Caspersz v Garry & Warren Smith Pty Ltd
[2023] VSCA 264
•31 October 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2022 0106 |
| ADRIAN CASPERSZ | Applicant |
| v | |
| GARRY & WARREN SMITH PTY LTD (ACN 004 753 333) & ORS (ACCORDING TO THE ATTACHED SCHEDULE) | Respondents |
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| JUDGE: | NIALL JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 October 2023 |
| DATE OF JUDGMENT: | 31 October 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 264 |
| JUDGMENT APPEALED FROM: | [2022] VCAT 1102 (Quigley J, President) |
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PRACTICE AND PROCEDURE – Refusal to reconstitute Victorian Civil and Administrative Tribunal – Whether reconstitution only available when actual hearing of proceeding on foot – Power to reconstitute not intended to allow party to seek to veto or influence administrative decision to allocate a member to hear and determine proceeding – Power applies where member has been allocated to hear proceeding – No substantive hearing had been allocated to a member – Refusal to reconstitute overtaken by subsequent recusal applications – Recusal applications should be made in usual way and with a proper basis – Application for leave to appeal refused.
Victorian Civil and Administrative Tribunal Act 1988, s 108.
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| Counsel | ||
| Applicant: | In person | |
| First and Third Respondents: | No appearance | |
| Second Respondent | Ms F Cockram | |
| Solicitors | ||
| Applicants: | — | |
| First and Third Respondents: | Maddocks | |
| Second Respondent | CIE Legal | |
NIALL JA:
This is an application for leave to appeal an interlocutory decision of Quigley J as President of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) under s 108 of the Victorian Civil and Administrative Tribunal Act 1988 (‘the Act’). I directed that the application be the subject of an oral hearing.[1] The applicant appeared for himself, the second respondent was represented by Counsel and the first and third respondents entered a submitting appearance.
[1]Pursuant to Supreme Court Act1986, s 14D.
On 23 August 2019 the applicant commenced a proceeding in the Tribunal in relation to the purchase by him of a motor car. In the course of the proceeding in the Tribunal, there have been a number of preliminary steps and arguments undertaken before various members of the Tribunal. The applicant was unhappy with the outcome of a number of these steps. As a result of his dissatisfaction he applied to the Tribunal under s 108 of the Act that the ‘hearing’ be reconstituted in a way that did not include three members he identified by name,[2] nor ‘any other Members, as applicable, who have any “apprehended” and/or otherwise bias’ towards the applicant in the Tribunal proceeding or the application for reconstitution.
[2]Judge Marks, Deputy President Lulham and Senior Member Vassie.
The application was determined by Quigley J, as President of the Tribunal, on the papers. In deciding to deal with the application on the papers, the President applied s 100 of the Act. The applicant objected to his application being decided on the papers. In that respect, the President said that the objection proceeded ‘on a misconception that a hearing was not a hearing if it were undertaken on the documents and that the Applicant would not be afforded procedural fairness and natural justice as a consequence’.[3] The President was satisfied that there was no reasonable objection to dealing with the application on the papers.
[3]Caspersz v Garry & Warren Smith Pty Ltd (Civil Claims) [2022] VCAT 1102, [9].
The application to reconstitute the Tribunal was refused on the basis that—
the words used in s 108(1) that the jurisdiction of the Tribunal pursuant to this provision has a temporal component and may only be exercised when there is an actual hearing of the proceeding on foot. The words used presuppose that there is an event which has occurred at or during the hearing of the proceeding which has given rise to the circumstances which may require the exercise of the Tribunal’s power to reconstitute the hearing.[4]
[4]Ibid [13] (emphasis in original).
At that point in time, the final hearing of the proceeding had not commenced and the President held that therefore the power in s 108 was not available. Further, the President noted that the proceeding had not been listed before a member, nor had the hearing commenced. The President concluded:
There is no hearing to reconstitute. The proceeding has not been listed before a member, nor has the hearing commenced. Equally there are no interlocutory proceedings which have not been completed.
