Hunter v Vaishnav
[2020] VSC 361
•22 June 2020
| 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leave to bring a further claim at VCAT arising from the same facts and circumstances, when his earlier claim had been withdrawn.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 around the 10th or 11th of September 2018.[2] The landlords’ representative informed the Tribunal that before the disposal there had been more than one opportunity for Mr Hunter ‘to enter the property and actually remove the items from the property, after consumer affairs came through.’[3]
[2]VCAT Transcript (n 1) 6.
[3]VCAT Transcript (n 1) 12.
On 9 October 2018, Mr Hunter initiated an application at VCAT (‘first claim’), claiming compensation from his former landlords for unlawful disposal of his goods and personal papers. He agreed that the landlord was entitled to dispose of the goods if the landlord had obtained a report from consumer affairs that the value of the goods is less than the cost of removal, storage, advertising and sale.[4] The Department of Consumer Affairs Victoria (DCAV) was joined as an interested party to the proceeding in late October 2018.[5] DCAV was joined because, by operation of s 402 of the Residential Tenancies Act1997 (Vic), the landlords were entitled to recover from DCAV any compensation that they might be ordered to pay.
[4]VCAT Transcript (n 1) 7.
[5]On 31 October 2018, Senior Member Wilson ordered that Director of Consumer Affairs had been joined to the Victorian Administrative Proceeding Number R2018/35793/00 and was required to attend the compulsory conference.
On 22 November 2018 the matter was set down for a compulsory conference at VCAT. DCAV attended the conference as did Mr Hunter and the landlord’s representative. At the conclusion of the conference Mr Hunter withdrew his claim and with his consent the Tribunal Member made an order that the first claim was withdrawn.[6]
[6]There was dispute between the appellant and respondents about why it was the appellant withdrew the proceeding but the fact that Mr Hunter withdrew the proceeding is not in dispute, see Supreme Court Transcript of Proceedings, Hunter v Vaishnav & Ors (Supreme Court of Victoria, S ECI 2019 04653, The Honourable Justice Forbes, 6 April 2020) (‘Supreme Court Transcript’) 20.
The events leading up to the compulsory conference and the recorded outcome are not controversial. However the parties disagree as to whether or not this outcome was as a result of a settlement having been reached at the compulsory conference. The issue of rental arrears had been discussed at the conference, the respondents proposing a settlement offer of not seeking to enforce the order for payment of rent arrears in exchange for Mr Hunter agreeing not to pursue his claim for compensation.[7] The landlord understood this offer had been accepted. Mr Hunter’s position was that he had not accepted any offer and had withdrawn his claim only because he was disorganised and felt that his evidence was not properly gathered. As a result of this he felt that if he proceeded to hearing at that time he was likely to be unsuccessful.
[7]‘Affidavit of M Hunter’, dated 29 November 2019 [31].
Following the withdrawal of the claim Mr Hunter made further contact with the Ombudsman and then DCAV over a period of months seeking some payment from them for his goods without success.
As the first claim had been withdrawn, s 74(2)(d) of the Act required Mr Hunter to obtain leave of the Tribunal to make a further application in relation to the same facts and circumstances. On 23 April 2019, Mr Hunter applied for leave to commence a proceeding. The leave was contested by the landlords and DCAV. Following a hearing on 10 May 2019, the application was refused by the Tribunal and the decision and accompanying reasons were published on 8 August 2019.[8]
[8]Proceeding R2018/35793/02, the hearing took place on Friday 10 May 2019 and was attended by Mr Panagiotis, real estate agent on behalf of the respondents, Ms Mapp and Ms Boateng of Consumer Affairs Victoria. Mr Hunter was self-represented.
The Appeal
Although the proposed appeal outlined seven questions of law they were categorised by Mr Hunter into three broad categories: apprehended bias, denial of procedural fairness and inadequate reasons. Within the category of procedural fairness was a discrete error described as the incorrect admission of evidence about what occurred at the compulsory conference, when s 85 of the Act expressly prohibits admission of such evidence.
Extension of Time for leave to appeal
Mr Hunter affirmed a short affidavit on 27 November 2019 addressing the reason for delay in filing his Notice of proposed appeal. His reason was that he is and had been since January 2019, homeless. He deposed that he was homeless as a result of this eviction, although I note the eviction was in July 2018. He deposed that being homeless caused him to suffer a decline in his mental health.
The respondents and the interested party did not contest the factual matters deposed to underlying the extension of time application and did not express any prejudice or opposition arising from the delay.
Although eviction in the face of non-payment of rent is no doubt both disruptive and potentially life altering, it is difficult without any information as to the financial or other pressures that led to the eviction, to understand how these circumstances led to long term homelessness. Although the Notice of Appeal is ten weeks out of time, I accept that both the homelessness and the fact that Mr Hunter is representing himself in this appeal are likely to have contributed to his delay in lodging his appeal documents. In those circumstances and in the absence of any prejudice to the other parties I will grant an extension of time for the lodgement of the Notice of Appeal.
