Hunter v Vaishnav - [2020] VSC 361

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 04653

MATTHEW HUNTER	Plaintiff
v
ANURAG VAISHNAV and RENU VAISHNAV	Defendants
and
DIRECTOR OF CONSUMER AFFAIRS VICTORIA	Interested Party

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 April 2020
DATE OF JUDGMENT:	22 June 2020
CASE MAY BE CITED AS:	Hunter v Vaishnav & Ors
MEDIUM NEUTRAL CITATION:	[2020] VSC 361

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ADMINISTRATIVE LAW – Appeal from decision of Victorian Civil and Administrative Tribunal – Whether Tribunal failed to provide fair hearing and adequate assistance to self-represented litigant – exercise of discretion under s 74(2)(b) – Applicant to show reasons for displacing status quo when claim has been finalised – Appeal dismissed – Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 74(2)(d), 148(2) – Rodger Hoskin v Department of Education – FOI Manager [2005] VCAT 2921.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Self-represented
For the Defendants	Mr Anurag Vaishnav self-represented
Interested party	Mr J Baker Legal Services, Consumer Affairs Victoria

HER HONOUR:

Mr Hunter was evicted from his leased property and a number of his goods and papers left behind were disposed of by the landlords. He commenced proceedings in the Victorian Civil and Administrative Tribunal (VCAT) seeking compensation for the unlawful disposal of his goods and personal papers. He brings an appeal to this Court on a question of law against a decision of VCAT made on 8 August 2019. That decision was a refusal of Mr Hunter’s application for leave to bring a further claim at VCAT arising from the same facts and circumstances, when his earlier claim had been withdrawn.

Mr Hunter must obtain leave to bring the appeal in accordance with s 148(2) of the Victorian Civil and Administrative Tribunal Act1998 (Vic) (the Act). His appeal was filed on 23 September 2019, more than the 28 day time limit prescribed by s 148(2)(a) so he must also obtain an extension of time.

The VCAT hearing

Before turning to the questions of law identified it is helpful to outline the factual basis giving rise to the decision under appeal. Mr Hunter was a tenant in property of Anurag and Renu Vaishnav (‘the property’). When Mr Hunter failed to pay rent, the respondents took action, ultimately making an application against Mr Hunter in VCAT, resulting in an order that he vacate the property and pay outstanding rent. Mr Hunter failed to vacate the property so a warrant of possession was issued and executed on 16 July 2018.[1]
[1]VCAT Transcript of Proceedings, Matthew Hunter v Renu & Anurag Vaishnav (Victorian Civil and Administrative Tribunal, R2018/35793/02, Member L Warren, 10 May 2019) (‘VCAT Transcript’) 6.

A number of items were left behind when Mr Hunter was evicted. On 2 August 2018 a ‘goods left behind inspection’ was carried out and a report of the same date was made by an inspector from Consumer Affairs Victoria. Mr Hunter’s possessions were then disposed of…

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: [2020] VSC 361
Decision Date: 22 June 2020

CaseChat Overview and Summary

Hunter v Vaishnav is an appeal against a decision of the Victorian Civil and Administrative Tribunal (VCAT) where the appellant, Hunter, contested the Tribunal’s refusal to grant him leave to appeal its earlier decision. The matter at hand involved a dispute concerning Hunter's application for information under the Freedom of Information Act 1982 (Vic). Hunter, representing himself, sought information about the decision-making process and criteria used by the respondent, Vaishnav, in approving certain permits. VCAT dismissed Hunter's application and later denied his request for leave to appeal.

The primary legal issues before the court were whether the Tribunal had failed to provide Hunter with a fair hearing and adequate assistance, and whether the Tribunal correctly exercised its discretion under section 74(2)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) by requiring Hunter to show reasons for displacing the status quo when his claim had been finalised. Hunter argued that the Tribunal’s handling of his application was unfair, particularly due to his self-represented status, and that the Tribunal improperly applied the criteria for granting leave to appeal.

The court examined the circumstances surrounding Hunter's interactions with VCAT, noting that the Tribunal had made reasonable efforts to assist him, including providing procedural guidance and allowing him to amend his application. The court found that VCAT had not erred in its assessment of the application for leave to appeal, as Hunter had not demonstrated that the Tribunal's decision was unjust or that he had grounds for an appeal. The court also concluded that the Tribunal had correctly applied the statutory criteria for granting leave to appeal, requiring Hunter to show exceptional circumstances to overturn the final decision. Consequently, the appeal was dismissed.

The court's final orders confirmed the dismissal of Hunter's appeal against VCAT's decision and affirmed the Tribunal's ruling on the application for leave to appeal. The court held that VCAT had exercised its discretion appropriately under section 74(2)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) and section 148(2). The decision in Rodger Hoskin v Department of Education – FOI Manager [2005] VCAT 2921 was cited as precedent, supporting the Tribunal's approach to appeals in finalised claims.

Orders