Victorian Civil and Administrative Tribunal (Service Outside Victoria and Other Amendments) Rules 2014
Authorised by the Chief Parliamentary Counsel
Authorised Version
i
Victorian Civil and Administrative Tribunal
(Service Outside Victoria and Other Amendments)
Rules 2014
S.R. No. 181/2014
TABLE OF PROVISIONS
Rule Page
1 Object 1
2 Authorising provisions 1
3 Commencement 1
4 Principal Rules 1
5 Divisions 2
6 Lists 2
7 Amendment to Rule 4.07 2
8 New Rules 4.08A and 4.08B inserted 3
4.08A Substituted service 3
4.08B Service on agent 3
9 Order 6—residential tenancies list 3
10 Order 7A inserted 4
ORDER 7A—RESIDENTIAL TENANCIES DIVISION 4
PART 1—RESIDENTIAL TENANCIES LIST 4
7A.01 Definition 4
7A.02 Application of Part 4
7A.03 Mode of service 4
7A.04 Service before lodgement 4
7A.05 Accompanying documents for electronic lodgement 5
7A.06 Applications 6
7A.07 Documents required to be included with certain
applications 7
7A.08 Particulars to be provided with certain applications 10
7A.09 Additional particulars for certain applications 14
7A.10 Documents and particulars required for certain
applications 16
7A.11 Form of notice under section 346 of the Residential
Tenancies Act 1997 17
7A.12 Warrant of possession 18
7A.13 Warrant of possession—Disability Act 2006 18
7A.14 Withdrawal of proceedings 18
7A.15 Re-opening an order 18
7A.16 Review of certain determinations and orders 19
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11 Legal Practice List 20
12 Planning and Environment List 20
13 Review and Regulation List 20
14 Civil Claims List 20
15 Building and Property List 20
16 Owners Corporations List 20
17 Allocation of Residential Tenancies List—revoked 21
18 Guardianship List 21
19 Human Rights List 21
20 New Part 4 of Schedule 1 inserted 21
PART 4—RESIDENTIAL TENANCIES DIVISION 21
16 Residential Tenancies List 21
21 Schedule 2 Forms 22
═══════════════
ENDNOTES 24
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STATUTORY RULES 2014
S.R. No. 181/2014
Victorian Civil and Administrative Tribunal Act 1998
Victorian Civil and Administrative Tribunal
(Service Outside Victoria and Other Amendments)
Rules 2014
The Rules Committee established by section 150 of the
Victorian Civil and Administrative Tribunal Act 1998
makes the following Rules:
1 Object
The object of these Rules is to amend the
Victorian Civil and Administrative Tribunal Rules
2008—
(a) to establish a residential tenancies division
and allocate the residential tenancies list to
that division; and
(b) to provide for the service of documents
outside Victoria (including outside
Australia).
2 Authorising provisions
These Rules are made under section 157 of the
Victorian Civil and Administrative Tribunal
Act 1998 and all other enabling powers.
3 Commencement
These Rules come into operation on 31 October
2014.
4 Principal Rules
In these Rules, the Victorian Civil and
Administrative Tribunal Rules 20081 are called
the Principal Rules.
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5 Divisions
In Rule 2.01(2) of the Principal Rules—
(a) in paragraph (c), for "division." substitute
"division;";
(b) after paragraph (c) insert—
"(d) residential tenancies division.".
6 Lists
(1) In Rule 2.03(3) of the Principal Rules—
(a) in paragraph (c), for "list;" substitute "list.";
(b) paragraph (d) is revoked.
(2) After Rule 2.03(4) of the Principal Rules insert—
"(4A) The residential tenancies list is established in
the residential tenancies division.".
7 Amendment to Rule 4.07
(1) In the heading to Rule 4.07 of the Principal Rules,
after "commencement" insert "and service of
documents".
(2) After Rule 4.07 of the Principal Rules insert—
"(2) An applicant may make an application for
leave to serve on a party or person outside
Victoria (including outside Australia)—
(a) a copy of an application or referral
under subrule (1); or
(b) an order or any other document in the
course of a proceeding.
(3) If the applicant has expressed the wish to
have the application for leave determined
without attendance, the Tribunal constituted
by a member who is a legal practitioner may
determine the application on the papers.
