applying for a restraining order: COVID-19 update - Tenants Victoria

    applying for a restraining order: COVID-19 update

    VCAT has broad powers to make an order to restrain a landlord from an action in breach of the Residential Tenancies Act 1997 (Vic) or the tenancy agreement.

    VCAT can also order the landlord to take a positive action so that they comply with the law and the tenancy agreement.

    In other words, VCAT can order that your landlord do something or not do something so that they follow the law and the tenancy agreement.

    So if your landlord does not comply with the tenancy agreement or the Residential Tenancies Act 1997 (Vic) you can apply to VCAT for a restraining order or an order requiring performance of an action.

    Also see: restraining orders vs. intervention orders.

    restraining orders for illegal evictions

    In particular, your landlord must follow the legal eviction process. Your landlord cannot force you to leave even if you stay beyond the termination date in a Notice to vacate. If you believe you are at risk of being illegally evicted you should apply to VCAT for urgent intervention.

    restraining orders for unlawful entry

    You can apply to VCAT for a restraining order if the landlord tries to enter your rented home unlawfully or in any other way urgent relief is required to prevent your landlord from interfering with your quiet enjoyment of your rented home.

    urgent restraining orders

    Previously you would apply for an urgent restraining order, by going to VCAT in person to submit your application and a VCAT staff member would arrange a hearing, typically on the same day. You could do this on an ex parte basis (without the other party there) when urgent relief is required and VCAT could make temporary orders before a full hearing happens.

    temporary interim orders

    If you require urgent relief and VCAT  hears your application on an ex parte basis then VCAT may order an interim restraining order. An interim order is only temporary before the full hearing of your application happens. At the full hearing where it is expected that the landlord or their agent attends and responds to your application and the interim Order, VCAT can then assess whether to affirm (keep in place) the interim order or vary, revoke or make any relevant changes to the Order.

    tip: If you successfully obtain an interim restraining order then you should place a copy of the order on your front door so the landlord knows they cannot enter. Make sure you keep a copy for yourself. And take a photo of the notice on the door so you have evidence of this.

    tip: We strongly recommend that you keep evidence of any breaches of the Order. For example, you could use your phone to record the breaches. You should then present this evidence at the full hearing.

    applying to VCAT

    Under the new COVID-19 laws, before you apply to VCAT, you need to register with Consumer Affairs Victoria first.

    Consumer Affairs Victoria must assess all disputes to decide if they should be referred to:

    To apply to VCAT, you need a reference number from Consumer Affairs Victoria.

    how do I get a reference number for my VCAT application?

    The first step is to register the details of your dispute with Consumer Affairs Victoria:

    If Consumer Affairs Victoria decide that the dispute can go to VCAT, they will give you a reference number to include in your VCAT application.

    what if it’s urgent?

    If you need to make an urgent application to VCAT, for example:

    • you are being threatened with illegal eviction and need a restraining order
    • your rights are being interfered with and you need an urgent restraining order

    Consumer Affairs Victoria may need to assess the dispute in further detail before issuing a reference number. In these circumstances Tenants Victoria recommends you call Consumer Affairs Victoria on 1300 558 181 and request they give you a reference number over the phone to allow you to make an urgent application.

    TIP: we recommend you have your VCAT application ready so you can lodge it with VCAT as soon as Consumer Affairs Victoria gives you a reference number.

    For urgent applications to VCAT during this time, we recommend that you:

    • apply online or via email, see: VCAT Application by a tenant or landlord [VCAT website]
    • mark your application “urgent”, and
    • call VCAT to:
      1. confirm that they have received your application
      2. tell them that you want an urgent interim order
      3. check that the hearing will happen urgently (not in 3-4 weeks).
      4. get the hearing date and time sent to you in writing so you have a record.

    TIP: you should include the reference number from Consumer Affairs Victoria in your application as well as in any emails or letters you send to VCAT about your application.

    notice of hearing

    Typically, you should receive a notice of hearing from VCAT by post. However, you may receive notifications by phone call or text message.

    If or when your application is listed for a full hearing, make sure the landlord or agent also knows the hearing date and time. This way you will avoid any unnecessary delays or adjournments.

    VCAT hearings

    In response to COVID-19, VCAT venues are closed to the public so hearings will be by phone until further notice. For the latest information, see the VCAT hearings during coronavirus restrictions [VCAT website].

    Our understanding is that hearings may not run strictly on time, so make sure you leave extra time before and after your scheduled hearing time.

    VCAT must still observe all other requirements including facilitating a procedurally fair hearing. This means that you must be given a proper right to put forward your submissions (a chance to tell VCAT about your side of the story and why you are asking for the relevant order) and defend any claims made against you (respond to the landlord’s side of the story).

    evidence

    You should still also be prepared to present all relevant evidence that you have to support your case. For example, text messages with threats of unlawful entries.

    It is important to include your evidence with the application to demonstrate to VCAT why it is urgent.

    If you need to submit evidence for a hearing, the latest advice from VCAT is that you can email it to VCAT. Make sure you quote the proceeding reference and mark it as “urgent”.

    request written reasons

    If you do apply to VCAT, you can request written reasons, which will be publicly available. This may help other tenants who face similar situations.

    restraining orders vs. intervention orders

    There is a difference between a restraining order made by VCAT and a Personal Safety Intervention Order (PSIO), which is made by the Magistrates’ Court of Victoria. A PSIO is a court order to protect a person, their children and their property from another person’s behaviour. An intervention order has great utility in terms of protection against violence and arguably has more serious consequences when breached. The existence of an intervention order is not a criminal matter but if breached then it could amount to a criminal charge.

    In comparison, a restraining order in VCAT is considered a civil order and while the police should be able to enforce it, they don’t always do this. We would still recommend that you refer to the police for assistance. If a restraining order is breached then you could apply to VCAT for an order against the other party for contempt or refer the Order to be registered in the Supreme Court of Victoria requiring compliance.

    This information is a guide only and should not be used as a substitute for professional legal advice.

    related pages

    privacy and entry>restraining orders
    rights of entry and COVID-19
    VCAT hearings and COVID-19

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    Tenants Victoria | Published: March 2020 | Modified: June 2020
    Tenants advice line 03 9416 2577 | tenantsvic.org.au
    Tenants Victoria acknowledges the support of the Victorian Government.

    Tenants Victoria acknowledges the support of the Victorian Government.