INSTRUCTIONS FOR TENANTS:
1. Copy the sample letter below – or download the file: sample letter – without consent [doc, 78kb].
2. Fill in your details to replace things [LIKE THIS] and [_______]
3. You can find your VCAT reference number on the notice from VCAT.
It starts with R and the year, for example “R2019/____” or “R2020/____”
4. Reasons for adjournment:
a) We have listed 7 reasons for adjournment related to the COVID-19 pandemic.
- You can keep them all or delete the ones that do not apply to you.
- For number 5. Additional costs and reduced time – write in your own examples to replace: [EXAMPLES OF YOUR INCREASED EXPENSES AND USE OF YOUR TIME]
b) If your VCAT hearing relates to rent arrears (for example, the landlord has applied for a termination order for rent arrears) – but the dispute did not go to Consumer Affairs Victoria first – copy and paste the information below to replace [RENT REASONS].
Rent arrears application not referred for alternative dispute resolution
Pursuant to the Residential Tenancies (COVID-19) Emergency Measures Regulations 2020 all disputes relating to residential tenancies are required to undergo mandatory assessment by the Director of Consumer Affairs of Victoria (regulation 6). And all payment related disputes, including disputes about rent arrears where the arrears are due to me experiencing severe hardship, are to be referred to the Chief Dispute Resolution Officer for alternative dispute resolution before the application can be heard by VCAT (regulation 7).
This application has not been referred for alternative dispute resolution, and I do not believe it is appropriate for VCAT to hear the application, and make any orders, until the dispute is referred in the first instance to the Chief Dispute Resolution Officer.
c) If you want to add more of your own reasons, write them in to replace: [MORE REASONS]
d) If your VCAT hearing does not relate to rent arrears, delete: [RENT REASONS]
e) If you do not have any more reasons, delete: [MORE REASONS]
a) Make sure you read our important note on sensitive evidence before you send any evidence. You can find the note at step 5. prepare your evidence (next steps: request adjournment – without consent).
b) If you want to send evidence to VCAT with this email, to support your reasons for requesting adjournment, write a list of your evidence to replace: [YOUR EVIDENCE]
c) If you are not sending any evidence to VCAT with this email, delete: [YOUR EVIDENCE]
d) Attach copies of the evidence you want to send with this email.
6. Email to: email@example.com and CC the landlord or real estate agent
SAMPLE LETTER – copy below
Subject: [VCAT REFERENCE NUMBER], [RENTED ADDRESS], [TENANT NAME] v [LANDLORD NAME]
Victorian Civil and Administrative Tribunal
Residential Tenancies List
55 King Street
By email: firstname.lastname@example.org
To the Registrar or Duty Member,
Tenant/s: [TENANT NAME/S]
Landlord/s: [LANDLORD NAME/S]
Rented Premises: [RENTED ADDRESS]
Scheduled Hearing Date: [HEARING DATE]
Request for Adjournment: VCAT Reference No: R20[__/____________________]
I write to you with respect to the above matter and request that that the matter be adjourned for a period of approximately [DAYS/WEEKS/MONTHS]. I request that the matter be listed on a date on or after [DATE].
I [have/have not] been able to contact the other party, and we have not been able to reach an agreement to adjourn the matter for a reasonable period of time. [PROVIDE DETAILS OF YOUR ATTEMPTS TO CONTACT/COME TO AN AGREEMENT WITH THE LANDLORD/AGENT]
Reasons for the adjournment
The reason I am requesting an adjournment is:
Please see the evidence attached:
Due to the COVID-19 pandemic, I have reduced capacity to prepare and participate in a hearing via telephone.
1. Reduced access to legal services and information services
Access to tenancy advice and legal services have been reduced at a time when demand for advice has dramatically increased all across the State of Victoria. This means that I have not been able to obtain legal advice or to make a request for legal representations.
I note that I have a right to use a representative if I can find one in relation to possession orders (VCAT Act, Schedule 1, Clause 67).
With all hearings currently being conducted by phone, this makes it very difficult for me to prepare my matter, give instructions and to easily present my case to the Tribunal in a procedurally fair manner.
