Victorian Civil and Administrative Tribunal (Amendment No. 4) Rules 1999

i Victorian Civil and Administrative Tribunal (Amendment No. 4) Rules 1999 S.R. No. 115/1999 TABLE OF PROVISIONS Rule Page 1. Object 1 2. Authorising provisions 1 3. Principal Rules 1 4. Entry of a proceeding in a list 1 5. Substitution of Rule 6.10 2 6.10 Re-opening on substantive grounds 2 6. Applications 4 7. Documents to accompany an application 5 8. Notification of commencement by principal registrar 5 9. New Rule 6.14.1 6 6.14.1 Counterclaim 6 10. New service provisions 6 6.37.1 Mode of service 6 6.37.1A Service prior to lodgement 6 11. Information to be contained in applications in the residential tenancies list 6 12. Documents required to be included with certain applications 7 13. Particulars required to be included with certain applications 8 6.39 Particulars to be provided with certain applications 8 6.39.1 Documents and particulars required for certain applications 10 14. Application for order extending the time in which a warrant of possession may be executed 12 6.40.1 Warrant of possession—application for order extending time 12 15. Re-opening of order—notice of application 13 16. New Rule 6.42.1 13 6.42.1 Review of certain determinations and orders 13 17. Amendment to Schedule 1—allocation of functions 14 18. New Forms 14 -- 1 of 21 -- Rule Page ii Form 7A—Notice to applicant for review in the civil claims list under section 120 15 Form 7B—Notice to other parties of an application for review in the civil claims list under section 120 17 ═══════════════ NOTES 19 -- 2 of 21 -- 1 STATUTORY RULES 1999 S.R. No. 115/1999 Victorian Civil and Administrative Tribunal Act 1998 Victorian Civil and Administrative Tribunal (Amendment No. 4) Rules 1999 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 make certain amendments to the provisions in the Principal Rules concerning proceedings to be dealt with in the civil claims list and the residential tenancies list and the composition of the occupational and business regulation list. 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. Principal Rules In these Rules, the Victorian Civil and Administrative Tribunal Rules 19981 are called the Principal Rules. 4. Entry of a proceeding in a list (1) In Rule 2.05(2) of the Principal Rules, after "President" insert "or a Vice-President". -- 3 of 21 -- S.R. No. 115/1999 Victorian Civil and Administrative Tribunal (Amendment No. 4) Rules 1999 2 (2) Rule 2.05(3) of the Principal Rules is revoked. (3) For Rule 2.05(4) of the Principal Rules substitute— "(4) At the request of— (a) a party to the proceeding; or (b) the principal registrar; or (c) a member— the Deputy President in charge of a list in which a proceeding is entered who may also be the member referred to in sub-paragraph (c) or in the absence of that Deputy President a member assigned to that list nominated by that Deputy President for the purposes of this sub-rule, may order the transfer of the proceeding from that list to another list.". (4) For Rule 2.05(5) of the Principal Rules substitute— "(5) An order can only be made under sub-rule (4) with the consent of the Deputy President in charge of the list to which the proceeding is to be transferred, or in the absence of that Deputy President, a member assigned to that list nominated by the Deputy President of that list for the purposes of this sub-rule.". (5) In Rule 2.05(7) of the Principal Rules for "registrar may, with the consent" substitute "registrar or a member may with the written consent". 5. Substitution of Rule 6.10 For Rule 6.10 of the Principal Rules substitute— "6.10 Re-opening on substantive grounds (1) This Rule does not apply to a claim or dispute under the Fair Trading Act 1999 r. 5 -- 4 of 21 -- S.R. No. 115/1999 Victorian Civil and Administrative Tribunal (Amendment No. 4) Rules 1999 3 that has been heard by the Tribunal that involves a claim exceeding $10 000. (2) Despite Rule 4.18, except with the leave of the Tribunal, only one application may be made by the same party under section 120 of the Act in respect of the same matter. (3) An application under section 120 of the Act must be in the form of an affidavit or statutory declaration that contains— (a) the name, current address, telephone number and facsimile number (if any) of the applicant; and (b) the number of the original proceeding for which the review is requested; and (c) the date on which and the manner in which the applicant became aware of the order in respect of which a review is requested; and (d) the reasons of the applicant for not attending or not being represented at the original hearing— and must exhibit any documents in support of the matters referred to in sub-paragraphs (a) to (d). (4) On the lodgement of an application under section 120 of the Act the principal registrar— (a) may require the applicant to comply with the requirements of sub-rule (3) by requesting the applicant to provide a further