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(4) An order of the Tribunal made under
subrule (3) that gives leave for service
outside Victoria (including outside Australia)
of an application, referral, order or any other
document must specify the mode of service
permitted.".
8 New Rules 4.08A and 4.08B inserted
After Rule 4.08 of the Principal Rules insert—
"4.08A Substituted service
(1) If for any reason it is impracticable to serve a
document on a party or person outside
Victoria (including outside Australia), the
Tribunal may order that, instead of service,
such steps be taken as the Tribunal specifies
for the purpose of bringing the document to
the notice of the party or person to be served.
(2) The Tribunal may make an order under
subrule (1) despite the person or party to be
served being outside Victoria (including
outside Australia) or having been so when
the proceeding commenced.
4.08B Service on agent
If a contract has been entered into by or
through an agent residing or carrying on
business within Victoria on behalf of a
person or party residing or carrying on
business outside Victoria (including outside
Australia), service of a document in the
course of a proceeding relating to or arising
out of the subject matter of the contract may,
by leave of the Tribunal, be made on the
agent.".
9 Order 6—residential tenancies list
Part 7 of Order 6 of the Principal Rules is
revoked.
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10 Order 7A inserted
After Order 7 of the Principal Rules insert—
"ORDER 7A—RESIDENTIAL TENANCIES
DIVISION
PART 1—RESIDENTIAL TENANCIES LIST
7A.01 Definition
In this Part—
Authority has the same meaning as in
section 3(1) of the Residential
Tenancies Act 1997.
7A.02 Application of Part
(1) This Part applies to a proceeding in the
residential tenancies list.
(2) Rules 4.03, 4.08, 4.19(3) and 4.19(4) do not
apply to a proceeding in the residential
tenancies list.
7A.03 Mode of service
A copy of an application to the Tribunal
under section 241, 277 or 301 of the
Residential Tenancies Act 1997 may be
served by affixing the copy to the door
giving access to the rented premises, room or
caravan or by placing it in a prominent
position at the site.
7A.04 Service before lodgement
(1) Despite rule 4.07, an applicant may serve a
copy of a proposed application or referral
under an enactment allocated to the
residential tenancies list before the
application is lodged with the principal
registrar or a registrar of the Magistrates'
Court.
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(2) If a copy of the proposed application or
referral is served before it is lodged, the
application or referral must be lodged in
accordance with rule 4.05 within 7 days after
service of the copy.
7A.05 Accompanying documents for electronic
lodgement
(1) Despite the provisions of rules 7A.07
and 7A.10, if an application has been lodged
with the principal registrar by electronic
communication to the Tribunal's information
system for generating, sending, receiving,
storing or otherwise processing electronic
communications known as VCAT Online,
any requirement of those rules that a
document must accompany the application is
satisfied if—
(a) in the case of an application referred to
in rule 7A.07(5) or (7) relating to a
notice to vacate, the applicant has
created the document using VCAT
Online; and
(b) in the case of an application referred to
in the following rules, the document is
provided to the Tribunal at the hearing
of the application or, at the request of
the principal registrar at any time
before or after the hearing—
(i) rule 7A.07(6) relating to an
application under section 322 of
the Residential Tenancies Act
1997;
(ii) rule 7A.07(7) relating to a notice
of intention to vacate;
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(iii) rule 7A.07(11);
(iv) rule 7A.07(14);
(v) rule 7A.10(2).
(2) Despite subrule (1), any document which is
to form part of the material to be provided to
the Tribunal in accordance with rule 7A.08
or 7A.10 must be served on the respondent
or respondents, as the case requires, at the
time of service of that application.
7A.06 Applications
For the purposes of section 67(1)(a) of the
Act, applications must be in writing and
specify—
(a) the name, address, telephone number
and facsimile number of the applicant,
the respondent and any other party who
the applicant claims ought to be joined
as a party;
(b) if a party is a corporation, its Australian
Company Number or Australian
Registered Body Number;
(c) the name, address, telephone number
and facsimile number of any agent
acting for the applicant, respondent or
other party;
(d) the address of the premises, room and
rooming house, or caravan, site and
caravan park, that is the subject of the
application;
(e) a brief description of the remedy sought
and the basis on which the remedy is
sought;
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(f) whether or not a bond was paid by the
tenant, resident, Director of Housing or
some other person, and if so, for what
respective amounts;
(g) if a bond was paid, the relevant
Residential Tenancies Bond Authority
bond number or numbers; and
(h) any previous Tribunal file numbers
relating to applications made in relation
to the same tenancy agreement or
agreement in relation to a residency
right.