The Evidence
The parties relied on the following evidence before me on the appeal:
Affidavits of Mr Hunter:
· sworn 24 October 2019 with Exhibit 1;
· sworn 1 November 2019 with Exhibits 3 and 4; and
· sworn 27 November 2019 (extension of time)
Mr Hunter also sought to rely on an affidavit sworn 29 November 2019 with Exhibits 5,6,7 which outlined factual matters regarding the tribunal hearing that Mr Hunter said were relevant to the procedural fairness questions. Most of the affidavit recited matters that predated the filing of the VCAT claim. Paragraphs 25 to 35 deal with the conduct of the hearing. I have accepted the affidavit insofar as it deals with the conduct of the conciliation conference.
The balance of material exhibited to Mr Hunter’s affidavits was not admitted into evidence. Mr Hunter sought to rely on audio recordings of telephone calls between himself and DCAV exhibited to an affidavit sworn 2 March 2020.[9] As those recordings were not evidence before the Tribunal I ruled that they were not relevant on this appeal and therefore inadmissible. I also ruled that in the event they were in fact admissible, I would nevertheless decline to admit them as a matter of discretion given that the recordings were not made with the consent of the parties and the very late service of the material meant that the parties served have been unable to access and listen adequately and be in a position to respond to the material.
[9]These were Exhibits 11 and 12 to a late affidavit sworn on 2 March 2020.
The interested parties relied on the affidavit of Sandra Boetang sworn 13 December 2019 paragraphs 1-8 only with Exhibits SB 1,2,3 and 5.
Mr Hunter also sought leave to amend his relief to seek a declaration that the outcome of the VCAT compulsory conference on 22 November 2018 was that no settlement was reached. For the reasons outlined below I do not grant leave to amend to seek this relief.
Ground of Appeal – Procedural fairness
Mr Hunter’s procedural fairness grounds canvas three main contentions:
(a)the Tribunal disregarded the prohibition in s 85 of the Act and improperly admitted evidence of what occurred at a compulsory conference;[10]
(b)he was not given a fair hearing on 10 May 2019 and the Tribunal did not adequately assist him as a self-represented litigant,[11] and
(c)that there was no evidence to support the finding that it was ‘more likely than not’ that a settlement was reached, and in coming to that finding the Tribunal in effect reversed the onus of proof requiring him to prove that a settlement was not reached.[12]
(a) Failure to comply with the rules of evidence: s 85[13]
[10]‘Outline of Appellant’s Submissions’ dated 26 February 2020, filed in S ECI 2019 04653 (‘Appellant’s Submissions – February 2020’), Ground 11.
[11]Ibid, Grounds 2,4,6,7,8,& 9.
[12]Ibid, Grounds 3,5,9.
[13]Ibid, Ground 11.
Mr Hunter submitted that the Tribunal received evidence and submissions as to what had occurred at the compulsory conference without restriction and without the Tribunal raising the question of s 85. He submitted that this permitted the respondents to falsely claim that the matter has settled.
The DCAV submitted that if s 85 applied then there had been agreement by the parties to lead the evidence and so the exception in s 85(a) applied. This agreement was evidenced by Mr Hunter himself introducing evidence of what transpired at the conference. The respondents generally adopted the submissions made by DCAV.
I have concluded that the Tribunal made no error in application of s 85. My reasons for this conclusion can be easily dealt with. Section 85 provides:
Evidence of anything said or done in the course of a compulsory conference is not admissible in any hearing before the Tribunal in the proceeding, except –
a)where all parties agree to the giving of the evidence; or
b)evidence of directions given at a compulsory conference or the reasons for those directions
The provision is found within Division 5 dealing with compulsory conferences, mediation and settlement of claims. Parties may be ordered to attend compulsory conferences prior to a claim being heard by the Tribunal. Such conferences are private, their purpose to identify the issues in dispute and to promote settlement. As with litigation in all jurisdictions, parties are encouraged to participate in alternative dispute resolution mechanisms by a condition of confidentiality from the decision maker that might be ultimately called on to decide the dispute. Had there been no settlement agreement and no withdrawal of the proceeding, then a hearing of Mr Hunter’s first claim could not include any evidence about what occurred at the compulsory conference or any offers made there by any party. The hearing could not be heard by the Member who had conducted the conference.
The Tribunal made reference to the circumstances where what occurred at a mediation could be given as evidence to determine whether or not a settlement had been reached by the parties. It referred to Barry v City West Water[14] to determine that it was appropriate to ‘inquire into what took place during the mediation’ and to take ‘into account the conduct of the parties subsequent to the mediation to help determine whether a settlement had been reached or not’.[15] In Barry, the Court was asked to make orders striking out the proceeding on the basis that a settlement had occurred at an earlier mediation.
[14][2002] FCA 1214.
[15]Hunter v Vaishnav (Residential Tenancies) [2019] VCAT 1210 (‘Tribunal Reasons’) [17].
Section 85 applies to any hearing before the Tribunal in the proceeding. Once Mr Hunter’s claim was withdrawn that proceeding came to an end. The hearing of Mr Hunter’s application for leave is not a hearing in the proceeding which ordered the compulsory conference. It is a new and different proceeding. Accordingly s 85 has no application.
