Navaratne v Asian Pacific Properties Investment Pty Ltd
[2014] VSC 638
•18 DECEMBER 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 03220 of 2014
| KUSHARA NAVARATNE | Plaintiff |
| v | |
| ASIAN PACIFIC PROPERTIES INVESTMENT PTY LTD | Defendant |
---
JUDGE: | DIXON J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 OCTOBER 2014 | |
DATE OF JUDGMENT: | 18 DECEMBER 2014 | |
CASE MAY BE CITED AS: | NAVARATNE v ASIAN PACIFIC PROPERTIES INVESTMENT PTY LTD | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 638 | |
---
JUDICIAL REVIEW – Application for leave to appeal from VCAT dismissed by associate judge – Appeal to judge in Practice Court – No error of law – No point of principle.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Ms Z Maud | Dean Pavitt, Legal Counsel, Asian Pacific Properties Investment Pty Ltd |
HIS HONOUR:
Background
Mr Navaratne appealed against the orders of Lansdowne AsJ, made on 20 August 2014. I begin by setting out the history of the dispute between the parties in both the Victorian Civil and Administrative Tribunal (‘VCAT’) and in this court.
Under an agreement with the defendant (‘APPI’) made on 8 December 2013, Mr Navaratne commenced to live at Room 331E, Rydges Residences, 215 Bell Street, Preston (‘the Rydges Residence’). The precise nature of this agreement was disputed, but not in proceedings before me. Mr Navaratne contended that he entered into a residential tenancy agreement with APPI, who contended that the agreement was merely a licence.
The agreement initially covered the period from 8 December 2013 until 5 January 2014. This period was extended on multiple occasions, with some issues arising between the parties in mid-April 2014. As extended, Mr Navaratne’s stay at Rydges Residences was due to expire on 3 June 2014. When he sought to extend his stay from 3 June 2014, he was asked to sign a new licence agreement.
Mr Navaratne was concerned that the new licence agreement proposed altered his position, and sought some time before deciding whether to sign. On 2 June 2014, he was told that he needed to return the signed licence agreement by 5:00 pm on that day, otherwise he would be required to check out by 11:00 am on 3 June 2014, in accordance with the current agreement.
It was at this point that Mr Navaratne commenced the first of a series of proceedings at VCAT, which was the subject of his application for leave before the associate judge.
First VCAT application
There were some issues between the parties around mid-April 2014, leading to Mr Navaratne filing an application at VCAT on 16 April 2014. However, Mr Navaratne was refused a fee waiver and he did not subsequently pay the commencement fee. This application does not appear to have gone any further.
On 2 June 2014, Mr Navaratne filed an application with VCAT under s 472 of the Residential Tenancies Act 1997 (Vic) (‘the RTA’), seeking an injunction restraining APPI from ‘evicting’ him from the Rydges Residence. At an ex parte hearing on the same day, VCAT granted an interim injunction requiring that APPI comply with all provisions of the RTA pending further hearing of the application. This was stated to include s 229 of the RTA, which makes it an offence for a landlord to compel a tenant to vacate rented premises, except in accordance with the Act.
A further hearing of this application was listed for 11 June 2014. On 10 June 2014, Mr Navaratne sent by facsimile a letter to both VCAT and APPI stating that he intended to withdraw his application.
On 11 June 2014, Mr Navaratne did not appear at the VCAT hearing and what occurred on that day is disputed. Since I heard the appeal from the associate judge, Mr Navaratne has provided me with a transcript of the VCAT hearing on 11 June 2014, to which I will later refer. Nonetheless, the outcome of the hearing is apparent from the orders made by Member Liden on that day, which were as follows:
The Tribunal orders and directs that:
1. The application is dismissed for the following reason:
There was no appearance by or on behalf of the applicant at the time scheduled for hearing.
It is noted that by facsimile received after close of business on 10 June 2014, the applicant sought to withdraw the application.
2. The order of 2 June 2014 is set aside.
It is from these 11 June 2014 orders that Mr Navaratne sought leave to appeal before the associate judge. However, as they are relevant to my reasons, I will describe subsequent VCAT proceedings.
Second VCAT application
On 12 June 2014, Mr Navaratne filed a new application with VCAT, again seeking an injunction under s 472 of the RTA restraining APPI from ‘evicting’ him from the Rydges Residence. Again, an interim injunction was granted, requiring that APPI immediately re-activate Mr Navaratne’s access card and reconnect any utilities that may have been disconnected.