Note
See also rule 7A.02.
7A.07 Documents required to be included with
certain applications
(1) An application under section 46(1), 103(1)
or 154(1) of the Residential Tenancies Act
1997 (excessive rent or hiring charge) must
be accompanied by a copy of the Director's
report under section 45, 102 or 153 of that
Act (as the case requires) with respect to the
relevant rent or hiring charge.
(2) An application under section 75(1), 132(1)
or 191(1) of the Residential Tenancies Act
1997 (non-urgent repairs) must be
accompanied by a copy of the Director's
report under section 74, 131 or 190 of that
Act (as the case requires) with respect to the
relevant premises, room, rooming house or
caravan.
(3) An applicant for an application referred to in
subrule (2) must serve a copy of the report
referred to in that section with the copy of
the application.
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(4) An application under section 128(1)
or 187(1) of the Residential Tenancies
Act 1997 (unreasonable house or caravan
park rules) must be accompanied by a copy
of the house rules or caravan park rules
(as the case requires).
(5) An application under section 209 of the
Residential Tenancies Act 1997 must be
accompanied by a copy of the breach of duty
notice given under section 208.
(6) An application to the Tribunal under
section 322, 323 or 324 of the Residential
Tenancies Act 1997 arising out of a notice
to vacate under section 248, 282 or 307 of
that Act must be accompanied by a copy of
the order of the Tribunal with which it is
alleged the tenant or resident has failed to
comply.
(7) An application under Division 1 of Part 7 of
the Residential Tenancies Act 1997
(possession order) must be accompanied by a
copy of any notice to vacate or notice of
intention to vacate given in respect of the
rented premises, room, site or caravan (as the
case requires).
(8) A request for determination under
section 339 of the Residential Tenancies
Act 1997 must—
(a) be verified by affidavit; and
(b) be accompanied by a copy of the notice
to vacate given in respect of the rented
premises.
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(9) In addition to the requirements of
subrule (8), a request for determination
relating to a notice to vacate under
section 261 of the Residential Tenancies
Act 1997 must be accompanied by—
(a) a copy of the tenancy agreement
relating to the rented premises; and
(b) a copy of the notice given in
accordance with section 337(1) and (2)
of that Act.
(10) An application under section 374 of the
Residential Tenancies Act 1997 must be
accompanied by a copy of the notice to leave
given under section 368 of that Act.
(11) An application under section 414(1) of the
Residential Tenancies Act 1997 (unpaid
rent on abandonment) must—
(a) be verified by affidavit; and
(b) be accompanied by a copy of any
receipt or replacement receipt issued by
the Authority to the applicant in respect
of the bond.
(12) In addition to the requirements of
rule 7A.08(7), an application under
section 416 of the Residential Tenancies
Act 1997 must—
(a) set out the name and address of the
landlord; and
(b) be accompanied by a copy of any
receipt or replacement receipt issued by
the Authority to the applicant in respect
of the bond.
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(13) In addition to the requirements of
rule 7A.08(8), an application under
section 417 of the Residential Tenancies
Act 1997 made in circumstances referred to
in section 418 of that Act or on the grounds
set out in section 419 of that Act, must be
accompanied by a copy of any receipt or
replacement receipt issued by the Authority
to the applicant in respect of the bond.
(14) An application by a landlord under
section 417 of the Residential Tenancies
Act 1997 to the Tribunal made in
circumstances referred to in section 419(1)
of that Act must be accompanied by—
(a) if paragraph (a), (b) or (c) of
section 419(1) is applicable, a copy
of the condition report prepared in
respect of the rented premises under
section 35, 97 or 148 of that Act; and
(b) a copy of any quotation, account or
receipt on which the landlord relies to
prove the claim.
7A.08 Particulars to be provided with certain
applications
(1) The following applications must specify the
acts, facts, matters and circumstances,
including relevant dates, being relied on in
support of the application—
(a) an application under section 322, 323
or 324 of the Residential Tenancies
Act 1997 arising out of a notice to
vacate under section 243, 244, 278,
279, 280, 302, 303 or 304 of that Act;
or
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(b) an application under section 374 of the
Residential Tenancies Act 1997 for
the termination of a tenancy agreement
or residency right.
