Biddle v Allan
[2012] VSC 538
•7 November 2012
| 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 hearing on 22 February 2012. The order also noted:
Although the Respondent has filed a written apology for his non‑attendance at the compulsory conference on 20 September 2011, no application has been made by him to set aside the order made on that day.[5]
[4]Paragraph 12 of the plaintiff’s affidavit.
[5]Exhibit DB-8 to the plaintiff’s affidavit.
The plaintiff presumably was aware of the orders made on 16 November 2011 as he deposed he called the defendants’ solicitors when he arrived at the Tribunal with a view either to have the directions hearing brought back or to otherwise have discussions.[6] Further, the order was referred to in the plaintiff’s letter of 23 December 2011.
[6]Paragraph 12 of the plaintiff’s affidavit.
On or about 16 December 2011, the plaintiff received a copy of a letter from the Tribunal to the first defendant, noting that the first defendant’s list of documents had not been filed by 14 December 2011.
On 23 December 2011, the plaintiff wrote to the Tribunal and sought that a new conference be listed. The letter set out as follows:
As of the 23/12/2011 I have not had list of documents as per the order served to me. I am asking that the orders be set aside and a new conference be listed.
I was late due to traffic for the last conference and an order was made that was not able to be explained to me by the Tribunal Staff.
I feel it of most importance for the Tribunal to include a third party in this dispute. The Architect and Project Manager Mr R. Andary.[7]
[7]Exhibit DB-10 to the plaintiff’s affidavit.
The quantum hearing proceeded on 22 February 2012. The plaintiff attended. The plaintiff deposed that the Tribunal disallowed “various aspects of my cross‑examination on the basis that liability had been determined…”.[8]
[8]Paragraph 17 of the plaintiff’s affidavit.
On 23 March 2011, the plaintiff filed an originating motion in this Court. The originating motion seeks leave to appeal each of the orders made by Senior Member M. Levine on 20 September 2011 and Member M. Farrelly on 22 February 2012.
The application for leave to appeal is required to be made not later than 28 days after the date of the order. However, a court may extend time if appropriate.[9]
[9]Section 148(2) & (5) of the VCAT Act.
The plaintiff’s contentions
Upon an analysis of the material filed in support of the originating motion, it is really the order of 20 September 2011 which is sought to be appealed. The order of 22 February 2012 almost flows as a natural consequence of the order of 20 September 2011 limiting the hearing to quantum only. Separate grounds for appeal from the order of 22 February 2012 are not identified.
The plaintiff contends with respect to the order of 20 September 2011 that:
(a)each of the Tribunal members failed in their respective duties to assist self-represented parties;
(b)the failure was contrary to s 24 of the Charter of Human Rights and Responsibilities Act 2006;
(c)the plaintiff was not afforded procedural fairness as required by common law and by ss 97 & 98 of the VCAT Act and s 24 of the Charter of Human Rights and Responsibilities Act 2006;
(d)the order of 22 February 2012 was contrary to law as it proceeded in the absence of a proper determination of liability.
I reject the contentions put forward on behalf of the plaintiff.
Section 87 of the VCAT Act is in the following terms:
What happens if a party fails to attend a compulsory conference?
87.What happens if a party fails to attend a compulsory conference?
If a party does not attend a properly convened compulsory conference -
(a)the conference may proceed at the appointed time in the party’s absence; and
(b)If a member of the Tribunal is presiding and all the parties present agree, the Tribunal, constituted by that member, may –
(i)determine the proceeding adversely to the absent party and make any appropriate orders; or
(ii)direct that the absent party be struck out of the proceeding.
The scope of s 87 specifically contemplates that a member could have made the order such as was made on 20 September 2011. Senior Member M. Levine did not go so far as to exclude the plaintiff from the proceeding but certainly ordered that the plaintiff would not be able to participate in any liability dispute. Accordingly, he determined the proceeding, in so far as it referred to liability, adversely to the plaintiff and then made directions for the assessment of quantum.
Although the order made was within power, it was put on behalf of the plaintiff that such an order should not have been made and the compulsory conference merely adjourned as the Tribunal was aware that the plaintiff was unrepresented. However, such a submission overlooks the previous failure to attend at the directions hearing before Senior Member Lothian. In so far as the order made on 20 September 201 was a discretionary order, it has not been demonstrated that the discretion has miscarried.
The plaintiff submitted that the Tribunal’s own practice notes provide for a fair hearing obligation. Under the heading of “What is the fair hearing obligation?”[10] it is set out as follows:
[10]VCAT, Practice Note PNVCAT3, Fair Hearing Obligation, 15 March 2012
Pursuant to the Act, the Tribunal has a general duty to ensure a fair hearing for all parties. Such a duty also arises under s 24 of the Charter of Human Rights and Responsibilities Act 2006. A fair hearing involves the provision of a reasonable opportunity to put your case, the right to be heard and to have your case determined according to law by a competent, independent and impartial tribunal.
