Beling v Dimkovski

[2006] VSC 17

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6610 of 2005

JOEL LORENSZ BELING	Plaintiff
V
PETER DIMKOVSKI & MARINA SIRAKOVSKI	Defendants

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JUDGE:	SMITH J J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 January 2006
DATE OF JUDGMENT:	1 February 2006
CASE MAY BE CITED AS:	Beling v Dimkovski & Anor
MEDIUM NEUTRAL CITATION:	[2006] VSC 17

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Appeal from VCAT – small claim – adjournment – natural justice.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms. M. Daly	Joel Beling
The Defendants appeared in person.

HIS HONOUR:

Application

1. There is a degree of procedural confusion in this matter, but by order made 14 July 2005, Joel Lorensz Beling was given leave to appeal an order made by VCAT on 3 June 2005 dismissing an application brought by him seeking payment of $850 from Peter Dimkovski and Marina Sirakovski for legal services provided.

1. In dismissing the application, the tribunal stated:

"Having heard the evidence for both parties I accept the contract was entered into on the 27th of the second 2004 for legal representation. I not satisfied that the extra paragraph that is on the contract was a part of the contract at the time the contract was entered into. I find that the contract was entered into for the sum of $550 for a plea at the Sunshine Magistrates Court. I am not satisfied that the applicant has proved, on the balance of probabilities, that he wasn't paid that sum. Accordingly, the applicant has not proved his claim to the Tribunal's satisfaction and the claim is dismissed."

1. In his originating motion, Mr Beling identified a number of grounds of appeal. The grounds now relied upon  are grounds 2 and 3. Ground 2 is as follows:

"that the learned Member erred in refusing to grant the appellant an adjournment in order to adduce evidence which would have proved his case on the balance of probabilities."

Ground 3. is as follows:

"that the learned Member erred in denying the appellant a fair hearing."

1. It appears that at the hearing before the tribunal, the defendants gave evidence that $550 of the debt had been paid in two instalments: one in the amount of $50, allegedly deposited into the plaintiff's bank account at the Port Melbourne branch of the Commonwealth bank; and another in the amount of $500, the place of deposit being unstated.

1. The plaintiff has deposed that he was taken by surprise, the first defendant having previously refused to pay on the grounds that the plaintiff had done a bad job on his plea in mitigation of criminal charges brought against the first defendant. The plaintiff has further deposed that he sought an adjournment from the tribunal on the basis that

"the fulcrum of the defendants' defence had shifted materially and that I needed time to adduce evidence (namely bank statements) to outright and categorically rebut the defendants' (false) claims beyond a reasonable doubt let alone the balance of probabilities. I said to the member, words to the effect: "Ma'am it will only take two or three hours and I could go home, get the statements and come back, if you could stand the matter down even." He further deposes that the learned member denied his request for an adjournment saying that "you're a solicitor, you should be prepared".

1. As noted above, the claim was dismissed ultimately on the ground that the tribunal was not satisfied on the balance of probabilities that the plaintiff had not been paid the amount the  tribunal held was payable under the service agreement - namely $550.

1. The issue of payment was obviously a major issue in itself.  If the plaintiff was able to prove that no monies had been paid into his Commonwealth Bank accounts it would have supported his evidence of non-payment.  In addition, such evidence would have been relevant to the assessment of the credibility of the defendants and may have had an impact on the Tribunal’s assessment of the evidence of the parties relating to the terms of the contract of service.  Thus, it seems to me, the rejection of the request for an adjournment denied Mr Beling the opportunity to lead significant evidence.  That significance was confirmed by production before me of the relevant bank statements for two accounts and a letter from the Bank identifying the two accounts as the only ones operated by Mr Beling at the Bank.

1. By section 98 (1) (a) VCAT Act 1998, the tribunal is bound by the rules of natural justice. By section 102 (1) (a), the tribunal "must allow a party a reasonable opportunity…. to call… evidence".

1. The circumstances in which the issue arose are not, in my view, accurately recalled by the plaintiff.  At no time did he state to the tribunal that he  was taken by surprise by the allegation of payment.  In addition, the transcript does not record him making the point to the tribunal that the "fulcrum" of the defence had shifted.  Rather, the impression given by what he said at the hearing was that he had not anticipated that he might need to do more than simply state that he had not been paid.  The tribunal expressed the view  that it was "incumbent upon you to bring to that  hearing all the evidence that is required to support your claim and to have it ready for the day."  In addition, the transcript reveals that when Mr Beling applied for the adjournment, he did so initially on the basis that the defendants should pay the costs of the adjournment, but on being told - "No costs in the Civil Claims Tribunal" -- sought the adjournment on the basis that each bore their own costs .

1. Accepting those points, was there a denial of natural justice and a denial of a reasonable opportunity to call evidence resulting from the refusal to grant an adjournment to Mr Beling to collect the evidence required?

1. I have come to the conclusion that there were such denials. As noted above, the evidence was significant in respect of two key issues. Even if it be assumed that the issue arose because of sloppy preparation by Mr Beling, he sought an opportunity to lead the necessary evidence and that opportunity could have been given without detriment to the defendants by an appropriate costs order (section 109(3) (a) VCAT Act 1998). I suggest that what arose before the tribunal is the sort of problem that arises in jurisdictions intended to be simple and speedy. Such an approach is necessary to enable small claims to be dealt with at a minimum of cost. But the lack of formality carries with it the danger that parties, on occasions, will not have anticipated what may be an issue or the evidentiary weaknesses in their cases. Natural justice and a reasonable opportunity to call evidence require that adjournments be given in appropriate cases on appropriate terms. This was such a case.

1. The appeal should be allowed. The decision of VCAT on 3 June 2005 should be set aside. The proceeding should be remitted to VCAT for re-hearing and determination according to law.

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