The plain words of section 108 make it clear that an application can be made at any time prior to the conclusion of the hearing of a proceeding. In the present case, the temporal requirements of s 108 cannot be made out and the Tribunal’s jurisdiction is not engaged.[5]
[5]Ibid [30]–[31].
Although the President found that the power was not available, her Honour nevertheless addressed the applicant’s complaints about the members of the Tribunal. The President concluded that the applicant had demonstrated a course of conduct ‘to attempt to avoid his proceeding being heard by anyone who makes an adverse finding against him no matter how meritorious that adverse finding may be’.[6] The President held that it would be an improper use of the reconstitution power to order a reconstitution of the Tribunal based on a perception that mere dissatisfaction with the outcome of a hearing by an applicant amounts to bias or to a suggestion that a Tribunal member might not bring an open mind to the determination of the matters before that member.
[6]Ibid [25].
Some matters of background
It would be unproductive to set out a detailed history of the interlocutory steps that have been taken in the Tribunal. The following incomplete history sets out some of the background:
(a)on 29 January 2021, the applicant wrote to the Registrar of the Tribunal saying that ‘in view of previous recent dealings with this Member, it is not considered appropriate for Deputy President Lulham to conduct the directions hearing… in view of obvious potential bias’;[7]
(b)on 5 February 2021, DP Lulham directed that if the applicant intended to make an application for reconstitution of the Tribunal under s 108 of the Act, ‘he should do so formally so that the issue can be dealt with before the next directions hearing’;
(c)the applicant made an application under s 108 in respect of DP Lulham. On 24 May 2021 Judge Hampel refused the application.[8] in the course of her reasons Judge Hampel said that the application was dismissed. The formal order stated that the application was ‘struck out’;
(d)on 1 March 2022, the President of the Tribunal wrote to the applicant in response to correspondence from him complaining about DP Lulham. In that letter the President said that in the event that it was to be listed before DP Lulham and a party wished for a different member to be allocated, they must make a request at the commencement of the next hearing so that DP Lulham can decide whether there is a proper basis to recuse himself;
(e)on 12 May 2022 and 1 June 2022 the applicant was advised that DP Lulham was not available to preside at the hearing scheduled for 18 July 2022;
(f)on 8 June 2022, SM Vassie vacated the hearing date for 25 July 2022 and adjourned the matter for directions before him on a date after 25 July 2022;
(g)on 11 August 2022, SM Vassie held a directions hearing at which he refused the second respondent’s application for summary dismissal, made various directions and adjourned the directions hearing to a date after 22 September 2022; and
(h)on 6 June 2023, DP Lulham heard an application by the second respondent for summary dismissal of the claim against it. That application was successful and on 28 June 2023, DP Lulham dismissed the proceeding against the second respondent. As part of his reasons DP Lulham rejected an application that he recuse himself on the ground of bias.
[7]Emphasis in original.
[8]Caspersz v Garry & Warren Smith Pty Ltd (Civil Claims) [2021] VCAT 501.
I note that the orders made by SM Vassie on 11 August 2022 were the subject of a separate appeal to the Trial Division which has been heard before O’Meara J and which stands reserved. The grounds of appeal included allegations of bias on the part of SM Vassie.
The statutory provisions
Section 100 of the Act provides:
Method of conducting hearings
(1)If the Tribunal thinks it appropriate, it may conduct all or part of a proceeding by means of a conference conducted using telephones, video links or any other system of telecommunication.
(2)The Tribunal may conduct all or part of a proceeding entirely on the basis of documents, without the appearance of the parties or their representatives or witnesses, unless a party objects to all or part of the proceeding being conducted in this manner.
(3)The Tribunal may conduct all or part of a proceeding (other than a prescribed proceeding or a prescribed class of proceeding) entirely on the basis of documents, without the appearance of the parties or their representatives or witnesses, if—
(a)a party objects to all or part of the proceeding being conducted in this manner; and
(b)the Tribunal is satisfied that the objection is not reasonable.