The further hearing of this proceeding was listed for 17 June 2014. At Mr Navaratne’s request, this hearing was adjourned to 20 June 2014, at which hearing Mr Navaratne failed to appear. The proceeding was dismissed and on 27 June 2014, VCAT ordered that Mr Navaratne pay APPI’s costs.
Third VCAT application
On 20 June 2014, after the second VCAT application concluded, Mr Navaratne attended at VCAT and filed a third application seeking an injunction against APPI. His application noted that Mr Navaratne was unable to attend a hearing that day due to illness, and had emailed a medical certificate to this effect to VCAT. By order dated 20 June 2014, this third application was accepted by Member Moon as an application for review of the second VCAT application pursuant to s 120 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘the VCAT Act’). The application for review was granted on 8 July 2014, when both Mr Navaratne and APPI were present. Immediately thereafter, VCAT re-heard and determined Mr Navaratne’s application for an injunction against APPI.
Member Kefford ordered:
The applicant’s application for review is granted and the order dated 20 June 2014 in [the second VCAT application] is set aside.
The Tribunal finds as follows:…
The respondent has proved that the agreement between the parties is a licence and that the Residential Tenancies Act 1997 does not apply to the agreement (s.507).
…
The Tribunal orders that it has no jurisdiction under the Residential Tenancies Act 1997 and the application is struck out.
The orders dated 20 June 2014 in [the third VCAT application] and 12 June 2014 in [the first VCAT application] are set aside. …
The Tribunal further notes that the applicant withdrew [the first VCAT application] in a document dated 10 June 2014 but commenced [the second VCAT application] without first seeking the leave of the Tribunal.The Applicant is prohibited from commencing any further application in the Residential Tenancies List of this Tribunal unless and until this order is set aside by order of the Supreme Court.
Member Kefford delivered written reasons for her decision on 24 July 2014, when the 28 day period within which Mr Navaratne was to apply for leave to appeal from the orders of 8 July 2014 – if he chose to do so – commenced to run.
The Supreme Court Proceedings
Mr Navaratne filed an originating motion on 27 June 2014, seeking leave to appeal the orders of 11 June 2014 made by Member Liden in the first VCAT application.
Mr Navaratne’s application for leave to appeal from the 11 June 2014 orders was heard by the associate judge on 20 August 2014. At the commencement of the hearing, Mr Navaratne was given time to consider whether he wished to amend the originating motion to incorporate any additional orders made by VCAT. The matter was stood down while he sought the assistance of the duty barrister, who ultimately was not available. On resumption of the hearing, Mr Navaratne sought an adjournment for the purposes of obtaining legal advice and amending his originating motion to incorporate the orders of 8 July 2014 in the third VCAT proceeding and articulating the question(s) of law with respect to those orders.
APPI submitted to the associate judge that the orders of 11 June 2014 were made on the basis of Mr Navaratne’s withdrawal of the proceeding and after he failed to appear at the hearing on that day. It was further submitted that Mr Navaratne was still within time to commence an application for leave to appeal from the orders of 8 July 2014. APPI contended that the appropriate course of action was to dismiss the current application which was doomed to fail, allowing Mr Navaratne to commence fresh proceedings in respect of the 8 July 2014 orders.
APPI contended that its costs were a significant factor on any adjournment application. Mr Navaratne had previously stated that he was unable to pay any order for costs, and prejudice to APPI could not be alleviated by a costs order.
The associate judge refused the adjournment as Mr Navaratne’s application for leave to appeal was bound to fail, and an adjournment would be of no benefit to Mr Navaratne. Her Honour stated that Mr Navaratne should commence a separate application for leave to appeal the orders of 8 July 2014 made on the third VCAT application.
After her Honour’s ruling refusing an adjournment, the parties made final submissions on the application for leave to appeal. Mr Navaratne contended that the consequences of the 11 June 2014 orders were that his possessions were removed from the Rydges Residence, his access card de-activated, and the room left in ‘an uninhabitable condition’, arguing that this amounted to ‘substantial injustice’. He added that VCAT lacked the power to make the 11 June 2014 orders, arguing that APPI relied on provisions that were inapplicable. During this discussion, it emerged that Mr Navaratne did not understand the legal consequences of ‘withdrawal’ of the first VCAT application, especially in relation to the interim orders that had previously been made. I will say more about this issue below.
