Modern Tools v Automaint Solutions
[2011] VSC 400
•26 August 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. S CI 2011 00214
| MODERN TOOLS (VICTORIA) PTY LTD | Appellant |
| v | |
| AUTOMAINT SOLUTIONS PTY LTD | Respondent |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 August 2011 | |
DATE OF JUDGMENT: | 26 August 2011 | |
CASE MAY BE CITED AS: | Modern Tools v Automaint Solutions | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 400 | |
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APPEAL FROM VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ON A QUESTION OF LAW – Obligation of Victorian Civil and Administrative Tribunal to assist parties – Fair hearing – Failure to call a witness - Victorian Civil and Administrative Tribunal Act 1998, ss 97, 98(1)(a) and 102(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M. Black | Sharrock Pitman Legal |
| For the Respondent | Mr B.J. Murphy | Scanlan Carroll |
HIS HONOUR:
Introduction
In June 2009, the respondent, Automaint Solutions Pty Ltd, purchased from the appellant, Modern Tools (Victoria) Pty Ltd, a used Mazak lathe plus accessories to it, including a Fagor 2 Axis package and a Haas quick change tool for a total cost of $9,900.
On 2 December 2009, Automaint lodged an application at VCAT against Modern Tools seeking an order that Modern Tools “collect the machine and refund all monies paid”. The basis of the claim was set out in a letter dated 9 November 2009 from Automaint’s solicitors addressed to Modern Tools.
The case came on for hearing before VCAT on 16 July 2010. Automaint was represented by its director, Mr Barry Staff. Modern Tools was represented by its director, Mr Phillip Caruso. In answer to a question from the presiding member as to whether there were any other witnesses on either side. Mr Caruso said that there was only a Mr Mark Stoneham.
The case was heard on 16 July 2010 and 7 December 2010. Following the conclusion of the hearing, VCAT gave judgment in favour of Automaint and made orders as follows:
“1. The Tribunal orders that the respondent [Modern Tools] must pay the applicant [Automaint] the sum of $9,130.
2. The Mazak lathe, the Fagor 2 Axis package and the Haas quick change tool … are the property of the respondent [Modern Tools].”
On 8 March 2011, Modern Tools obtained leave to appeal on a question of law under s 148 of the VictorianCivil and Administrative Tribunal Act 1998. The question of law was stated in the following terms:
“Whether
(a)s 97 of the Victorian Civil and Administrative Act 1998 (‘the VCAT Act’); and/or
(b)s 98(1)(a) of the VCAT Act; and/or
(c)s 102(1) of the VCAT Act; and/or
(d)the requirements of natural justice; and/or
(e)the requirements of procedural fairness
operating alone or in conjunction required the Tribunal to assist the appellant by:
(f)identifying the issues which were central to the determination to be made by the Tribunal in the proceeding before it, namely:
(i)whether any, and if so what, representations were made to the respondent in the course of negotiation for the purchase of the Mazak lathe (‘the lathe’) being the subject matter of the proceeding before the Tribunal; and
(ii)whether or not those representations were false and/or misleading;
(g)informing the appellant that it could call Colin Triffle to give evidence in the proceeding;
(h)informing the appellant of the possible consequences of not calling Colin Triffle to give evidence, namely that it would result in the Tribunal preferring the evidence of the respondent in relation to whether any representations were made in the course of negotiation for the purchase of the Mazak lathe being the subject matter of the proceeding before the Tribunal;
(i)adjourning the proceeding to enable the appellant to call Colin Triffle to give evidence;
(j)informing the appellant of its right to request an adjournment of the proceeding to enable the appellant to call Colin Triffle to give evidence.”
Pursuant to the leave granted to it, on 9 March 2011, Automaint filed an amended notice of appeal. Under the heading “Grounds of appeal”, the following three paragraphs appear:
“2.In the proceeding before the Tribunal on the first hearing day, 16 July 2010, the respondent gave no, or not significant, evidence in relation to:
(a)what was represented by the appellant’s salesperson, Colin Triffle, about the quality and characteristics of the lathe during the negotiations for the purchase of the lathe;
(b)the reliance placed by the respondent upon any such representations.
3.In the proceeding before the Tribunal on the first hearing day, 16 July 2010, the presiding Member noted that the appellant’s representative, Mr Caruso, was giving evidence in relation to what Mr Caruso was told by Mr Triffle without informing the appellant of:
(a)what effect giving evidence in such a manner would have on the weight to be attributed to that evidence;
(b)the desirability of calling Mr Triffle to give oral evidence.
