Justice Connect Homeless Law Tenancy Induction Training 2015 Katie - - PowerPoint PPT Presentation

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Justice Connect Homeless Law

Tenancy Induction Training 2015

Katie Ho, lawyer

Contents

2

Tenancy and eviction prevention

1.

• 1. Understan

tanding ding the proce cess ss

a Notice to Vacate (NTV) b Application for Possession Order c VCAT hearing d Warrants of Possession e Application for review

• 2. How to prepa

pare re

Case study – NTV for danger Negotiations Preparing and appearing at a VCAT hearing Appeals and judicial review (Burgess)

Top tips ps and where to go f for help

Introduction: Why tenancy?

• About 50% of Homeless Law matters are tenancy (eviction) matters
• Homeless Law: homeless or at risk

sk of homelessn essness ss – focus on sustaining tenancies

• Currently there is an acute shorta

tage of affor

• rda

dable housi sing in Australia:

• 35 000 people on the general public housing waiting list (never getting housed)
• 10 000 people on the priority waiting list in Victoria (homeless right now, 2-3 year wait)
• Develop your legal skills: client interviews, case strategy, negotiations, interpreting legislation,

preparing submissions, doing appearances and advocacy

• Contributing to policy work: The Charter of Human Rights and Responsibilities, systemic issues

3

The right to a home: Section 13 of the Charter is of ‘fundamental importance to the scheme of the Charter … this right ensures that people can develop individually, socially, and spiritually in that sphere which provides the civil foundation for their effective participation in society.’

• Justice Bell, Director of Housing v Sudi

Introduction: Types of housing

No home

• Sleeping rough, sleeping in cars, couch surfing, squatting
• Crisis accommodation (short term stays ~8 weeks)

Social or community housing (medium to long term housing)

• Rooming houses
• Transitional housing
• Houses/apartments

Public housing (long term housing)

• Housing/apartments

Private rental (short or long term housing)

• Rooming houses
• Caravan parks
• Houses/apartments

4

People who are in a property and have exclusive access to the entire property are called tenants nts People who share a property with 4+ rooms, but have exclusive possession of a room are called resi side dent nts

• 1. Understanding the

process

The Eviction Process

13 13

Lawful eviction without a tenant/resident’s consent involves the follo lowing ing steps: Step 1 Issue and serve a Not

• tice

ice to Vac acat ate on the tenant/resident, specifying the section of the RTA that the landlord is relying on and a vacate date Step 2 If the tenant/resident does not vacate the premises, the landlord makes an Application to VCA CAT for a Possess essio ion Order der Step 3 A hear aring ing takes place at VCAT, and a possession order is made in respect of the premises/room Step 4 The landlord/RHO purchases a Warrant t of Posses sessio sion from VCAT Step 5 The warrant of possession is exec ecuted ed by police and the tenant/resident is removed from the premises

The law

Residential Tenancies Act 1997 (Vic) “RTA” Victorian Civil and Administrative Tribunal Act 1998 (Vic) “VCAT Act”

7

Comm mmon

• n reason

sons s for evicti ction

• n in RT

RTA: A:

• Rental arrears (s 246)
• Danger (s 244)
• Illegal use of the property (s 250)
• Successive breaches (s 249)
• Repairs/ demolition (ss 255 & 256)
• Landlord moving in (s 258)
• Property to be sold (s 259)
• End of fixed term tenancy (s 261)
• No specified reason (s 263)

These reasons listed in the RTA give rise to the time frame the tenant/resident has before further steps towards eviction are taken by the landlord/Rooming House Operator (“RHO”)

Understanding the process

• A. Notice to Vacate

Notice to Vacate

What is it?

9

A NTV is the first necessary step for a landlord to take when they wish to evict a tenant/resident. It is the originating document, it sets VCAT’s jurisdiction and contains the reason/s the landlord wishes to evict the tenant/resident. An NTV must be legally valid: i.e. contain certain information, state relevant reason, give appropriate minimum statutory timeframe. The NTV must also be properly served on the recipient.

