Elhan v Randhawa
[2019] VSC 95
•15 February 2019 (revised)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 01238
| ISMAIL ELHAN | Plaintiff |
| v | |
| PIRTHIPAL RANDHAWA | First Defendant |
| LIND MIN TEOH | Second Defendant |
---
JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 February 2019 |
DATE OF RULING: | 15 February 2019 (revised) |
CASE MAY BE CITED AS: | Elhan v Randhawa |
MEDIUM NEUTRAL CITATION: | [2019] VSC 95 |
---
ADMINISTRATIVE LAW — Victorian Civil and Administrative Tribunal — Residential tenancy — Disposal of tenant’s goods — Conduct of hearings — Whether notice of hearing to party — Whether procedural fairness afforded — Victorian Civil and Administrative Tribunal 1998 ss 98, 120, 148.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Appeared in person | |
| For the First Defendant | Appeared in person | |
| For the Second Defendant | Appeared in person |
HIS HONOUR:
This proceeding is brought by Mr Ismail Elhan against the defendants, Mr Pirthipal Randhawa and Ms Lind Min Teoh[1]. Mr Elhan seeks leave to appeal from two decisions of the Victorian Civil and Administrative Tribunal (‘VCAT’), in essence because he says the VCAT hearings were procedurally unfair to him.[2] The VCAT proceedings concerned a property at Seabrook, which Mr Elhan had leased as tenant, the defendants being the landlords. The tenancy came to an end and a warrant for possession was executed.
[1]I have adopted the spelling of the second defendant’s name contained in the originating motion.
[2]The Tribunal is bound by the rules of natural justice: Victorian Civil and Administrative Tribunal Act 1998 s 98(1)(a).
The dispute concerned matters arising from the disposal of goods left on the premises, as I understand it by Mr Elhan, including motorbikes or motor vehicles. The landlords were in the process of taking steps under the procedures contained in the Residential Tenancies Act 1997 to dispose of the goods.
On 20 February 2018, Mr Elhan or his representatives obtained an ex parte interim order from VCAT that the landlords and their servants or agents were restrained from interfering with or disposing of the tenant's goods. The landlords were ordered to make the tenant's goods available to him for collection. The hearing was adjourned to 1 March 2018 at 2:00 pm.
The landlords took steps to have an earlier hearing of the return of the interim orders and, again, that was done ex parte, without Mr Elhan being informed of that application.
Mr Randhawa has given oral evidence this morning about how he obtained that earlier hearing and why he obtained it. The hearing was brought forward to Friday 23 February at 9:30 am. Mr Elhan says in his affidavit that he was not given adequate notice to attend the VCAT hearing rescheduled to 23 February. He informed the Court that he was only notified by VCAT of the hearing at about 11:50 am on Thursday 22 February, the day before the hearing, when he was having lunch with his daughters, whose birthday it was, so he remembers that notification.
Mr Elhan told the VCAT officer who telephoned him that he had a case listed at the Melbourne County Court at the same time and thus was unable to attend and requested a new date. He was advised to apply in writing.
The landlords' solicitor also called Mr Elhan and informed him of the hearing at 9:30 am on Friday 23 February.
Mr Elhan says, and I accept, that he was required to attend the County Court at or about 9:30 am on Friday 23 February and it would have been impracticable for him to attend VCAT in person, even though the County Court and VCAT are in close proximity.
At 8:55 am on 23 February 2018, 35 minutes before the VCAT hearing was scheduled to start, Mr A Eidelson, Mr Elhan's solicitor, contacted VCAT by email, under the heading ‘Application to Adjourn’, telling the Registrar of VCAT of the two matters that Mr Elhan had listed in the County Court that morning. The email did not state at what time the County Court proceedings were listed. However, I consider that the email should be read as indicating that the County Court proceedings prevented him from attending the VCAT hearing. The email stated "…for this reason, we respectfully apply to adjourn the Special Mention".
