Commercial Law Update - Leave to appeal VCAT decisions

Leave to appeal on a question of law

The appeal process is discussed in Part A below; and the test that applies to determine whether leave to appeal will be granted, is discussed in Part B below.

Part A: Process of appealing a VCAT decision

A party to a proceeding in VCAT may apply to the Supreme Court for leave to appeal a decision on a question of law.[2]  There is no right of appeal without leave, and there is no appeal on a finding of fact.[3] 

Whether an appeal on a question of law is made, on the one hand, to the Trial Division of the Supreme Court of Victoria, or, on the other hand, to the Court of Appeal (of the Supreme Court of Victoria), depends on the status of the Tribunal member who made the decision from which it is sought to appeal.

If the VCAT member who made the Tribunal decision was the President, or a Vice President, of VCAT,[4] the application for leave to appeal (and, if leave is granted, the appeal) is made to the Court of Appeal.[5] In any other case, the application for leave is made to the Trial Division of the Supreme Court.[6]

An application for leave to appeal must be lodged no later than 28 days after the day of the order made by the Tribunal.[7]

The relevant rules of the Supreme Court provide for a two-step process: first, the hearing of the application for leave to appeal; and second, (if leave is granted), the hearing of the appeal itself. However, the rules also allow for the application for leave to appeal, and the appeal itself, to be heard and determined together, by the same Court at the one hearing.[8] In practise, this is often the process adopted as it avoids the need for two separate hearings. Accordingly, while the steps explained below generally describe the leave process first, followed by the actual appeal second, often times these two steps will be combined into one hearing.

In JG King Pty Ltd v Patel,[9] Mukhtar AsJ, referring to rule 4.14 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic),[10] which permits the application for leave and the appeal itself (in the Trial Division) to be heard at the same time, said:

[11] “If the aspiration in modern litigation is to minimise delay and cost, more so now under the ethos of the Civil Procedure Act, then I think the expedition rule [i.e. rule 4.14] in cases such as this [11] does just that.  …

[12] “… I see it as wasteful to spend half to one day hearing a leave application, to grant leave to appeal, and then to add further expense by having another hearing of a day in the Trial Division to hear the appeal proper.”[12]

The process for an application for leave to appeal and for the appeal proper, (and the test to be applied in an application for leave, discussed in Part B below), is different depending on whether the application is made to the Trial Division of the Supreme Court, or to the Court of Appeal. Both scenarios are discussed below.

Appeal to the Trial Division of the Supreme Court of Victoria

An appeal to the Trial Division of the Supreme Court of Victoria is governed by:

• s. 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (“VCAT Act”).  
• the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) (“Rules”), and
• Practice Note SC CL 9,[13] entitled, “Judicial Review and Appeals List”.

Key documents to be filed and served

The key documents to commence the appeal process in the Trial Division of the Supreme Court, in order to seek leave and (if leave is granted) to commence an appeal from a VCAT decision, are:

• originating motion;[14]
• summons;[15]
• affidavit in support;[16] and
• proposed notice of appeal (to be exhibited to the affidavit in support). [17]

All documents filed in the Supreme Court should be endorsed: “In the Judicial Review and Appeals List”.[18] There are various time limits that apply to the filing and service of these documents, discussed below, but of course it is open to an applicant to file and serve all the documents (effectively) at the same time.

The originating motion must be filed at the Supreme Court,[19] with a sealed copy delivered to VCAT,[20] and it must be served on the proposed respondent[21] as soon as practicable after filing.[22]  

Within 7 days after filing the originating motion, a summons must be filed in support of the application.[23] Importantly, the summons must be served at least 14 days before the hearing day named in the summons.[24]

The affidavit in support of the application must set out the acts, facts, matters and circumstances relating to the Tribunal’s order, and those relating to the grounds relied on in the (draft) notice of appeal.[25] The affidavit should be prepared in support of both the application for leave, and of the appeal itself, assuming leave is granted.