There re are different rent types of NTVs s which h commonly y arise se in tenanci ncies s and rooming ming house se accommoda dati tion: n:

• Rent arrears (most common NTV) – 14 days
• Breach of compliance order – 14 days
• Danger – immediate
• Illegal use – 14 days

Reminder: the tenant/resident does not have to leave when they receive a NTV

Notice to Vacate

Postage + Services Issues

10 10

Service of Notices to Vacate must be either: (1) personally served on the tenant or (2) sent via registered post. Regist istered ered post: t: A NTV sent by registered post is deemed to be ‘given’ two business days after it is sent (e.g. sent Monday, ‘given’ on Wednesday). Minimum mum not

• tice

ce periods ds: Each NTV has a relevant minimum notice period, which commences the day after the notice is ‘given’. Termina nati tion

• n date (vaca

acate e date) First available termination date is the day after the minimum notice period expires

Notice to Vacate

Requirements of a valid NTV

11 11

Un Under er s 319 of the RT RTA, a NTV must: t:

• Be in the relevant prescribed form (found online)
• Be addressed to the tenant(s)/resident(s)
• Be signed by the person giving the notice, or by that person’s agent
• Specify the reason(s) for giving the notice (unless no reason NTV)
• Specify a date by which tenant is required to vacate

Failure ure to meet et these se requi quiremen ements ts may result t in an inval alid d NTV

Notices to Vacate

Right of pre-emptive challenge (for certain NTVs)

12 12

Some types of 60 day NTVs can be challenged pre-emptively at VCAT, e.g.:

• NTVs given under ss 255-260 of the RTA can be pre-emptively challenged within

thin 30 days ys of receipt (extensions can be sought);

• Common examples include ppty to be sold, LL or LL’s family to move in, ppty to be

demolished/renovated etc.

• Challenge is via application to VCAT by a tenant/resident.
• The applicant bears the onus of proof.

The Tribunal will determine whether or not the NTV is valid.

• If the NTV is found to be valid, the tenant cannot challenge the validity any further unless the

Tribunal is satisfied that ‘exceptional circumstances’ exist to justify reconsideration. If a tenant does not pre-emptively challenge an NTV, they can still raise these arguments at a hearing for possession order as a defence opposing the issue of the NTV (plus an extension of time given under s 126 VCAT Act). A ‘120 day no reason’ NTV (s 263 of RTA) maybe be deemed to have no effect under s 266 of the RTA if it was issued in retaliation to the tenant exercising a right under the RTA. E.g. requesting repairs, maintenance, or adjourning possession proceedings for rental arrears. Similarly, these NTVs can be pre-emptively challenged within thin 60 days ys of receipt.

Retaliation

Notices to Vacate

Challenging NTV validity generally

13 13

In addition to pre-emptive challenges, a tenant/resident might also challenge the validity of an NTV at the VCAT possession order hearing. The tenant is not required to lodge an independent application to VCAT to do this. Common grounds of challenge are:

• Insuf

ufficient icient det etail il: most NTVs must state the reason for which they are given and provide sufficient detail. It is not satisfactory to merely repeat the words

• f the Act.
• No entit

itlem ement ent to serve e an NTV: : the facts alleged in the NTV, which form the reason for it being served, are not proven to the relevant standard at VCAT.

• Inval

alid d service: ice: NTV served by ordinary post, or insufficient termination period provided.

Notices to Vacate

What happens to an invalid NTV?

• VCAT’s jurisdiction to make a possession order under the RTA is based on

a valid NTV having been correctly served.

• If the NTV is invalid, then VCAT has no jurisdiction to grant a possession
• rder.
• Most VCAT members are (correctly) strict about this point, and will not

grant a possession order based on an invalid NTV.

• A VCAT member who grants a possession order on the basis of an invalid

NTV may be in jurisdictional error, and this decision may be appealed to the Supreme Court under section 148 of the VCAT Act.

14 14

Understanding the process

• B. Application for possession

Application for possession

What is an application for possession?

After the tenant/resident has been issued with a notice to vacate, the landlord can make an application to VCAT for possession of the property/room (s 322). This application can only be made if the NTV has been served on the tenant/resident. Generally the application will be made after the expiration date on the NTV if the tenant/resident has not vacated. This is the first interaction with VCAT. Prior to this application, VCAT would have no knowledge of the dispute. Once the application has been lodged, VCAT will process the application and list it for hearing.

16 16

Application for possession

What does the application contain?

