Appeal a decision made by VCAT

What is an appeal?

An appeal is not a new trial or re-hearing of your case. It must be based on a question of law. This means, you can only appeal a decision if you believe the VCAT member made a legal error in deciding your case.

You cannot appeal for any other reason. For example, your appeal may not be allowed if your argument is that you are unhappy with the decision or if you want to show the Court new material that was not part of the VCAT case.

See section 148 of the Victorian Civil & Administrative Tribunal Act 1998.

VCAT appeals in the Trial Division

The VCAT order has details of who made the decision. From this, you can tell if you appeal to the Trial Division or Court of Appeal. 

Time limits

There is a time limit on appealing a VCAT decision in the Trial Division. 

You have 28 days, from the date the VCAT decision was made, to file a Notice of Appeal form. The date is on the VCAT order.

If 28 days have passed, you must apply for the Court’s permission to appeal outside the time limit. 

You do this in the documents you file in Step 1 of the appeal process. In the summons, state that you are seeking leave to appeal out of time. In the affidavit, briefly explain why you are applying late and any special circumstances – for example, if you were ill or injured. Attach to the affidavit any documents that support your request, such as a medical certificate.

Consider the cost

Before you apply, consider if you have tried all ways to resolve the issue without involving the justice system. 

Legal proceedings in the Supreme Court can be very expensive.  

Court fees

You need to pay court fees at different stages unless you have a fee waiver. 

These include fees for:

• Filing a Notice of Appeal (to start an appeal)
• Filing an interlocutory application (e.g. stay application)
• Setting down (confirming a date) for the hearing
• Hearing fees per day or part day.

Costs

If you lose your case, you may need to pay some or all of the other party’s costs. This includes what they spent on lawyers and any other expenses, such as the cost of expert reports. 

Be aware – these costs can be substantial. 

If you do not have legal representation, consider paying for some legal advice even if it is only to help you with a particular part of the process. See organisations that offer free and low-cost legal help.   

Get to know Court procedures

Read the following documents carefully. They provide important information and guidance:

• Steps in the process for court users in an appeal on a question of law from VCAT
• Victorian Civil and Administrative Tribunal Act 1998 – sections 148, 149 and 117
• Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 – order 4
• Supreme Court (General Civil Procedure) Rules 2015
• Practice Note SC CL 9 – Judicial Review and Appeals List
• Practice Note SC Gen 7 – Transcript in Civil Proceedings

If you contact the Court, quote the proceeding number for your case. You are given this number when your documents are accepted by the Court in Stage 1. It looks something like this S ECI 2019 54321.

Get to know your obligations

As a party in a civil proceeding, you need to understand what’s known as overarching obligations. These are in sections 16-26 of the Civil Procedure Act 2010. 

Do your legal research

Make sure you understand the law that applies to your case by doing some legal research. Read about cases similar to yours. Note any cases where the law you are relying on has been applied in a way you think proves your arguments. You may want to refer to these cases in your submissions. You might also include these cases in your List of authorities, which the Court may ask you to prepare in Stage 5. 

You can find cases from all courts on the AustLII website. 

Create a RedCrest account  

You file documents with the Court using the online filing system RedCrest. 

The RedCrest Electronic Filing User Guide has information and instructions. 

For instructions on how to set up a RedCrest account, visit our Videos page.

Check if you need to order a transcript

The parties must order, and pay for, a transcript for all final hearings and sometimes other hearings.

Read Practice Note SC Gen 7 (Transcript in Civil Proceedings) to know when and how to get the transcript. 

Get to know legal terms 

Check the glossary for common legal words and terms. 

Know how to stop an appeal

You can stop an appeal if you have the consent of all parties or permission from the Court. Be aware if you stop your appeal, you usually need to pay the respondent’s costs up to that point, unless:

• you and the respondent agree you do not have to pay their cost, or
• the Court orders that you do not have to pay their costs.

To stop your appeal, complete a Notice of Discontinuance form stating that you are discontinuing your appeal and sign it. Ask the respondent to sign the form too, to show they agree. Then file the form and wait for RedCrest to advise that a copy with the Court’s seal is available. Download and print the sealed copy and serve it on the respondent.

If the respondent will not sign the form, you need to get the Court’s permission to stop your appeal. Self-represented litigants can contact the Self-represented Litigant Coordinator for assistance.

File a Notice of Appeal form

To start a VCAT appeal, file a Notice of Appeal form. You can file your additional documents at the same time, if you have them ready.

Pay the court fee or apply for a fee waiver.

Seeking leave to appeal

You must get the Court’s permission for your appeal to go ahead. This is called seeking leave to appeal. The Notice of Appeal form includes this request. Later, you will have the chance to present arguments to the Court about why you should be given permission to appeal. 

The respondent will also have the chance to argue why permission should not be given. 

If you are not given leave to appeal your application will be dismissed. See Step 7 for your options if this happens.

