Guastalegname v Chevros Pty Ltd - [2015] VSC 408

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 02629

MICHAEL GUASTALEGNAME	Applicant
v
CHEVROS PTY LTD (ACN 076 603 582)	Respondent

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JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	6 August 2015
DATE OF JUDGMENT:	6 August 2015
DATE OF REASONS:	12 August 2015
CASE MAY BE CITED AS:	Guastalegname v Chevros Pty Ltd
MEDIUM NEUTRAL CITATION:	[2015] VSC 408

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VCAT – application for leave to appeal and appeal – application for reconstitution of the Tribunal on the ground of bias determined by a presidential member against the applicant - hearing of the application described in the notice of hearing as a ‘directions hearing’ but treated by the Tribunal as the substantive hearing –proceeding over the objection of the applicant in these circumstances held to be a breach of procedural fairness – whether the Tribunal should have adjourned the hearing to allow the applicant to obtain a transcript of the hearing said to show bias – whether the Tribunal showed actual or apprehended bias – leave to appeal granted and appeal allowed – reconstitution application remitted to the Tribunal for rehearing by a different presidential member.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Mr P Best	G&M Lawyers and Notaries

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Legal principles relating to appeal from VCAT........................................................................... 3

Questions of law and grounds......................................................................................................... 4

Directions hearing or hearing?.................................................................................................... 6
Listing of the reconstitution application.......................................................................... 6
The hearing on 7 May 2015................................................................................................ 9
Reasons of Deputy President Lulham........................................................................... 10
Discussion........................................................................................................................... 11

Absence of a written transcript................................................................................................. 13
Other grounds............................................................................................................................. 16
Bias....................................................................................................................................... 16
Submissions not permitted or considered..................................................................... 20
Costs.................................................................................................................................... 20
Remaining grounds........................................................................................................... 21

Refusal of application that I recuse myself................................................................................. 21

Conclusion and orders.................................................................................................................... 22

Costs.............................................................................................................................................. 23
Application pursuant to s 29 of the Civil Procedure Act 2010................................................ 24

HER HONOUR:

Introduction

These reasons arise from an application for leave to appeal made by Mr Guastalegname by originating motion filed 25 May 2015. By that originating motion, Mr Guastalegname sought leave to appeal orders 1, 3 and 4 made by Deputy President Lulham of the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’) on 7 May 2015 in proceedings BP792/2014. Mr Guastalegname is described in the originating motion in the conventional way as ‘the plaintiff’ and Chevros Pty Ltd, the other party, as ‘the defendant’. Somewhat confusingly, the relevant Supreme Court rules, rr 4.05-4.14 of the Supreme Court (Miscellaneous Civil Procedure) Rules 2008 require the parties to an application for leave to appeal from VCAT to be described as ‘applicant’ and ‘respondent’ respectively, although the application for leave is made by originating motion. The rules describe the parties to an appeal once leave is given as ‘appellant’ and ‘respondent’. In these reasons I will use the descriptors ‘applicant’ and ‘respondent’ henceforth instead of ‘plaintiff’ and ‘defendant’.

The VCAT proceeding between Mr Guastalegname and Chevros Pty Ltd arises from a retail tenancy. The VCAT…

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: [2015] VSC 408
Decision Date: 6 August 2015

CaseChat Overview and Summary

The dispute in Guastalegname v Chevros Pty Ltd involved the applicant seeking leave to appeal and an appeal against a decision of the Victorian Civil and Administrative Tribunal (VCAT). The applicant contested the Tribunal's refusal to reconstitute on the basis of apprehended bias. The Tribunal had dismissed the applicant's application for reconstitution and treated the hearing of the application as a substantive hearing, despite the applicant's objection to this procedure.

The primary legal issue before the court was whether the Tribunal's decision to proceed with the substantive hearing without adjourning to allow the applicant to obtain a transcript amounted to a breach of procedural fairness. Additionally, the court had to consider whether the Tribunal exhibited actual or apprehended bias in its handling of the application. The applicant argued that the Tribunal should have adjourned the hearing to enable them to obtain a transcript that purportedly demonstrated bias on the part of the presiding member.

The court found that the Tribunal's decision to proceed with the substantive hearing without a proper adjournment constituted a breach of procedural fairness. The court held that the Tribunal should have allowed the applicant to obtain the transcript, which was critical to the apprehension of bias claim. Furthermore, the court determined that the Tribunal did not demonstrate actual bias but found that the proceedings as conducted amounted to an apprehended bias, warranting a rehearing before a different presidential member. Consequently, the court granted leave to appeal and allowed the appeal, remitting the reconstitution application back to the Tribunal for rehearing.

The final orders of the court were that leave to appeal was granted, and the appeal was allowed. The application for reconstitution was remitted to VCAT for rehearing by a different presidential member, ensuring procedural fairness and addressing the apprehension of bias.

Orders