At the conclusion of the hearing, the associate judge refused Mr Navaratne leave to appeal from the 11 June 2014 orders. Her Honour’s ex tempore reasons were distilled and recorded in ‘Other Matters’ in the court’s order in the following terms:
In relation to order 1
1.On being informed by the Court that the only VCAT order currently the subject of an application for leave to appeal is that identified in the originating motion, the order of 11 June 2014, the plaintiff confirmed the indications in his other written material that he wished to appeal the order made by VCAT on 8 July 2014, and possibly other VCAT orders. He sought an adjournment to obtain legal advice with a view to possible application to amend the originating motion.
2.The defendant opposed an adjournment of the proceeding on the basis that it would be futile in relation to the only order currently sought to be appealed, the order of 11 June 2014, as leave to appeal was bound to be refused in respect of that order. The defendant also submitted that the plaintiff was still within time to seek leave to appeal the order of 8 July 2014, as written reasons for that order were not given until 25 July 2014. Accordingly, adjournment to amend the originating motion to add that order was not necessary to allow it to be appealed.
3.The Court accepts these submissions, subject to allowing the parties to put further submissions on the hearing of the application for leave to appeal the order of 11 June 2014, and refuses the application for adjournment accordingly. The usual expectation is that an application for leave to appeal will be heard on the first return date of the summons filed pursuant to the originating motion, being today, and no sufficient basis is shown for departing from that usual practice.
In relation to orders 2 and 3
4.No arguable error of law is shown in the making of the orders of 11 June 2014. Although the source of power to dismiss the proceeding exercised in order 1 is not explicitly identified in the body of the order, sufficient power existed in the power to make orders incidental to the exercise of jurisdiction under s 472 of the Residential Tenancies Act 1997.
5.Even if there was arguable error of law, the plaintiff has not shown any substantial injustice flowed to him arising from the making of an order to dismiss a proceeding when he had notified both the VCAT and the respondent to the proceeding that he wished to withdraw the proceeding. There is no evidence that his reasons for withdrawal or expectation as to what would occur were made known to the VCAT, and so they are not relevant in determining the question of leave to appeal. Similarly, what in fact occurred thereafter, even if contrary to his expectations, is also not relevant to the making of the order.
6.Order 2 made 11 June 2014 flowed as a matter of law from the dismissal of the proceeding within which the interim order of 2 June 2014 was made.
In relation to order 4
7.No basis is shown to depart from the usual rule that costs follow the event.
The orders that are the subject of this appeal are:
1. The application by the plaintiff to adjourn the proceeding is refused.
2.The application for leave to appeal the VCAT order of 11 June 2014 is refused.
3. The proceeding is dismissed.
4. The plaintiff pay the defendant’s costs of the proceeding.
Submissions on Appeal
Mr Navaratne’s Submissions
On appeal, Mr Navaratne submitted that her Honour erred in refusing the adjournment and refusing leave to appeal.
(a) There is an error on the face of the record; specifically, in paragraphs 1 and 2 of the Other Matters in the 20 August 2014 orders.
(b) He was not given a fair hearing, as he was unable to consult a duty barrister on the day and an adjournment to seek legal advice in relation to amending his originating motion was refused.
(c) VCAT lacked the power to dismiss the first VCAT application; specifically, that the power on which the associate judge found the order to be based was insufficient to empower the Tribunal to make the 11 June 2014 orders.
(d) Her Honour erred in finding that no significant injustice was caused by the 11 June 2014 orders, so that even if there were an error of law by Member Liden, leave to appeal should not be granted.
(e) There was insufficient evidence to support a refusal of leave to appeal without a transcript or audio recording of the hearing on 11 June 2014.
(f) Her Honour erred by failing to adequately address the question of whether there was any bias against Mr Navaratne in the first VCAT application, in her reasons.
(g) Her Honour erred by failing to adequately address the question of VCAT’s power to adjourn the matter with an order for costs, rather than making the orders that were, in fact, made on 11 June 2014.
In response to APPI’s submissions, Mr Navaratne raised further arguments that:
(a) VCAT should not have relied on his facsimile noting his intention to withdraw the proceedings, as it was received after close of business on 10 June 2014.
(b) In relation to the question of significant injustice, there was insufficient evidence before the court to conclude that he would not suffer significant injustice if leave were refused, particularly when the court did not have evidence of the actual letter sent by facsimile to VCAT.
