Lin Seng Soo v Yang & Vale Pty Ltd (ACN 167 895 169) as trustee for the Chen Yang Family Trust
[2022] VSCA 239
•3 November 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2022 0054 |
| LIN SENG SOO | Applicant |
| v | |
| YANG & VALE PTY LTD (ACN 167 895 169) AS TRUSTEE FOR THE CHEN YANG FAMILY TRUST | Respondent |
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| JUDGES: | KYROU and SIFRIS JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 October 2022 |
| DATE OF JUDGMENT: | 3 November 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 239 |
| JUDGMENT APPEALED FROM: | [2022] VSC 256 (Forbes J) |
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ADMINISTRATIVE LAW – Appeal from orders of Victorian Civil and Administrative Tribunal refusing reinstatement of claim to recover legal costs – Whether parties had agreed to resolve dispute – Consent order made on basis of agreement – Admission of evidence of compulsory conference – Procedural fairness – Adequate reasons – Leave to appeal granted by primary judge on one ground but appeal dismissed – Leave to appeal refused.
Victorian Civil and Administrative Tribunal Act 1998, ss 85, 117.
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| Counsel | |||
| Applicant: | The applicant appeared in person | ||
| Respondent: | Mr L Wirth | ||
Solicitors | |||
| Applicant: | Not applicable | ||
| Respondent: | Paul Vale Criminal Law | ||
KYROU JA
SIFRIS JA:
Introduction
On 1 June 2020, the applicant made a claim in the Legal Practice List at the Victorian Civil and Administrative Tribunal (‘VCAT’) for the recovery of costs paid to Paul Vale Criminal Law (‘the VCAT application’).
On 9 July 2020, his application was struck out with a right of reinstatement, by Senior Member Smithers, on the basis that the proceeding had resolved (‘the Compulsory Conference’).
On 1 September 2020, the applicant sought to reinstate the proceeding (‘the Reinstatement application’) on the ground that the proceeding had not resolved on 9 July 2020. His application was dismissed by Member Josephs. The Member considered that the proceeding had indeed resolved (‘the Reinstatement hearing’).
The applicant then applied to the Trial Division for leave to appeal the decision of Member Josephs. The proposed grounds of appeal, as set out in an amended notice of appeal dated 1 February 2021, related to three questions of law as follows:
(a)the findings made by the Member were not open to him on the evidence;
(b)the Member did not accord the applicant procedural fairness in conducting the proceeding; and
(c)VCAT failed to give adequate reasons for the order dismissing the Reinstatement application.
The leave to appeal application was heard by Forbes J. The applicant was represented by counsel appointed under the Victorian Bar Pro Bono Scheme.
The judge held that the evidence relied on by Member Josephs, relating to communications between the parties and Senior Member Smithers, prior to the resolution of the matter, was properly admitted and that there was no failure to accord the applicant procedural fairness by not directing him to s 85 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’).[1] Further, the judge held that the reasons of the Member dismissing the Reinstatement application were, in the circumstances, adequate.
[1]Section 85 of the VCAT Act relevantly 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; …’
The applicant now seeks leave to appeal to this Court from the judge’s decision. The proposed grounds of appeal are difficult to follow and raise numerous matters that were not in issue before the judge. However, they challenge the judge’s determination on each of the three questions of law, the subject of the appeal to the judge, and further challenge the order made by the judge in favour of the respondent on the basis that the named respondent in the VCAT proceeding was the law firm Paul Vale Criminal Law, rather than Yang & Vale Pty Ltd as trustee for the Chen Yang Family Trust.
For reasons that follow, leave to appeal will be refused. There is no error in any of the judge’s findings the subject of the grounds of appeal. In summary, the evidence relied on by the Member was properly admitted and there is no error in the approach and finding of the primary judge in this regard. Further, there is no error in the reasons of the judge in relation to the procedural fairness ground or the adequacy of reasons ground.
Before proceeding with the application for leave to appeal, the applicant made an application for an adjournment, which was refused,[2] and an application for a stay of various costs orders, which was also refused. Reasons in relation to each were delivered separately.
[2]See Soo v Yang & Vale Pty Ltd [2022] VSCA 227.
Factual and procedural background
The Compulsory Conference
The VCAT application was described by the applicant as being in respect of money given to Paul Vale Criminal Law ‘to start an appeal based upon 31 grounds in my written case and grounds dated 2/10/18’, a complaint that no written costs agreement had been signed, and a claim for a refund of the sum of $9,000 the applicant had paid to the firm. In substance, the grievance was that the applicant did not give instructions to investigate the merits of a special leave application, but instructions to commence such an application on the grounds he had set out in his High Court written case document. The applicant said he was not told that the merits of any special leave application would need to be investigated.
