Caspersz v Garry & Warren Smith Pty Ltd

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.