Caspersz v Garry & Warren Smith Pty Ltd - [2023] VSCA 264

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…

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: [2023] VSCA 264
Decision Date: 31 October 2023

CaseChat Overview and Summary

The case of Caspersz v Garry & Warren Smith Pty Ltd involved a dispute before the Court of Appeal of the Supreme Court of Victoria. The applicant sought the reconstitution of a panel at the Victorian Civil and Administrative Tribunal (VCAT) on the basis that one of the members of the panel had a conflict of interest. The respondent argued that the application was an improper attempt to influence or veto the administrative decision of VCAT to allocate a member to hear the proceeding. The Court of Appeal was required to determine whether the power to reconstitute a panel at VCAT was available in the circumstances presented, and whether the applicant's application was valid.

The Court of Appeal found that the power to reconstitute a panel at VCAT was 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. The power only applied where a member had already been allocated to hear the proceeding, which was not the case here as no substantive hearing had been allocated to a member. The Court of Appeal also found that the applicant's refusal to reconstitute was overtaken by subsequent recusal applications, which should be made in the usual way and with a proper basis. The Court of Appeal dismissed the applicant's appeal and refused leave to appeal.

The Court of Appeal's decision in this case highlights the importance of understanding the proper scope and application of the power to reconstitute a panel at VCAT. Parties should not use the power to seek to influence or veto the administrative decision of VCAT to allocate a member to hear and determine a proceeding. Instead, recusal applications should be made in the usual way and with a proper basis. This decision serves as a reminder to practitioners to carefully consider the appropriate procedure to follow in such situations.

Orders