Martin v Fasham Johnson Pty Ltd - [2008] VSC 289

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4832 of 2007

JENNIFER MARTIN	Appellant
v
FASHAM JOHNSON PTY LTD	Respondent

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JUDGE:	Kyrou J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 July 2008
DATE OF JUDGMENT:	4 August 2008
CASE MAY BE CITED AS:	Martin v Fasham Johnson Pty Ltd
MEDIUM NEUTRAL CITATION:	[2008] VSC 289

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Appeal from Victorian Civil and Administrative Tribunal – Domestic Building List – powers to dismiss or strike out proceeding – distinction between a proceeding and a pleading in the proceeding – ss 75, 76, 77, 78 and 98, Victorian Civil and Administrative Tribunal Act 1998 (Vic).

Natural justice – alleged apprehended bias on the part of a member of Victorian Civil and Administrative Tribunal.

Direction that Victorian Civil and Administrative Tribunal be differently constituted – s 148(8), Victorian Civil and Administrative Tribunal Act 1998 (Vic).

Legal practitioner – appropriateness of acting if also a material witness – r 13.4, Professional Conduct and Practice Rules 2005 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J Brett	Access Law
For the Respondent	Mr A Laird	Schetzer Brott & Appel

HIS HONOUR:

Introduction and summary

This is an appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (“VCAT Act”) from certain paragraphs of an order made on 30 January 2007 by the Victorian Civil and Administrative Tribunal (“Tribunal”), constituted by a Senior Member, in a proceeding (“VCAT proceeding”) under the Domestic Building Contracts Act 1995 (Vic) (“DBC Act”) brought by Dr Jennifer Martin against Fasham Johnson Pty Ltd (“Fasham Johnson”).

The appeal is brought pursuant to leave granted by Habersberger J on 20 September 2007[1] following an appeal by Dr Martin to his Honour from a Master’s refusal to grant leave.
[1]Martin v Fasham Johnson Pty Ltd [2007] VSC 354.

The key issues in this appeal are whether, when the VCAT proceeding was before the Tribunal on 30 January 2007, it erred in law in either purporting to strike out the proceeding or in assuming it had already struck it out on 30 November 2006 and in making an indemnity costs order. Another issue is whether the Tribunal’s conduct gave rise to apprehended bias.

For the reasons set out in this judgment, I have concluded that the Tribunal erred in law in assuming that it had struck out the VCAT proceeding and have decided to allow the appeal.

Facts

It was common ground before me that the facts and procedural history of this proceeding are accurately set out in Habersberger J’s reasons for granting Dr Martin leave to appeal. In the following paragraphs 6 to 21 of this judgment, I draw heavily on the relevant portions of Habersberger J’s reasons, with appropriate modifications to reflect the issues raised in the submissions before me on the substantive hearing of the appeal.

On 26 June 2004, Dr Martin lodged an application in the Tribunal’s Domestic Building List pursuant to the

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: [2008] VSC 289
Decision Date: 4 August 2008

CaseChat Overview and Summary

Martin brought an action against Fasham Johnson Pty Ltd in the Domestic Building List of the Victorian Civil and Administrative Tribunal (VCAT). Martin claimed that Fasham Johnson Pty Ltd had breached its obligations under a building contract. Fasham Johnson Pty Ltd sought to have Martin's claim dismissed, claiming it was invalid and that Martin's legal practitioner was not permitted to act due to a conflict of interest. The matter came before the Court of Appeal.

The primary legal issue was whether the tribunal had the power to dismiss Martin's claim, and whether it was appropriate for Martin's legal practitioner to act in the proceeding when they were also a material witness. The Court was also asked to consider whether there was apprehended bias on the part of one of the tribunal members.

The Court held that the tribunal had the power to dismiss the claim if it was invalid. However, the Court found that Martin's claim was valid, and that the tribunal had erred in law by dismissing it. The Court found that the tribunal member had not acted with apprehended bias. The Court also found that it was not improper for Martin's legal practitioner to act in the proceeding, despite also being a material witness. The Court remitted the matter to VCAT for further consideration.

The Court of Appeal allowed the appeal, set aside the decision of VCAT, and remitted the matter for further consideration in accordance with the Court's reasons.

Orders