(c) The transcript of the hearing on 20 August 2014 is inaccurate, and he requested access to an audio recording to identify the inaccuracies but was refused.
(d) He was under the impression that the VCAT file from the first VCAT application would be available to the Court, which is why he didn’t have a number of documents with him.
APPI’s Submissions
APPI submitted that the associate judge’s findings supported the orders she made. APPI contended that:
(a) The associate judge was correct in finding that the power to dismiss the proceedings was ancillary or incidental to VCAT’s jurisdiction under s 472 of the RTA.
(b) Alternatively, by notice of contention, the 11 June 2014 orders gave effect to withdrawal of the proceedings by Mr Navaratne under s 74 of the VCAT Act, for which no leave is required under cl 69 of Schedule 1 of that Act.
(c) The associate judge was not required to address every submission made by Mr Navaratne in her reasons. Her Honour adequately addressed the key reasons why there was no error of law and no substantial injustice.
(d) Whether to grant an adjournment was discretionary for the primary judge, and there was no error. Mr Navaratne was bound to fail; legal advice could not have changed the result.
(e) Mr Navaratne was not denied procedural fairness due to his inability to obtain legal advice as such advice would not have changed the outcome of the hearing.
Analysis
The test for whether leave to appeal should be granted is set out in Secretary to the Department of Premier and Cabinet v Hulls:[1]
When leave is sought to appeal under s. 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although where the order below is final, that injustice will often be readily discernible.[2]
[1][1993] 3 VR 331.
[2]Ibid 337 [16].
I do not consider that Mr Navaratne has shown any legal error in the orders or reasoning of the associate judge for the following reasons:
(a) Mr Navaratne cannot now complain of orders that were made in accordance with his wishes. He had notified VCAT that he wished to withdraw his application and subsequently failed to attend the hearing. He does not dispute these facts.
(b) Even if an error of law could be shown in relation to the 11 June 2014 orders, an appeal from those orders would be futile given the 8 July 2014 orders that, inter alia, set aside the 11 June 2014 orders when VCAT determined that it did not have jurisdiction to grant the orders sought by Mr Navaratne on the first VCAT application.
At the risk of some repetition, I will address each of Mr Navaratne’s submissions in turn.
Error on the Face of the Record
Putting to one side whether what is required to found an appeal is an error of law on the face of the record, Mr Navaratne could not point to any appealable error.
First, Mr Navaratne took issue with the finding that he had ‘indicated in his other written material’ that he wished to appeal the 8 July 2014 orders in the third VCAT application, saying that no such indication was made in any of his written material. There were indications in Mr Navaratne’s written material that orders subsequent to 11 June 2014 had been made in relation to this dispute. The transcript shows that this is the first issue raised by the associate judge:
HER HONOUR: … Mr Navaratne, I have read all the documents that seemed to me to be relevant on the file and there are some preliminary matters I just wanted to raise with you.
MR NAVARATNE: Sure.
HER HONOUR: The application as listed before me today is only your originating motion, filed on 27 June, in which you seek leave to appeal an order made by VCAT on 11 June. I have read the other documents and it seems that there have been developments since then - - -
MR NAVARATNE: That’s correct.
HER HONOUR: - - - in that you might be seeking to appeal other orders made subsequently by VCAT. If that is what you wish to do, you have to seek leave to amend your originating motion.
MR NAVARATNE: Absolutely.
Regardless of exactly what orders that were mentioned in the written materials, Mr Navaratne expressed his desire to amend the originating motion to include the 8 July 2014 orders in the third VCAT application. There is no error of law evident from the associate judge’s statement in Other Matters with respect to order 1.
In relation to paragraph 2 of Other Matters, Mr Navaratne submitted that the associate judge fell into error by prefacing her decision to refuse his adjournment application by stating that the application for leave to appeal was bound to fail. He argued that the associate judge pre-judged the leave application, before determining the adjournment application. This submission is misconceived.
In considering whether to adjourn the application, the associate judge was required to balance the interests of the parties. The benefit to Mr Navaratne of an adjournment was to be balanced against the detriment to APPI. Given the unlikelihood of Mr Navaratne being able to satisfy a costs order against him, APPI’s detriment could not be reduced by a costs order. Her Honour was entitled to take into account whether there was any utility for Mr Navaratne in an adjournment when APPI would suffer detriment. Following argument, her Honour considered that any additional delay would be futile as Mr Navaratne had no prospects of success in his leave application and could not make profitable use of the additional time.
