change a VCAT hearing date: COVID-19

With so much uncertainty during the COVID-19 pandemic, we believe it is extremely important for tenants to be able to change the VCAT hearing to a later date when situations improve, and there is greater certainty for all. To move the hearing to a later date is also called to adjourn the hearing.

should I change the hearing date?

termination hearings

If the landlord is applying for a termination order – it is especially important you apply to change the hearing date to a time when you are more certain about your situation and more able to take part in the hearing.

We are concerned that – even though there is a ban on landlords giving tenants a Notice to vacate – VCAT can still make possession orders to evict tenants in some circumstances. And the warrants that are required for eviction can still be issued, and may be used during or immediately after the ban ends.

termination for rent arrears

We are concerned that – even though there is a process to help landlords and tenants reach agreement on rent payments during COVID-19 restrictions – landlords are still applying to VCAT for termination orders due to rent arrears when tenants are experiencing financial hardship.

If the landlord is applying for a termination order due to rent arrears and the case goes straight to VCAT – instead of going to alternative dispute resolution first – we strongly recommend you follow our steps to ask for the dispute to be referred for alternative dispute resolution. See: what if a termination application for rent arrears goes to VCAT without alternative dispute resolution? at VCAT applications and the Dispute Resolution Scheme.

If your dispute is not referred for alternative dispute resolution, we recommend you follow the steps below to request the hearing is changed to a later date and repeat your request for the dispute to be referred for alternative dispute resolution.

how to change the hearing date

If you have a VCAT hearing coming up and you want to change the date – you need to ask for an adjournment – this is the official name for changing the hearing to a later date.

step 1. contact the landlord or agent

The first thing you need to do is ask if the landlord/agent agrees with you about changing the VCAT hearing to a later date.

If the landlord/agent agrees that the hearing date can be changed, follow the next steps at:

If the landlord/agent does not agree that the hearing date can be changed, follow the next steps at:

We cannot guarantee you will get an adjournment, but we strongly encourage you to request one.

 

next steps: request adjournment – with consent

If you and the landlord/agent agree on changing the hearing date you need to ask VCAT to make orders to adjourn the hearing.

you have two options

A. you can complete and submit two VCAT forms for adjournment with consent [VCAT website]

  • If you choose this option, VCAT asks that you get their forms in no later than 4.00pm leaving two clear business days before the hearing. That means if your hearing is on Friday you need to get your request in by 4.00pm Tuesday.

or

B. you can complete and send a letter with draft orders to VCAT – see the steps and templates below.

The benefits of using our template letter and draft orders are:

  • it gives you bit more time than the VCAT forms – because as long as the draft consent orders are placed on the file before the hearing, it is likely that the orders will be made.
  • you and the landlord have a bit more control over some of the terms of the adjournment. But, in the end, it will be up to VCAT to decide what the orders will be.

 

If you choose option B – follow the steps below.

making the agreement

step 2. choose some dates

Find a date for the hearing that everyone agrees to. And choose another two or three dates as alternatives, just in case your first choice is not available.

step 3. decide what to include

You may also want to agree on and include some additional terms – for example a date before the hearing that you will give each other copies of your evidence and outline your argument. Note: VCAT may also include additional terms after your draft orders have been submitted.

Extra terms are optional. Only add additional terms that both sides fully agree on. Be careful not to be pressured to add terms you don’t agree with. Keep them simple, measurable, and clear.

step 4. decide who does what

You and the landlord should be clear who will prepare the documents and who will send them to VCAT after everyone has signed them. Either of you can do these things.

If you decide that the landlord will send the draft orders to VCAT, you should insist they also send to or CC your email address in all communications with VCAT about the adjournment.

Also see step 7. sign the orders and step 9. contact VCAT.

preparing documents

step 5. prepare letter to VCAT

Fill in the details on the adjournment with consent letter to VCAT (see template with instructions).

step 6. prepare draft orders

Fill in the details on the draft orders (see template with instructions).

step 7. sign the orders

Both you and the landlord/agent need to sign the draft orders.