If the events at the compulsory conference were relevant to the further application then they could be admitted into evidence. As part of the further application Mr Hunter contended that no settlement had been reached in the first claim. The events at the compulsory conference were clearly relevant. When asked by the Tribunal why he should be permitted to bring his claim a second time, Mr Hunter embarked upon an explanation commencing with what had occurred at the compulsory conference, introducing that evidence. It could not be said to be unfair that if disputed, that the respondents should be precluded from introducing evidence to the contrary.
Essentially Mr Hunter believed that the Member conducting the conference ‘was critical of the strength of my case and a little bit dismissive of the evidence that I provided.’[16] He admitted that he was disorganised and not quite as prepared as he should have been. Clearly he wished to rely on what had occurred at the conference and why the claim had been withdrawn at its conclusion. He understood that his application to bring a second claim would be opposed on the basis that the landlord and DCAV believed that an agreed outcome was achieved that day which led to the withdrawal of the claim.[17] The events of the compulsory conference lay at the foundation of the application to bring a second claim.
[16]VCAT Transcript (n 1) 3.
[17]VCAT Transcript (n 1) 4.
No error was made by the admission of that evidence.
(b) Failure to provide a fair hearing and provide adequate assistance
(i) An opportunity to present his case[18]
[18]Grounds 2, 6.
Mr Hunter says that he was not accorded an adequate opportunity to present evidence or make submissions and so did not receive a fair hearing as required by the provisions of the VCAT Act including ss 97, 98, 100, 101 and 102. He submitted that the Tribunal caused him to take a mistaken view that ‘he should not make submissions about the merit of his first claim’,[19] because of ‘direct instructions’ of the Tribunal. He complained that, having believed that he should not make submissions as to the merit of his claim, he was then ‘blindsided’ when the reasons for decision referred to an absence of that evidence to decide against him.
[19]‘Outline of Submissions’ dated 2 January 2020, filed in S ECI 2019 04653 (‘Appellant’s Submissions’) [7].
The Tribunal asked why, if there had been no settlement, he chose to withdraw the first claim rather than proceed to hearing. He explained that he perceived the Member conducting the conference as being critical and dismissive of his evidence, that he was disorganised and wanted more time to get his evidence in order. He understood that he had only one chance and said ‘I couldn’t really risk making a mess of it because I’d lost everything’.[20]
[20]VCAT Transcript (n 1) 12.
Mr Panagiotidis, representative of the landlords disputed the correctness of the assertion that Mr Hunter had lost everything. He pointed out there had been opportunities to enter the property and collect goods of value prior to the disposal and that Mr Hunter had done so on occasion. The Tribunal highlighted that it was not for the Respondent to contest the merit of the claim but for Mr Hunter to explain why he should be permitted a second opportunity. Any ‘mistaken view’ came from an exchange between the Tribunal Member and the representative for the Respondents. It did not involve Mr Hunter and he gave no indication that it affected his understanding of what was required of him in the hearing.
Prior to this exchange the Tribunal set out the principle of finality in litigation, the concept of getting ‘one bite of the cherry’, and had asked him to explain why he chose to withdraw the claim. Mr Hunter had given his explanation. The exchange he relies on occurred almost at the conclusion of Mr Hunter’s submissions. Before this time he had ample opportunity to state that he now had further evidence upon which he now wanted to rely. He had not done so.
Later in the proceeding after hearing from the other parties, the Tribunal raised the fact that Mr Hunter had had the benefit of legal advice at the conference and gave him a further opportunity to address the circumstances of withdrawal and its consequences. Mr Hunter confirmed his position that there was no agreement made. He again explained to the Tribunal that he had wanted to gather evidence and put his case together[21] but he did not say that he had done so. He said that returning to VCAT to make a further application was a matter of last resort and only pursued when he could not achieve compensation through other complaints processes.[22] The Tribunal accepted this and said in its reasons that ‘Mr Hunter did not indicate in his evidence or submissions that he had collated any additional evidence in support of the First Claim.’[23]
[21]VCAT Transcript (n 1) 24.
[22]VCAT Transcript (n 1) 24 – 25.
[23]Tribunal Reasons (n 15) [30] and [39].
When Mr Hunter outlined to this Court what he believed to be a direction of the Tribunal: ‘What we are here today to determine is whether that later day should occur’, I asked him to explain what arguments he put to the Tribunal as to why the later day should occur. He gave three reasons: first, that the case of Rodger Hoskin v Department of Education – FOI Manager[24] (‘Hoskin’) supported the argument that the discretion should be exercised in his favour, second that he had not settled his case at the compulsory conference and thirdly because after three months of discussion with DCAV they advised him they could not make a payment to him because of settlement of the VCAT claim. It was in this context he described a return to his initial plan ‘to reinstate the hearing’.[25]
[24][2005] VCAT 2921.
[25]Supreme Court Transcript (n 6) 28.
Mr Hunter includes as a question of law directed at procedural fairness, the failure of the Tribunal to take account of the submission that he had evidence to prove his claim including photos and documents obtained through Freedom of Information (FOI).