In the logical conduct of proceedings, it was necessary for the adjournment application to be determined first. Having refused the adjournment, the associate judge invited further submissions on the question of leave prior to her determination. Further submissions failed to alter her Honour’s preliminary conclusion that Mr Navaratne had no prospects of success in his leave application. The reasons for refusing Mr Navaratne’s adjournment application do not demonstrate that her Honour erred in any way.
Procedural fairness and natural justice
Mr Navaratne submitted that he was denied procedural fairness because his application for an adjournment was to seek legal advice, and the associate judge continued with the hearing after being informed by Mr Navaratne that the duty barrister was unavailable. This argument has no merit.
APPI submitted that the adjournment was requested to seek leave to amend the originating motion to incorporate the 8 July 2014 orders, and since the trial went ahead only in relation to the 11 July 2014 orders, this did not result in a want of procedural fairness. Mr Navaratne submitted there were other questions in relation to which he wished to seek legal advice, and his lack of legal representation resulted in him being unable to obtain a fair hearing.
Accepting Mr Navaratne’s submission as to his reasons for seeking an adjournment and for seeking to consult with the duty barrister (which were not specific), his contention was misconceived. Legal representation is not necessary to ensure procedural fairness and natural justice. In Gajic v Harb,[3] the appellant sought leave to appeal a decision of the County Court arguing that he had been unrepresented at trial. The Court said:
In a criminal trial, a right to representation is an important element of the right to a fair trial at common law. A court has jurisdiction to grant an adjournment or order a permanent stay of proceedings at a trial until such time as a person charged with a serious offence is provided with legal representation necessary for a fair trial.
However, as outlined by the High Court in New South Wales v Cannelis, ‘there is no suggestion that a court could exercise a similar jurisdiction in civil proceedings’. There is no basis to suppose that by representing himself in the civil trial before Judge Morrow that the applicant was denied procedural fairness.[4]
[3][2011] VSCA 132.
[4]Ibid [20]-[21] (citations omitted) referring to New South Wales v Cannelis (1994) 181 CLR 309, 328; see also Elliott v ASIC (2004) 10 VR 369 [162].
Similarly, in this case, I can not conclude solely from the fact that he was not legally represented that Mr Navaratne was denied procedural fairness in the hearing. The Court of Appeal considered the obligations of a judge with respect to unrepresented litigants in Downes v Maxwell Richard Rhys & Co Pty Ltd.[5] Osborn JA stated:
The right of an unrepresented party to be heard requires that he or she be able to understand the bases on which he or she might contest the evidence led in support of a claim against them, and the manner in which he or she might answer such a claim by adducing evidence in response.
The judge must provide reasonable advice and assistance to the unrepresented party in so far as is necessary for a fair trial while recognising and respecting the rights of the opposing party…[6]
[5](2014) 313 ALR 383.
[6]Ibid 389 [22]-[23].
The associate judge discharged this duty very effectively. The transcript reveals that her Honour took every effort to explain the submissions put on behalf of APPI to Mr Navaratne and to ensure that he had an opportunity to respond to each of the key issues on which her decision was based. Mr Navaratne took full opportunity to put his arguments. Further, there is no evidence that the opportunity to seek legal advice in relation to the 11 June 2014 orders would have made any difference to the result of his application.[7] Ultimately, his appeal had no prospects of success.
[7]In this respect, see Stead v State Government Insurance Commission (1986) 161 CLR 141, 145.
VCAT’s Power to make the Orders of 11 June 2014
Although not initially raised by Mr Navaratne, the associate judge considered whether VCAT had power to dismiss the first VCAT application on 11 June 2014. In her Honour’s view – as stated in paragraph 4 of Other Matters – under s 472 of the RTA, VCAT had sufficient power to make orders incidental to the exercise of jurisdiction. Mr Navaratne submitted that this finding was erroneous.
APPI, on the basis of a notice of contention, submitted that if the 11 June 2014 orders could not be made as ancillary to VCAT’s jurisdiction under s 472 of the RTA, the orders could be made under s 74 of the VCAT Act, in combination with cl 69 of Sch 1 of the VCAT Act. I will return to this submission shortly.