An application must contain:

• The name, address, telephone number, and fax number of the applicant and

respondent.

• A brief description of the remedy sought, and the basis on which the remedy is

sought. (VCAT Rules 2008, Reg 7A.06)

• Allegations contained in the application can never be wider than those in the

NTV, because the NTV establishes the jurisdiction at VCAT

• An application cannot be used to amend or fix a NTV
• Similar to a NTV, if an application is invalid, VCAT cannot make a possession
• rder based on the application. The application can be struck out at the hearing.

17 17

Smith v Director of Housing is an important case which sets out the requirements of the NTV and the application and their interaction.

Understanding the process

• C. VCAT Hearing

VCAT Possession Order Hearings

What is VCAT?

The Victorian Civil Administrative Tribunal (VCAT) was established to provide Victorians with access to a civil justice system that is modern, accessible, efficient and cost effective. VCAT’s busiest list is the Residential Tenancies List, they receive about 61K applications annually, in which an estimated 80% of hearings are unattended by tenants.

Possession order hearings

With most eviction proceedings, VCAT must st make a possession order if:

• A valid NTV has been given (properly served);
• the LL/RHO was entitle

tled to give that notice; and

• The NTV hasn’t been withdrawn.

However, some additional discretion applies to rent arrears and behavioural NTVs.

19 19

VCAT Possession Order Hearings

VCAT’s Key Considerations

At VCAT possession order hearings, the Tribunal is most focused on:

• Whether the NTV has been validly served
• Whether the NTV is valid (i.e. sufficient reasons, termination period etc.)
• Whether the LL/RHO was entitled to give the NTV (i.e. factual basis alleged can be proven

to relevant standard, balance of probabilities) The consideration of evidence will then depend on the type of hearing, e.g. -

20 20

A rent arrears eviction will ordinarily depend on account ledger and other documents, along with sworn evidence of the LL/RHO or their agent. But, an eviction for danger or illegal use will more likely require evidence to be given by third parties, including police and other witnesses.

VCAT Possession Order Hearings

Dismissing applications for a possession order

• If either service, technical validity of NTV, or entitlement to give NTV can be shown to be

deficient or lacking, VCAT should not make a possession order.

• Advocates need to focus on these three points of attack when preparing to appear on a client’s

behalf at a possession order hearing at VCAT.

Rent arrears evictions - discretion

• VCAT has a discretion to adjourn a LL/RHO’s application where satisfactory arrangements

have/can be made to avoid financial loss to the LL/RHO (s 331 RTA).

• This usually takes the form of a repayment plan, LL/RHO’s consent will almost guarantee such

an order being made, but is not a pre-requisite.

• If the LL/RHO’s application is adjourned on this basis, and the tenant/resident defaults, the

LL/RHO can reapply directly to VCAT for a possession order (i.e. no further NTV is required).

21 21

VCAT Possession Order Hearings

Behavioural NTV evictions – discretion

Breach of compliance order

• Where VCAT finds that LL/RHO was entitled to issue an NTV for breach of a compliance
• rder, the Tribunal must not make the possession order if three criteria can be met (s

332(1)) – i.e. failure to comply was trivial/remedied, there won’t be a further breach, and breach is not a recurrence of a previous breach of duty. Serious disruption (RH and Caravan Park)

• Similarly, where VCAT finds a RHO/CPO was entitled to issue an NTV for serious

disruption, the Tribunal must not make the possession order if the interruption to quiet enjoyment has ceased, is not a recurrence, and will not be repeated.

22 22

Advocates can raise these as ‘in the alternative’ arguments at VCAT

VCAT Possession Order Hearings

Postponement of issuing the warrant

• If VCAT decides against a tenant at a possession order hearing, they will make an order

that the property be vacated immediately.

• However, s 352 of the RTA provides that VCAT can postpone the date at which the

LL/CPO can purchase a warrant of possession (effectively extending client’s time in the property).

• The maximum postponement period is 30 days, VCAT will weigh a tenant/resident’s

hardship against that of the LL – support letters are very helpful.

• This application should be made by the advocate verbally at the hearing, once VCAT

member announces their decision.

• This is not an option for rooming house evictions, or NTVs issued for malicious damage,

danger, or property unfit for habitation.

