Appealing a decision of VCAT to the Supreme Court (Trial Division) and Court of Appeal

This article considers the relevant Acts, Rules and Practice Notes that apply in appealing a VCAT decision, identifies the documents that must be prepared, and provides an overview of the relevant appeal steps.

 

VCAT has jurisdiction to hear and determine (among other things) domestic building disputes under the Domestic Building Contracts Act 1995 (Vic).  Accordingly, it is important to know the mechanism by which a VCAT decision can be appealed.

A party to a proceeding in VCAT may apply to the Supreme Court for leave to appeal a decision on a question of law only.[1]  There is no right of appeal without leave.

If the VCAT member who made the Tribunal decision was the President, or a Vice President, of VCAT, the application for leave to appeal (and, if leave is granted, the appeal) is to the Court of Appeal.[2]  In any other case, the application for leave is to the Trial Division of the Supreme Court.[3]

An application for leave to appeal must be lodged no later than 28 days after the day of the order made by the Tribunal.[4]

The relevant rules of the Supreme Court provide for a two-step process: first, the hearing of the application for leave; and second (if leave is granted), the hearing of the appeal itself.  However, the rules also allow for the application for leave, and the appeal itself, to be heard and determined together.[5]

Part A.        Appeal to the Trial Division of the Supreme Court of Victoria

An appeal to the Trial Division of the Supreme Court is governed by:

1. section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (“VCAT Act”).
2. the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) (“Rules”), and
3. Practice Note SC CL 9,^[6] entitled “Judicial Review and Appeals List”.

Key documents to be filed and served

All documents filed in the Supreme Court should be endorsed: “In the Judicial Review and Appeals List”.[7]  The key documents are:

1. originating motion;[8]
2. summons;[9]
3. affidavit in support;[10] and
4. proposed notice of appeal (to be exhibited to the affidavit in support). [11]

The originating motion must be filed at the Supreme Court,[12] with a sealed copy delivered to VCAT,[13] and it must be served on the proposed respondent[14] as soon as practicable after filing.[15]

Within seven days after filing the originating motion, a summons must be filed in support of the application.  Importantly, the summons must be served at least 14 days before the hearing day named in the summons.[16]

The affidavit in support of the application must set out the acts, facts, matters and circumstances relating to the Tribunal’s order, and those relating to the grounds relied on in the (draft) notice of appeal.[17]

The affidavit in support must exhibit:

1. a copy of the Tribunal orders against which leave to appeal is sought, including any reasons for decision; and
2. a copy of the proposed notice of appeal.[18]

The (draft) notice of appeal must set out:[19]

1. the order of the Tribunal;
2. whether the appeal is from the whole or part only of the order and, if so, what part;
3. if the appeal was brought by leave, when leave was given and by whom;[20]
4. the question of law, if any, upon which the appeal is brought or which is involved in the order, as the case requires;
5. concisely the grounds of appeal; and
6. the names of all the persons on whom it is proposed to serve the notice of appeal.

Directions hearing

Once an application for leave to appeal (i.e. originating motion, summons, and affidavit in support, including draft notice of appeal) has been filed and served, the matter will be listed for directions (only) in the Supreme Court.[21]  At the directions hearing the Court:

1. will fix a timetable for the hearing of the application for leave and for trial (assuming leave is granted); and
2. may order that the application for leave be referred to the Judge who would hear the substantive appeal.[22]

At the directions hearing, the Court will likely order, among other things, that submissions and lists of authorities be filed and served within a set timeframe, and that the applicant/appellant prepare (and file and serve) a Court book prior to hearing.[23]

An application for leave to appeal does not operate as a stay of VCAT’s order.

