Cathcart v Wang - [2021] VSC 685

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 00424; S ECI 2021 03271

Between:
MELYSA MAREE CATHCART	Applicant
-and-
YUN FEI WANG	Respondent

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 October 2021
DATE OF ORDERS:	25 October 2021
DATE OF PUBLICATION OF REASONS:	28 October 2021
CASE MAY BE CITED AS:	Cathcart v Wang
MEDIUM NEUTRAL CITATION:	[2021] VSC 685
JUDGMENTS/ORDERS APPEALED:	Wang v Cathcart (VCAT orders of 18 January & 27 August 2021)

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ADMINISTRATIVE LAW — Residential tenancy — Applications for leave to appeal from orders of VCAT made at separate hearings — Landlord applied for order terminating residential tenancy on basis of unpaid rent — Telephone hearing — Tenant’s line dropped out within minute of commencement of hearing — Unknowingly at first, but later believing tenant had hung up on him, member continued hearing without tenant, but with landlord’s agent still participating, and made termination order — Tenant rang VCAT back, twice, but did not get through in time to participate — Whether denial of procedural fairness — At subsequent hearing, deputy president made order for possession of rental premises — Whether possession order contingent upon termination order validly made under applicable provision — Whether proposed appeals futile in view of, inter alia, tenant’s continuing unjustified failure to pay rent — Whether Court should affirm VCAT’s orders; set them aside and make orders VCAT could have made; or set them aside and remit landlord’s applications to VCAT for rehearing — Applications granted — Appeals allowed — Orders for termination and possession set aside — Landlord’s applications for such orders remitted to VCAT for rehearing — Residential Tenancies Act 1997 (Vic), Part 16 (“COVID-19 temporary measures”); Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 97, 98, 100, 102, 120 & 148.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Self-represented	N.A.
For the Respondent	Self-represented (Mr J Verduci, McKenzie friend)	N.A.

HIS HONOUR:

PART 1: OVERVIEW

A denial of procedural fairness

Telephone hearings have been allowed at VCAT since the tribunal’s inception.[1] These days, they are the rule, and in-person hearings are the exception. The COVID-19 pandemic has seen to that. Hopefully, normalcy will return soon. To be sure, phone hearings are a workable, albeit inferior, substitute for the real thing. But they are effective only if the required technology functions as it should, and only if those conducting the hearings are astute to detect and remedy any technological glitches that might deny participants a reasonable opportunity to hear and be heard.
[1]See s 100(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

In this case, technology failed. The presiding member eventually detected that something was amiss but, unfortunately, did nothing to remedy it. The result was a denial of procedural fairness in a serious matter. It happened in this way.

On 18 January 2021, a tenant’s mobile phone connection dropped out less than a…

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.

Continue reading Cathcart v Wang

Details

AGLC: Cathcart v Wang [2021] VSC 685
Case: [2021] VSC 685
Decision Date: 28 October 2021

CaseChat Overview and Summary

In the case of Cathcart v Wang, the dispute centred around a residential tenancy in Victoria. The landlord sought to terminate the tenancy and gain possession of the rental premises based on unpaid rent. The matter was heard by the VCAT and later by the Supreme Court of Victoria. The central legal issue was whether the VCAT had properly exercised its jurisdiction and whether procedural fairness had been observed in the context of a telephone hearing that faced technical difficulties. Another issue was whether the VCAT had the authority to make a possession order contingent upon a previously made termination order, and whether the appeals were futile given the tenant’s ongoing failure to pay rent.

The court found that the VCAT member had erred by continuing the hearing without the tenant, who had experienced a technical issue with their phone line, even though the tenant had attempted to reconnect. This error constituted a breach of procedural fairness. The court also found that the VCAT did not have the authority to make a possession order contingent upon a termination order that had been improperly made. Given the procedural errors and the potential for the issues to be resolved at a new hearing, the court determined that the appeals were not futile. Consequently, the court allowed the appeals, set aside the orders for termination and possession, and remitted the landlord’s applications to VCAT for a new hearing.

The final orders of the court were to grant the applications for leave to appeal, allow the appeals, set aside the orders for termination and possession, and remit the landlord’s applications to VCAT for a rehearing. This decision underscored the importance of procedural fairness in administrative law and the need for tribunals to adhere to statutory provisions and jurisdictional limits.

Orders