Dispute Resolution: Consumer Disputes in VCAT

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Key points

  • If you have a dispute with a business, you can make a complaint to VCAT;
  • Small Claims in VCAT are designed for consumers to represent themselves;
  • application fees are usually waived for low-income earners or where payment of the fee would cause you financial hardship;
  • generally, for claims of $10,000 or less, legal costs cannot be awarded against the losing party.

What is VCAT?

The Victorian Civil and Administrative Tribunal (VCAT) is a tribunal which is designed to provide fast, efficient and low-cost resolution of disputes.

The Civil Claims List

The Civil Claims List at VCAT can hear consumer and trader disputes, including disputes about the buying or selling of goods or services by a consumer from a business.[1]

Common disputes involve defective goods or services or consumers being misled by a business.

VCAT has very broad powers to resolve a consumer-trader dispute, including:

  • ordering the payment of a sum of money;
  • declaring a debt is or is not owing;
  • ordering a party to do or refrain from doing something.[2]

Small Claims

Claims under $10,000 in the Civil Claims List will generally be classified as a ‘Small Claim’.[3]  There are special rules for Small Claims to make it as easy and as fair as possible for consumers to represent themselves.[4]

Lawyers or other representatives are generally not permitted to represent parties in a Small Claim.[5]

Application fees

VCAT may waive a fee if payment of the fee would cause the person responsible for its payment financial hardship.  VCAT has indicated that fees will generally be waived if the applicant is a pensioner, health care card holder or receiving a low income.

The fee waiver forms and guidelines are available at www.vcat.vic.gov.au.

Other fees may become payable. For example, if your dispute will take more than one day to hear, a hearing fee may become payable unless the Tribunal agrees to waive the fee.

More information about hearing fees can be found in the VCAT fee tables.

VCAT has a discretion to order that fees be paid by one party, or reimbursed to one party by another party, in certain circumstances.

Taking action and lodging a complaint in VCAT

Step 1:  Complete an ‘Application to Civil Claims List’ form (available at www.vcat.vic.gov.au or by contacting VCAT).This can be submitted online, posted, sent by fax or hand delivered.

The form guides you through the information required.  If you have any questions or difficulties, contact VCAT on (03) 9628 9830 or 1800 133 055 (Country callers only) or contact Consumer Action.

Once you lodge the Application Form, VCAT will notify the party who you have a dispute with that you have commenced proceedings in VCAT.

Step 2: Serving documents on other parties

You must provide the any other party any documents that support your case or that you intend to rely on at the final hearing. VCAT has a specific procedure for serving other parties which can be found in VCAT’s Practice Note PNCCL1 – Civil Claims List General Procedures

Step 3: Wait for VCAT to tell you the next steps. When you issue in the Civil Claims List you will normally receive a letter within a few weeks which will tell you what the next steps will be in your case.

VCAT has the power to compel another person or business to attend to give evidence or provide documents.  If you have any questions about these processes, contact VCAT on (03) 9628 9830 or 1800 133 055 (Country callers only) or contact Consumer Action.

Usually issuing in VCAT means that you will be better placed to negotiate with the trader with whom you have a dispute. Most disputes are settled privately between parties before hearing.

What to expect at a VCAT hearing

At the hearing, you will be asked to sit at a table before the VCAT Member and present your case by telling your story and putting any documents or expert evidence you have to the Member.

At VCAT, different Members will have different approaches about how to resolve the dispute.

A Member may decide that an agreement between the parties will be best in your case. They may strongly encourage you to negotiate with the other side. If you have already done this many times before, and the other side hasn’t responded, try not to feel pressured to settle. You can always tell the Member this – that you have tried to negotiate, that this has failed, and that you are now here for the Member to make a decision.

Remember – you are there to tell your story, to let the Member know why the trader has breached the law, and to achieve a particular result.

Tips for the hearing

  1. Often VCAT will only have a limited time to hear your case – so keep to the point.  Some people find it helpful to write down what they want to say beforehand.
  2. Remember, the VCAT Member will not know the facts like you do.  You need to clearly explain the key points to the Member and draw the Member’s attention to any evidence you have to support your claim.
  3. Ask questions if you don’t understand what is going on or being said.
  4. It is useful to have written reasons from the Tribunal for why it made its decision.  You need to request the Tribunal to provide these at or before the time the Tribunal gives notification of its decision.[6]

Legal costs

It is very rare that VCAT will order a consumer to pay the legal costs of the other party, even if they lose the case.

For claims under $10,000, VCAT generally does not have the power to order one party to pay the legal costs of another party.[7]

For claims over $10,000, generally, parties will pay their own legal costs.   However, there are exceptional circumstances in claims over $10,000 where costs may be awarded against a party to a VCAT proceeding, for example:

  • if that party engaged in conduct that unnecessarily disadvantaged the other party to the proceeding, e.g. failing to comply with VCAT orders or rules;
  • if that party has unreasonable prolonged proceedings;
  • if that party has made a claim that has no tenable basis in fact or law; or
  • if the successful party should be compensated due to the nature and complexity of the claim brought by them.[8]

Can I get any VCAT fees paid on my behalf or returned to me?

VCAT can order that a party to the dispute:

  • pay a particular fee on behalf of another party, or
  • reimburse another party for a fee that it has paid;

This power is discretionary and when making an order for payment or reimbursement of fees, VCAT must have regard to certain factors such as:

  • the conduct of the parties including whether a party has caused unreasonable delay in the proceeding or has failed to comply with an order or direction of VCAT without reasonable excuse; and
  • the result of the proceeding, if it has been reached.

If you substantially succeed in your case, there is a presumption that VCAT will order the other party reimburse you the whole of any fees paid by you. However, this is only a presumption and VCAT has a discretion order otherwise.

Useful tools and resources

Free advice and assistance

VCAT – Civil Claims List
Online: www.vcat.vic.gov.au
Telephone: (03) 9628 9830 or 1800 133 055 (Country callers only)
Address: 55 King Street, Melbourne, VIC, 3000
Email: vcat-civil@justice.vic.gov.au
Facsimilie:  (03) 9628 9967

Consumer Action Law Centre
Telephone: (03) 9629 6300, or 1800 466 477 for country callers.
Email: advice@consumeraction.org.au

If you are deaf or have a hearing or speech impairment, you can call through the National Relay Service (NRS):

  • TTY users can phone 133677 then ask for 1800 466 477
  • Speak & Listen (speech-to-speech) users can phone 1300 555 727 then ask for 1800 466 477
  • Internet relay users can connect to NRS on www.relayservice.com.au then ask for 1800 466 477

Warning: This fact sheet is for information only and should not be relied upon as legal advice. This information applies only in Victoria and was updated in 31 December 2015.

[1] Australian Consumer Law and Fair Trading Act 2012 (Vic) (“ACLFTA”) s 184

[2] ACLFTA ss 184, 185

[3] ACLFTA s 183

[4] Victorian Civil and Administrative Tribunal Act 1998 (Vic) (“VCAT Act”) Part 2AB

[5] VCAT Act sch 1 cl 4D

[6] VCAT Act sch 1 cl 4J

[7] VCAT Act sch 1 cl 4I

[8] VCAT Act s 109

 

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