The affidavit in support must exhibit:

• a copy of the Tribunal orders against which leave to appeal is sought, including any reasons for decision; and 
• the proposed notice of appeal.[27]

A copy of the VCAT transcript, if relevant and available, should also be exhibited to the affidavit.[27]

The (draft) notice of appeal must set out:[28]

• the order of the Tribunal;
• whether the appeal is from the whole or part only of the order and, if so, what part;
• if the appeal was brought by leave, when leave was given and by whom;[29]
• the question of law, if any, upon which the appeal is brought or which is involved in the order, as the case requires;
• concisely the grounds of appeal; and
• the names of all the persons on whom it is proposed to serve the notice of appeal.

Directions hearing 

Once an application for leave to appeal (i.e. originating motion, summons, and affidavit in support, including draft notice of appeal) has been filed and served, the matter will be listed for directions (only) in the first instance in the Supreme Court.[30] At the directions hearing the Court:

• will fix a timetable for the hearing of the application for leave and for trial (assuming leave is granted); and
• may order that the application for leave be referred to the Judge who would hear the substantive appeal.[31]

At the directions hearing, the Court will likely order, among other things, that submissions and lists of authorities be filed and served within a set timeframe, and that the applicant/appellant prepare (and file and serve) a Court book prior to hearing.[32]

Schedule 1 of Practice Note SC CL 9 sets out a template for the preparation of consent orders that should be filed prior to the directions hearing if possible.[33] The parties may, in order to save time and costs, agree that the leave application be determined by the court that will hear and determine the appeal proper (should leave be granted). Such an order will, if made,[34] mean that the leave application and the appeal are heard and determined together at the one hearing.

Importantly, an application for leave to appeal does not operate as a stay of VCAT’s order.[35] A separate application for a stay can be made if appropriate.

Hearing of leave application and/or appeal proper

If, at the directions hearing, the Court orders that the application for leave  proceed separately, then that application will generally be heard by an Associate Judge of the Supreme Court.[36] 

The Associate Judge will hear and determine the leave application in accordance with the timetable set out at the directions hearing.  If the Associate Judge refuses the grant of leave, the applicant may appeal to the Court of Appeal against that decision.[37]

Assuming the Associate Judge grants leave to appeal, then the Associate Judge will also give directions as to the hearing of the appeal proper.[38]

Once leave to appeal is granted, the next step is to file and serve the notice of appeal.[39]  The requirements of the notice of appeal are set out at paragraph 18 above.  A copy of the notice of appeal must be delivered to the Tribunal.[40] 

A Judge of the Court will hear and determine the appeal proper, in accordance with the trial directions previously made.  The Court has wide powers on appeal and, at the conclusion of the appeal, may make an order (or any order):

• affirming, varying, or setting aside the order of the Tribunal;
• that the Tribunal could have made in the proceeding;
• remitting the proceeding to the Tribunal to be heard and determined again;
• that the Court thinks appropriate.

The next issue to consider is the process for seeking leave to appeal from a VCAT decision to the Court of Appeal.  This is considered below.

Appeal to the Court of Appeal 

An appeal from a decision of a President or Vice President of VCAT to the Court of Appeal is regulated by:

• section 148 of the VCAT Act;
• sections 14A to 14D of the Supreme Court Act 1986 (Vic);[41]
• Order 64 of the Supreme Court (General Civil Procedure) Rules 2015; and
• Practice Note SC CA 3.[42]

An appeal is lodged by filing, electronically, the relevant appeal documents (identified below), in Word or searchable PDF format, and by paying the requisite fee.[43]  When the appeal is lodged the applicant must notify the Registrar if the matter is urgent or complex, whether more than a one day hearing is likely to be required, and if there are any related proceedings.[44]

An application for leave to appeal must be in accordance with Form 64A.[45]  It must state, among other things, specifically and concisely the proposed grounds of appeal, and a statement of the reasons why leave should be granted, and if an oral hearing is requested.[46]

At the same time as filing the completed Form 64A, an applicant must file, (and serve within 5 days of filing), the following:[47]

• its “written case”;
• list of authorities;
• the authenticated order sought to be appealed;
• the Tribunal’s written reasons;
• a draft application book index; a draft Summary for the Court of Appeal

The respondent to the application then has 28 days after the application is served to file and serve its written case in response.[48]  When it files its written case in response, the respondent must notify the applicant of any proposed changes to the draft “Summary” (to filed by the applicant, and discussed below).[49]

The “written case”

The written case is analogous to a party’s written submissions in support of its position.  The written case must “specifically and concisely” set out the submissions relied on in support of each ground of appeal,[50] and must not exceed 10 pages in length.

