (RTA) s.452, 472.
But from my experience VCAT can accept a new application at the counter, then at the hearing accept it as a review application. Therefore, keeping the same file number.
So, I urge you to please:
a) ensure that tenants are aware of the difference between lodging a review and a fresh application.
b) campaign for change in the law, so that tenants can apply for a same day review using the Review application. So it would amount to the same as lodging a fresh application for an interim restraining order/injunction under the s.452, 472 of the RTA.
c) campaign for VCAT staff and all relevant organisations (e.g.Legal Aid) provide accurate information about the difference between a review application and a fresh application.
Also, on a related matter, I found out that it is never advisable to withdraw an application from the RT list, no matter how good the discussions with a landlord is going.
I was the only person who did it (withdraw an application in the RT list). Guess what, the next day the landlord evicted me. I sent VCAT a fax to say I was withdrawing the application because the discussions with the landlord was going well. Even then VCAT just looked at the word “withdraw” and set-aside the interim restraining order.
Apparently, you do not need the leave of the Tribunal to withdraw an application in the Residential Tenancies list. The fact that only one withdrawal has been made makes you wonder.