On 9 July 2020, the applicant’s VCAT application was listed for a directions hearing before Senior Member Smithers. The restrictions imposed by the Covid-19 pandemic meant the directions hearing was listed to take place as a telephone conference. Mr Yang appeared for the respondent. In the course of the hearing, it was converted by VCAT from a directions hearing to a compulsory conference.
At the conclusion of the hearing, the Senior Member made the following order (‘9 July order’) which was recorded as being by consent, and was emailed to the parties by VCAT on 10 July 2020:
The parties having resolved their dispute, the Tribunal orders as follows.
ORDER BY CONSENT
1. This proceeding is struck out with a right to apply for reinstatement.
2. No order as to costs.
On 9 July 2020, Mr Yang emailed to the applicant the ‘settlement document’ which recorded:
Please indicate acceptance of the terms of settlement
The parties agree that the Respondent will pay to the Applicant the sum of $2,000 by EFT to CBA account [BSB and account number completed] (in the name of Lin Seng SOO) (or any other account specified by the Applicant) by 4 pm on 23 July 2020, by way of final resolution of VCAT proceeding J49/2020.
…
The parties agree and consent to the Tribunal ordering as follows:
1.The Proceeding is struck out with a right to apply for reinstatement
2. No order as to Costs
…
The settlement document also contained a paragraph of mutual releases in broader terms than the subject matter of the VCAT claim, and a paragraph dealing with confidentiality. It was not disputed that during the telephone call the Senior Member assisted in the wording of the settlement document prepared by Mr Yang.
On 11 July 2020, the applicant emailed VCAT, referring to the 9 July order and informing VCAT that the applicant ‘does not agree with the settlement agreement and will not sign it’ and that he would like to apply for reinstatement in accordance with the order. Mr Yang was copied in to that email.
On 22 July 2020, in accordance with the settlement document, Mr Yang paid to the applicant the sum of $2,000. In correspondence prior to the Reinstatement hearing, the applicant sought advice from VCAT about the repayment of the $2,000 forwarded by Mr Yang. The applicant was informed by the Customer Services Division that repayment of the $2,000 was a matter for him and whether or not he did so was likely to be relevant to the question of whether his case should be reinstated. The applicant then asked if he was being ordered to repay the amount which the applicant described as a ‘donation’ and ‘free money’ which could be the subject of a small claims dispute separate to the reinstatement. The applicant said he would be willing to refund the money if ordered to do so. The email from VCAT suggested he include a statement as to the return of the funds received from the respondent. His application did not do so.
The Reinstatement hearing
On 9 August 2020, the applicant made the Reinstatement application which provided:
Applicant inform VCAT and Yang on 10 & 11/7/20 that he do not agree with terms in respondent settlement offer and refuse to sign it, so there is no formal signed agreement or contract, yet respondent insist to force a settlement offer agreement by on his own freewill makes a voluntarily $2000 donation into applicant bank account on 22/7/20. Respondent can seek a refund through the small claims tribunal, and refund matter should not be part of this J49/2020 proceedings, unless VCAT order refund otherwise.[3]
[3]Emphasis in original.
The Reinstatement application was opposed on the basis that an agreement had been reached and that, in accordance with that agreement, Mr Yang had paid to the applicant the sum of $2,000.
A hearing of the Reinstatement application was listed for 1 September 2020, again by telephone conference. The applicant expected this to be heard by Senior Member Smithers but it was in fact heard by a different VCAT member, Member Josephs.
During the Reinstatement hearing, Mr Yang gave evidence about what occurred in the Compulsory Conference. The applicant then gave his account of what occurred during the Compulsory Conference in answer to a question from Member Josephs that invited comment on Mr Yang’s account of the events. The transcript of the Reinstatement hearing makes no mention of s 85 of the VCAT Act or any reference to a basis upon which the evidence of what occurred at the Compulsory Conference might be admitted or should be excluded.
At the conclusion of the Reinstatement hearing, and after reviewing what took place during the Compulsory Conference, Member Josephs concluded that the matter had resolved and that the parties had entered into a verbal agreement and money was paid pursuant to that agreement. The Reinstatement application was refused. In his oral reasons, Member Josephs said:
that law was really looking in terms of where it was contemplated that a formal contract be written up. It really wasn’t - - it was never contemplated that there would be a contract. It was contemplated that it might be formalised or would be formalised in writing. Perhaps if you, with due respect, Mr Yang, somewhat clumsily so if I might observe, because of your heading of the email, but having said that, what I’ve got to do is decide whether on the evidence before me there was an agreement reached where the parties agree to be bound immediately, and having heard the evidence of both parties on the important points, I do find that I prefer the Respondent’s evidence to the Applicant, and I can’t avoid the fact that the money has not been repaid. So, I have formed the view that the parties did intend to be bound immediately by the terms of an agreement which was reached, and which has been effected by virtue of the payment of the money and the acceptance of the money, and therefore I have to dismiss the application for reinstatement.[4]
[4]Emphasis added.