The Tribunal clearly understood Mr Hunter’s position that his motivation in withdrawing his first claim was for time to gather further evidence.[26] In this review Mr Hunter said that he did make a submission to the Tribunal that he had proof (including photos) that DCVA undervalued his goods and instructed the landlord to dispose of his personal documents. To the Tribunal he said:
I have proof that the value of the goods is well in excess of $1,500 which is what was stated by CAV, and even if that wasn’t the case and my goods were only worth $1,500, there is still the matter of the personal documents which were disposed of, which have nothing to do with value. They need to be stored for 90 days, regardless of value, and they were disposed of I assume on the same date as the goods were, and those – these personal documents, there’s dozens of them. They even appear in the photos that CAV themselves took during the inspection.” [27]
[26]Tribunal Reasons (n 15) [21].
[27]VCAT Transcript (n 1) 7.
In his appeal notice he describes withdrawing his first claim as a result of the conduct of the Senior Member who presided over the compulsory conference. This behaviour affected his confidence in the evidence he had ready to present. The estimate that Mr Hunter told the Tribunal he had made of the value of the second hand goods was not shown to be something that was unknown or unavailable at the time his claim was withdrawn.
I have carefully read the transcript of the Tribunal hearing. Nowhere in the transcript does Mr Hunter inform the Tribunal that since withdrawing his claim he has obtained further evidence or been able to improve the quality of the evidence he was able to marshal as to goods or personal documents. Nor did he inform the Tribunal that he had obtained documents that were not available at the time of the conference. Rather, all his evidence that was directed at events following the withdrawal of the first claim centred on his pursuit of alternative avenues for obtaining compensation. When those avenues were exhausted that Mr Hunter made his further application to VCAT. He described it as a ‘final option for me’.[28] Before this Court he said ‘My only option is to go back to my initial plan which is to reinstate this hearing once I had gathered all my evidence together properly’.[29]
[28]VCAT Transcript (n 1) 24.
[29]Supreme Court Transcript (n 6) 28.
I do not accept the explanation given by Mr Hunter that he felt dissuaded from presenting his further evidence by any comments of the Tribunal. Prior to this exchange Mr Hunter had been given an opportunity to explain his reasons for the second application in his own words. He did so referring to the conference and to events since the conference. At the conference he perceived that he was likely to lose his claim. He made the submission that he was now seeking to bring a second claim as it ‘seems the only possible pathway for me to seek compensation which I really believe I am entitled to.’[30]
[30]VCAT Transcript (n 1) 5.
In this appeal ne submitted that, had he been asked, he would have produced evidence as to ‘the three month long settlement discussions with DCAV’.[31] This was directed at the subsequent negotiations having been unsuccessful rather than further evidence as to the value of the goods disposed of.
[31]Appellant’s Submissions – February 2020 (n 10) [41].
In my view the failure to make reference to the existence of further evidence was not because of any perceived direction from the Tribunal. He understood why litigation, when concluded, is final and the concept that his application was a ‘second bite’ which required an explanation from him. He gave an explanation both before and after the Tribunal’s comments which did not include any reference to further evidence. Rather, he saw it as an avenue for compensation that could be returned to when other avenues had failed.
(ii) Assistance to a self-represented litigant[32]
[32]Grounds 2, 7
Mr Hunter submitted that as a self-represented litigant the Tribunal did not sufficiently assist him in presenting his case so he was not afforded a fair hearing. This submission was couched in terms that the respondents would suffer little or no prejudice by his application being granted but he would suffer significant prejudice. It was an argument not directed at the quality of assistance to be provided to him but why his application should have been granted.
Mr Hunter though self-represented at his application pursuant to s 74(2), did have access to legal advice immediately prior to the hearing.[33]He also had access to a duty lawyer who accompanied him during the lengthy compulsory conference in his first claim. It was clear that he understood two important features of his case. First, at the time he withdrew the first claim he understood that one of the consequences of doing so was that he could not further pursue the claim without leave of the Tribunal.[34] Second, he understood that to be given leave he needed to provide an explanation for why he was bringing the claim a second time.[35]
[33]VCAT Transcript (n 6) 20-1.
[34]He was advised of this by the Tribunal at the compulsory conference (see VCAT Transcript (n 1) 11).
[35]Supreme Court Transcript (n 6) 23.
The Tribunal is obliged to ensure that all parties receive a fair hearing. The content of that obligation varies depending on the particular capabilities of the self-represented litigant and the nature of the case. In Doughty-Cowell (Victoria Police) v Kyriazis, the Court of Appeal made five points as to the fundamental obligation to ensure a fair hearing:
(1)Fairness is not an abstract concept. When one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
(2)The practical question is whether the party in question was given a reasonable opportunity to present his or her case and advance submissions in support, and to know the case to be advanced by the opposing party and to make submissions in opposition to that case.
(3)What is reasonable for this purpose will necessarily depend upon the circumstances. …… (And thereafter sets out an inclusive list of matters to be taken into account)
(4)The question to be asked is whether the party (represented or unrepresented) was given a reasonable opportunity to advance his or her own case and to be informed of and respond to the opposing case.