Later it is set out:
The provision of a fair hearing requires Members to identify the difficulties experienced by any party, whether due to lack of representation, … or any other cause, and find ways to overcome those difficulties and assist them through the tribunal process. This may include adopting special measures to facilitate the equal participation of people with attributes protected the Equal Opportunity Act 2010, where they may otherwise be prevented from fully participating in the Tribunal’s process.
One of the other obligations is set out in these terms:
Members have a duty to assist parties in order to ensure that they are provided with a fair hearing. The assistance provided by a Member may, depending on the circumstances, include:
(e)adjourning a hearing in circumstances where it would be unfair to proceed.
Then under the heading “What is the duty of the Tribunal to assist self-represented parties?” the following is set out:
Members have a particular responsibility to assist self-represented parties (sometimes referred to as litigants in person) to the extent necessary to ensure a fair hearing.
Although the practice note relied upon was published after the February 2012 hearing, I am willing to accept that it encapsulates the prevailing views on guidelines for assisting unrepresented litigants in September 2011 and February 2012. It is clear that the drafter of the practice notice was cognisant of the requirement to balance the interests of litigants who represent themselves with the need to afford procedural fairness to all parties.
The obligation to act fairly is also enshrined in s 97 of VCAT Act and s 98 of the VCAT Act in so far as the Tribunal is bound by the rules of natural justice.
Section 24 of the Charter of Human Rights and Responsibilities Act also provides for a fair hearing. That section provides as follows:
24.Fair hearing
(1)… a party to a civil proceeding has the right to have the … proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
It is of note that the order of 20 September 2011 does not offend any of the provisions of the VCAT Act, nor does it in a strict sense offend the provisions of s 24(1) of the Charter of Human Rights and Responsibilities Act. However, even if s 24(1) is construed to mandate that a hearing cannot proceed in the absence of a party who does not attend, then in any event, such a construction would be contrary to the provisions of s 87 of the VCAT Act which specifically prescribes what is open in the event that a party fails to attend. Further, I refer to s 32(3) of the Charter of Human Rights and Responsibilities Act. That sets out:
(3)This section does not affect the validity of –
(a)an Act or provision of an Act that is incompatible with a human right;
In so far as there is an inconsistency, the provisions of s 87 of the VCAT Act must prevail.[11]
[11]See also Slaveski v Smith [2012] VSCA 25 at [20].
As to the contention that procedural fairness was not afforded by the failure to simply adjourn applications or hearings, I cannot see what the Tribunal could have done in the circumstances. The plaintiff failed to attend on 5 July, 20 September and 16 November 2011. The plaintiff was a serial non‑attender. Further, on 23 December 2011, the plaintiff was alive to the issue and wrote seeking that the orders be set aside and a new conference be listed.
The 16 November 2011 the order included a notation that although the respondent had filed a written apology for his non‑attendance at the compulsory conference on 20 September 2011, no application was made to set aside the order made on that day. No application was made between 16 November 2011 and 22 February 2012 to set aside the order of 20 September 2011. No application was made on the day of the quantum hearing. There was nothing more the Tribunal could have done in those circumstances.
Principles
Section 148 of the VCAT Act does not distinguish between an interlocutory order or final order. By s 3 of the VCAT Act order is defined as an “order of the Tribunal includes interim order of the Tribunal”. The order of 20 September 2011 was arguably interlocutory in that it was directive as to the procedures to be adopted for disposing of the question between the parties. Conversely, there might be an argument that it finally determined the rights viz a viz the parties with respect to the question of liability. However, nothing really turns upon a classification of the order given that s 148 permits an appeal in relation to virtually any order of the Tribunal.
Section 148 of the VCAT Act imposes a requirement for the grant of leave to appeal the orders of the Tribunal.
In Secretary to the Department of Premiere and Cabinet v Hulls,[12] Phillips JA discussed the matters relevant to the grant of leave to appeal. Phillips JA said:
Once a question of law has been identified which bears directly upon the relief which will be sought on the appeal, and once it has been shown that there is sufficient doubt attending the question to justify the grant of leave to appeal, it may be supposed that leave will ordinarily go if the order below is a final order.[13]
[12][1999] 3 VR 331 (“Hulls”)
[13]Hulls at [13].
The Honourable Justice Emerton in Legal Services Commissioner v Turner,[14] said this:
His Honour went on to say that where the order under challenge was final (as is here the clearly the case), the injustice of allowing the determination below to stand uncorrected, if it is indeed attended by error, will be more readily discerned. To leave a final order standing which would be reversed if error of law were established is unjust to the party adversely affected by the order: the prejudice lies in that party being bound to comply with an order that ought not to have been made as a matter of law. However, that might not always be so. Even in the case of a final order, the court might sometimes require persuasion that there would be prejudice if the order below were allowed to stand, even though tainted by error.
[14][2012] VSC 394 at [92].
In this instance, I am far from satisfied that the plaintiff has any real or substantial argument that the Tribunal fell into error with respect of the order of 20 September 2011 so as to satisfy a court that there is a prospect of substantial injustice in the absence of a grant of leave.
Section 120 of the VCAT Act is in the following terms:
120. Re-opening an order on substantive grounds
(1)A person in respect of whom an order is made may apply to the Tribunal for a review of the order if the person did not appear and was not represented at the hearing at which the order was made.