Hearing of leave application and / or appeal proper

If, at the directions hearing, the Court orders that the application for leave proceed separately, then that application will generally be heard by an Associate Judge of the Supreme Court.[24]

The Associate Judge will hear and determine the leave application in accordance with the timetable set at the directions hearing.  If the Associate Judge refuses the grant of leave, the applicant may appeal to the Court of Appeal.[25]

If the Associate Judge grants leave to appeal, the Associate Judge will also give directions as to the hearing of the appeal proper.[26]

Once leave to appeal is granted, the next step is to file and serve the (finalised) notice of appeal.[27]  The requirements of the notice of appeal are set out above.  A copy of the notice of appeal must be delivered to the Tribunal.[28]

A Judge of the Court will hear and determine the appeal proper, in accordance with the trial directions previously made.  The Court may make:

1. an order affirming, varying, or setting aside the order of the Tribunal;
2. an order that the Tribunal could have made in the proceeding;
3. an order remitting the proceeding to the Tribunal to be heard and determined again;
4. any other order the Court thinks appropriate.

Part B.        Appeal to the Court of Appeal

Appeals from a decision of a President or Vice President of VCAT to the Court of Appeal are also regulated by section 148 of the VCAT Act.  However, the Rules that apply are different, and are, principally, those contained in Order 64 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).  Further, in the Court of Appeal, Practice Note SC CA 3[29] applies.

An appeal is lodged by filing, electronically, the relevant appeal documents (identified below), in Word or searchable PDF format, and by paying the requisite fee.[30]  When the appeal is lodged the applicant must notify the Registrar if the matter is urgent or complex, whether more than a one day hearing is likely to be required, and if there are any related proceedings.[31]

An application for leave to appeal must be in accordance with Form 64A.[32]  It must state specifically and concisely the proposed grounds of appeal, and a statement of the reasons why leave should be granted, and if an oral hearing is requested.[33]

At the same time as filing the completed Form 64A, an applicant must file (and serve within five days of filing), the following:[34]

1. its “written case”;
2. a list of authorities;
3. a copy of the authenticated order sought to be appealed;
4. a copy of the Tribunal’s written reasons;
5. a draft application book index; and
6. a draft Summary for the Court of Appeal.

The respondent to the application then has 28 days after the application is served to file its written case in response.[35]

The “written case”

The written case is analogous to a party’s written submissions in support of its position.  The written case must “specifically and concisely” set out the submissions relied on in support of each ground of appeal,[36] and must not exceed ten pages in length.

Summary for the Court of Appeal

The draft Summary, which is filed at the same time as the originating motion:

1. must contain a summary of the facts and a summary of the proceedings and issues;
2. should be settled by counsel; and
3. must not exceed ten pages.[37]

The respondent may notify the applicant of any proposed changes to the draft Summary.  Where that occurs, the parties must agree on any changes to the Summary.  The applicant must file and serve an agreed Summary within ten days of the applicant receiving the respondent’s proposed changes.  The parties are not permitted to file separate summaries.[38]

The purposes of the Summary are:

(a)    to assist the Court in its preparation for, and consideration of, the application, so that the Court may quickly understand the issues; and

(b)    to form the basis of the introductory statement of facts that will form part of the Court of Appeal’s reasons for judgment.[39]

Application book

Once the respondent’s written case in response has been received, the Registrar will settle the contents of the application book index.[40]  The “responsible party”, usually the applicant,[41] must prepare the application book for checking by the Registrar, and, once settled, must file three copies and serve it on the parties. [42]  The responsible party is also responsible for preparing and filing the combined folder of authorities.[43]

Once the Registrar is satisfied with the documents that have been filed, the Registrar will refer the matter to the Court for determination.[44]

The determination of the application for leave to appeal

The Court of Appeal will decide whether an oral hearing is required[45] and may make its decision “on the papers”.

The Rules also provide that the Court of Appeal may treat the hearing of the application for leave as the hearing of the appeal.[46]

The Court of Appeal has wide powers on appeal and may make any of the orders identified above.

Further information

For further information, see the excellent commentary on s 148 of the VCAT Act contained in: J Pizer and E Nekvapil, Pizer’s Annotated VCAT Act, (Thomson Reuters, 5^th ed, 2015), from p 875.

 

[1] Section 148(1) of the VCAT Act.