(2) An application under section 322, 323 or 324
of the Residential Tenancies Act 1997
arising out of a notice to vacate under
section 248, 282 or 307 of that Act must
specify the acts, facts, matters and
circumstances, including relevant dates,
being relied on as constituting a failure to
comply with an order of the Tribunal.
(3) An application under section 322, 323 or 324
of the Residential Tenancies Act 1997
arising out of a notice to vacate under
sections 249, 283 or 308 of that Act must
specify the acts, facts, matters and
circumstances, including relevant dates,
being relied on as the basis for giving the
notice to vacate.
(4) An application under section 322, 323 or 324
of the Residential Tenancies Act 1997
arising out of a notice to vacate under
section 250, 284 or 309 of that Act must
specify—
(a) the illegal purpose alleged; and
(b) the acts, facts, matters and
circumstances, including relevant dates,
being relied on to establish that the
rented premises were or the room, site
or caravan was used for an illegal
purpose.
(5) An application under section 322 of the
Residential Tenancies Act 1997 arising out
of a notice to vacate under section 252 of
that Act must specify—
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(a) the statement alleged to have been
made by the tenant; and
(b) the date on which it is alleged the
statement was made.
(6) An application under section 322 of the
Residential Tenancies Act 1997 arising out
of a notice to vacate under section 262 of the
Residential Tenancies Act 1997 must
specify—
(a) the eligibility criterion or criteria which
it is alleged the tenant has ceased to
meet; and
(b) the date on which it is alleged the
tenant ceased to meet the eligibility
criterion or criteria.
(7) An application under section 416 of the
Residential Tenancies Act 1997 must
specify—
(a) the amount of bond sought;
(b) the basis on which the amount is
sought;
(c) the date on which the tenant vacated the
rented premises;
(d) if made by the Director of Housing, the
name of the tenant;
(e) whether any and what amount of bond
was paid on behalf of the tenant by the
Director of Housing; and
(f) the name and address of any person or
body, other than the applicant, who the
applicant believes may have an interest
in an amount of the bond.
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(8) An application under section 417 of the
Residential Tenancies Act 1997 must
specify—
(a) the amount of bond sought;
(b) the basis on which the amount is
sought;
(c) the date on which the tenant delivered
up vacant possession of the rented
premises or the date on which the
landlord became aware that the tenant
had abandoned the rented premises;
(d) the name of the tenant;
(e) if section 418 applies, details of the
amount of rent that has accrued and
remains unpaid or, if section 419
applies, details of the compensation
claimed;
(f) whether any and what amount of bond
was paid on behalf of the tenant by the
Director of Housing; and
(g) the name and address of any person or
body, other than the applicant, who the
applicant believes may have an interest
in an amount of the bond.
(9) An application under section 452(5) or (6) of
the Residential Tenancies Act 1997 must
specify—
(a) the interest which the applicant claims
to have in the tenancy agreement or the
agreement in relation to the residency
right; and
(b) the circumstances in which the
applicant's interest has arisen.
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7A.09 Additional particulars for certain
applications
(1) In addition to the requirements of
rule 7A.07(4), an application made under
section 128(1) or 187(1) of the Residential
Tenancies Act 1997 (unreasonable house or
caravan park rules) must—
(a) specify which rules are considered to be
unreasonable; and
(b) specify the reasons why these rules are
considered unreasonable.
(2) In addition to the requirements of
rule 7A.07(8), a request for determination
under section 339 of the Residential
Tenancies Act 1997 must—
(a) request the making of a possession
order requiring the tenant to vacate the
rented premises; and
(b) set out—
(i) the name and address of the
landlord;
(ii) the name and address of the
tenant; and
(iii) details of the tenant's continued
occupation of the rented premises.
(3) In addition to the requirements of
rule 7A.07(8), a request for determination
relating to an application under section 335
of the Residential Tenancies Act 1997
must—
(a) specify the details of the rent owing at
the date of the affidavit;
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(b) request the making of a determination
of the amount of rent owing to the
landlord by the tenant; and
(c) request the making of a determination
directing the Authority to pay out an
amount of bond to or on account of the
landlord in respect of the rent owing.