The plaintiff submitted that the plaintiff did not have standing to make an application under s 120 of the VCAT Act. I was referred to the discussion in the annotated VCAT Act where at [5104] the author submits that
… a compulsory conference is probably not a ‘hearing’ for the purposes of s 120. There are three reasons for this submission. The first (and principal) reason is that s 83(1) in effect provides that one or more compulsory conferences may take place “before the proceeding is heard by the Tribunal”. This wording clearly supports the view that a compulsory conference is not a hearing in itself. The second reason is that the VCAT Act deals with the provision of notice of “the hearing of a proceeding” in s 99, whereas it deals with the provision of notice of compulsory conference in s 83(3). And the third reason is that the VCAT Act deals with “Compulsory conferences, mediation and settlement” in Pt 4, Div 5, whereas “Hearings” are dealt with in Pt 4, Div 7. As such, the structure of the Act itself supports the view that a compulsory conference is not a “hearing” for the purposes of s 120.[15]
[15]Jason Pizer, Pizer’s Annotated VCAT Act (4th ed).
However, noting that, the author does refer to Vero Insurance Ltd v Stavrou Builders [2004] VCAT 1193, where the Tribunal appeared to assume, without discussion, that s 120 applies to an order made under s 87 where a party failed to attend a compulsory conference.
Whether or not the author is correct in imposing a limitation upon the power under s 120 of the VCAT Act, it appears that the Tribunal has considered it has power to re‑visit an order made at a compulsory conference in the absence of a party. Further, the notation on the previous order clearly demonstrates that in February 2012 the Tribunal would have entertained such an application if it were made. It was not.
Extension of time
The provisions set out in s 148(5) of the VCAT Act is to be contrasted with s 109 of the Magistrates’ Court Act which requires special circumstances. The power to extend time pursuant to s 148(5) is discretionary. The discretion is to be exercised to do justice between the parties. In Luxmore Pty Ltd v Hydedale Pty Ltd,[16] Maxwell P and Kellam JA said:
The interests of justice will almost always require that an extension of this kind be granted where there is an explanation for the non-compliance and there is no irremediable prejudice to the other party. Of course there will be circumstances in which the appeal was obviously hopeless that the Court could be satisfied that the extension would really be futile.
[16][2008] VSCA 212 at [3].
Save that the time limit under s 148 of the VCAT Act is of substantive character rather than a procedural time limitation as contained in Rules of Court, there are no fixed and binding rules for the exercise of the discretion. Notwithstanding there being no rules for the exercise of the discretion which is untrammelled, it is convenient to consider some of the factors set out by Dixon J in Matthew John Finn v DPP (Vic),[17] which, although in a slightly different context are still germane Dixon J at [17] set out factors for consideration as:
[17][2011] VSC 234.
·the period of delay;
·explanations for the delay and the reasons advanced to justify delay being excused;
·whether there is any injustice or prejudice to any applicant for exclusion if the period is not extended;
·whether there is any irremediable prejudice … if the period is extended;
·whether the prospects of success of the application is realistic, not fanciful;
·the history of the proceedings under the [Act] …; and
·the statutory context of orders …
In neither the substantive affidavit in support sworn by the plaintiff on 23 March 2012 nor the affidavit sworn by his wife on 23 March 2012 is any explanation for the delay proffered except that Connie Biddle deposed that she understood that the advice from the Tribunal Registry when she called on 28 September 2011 was to the effect that she could write to explain Donald’s excuse for non‑attendance. She understood from the conversation that that would be sufficient to have the orders of 20 September 2011 set aside. On receipt of the order of 16 November 2011 it must have been patently clear that the Tribunal was inviting an application to set aside the order and that no application had at that date been made. No explanation is then put forward for the delay between 16 November 2011 and March 2012. Instead, the plaintiff attended to ventilate the issues at the hearing on 22 February 2012 and did not make further application when the “Member disallowed various aspects of my cross‑examination on the basis that liability had been determined by [the Tribunal’s] orders of 20 September 2011.”[18]
[18]Paragraph 17 of the plaintiff’s affidavit.
Given my analysis of the contentions put forward on behalf of the plaintiff, I am of the view that the prospects of success of the appeal are not realistic and no more than fanciful. Given that the plaintiff had the opportunity to be heard and make submissions and test the evidence about quantum, I am not satisfied that there is any injustice or prejudice by not granting leave to extend time. Although if the matter was to be re‑heard, it is arguable that any injustice or prejudice which might be suffered by the defendants is compensatable by costs, this is a matter where the hearing proceeded without any application for adjournment or the vacating of the 20 September 2011 orders. The plaintiff elected to cross‑examine the defendant’s building consultant and the first defendant. There was argument about the assessment. The plaintiff having elected to proceed with the hearing application, it is not appropriate that the defendants should be subjected to the prospect of further hearings which may or may not be compensated by costs.[19]
[19]See affidavit of John Keith Allan filed 12 April 2012.
In those circumstances, I determine that the interests of justice militate against the extending time to bring the appeal.
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