Summary for the Court of Appeal

The Summary for the Court of Appeal: (i) must contain a summary of the facts and a summary of the proceedings and issues; (ii) should be settled by counsel; and (iii) it must not exceed 10 pages.[51] 

The respondent may notify the applicant of any proposed changes to the draft Summary.[52]  Where that occurs, the parties must agree on any changes to the Summary.[53]  The applicant must file and serve an agreed Summary within 10 days of the applicant receiving the respondent’s proposed changes.[54]

The purpose of the Summary is to assist the Court to quickly understand the issues and to form the basis of the introductory statement of facts that will form part of the Court of Appeal’s reasons for judgment.[55]

The summary of facts must:[56]

• describe, in chronological order, the facts that form the background to the proceeding;
• be sufficient to inform the Court of the facts that give rise to the application;
• state all of the facts that are material to the issues for determination;
• state the facts in a neutral rather than a tendentious manner.

The summary of proceedings and issues must:[57]

• briefly describe the nature of the proceeding;
• identify each party to the proceeding below, by name and by description below;
• set out the chronology relating to the proceeding below;
• briefly state the major issues dealt with, and their disposition, in the proceeding below;
• briefly state the issues to be raised on the application;
• note any relevant interlocutory order of which the Court should be aware.[58] 

Importantly, the Summary must ultimately be agreed, and the parties are not permitted to file separate summaries.  If the respondent notifies the applicant of proposed changes to the Summary, and agreement cannot be reached, then the most recent draft must be submitted to the Registrar, with the Summary marked up to show the disputed paragraphs.[59]

Application Book

Once the respondent’s written case in response has been received, the Registrar will settle the contents of the application book index.[60]  The “responsible party”, usually the applicant,[61] must prepare a copy of the application book for checking by the Registrar.   Once approved, the responsible party must, within 14 days of approval, file 3 copies of the application book with the Court and serve a copy on every other party.[62]  The responsible party must then certify in writing that the Registrar’s directions have been complied with and that the application book has been served on every other party.[63]

The responsible party is also responsible for preparing and filing the combined folder of authorities.[64]

Once the Registrar is satisfied with the documents that have been filed, the Registrar will refer the matter to the Court for determination.[65] 

Determination of the application for leave to appeal

The Court will decide whether an oral hearing is required[66] and may make its decision “on the papers”.  Where the application is listed for hearing, the applicant is to file, no later than 7 days before the hearing, an agreed timetable for oral submissions.[67]   

The Rules also provide that the Court of Appeal may treat the hearing of the application for leave as the hearing of the appeal.[68]  Rule 64.20[69] also makes it clear that if leave to appeal is granted, that the documents filed and served in support of the leave application will stand as documents in support of the appeal proper.

The Court of Appeal has, under the VCAT Act, wide powers on appeal and may make any of the orders identified at paragraph 27 above.  The Court of Appeal also has further powers under the Rules,[70] including the power to receive further evidence on questions of fact.[71]  

Part B: the test the court will apply in assessing an application for leave

What “test” does the court apply in assessing whether to grant leave to appeal?  This issue is discussed below.[72]

Section 148(1)(a) of the VCAT Act provides:

“A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding:

(a)     If the Tribunal was constituted for the purposes of making the order by the President or a Vice President, whether with or without others, to the Court of Appeal with leave of the Court of Appeal.

(b)     In any other case, to the Trial Division of the Supreme Court with leave of the Trial Division”

While section 148(1) provides a right to appeal, with leave, the section[73] does  not specify the test or criterion that the Trial Division or the Court of Appeal is to apply in determining whether or not to grant leave.  In other words, in what circumstances should leave be granted? 