Section 108 of the Act provides:
Reconstitution of Tribunal
(1) At any time before the conclusion of the hearing of a proceeding—
(a) a party may apply to the Tribunal for the reconstitution of the Tribunal for the purposes of the proceeding; or
(b)the President or a member of the Tribunal as presently constituted may give notice to the parties that the President or member seeks the reconstitution of the Tribunal for the purposes of the proceeding.
(2)If an application is made under subsection (1)(a) or notice is given under subsection (1)(b)—
(a)a presidential member, after allowing the parties to make submissions, may decide that the Tribunal should be reconstituted; and
(b)if so, the President must reconstitute the Tribunal.
(3)If the Tribunal is reconstituted for the purposes of a proceeding, the reconstituted Tribunal may have regard to any record of the proceeding in the Tribunal as previously constituted, including a record of any evidence taken in the proceeding.
Proposed grounds of appeal
The applicant advances the following proposed grounds of appeal:
1. Sections 3, 97, 98 and 100 of the [Act] have NOT been correctly applied by [the President] as outlined in her order 1 and commensurate reasons of 21st September 2022.
2. Sections 3, 97, 98 and 108 of the [Act] have NOT been correctly applied by [the President] as outlined in her order 2 and commensurate reasons of 21st September 2022.
3. It is further correctly put forward that in view of [the Tribunal’s] subsequent orders of 21st September 2022 in the [Tribunal] proceeding in the context of BOTH the actions (orders) made and the reasons outlined, the Applicant’s requested application for the reconstitution of the current Tribunal in the [Tribunal] proceeding has still NOT been undertaken. Accordingly, the requested orders with respect to the reconstitution of the current Tribunal (‘reconstitution’) in the [Tribunal] proceeding as outlined in the appellant’s NOTICE OF APPEAL dated 8th September 2022 in the related existing ‘court proceeding’ in the Trial Division is maintained and MUST remain very much legally validly on foot. In view of the legal errors made, the appeal of [the Tribunal’s] orders of 21st September 2022 in the Court of Appeal is still nonetheless required to be undertaken, and can be processed separately. It is highlighted, however, that it is envisaged that this appeal in the Court of Appeal will be required to be determined PRIOR to the determination of the existing appeal in the related existing ‘court proceeding’ in the Trial Division in view of the orders in relation to the reconstitution requested in that ‘court proceeding’.
The applicant submits that there is an inconsistency in the President’s observation that, for the purpose of s 100, there was a ‘hearing’ on the papers but for the purpose of s 108 a hearing meant the final hearing of the substantive proceeding. The applicant submits that such an inconsistent approach evidenced bias on the part of the President.
With respect to the President’s finding that s 108 has a temporal component and may only be enlivened when there is an actual hearing of the proceeding on foot, the applicant submits that s 108 only has an end point, and not a starting point. The applicant submits that in providing for an application ‘At any time before the conclusion of the hearing of a proceeding’, s 108 is silent on whether a party may apply to the Tribunal for reconstitution prior to an actual hearing commencing.
In any event, the applicant submits that SM Vassie had listed the directions hearing before himself and therefore he had been allocated for the purposes of the reconstitution power.
Finally, the applicant submits that in refusing the application to reconstitute the Tribunal, the President did not make a determination as to whether there was actual or apprehended bias on the part of the relevant members, instead refusing the application on the basis that she had no power to determine it.
Principles applicable to an appeal under s 148 of the Act
An appeal lies from a decision of the Tribunal only on a question of law and with leave. Leave to appeal will only be granted where the court is satisfied that an appeal would have real prospects of success.[9] In Molonglo Group (Australia) Pty Ltd v Cahill, the Court of Appeal said:
Even if this Court is satisfied that an appeal has a real prospect of success, it may nevertheless refuse to grant leave in the exercise of its residual discretion, such as when no substantial injustice will be done if the decision at first instance stands, or the order sought to be appealed against is one of practice and procedure. The question of leave may sometimes be approached by considering, first, whether discretionary considerations exist which justify a refusal of leave, regardless of an applicant’s prospects of success. Where discretionary considerations exist but by themselves are insufficient to justify a refusal of leave, refusal may nevertheless be warranted where those discretionary considerations arise in the context of an appeal that has low, albeit real, prospects of success.[10]
[9]Supreme Court Act 1986, s 14C.