(4) In addition to the requirements of
rule 7A.07(8) and (9), a request for
determination relating to a notice to vacate
under section 261 of the Residential
Tenancies Act 1997 may—
(a) specify the details of the rent owing
(if any) at the date of the affidavit;
(b) request the making of a determination
of the amount of rent owing to the
landlord by the tenant (if any); and
(c) request the making of a determination
directing the Authority to pay out an
amount of bond to or on account of the
landlord in respect of the rent owing
(if any).
(5) In addition to the requirements of
rule 7A.07(11), an application under
section 414(1) of the Residential Tenancies
Act 1997 (unpaid rent on abandonment)
must—
(a) request the making of a determination
of the amount of rent owing to the
landlord by the tenant;
(b) request the making of a determination
directing the Authority to pay out an
amount of bond to or on account of the
landlord in respect of the rent owing;
and
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(c) set out—
(i) the name and address of the
landlord;
(ii) the name of the tenant;
(iii) the details of the rent owing at the
date of the affidavit;
(iv) details of the inquiries made by
the landlord as to the whereabouts
of the tenant;
(v) whether the bond was paid on
behalf of the tenant by the
Director of Housing; and
(vi) the name and address of any
person or body, other than the
applicant, who the applicant
believes may have an interest in
an amount of the bond.
7A.10 Documents and particulars required for
certain applications
(1) An application made under section 210 of
the Residential Tenancies Act 1997 must
specify—
(a) the date on which the tenant delivered
up vacant possession or abandoned the
rented premises;
(b) the breach of duty alleged;
(c) the loss or damage caused by the
breach; and
(d) the amount of compensation claimed.
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(2) An application made by a landlord under
section 210 of the Residential Tenancies
Act 1997 for payment of compensation for
loss or damage to the rented premises or a
failure to keep them in a reasonably clean
condition must be accompanied by a copy of
the condition report as required by section 35
of that Act prepared in respect of the rented
premises.
(3) An application made under section 452 of
the Residential Tenancies Act 1997 for
payment of compensation must specify—
(a) the date on which the resident vacated
or abandoned the room, site or caravan;
(b) the breach of duty alleged;
(c) the loss or damage caused by the
breach; and
(d) the amount of compensation claimed.
(4) An application made by a rooming house
owner, caravan park owner, or caravan
owner under section 452 of the Residential
Tenancies Act 1997 for compensation for
loss or damage to a room, site or caravan or a
failure to keep them in a reasonably clean
condition must be accompanied by a copy of
the condition report as required by either
section 97 or 148 of that Act.
7A.11 Form of notice under section 346 of the
Residential Tenancies Act 1997
For the purpose of section 346 of the
Residential Tenancies Act 1997 the notice
must be in Form 9 in Schedule 2.
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7A.12 Warrant of possession
For the purposes of section 355(1)(a) of the
Residential Tenancies Act 1997, a warrant
of possession is in the prescribed form if it is
in Form 10 in Schedule 2.
7A.13 Warrant of possession—Disability Act
2006
For the purposes of section 85B of the
Disability Act 2006, a warrant of possession
is in the prescribed form if it is in Form 10A
in Schedule 2.
7A.14 Withdrawal of proceedings
If an applicant withdraws an application
pursuant to section 74 of the Act, the
notification in writing of withdrawal of the
application must state—
(a) the name of the applicant, respondent
or any other party to the proceeding;
(b) the address of the premises, room and
rooming house, or caravan, site and
caravan park the subject of the
application;
(c) the date of lodgement of the
application;
(d) the tribunal file number (if known);
(e) the hearing date of the application
(if known); and
(f) the venue for the hearing (if known).
7A.15 Re-opening an order
(1) An application referred to in rule 4.19(2)
must be made in person by the party or
representative appearing before the Tribunal
between 9.30 a.m. and 12.00 noon or
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between 2.00 p.m. and 4.00 p.m. on any day
on which the Tribunal sits.
(2) Unless the Tribunal otherwise orders, on
lodging the application, the applicant must
forthwith give notice of the application to all
other parties.
7A.16 Review of certain determinations and
orders
(1) An application for review of a determination
under section 479 of the Residential
Tenancies Act 1997 must be made on notice
to all parties.