In Secretary to the Department of Premier and Cabinet v Hulls[74] (Hulls), the Court of Appeal laid down some guidelines to be applied.   The Court was careful not to be too prescriptive and said:

“The discretion to grant leave, which is conferred by the statute in untrammelled terms, cannot be fettered, and should not be fettered, by judicial decision. From time to time a case will arise in which any preconceived guidelines will be found not wholly sufficient. In the end, whether leave is granted or not must always depend upon the justice of the case, as it appears to the court from whom leave is sought.”

The Court went on to say[76] that:

"When leave is sought to appeal under s. 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it [the question of law] to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible". [Emphasis added]

Accordingly, the “test” or guideline that applies, according to Hulls, is whether the Tribunal decision is attended by sufficient doubt to justify the grant of leave.  This test applies in the Trial Division of the Supreme Court, and, until recently, it also applied to applications for leave to appeal in the Court of Appeal as well. 

However, in 2014 the Supreme Court Act 1986 (Vic) was amended.  Sections 14A and 14C were inserted and these now, relevantly, provide:

“14A(1)    Subject to subsection (2),[77] any civil appeal to the Court of Appeal requires leave to appeal to be obtained from the Court of Appeal.

…

14A(3)    For the purposes of this section, civil appeal means an appeal from a judgment or order made in exercise of civil jurisdiction, including an appeal by way of rehearing or judicial review, for which this Act, any other Act or the Rules provide an appeal to the Court of Appeal.”

…

14C         The Court of Appeal may grant an application for leave to appeal under section 14A only if it is satisfied that the appeal has real prospects of success.” [Emphasis added]

Consequently, under section 14A of the Supreme Court Act, the test to apply in determining whether or not to grant leave to appeal is whether the appeal “has real prospects of success”.

Therefore, the question that arises out of these changes to the Supreme Court Act is whether the “sufficient doubt” test enunciated in Hulls continues to apply despite these changes; or whether the new “real prospects of success” test, laid down by the Supreme Court Act, now applies instead. 

The issue has only recently been resolved.  In Ikosidekas v Karkanis,[78] Mandie JA expressed the tentative view that the Hulls test should continue to apply.  His Honour said, among other things, that an application for leave to appeal under s. 148(1) of the VCAT Act may not be an application for leave to appeal under s. 14A of the Supreme Court Act.  Kyrou JA, in the same case, discussed whether the Hulls test should continue to apply, but refrained from expressing any firm view. 

However, the issue of which test to apply was settled in Metricon Homes Pty Ltd v Softley[79] (Metricon).  In Metricon, Warren CJ, with whom Tate JA and Robson AJA agreed, determined that the “real prospects of success test” in s. 14C of the Supreme Court Act was the correct test to apply in determining whether to grant leave to appeal (from a VCAT decision) in the Court of Appeal.[80]  Her Honour stated, among other things, that:

“Once it is accepted that an appeal from VCAT to the Court of Appeal pursuant to s 148 is a 'civil appeal', then s 14A, and consequently ss 14B-14D, must apply.”[81]

The “real prospects of success test”, (in the sense that the prospects of the appeal succeeding are not fanciful),[82] has now also been affirmed as the correct test to apply in subsequent decisions of the Court of Appeal.[83]

Accordingly, the “real prospects of success test” now clearly applies to applications for leave to appeal to the Court of Appeal.[84]  However, because sections 14A to 14D of the Supreme Court Act only apply to the Court of Appeal, the “sufficient doubt” test, enunciated in Hulls, will continue to apply in the Trial Division.  

The fact that two different tests now apply to the question of whether leave to appeal should be granted, (depending on whether the decision maker at VCAT was the President or a Vice President on the one hand, or any other member on the other), is not ideal.  However, given the Hulls test is well settled, it will be up to the legislature to amend the law to address this anomaly.

This paper was originally presented at Leo Cussens, 30 August 2017.

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[1] This note provides a general overview of the appeal process only, and the test to be applied by the Court in determining whether or not to grant leave to appeal, and a party that proposes to appeal should refer to the Victorian Civil and Administrative Tribunal Act 1998 and the Supreme Court Act 1986, the relevant rules and practice notes (described below) as appropriate.