Questions of Law

In your Notice of Appeal, state each law or legal principle the VCAT member had to apply and you believe they got wrong. These are your questions of law. 

Each question of law is written as a single question. For example: Was VCAT correct to decide that a retirement village tenancy agreement can only be terminated under section 16 of the Retirement Villages Act 1986?

Grounds of appeal

You must also clearly state your grounds of appeal, which directly relate to each question of law. Think of your grounds of appeal as concise explanations for why you believe the VCAT member made the wrong decision from a legal point of view, in relation to each question of law.

Number each question of law paragraph consecutively (for example, Question of law 1, Question of law 2). Number your grounds of appeal as well. This makes it easy for the judge to refer to a paragraph number during the proceeding.

Watch the Court’s video Preparing your grounds of appeal. 

Get a date for your directions hearing

Next, get a date for your directions hearing. You need this before you can file your additional documents. 

Do not delay. You must file your additional documents within seven days of filing your Notice of Appeal.

To get a date for your directions hearing:

• complete a Judicial Review and Appeals List hearing date information form
• complete a draft Summons (Form 46A)
• email both documents to the address on the form
• check your email for a Supreme Court notice advising the date, usually sent within one or two business days.

File additional documents

No later than seven days after filing the Notice of Appeal, file:

• a completed Summons (Form 46A), which includes the date for the directions hearing
• the Supreme Court notice you received, which advised the date for the directions hearing
• affidavit, with the following attachments:
  • copy of the VCAT order
  • any written reasons VCAT prepared in relation to the decision
  • any other documents you intend to rely on for your appeal, such as a VCAT transcript.

TIP: You may be able to get copies of the VCAT order and written reasons from:

• the lawyer, if you had one, in your VCAT case
• other parties
• VCAT registry  
• AustLII website, which regularly publishes many VCAT decisions.

Summons

The Summons includes the date for the directions hearing. If you are appealing more than 28 days after the original decision, state that you are seeking leave to appeal out of time.

Affidavit

An affidavit sets out the facts and circumstances that you will rely on to support your appeal. Attachments to the affidavit are called ‘exhibits’. Complete a Certificate Identifying Exhibit (Form 43A) for the exhibit. 

Any affidavit that is filed with the Court must: include a maximum of one exhibit. If more than one document is referred to in the affidavit, the documents must be combined into a single ‘bundle exhibit’, ordered in the sequence they are referred to in the affidavit;

If you do not have the VCAT order and written reasons you must say so in your affidavit and explain why you could not get them.

The Court is likely to require a transcript of the VCAT hearing. Do not delay filing your affidavit if you do not have it yet. You can file another affidavit later, with the VCAT transcript attached.

When your documents are accepted

The Court will notify you in RedCrest when your documents have been accepted. The notification has a link to where you can download and print the approved documents. They will now have the Supreme Court seal (official stamp) on them.

Step 1 Checklist 

• File a Notice of Appeal form
• Pay the court fee or apply for a fee waiver
• Get a date for your directions hearing
• No later than seven days after you file your Notice of Appeal form, file your additional documents
• Check RedCrest for notification that your documents are accepted

Who to serve

Serve your documents on the respondent(s). Although VCAT is not a party, you must serve VCAT with your Notice of Appeal. This is how you let VCAT know their decision is being appealed.

What documents to serve

Serve the documents you downloaded from RedCrest with the Court’s seal. This includes the:

• Notice of Appeal
• Affidavit, including the VCAT order and any written reasons prepared by VCAT
• Summons (Form 46A).

When to serve documents

You must serve these documents as soon as possible after you were notified in RedCrest that your documents were accepted. Do this no less than 14 days before the directions hearing.

How to serve documents

If you are serving an individual, you must serve the Notice of Appeal in person. This means you must:

• leave a copy of the document with the person to be served, or
• if the person does not accept the copy, put it down near them and tell them the nature of the document.

You are allowed to serve the additional documents by email or post. If your additional documents are ready, you can serve them at the same time as the Notice of Appeal.

If you are serving a company, you can serve the Notice of Appeal and other documents by posting them to the registered office of the company.

The Court may ask you to complete an affidavit stating that you have served documents.

TIP: Although some documents must be served in person, you do not need to do this yourself. You can ask a friend, family member or a professional to serve the documents for you. They must be prepared to sign an affidavit confirming they served the documents, if the Court requests this.

Step 2 Checklist 

• Download your documents with the Court’s seal on them
• Serve your documents on the respondent

Once you have served your documents on the respondent, they may do nothing or they may respond in a number of ways. For example, the respondent may:

• file a Notice of Appearance and serve it on you. A Notice of Appearance is how a respondent officially lets you and the Court know they want to be involved in the proceeding. It must be filed before the directions hearing.
• make an application to the Court of their own, at any time leading up to the final hearing. You can read about these types of applications in the Supreme Court (General Civil Procedure) Rules 2015, Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 and the relevant law.
• file an affidavit opposing your application.