  • Whoever prepares the orders should sign them first and then send them to the other person/s for their signature/s.
  • If a physical signature is not possible, you can use a digital signature or give digital consent by reply from a known, or previously declared, email address.
  • If either side gives digital consent by email, a copy of the email giving consent (with the consent draft orders attached) must be provided to VCAT to show there is genuine agreement with the orders (see Electronic Transactions (Victoria) Act 2000).

step 8. keep copies of everything for yourself

Make sure you keep a copy of the letter and draft orders somewhere safe so you can view or send it to VCAT again if you need to.

getting it to VCAT

step 9. make sure you CC the landlord or agent

Before you send any emails to VCAT, make sure you also send to or CC the landlord or agent’s email address, so it is clear to everyone that the draft orders have been submitted.

step 10. email VCAT

If you and the landlord agreed that you will be the one sending documents to VCAT, email VCAT at renting@vcat.vic.gov.au and attach your:

  1. letter to VCAT
  2. consent draft orders
  3. any emails between you and the landlord giving written consent if it is not possible for either you or the landlord to sign the orders by hand or digitally (see step 7.)

step 11. contact VCAT

If you are the one who emailed VCAT, give them a call on 1300 018 228, an hour or so after your email to confirm that they have:

  1. received your documents, and
  2. placed the documents on the file for the VCAT Member who will hear your case.

Even if you agreed that the landlord would send the draft orders to VCAT, it’s a good idea to contact VCAT yourself to make sure they have received the documents and placed them on the file for the VCAT Member who will hear your case.

 

what can VCAT decide?

VCAT can:

  • make orders “on the papers”. This means VCAT will decide if an adjournment can be given based on the documents you have supplied and you don’t have to go to VCAT or have a phone hearing to get an adjournment.
  • make orders that the hearing be adjourned – but with different terms than those that you and the landlord agreed on
  • refuse to make orders granting an adjournment, or dismiss your application.

Do not assume the hearing date has changed. Your hearing will go ahead as originally planned, unless VCAT contact you to confirm a new date and time.

reviewing a VCAT decision

If for any reason VCAT does not make the consent orders for the adjournment – or if they dismiss your application for an adjournment, you can ask for a review:

past decisions

VCAT provides summaries of past cases about rental disputes that you may find useful. See: Useful Supreme Court and VCAT decisions about renting [VCAT website]

sample letter and draft orders – with consent

INSTRUCTIONS FOR TENANTS

1. Copy the sample letter below – or download the file: sample letter and draft orders – with consent [doc, 18kb].

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. Email to: renting@vcat.vic.gov.au and CC the landlord or real estate agent

 

SAMPLE LETTER and DRAFT ORDERS – copy below


Subject: [VCAT REFERENCE NUMBER], [RENTED ADDRESS], [TENANT NAME] v [LANDLORD NAME]

 

[DATE]

 

Victorian Civil and Administrative Tribunal

Residential Tenancies List

55 King Street

Melbourne 3000

 

via email only: renting@vcat.vic.gov.au

 

To the Registrar or Duty Member,

 

Request for Adjournment by Consent Orders to be made on the papers

 

VCAT Reference No: R20[__/____________________]

Tenant/s: [______________________________________________________________]

Landlord/s: [____________________________________________________________]

Rented Premises: [_______________________________________________________]

Existing Hearing time and date (if set): [_____________________________________]

 

I write to you with respect to the above matter and request that that the matter be adjourned in accordance with the enclosed draft consent orders that have been signed/agreed on by both parties.

Please place a copy of these consent order on the matter file and bring this correspondence to the Tribunals attention.

Pease contact the parties immediately, if this adjournment request by the parties has been refused.

 

Sincerely,

 

[NAME/S]

 


Schedule 1

 

IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

RESIDENTIAL TENANCIES LIST

MELBOURNE

 

BETWEEN

[INSERT NAMES]

Applicant/s

 

AND

[INSERT NAMES]

Respondent/s

 

Adjournment by Consent Draft Orders

 

Application made pursuant to the Residential Tenancies Act 1997

1. The parties agree by consent for the matter VCAT Ref: R20[__/_______________] to be adjourned.

2. The parties consent to these Orders being made on the basis of documents pursuant to section 100(2) of the Victorian Civil and Administrative Tribunal Act 1998 and that no personal or phone appearance is required.