[2] S. 148(1) of the VCAT Act.

[3] Subject to certain exceptions.  For example, a finding of fact made by VCAT which is not based on proper evidence may be subject to appeal on the footing that the Tribunal made an error of law.

[4] The President of VCAT is, currently, the Honourable Justice Garde of the Supreme Court of Victoria and Vice Presidents of VCAT are, currently, their Honours Judge Hampel and Judge Harbison.

[5] S. 148(1)(a) of the VCAT Act.

[6] S. 148(1)(a) of the VCAT Act.

[7] S. 148(2)(b) of the VCAT Act (see also s 14B of the Supreme Court Act 1986 (Vic) which provides that an appeal must be made within 28 days from the date of the judgment to be appealed unless the Rules otherwise provide).  An extension of time may be granted to the 28 day period or any other time period fixed under s. 148 – see s. 148(5); and the Rules of the Supreme Court.

[8] Rule 4.14(3) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 permits (in the Trial Division) the hearing of the application for leave and the appeal together, at the same time, if the “justice of the case requires”. See also Order 64.19 of the Supreme Court (General Civil Procedure) Rules 2015, which permit the Court of Appeal, constituted by 2 or more Judges of Appeal, to treat an application for leave to appeal as the hearing of the appeal itself.

[9] [2013] VSC 530.

[10] All references to “Rules” in this paper are to these Rules unless stated otherwise.

[11] A building dispute where the respondent asserted the appeal was bound to fail and asserted that leave to appeal should be denied.

[12] These comments apply equally to the process that applies in the Court of Appeal.

[13] Available at: http://www.supremecourt.vic.go...

[14] Rule 4.06(2) and using Form 5C.

[15] Rule 4.08(1).

[16] Rule 4.07.

[17] Rule 4.07(3).

[18] Practice Note SC CL 9, Judicial Review and Appeal List, pars 4.1 and 5.1.

[19]Practice Note SC CL 9 sets out how to file and to obtain a return date for first hearing (see par 6.1 of the Practice Note).

[20] Rule 4.06(4)(a).

[21] Note: VCAT is not a proper party to an application for leave to appeal or to an appeal: Wright v VCAT (2001) 17 VAR 306 at 307.

[22] Rule 4.06(4).

[23] Rule 4.08(3).

[24] Rule 4.08(3).

[25] Rule 4.07(2).

[26] Rule 4.07(3).

[27] Pizer J and Nekvapil E, Pizer’s Annotated VCAT Act, 5^th Ed, 2015, Thomson Reuters p 885; quoting Giampaolo v Esanda Finance Corporation Ltd [2001] VSC 71 at [25].

[28] Rule 4.11.

[29] This information can only be included once the leave application has been heard and determined.

[30] Practice Note SC CL 9, pars 6.1 to 6.4.

[31] If such an order is made, the practical effect is that the leave application and the appeal itself can be heard and determined at the one hearing.

[32] Practice Note SC CL 9 at par 9 and Schedule 1.  The “Court Book” is the common folder(s) of documents that contains all relevant documents that will be relied on and referred to by the parties and the Court at the relevant hearing.

[33] Practice Note SC CL 9 at par 6.5.

[34] It should be noted that the question whether leave should be granted is not one that can be resolved merely by the consent of the parties: Hogan v Transport Accident Commission [2012] VSC 206 at [15].

[35] Medical Practitioner’s Board of Victoria v Lal [2008] VSCA 264 at [15].

[36] Rule 4.08.

[37] Rule 77.06 of the Supreme Court (General Civil Procedure) Rules 2015.

[38] Rule 4.09(3).

[39] Rule 4.11.

[40] Rule 4.11(2).

[41] The main effect of these new provisions of the Supreme Court Act, (inserted in 2014), is in connection with the test that will be applied by the Court of Appeal in deciding whether or not to grant leave to appeal.  This is discussed below in Part B of this paper.

[42] The full name of the practice note is: “Supreme Court of Victoria, Practice Note SC CA 3, Civil Applications”.