The respondent must serve on you any documents they file with the Court.

Step 3 Checklist 

• The respondent may serve documents on you in response to your documents

The applicant and respondent are both expected to attend the directions hearing. If you cannot attend for any substantial reason, for example if you have a medical emergency, contact the Court immediately.

At the directions hearing, you usually find out the date for the hearing of your application for leave to appeal and the appeal. The judge may ask you to estimate how many days you think the final hearing will take.

Following the directions hearing, the Court will send all parties a copy of its orders detailing what each party must do and by when.

Step 4 Checklist 

• Attend the directions hearing

Follow the Court’s instructions

The orders made after the directions hearing will tell you what you have to do to get your case ready for the judge. Some things you may need to prepare include:

List of authorities

This is a document you prepare that lists the cases, legislation and other resources such as textbooks and journal articles you say support your case. These are things you will refer to in your submissions (the arguments you want the judge to consider).

Outline of submissions

This is a document you prepare that summarises your arguments. It draws together your facts of the case, what happened in VCAT, the law that applies (legislation and cases) and your explanation of why you believe the VCAT member made any legal errors. Arrange these points under headings that correspond to the questions of law and grounds of appeal you prepared in Stage 1. You can expand on some or all of these points at the hearing.

TIP: Include all the important points you want the judge to consider. The more clear and complete your outline of submissions, the less you will need to explain them in the hearing.

Affidavit

In addition to the affidavit you filed in Stage 1, this contains any additional evidence you want the Court to consider.

Electronic Court book

This is an electronic book containing digital copies of all the documents that you and the respondent intend to rely on during the hearing. For example, it might contain witness statements, expert reports, invoices or other material relevant to your case. Each digital document is numbered, and listed in the index at the front of the e-court book. The Court will order who is responsible for filing the e-court book.

Your response to the respondent’s outline of submissions

You usually have the chance to respond to the respondent’s outline of submissions if they prepared these and served them on you. You do this by preparing a separate document that numbers each item you want to dispute, followed by your reason for disputing it.

Step 5 Checklist 

• Follow the Court’s instructions about what to do
• Prepare for the hearing by watching the Court’s videos:
  • Preparing for a hearing
  • Attending Court – the day of your hearing

Finding out your hearing date

The date for the final hearing is usually decided at the directions hearing. The Court will send you an order that confirms the date.

The hearing is usually 6-9 months after the directions hearing, except in urgent cases. This gives all parties enough time to properly prepare their case.

What to expect at the hearing

The final hearing usually takes between half a day and two full days, depending on the complexity of the case. The hearing does not usually involve calling witnesses. It focuses on the documents both parties have filed.

Hearings to decide your leave to appeal

The Court usually hears an application for leave to appeal at the same time as the appeal. However, sometimes separate hearings are listed.

At the leave to appeal hearing, you must demonstrate that your appeal would have a real chance of success. Be prepared to present the key points of your case. The respondent will also have the opportunity to argue why the Court should not give you permission to appeal.

If leave to appeal is granted, you will be given a date for the final hearing when you argue your full case.

If leave to appeal is refused, the proceeding comes to an end. You may be able to appeal this decision (see Stage 7).

Step 6 Checklist 

• The Court will send you an order confirming the date for your leave to appeal hearing and/or final hearing
• Attend the leave to appeal hearing (if you have one) and the final hearing

When to expect the decision

The judge usually ‘reserves’ their decision (judgment). This means they do not give a judgment on the day of the hearing but at a later date. This gives the judge time to consider both parties’ submissions and write reasons for their decision.

You can expect a decision within weeks or months of the final hearing, depending on the complexity of the case.

Finding out the decision

The Court will email you a date and time when you need to return to Court to get the judge’s decision. This is called the ‘handing down’ of the decision.

Applicants and respondents are expected to attend. However, if you do not attend the Court will email you the decision.

At the handing down of the decision, if you lose the appeal the respondent usually asks the Court to order you to pay their costs. If you win, you can ask the Court to order the respondent to pay your costs, if you had any.

If your appeal is successful

If your appeal is successful, the Court may make one or more of the following orders (under section 148 of the VCAT Act):

• an order affirming, varying or setting aside the VCAT order
• an order that VCAT could have made in the proceeding
• an order requiring the proceeding to be heard and decided again by VCAT, either with or without the hearing of further evidence
• any other order the Court thinks appropriate.

If your appeal is unsuccessful (dismissed)

If your application for leave to appeal or your appeal is dismissed, you can appeal this decision. If your application for leave to appeal or appeal was dismissed by:

• an associate judge, you appeal to the Trial Division of the Supreme Court
• a judge, or an associate judge referred by a Supreme Court Trial Division judge to hear your case, you appeal to the Court of Appeal.

Step 7 Checklist 

• Expect an email from the Court advising when to come to the Court to get the decision
• Attend the decision hand down
• Know your options if your appeal is dismissed