3. The matter is adjourned to be heard on a date on or after [___________________].

4. [ADDITIONAL TERMS (OPTIONAL)].

 

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _                    _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

 

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _                    _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Tenant/s signature/s                                                Landlord/s / Agent signatures

 


 

next steps: request adjournment – without consent

If the landlord/agent does not agree to change the hearing date, you can ask VCAT to grant an adjournment.

you have two options

A. you can complete and submit an Adjournment application form [VCAT website]

or

B. you can use our template letter to VCAT – see the steps and templates below.

  • Our template letter includes our views on why hearing may need to be changed to a later date during COVID-19.

 

If you choose option B – follow the steps below.

preparing your case

step 2. write notes

It’s important that you make notes – including dates and times – about your efforts to contact the landlord or agent and your attempts to get an agreement with them. You will need to include this information when you ask VCAT to change the hearing date. And VCAT will consider your efforts when they make their decision.

step 3. work out your reasons

You will need to show VCAT why changing the hearing date is necessary.

You can find some reasons in our template letter but it is important that you include your own views and reasons for your own situation and your own needs.

Think about how your situation has changed and why it would be hard for you to prepare and attend a hearing now.

One thing to consider is that all VCAT hearings until further notice will be by phone and this can be both confusing and harder to present a case. So, we think VCAT will be more understanding and willing to grant an adjournment if it helps resolve disputes and ensure fair hearings. For more about fair hearings, see:

preparing documents

step 4. write letter to VCAT

Write a letter to VCAT to request an adjournment.

To help you get started, we have a template letter you can use.

This template letter includes our views on how the COVID-19 pandemic has made things hard – including making it harder than normal for people to take part in VCAT hearings – and why more time may be helpful for everyone.

If you use our template – it’s important that you include your own views and reasons for requesting the adjournment:

step 5. prepare your evidence

Decide what evidence you would like to provide to VCAT to support your request for adjournment. For example: a medical certificate or letter from your employer.

If your hearing is about rent arrears, you could include evidence of your financial situation such a letter from your employer or as a statement from Centrelink. For examples of evidence VCAT requires from tenants applying to VCAT for a rent reduction, see: Financial circumstances statement in support of a rent reduction application [VCAT website].

important note on sensitive evidence

In most cases, anything you provide VCAT can be seen by all sides as a matter of procedural fairness. But if there is evidence you want to provide to VCAT in support of your request, but you do not want this provided to the landlord/agent (for example: specific medical conditions, mental health circumstances, details about your financial situation, or other sensitive information), contact VCAT before you send your request, to ask for directions on how to provide and protect this sensitive evidence.

Make sure you follow VCAT directions on this as your privacy is important.

If VCAT directs that your evidence cannot be protected, you will need to decide if you want to provide it, knowing the landlord/estate agent will see it, or make more general statements that are less sensitive.

step 6. keep copies of everything for yourself

Make sure you keep a copy of the letter requesting adjournment and any evidence you send to VCAT somewhere safe so you can view or send it to VCAT again if you need to.

getting it to VCAT

step 7. get it in on time

VCAT asks that you get in requests for adjournment no later than 4.00pm leaving two clear business days before the hearing. That means if your hearing is on Friday you need to get your request in by 4.00pm Tuesday.

step 8. make sure you CC the landlord or agent

Except for any sensitive/confidential evidence VCAT has directed can be protected – before you send any emails to VCAT, make sure you also send to or CC the landlord or agent’s email address, so it is clear to everyone that you have requested an adjournment.

step 9. email VCAT

Email VCAT at renting@vcat.vic.gov.au and attach your:

  1. adjournment request letter
  2. evidence supporting your adjournment request
  3. any emails between you and the landlord requesting or refusing to change the hearing date.