[43] Practice Note SC CA 3 par 5.1.  The documents are filed electronically at [email protected]

[44] Practice Note SC CA 3 par 5.4.

[45] Practice Note SC CA 3 par 5.4.  A link to Form 64A can be found here: http://www.supremecourt.vic.go...

[46] Practice Note SC CA 3 par 6.3.

[47] Practice Note SC CA 3 pars 5.6 and 6.4.  Within 7 days of service, the party filing and serving documents must file a Form 64C, that is, a “List of Served Parties”.

[48] Practice Note SC CA 3 par 6.2.

[49] Practice Note SC CA 3 par 5.5.

[50] Practice Note SC CA 3 par 9.3.  The written case for the respondent must set out the submissions relied on to oppose each ground of appeal.

[51] Practice Note SC CA 3 par 12.1.

[52] Practice Note SC CA 3 par 12.7.

[53] The Court expects the parties to agree on the Summary.  If agreement cannot be reached, the applicant must notify the Registrar that agreement cannot be reached and provide a marked-up Summary setting out each party’s position on each disputed paragraph: Practice Note SC CA 3 par 12.10.

[54] Practice Note SC CA 3 par 12.9.

[55] Practice Note SC CA 3 par 12.2.

[56] Practice Note SC CA 3 par 12.4.

[57] Practice Note SC CA 3 par 12.5.

[58] General timetabling orders or directions should not be included.

[59] Practice Note SC CA 3 par 12.10.

[60] Which the applicant filed in draft when filing its application – see par 321(e) above.  The “application book”, like a “court book”, is the repository of relevant documents used by the parties and the Court at the hearing.

[61] Practice Note SC CA 3 refers to the “responsible party”, which is the applicant if legally represented.  If the applicant is not represented but the respondent is represented, then the responsible party is the respondent.  If neither party are represented then the responsible party is the applicant.

[62] Practice Note SC CA 3 par 14.5.

[63] See Practice Note SC CA 3 at pars 14.1 to 14.7.  Note that the application will be taken to be abandoned if the applicant does not deliver to the Registrar an application book as required. 


[64] Practice Note SC CA 3 par 15.1 to 15.7.

[65] Practice Note SC CA 3 pars 17.3-17.4.

[66] Practice Note SC CA 3 par 17.5.

[67] Practice Note SC CA 3 par 17.7. Note that, subject to any direction to the contrary, if a single Judge of Appeal hears the application for leave to appeal, then the applicant has 15 minutes for oral argument and any other party has 10 minutes: Rule 64.15(4) of Supreme Court (General Civil Procedure) Rules 2015.

[68] Rule 64.19 of Supreme Court (General Civil Procedure) Rules 2015.

[69] Of the Supreme Court (General Civil Procedure) Rules 2015.

[70] And it has inherent powers.

[71] Rule 64.36(3) of Supreme Court (General Civil Procedure) Rules 2015.

[72] This section discusses the test to be applied in assessing an application for leave to appeal from final as opposed to interlocutory decisions of the Tribunal.  For interlocutory decisions, the test to apply in the Trial Division is: first, whether the decision is attended by sufficient doubt to justify the grant of leave to appeal; and second, whether there would be substantial injustice in leaving the order unreversed:  Niemann v Electronic Industries Ltd [1978] V.R. 431 at 441-2.

[73] Nor any other section of the VCAT Act.

[74] [1999] 3 VR 331 per Phillips JA, with whom Tadgell and Batt JJA agreed.

[75] Hulls at [8].

[76] Hulls at [16].

[77] Which is not presently relevant.

[78] [2015] VSCA 121.

[79] [2016] VSCA 60, Warren CJ, Tate JA and Robson AJA.

[80] Ibid at [5].

[81] Ibid at [63].

[82] Victorian Institute of Teaching v O’Bryne [2017] VSCA 43 at [3].

[83] Pham v Victims of Crime Assistance Tribunal [2016] VSCA at [20]; Victorian Institute of Teaching v O’Bryne [2017] VSCA 43.

[84] Her Honour at [32] that, in practice, the two tests can be expected to produce the same result in the vast majority of cases.