23 23

Understanding the process

• D. Warrants of possession

Warrants of Possession

What is it?

A person who obtains a possession order may apply for (and purchase) a Warrant of Possession from VCAT. Warrants are then directed to the local police station or other authorised persons, must contain brief details of the possession order, and be signed by the principal registrar. A W Warra rant nt autho horises rises the perso son n to whom it is dire rect cted ed to enter r the rented ed premis mises es (or room and rooming ming house se, , building ding, site or carava van) n) by force if necess ssar ary, , to comp mpel all perso sons ns

• ccupyi

ying ng the premis mises es to va vacate and give possess session n of the prope perty ty to the applicant nt for the

• rder

r under er which h the warra rant nt was issue ssued. d. A Warrant does not allow the authorised person to remove goods from the premises – there are separate provisions in the RTA that cover what happens to goods left behind.

25 25

Warrants of Possession

When can a Warrant be purchased?

• If there is no postponement order in place, the Warrant can be applied for and purchased

immediately after a possession order has been made.

• The Warrant must be purchased within 6 months of the possession order being made, as

a possession order will lapse after 6 months of being made.

How are Warrants executed?

• The Warrant is sent to the police station nearest to the rented premises.
• Police will ordinarily notify a tenant/resident prior to execution of a warrant, and indicate

when they will return to execute the warrant.

When do Warrants expire?

• Warrants must be executed within 14 days of issue (private/social housing) or 30 days

(public housing), unless extension of time is prescribed for in the possession order.

• Extensions of up to 30 days can be sought for execution of a warrant (only by the LL).

26 26

Warrants of Possession

Lapsing of POs and Warrants

• A possession order lapses if a Warrant of Possession is not applied for within 6

months of the possession order being made.

• If this occurs, the LL/RHO would need to recommence the entire eviction process

again.

• A warrant of possession also lapses if not executed within the time specified in the

possession order (usually 14 days from purchase).

• In this instance, a further warrant could not be purchased if the underlying

possession order has lapsed, the LL/RHO would need to recommence the eviction process.

27 27

Understanding the process

• E. Application for review

Applications for Review

What is it?

Review applications are a mechanism that allow a party who missed a VCAT hearing to have it reheard, and to potentially obtain a different outcome (s 120 VCAT Act). In RT list matters at VCAT, a party to the proceeding can successfully apply for review if: 1. An order was made in the absence ce of that party or their authorised representative; 2. The applicant has a reasona nable excuse se for not

• t attending

nding the hearing; and 3. The application for review is made within hin 14 days of becoming aware of the order (although an applicant can also apply to have this period extended, s 126 VCAT Act). An application for review should be made in writing and can be faxed or emailed to the Tribunal. You should notify the other party once a review application has been lodged with the Tribunal. Note that where a tenant has already applied for review in respect of a matter, they will need to seek leave in person from VCAT to apply for review a second time.

29 29

Applications for Review

What happens when a review application is lodged?

• Faxing or emailing the review application to VCAT will generally ‘stay’ the effect of

the Tribunal’s order, subject to the review hearing.

• Once received, VCAT will ordinarily list the application for review hearing, and

send notification to all parties to the dispute.

• If the review application succeeds, VCAT will generally hear the substantive

matter immediately after approving the review application. The substantive matter will only be re-listed if the other party/witnesses are not available on the day.

30 30

In a tenancy ncy context, xt, this s preven ents ts a Warrant t of Posses sessi sion

• n being

ng execut cuted ed until il the re review w applica ication tion has been n assess sessed ed – VCAT T will not

• tif

ify y the re relevant nt police ice stati tion

• n not
• t to execut

cute e a warrant t if a review w applica icati tion n is receiv ived. ed.

Applications for Review

VCAT’s key considerations in a review application

• VCAT will be focused on the applicant’s reason for non-attendance, such as whether they

knew the hearing was taking place, and if so, what steps they took to attend or notify the Tribunal they could not attend.

• VCAT will also be focused on the date at which the applicant became aware of the order, as

this is the date from which the 14 day review window runs.

• VCAT also have the power to enquire as to the merits of the substantive case, that is, if

review is granted, what orders will the party ultimately be seeking and what is the likelihood

• f those orders being made.
• If VCAT considers the applicant had a reasonable excuse for not attending, the Tribunal will

grant the review application – this power is generally interpreted in an applicant’s favor to ensure hearings are as fair as possible.

