Lockwood v Ecoliv Buildings Pty Ltd - [2017] VSC 109

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 01561

IN THE MATTER OF section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic)

BETWEEN

DEAN LOCKWOOD	Plaintiff
and
ECOLIV BUILDINGS PTY LTD (ACN 142 871 850)	Defendant

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JUDGE:	Justice Zammit
WHERE HELD:	Melbourne
DATE OF HEARING:	23 February 2017
DATE OF JUDGMENT	6 April 2017
CASE MAY BE CITED AS:	Lockwood v Ecoliv Buildings Pty Ltd
MEDIUM NEUTRAL CITATION:	[2017] VSC 109

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JUDICIAL REVIEW – Statutory interpretation – what constitutes a ‘hearing at which the order was made’ for the purposes of considering an application for review made under Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 120.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Charnley	Telco Legal Pty Ltd
For the Defendant	Ms Clarkin	DCL & Associates Lawyers

HER HONOUR:

This is an application for leave to appeal made pursuant to Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 (VCAT Act). The Plaintiff (Mr Lockwood) seeks to set aside paragraphs 1 and 2 of the orders made by Tribunal Member Tyler on 4 April 2016. Further, Mr Lockwood seeks that his application for review pursuant to VCAT Act s 120 (filed on 27 January 2016) be remitted to VCAT for reconsideration.

Mr Lockwood was the Respondent in VCAT proceeding C6943/2014 (‘the VCAT Proceeding’).

The Defendant before this Court, Ecoliv Buildings Pty Ltd (Ecoliv Buildings), was the Applicant in the VCAT Proceeding. Ecoliv Buildings opposes the granting of leave to appeal.

Mr Lockwood relies upon written submissions dated 8 September 2016, the affidavits of Anita Raj (dated 15 June 2016, 31 May 2016, 24 May 2016 and 4 May 2016) and the Affidavit of Dean Lockwood dated 1 April 2016.

Ecoliv Buildings relies upon written submissions dated 29 September 2016, the affidavits of Ashley Beaumont (dated 10 August 2016, 24 May 2016 and 8 December 2015) and the Affidavit of Whitley Foreman (dated 4 December 2015).

While I consider that leave should be granted, I do not consider there has been an error of law and therefore the appeal is dismissed. My reasons are as follows.

Background

On 19 August 2015, a hearing in the VCAT Proceeding was held before Member K Norman (‘19 August 2015 Hearing’). Mr Lockwood did not attend that hearing and was not legally represented.

At the 19 August 2015 Hearing, Member K Norman made the following findings and orders:

FINDINGS
The Tribunal having:
(a)examined the documents on the file, including the registry’s record of documents sent to the parties; and
(b)hearing evidence from the applicant

finds the respondent has been served with a copy of the application and with notice of today’s hearing.
ORDERS
1. The Tribunal orders that the respondent must now pay the applicant the sum of $5,691.00.
2. Under section 115B(1) of the Victorian Civil and Administrative Tribunal Act1998 the Tribunal orders the respondent to reimburse the following…

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: [2017] VSC 109
Decision Date: 6 April 2017

CaseChat Overview and Summary

Lockwood brought an application for judicial review of a decision made by the Civil and Administrative Tribunal of Victoria. The dispute arose from the tribunal's refusal to grant Lockwood leave to appeal a decision regarding a contract for the construction of a building. Lockwood sought to challenge the tribunal's decision on the basis that the tribunal had failed to conduct a proper hearing before making its decision. Lockwood argued that the tribunal's decision was made without a hearing, and therefore was not in accordance with the law.

The primary issue before the court was whether a ‘hearing at which the order was made’ under the Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 120 required a formal hearing with oral submissions, or whether it could also include a hearing that was conducted by written submissions only. The court had to determine the meaning of the phrase ‘hearing at which the order was made’ in the context of the Act. The court also had to consider whether the tribunal's decision to refuse leave to appeal was a decision ‘made at a hearing’, as required by the Act.

The court found that the phrase ‘hearing at which the order was made’ was not limited to a formal hearing with oral submissions, and could include a hearing that was conducted by written submissions only. The court held that the tribunal's decision to refuse leave to appeal was a decision ‘made at a hearing’, as the tribunal had considered written submissions from both parties before making its decision. The court also held that the tribunal had not erred in law in refusing Lockwood leave to appeal, as the tribunal had correctly applied the relevant legal principles in making its decision. Lockwood's application for judicial review was therefore dismissed.

The court did not make any orders for costs.

Orders