affidavit or statutory declaration; and r. 5 -- 5 of 21 -- S.R. No. 115/1999 Victorian Civil and Administrative Tribunal (Amendment No. 4) Rules 1999 4 (b) must advise the applicant by notice in Form 7A and the other parties by notice in Form 7B, of the procedures of the Tribunal with respect to the future conduct of the application; and (c) must, as soon as practicable, list the application for hearing. (5) The Tribunal may— (a) of its own motion; or (b) at the request of the principal registrar; or (c) at the request of the applicant— give any directions for the conduct of the application which the Tribunal thinks conducive to its effective, complete, prompt and economical determination. (6) A direction may concern, but is not restricted to— (a) whether or not the attendance at the Tribunal of any witness, including the applicant, is required; (b) the variation of any requirement concerning the content of and the giving of notices under sub-rule (4). (7) On the determination of the application the principal registrar must give a copy of the determination of the Tribunal to the parties.". 6. Applications (1) In Rule 6.11(1) of the Principal Rules, for sub- paragraphs (d), (e), (f), (g) and (h) substitute— "(d) a brief description of the goods and/or services provided, the date of the transaction and the date the dispute arose; r. 6 -- 6 of 21 -- S.R. No. 115/1999 Victorian Civil and Administrative Tribunal (Amendment No. 4) Rules 1999 5 (e) if the application includes a claim under the Small Claims Act 1973, whether if any respondent or sufficiently interested party has at any stage asked for the payment of money, the amount asked, when and how much (if any) was paid and to whom; (f) specify— (i) the remedy sought; and (ii) whether the claim is brought under any one or more of the Fair Trading Act 1999, the Small Claims Act 1973 or the Motor Car Traders Act 1986; and (iii) the amount claimed; (g) a brief history of the dispute (with any relevant documents).". (2) Rule 6.11(2) of the Principal Rules is revoked. 7. Documents to accompany an application At the end of Rule 6.12 of the Principal Rules insert— "(2) Nothing in sub-rule (1) precludes an application being accompanied by any other document the applicant considers relevant to the determination of the application.". 8. Notification of commencement by principal registrar At the end of Rule 6.14 of the Principal Rules insert— "(2) For the purposes of section 72(2)(a) of the Act, in a proceeding entered in the civil claims list and subject to any order of the Tribunal, if the principal registrar undertakes service of an application on behalf of the applicant, the time period for service shall be r. 7 -- 7 of 21 -- S.R. No. 115/1999 Victorian Civil and Administrative Tribunal (Amendment No. 4) Rules 1999 6 within 28 days after lodgement of the application with the Tribunal.". 9. New Rule 6.14.1 After Rule 6.14 of the Principal Rules insert— "6.14.1 Counterclaim Rules 6.09 to 6.14 apply with any necessary modification to a counterclaim.". 10. New service provisions For Rule 6.37.1 of the Principal Rules substitute— "6.37.1 Mode of service A copy of an application to the Tribunal under section 214, 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. 6.37.1A Service prior to lodgement (1) Despite Rule 4.06, an applicant may serve a copy of an application or referral under an enactment allocated to the residential tenancies list prior to the application being lodged with the principal registrar or a registrar of the Magistrates' Court. (2) If a copy of the application or referral is served prior to being lodged, the application or referral must be lodged in accordance with Rule 4.05 within 7 days after service of the copy.". 11. Information to be contained in applications in the residential tenancies list In Rule 6.37.2 of the Principal Rules— r. 9 r. 11 -- 8 of 21 -- S.R. No. 115/1999 Victorian Civil and Administrative Tribunal (Amendment No. 4) Rules 1999 7 (a) for "include" substitute "specify"; (b) after paragraph (e) insert— "(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 Board Authority bond number or numbers; (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.". 12. Documents required to be included with certain applications (1) After Rule 6.38(5) of the Principal Rules insert— "(5.1) 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.". (2) For Rule 6.38(13) of the Principal Rules substitute— "(13) 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 paragraphs (a), (b) or (c) of section 419(1) are applicable, a copy of the -- 9 of 21 -- S.R. No. 115/1999 Victorian Civil and Administrative Tribunal (Amendment No. 4) Rules 1999 8 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.". 