(5)The key difference with respect to unrepresented litigants is the need for the Court to assess the capacity of an unrepresented person to formulate, and articulate, the case which they wish to present[36]
[36][2018] VSCA 216 [63].
At the hearing the Tribunal explained principles relevant to making a second claim in clear language. It explained that a withdrawal of a claim led to a general principle of finality in litigation and it was for Mr Hunter, if he wished to bring a second claim to persuade the Tribunal why the principle of finality should be departed from.
Mr Hunter’s submission that he required a greater level of assistance goes to matters subjective to his circumstances, including that the loss of his possessions and documents and the catastrophic effect of a refusal of his application would have on him. It did not address his ability to appreciate and understand the process in which he was engaged.
In my view there is no substance in the claim that the Tribunal failed to provide appropriate assistance to him as a self-represented litigant. Mr Hunter had access to a lawyer immediately prior to the commencement of the hearing. The Tribunal was alive to ensure that he understood that the advice he had received could be protected from disclosure.[37] He had been represented at the compulsory conference. He was advised and understood the consequences of agreeing to an order withdrawing the claim.
[37]VCAT Transcript (n 1) 20.
When Mr Hunter was asked by me what further assistance the Tribunal should have provided to him Mr Hunter said:
“He should’ve said, ‘Mr Hunter, you haven’t shown us any new evidence that you’ve gathered in the last couple of months. If you don’t show us that you’re not going to win you are going to lose.’ Then I would have said, ‘Well here is a manila folder …full of evidence and phone calls and photos, but he didn’t. I only found that out much later. It’s completely unfair”.[38]
[38]Supreme Court Transcript (n 6) 58.
There are two problems with this submission. The first is that although Mr Hunter made it clear that his intent in withdrawing the first claim was to improve the evidence he wished to rely on, none of the actions he described after the withdrawal were directed at steps to obtain better evidence. They were all directed at further efforts at negotiation for compensation. These negotiations were not with the landlord who were primarily responsible for paying any compensation.
Second, as I said above, Mr Hunter said that he had proof in relation to the value of his goods. The submission that the Tribunal ought to have in effect invited him to present any new evidence or make reference to it is based on his mistaken belief that he had that he should not present such evidence. The Tribunal could not know that he had formed such a misapprehension and therefore could not be expected to specifically address it. Nor could it ascertain from what was actually said that steps had been taken to obtain further evidence, prompting an inquiry as to the nature of that evidence.
Mr Hunter described this ground as ‘the Tribunal’s failure to warn him that there was a risk that he might make adverse findings about certain matters’. The submission wrongly assumes that the Tribunal is obliged to give a litigant an advance indication whether they are going to win or lose. A decision maker should, if necessary, point out to a self-represented litigant that they have not addressed relevant matters in their evidence and submissions and satisfy itself that a litigant understands the process. In this case, a general invitation to explain the reasons for seeking a second hearing was appropriate to elicit relevant matters. The concept of a fair hearing does not require a decision maker to provide an advance assessment of the likely outcome for one or other litigant in order to invite further evidence or submission.
(c) Was it open to find that a settlement had occurred?[39]
[39]Grounds 3, 5.
Whether or not a settlement had occurred was a central issue for the Tribunal. However, resolution of that issue was for the purpose of determining whether or not a second claim could be commenced. The Tribunal referred to being unable to make a second claim simply because a litigant decides later that they don’t like an outcome that they had accepted.[40]
[40]VCAT Transcript (n 1) 8.
The Tribunal had differing versions as to whether an agreement was reached at the compulsory conference. It looked to the existence of any documentation evidencing any agreement of which there was none. It then looked to subsequent conduct to attempt to resolve the competing versions of what had occurred. It noted that the landlords took no action to enforce the order that they had obtained entitling them to recover outstanding rental arrears. It also looked at Mr Hunter’s behaviour after the settlement and found it to be inconsistent with his stated position as to the reason he withdrew the first claim.[41] This process was consistent with the reasoning applied in Barry v City West Water.
[41]Tribunal Reasons (n 15) [30].
The Tribunal contrasted the position of a litigant who may not understand the consequences of withdrawing and makes an uninformed decision, with one who understood the effect of their action. The Tribunal was alive to the possibility that there might be a good reason to permit a second claim, notwithstanding a withdrawal even if upon settlement. The finding that a settlement had occurred was open to the Tribunal and was a step in the reasoning process as to whether leave should be granted.
The Tribunal was not bound to accept Mr Hunter’s assertion that settlement had occurred. It had to weigh and determine that assertion on the whole of the evidence before it. Nor is it correct to say that the Tribunal reversed the onus of proof. Mr Hunter, was required to prove the matters on which he relied in asking the Tribunal to grant him leave. Whether or not a settlement was reached was one element of the factual matrix he relied on to demonstrate the grounds for his application to have the Tribunal exercise its discretion in his favour. There was no error in the Tribunal’s conclusion as to the events leading to the order withdrawing the claim.
