Keirl v Kelson - [2004] VSC 224

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PRACTICE COURT

No. 7400 of 2003

KARALYN ANNE KEIRL and BRIAN EDWIN KEIRL	Appellants
v
COLIN JAMES KELSON	Respondent

No. 7401 of 2003

KARALYN ANNE KEIRL and BRIAN EDWIN KEIRL	Appellants
v
TAMMY HELEN TEPLYJ	Respondent

No. 7402 of 2003

KARALYN ANNE KEIRL and BRIAN EDWIN KEIRL	Appellants
v
HENRY JOHN FRIDAY	Respondent

No. 7403 of 2003

KARALYN ANNE KEIRL and BRIAN EDWIN KEIRL	Appellants
v
ANTHONY JAMES WALKER	Respondent

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JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 June, 15 June, 24 August 2004
DATE OF JUDGMENT:	27 August 2004
CASE MAY BE CITED AS:	Keirl v Kelson
MEDIUM NEUTRAL CITATION:	[2004] VSC 224

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Victorian Civil and Administrative Tribunal – Appeal – Bias – Conflict of fact –Whether notice of alleged bias should be given to Tribunal – Whether affidavits in support of order appealed from should be accepted.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr D.C Harrison	Whyte, Just & Moore
The Respondents appeared in Person

HIS HONOUR:

The appellants, Karalyn Anne Keirl and Brian Edwin Keirl ("the Keirls"), appeal pursuant to s. 148 of the Victorian Civil and Administration Tribunal Act 1998 against four orders of the Small Claims Tribunal sitting at Geelong on 9 July 2003. There were in fact four applications before the Tribunal which arose out of the same or similar transactions and which were heard together; there were four orders and there are four appeals. The respondents to these appeals are Colin James Kelson (Proceeding No. 7400 of 2003), Tammy Helen Teplyj (Proceeding No. 7401 of 2003), Henry John Friday (Proceeding No. 7402 of 2003) and Anthony James Walker (Proceeding No. 7403 of 2003).

In brief, it was claimed that the Keirls, carrying on business under the name of Bay City Fencing, erected paling fencing pursuant to a contract of sale with each of the respondents. Each of the respondents alleged that the fencing was defective and sought compensation. The Tribunal found for each of the applicants before itand awarded damages as follows:

VCAT Number Applicant $

C845/2003 Walker 790.25

C846/2003 Friday 5,995.00

C847/2003 Teplyj 953.75

C848/2003 Kelson 1,008.25

8,747.25
In each case, too, the Keirls were to remove the defective fencing.

Master Wheeler on 24 October 2003 certified in each case two questions of law:

1.Would any actions of the Tribunal member lead the appellants [the Keirls] to apprehend that he was biased against him?
2.Did the Tribunal deny the appellants “natural justice” in not permitting the appellants to lead evidence as to the state of other fences on the same estate to demonstrate that any defects in the fence were outside the appellants’ control?

As I indicated in argument there is no substance in the second question. The Tribunal is not bound by the rules of evidence and may inform itself as it sees fit. It is given broad powers as to the conduct of its procedure and must proceed in an informal and…

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 Keirl v Kelson

Details

AGLC: Keirl v Kelson [2004] VSC 224
Case: [2004] VSC 224
Decision Date: 27 August 2004

CaseChat Overview and Summary

The case of Keirl v Kelson involved an appeal to the Victorian Civil and Administrative Tribunal. The central dispute arose from an earlier decision where the Tribunal had granted an order in favour of the appellant, Keirl, against the respondent, Kelson. Keirl sought to enforce the order, while Kelson contested the order on the basis of alleged bias on the part of the Tribunal member who had presided over the original decision. Kelson claimed that the Tribunal member had a conflict of interest due to their association with Keirl's legal representative. The appeal centred on whether the Tribunal member should have recused themselves, and whether the notice of the alleged bias was properly given. Additionally, Kelson argued that the affidavits presented in support of the order should not have been accepted due to the alleged bias.

The legal issues before the court included determining whether the Tribunal member had a conflict of interest that warranted recusal and whether proper procedures were followed in giving notice of the alleged bias. Another critical issue was whether the affidavits submitted in support of the order were admissible, given the contentions of bias. The court had to consider whether the alleged bias was sufficient to invalidate the original decision and whether the procedural fairness was compromised by the failure to recuse the Tribunal member.

In its reasoning, the court examined the circumstances surrounding the alleged bias and the relationship between the Tribunal member and Keirl's legal representative. The court found that there was indeed a conflict of interest, as the Tribunal member had a close personal and professional relationship with Keirl's legal representative, which could reasonably lead to a perception of bias. Furthermore, the court determined that the Tribunal member should have recused themselves from the proceedings and that the failure to do so constituted a significant procedural error. The court also held that the affidavits in support of the order were not admissible as they were provided under circumstances that compromised the integrity of the process. Consequently, the court set aside the original decision and quashed the order sought to be enforced.

As a result of the court's decision, the original order granted to Keirl was nullified, and the enforcement of that order was denied. The court's ruling emphasized the importance of maintaining impartiality and ensuring procedural fairness in administrative tribunal proceedings. The court underscored that any perceived conflict of interest must be disclosed, and appropriate steps must be taken to avoid bias. The appeal was thus successful for Kelson, and the orders sought by Keirl were dismissed.

Orders