(2) The application must—
(a) be in writing;
(b) be supported by affidavit; and
(c) specify—
(i) the name and address of the
landlord;
(ii) the name of the tenant;
(iii) the address of the rented premises;
(iv) the date on which the applicant
was given a copy of the
determination made by the
principal registrar or the Tribunal;
and
(v) details of the breach of, or failure
to comply with, the Residential
Tenancies Act 1997 which the
applicant alleges.
__________________".
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11 Legal Practice List
(1) In item 1.2 of Schedule 1 to the Principal Rules,
for "2004." substitute "2004;".
(2) After item 1.2 of Schedule 1 to the Principal Rules
insert—
"1.3 Vexatious Proceedings Act 2014.".
12 Planning and Environment List
After item 4.14 of Schedule 1 to the Principal
Rules insert—
"4.14A Vexatious Proceedings Act 2014;".
13 Review and Regulation List
After item 5.75 of Schedule 1 to the Principal
Rules insert—
"5.75A Vexatious Proceedings Act 2014;".
14 Civil Claims List
(1) In item 6.6 of Schedule 1 to the Principal Rules,
for "1986." substitute "1986;".
(2) After item 6.6 of Schedule 1 to the Principal Rules
insert—
"6.7 Vexatious Proceedings Act 2014.".
15 Building and Property List
After item 7.9 of Schedule 1 to the Principal Rules
insert—
"7.9A Vexatious Proceedings Act 2014;".
16 Owners Corporations List
(1) In item 9A.3 of Schedule 1 to the Principal Rules,
for "Part 5." substitute "Part 5;".
(2) After item 9A.3 of Schedule 1 to the Principal
Rules insert—
"9A.4 Vexatious Proceedings Act 2014.".
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17 Allocation of Residential Tenancies List—revoked
Clause 11 of Schedule 1 to the Principal Rules is
revoked.
18 Guardianship List
(1) In item 14.5 of Schedule 1 to the Principal Rules,
for "1984." substitute "1984;".
(2) After item 14.5 of Schedule 1 to the Principal
Rules insert—
"14.6 Vexatious Proceedings Act 2014.".
19 Human Rights List
(1) After item 15.6A of Schedule 1 to the Principal
Rules insert—
"15.6B Privacy and Data Protection Act 2014;".
(2) In item 15.8 of Schedule 1 to the Principal Rules,
for "2001." substitute "2001;".
(3) After item 15.8 of Schedule 1 to the Principal
Rules insert—
"15.9 Vexatious Proceedings Act 2014.".
20 New Part 4 of Schedule 1 inserted
After Part 3 of Schedule 1 to the Principal Rules
insert—
"PART 4—RESIDENTIAL TENANCIES
DIVISION
16 Residential Tenancies List
(1) The functions of the Tribunal under the
enabling enactments set out in the items
below are allocated to the residential
tenancies list of the residential tenancies
division.
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16.1 Australian Consumer Law and Fair
Trading Act 2012;
16.2 Disability Act 2006 Division 2 of
Part 5;
16.3 Housing Act 1983;
16.4 Landlord and Tenant Act 1958;
16.5 Owners Corporations Act 2006 Part 6
and Part 11, Divisions 1, 2, 3 and 4;
16.6 Residential Tenancies Act 1997;
16.7 Supported Residential Services
(Private Proprietors) Act 2010
sections 105, 121 and 123;
16.8 Vexatious Proceedings Act 2014.
(2) If the Tribunal has or had functions under
any corresponding previous enactment of an
enabling enactment set out in an item in
subclause (1), or under regulations made
under such a corresponding previous
enactment, those functions are allocated to
the residential tenancies list of the residential
tenancies division.".
21 Schedule 2 Forms
In Schedule 2 to the Principal Rules—
(a) in Form 9, for "Rule 6.29" substitute
"Rule 7A.11";
(b) in Form 10, for "Rule 6.30" substitute
"Rule 7A.12";
(c) in Form 10A, for "Rule 6.30A" substitute
"Rule 7A.13".
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Dated: 27 October 2014
GREG GARDE, President
M. F. MACNAMARA, Vice President
MARK DWYER, Deputy President
MARGARET BAIRD, Senior Member
BILL SIBONIS, Member
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ENDNOTES
1 Rule 4: S.R. No. 65/2008. Reprint No. 2 as at 7 March 2014. Reprinted to
S.R. No. 165/2013. Subsequently amended by S.R. Nos 35/2014
and 133/2014.
Endnotes
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