4.In the proceeding before the Tribunal on the second hearing day, 7 December 2010:
(a)in response to questions from the presiding Member the respondent gave evidence of representations alleged to have been made in the course of purchasing the machine;
(b)the Tribunal member pursued a line of inquiry with the respondent into the alleged representations;
(c)the Tribunal member did not inform the appellant or the respondent that the question of whether or not the representations were made was central to the determination of the proceeding;
(d)the Tribunal member noted that Mr Triffle was not present to give evidence and had not been present on the first hearing day but did not inform the appellant of:
(i)the desirability of Mr Triffle attending to give evidence;
(ii)the possible impact of the appellant failing to call Mr Triffle to give evidence;
(iii)its rights to seek an adjournment of the hearing in order to call Mr Triffle to give evidence.”
The essence of this appeal
The essence of this appeal is Modern Tools’ contention that it has been denied natural justice and procedural fairness in the hearing below. Modern Tools contends that it was denied natural justice and procedural fairness as a result of VCAT failing to:
“(a)assist Modern Tools, an unrepresented litigant, by identifying the relevant issues, namely the importance of what occurred and what was said during the inspection of the lathe prior to its purchase;
(b)inform Modern Tools, an unrepresented litigant, of the impact of failing to call Mr Triffle to give evidence in the proceeding;
(c)inform Modern Tools that it could request an adjournment in order to call Mr Triffle to give evidence.”[1]
[1]Appellant’s submissions on appeal at paragraph 8.
Having regard to Modern Tools’ complaints, it is necessary to examine Automaint’s claim and the conduct of the hearing below in some detail.
Automaint’s claim
As I have said above, Automaint’s claim was set out in an application lodged at VCAT on 2 December 2009. Section 8 of the claim contained the question: “What do you want VCAT to decide and order? (tick applicable boxes)”. Whilst Automaint did not tick any of the boxes “payment of money”, “return of goods” or “misleading or deceptive conduct, false representation and unconscionable conduct”, it ticked the box “order that a party has to do or does not have to do something (explain what you want below in other box)”. It then explained what it wanted in terms of the relief to which I have already referred (i.e. “collect the machine and refund all moneys paid”).
Item 11 of the VCAT application required Automaint to outline the history of the dispute. In response to this requirement, Automaint stated: “As per the attached letter to Phil Caruso of Modern Tools”. This was a reference to the solicitor’s letter of 9 November 2009 to which I have already referred. The letter stated:
“We act on behalf of Automaint Solutions Pty Ltd and we are instructed that our client purchased a Mazak Lathe from your company on 29 June 2009. Our client instructs that most of the negotiations were made with Colin Triffle who we understand has left your employ.
We have been provided with a copy of an email which our client received from Colin Triffle dated 5 June 2009 confirming that Modern Tools offered our client a Mazak Lathe with the addition of a Fagor 2 Axis Digital Read-out System fitted for $8700 plus GST. This email states that the machine would be inspected – the intention being to ensure that the machine was in good condition and repair, was in working order, and was of merchantable quality.
Prior to the purchase it was represented to our client that the Mazak Lathe was a ‘good Japanese lathe that would outlast the Morton lathe, the resale value would be greater and the Mazak was a more reliable machine’.
At an inspection of the lathe by representatives of our client, Colin Triffle advised that the machine had been fully inspected and that it was in excellent working condition.
Based on the representations made by yourself and Colin, our client agreed to purchase the Mazak lathe and took possession in mid July after the Fagor readout was fitted on the lathe in accordance with the original email.
After collecting the machine our client attempted to contact Colin to convey some concerns with the lathe. However, our client was informed that Colin had left Modern Tools.
Our client experienced inconsistent readings on the digital Fagor readout. Our client was informed by Mark (a representative of Modern Tools, who fitted the Fagor readout) that the slides should have been cleaned prior to fitting the readout. This was not undertaken by Modern Tools prior to delivery.
Our client was informed prior to the purchase that the saddle rack and pinion was worn but could be replaced for approximately $300.00 and that aftermarket parts were available. Mark advised that he had fitted these parts previously. Upon making enquiries with John Hart – who was a Mazak distributor – our client was advised that the parts would cost approximately $2500.00 not $300.00.