Also Include your VCAT reference number, if known, (for example: R2020/…)

step 10. contact VCAT

Call VCAT on 1300 018 228, an hour or so after your email to confirm that they have:

  1. received your request and evidence, and
  2. ask when it is likely the “duty Member” will make the decision.

A VCAT Member is a person who hears and decides cases. A ‘duty Member’ is a Member assigned by VCAT for the day to decide adjournments, and other paper-based requests.

You should also call VCAT the day after you sent your request to ask:

  1. if the adjournment was granted, and
  2. for a copy of the Order.

what can VCAT decide?

VCAT can:

  • make orders that the hearing be adjourned – on the terms you requested.
  • make orders that the hearing be adjourned – on any basis they consider necessary and add extra clauses or directions
  • refuse to make orders granting an adjournment, or dismiss your application.

Do not assume the hearing date has changed. Your hearing will go ahead as originally planned, unless VCAT contact you to confirm a new date and time.

if VCAT refuses your request

If your request for adjournment is refused, the hearing will go ahead at the date and time in the Notice of Hearing from VCAT.

Common reasons for refusing adjournment requests:

  • Not asking the landlord/agent to agree before making a request to VCAT
  • Not providing enough evidence to support your request
  • Attendance by the parties is needed for further directions (for example a notice to vacate for danger or a very large compensation claim made with little, or no supporting evidence)
  • The reason you want the adjournment won’t be any different in the future (for example requesting an adjournment for regular work commitments that will be the same at the time of the adjourned hearing). Please note: As hearings are currently done by phone some reasons may be harder to justify.

make sure you attend the hearing

If VCAT refuses your request to adjourn the hearing – we strongly recommend you attend the hearing at the date and time in your Notice of hearing from VCAT.

You will usually get a better outcome if you attend. In most cases the hearing will go ahead without you and VCAT can make orders that affect you even if you are not there.

And just because your request for adjournment was rejected, this does not stop you from asking for an adjournment at the hearing for other grounds.

See: VCAT hearings and COVID-19.

if you miss a hearing

If, for any reason, you miss a hearing, and find out that VCAT made orders, you can apply to VCAT to review the decision.

reviewing a VCAT decision

You can apply to re-open the order within 14 days of finding out that an order was made.

If VCAT makes a possession order – meaning you have to move out and the landlord gets ‘possession’ of the property – you can apply for a review at any time before the police use a warrant to evict you. However, after police use the warrant to evict it is too late for VCAT to make any orders that your tenancy can continue.

There is no guarantee VCAT will grant a review. You will need to show you had a good reason for not attending the hearing (for example a medical reason) and that you have a case to argue that could make a difference to the order that VCAT has already made.

For more information:

past decisions

VCAT provides summaries of past cases about rental disputes that you may find useful. See: Useful Supreme Court and VCAT decisions about renting [VCAT website].

 

sample letter – without consent

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]

5. Evidence

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: renting@vcat.vic.gov.au and CC the landlord or real estate agent

 

SAMPLE LETTER – copy below


Subject: [VCAT REFERENCE NUMBER], [RENTED ADDRESS], [TENANT NAME] v [LANDLORD NAME]

 

[DATE]

 

Victorian Civil and Administrative Tribunal

Residential Tenancies List

55 King Street

Melbourne 3000

By email: renting@vcat.vic.gov.au

 

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:

[RENT REASONS]

[MORE REASONS]

Please see the evidence attached:

[YOUR EVIDENCE]

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 [2014] HCA 9 (2 April 2014) @[37-39]; Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841 (28 April 1998) @ [71]).

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 [2014] 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.

 

Sincerely

 

[YOUR NAME/S]

 


 

 

tell us your story: COVID-19

If you are finding it hard to get an adjournment, or you think the VCAT experience has been difficult because of COVID-19 – for example you didn’t get enough time to prepare, or you didn’t get access to legal resources or assistance – we will provide your feedback to government and the responsible authorities to seek better outcomes for tenants.

>>> tell us your story

 

Tenants Victoria acknowledges the support of the Victorian Government.