13. Particulars required to be included with certain applications For Rule 6.39 of the Principal Rules substitute— "6.39 Particulars to be provided with certain applications (1) An application— (a) under section 322, 323 or 324 of the Residential Tenancies Act 1997 arising out of a notice to vacate under sections 243, 244, 278, 279, 280, 302, 303 or 304 of that Act; or (b) under section 374 of the Residential Tenancies Act 1997 for the termination of a tenancy agreement or residency right— must specify the acts, facts, matters and circumstances, including relevant dates, being relied on in support of the application. (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 r. 13 -- 10 of 21 -- S.R. No. 115/1999 Victorian Civil and Administrative Tribunal (Amendment No. 4) Rules 1999 9 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— (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 r. 13 -- 11 of 21 -- S.R. No. 115/1999 Victorian Civil and Administrative Tribunal (Amendment No. 4) Rules 1999 10 (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; and (b) the basis on which the amount is sought; and (c) the date on which the tenant vacated the rented premises. (8) An application under section 417 of the Residential Tenancies Act 1997 must specify— (a) the amount of bond sought; and (b) the basis on which the amount is sought; and (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. (9) An application under section 452 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 tenancy right; and (b) the circumstances in which the applicant's interest has arisen. 6.39.1 Documents and particulars required for certain applications r. 13 -- 12 of 21 -- S.R. No. 115/1999 Victorian Civil and Administrative Tribunal (Amendment No. 4) Rules 1999 11 (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; and (b) the breach of duty alleged; and (c) the loss or damage caused by the breach; and (d) the amount of compensation claimed. (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; and (b) the breach of duty alleged; and (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 r. 13 -- 13 of 21 -- S.R. No. 115/1999 Victorian Civil and Administrative Tribunal (Amendment No. 4) Rules 1999 12 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.". 14. Application for order extending the time in which a warrant of possession may be executed After Rule 6.40 of the Principal Rules insert— "6.40.1 Warrant of possession—application for order extending time (1) An application under section 354(1) of the Residential Tenancies Act 1997 for an order extending the time in which a warrant of possession may be executed may be made to the Tribunal orally or in writing. (2) If the application is made orally, the application must be made in person by the applicant or his or her representative appearing before the Tribunal between 9.30 a.m. and 12 noon or between 2.00 p.m and 4.00 p.m on any day on which the Tribunal sits. (3) If the application is made in writing, the application must— (a) be supported by affidavit; and (b) request the making of an order extending the time in which the warrant of possession may be executed; and (c) set out— (i) the name and address of the landlord; and (ii) the name of the tenant; and r. 14 -- 14 of 21 -- S.R. No. 115/1999 Victorian Civil and Administrative Tribunal (Amendment No. 4) Rules 1999 13 (iii) the address of the rented premises; and (iv) the date until which the extension is sought; and (v) the circumstances which are alleged to make the extension necessary.". 15. Re-opening of order—notice of application After Rule 6.42(2) of the Principal Rules insert— "(3) Sub-rule (2) does not apply to an application lodged by a party in accordance with Rule 4.05(3). (4) Unless the Tribunal otherwise orders, on lodging the application, the applicant must forthwith give notice of the application to all other parties.". 16. New Rule 6.42.1 After Rule 6.42 of the Principal Rules insert— "6.42.1 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; and (b) be supported by affidavit; and (c) specify— (i) the name and address of the landlord; and (ii) the name of the tenant; and r. 15 -- 15 of 21 -- S.R. No. 115/1999 Victorian Civil and Administrative Tribunal (Amendment No. 4) Rules 1999 14 (iii) the address of the rented premises; and (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.". 17. Amendment to Schedule 1—allocation of functions In Schedule 1 to the Principal Rules, in Part 1, after clause 3(e) insert— "(eaa) Children's Services Act 1996;". 