Member Josephs then recorded the following findings and made the following orders:
FINDINGS
The Tribunal finds that:
1.The parties agreed on 9 July 2020 to settle the costs dispute, the subject of the proceeding.
2.The respondent has complied with his obligations under the settlement agreement.
ORDERS
The Tribunal orders that:
1.The applicant’s application for reinstatement of the proceeding is dismissed.
2.The proceeding is struck out.
3.No order as to costs.
Orders of Keith JR
On 18 August 2020, after the applicant had commenced the proceeding in the Trial Division, Keith JR made an order amending the name of the respondent from ‘Chen Yang of Paul Vale Criminal Law’ to ‘Yang & Vale Pty Ltd ACN (167 895 169) as trustee for the Chen Yang Family Trust’ and the title to the proceeding was amended accordingly. There has been no appeal from this order.
Grounds of appeal
The proposed grounds of appeal are, as noted, difficult to follow. They involve substantive commentary and dissatisfaction by the applicant with the result. The written case of the applicant did not provide any assistance in this regard. More importantly, however, as noted, the written case and the proposed grounds of appeal refer to numerous matters that were not referred to or dealt with by the judge. They cannot properly be raised at this stage. We will therefore confine the grounds to the three legal issues dealt with by the judge.
In oral submissions, the applicant dealt with each of the three matters properly the subject of the application for leave to appeal. However, the applicant went much further and repeatedly referred to the alleged dishonesty of his former lawyer, his medical condition, both at the relevant times and now, and the contention that as a self-represented litigant he was given no assistance. These matters were not relevant to the proposed grounds of appeal and therefore we will not discuss them.
Ground 1: Judgment for the wrong party
The judge did not deal with this matter because it was not raised before her and no submissions were made in relation to it. There was no appeal from the order of Keith JR and the issue is not properly before us. Leave to appeal on this ground must be refused.
Grounds 2 and 3: Evidence and procedural fairness
The judge’s reasons
The judge considered two issues concerning s 85 of the VCAT Act:
(a)whether VCAT’s decision to dismiss the applicant’s Reinstatement application was made on the basis of evidence admitted in contravention of s 85; and
(b)whether VCAT breached the requirements of procedural fairness by failing to give the applicant an opportunity to make submissions as to the application of s 85.
In relation to the first issue, the judge considered that the applicant’s conduct and the nature of his Reinstatement application demonstrated his agreement to give evidence in relation to the Compulsory Conference. The judge held ‘the evidence was admissible in accordance with the exception in s 85(1)(a)’[5] and said:
The applicant’s case for reinstatement was that there had been no agreement, only an offer to settle. The reinstatement application also made a number of allegations about the conduct of Yang during the compulsory conference in support of the application for reinstatement. These documents flag an intention to lead evidence at a hearing of what was said and done at the settlement conference in order to dispute the existence of an agreement.
The applicant’s conduct demonstrated his intention to rely on matters that occurred before Senior Member Smithers and which led to the 9 July orders. The applicant’s written outline of argument in support of reinstatement referred specifically to things Yang had said during the conduct of the compulsory conference. Indeed, both parties mistakenly believed that the reinstatement application was to be heard by Senior Member Smithers, with his knowledge of what had occurred at the compulsory conference. These matters demonstrate the applicant’s agreement that such evidence be admissible. The respondent could have objected but also accepted or agreed that such evidence could be relied on.[6]
[5]Soo v Yang & Yale Pty Ltd [2022] VSC 256, [36].
[6]Ibid [34]–[35].
The judge also considered that the nature of the hearing, being a reinstatement hearing as opposed to a hearing as to the merit of a dispute, was relevant and said:
Where the Tribunal is conducting a hearing as to the merit of a dispute, clearly the starting point is that evidence of what might be said or done in a settlement conference ought not be placed before the Tribunal. However, a reinstatement application is a hearing to decide whether a matter already disposed of by order, ought be returned to the list of cases to be determined on its merit. In such a hearing, it is almost inevitable that the circumstances that lie behind the making of the order striking out the claim will be relevant.[7]
[7]Ibid [36].