Other aspects of a fair hearing
The Applicant also submitted that he was denied an opportunity to cross-examine witnesses in breach of s 102.[42] The hearing was conducted with a degree of informality. No witnesses were sworn and there was no clear line between the evidence given and the submissions made. Nor was there any application to cross-examine witnesses. All parties made submissions as to contradictory factual matters by way of assertion from the bar table. In the absence of any request to cross–examine a witness, or indeed any refusal to permit cross-examination no breach of the fair hearing rule is made out.
[42]Appellant’s Submissions – February 2020 (n 10) [15]-[20].
A broad submission was also made of a failure to take account of relevant considerations.[43] The list of relevant considerations is a list of matters decided adversely to Me Hunter and amounts to a complaint about the merit of the decision under review.
The applicable test for leave under s 74(2)(d)[44]
[43]Ground 4.
[44]Outline of Submissions dated 2 January 2020 (n 19), Grounds 5, 9.
Mr Hunter submitted that the Tribunal made two errors in applying s 74(2)(d). First, in deciding that a withdrawal connotes finality[45], the Tribunal fell into error. Second, he submitted that by framing the question for the Tribunal in applying s 74(2)(d) as ’whether it is fair in all of the circumstances to grant leave to the Appellant to make a fresh application on precisely the same facts and circumstances as the First Claim‘, it has applied an incorrect legal test. He submitted the only question for the Tribunal is whether the further claim was ‘clearly frivolous or vexatious’. Finally, he submitted that the Tribunal wrongly found that his application was vexatious and the Tribunal, correctly applying Hoskin, should have granted him leave.
Finality
[45]Tribunal Reasons (n 15) [33].
The withdrawal of a claim does dispose of it in a way that is final. It is final even if it is not based upon an agreement but a claimant’s unilateral action. This is so even though by withdrawal there is no determination on the merit. Therefore ultimately, even if Mr Hunter established that he did not believe there had been an agreement, he had unilaterally agreed to a withdrawal and this ended his claim.
An order effecting a withdrawal is made pursuant to s 74 of the Act. Any finality accompanied by the order is specifically ameliorated by the provision for leave to make a second claim in s 74(2)(d
Mr Hunter submitted to the Tribunal that he wanted a determination on the merits, such a determination never having been made. All matters concluded prior to an adjudicated outcome are not determined on their merit. This also holds true whether or not conclusion is agreed by settlement or by unilateral withdrawal. Therefore a desire now for a determination on the merits, of itself is not a reason to permit a second claim on the same facts and circumstances. To do so would offend the general principles of finality and certainty to which all parties are entitled at the conclusion of a proceeding.
The Tribunal in Mr Hunter’s case described a withdrawal as of particular legal significance and connoting finality. It concluded that if Mr Hunter had sought time to gather additional evidence it would not have expected an order withdrawing the claim, but one either striking out the claim or directions as to further conduct. [46]
[46]Tribunal Reasons (n 15) [32].
Mr Hunter frequently used the term reinstatement and was of the belief that ‘reinstatement’ would be a simple formality. The use of imprecise terminology may be understandable but the legislation is clear. Withdrawal of a claim ends the claim. The legislation makes limited provision for a second claim to be commenced, it does not give a right of reinstatement of the original claim. To bring a second claim the onus is on the person wanting to make such a second claim to outline reasons that persuade a Tribunal to exercise its discretion. Mr Hunter understood at the time of the compulsory conference that by withdrawing he lost the right to continue his claim for compensation unless leave was granted by the Tribunal.
I accept the submission that the Tribunal looked too narrowly at the finality implicit in an order withdrawing Mr Hunter’s claim when it said ‘There was no provision for the order made 22 November 2018 for the proceeding to be reinstated. Withdrawn connotes finality’. The finality is tempered by the ability to seek leave to bring a further application. It is not therefore necessary or appropriate that the order make any reference to reinstatement. The finality of a withdrawal therefore is of itself not a basis to refuse leave. The discretion is directed at the circumstances giving rise to the second claim.
However, the Tribunal continued saying if it was wrong in the analysis about finality it would have refused leave in any event in the exercise of discretion. The reason for this was a finding that Mr Hunter’s further application was vexatious. In doing so the Tribunal acted on the basis of the test in Hoskin as urged by Mr Hunter.
The legal test to apply
Section 74(2) does not prescribe how the discretion to grant leave should be exercised. The Tribunal posed the question for itself as being ’whether it is fair in all of the circumstances to grant leave to Mr Hunter to make a fresh application on precisely the same facts and circumstances as the First Claim.’[47]
[47]Tribunal Reasons (n 15) [14].
Mr Hunter relied on Hoskin as a correct statement of the applicable test. Hoskin was a review of a refusal to provide documents pursuant to a FOI request. Mr Hoskin faced a summary dismissal application under s 75, in which a late application pursuant to s 74(2)(d) was made in order to defeat potential summary judgment.