31 31

The term ‘reasonable excuse’ is applied liberally

• 2. How to prepare for a

tenancy eviction matter

Eviction process - flowchart

33 33

A trigger event NTV Application for possession VCAT Hearing Possession Order made Warrant of Possession Warrant of Possession executed Application dismissed or adjourned

Review application Review application Getting the client’s story Knowing the law

Negotiating with the landlord Preparing for the hearing

After the hearing

VCAT Process How to prepare

Overview of running a matter

34 34

A trigge gger r event t occurs s (ie ie renta tal arrear ars, s, or argument ent with h a neighb ghbour ur)

Step 1 Client receives a NTV

• What are the allegations?

Step 2 Client comes to an appoin intm tmen ent with a Homeless Law lawyer

• What is the client’s perspective? Do the NTV allegations match the client’s story?
• What are the client’s circumstances?

Step 3 Lawyer enters into negotia tiations tions with the LL

• Is it a public housing or social housing provider?
• Does the tenant have rights under the Charter?

Step 4 LL makes an applica ication ion for posse sess ssion ion at VCAT

• Does it differ from the allegations in the NTV?

Step 5 Prepari aring for the hearing

• Is the NTV valid?
• What evidence does the LL have?
• What evidence is required to prove your client’s story?

Step 6 Possession Order hearing ing at VCAT

• A possession order isn’t made
• A possession order is made
• The client didn’t attend the hearing – review application

Step 7 Judicia ial l revie iew w or appeal to the Supreme Court

• Was there an error of law made by VCAT, or was an aspect of the decision making unlawful

(i.e. did the landlord fail to consider the client’s Charter rights)?

Case Study - Danger

35 35

A trigger er even ent t occurs s (ie ie rental tal arrear ars, s, or argumen ment with th a neighbo hbour)

Step 1 Client receives a NTV Step 2 Client comes to an appointment with a Homeless Law lawyer

• Does the client have any paperwork about the eviction?
• Do the allegations match up with the client’s story?
• What is the client’s perspective?

Getting the client’s story

• Does the client have any doc
• cume

ments ts about the eviction?

• What type of rental premises?
• Who is the landlor

dlord? Who is the landlord’s agent?

• What is the client’s rental

tal histor

• ry?
• What are the legal

al issues es that we can assist with?

• Can you provide any preliminar

eliminary advi dvice?

 Explain the general eviction process  Outline the scope of assistance (& manage expectations)  Can’t advise on merit without seeing the documents  Advice on any general obligations on the tenant (i.e. the need to pay rent)

• Do you need to get more instructions?
• Does the client need other supports for non-legal issues?

Tenancy Training Workbook Sally’s Story Page 2 PIMS

pims.justiceconnect.org.au *Upload interview documents to PIMS after appointment

Case Study - Danger

36 36

Looking ng at the documen ments ts

Notice to Vacate

• Under what section of the RTA has the NTV been issued?
• Has the landlord provided reasons for issuing the NTV?
• What is the vacate date on the notice?
• Are the allegations on the NTV the same, or different to what the client initially

told you? Application for Possession

• Has the landlord provided further information on the application?
• If so, compare the NTV and the application, what observations can you

make about the two?

 Are there any differences? Are there any similarities?

• If you don’t have documents, these can be obtained by calling the VCAT RT List

registry (ph 9628 9800)

• After looking at the documents you might need to clarify your client’s

instructions.

Tenancy Training Workbook Sally’s Story Page 3 Tenancy Training Workbook Sally’s Story Page 4

PIMS

*Upload VCAT documents to PIMS

37 37

Case Study - Danger

Knowing ng the Law

RTA 1997 (annotated) VCAT Act 1998 Homeless Law in Practice (www.hlp.org.au) Smith v Director of Housing [2005] VSC 46

• Commentary in relation to NTVs and applications

Director of Housing v Pavletic [2002] VSC 438

• Commentary on service of the NTV in relation to the application
• Commentary on what constitutes ‘danger’

Compar are e the NTV V and d the applic licatio ion after er read adin ing these se cases ases.