In relation to the second issue, the judge held that, in the circumstances, it was not necessary for VCAT to draw the attention of the parties to s 85 and obtain explicit agreement or objection to the admission of evidence from the Compulsory Conference, and ‘a failure to do so has not amounted in this instance to a procedural unfairness’.[8] Her Honour said:
First, there is no affidavit from the applicant stating that he was unaware of the provision and, given the applicant’s extensive reference to other provisions of the VCAT Act, including s 83 in support of his reinstatement application, I would not necessarily infer that he was unaware of s 85.
Second, if he was so unaware, the failure to draw the applicant’s attention to s 85 must result in some unfairness in the way in which the hearing was conducted.
…
The applicant was provided with an opportunity to present his evidence of what had occurred and to express his disagreement with the evidence of Yang. The Applicant was provided with a reasonable opportunity to present his case that a settlement offer only was made at the compulsory conference which he was not obliged to accept or that any verbal acceptance was not binding unless it was written. That is the case he wished to advance and he did so. He suffered no disadvantage by the admission of the evidence such that the Tribunal was required to draw s 85 to his attention.[9]
Submissions
[8]Ibid [37].
[9]Ibid [38]–[39], [42].
The applicant submitted that Member Josephs erred by determining the Reinstatement application on the basis of wrongly admitted evidence and that, by failing to draw the applicant’s attention to s 85, the Member did not accord him procedural fairness. He contended that the judge was wrong not to make findings to that effect.
The respondent submitted that, given the applicant mounted his application for reinstatement on the basis of events that took place at the Compulsory Conference, the exception in s 85(a) was met and nothing turned on VCAT not advising the applicant about the effect of s 85. The respondent also submitted that the Member correctly conducted the Reinstatement hearing informally without technicality and therefore did not fail to accord the applicant procedural fairness by not alerting him to s 85.
Analysis
The applicant properly conceded that in order to determine whether the VCAT proceeding had resolved, it was necessary to ‘dive into’ the matter, that is to assess what was communicated between the parties in order to determine whether the parties had reached agreement. During the course of the Reinstatement hearing, the applicant, Mr Yang and the Member unsurprisingly made reference to the various communications before Senior Member Smithers. Therefore, by his conduct, the applicant consented to this course, as found by the judge. There is no error in such finding. The evidence was therefore properly admitted under s 85(a) of the VCAT Act.
Further, and in the circumstances, there was no procedural unfairness in not alerting the applicant to s 85, and there is no error in the judge’s decision in this regard. It was the applicant’s application to reinstate the VCAT proceeding and he was required to show that no agreement had been reached. Had he been told of the section, assuming he was unaware of it, and declined to refer to the relevant communications, the application would inevitably have been dismissed. That is because there would have been no evidentiary basis for a finding that, contrary to Senior Member Smither’s unambiguous statement that the parties had ‘resolved their dispute’, no resolution had been reached. It follows that, in terms of the outcome of the applicant’s Reinstatement application, he could not have achieved a better result if he had been expressly informed of his options under s 85 and had elected to object to the admission of evidence of what had occurred during the Compulsory Conference.
Leave to appeal on grounds 2 and 3 must be refused.
Ground 4: Adequacy of reasons
The judge’s reasons
After referring to the relevant authorities, the judge held that Member Josephs’ reasons were adequate as they properly conveyed the key findings of fact and disclosed the path of reasoning of the Member for reaching his decision. The judge said:
The reasons, though brief, properly conveyed to the parties that the Tribunal was satisfied that the parties had consented to the 9 July orders on the basis of an agreement that Yang would pay to the applicant the sum of $2,000. The Tribunal did not accept that the settlement document was an offer by Yang. The reasons also conveyed to the parties a finding that the settlement document prepared by Yang was not agreed to and not signed. Therefore, the only agreement was an oral agreement. The 9 July orders permitted an application for reinstatement, not a right to reinstatement and the applicant failed to persuade the Tribunal that the agreement upon which the 9 July orders were made should be revisited.[10]
Submissions
[10]Ibid [71].
The applicant submitted that the Member’s reasons for refusing the Reinstatement application were not adequate as the reasons did not permit an understanding of why the applicant lost.
The respondent submitted that, acknowledging the informality of VCAT, the reasons adequately reveal the Member’s path of reasoning in order that the parties can understand the basis for the decision.
Analysis
During the hearing of the application for leave to appeal, the applicant conceded that he understood that the reason why Member Josephs dismissed the Reinstatement application was because he decided that there was an oral agreement supported by the payment of the agreed amount of $2,000, which amount was not repaid. This was the essence of the reasoning of the Member and well understood by the applicant. As found by the judge, this reasoning was sufficient to indicate the path of reasoning of the Member that led to the decision to refuse the Reinstatement application. There is no error in the reasoning of the judge and leave to appeal on ground 4 must be refused.
Conclusion
For the above reasons, leave to appeal will be refused.
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