Legal matters pertaining to or affected by the COVID-19 pandemic, also mean that legal advice or submission may become more complicated in relation to the competing rights of parties and more time is required to formulate and be able to consider how the law applies during the pandemic.
2. Lack of ability to obtain Statutory Declarations or Witness Statements
In order to prepare for my matter, I may wish to use witnesses or sworn witness statements in the form of Statutory Declarations. Because of the restrictions on movement and contact during the pandemic, I believe it is more difficult for me to obtain supporting evidence and statements that I may need to make my case.
3. Reduced access to Centrelink and other public authorities
In relation to my current financial situation, financial services and advice services have also surged in demand, and I have been unable to obtain full advice in relation to my financial affairs.
I also note that Centrelink, NDIS, and other bodies are under dramatic pressure, and I have not been able to obtain a timely decision or information about my current situation.
I believe this puts me at a substantial disadvantage and vulnerability if the matter is forced to proceed expeditiously as if these access issues were not relevant. I believe they are relevant and that this is a matter of justice and procedural fairness.
4. Requirement to appear on the phone and case preparations
While I respect the Tribunal’s need to protect all staff and parties, I believe that being required to appear on the phone limits the Tribunal’s ability to observe my person, and draw inference in relation to credibility and conduct.
While parties can request to appear on the phone for various reasons, being compelled to appear on the phone limits the observations available to the Tribunal and the ease with which I can present evidence that I may not have realised is relevant to the proceeding.
It is long standing principle, that when decision makers are forced to make findings of credibility, inferences from behaviour and appearances are relevant and can be telling for the discerning Member. I believe that this may be relevant in my matter.
5. Additional costs and reduced time
Since the introduction of the Restricted Activity and Stay at Home Directions, I have experienced greater expenses to support myself and my household’s wellbeing, along with reduced time while adjusting to continue to perform or provide pre-existing commitments in this new ‘stay-at-home’ environment.
The reduction in available time and economic resources has reduced my ability to prepare properly for a hearing.
[EXAMPLES OF YOUR INCREASED EXPENSES AND USE OF YOUR TIME]
6. Negotiations and problem solving
The current COVID-19 pandemic also presents additional complications in relation to locating alternative accommodation. The Tribunal is empowered to grant adjournments on any basis it deems fit and may attach various conditions if it believes appropriate (Section 130 VCAT Act for matter generally; section 331 (2) RT Act for possession orders specifically).
Given the current circumstances, it is submitted that it is in all parties’ best interests to be given an adjournment that gives parties clear direction to comply with the rules, to enable to proper exchange of evidence, submissions, consideration of any witnesses, and for parties to be adequately equipped to engage the Tribunal via the phone, as well as being able to negotiate off the record, rather than during the call in the Open Court which is recorded by the audio in the hearing room.
7. Charter considerations
Pursuant to the Charter of Human Rights and Responsibilities 2006 (Charter), I am requesting the Tribunal interpret the law and give proper construction to the available use and purposes of adjournment powers in both the VCAT Act and the Residential Tenancies Act (Taylor v the Owners – Strata Plan No 11564  HCA 9 (2 April 2014) @[37-39]; Project Blue Sky v ABA  HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841 (28 April 1998) @ ).
In a time of crisis, I submit the Tribunal has extremely wide powers and may take into account anything it deems relevant to grant the adjournment and consider the competing Human Rights of each party and consequences of the matter proceeding at the proposed time.
Section 32 of the Charter mandates the most favourable human right construction of the law, and that if this does give rise to a residual discretion, that the Tribunal is mandated to give proper consideration pursuant to section 38 of the Charter.
This involves the balancing of human rights and the respective detriment (if any) in granting the adjournment and affording me procedural fairness in these unusual times.
I believe my charter interests prevail over that of the landlord’s and this is an approach consistent with the common law. Specifically, that the common law and the Charter mandates a construction that is consistent with an approach a set out in Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288  HCA 36 (8 October 2014) at paragraph 126, where the High Court states that the common law… “values the physical integrity of a person at a level well above the interests of commerce”.
I submit that this is a relevant consideration to my request for an adjournment for the above reasons and while the government is determining how best to balance the safety of individuals in the community (such as myself) and the commercial interests of landlords.
Please contact me via email to confirm whether the adjournment has been granted.