Concerning VCAT’s power to terminate a proceeding without a substantive hearing, Kyrou J said Martin v Fasham Johnson Pty Ltd:[8]
As the Tribunal is a creature of statute, it has no inherent jurisdiction. Although the Tribunal has some implied powers which are incidental to its express powers and functions, it does not have a general or ‘at large’ power to dispose of a proceeding against the wishes of the applicant in a manner akin to striking out or dismissal without conducting a hearing of the merits. The Tribunal can only take such action if there is a statutory provision which confers that power on it and the provision is validly invoked. The only provisions conferring such a power are ss 75, 76, 77 and 78 of the VCAT Act, and any applicable provision of the relevant enabling enactment.[9]
[8][2008] VSC 289.
[9]Ibid [27].
Although I was not referred to this decision, APPI contended that the 11 June 2014 orders could have been made under s 98(3) of the VCAT Act, which allowed the Tribunal to regulate its own procedure. In Martin, Kyrou J goes on to say:
During argument, Mr Laird, who appeared for Fasham Johnson, submitted that s 98(3) authorises the Tribunal to bring to an end a proceeding that is before it. I do not accept this submission. While s 98(3) authorises a myriad of procedural orders and actions, it does not authorise the Tribunal to dismiss, strike out, or otherwise dispose of the whole of such a proceeding in a manner akin to a dismissal, striking out or permanent stay except perhaps where this is sought by consent to give effect to a settlement agreement.[10]
[10]Ibid [36].
There are two sources of power for the 11 June 2014 orders. The first is the ‘ancillary’ power in s 472(1)(g) of the RTA. Mr Navaratne argued that an order dismissing an application under s 472 is not ‘ancillary’ to any other order under that section. In the ordinary sense, summary dismissal of a proceeding without a substantive hearing is not an order that is ‘ancillary or incidental’ to VCAT’s jurisdiction under s 472 of the RTA. However, here the dismissal was not granted ‘against the wishes’ of Mr Navaratne. Rather, on all the material before VCAT at the time, such a dismissal was plainly by consent or desired by Mr Navaratne. A consent order is ancillary or incidental to VCAT’s s 472 jurisdiction.
APPI submitted, correctly, that an alternative source of power was s 74 of the VCAT Act, which allows an applicant to withdraw an application before VCAT if granted leave to do so. Clause 69 of Schedule 1 of the VCAT Act provides that such leave is not required in matters under the RTA. Accordingly, after receiving Mr Navaratne’s letter stating that he wished to withdraw the proceedings, VCAT had power to make a withdrawal order without formally granting leave to Mr Navaratne under s 74. The issue was whether the orders made did, in fact, exercise such a power.
There is a distinction between withdrawing a proceeding and dismissing a proceeding. It is inappropriate, upon an applicant seeking to withdraw the claim, for a respondent to seek a summary dismissal of the claim instead.[11] It was arguable that the 11 June 2014 orders were not expressed to give effect to Mr Navaratne’s withdrawal of the proceedings.
[11]Philtom Developments Pty Ltd v Vero Insurance Limited [2005] VCAT 751, [7]; see also Pong Property Development Pty Ltd v Strangio [2005] VSC 217.
On the other hand, the orders of 8 July 2014 state ‘[t]he Tribunal further notes that the applicant withdrew [the first VCAT application] in a document dated 10 June 2014 but commenced [the second VCAT application] without first seeking the leave of the Tribunal’. While it may be said that an order withdrawing a proceeding should have been expressed differently, that is not a substantive defect.
In all of the circumstances, I am satisfied that VCAT had power to make the 11 June 2014 orders, notwithstanding these issues. The orders gave effect to Mr Navaratne’s desire to withdraw the proceedings and were not made against his wishes, albeit that they were made without a substantive hearing as to the merits of the application.
Lack of evidence before the associate judge
Mr Navaratne argued that there was insufficient evidence on which the associate judge could base her dismissal of his application for leave to appeal in the absence of a transcript or audio recording of the VCAT hearing on 11 June 2014. Again, this argument was misconceived.
Mr Navaratne bore the onus of proof on his application. If Mr Navaratne sought to rely on a transcript or audio recording of the VCAT hearing, he needed to produce such evidence and submit that the transcript supported his argument that VCAT fell into error. Such documents could have been (and ultimately were) obtained through formal processes put in place by VCAT. As the associate judge explained to Mr Navaratne on 20 August 2014, it is not for this court to require another court or tribunal to provide documents by subpoena.