In late July, our client used the Mazak lathe for approximately 1 hour and lost power feed on the saddle. It also operated in reverse. Our client called you to advise that the lathe was not working properly and our client was informed that there was nothing that could be done apart from Mark inspecting the lathe.
Mark attended our client’s premises in October. At this inspection numerous faults were found and Mark called our client the next day after reporting the outcome of the inspection to you and our client was informed that there was nothing that could be done.
We are instructed that our client entered into the agreement to purchase the equipment referred to above in reliance upon the representations made by you and other representatives of Modern Tools. Furthermore, the said representations induced our client to proceed with the transaction.
It is apparent from what is outlined above that the representations made to our client were not correct as a result of which our client has suffered considerable loss and damage. On our instructions the equipment requires a substantial amount of expenditure to rectify the defects.
Despite our client’s attempts to resolve this matter directly with you we have now been instructed to demand an immediate return of the purchase price of $8700 plus GST and that you advise a time which is mutually convenient for you to collect the Mazak lathe together with all tools sold with the machine within 7 days of the date of this correspondence failing which we are instructed to commence legal proceedings without any further notice.”
As can be seen from the letter, Mr Triffle, the person referred to in the question of law and the grounds of appeal, was alleged by Automaint to have a significant involvement in the dispute between the parties. As well as being the person who could give evidence on behalf of Modern Tools as to what inspection was carried out on behalf of Automaint before the equipment was purchased, Mr Triffle was obviously a central witness in respect of Automaint’s claim that misrepresentations had been made to it.
The hearing at VCAT
After some preliminary discussion, the hearing commenced with the presiding member swearing in Mr Staff and Mr Caruso. The presiding member then asked: “Now, any other witness on either side, or is it just the two of you?”. Mr Caruso replied that there was only Mr Stoneham. Mr Stoneham was then sworn in. The presiding member then said:
“Thank you. Nobody else? All right, I’ll hear Mr Staff first, then Mr Caruso, then Mr Stoneham. Now, both parties will have the chance to have a second say later, eventually, if they wish. You may ask questions of witnesses on the other side at the end of their evidence, if you wish. We find, in cases like this, that most people do not want to ask questions, they just want to tell their side of the story. Tell me, however, at the end of the evidence of a person, if you want to ask that person any questions. If you don’t tell me at that time that you want to ask questions, I’ll assume you don’t.”
Mr Staff then gave evidence, largely in answer to questions put by the presiding member. Whilst reference was made to Mr Triffle, no evidence was given on this first occasion concerning representations made by Mr Triffle. Mr Staff gave evidence about the purchase, what he wanted the lathe for, defects with the machine and dealings after defects were identified.
Mr Caruso then gave evidence. His evidence was of a more narrative kind – but again was largely in response to prompts by the presiding member. Early in Mr Caruso’s evidence, there was the following exchange between the presiding member and Mr Caruso:
“Mr Caruso: … Mr Staff inspected the Mazak lathe. He had it running, took a test cut, which is on his desk here, spent about an hour looking at the machine, under load, played with it, chatted. ‘Yes, fine, basically it’ll do me, that’s all I need’.
Presiding Member: You’re telling me what Colin Tryffle has told you, are you? You weren’t there yourself?
Mr Caruso: Yes, yes.
Presiding Member: Yes.”[2]
[2]T13.39 – 14.1 of the first day of the hearing.
Towards the end of Mr Caruso’s evidence on the first day, there was the following exchange between Mr Caruso and the presiding member:
“Mr Caruso: … . And as he stated earlier that Colin sold on lathe (sic), that’s absolutely ridiculous. Colin has been in business – not in business, but been in a business for over 20 years. And while he was in for me he would have sold half a dozen lathes, and in fact he sold a few second-hand lathes and in fact he sold a second-hand lathe to a chap in Gippsland which again was second-hand and the client tested and played with it and no issue again. We’ve never had - - -
Presiding Member: Is he still with you?
Mr Caruso: No he’s not. No.
Presiding Member: Do you know where he is?
Mr Caruso: Yes, I can get in contact with him.”[3]
[3]T17.47 – 18.13 of the first day of the hearing.
At the conclusion of the first day of the hearing, the presiding member said:
“For the time being, I will simply order that the hearing is adjourned to be further heard before me on a date [to be fixed] … . I’ll hear from Mr Stoneham and there may be others.”