[2] Section 148(1)(a) of the VCAT Act.

[3] Section 148(1)(a) of the VCAT Act.

[4] Section 148(2)(b) of the VCAT Act.  An extension of time to the 28 day period or any other time period fixed under s 148 may be granted – see s 148(5).

[5] Rule 4.14(3) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) permits (in the Trial Division) the hearing of the application for leave and the appeal together, at the same time, if the “justice of the case requires”. See also Order 64.19 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), which permits the Court of Appeal constituted by two or more Judges of Appeal to treat an application for leave to appeal as the hearing of the appeal.

[6] Available at: http://www.supremecourt.vic.gov.au/home/law+and+practice/practice+notes/practicenotesccl9judicialreviewandappealslist

[7] Practice Note SC CL 9, Judicial Review and Appeals List, paras 4.1 and 5.1.

[8] Rule 4.06(2) and using Form 5C.

[9] Rule 4.08(1).

[10] Rule 4.07.  Technically, an applicant has seven days from filing the originating motion to file an affidavit in support of the appeal.  However, in many cases the most efficient process to commence an appeal may be to file and serve the originating motion, summons and affidavit all at the same time, unless the applicant is faced with a looming deadline.

[11] Rule 4.07(3).

[12] Practice Note SC CL 9 sets out how to file and obtain a return date for the first hearing (see para 6.1 of the Practice Note).

[13] Rule 4.06(4)(a).

[14] Note: VCAT is not a proper party to an application for leave to appeal or to an appeal: Wright v Victorian Civil and Administrative Tribunal (2001) 17 VAR 306, 307.

[15] Rule 4.06(4).

[16] Rule 4.08(3).

[17] Rule 4.07(2).

[18] Rule 4.07(3).

[19] Rule 4.11.

[20] This information can only be included once the leave application has been heard and determined.

[21] Practice Note SC CL 9, paras 6.1 to 6.4.

[22] If such an order is made, the practical effect is that the leave application and the appeal itself can be heard and determined at the one hearing.

[23] Practice Note SC CL 9 at para 9 and Schedule 1.

[24] Rule 4.08.

[25] Rule 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

[26] Rule 4.09(3).

[27] Rule 4.11.

[28] Rule 4.11(2).

[29] The full name of the practice note is “Supreme Court of Victoria, Practice Note SC CA 3, Civil Appeals”.

[30] Practice Note SC CA 3 para 5.1.  The documents are filed electronically at coaregistry@supcourt.vic.gov.au

[31] Practice Note SC CA 3 para 5.4.

[32] Practice Note SC CA 3 para 5.4.

[33] Practice Note SC CA 3 para 6.3.

[34] Practice Note SC CA 3 paras 5.6 and 6.4.  Within seven days of service, the party filing and serving documents must file a Form 64C; a “List of Served Parties”.

[35] Practice Note SC CA 3 para 6.2.

[36] Practice Note SC CA 3 para 9.3.  The written case for the respondent must set out the submissions relied on to oppose each ground of appeal.

[37] Practice Note SC CA 3 para 12.1.

[38] Practice Note SC CA 3 para 12.10.

[39] Practice Note SC CA 3 para 12.2.

[40] Which the applicant filed in draft when filing its application – see above.  The “application book”, like a “court book”, is the repository of relevant documents used by the parties and the Court at the hearing.

[41] Practice Note SC CA 3 refers to the “responsible party”, which is the applicant if legally represented.  If the applicant is not represented but the respondent is represented, then the responsible party is the respondent.  If neither party are represented then the responsible party is the applicant.

[42] See Practice Note SC CA 3 at paras 14.1 to 14.7.  Note that the application will be taken to be abandoned if the applicant does not deliver to the Registrar an application book as required.

[43] Practice Note SC CA 3 para 15.1 to 15.7.

[44] Practice Note SC CA 3 paras 17.3-17.4.

[45] Practice Note SC CA 3 para 17.5.

[46] Rule 64.19 of Supreme Court (General Civil Procedure) Rules 2015 (Vic).