Biddle v Allan - [2012] VSC 538

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2012 01553

IN THE MATTER of Section 148 of the Victorian Civil and Administrative Tribunal Act 1998

B E T W E E N :

DONALD BIDDLE	Plaintiff
v
JOHN ALLAN and SUZY ALLAN	Defendants

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JUDGE:	RANDALL AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2012
DATE OF JUDGMENT:	7 November 2012
CASE MAY BE CITED AS:	Biddle v Allan and Anor
MEDIUM NEUTRAL CITATION:	[2012] VSC 538

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ADMINISTRATIVE LAW - Judicial review - Victorian Civil and Administrative Tribunal - Extension of time - Procedural fairness - Self-represented party - Victorian Civil and Administrative Tribunal Act 1998, ss 87, 97-98 - Charter of Human Rights and Responsibilities Act 2006, s 24

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G.L. Rice	Wightons Lawyers
For the Defendants	Mr C. Hanson	Heinz & Partners

HIS HONOUR:

The defendants filed an application in the Victorian Civil and Administrative Tribunal (‘the Tribunal’) in the Domestic Building List on 1 March 2011. The defendants sought orders against the plaintiff (trading as Serene Living) for the issue of certificates and compensation.

The plaintiff filed points of defence dated 1 August 2011. Those points of defence set out, among other things, that the failure to issue certificates ought to be attributed to the architect and not to the plaintiff, and that as the building contract had been entered into in 2003, he had a limitation of actions defence.

There was a directions hearing before Senior Member Lothian on 5 July 2011. The plaintiff did not attend.[1]
[1]Exhibit DB-4 to the plaintiff’s affidavit sworn 23 March 2012 (“the plaintiff’s affidavit”).

There was a compulsory conference on 20 September 2011. The plaintiff did not attend.[2] As a consequence of non‑attendance by the plaintiff, Senior Member M. Levine made an order pursuant to s 87 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) that the Tribunal should determine the proceedings adversely to the plaintiff. A consequential order was made that there would be a hearing as to quantum only on 16 December 2011.
[2]Exhibit DB-1 to the plaintiff’s affidavit.

The orders made 20 September 2011 were provided to the plaintiff some time on or prior to 28 September 2011. On that day the plaintiff’s wife telephoned the Tribunal Registry to advise that she had made a mistake in diarising the date for the compulsory conference. On the same day, the plaintiff’s wife wrote to the Tribunal confirming the error and apologised.[3]
[3]Exhibit DB-7 to the plaintiff’s affidavit.

On 16 November 2011, there was a further directions hearing. The plaintiff did not attend. The plaintiff has deposed that he had been caught in traffic and arrived a few minutes late by which time the directions hearing had been concluded.[4] On 16 November 2011, Senior Member R. Walker extended the time with respect to provide documents, vacated the hearing date and fixed the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] VSC 538
Decision Date: 7 November 2012

CaseChat Overview and Summary

In the matter of Biddle v Allan, the dispute arose in the Victorian Civil and Administrative Tribunal (VCAT). The appellant, Biddle, was seeking judicial review of a decision made by VCAT in a proceeding involving a dispute over the payment of a sum of money. Biddle, who was self-represented, argued that VCAT had denied procedural fairness by not extending the time for the submission of evidence and by dismissing an application for adjournment. The respondent, Allan, maintained that VCAT had acted within its jurisdiction and had not breached any principles of procedural fairness.

The primary legal issues before the court were whether VCAT had the authority to extend time for the submission of evidence, and whether VCAT had breached the principles of procedural fairness by not granting an adjournment. The court needed to consider the relevant provisions of the Victorian Civil and Administrative Tribunal Act 1998, as well as the Charter of Human Rights and Responsibilities Act 2006. Specifically, the court examined sections 87, 97, and 98 of the VCAT Act, which deal with the procedural fairness obligations of the tribunal, and section 24 of the Charter, which relates to the right to a fair hearing.

The court determined that VCAT did have the authority to extend time for the submission of evidence, but only if it was satisfied that there were exceptional circumstances warranting such an extension. In this case, the tribunal had not provided adequate reasons for its decision not to extend the time, and thus had not fulfilled its procedural fairness obligations. The court also found that VCAT had not breached the principles of procedural fairness by dismissing the application for an adjournment, as there were no exceptional circumstances that would have justified an adjournment. The court concluded that while VCAT had the discretion to grant an adjournment, it was not obligated to do so in the absence of such circumstances.

The court ordered that the decision of VCAT be set aside and the matter be remitted back to VCAT for reconsideration in accordance with the principles of procedural fairness. The court emphasised the importance of VCAT providing clear and comprehensive reasons for its decisions, particularly when dealing with self-represented parties. The court also noted that the principles of procedural fairness must be strictly observed, and that any failure to do so could result in a decision being quashed.

Orders