How to win your case at tribunal: VCAT deputy president
Heading to tribunal, or VCAT in Victoria, can unsurprisingly fill tenants, property managers and landlords with dread.
VCAT deputy president, head of review and regulation Heather Lambrick said that the best way, truly, to win at VCAT is not to come in the first place.
"Every case that comes before VCAT has a losing party. Everybody comes in the door thinking that they're going to win the case, that they're going to walk out victorious [and] that they're going to be really happy with the outcome ... Sadly, that's not the case," said Lambrick at a recent Taking it to VCAT information session at the William Cooper Justice Centre.
In fact, settlements are the best way to sort out an issue. Talk to the other side, don't keep secrets and try to resolve the issues prior to taking it to tribunal. Hear are four tips for keeping you out of tribunal in the first place.
Ascent Townhouses
If, however, you do end up at tribunal, then she notes there's one thing that lets people down: a lack of preparation.
You might not need legal representation, in fact she notes that many have represented themselves and have won at tribunal, however you must prepare adequately. If the concept of some of the preparation explains below fills you with dread, then it might be time to seek some preliminary assistance.
While some are well-placed to handle their own case, due to their intimate knowledge with it, of course some can't see the woods for the trees. Best to identify which camp you are in early.
"If you haven't prepared your case don't expect to win," she explained.
"You may not be a lawyer, but you're expected to prepare. They can only judge based on what is presented."
So how do you effectively prepare for VCAT?
Here are some fundamental tips.
Understand what it is that you are going to VCAT for.
Answer to yourself the following questions:
- Why am I coming?
- Why am I making the application in the first place?
- What am I hoping to achieve?
If you don't really know what it is your hoping to achieve "you're not going to be able to persuade me that I should give you what you're hoping to achieve," she explains.
You need to have the idea clear in your mind and then prepare to get from A, where you are now, to B, what you want to achieve.
Know the relevant law
Lambrick notes that while some believe the tribunal members "make it up as they go along", the truth is that VCAT is a creature of statute. Meaning, for every action they take there is a piece of legislation behind it.
You aren't expected to be a lawyer, or "know every case in the history of the universe". However, you are certainly expected to know the legislation that covers you dispute and, preferably, which section of the legislation specifically.
If there isn't a piece of legislation to cover your dispute, then it's not an issue VCAT can assist with.
Isolate the issues
The majority of parties, surprisingly, agree on the majority of things about the case. For instance, the nature of the relationship, when a lease began, and similar details are often not in dispute.
Find out what it is you're really arguing.
"Don't spend a lot of time preparing what everyone agrees on - that's just background information," she explains.
Get the documents to prove your issues
You now have the issues on hand, about which you believe you are correct. The next step is proving it, perhaps with tools, photogrpahs, documents or a person who needs to give evidence. Decide which documents you need, and start to collect them.
Anticipate the other side of the argument
You've now decided on what your issues are and how you will prove your case.
However, she warns, "Cases aren't won on their strengths, they're lost on their weaknesses". Be aware of these weaknesses by preparing for the counter argument.
One way to get this done is to write yourself some lists.
Grab a piece of paper and put a line down the middle. She then recommends putting the 'pros' for your case and the 'cons' on the other side.
On the other piece of paper, you need to write down the evidence you have on your side. Consider the evidence they might also have, and see how it stacks up.
Everything you're planning to say at tribunal needs to be prepared for.
Ensure you have everything with you
Bring your documents, and all your information in order.
Don't forget a pen and paper - it sounds silly, but it's crucial to bring these with you for noting down important points as they arise.
As this isn't an American TV show court, she laughs, there isn't the opportunity to say 'objection' at every turn. If the counter argument brings up a point you disagree with - write it down and wait your turn.
Ask for help if you need it
"If you're self-represented, we're here to help. We want the best possible case from each side," she explains.
If you don't know when you're supposed to talk, don't hesitate to ask and clarify.
Watch other cases
Sit in on a couple of tribunal cases - you'll find that it may help steady your nerves, she said, noting that it's not uncommon for first timers to be nervous coming to tribunal.
You'll quick learn some of the common customs.
For instance, she notes that the vast majority of hearings are held in rooms that are not as formal as you might expect. However, when the tribunal member comes into the room, the common courtesy is for everyone to stand.
The usual way to address the tribunal member is also "Sir" or "Madam".
You will also learn some lessons for future reference. Here's a lesson from a previous Tribunal case.
Stay calm and be polite
Throughout the process you may be encouraged to negotiate with the other side, and if you've been rude due to being nervous then you may limit your chances of a more favourable outcome.
For more tips on winning at VCAT, you can read a property management perspective here.