On the second day of the hearing, Mr Caruso’s evidence was completed. The presiding member asked Mr Caruso whether he had any other witnesses he wished to call. Mr Caruso answered no. Mr Stoneham was not called to give evidence.
The presiding member, consistently with what he had said on the first day, then gave Mr Staff his “second say”. During the course of Mr Staff’s second say, evidence was given for the first time about the representations alleged to have been made by Mr Triffle (and to which reference had been made in the letter of 9 November 2009).[4]
[4]See T3 - 4 and T8 of day two of the hearing below.
Following Mr Staff’s second say, Mr Caruso was given a second say. During Mr Caruso’s second say, the following exchange occurred between the presiding member and Mr Caruso:
“Mr Caruso: Your Honour nothing adds up to me. Really, it doesn’t. Colin said the machine was in excellent condition, and I’m happy to bring Colin here, and I can tell you, with his experience, he never would have said that. It’s an accurate machine. How can - - -
Presiding Member: Well, he’s not here. He wasn’t here last time and he’s not here today.
Mr Caruso: Yes, but I mean, he’s saying Colin said all these things - it’s impossible. How can someone say a machine is accurate and like new for its age? I mean, I just notice there, it says it’s normal wear from John Hart. There’s a paragraph there from John Hart says it is normal.
Presiding Member: One part.
Mr Caruso: The whole machine is normal for its age, and Barry tested the machine … .”
Towards the end of Mr Caruso’s second say, there was a further exchange between the presiding member and Mr Caruso about calling another witness. Mr Caruso said in respect of this witness: “I am happy to bring him in also as a witness as well”. However, as with Mr Triffle, Mr Caruso made no actual attempt to call this witness. Further, no application was made for any adjournment that might have been necessary.
In his affidavit in support of his application for leave to appeal against VCAT’s decision,[5] Mr Caruso explains his failure to call Mr Triffle in the following terms:
[5]Also relied upon in this appeal.
“16. In the course of the proceeding, I submitted to the Tribunal that:
(a)Mr Triffle had informed me that Mr Staff had spent about an hour looking at, and testing, the machine and that at the conclusion of the test, Mr Staff had advised Mr Triffle ‘Yes, fine, basically it’ll do me, that’s all I need.’
(b)Mr Triffle was no longer employed by the Applicant company but that I knew where he was and I was able to get I contact with him.
(c)Mr Triffle had sold other second-hand lathes whilst he was employed by the Applicant company;
(d)‘I’m happy to bring Colin (Mr Triffle) in here, and I can tell you, with his experience, he never would have said that (the machine was in excellent condition)’;
17.In response to my indication that I was happy to bring Mr Triffle in to give evidence, the Tribunal commented that ‘Well, he’s not here. He wasn’t here last time and he’s not here today.’
18.I was not aware that I could apply for an adjournment in order to arrange for Mr Triffle to attend a further hearing of the matter.
19.The matter proceeded and accordingly I was unable to rely on evidence from Colin Triffle. ...”
However, when I raised with Modern Tools’ counsel in argument whether Modern Tools’ case was that “Mr Caruso, unlike almost everyone else in Victoria, did not know that he could apply for an adjournment in appropriate circumstances if he needed to”, counsel for Modern Tools said that it was not Modern Tools’ case that Mr Caruso would have had no knowledge that he could have taken that course.[6] Notwithstanding the content of Mr Caruso’s affidavit, to which I have just referred, Modern Tools’ case at trial was put more on the basis that the importance of Mr Triffle did not become apparent until during Mr Staff’s “second say”, and that this should have been the subject of advice to Mr Caruso from the presiding member. However, it is to be noted that in Mr Caruso’s affidavit, Mr Caruso did not depose to being unaware of the importance of Mr Triffle during any stage of the hearing.
[6]T8 - 9.
Following Mr Caruso’s second say, the presiding member asked whether there was anything either Mr Caruso or Mr Staff would like to say before a decision was made. Neither had anything relevant to say. The presiding member then delivered his decision in the matter. The reasons for decision were as follows:
“By an invoice dated 30 June 2009, number 30316, the applicant, Automaint Solutions Proprietary Limited, purchased from the respondent, Modern Tools (Vic) Proprietary Limited a used Mazak lathe plus accessories to it, including a Fagor two axis package and a Haas quick-change tool for a total cost of $9900. The applicant makes complaints about the condition of the lathe. The respondent points out that the invoice said that the sale was used as inspected. And the allegation that is made is that Mr Staff of the applicant company spent an hour testing the machine and trying it out before deciding to buy it, and that is what ‘used as inspected’ means. If I had been satisfied that that allegation was correct, that he did test it for an hour and then made his own decision, I think I would have come to a different conclusion in this case. But I am not satisfied of that.