The matter then came on before VCAT at 9:30 am and the member who heard it set aside the restraining order that Mr Elhan had obtained so that it ceased to have effect. The order sets out a number of relevant matters. In paragraph 6 it states that, "The Tribunal is satisfied that the tenant had notice of today’s hearing, with both the Tribunal and landlords’ solicitor having telephoned him to advise him of the new hearing date".
The order also states that: "1. The application is dismissed for the following reason - there was no appearance by or on behalf of the applicant at the time scheduled for hearing. 2. The tribunal's order of 20 February 2018 is set aside".
The Tribunal member appears not to have been informed that Mr Elhan had said that he had proceedings in the County Court at 9:30 am. Neither of the defendants mentioned it. It is unclear whether Mr Eidelson’s email of 8:55 am had reached the Tribunal member before she made her decision. The probabilities are that it had not.
The question is whether the Court should grant leave to appeal against the decision of VCAT of 23 February, on the basis that it was a denial of procedural fairness. This is an application for leave to appeal to the Supreme Court and it is confined to questions of law.[3] The plaintiff must establish that there is a real or significant argument to be put that VCAT made a relevant error of law and that it is just to grant leave and, of course, the Court exercises a discretion in deciding whether to grant leave.
[3]Victorian Civil and Administrative Tribunal Act 1998 s 148.
In my opinion, no ground for granting leave to appeal on the basis of a denial of procedural fairness in respect of the conduct of the 23 February hearing has been established. I do not think that a person can expect a tribunal to adjourn a hearing merely by sending an email or stating that he has another hearing to attend. This was an urgent matter. An ex parte restraining order was in place. It is common in such circumstances for a person bound by the ex parte restraining order to seek an urgent hearing to put their case as to why the order should not continue or should be set aside. A person cannot assume that by sending an email that the Tribunal will automatically adjourn the hearing. Any person could have appeared to represent Mr Elhan.
I also think that, in the circumstances of this case and its history, Mr Randhawa and Ms Teoh were not under an obligation to inform the Tribunal of what they understood Mr Elhan had said about his commitments in the County Court.
The second hearing which Mr Elhan says was procedurally unfair was on 19 March 2018; this was Mr Elhan’s application for a review under s 120 of the Victorian Civil and Administrative Tribunal Act 1998 of the order of 23 February 2018. Section 120 provides for cases like this, where at the first hearing one side had not appeared or been represented.
I listened to the sound recordings of both hearings as there was no transcript.
On 19 March 2018, Mr Elhan was represented by a lawyer. Arrangements had been made by his lawyer a few days before the hearing for a video link to Fulham Correctional Centre, where Mr Elhan was serving a month's prison sentence. The video link, Mr Elhan says, dropped out. The landlords, Mr Randhawa and Ms Teoh, dispute that. But be that as it may, Mr Elhan's solicitor forcefully and properly represented his interests throughout the hearing.
It is clear that the Tribunal member on 19 March 2018 considered that Mr Elhan’s case had shown some reason as to why he had not personally attended the first hearing on 23 February.
However, the Tribunal member was not satisfied that someone other than Mr Elhan could not have attended to represent him. She noted that most of the tenant’s goods had already been sold and took into account the fact that the goods could have been collected at an earlier time. In the exercise of her discretion, she refused the review application.
I have taken into account that by the time of the second hearing on 19 March 2018 the goods, or most of them, had been sold, and because of this it might well be said there was no point in granting a rehearing of the application determined on 23 February 2018. But, regardless of that, I do not see anything procedurally unfair in the hearing of 19 March.
As I have mentioned, Mr Elhan was represented by a lawyer. Mr Elhan told me that he did not know about the hearing on 19 March until an hour beforehand. I am prepared to accept that, but he was represented by a lawyer who seemed very well aware of the facts of the case and put his arguments quite succinctly. Arrangements had been made for a video link to the prison. So I see no procedural unfairness in the conduct of the hearing on 19 March even if the video link may have dropped out. Mr Elhan’s lawyer continued to address the Tribunal.
For those reasons, I do not consider this is a case where leave to appeal should be granted. I refuse leave to appeal and I dismiss the proceeding.
0
0
0