In Hoskin the Tribunal looked to the Supreme Court Rules regarding withdrawal of claims for guidance. The Tribunal said:
Rule 25.06 of the Supreme Court Rules provides essentially that a withdrawal is not a bar to a subsequent proceeding unless the order granting leave to withdraw provided otherwise. Rule 25.07 provides that if a withdrawing party was ordered to pay costs a further proceeding (for substantially the same cause of action) may be stayed until those costs are paid. From these provisions (analogous to section 74) I infer that one purpose of requiring a party to obtain leave under section 74(2)(d) for a further proceeding is to allow other parties an opportunity to head off any attempt to avoid the effect of orders made at the time of the withdrawal, particularly costs orders. No such issue has been raised here.
It is also possible to infer from Rule 25.06 an assumption that the party who formerly withdrew has not lost by that withdrawal any right to have the matter considered on its merits. Accordingly, unless the reason for seeking leave under section 74(2)(d) is clearly frivolous or vexatious the Tribunal’s discretion should be exercised in favour of allowing the application to proceed. In the absence of any other reason to strike out the application regarding document 2, leave is granted pursuant to section 74(2)(d)…. The applicant’s reason for applying again for document 2 is that he wants the information for which exemption is claimed to use in a complaint to the Ombudsman. The applicant’s interest in the information is a matter which is likely to be considered by the Tribunal in deciding whether the information is exempted from release by section 33(1) of the FOI Act.[48]
[48]Hoskin (n 24) [31] – [33].
In Hoskin, the relevant question was framed to respond to the summary judgment application which underpinned the s 74(2)(d) application. It is for an applicant to show reasons for displacing the status quo that a claim has been finalised. It is the further application that, on the same facts and circumstances, must logically have some explanation. Absent an explanation, a second claim on the same facts and circumstances is likely to be vexatious, even if the first claim was not.
A defendant can obtain summary judgment if an application is frivolous, vexatious or an abuse of process.[49] The Tribunal dealing with a summary judgment application, accepted that there was a legitimate purpose to the second FOI request and therefore the further review. That purpose was different to the purpose underlying the first FOI request. The second application had an explanation which was not susceptible to summary dismissal. It was not vexatious.
[49]VCAT Act, s 75.
I do not accept Mr Hunter’s submission that
‘The only question the Tribunal was required to ask itself was whether the applicant’s reason for seeking leave was clearly frivolous or vexatious. If the answer to that question was no, the Tribunal’s discretion to grant leave should have been exercised in [his] favour.’
It was not enough to show that the underlying claim itself remained an arguable claim. To commence his claim a second time, Mr Hunter had to persuade the Tribunal of his reasons. The totality of the circumstances surrounding the earlier withdrawal might give rise to persuasive reasons.
Mr Hunter’s submission wrongly assumes that the Tribunal found him to be vexatious.[50] He submitted that ’nothing about the appellant’s conduct, demeanour or attitude is remotely vexatious’.[51] The Tribunal did not suggest that Mr Hunter’s presentation of his case was in some way vexatious. Rather, it looked to whether the further application sought an opportunity to simply repeat matters already concluded.
[50]Ground 10.
[51]Appellant’s Submissions – February 2020 (n 10) [66].
The reason for the further claim centred on the circumstances in which the first claim was finalised. On the one hand the respondents were prepared to forgo recovery of rent arrears in exchange for the withdrawal of the compensation claim, and on the other hand Mr Hunter had not accepted that offer, but thought that withdrawal of the claim was not relinquishing any of his rights. This was simply one factor. The Tribunal also considered whether Mr Hunter had access to legal advice and adequately understood the consequences of withdrawing his claim and looked at the actions of both parties since that time.
Ultimately the Tribunal determined that a settlement with the landlords had occurred. It also made a finding as to (i) the absence of any steps identified by Mr Hunter to obtain further evidence and (ii) his understanding that a withdrawal did bring finality unless leave was obtained. These were all relevant matters to take into account. It exercised its discretion based upon its findings on all three aspects of the evidence. There was no error in the test applied by the Tribunal.
Bias[52]
[52]Grounds 1, 8.
The ground of apprehended bias relies on twelve specific comments made by the Senior Member. The written submission asserted that the comments demonstrated an ‘apprehension of bias towards the appellant’, but I understood the complaint to mean a perception of bias against Mr Hunter. The statements related to comments about litigants only having ‘one bite of the cherry’, the presumption of finality preventing endless litigation and no right to come back ‘because they don’t like the result first time around’. The comments were also characterised as ‘advocating for the Respondents’.
Mr Hunter submitted that the comments complained of showed that the Tribunal’s mind was not open to persuasion. Mr Hunter’s submission correctly paraphrases the legal test applicable to an error by an apprehension of bias. It is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide.[53]
[53]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344.
In my view the Tribunal’s impugned comments were clearly directed, not to the prejudgment of whether or not there had been a settlement, nor to whether leave should be granted, nor to advocating a position, but to the uncontroversial fact that an order withdrawing the earlier proceeding had been made and its effect. That order brought the proceeding to an end and bespeaks finality. Reasons need to be advanced to bring a second application on the same facts and circumstances. The Tribunal was doing no more than explaining to a litigant the task that faced him.