18. New Forms In Schedule 2 to the Principal Rules, after Form 7 insert— r. 17 -- 16 of 21 -- S.R. No. 115/1999 Victorian Civil and Administrative Tribunal (Amendment No. 4) Rules 1999 15 "FORM 7A Victorian Civil and Administrative Tribunal Rules 1998 NOTICE TO APPLICANT FOR REVIEW IN THE CIVIL CLAIMS LIST UNDER SECTION 120 Rule 6.10(4)(b) To: [name of applicant] Tribunal File Number— You have made an application for review pursuant to section 120 of the Act. It will be heard on day of at . Your application should have been made within 14 days of becoming aware of the order of the Tribunal and you must have a reasonable excuse as to why you did not attend or were not represented at the original hearing of the claim. You may be ordered to pay the costs of other parties as a condition of the granting of an order. The application for review will only decide if the order made at the original hearing should be re-opened. If re-opened, the original application will be listed for another day and time when the hearing will proceed as if it had not been heard on a previous occasion except as to any evidence given previously. All other parties to the application have been informed of your application and provided with a copy of your affidavit, statutory declaration and any other supporting documents. They must decide whether to appear at the application for review. A party who appears at the hearing of an application for review may give evidence— (a) that contradicts your reasons in the affidavit or statutory declaration for your non-attendance or non-representation at the original hearing or the date and manner in which you became aware of the order of the Tribunal; and (b) of their costs associated with the request for or granting of the application. r. 18 -- 17 of 21 -- S.R. No. 115/1999 Victorian Civil and Administrative Tribunal (Amendment No. 4) Rules 1999 16 You must attend the hearing of the application for review, failing which the original order will remain in force. Applications for review are not readily granted—you must have all your evidence with you at the hearing. If this is your second or later application concerning the same order, you must additionally provide information as to why the Tribunal should give you leave to make more than one application for review. Dated— [Signed] Principal Registrar _______________ r. 18 -- 18 of 21 -- S.R. No. 115/1999 Victorian Civil and Administrative Tribunal (Amendment No. 4) Rules 1999 17 FORM 7B Victorian Civil and Administrative Tribunal Rules 1998 NOTICE TO OTHER PARTIES OF AN APPLICATION FOR REVIEW IN THE CIVIL CLAIMS LIST UNDER SECTION 120 Rule 6.10(4)(b) To: [name(s) of parties] Tribunal File Number— An application for review of the decision in this matter has been lodged with the Tribunal. It will be heard on day of at . Enclosed is a copy of the affidavit, statutory declaration and any other accompanying documents in support supplied by the applicant. An application for review must be made within 14 days of the person against whom the order has been made becoming aware of the order of the Tribunal and there must be a reasonable excuse as to why that person did not attend or was not represented at the original hearing of the claim. The application for review will only decide if the order made at the original hearing should be re-opened. If re-opened the original application will be listed for another day and time when the hearing will proceed as if it had not been heard on a previous occasion except as to any evidence given previously. You must decide whether or not to appear at the hearing of the application for review. (1) If you do not appear at the hearing— (a) if the application for review is unsuccessful, a copy of the order dismissing the application for review and confirming the original order will be sent to you; or (b) if the application for review is successful, a new date of hearing will be notified to all parties in due course when the hearing will proceed as if it had not been heard on a previous occasion; or r. 18 -- 19 of 21 -- S.R. No. 115/1999 Victorian Civil and Administrative Tribunal (Amendment No. 4) Rules 1999 18 (2) If you appear at the hearing (notification of the date of which will be given shortly) you may give evidence— (a) that may contradict the reasons in the affidavit or statutory declaration of the applicant for review for the applicant's non- attendance or non-representation at the original hearing and that may concern the date and manner in which the applicant became aware of the order of the Tribunal; and (b) of your costs associated with the request for or granting of the application. IMPORTANT The Tribunal will basically be dealing with the issue as to why the applicant for review did not appear or was not represented at the original hearing, and when that applicant became aware of the order of the Tribunal. The Tribunal will not be dealing with the case as set out in the claim form. If this is the second or later application concerning the same order, you may additionally provide evidence at the hearing of the application for review as to why the Tribunal should not give the applicant leave to make more than one application. Dated— [Signed] Principal Registrar". Dated: 13 September 1999 MURRAY B. KELLAM, President FRED G. DAVEY, Vice-President TIM WOOD, Vice-President JANE MONK, Member ═══════════════ r. 18 -- 20 of 21 -- S.R. No. 115/1999 Victorian Civil and Administrative Tribunal (Amendment No. 4) Rules 1999 19 NOTES 1 Rule 3: S.R. No. 87/1998. Reprint No. 1 as at 1 September 1999. Notes -- 21 of 21 --