After I reserved my decision, Mr Navaratne provided a copy of the transcript of the proceedings on 11 June 2014. Even if this document had been available to him at the hearing before the associate judge, it would not have advanced his contentions. The transcript confirms that the VCAT Member saw both his fax to VCAT and his communication with APPI, each of which stated his intention to withdraw his application. There was no room for either VCAT to APPI to entertain doubt that Mr Navaratne consented to his application being withdrawn.
Mr Navaratne submitted that he expected that the VCAT file from the first VCAT application would be available to the court, which is why he did not have a number of key documents with him. However, he produced a copy of the key letter, the fax sent to VCAT on 10 June 2014.
As I explained to Mr Navaratne in the hearing, that was not the court’s role to prove his case for him. The associate judge could not be expected to obtain and peruse a voluminous file in search of documents that may have been pertinent to his application for leave to appeal. Parties to an appeal are expected to file an appeal book. It is the applicant’s responsibility, not that of the court, to identify key documents on which they will rely and ensure that these documents are available at the hearing.
Failure to address question of bias
Mr Navaratne contended that the associate judge’s reasons were inadequate in that her Honour failed to address the question of bias in relation to the 11 June 2014 orders, which Mr Navaratne raised in his application for leave to appeal. The transcript of the hearing on 20 August 2014 shows no issue of bias properly raised by Mr Navaratne at the hearing. The only context in which Mr Navaratne sought to argue the question of bias was in relation to an affidavit that he sought to tender, which exhibited a ‘without prejudice’ letter from APPI’s solicitors.
The associate judge refused Mr Navaratne’s application to rely on the affidavit because the without prejudice communication was not rendered admissible by any of the exceptions to the privilege outlined in s 131 of the Evidence Act 2008 (Vic). The question of bias was not raised in any other context.
The associate judge’s conclusion in this respect was adequately reasoned and in refusing leave to appeal, her Honour was not required to give reasons addressing every error of law suggested by Mr Navaratne, as would have been required on the appeal had leave been granted. What was required was that the reasons adequately set out the basis on which her Honour considered that no error of law had been shown and that no significant injustice would be occasioned if leave to appeal were refused. Both of these aspects were adequately covered by the associate judge.
Whether VCAT should have adjourned the application with costs
Mr Navaratne submitted that the associate judge erred in failing to address the question of whether VCAT should have adjourned the application with costs, rather than dismissing it. Again, my remarks about the adequacy of her Honour’s reasons apply but I will say more.
Mr Navaratne argued that, based on his facsimile seeking to withdraw proceedings, it was open to VCAT to adjourn the hearing ordering that he pay APPI’s costs. I agree that this course was, in theory, open to VCAT on 11 June 2014, but only if Mr Navaratne had attended the hearing to seek an adjournment. All that VCAT had before it on 11 June 2014 was a facsimile from Mr Navaratne stating that he wished to withdraw his application. Mr Navaratne did not seek an adjournment in his facsimile. He subsequently failed to attend the hearing. In his absence, it was open to APPI to make submissions as to the form of the order to give effect to that withdrawal. VCAT cannot be expected to make orders that have not explicitly been sought by an absent party. There was no error in this respect in the VCAT order.
Finding of no significant injustice
In arguing that he has suffered significant injustice as a result of the 11 June 2014 orders, Mr Navaratne points to the factual consequences of those orders. He was ‘evicted’ from the Rydges Residence, his belongings were removed from the room, his access card was disabled and the room was left in an uninhabitable condition. The associate judge held that there would be no significant injustice if leave to appeal were refused. There are three reasons that support her Honour’s conclusion.
First, to the extent that Mr Navaratne again argued that there was insufficient evidence to justify a finding that he would not suffer significant injustice if leave to appeal were refused, he has misunderstood where the burden of proof lies. It is for the applicant for leave to appeal to demonstrate that he would suffer significant injustice if leave to appeal were refused. In the absence of ‘sufficient evidence’ to discharge his burden of proof, her Honour was correct in rejecting this argument.