[10][2018] VSCA 147, [96] (Maxwell ACJ, Whelan and Kyrou JJA) (citations omitted).
Decision
The application for leave to appeal must be refused.
The President concluded that the power in s 108 of the Act was not available because:
(a)no hearing of the proceeding had commenced; and
(b)the proceeding had not been listed before a member, nor was there any interlocutory proceeding that had not been completed.
In my view, s 108 is an administrative or facultative provision that enables the President to ‘reconstitute’ the Tribunal. It is plainly intended to cover the situation in which a member who has been allocated to hear the proceeding is unavailable or unable to complete the hearing and determination of the proceeding. There may be a raft of reasons why a member may not be in a position to complete the hearing of the proceeding. An important aspect of the provision is that, by s 108(3), in the event that the Tribunal is reconstituted, the Tribunal may have regard to any record of the proceeding as previously constituted including a record of the evidence. The plain purpose of this is to avoid unnecessary duplication and enable the completion of the matter with a minimum of disruption and waste.
The power is not intended to allow a party to seek to veto or influence the administrative decision to allocate a member to hear and determine a proceeding. It is a fundamental precept that parties do not get to choose the member which will hear their case. That type of forum shopping, if it were permitted, would undermine the independence and impartiality of the Tribunal in a most serious way. Nor is it intended to give the President a right of appeal or review over decisions made, or not made, by a member during the course of a proceeding.
On its plain terms, and consistently with its purpose, s 108 applies where a member has been allocated to hear the proceeding. Section 108 enables the President to ‘reconstitute’ the Tribunal. It does not deal with the initial decision to allocate a matter.[11] If a member has not been allocated, the Tribunal has not been constituted to hear the proceeding and self-evidently it cannot be ‘reconstituted’. On the facts as found by the President, the proceeding had not been constituted for the purpose of a hearing and so no issue of reconstitution had arisen.
[11]The Act, s 64.
Further and more importantly, in my view, this matter is entirely unsuitable for this Court to consider whether s 108 might apply where no substantive hearing had been allocated to a member. That is because after the decision of the President, DP Lulham determined a strike out application and SM Vassie heard a directions hearing. On each of those occasions the applicant made an application that the member recuse themselves. Those applications were determined by the member sitting on the basis of the current state of affairs. In respect of SM Vassie that decision has been the subject of an appeal, including on grounds of apprehended bias, and which has been heard by a judge in the Trial Division and stands reserved.
Events have overtaken the decision of the President. Given that the applicant has subsequently asked each member to disqualify themselves on the grounds of bias no point would be served by giving leave to appeal on an earlier decision of the President. In respect of the applicant’s complaint about the orders of SM Vassie, it is inappropriate for the applicant to seek to challenge those orders in two different proceedings and his substantive complaint is currently reserved before another judge of the Court.
It is very important that an appeal under s 148 of the Act not compound, delay or frustrate the orderly determination of proceedings. Refusing leave to appeal will not in any way deny the applicant the entitlement of having his matter heard and determined by a member who is free from apprehended or actual bias. Should the applicant have a proper basis to make such an application, it should be determined in the usual way by the member hearing the application and in respect of whom the complaint is made. Indeed, in respect of SM Vassie the applicant has appealed a later decision on the ground of bias. In saying that this is the appropriate course, I should not be taken to be offering any encouragement to make such an application. An application for a member to disqualify themselves should never be merely as a reflex to an unfavourable decision and should only be made where there is a proper factual and legal foundation.
For these reasons there is no injustice in refusing leave and no justification for this Court to fragment the interlocutory steps which will only cause expense and delay.
Leave to appeal is refused.
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SCHEDULE OF PARTIES
ADRIAN CASPERSZ Applicant V GARRY & WARREN SMITH PTY LTD (ACN 004 753 333) First Respondent HONDA AUSTRALIA PTY LTD (ACN 004 759 611) Second Respondent GARRY & WARREN SMITH GROUP (ABN 53 394 190 214) Third Respondent
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