After the comments complained of, the Tribunal gave Mr Hunter further opportunity on more than one occasion to provide evidence or make submissions in light of the explained task. Mr Hunter did so on each occasion. There was no suggestion in his answers that he felt that he was not being listened to, or that the Tribunal was not open to listen to what he had said and wished to say. He did not say that he had further information obtained since the conference as he had intended.
Whatever Mr Hunter’s retrospective impression of the hearing, I do not see a basis to conclude that a reasonable bystander, with knowledge of the circumstances, would consider that the Tribunal’s comments taken singly or together in context give rise to an apprehension of bias. The applicant has not made out an error based on an apprehension of bias.
Conduct of the Interested Party[54]
[54]Grounds 12, 13, 14.
Mr Hunter’s grounds of review included complaint against the conduct of the Interested Party. As a result of the conduct he contends that the Tribunal should have made a finding adverse to the Interested Party.
In oral submission he contended that the Interested Party’s conduct amounted to deceit and was therefore an error of law. While deceit or bad faith or a lack of impartiality by a decision maker may give rise to grounds of jurisdictional review, Mr Hunter did not elaborate on how the act or omission of an interested party if proven itself amounts to a ground of review. Ultimately, he submitted that the submissions lacked substance or meaning. A misleading submission may lead a Tribunal to consider irrelevant material. However, in this case the Tribunal had the submissions of the appellant and respondents as to the competing submissions. No irrelevant material was identified.
Mr Hunter also submitted that the Tribunal should have made a Jones v Dunkel[55] ‘finding’ against the DCAV as a result of its failure to call Sandra Boetang. A tribunal may draw an inference from the failure to call a witness whose evidence could have been relevant to whether or not there had been a settlement. However, any failure to call the DCAV representative who attended the conference could not result in an adverse finding about the conduct of DCAV.
[55](1959) 101 CLR 298.
Given the informal way in which evidence was given by the parties from the bar table in the hearing, the representative made assertions from the bar table as to the DCAV understanding of what had occurred. Those representations were on instructions from Ms Boetang who was present at court. The Tribunal was not asked at the hearing to draw any inference from Ms Boetang’s failure to give evidenceIn circumstances where there had been evidence from the tenant and the landlord ( being the two parties to any agreement if one had been made), the observations of the Interested Party may not have provided any real basis for resolving that factual contest. The Tribunal was not compelled to draw an adverse inference. There is no error in failing to draw an adverse inference from the absence of any direct evidence from Sandra Boetang.
Adequate Reasons?[56]
[56]Ground 15.
The appellant’s submission correctly identifies that the obligation to give reasons must identify the issues in dispute, the substantial points raised, make findings on material questions of fact and provide a path of reasoning for the conclusions drawn. The source of that obligation lies in s 117 of the Act.
In looking at the adequacy of reasons it is also important to read the reasons as a whole. The court should ‘not be concerned with the looseness in the language…nor with unhappy phrasing’ and the reasons of an administrative decision maker ‘are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’[57] In Minister for Immigration & Ethnic Affairs v Wu Shan Liang the Court said:
These propositions are well settled. They recognise the reality that the reasons of an administrative decision maker are meant to inform and not to be scrutinies upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.[58]
[57]Collector of Customs vPozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 [280] & [287].
[58]Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 [30].
The specific complaints as to the reasons are in large part a complaint about the manner in which the evidence was recited, a complaint that the substance of the applicant’s submissions had been reworded in a way that made his case ‘seem weak and trivial’. Fundamentally the submissions simply restate the applicant’s submissions made to the Tribunal, criticise the respondent and interested party’s submissions and attack the substance of the submissions. It is a submission directed at the merit of the tribunal’s decision.
The reasons make clear that the Tribunal accepted that Mr Hunter withdrew his claim understanding the consequences of that action. It noted that his claim for compensation faced a potential counter claim of payment of outstanding rental arrears and that the landlords believed that both potential claims were offset against each other leading to a settlement. It also understood that Mr Hunter disputed that and wished to obtain more evidence, the nature of which was never specified. It found that Mr Hunter, after withdrawal sought compensation through alternate avenues and that this action was inconsistent with his assertion as to the reason for withdrawing his claim. It made factual findings against Mr Hunter. The reasons in my view were adequate and allowed Mr Hunter, notwithstanding his disagreement with those findings, to understand why the Tribunal found against him.
There is no error of law in the reasons provided.
Conclusion
Leave was sought for a declaration that no settlement occurred at the compulsory conference. This mistakes a judicial review with an inquiry into factual matters underlying the decision below. This review is confined to whether the Tribunal hearing was conducted in accordance with law and properly reached a conclusion open to it. It is not for this court to adjudicate on the underlying dispute. Leave to amend the remedy sought is therefore refused.
The Tribunal’s consideration of the effect of an order withdrawing a claim does give rise to a question of law on which I would grant leave to appeal on that question. However, as outlined above, the Tribunal nevertheless determined as a matter of discretion whether or not to grant leave. It determined not to grant leave as the application did not identify new or further evidence or any steps taken to obtain such evidence since settlement. It concluded that a further claim, brought when all other options had been unsuccessful, was vexatious and not a basis for a grant of leave. There was no error in the application of s 74(2)(d). The appeal must therefore fail.
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