• Are the allegations in both documents the same?
• Does any difference between the documents matter?

Tenancy Training Workbook Page 7

How to prepare

Negotiations

Negotiations

Negotiating with landlords

39 39

Entering into negotiations with the landlord to sustain the client’s tenancy is regular practice in tenancy matters. In many cases, negotiating with the landlord, and strongly advocating on behalf of the client will be a key factor in preventing a client from being evicted. Negot

• tiat

iation ions s should ld begin in when the lawyer er begin ins s working ing on a matter er, and they can continue throughout the life of the matter, depending on the circumstances. It is important for landlor lords ds to underst erstan and any y mitigat gating ing factor

• rs

s or hards dship ip that the client has suffered which put the client in the situation where the client was unable to comply with their

• bligations as a tenant.

The lawyer should init itiall ially y call l the landlor dlord to discuss the matter and listen to any of the landlord’s concerns. The lawyer can then send a let etter er to the landlord outlining the discussion, for example:

• The negati

tive e impac act that losing the tenancy will have on the client;

• The client’s personal or family circumstances that make them a vulne

nerab able le tenant nt;

• The undertaking/

aking/s the client is willing to make to in order to sustain the tenancy; and

• Any obligati

igation

• ns the landlor

dlord d has to sustain the tenancy (this only relates to public housing or a social housing providers).

Homeless Law has a number of precedent letters available to assist you to draft your initial negotiation letter to the landlord

Negotiations

Public and social housing landlords

40 40

Landlor

• rd

The law and policies cies

Public Housing (Office of Housing or Director of Housing) Internal policies, available (mostly) online, eg:

• Tenancy Management Manual
• Allocations Manual
• Rental Rebate Manual

Internal appeals:

• Housing Appeals Manual

Charter of Human Rights and Responsibilities Act 2006 (Vic) Social or community housing Internal policies, often not available online Registered housing association or housing provider under the Housing Act 1983 Regulatory framework as provided by the Housing Registrar (including complaints) Charter of Human Rights and Responsibilities 2006 Act (Vic)

Negotiations

41 41

Negoti tiat ating ng with public ic and socia ial housin ing g landlor

• rds

ds

Homeless Law is of the view that if a client is willing to comply with their obligations going forward (e.g. agreeing to a manageable payment plan to address the arrears, engaging with support workers, or abstaining from certain behaviour) it is poor policy for a public or social housing provider to evict that person into homelessness. Charter Obligations Public housing and social housing providers have an obligation (as public authorities under s 3 of the Charter) to consider a tenant’s Charter rights when making a decision to evict a tenant.

• What are the client’s circumstances (e.g. hardship or risk of homelessness)?
• What Charter rights are engaged?

 Section 13: A person has the right not to have his or her privacy, family, home… unlawfully or arbitrarily interfered with; and/or  Section 17: Protection of families and children.

• What are the alternativ

rnatives es to to evicti tion? n? OOH Policies and Procedures

• What OOH policy manuals apply to the eviction?
• Has the OOH followed the processes outlined in the Manual?
• Has the OOH considered the client’s circumstances and vulnerabilities compared to their policy objectives?
• What are the alternativ

rnatives es to to evicti tion? n? VCAT cannot take into account a tenant’s Charter rights (Director of Housing v Sudi [2011] VSCA 266

42 42

Case Study - Danger

Preparin ing for the hearing ng

What evidence is needed?

• Contact the other party to get copies/details of the evidence they will be relying on at the hearing

 Who will be giving evidence for the other party? CCTV footage, police report  What evidence can you access?  Will you have to cross-examine witnesses?

• What evidence will you be leading?

 Can the client give evidence?  Will you have to examine any witnesses?

• What are the strengths and weaknesses of your case?

Submissions 1. Preliminary matters: these include arguments about jurisdiction – issues with NTV or application, service of documents or Smith argument 2. Chronology (date and facts) 3. The law: RTA or case law 4. The evidence 5. Submissions (law and evidence)

• Homeless Law can provide submission templates for guidance
• For complicated matters written submissions can be filed with VCAT the day before for the hearing as a

courtesy – this is not mandatory Tenancy Training Workbook Sally’s Story Page 8

43 43

VCAT - At the hearing

At the Hearing

1. Lawyer should request reasons for the decision at the beginning of the hearing 2. Applicant goes first (usually the LL) and has to prove the case on the balance of probabilities 3. Informal jurisdiction, flexible, speedy What evidence will be considered by VCAT?