Mr Staff has sworn that although he was present for an hour speaking to Mr Triffle[7] of the respondent, he only spent a very short time doing one simple manoeuvre by way of a test, and that he was told that the machine was running backwards, and it was late in the day and so a lengthy test wasn’t feasible. He also told me, although it took him some time to tell me in detail, that he relied upon what Mr Triffle told him about the quality and characteristics of the machine, that it was of good quality and a good buy and would do the various things that he asked whether it could do or not, machine shafting and screw cutting, and so on. Again, if I had been satisfied that he tested the machine, then, for an hour, I might have concluded that he didn’t rely on anything that Mr Triffle said. But I am of a different view, and I think he did rely on what Mr Triffle said, and what he said was not correct.
Mr Triffle has not given evidence, either on the previous hearing date or today. I don’t know what he would say if he were here. But I see no reason not to accept what Mr Staff told me. Further, even though the machine was not a new machine, and Mr Staff knew that, and he knew that there were things wrong with it, in particular the pinions, nevertheless it has to be fit for sale. And in view of what he told me about its condition when he tried to use it, I don’t think it was. He listed the faults last time during the hearing: oil leaking from the gearbox, the auto feed not working, a Fagor readout not being consistent, the slides being loose, a chuck doesn’t run true and the chuck lock is cracked.
And I don’t think on that evidence that it was fit for sale. He has told me that he can use some accessories that came together with the machine: an arbor, a live centre and a rotary table. I accept that the other accessories, even though there might not be anything physically wrong with them, are related to the lathe itself and not to some other lathe, and so they are of no use to him if the lathe is no good. So I think he has established an entitlement to a refund of the cost of the lathe, the Fagor package and the Haas quick-change tool, and they come to $9130. I will make an order that the respondent pay the applicant the sum of $9130, then I will add that the Mazak lathe, the Fagor two axis package and the Haas quick-change tool referred to in the respondent’s invoice number 30316 are the property of the respondent. In other words, Mr Caruso’s company is entitled to them back.”
[7]In the transcript of VCAT’s reasons, Mr Triffle is referred to as Mr Tryffle. As was deposed to by Mr Caruso in paragraph 14 of his affidavit sworn 28 January 2011, the Mr Tryffle referred to in the transcript of these reasons is Mr Triffle.
The obligations of the Tribunal
VCAT is required to act fairly and according to the substantial merits of the case in proceedings brought before it.[8] Further, VCAT is bound by the rules of natural justice.[9] Additionally, VCAT is required to allow a party “a reasonable opportunity … to call or give evidence, … to examine, cross-examine or re-examine witnesses, and to make submissions”.[10]
[8]Section 97 of the VCAT Act.
[9]Section 98(1)(a) of the VCAT Act.
[10]Section 102(1) of the VCAT Act.
In support of its submissions, Modern Tools relied upon the judgment of Byrne J in Winn v Blueprint Instant Printing[11] and the judgment of Nettle J in Collection House Limited v Taylor.[12] In Winn, Byrne J said:[13]
“… It was accepted that the Tribunal must act fairly and that it was bound by the rules of natural justice. But this does not require that its procedures be that of a formal court. Indeed, the Victorian Civil Administrative Tribunal Act 1998 (‘the Act’) makes it clear that the Tribunal is to act in an informal way and that its procedures must be moulded to accommodate the fact that, in most cases, the parties will not be represented by a professional advocate. This necessarily involves the Tribunal taking a more active role and identifying the real issues between the parties and directing them as to the evidence which legally and logically bears on those issues. It may be, too, that in a given case, the Tribunal will itself interrogate witnesses in a manner and to an extent which would not be expected in a court. This said, s 102(1) expressly obliges the Tribunal to afford to the parties a reasonable opportunity to call evidence and to cross-examine witnesses and make submissions. This obligation is, of course, constrained by s 102(2) and by the ordinary requirements of relevance.”
[11][2002] VSC 295.
[12][2004] VSC 49.
[13][2002] VSC 295, [9].
