Resource ● Last updated 22 December 2020 ● 7 min read
How can I appeal a VCAT decision to the Supreme Court of Victoria?
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What is this resource?
This is a resource for people who want to appeal a civil decision of the Victorian Civil and Administrative Tribunal (VCAT) to the Trial Division of the Supreme Court of Victoria.
The resource contains general information only and is not intended to be a legal advice.
First, it’s important to understand some key points:
An appeal is not a new trial
- An appeal is not a chance to have a new trial. The Court is unlikely to look at new evidence.
- An appeal is a process in which a Court checks whether a decision made by VCAT was correct based on the law.
You need to show that VCAT made a mistake
- Because the Court is only concerned with whether VCAT’s decision was correct based on the law, you will need to show that VCAT has made a mistake in the way that it applied the law to your case to succeed with your appeal.
You need permission to appeal
- Appeals are not automatically allowed to go ahead. You first have to ask the Court for permission to appeal. This is called “seeking leave to appeal”.
If you win, your case might get sent back to VCAT
- If you are successful in your Appeal, the Court may send your case back to VCAT to be decided again by another VCAT Member. There is a risk that when VCAT re-hears your matter, it will make the same decision.
There are consequences if you lose.
- If you lose an appeal, you will usually be ordered to pay the other side’s legal fees. These fees can be very high.
You should get help
Appeals are highly technical. We encourage you to get legal help as soon as possible if you are considering appealing a decision.
Justice Connect operates a service which assists people representing themselves in the Supreme Court. If you would like to apply for assistance from Justice Connect, please lodge an enquiry online.
Before you appeal, you should:
Check how much time you have
You must start your appeal within 28 days from the date of the VCAT order.
- President or Vice President of VCAT: If the decision was made by the President or Vice President of VCAT, you have to appeal to the Court of Appeal.
- Other VCAT member: If the decision was made by any other VCAT member, you have to appeal to the Trial Division of the Supreme Court of Victoria.
You can find the name and position of the VCAT Member who made the decision on the VCAT order.
Ask VCAT for reasons or a transcript
Written reasons from VCAT will support your appeal. Written reasons are important because they will help the Court to understand VCAT’s decision. If you can’t obtain written reasons, you should ask VCAT for a copy of the typed transcript of the hearing.
The VCAT Member who heard your case should have given oral or written reasons for their decision.
- Oral reasons: If the VCAT Member delivered oral reasons, you need to request written reasons within 14 days of the decision. If 14 days have passed, VCAT doesn’t have to give written reasons.
- Residential tenancies: If your VCAT proceedings related to residential tenancies, you have to request written reasons on or before the VCAT hearing.
It will be much harder to appeal if you don’t have written reasons or a transcript.
Requesting a transcript
A transcript can come in the form of an audio CD or a typed transcript. To request an audio CD or transcript, you will need to contact one of VCAT’s preferred suppliers of transcripts and complete an online form on VCAT’s website.
Audio CDs are cheaper than typed transcripts. The Court may require you to obtain a written transcript if you proceed with your appeal
How can I appeal?
An appeal involves a number of steps and key documents. These steps are explained below and summarised at the end of this resource.
Warning – This resource is a guide only.
Before you take any of these steps, you should read the Supreme Court Practice Note SC CL 9. The process set out below is contained in the Supreme Court (General Civil Procedure) Rules 2015 and Supreme Court (Miscellaneous Civil Proceedings) Rules 2018.
You must file a Notice of Appeal within 28 days of VCAT’s decision. The Notice of Appeal is your most important document.
You need to include:
- Details of the VCAT Order you want to appeal (the date of the Order and the name of the VCAT member who made the Order)
- A request for leave (permission) to appeal
- Whether you need an extension of time
- Whether you have any special requests (for example, an expedited (urgent) hearing)
- Your questions of law (These are laws or legal principles which you think the VCAT Member had to consider and got wrong. These should be phrased as questions)
- Your grounds of appeal (These are short explanations about why you think the VCAT Member answered each question of law wrongly. Each ground of appeal should be linked to a question of law)
- The orders you want the Court to make (for example, if you want the Court to change VCAT’s order or send your case back to VCAT to be decided again)
You will need to pay the court fee or apply for a fee waiver when you file your Notice of Appeal. This table shows the Court’s fees.