• VCAT is not bound by the rules of evidence, but they are still relevant (s 98(1)(b) VCAT Act)
• VCAT can inform itself as it sees fit (s 98(1)(c) VCAT Act)
• VCAT must give all parties a chance to call evidence, examine witnesses and make

submissions (s 102 VCAT Act) Can you appear?

• Professional advocates are automatically allowed to appear in possession proceedings
• In all other cases – no (s 62 VCAT Act)
• Considerations: are the other parties represented?
• Advocate can make submissions as to why the client should be represented (i.e.

disadvantaged and complex facts or legal issues) (s 62(1)(c) VCAT Act)

44 44

VCAT - After the hearing

1. Application dismissed 2. Possession order granted a. Client did not attend the hearing b. Warrant purchased (client attended)

What do I do if the client doesn’t show up to the hearing?

• Do not
• t appea

ear r as entering an appearance on behalf of the client removes the client’s options to apply for a review hearing.

• Call Homeless Law.
• You can either wait to see what the outcome is at VCAT without making any appearance, or if you are

sure that the client will not be attending, call the VCAT registry after the hearing for a copy of the order.

• A review application has to be lodged within 14 days of the client finding out about the order.

What happens if a PO is made against the client and the LL are going to purchase a warrant?

• Speak to the client about an exit plan prior to the hearing.
• Speak to the client about what they will do with their goods, and provide advice about Goods Left

Behind.

• Refer the client to their local homelessness service (Initial Planning and Assessment).
• Some brokerage can be provided by Homeless Law for moving expenses (speak to Sarah/Antoinette

(HPLOs) at Homeless Law).

45 45

Judicial review or appeal

Judicial cial review or appealing ealing a decision ision to the Supreme me Cour urt

• In certain circumstances a decision can be appealed to or judicially reviewed by the Supreme Court.

Common grounds for appeal or judicial review: 1. An error of law made by VCAT (appeal); or 2. An aspect of the decision making was unlawful (judicial review).

• Lawyers running the matter should have an idea whether JR/appeal might be suitable. Contact Homeless Law

ASAP if you think the matter should be considered for JR or an appeal.

• Homeless Law will also flag cases which might be candidates for JR/appeal.
• Very resource intensive for lawyers and firms, and a quick timeframe for an appeal (28 days to lodge an

appeal at the Supreme Court).

Burgess v Director of Housing [2014] VSC 648

• After VCAT granted the possession order, Homeless Law sought JR on the decision of the OOH to evict the

tenant (specifically the decisions to issue the NTVs and to purchase the warrant.

• The Supreme Court found that the Director of Housing failed to (1) accord natural justice to the tenant, and (2)

consider the tenant’s human rights under the Charter when deciding to evict.

• The decision has significant potential to improve the accountability, consistency and fairness of the decision-

making of the Director of Housing when choosing whether or not to proceed with the eviction of public housing tenants (including by affording tenants natural justice and adhering to the DOH's own policies and guidelines).

• Read the case note here.

46 46

Top tips & where to get help

1. Read the intake memo before you meet the client. 2. Look at the documents closely and create a chronology of events. 3. Is the NTV valid? 4. Begin negotiating with the landlord at the beginning of the matter. 5. Legal and non-legal support is available!

Where e to get et help

• Homeless Law in Practice website (www.hlp.org.au);
• the law (Annotated RTA and the VCAT Act);
• precedent letters and sample submissions from Homeless Law;
• in-firm support from your peers, supervisors or team leaders;
• Homeless Law staff available by phone or email; and
• you can consider briefing counsel for complicated matters. Contact Homeless Law for these

requests. Non-legal help

• Sarah McMahon and Antoinette Russo (Homeless Persons’ Liaison Officers) at Homeless Law
• Consent from client to contact support workers the client is engaged with.
• Some brokerage ($$) available for people at risk of homelessness from HPLOs

 To use to save tenancies, pay for removalists/one month of storage, or re-house

PIMS

*File management system for Homeless Law files

Katie Ho

katie.ho@justiceconnect.org.au