Building and Civil Application Process at VCAT:
As with all VCAT Lists any Civil Division and Building and Property List proceeding no matter what amount will begin with an application form and can be completed online.
The application requires general details of the claim, who the parties are, a section for orders requested of the Tribunal, reasons for the application and under which Acts you make the claim.
Proceedings in the Civil Claims Division are closer in nature to a court-based contractual or commercial cause than are other proceedings in VCAT.
The jurisdiction conferred by VCAT is limited by subject matter but is unlimited in terms of amount.
Claims below $10,000.00 in value are dealt with differently from larger claims.
- For a case below $10,000.00 costs will almost never be awarded, legal representatives required special leave to appear and strict compliance with the rules of evidence is unnecessary;
- If you want a greater certainty of getting costs and for the rules of evidence to apply a Court is a superior choice;
- A small claim (less than $10,000.00) will almost always be set down for hearing as soon as it is filed and heard within about 8 weeks.
Where the applicant claims more than $10,000 there may be a directions hearing and/or a compulsory conference/mediation and/or other interlocutory steps before the proceeding is set down for hearing:
- Parties can request a compulsory conference or directions in VCAT if they believe it will assist;
- For a quantum between $100,000 and $200,000 VCAT Civil Division gives a quicker hearing time than the Courts and far less complicated interlocutory steps.
- A compulsory conference is not scheduled until after mediation and usually when all evidence, and pleadings have been filed.
- The vast majority of Building cases settle before the final hearing, somewhere around 80-90%, many at mediation, and the remainder at the compulsory conference.
- Once the application has been filed if the matter appears uncomplicated then VCAT will order a mediation; if it failed to settle then there will be a directions hearing; where as if it is a complex claim then the first step is a directions hearing where orders for a timetable are given for pleadings, expert evidence, discovery, joinder applications, mediation or compulsory conference and then final hearing.
- Filing a point of claim is a useful habit (and required if represented by a solicitor) as it will clear the way for initial discussions as without one it can mean that the parties go some way through the process before the issues are fully ventilated.
- Particularly in more complex matters, and where it is desired to expedite proceedings, to attach to the application (or the counterclaim) something of the nature of points of claim, particularised in the usual way.
- This facilitates the obtaining of interlocutory injunctive relief and may expedite the hearing process by avoiding the delays in waiting for a directions hearing and providing points of claim (or counterclaim) and particulars as a result of orders made at that hearing.
- It is also likely to assist in VCAT mediation proceedings in so far as the points of claim (or counterclaim) serve to define the ambit of the dispute between the parties.
- However if the client wants to save costs points of claim are not required at the filing of an application if self represented.
- In some cases the majority of the evidence is provided by experts and the Tribunal may, if it sees fit, require a meeting of the experts in an attempt to resolve the dispute, these are called expert conclaves.
- On the Building and Property List expert evidence is commonly used and the parties will be required to submit a report from the expert prior to the hearing.
- Section 72 of the VCAT Act requires the applicant to serve a copy of any application on each other party and any other person as directed by VCAT, subject to the possibility that the principal registrar undertakes service on behalf of the applicant or an order is made by a member of the Tribunal dispensing with service.
- The provisions of s72 must be read with the provisions of ss140 and 141 of the VCAT Act which make provision for the service of documents and the time at which service is “effective”, respectively.
- VCAT may strike out or dismiss an application or referral if the applicant fails to comply with s 72: see Schokman v Toyota Motor Corporation Ltd [1999] VCAT 646.
Daniel Epstein of Counsel
