Macdiggers Pty Ltd v Dickinson - [2008] VSC 576

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL & EQUITY DIVISION

No. 9912 of 2007

Macdiggers Pty Ltd	Appellant
v
Maria Dickinson and Peter Dickinson	Respondents

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JUDGE:	Warren CJ
WHERE HELD:	Melbourne
DATE OF HEARING:	4 September 2008
DATE OF JUDGMENT:	17 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSC 576

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PRACTICE and PROCEDURE – Appeal from Victorian Civil and Administrative Tribunal (VCAT) – Application for adjournment before VCAT – Self-represented litigant – conduct of Tribunal – natural justice / procedural fairness – whether breach of hearing rule.

Victorian Civil and Administrative Tribunal Act 1998 s 148, s 98, s 102.

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APPEARANCES:	Counsel	Solicitors
For the appellant	Mr J Pizer	Monahan + Rowell
For the respondents	Mr S Waldren	Rodriguez Lawyers

HER HONOUR:

This is an appeal from an order of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) made on 13 November 2007. The effect of the order was to require the appellant to pay the respondents the sum of $392,023.62 plus interest of $18,172.71 and costs of $4,058. The Tribunal imposed a stay on the order of one month.

The appeal is brought under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’). Leave to appeal was granted by a master and the order to pay was stayed pending determination of the appeal.

Factual and procedural background

Arising from the affidavit evidence and submissions of both parties before me, the factual background is broadly as follows.

The respondents are the registered proprietors of the land at 376-378 Highett St Richmond. On or about 16 October 2005, the respondents entered into a building contract with the appellant for the appellant to build four new townhouses on the property. The contract price was $855,906.

In or about August 2006, the appellant ceased carrying out building works under the contract. In or about December 2006, the respondents issued a notice to the appellant purporting to terminate the contract. The respondents paid part of the contract price to the appellant and commenced a proceeding in the Tribunal seeking to recover costs for rectification and completion of the contract works.

In or about June 2007, the solicitors for the respondent employed a private investigator, one Niomi Burton, to investigate the appellant. Ms Burton attended the home address of Mr Macfarlane and spoke with him. The contents of that conversation are in dispute and are discussed below.

On 27 September 2007, the first directions hearing for the Tribunal proceeding was conducted. There was no appearance for the appellant. Orders were made setting a timeline for the filing and service of various documents and setting the matter down for hearing on 13 November 2007.

On 13 November 2007, the respondents appeared, represented by counsel. The sole director and shareholder of the appellant company, Mr Macfarlane, appeared in person purporting to represent the appellant. Mr Macfarlane advised the Tribunal that he had not been notified of the hearing and only discovered the day before that it…

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 Macdiggers Pty Ltd v Dickinson

Details

AGLC: Macdiggers Pty Ltd v Dickinson [2008] VSC 576
Case: [2008] VSC 576
Decision Date: 17 December 2008

CaseChat Overview and Summary

The appeal arose from a decision of the Victorian Civil and Administrative Tribunal (VCAT) where the applicant, Macdiggers Pty Ltd, sought an adjournment of a hearing. The respondent, Dickinson, opposed the application. Macdiggers Pty Ltd, self-represented, sought to adjourn the hearing on the basis of urgent personal matters. The Tribunal, after hearing submissions from both parties, refused the application. Macdiggers subsequently appealed to the court, contending that the Tribunal had breached the rules of natural justice and procedural fairness by not providing adequate reasons for refusing the application for an adjournment.

The court was required to determine whether the Tribunal's conduct in denying the adjournment application breached the principles of natural justice and procedural fairness. This involved examining whether the Tribunal provided adequate reasons for its decision and whether the applicant had an opportunity to respond to any relevant considerations. The court also needed to assess whether the Tribunal's decision was based on relevant and material considerations and whether it was open to the Tribunal to refuse the adjournment application.

The court found that the Tribunal had not breached the rules of natural justice or procedural fairness in refusing the adjournment application. The reasons provided by the Tribunal were sufficient, as they outlined the basis for the decision and the considerations relevant to the application. The applicant had been given an opportunity to make submissions and respond to the Tribunal's concerns. The court held that the Tribunal's decision was based on relevant and material considerations, including the urgency and importance of the matters at hand. Consequently, the appeal was dismissed, and the decision of the Tribunal was upheld.

No further orders were made by the court.

Orders