In Collection House Limited v Taylor, Nettle J said:[14]
“That is not to say that the Tribunal exists to provide legal advice to parties that appear before it or even that it would be appropriate for the Tribunal to provide legal advice to parties. It does not and it would not be. But there is a difference between providing legal advice and explaining in the course of hearing to unrepresented litigants the nature and effect of the various processes which are being undertaken and as to the steps open for the litigants to take. In that sense, a higher burden of explanation and assistance may fall upon a member of the Tribunal than would fall upon a judge in a curial proceeding in which the parties are represented by counsel.”
[14][2004] VSC 49, [27].
Was Modern Tools denied natural justice or procedural fairness?
In its written submissions, Modern Tools contended that it had been denied natural justice and procedural fairness because VCAT failed to:
(a)assist it by identifying the importance of what occurred and what was said during the inspection of the lathe prior to its purchase;
(b)inform it of the impact of failing to call Mr Triffle to give evidence; and
(c)inform it that it could request an adjournment in order to call Mr Triffle.[15]
[15]I should say for the sake of completeness that it was not Modern Tools’ case that Mr Caruso was unaware of the fact that adjournments could be applied for in appropriate circumstances. Its case was that Mr Caruso did not receive the assistance he was entitled to (T8.22 - .29).
One can always find in any case where a person without legal qualifications appears for himself or herself (and similarly in a case where a company is represented by an unqualified person) that more could have been said by the court or tribunal hearing the case to explain the various procedures or rights involved in the case. However, the fact that one is able to engage in this exercise does not mean that in any particular case insufficient assistance was given to such a litigant.
In the present case, I see no want of procedural fairness or natural justice. Consideration of the whole of the transcript shows a presiding member who was careful to explain appropriately the procedures to be adopted during the hearing. Further, I am not satisfied that either Modern Tools or Mr Caruso were not aware (or were not correctly taken to have been aware by the presiding member, or could not reasonably have been taken to have been aware by the presiding member) of the relevance and significance of Mr Triffle’s evidence. Mr Triffle was not merely relevant on the issue of representations made prior to the sale (that is, in answer to Automaint’s case). He was also relevant (and obviously so) to a central plank of Modern Tools’ case as to the length of time Mr Staff inspected and tested the machine on 29 June 2009 (said, on behalf of Modern Tools, to be “over an hour”). It was Mr Caruso who gave evidence (based upon what he was told by Mr Triffle), on the first day of the hearing, that Mr Staff spent “over an hour” inspecting the machine.[16]
[16]T16.14 of the first day of the hearing below.
Even if it could be said in the face of the 9 November 2009 letter that the significance of the alleged representations made by Mr Triffle did not become apparent until Mr Staff’s “second say” on the second day of the hearing, on any view, the matter was a live one at the start of the hearing. Further, the matter was never withdrawn or abandoned. Additionally, as I have already noted, the importance of Mr Triffle in respect of other significant issues[17] was known at all times to Mr Caruso (Modern Tools), as was the ability to ask for an adjournment if that was thought to be necessary.[18]
[17]As to the “excellent condition” of the machine, see the evidence of Mr Caruso extracted in paragraph [19] above. As to the evidence of the time taken by Mr Staff in looking at and testing the machine, see the evidence of Mr Caruso extracted at paragraph [14] above and paragraph 16(a) of Mr Caruso’s affidavit extracted in paragraph [21] above.
[18]See paragraph [22] above and T8-9.
An examination of the transcript of the hearing below suggests that Mr Caruso was prepared to give all of the evidence necessary to be given on behalf of Modern Tools – and to bolster this by asserting that a particular witness (be it Mr Triffle or John Hart or someone else) could be called if necessary. Modern Tools’ complaint really reduces to the proposition that it claims it should have been told that an obviously relevant witness (Mr Triffle) should have been called. It is no part of VCAT’s role to give such advice.[19] However, and in any event, in my view, there was nothing unfair[20] or in breach of the rules of natural justice[21] in the Tribunal not giving this “advice”. Additionally, in my view, the presiding member allowed Modern Tools every “reasonable opportunity” to call the evidence and make the submissions it wished to call.
[19]Cf Sullivan v Department of Transport (1978) 1 ALD 383, 403 (per Deane J); Collection House Limited v Taylor [2004] VSC 49, [27] (Nettle J).
[20]Cf s 97 of the VCAT Act.
[21]Cf s 98(1)(a) of the VCAT Act.
Conclusion
For these reasons, the appeal must be dismissed.
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