TIP- For details about how to file documents remotely, you should read our factsheet about filing documents during COVID-19.
Warning: Filing an appeal does not stop the VCAT Order
This means, you still have to follow the VCAT Order even if you are appealing. If you want to apply for the VCAT Order to be stopped while you appeal, you need to ask the Court for a stay. You can do this by filing a summons (Form 46A) and an Affidavit in support. Fees will apply.
A directions hearing is where the Court sets a timetable for your case up until hearing. You can ask the Court for a directions hearing by filing the following documents:
- A Judicial Reviews and Appeals List Hearing Date Information Form.
- A draft Form 46A – Summons for a directions hearing. The summons is the document which requires the other party to attend Court.
You can file these documents at the same time as you file your Notice of Appeal.
Once you have a date for your directions hearing, file the following documents as soon as possible:
- A completed Summons (Form 46A) which includes the date for the directions hearing.
- The Supreme Court notice you received telling you the date of the directions hearing
- An affidavit setting out the facts and circumstances you will rely on to support your appeal. The affidavit should attach key documents such as a copy of the VCAT order, VCAT’s written reasons and the VCAT transcript. If you are appealing the VCAT decision out of time, you should include reasons for your delay and attach documents to explain your delay, for example, a medical certificate. Each attachment is called an “exhibit”. You will need to complete a Certificate Identifying Exhibit (Form 43A) for each exhibit. If you do not have the VCAT order, written reasons or your transcript, you should explain this in for your affidavit and say why you don’t have those documents yet.
You must file these documents within 7 days of filing your Notice of Appeal.
The Court will confirm once it has accepted your documents for filing and seal them.
You need to formally deliver the sealed documents to the other party as soon as you received them from the Court and at least 14 days before the Directions Hearing. This is called “serving” the other party.
In an appeal, the other party is called the “respondent”. The respondent may respond to your documents, for example, by filing an affidavit opposing your appeal. The respondent must provide you with a copy of any documents they file.
You should also send a copy of your appeal and supporting documents to VCAT as soon as possible.
How do I serve documents?
If the other party is a person, you can serve them by leaving the documents with them in person.
If the other person is a company, you need to post the documents to the registered office of the company.
Order 6 of the Supreme Court (General Civil Procedure) Rules 2015 contains more details about how to serve documents.
The directions hearing is a short hearing where the Court sets a timetable for your case up to the final hearing. You do not present your arguments for why your appeal should succeed at the directions hearing.
The directions hearing will probably be held remotely due to COVID-19. You should read our factsheet about how to prepare for remote hearings before attending.
At the directions hearing, the Court will make Orders.
You must read the Orders carefully. The Orders will show you what steps you have to take up to the final hearing and the deadlines you have to meet for each step. This may include filing submissions, attending mediation and preparing a court book. You should diarise all of the important dates in the Orders.
If you cannot meet any of the deadlines, you should let the Court and the other side know and give them as much notice as possible.
This is where you argue why you should be given leave (permission) to appeal and why your appeal should succeed. You will need to explain the questions of law VCAT had to consider and the errors of law that VCAT made.
The Court will probably hear your request for leave (permission) to appeal at the same time as the Court hears your appeal.
Note, the Court is experiencing delays due to COVID-19. Your final hearing may only take place many months after you file your Notice of Appeal- possibly up to a year.
Summary – How to appeal a VCAT decision to the Supreme Court
- Ask for written reasons or get a transcript.
- File a notice of appeal
- Ask for a directions hearing
- File more documents
- Serve the other party
- Attend the directions hearings
- Follow the orders and prepare for hearing
- Attend the hearing and tell the Court why your appeal should succeed.
This resource was last updated on 22 December 2020. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation. Please view our disclaimer for more information.
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