Secondly, there was no significant injustice occasioned by refusal of leave to appeal due to the fact that Mr Navaratne got exactly what he sought. At the hearing on 20 August 2014, during the course of a discussion on whether VCAT had the power to make the 11 June 2014 orders, Mr Navaratne was invited to make a submission about s 74 of the VCAT Act. This exchange followed:
MR NAVARATNE: Right, yes. I mean, with all intents and purposes I did inform VCAT and the respondent. It was past business hours but, I mean, I was of the impression that VCAT would see this immediately at the start of business and then the registrar would notify me of the outcome.
HER HONOUR: How is that different to what occurred, in substance how is it different?
MR NAVARATNE: Well, a withdrawal would mean that – would mean I was never, I would never – I never had the – inclined to think that VCAT would actually set aside or dismiss. I just thought that there would be mediation.
HER HONOUR: But you withdrew the application, that’s the end of it isn’t it?
MR NAVARATNE: Well, when you withdraw an application it doesn’t mean that – I never assumed or thought that the respondent would actually evict me the next day because the day before, the 11th, the hearing we were conducting meetings. I never thought that the consequences would be this.
This exchange showed that Mr Navaratne did not understand the consequences of withdrawing his application. He did not comprehend that the withdrawal would end the proceeding and that APPI would be free to act as it wished in relation to his occupation of the Rydges Residence. Such a misunderstanding by Mr Navaratne did not amount to an error of law by VCAT. This is particularly so when Mr Navaratne did not then attend the hearing on 11 June 2014. Had he done so, he could have explained his understanding and his expectations as to how the matter would proceed from there, and VCAT might have responded to his actual intentions, but he did not attend, and the associate judge did not err by finding that there was no significant injustice on this basis. Put another way, the circumstances that Mr Navaratne complained constituted significant injustice were not caused by the 11 June 2014 order. They flowed from the exercise by APPI of its unchallenged rights.
Thirdly, the 8 July 2014 orders record that the first VCAT application was withdrawn by Mr Navaratne, and those orders set aside the 11 June 2014 orders. As a result, the 11 June 2014 orders are now devoid of effect and VCAT has held that it has no jurisdiction over the dispute between APPI and Mr Navaratne. This order was not challenged. An appeal would be futile.
APPI relied on Mulholland v Victorian Electoral Commission,[12] in which J Forrest J stated :
To my mind there is, however, a significant question as to whether there is any utility in permitting the appeal to proceed – in other words, does the consideration of “no substantial injustice” loom sufficiently large to refuse the application?
…
In my view there is no utility whatsoever in permitting Mr Mulholland to maintain an appeal in respect of the first decision. The party has been re-registered. This was what both Mr Mulholland and Mr Farrell desired. An order by this Court to set aside the Commission’s decision refusing Mr Mulholland’s application to re-register the party will not affect the outcome of the Commission’s decision based on Mr Farrell’s application. Indeed as I have said each sought the same end result.[13]
[12][2010] VSC 130.
[13]Ibid [19]-[21].
Mr Navaratne’s complaint of significant injustice results from his misunderstanding of the consequences of withdrawing his proceeding and failing to attend the hearing on 11 June 2014. However, an opportunity to fully argue the issues before VCAT followed on 8 July 2014 and VCAT determined that it had no jurisdiction to make the orders sought by Mr Navaratne. If leave to appeal were granted, the appeal itself would be futile. No significant injustice was occasioned.
Reliance on facsimile received after close of business
There was no merit in Mr Navaratne’s contention that VCAT mentioned in its orders that his facsimile was received after close of business. A document that is received after close of business on 10 June 2014 is taken to have been received by VCAT on the following business day – that is, 11 June 2014, under r 4.27 of the Victorian Civil and Administrative Tribunal Rules 2008 (Vic). VCAT did not err by taking this facsimile into account on 11 June because it was received after close of business on 10 June, and there was no error in the associate judge’s rejection of that submission.
Reliance on transcript
Finally, Mr Navaratne contended before me that the transcript of the hearing before the associate judge was incorrect and unreliable. Despite being given opportunities to do so, Mr Navaratne was unable to identify any specific mistake in the transcript (other than trivial typographical errors that do not alter the clear meaning of what was being said in context). In relation to the 11 June 2014 transcript, Mr Navaratne points to a section that has been transcribed as ‘indecipherable’, in what is clearly nothing more than Member Liden reading out the orders that were made on that day. There was no merit in this submission.
Both the court and VCAT entered into agreements with authorised transcription services for the supply of transcripts and, in the case of VCAT audio recordings, of hearings before them. These authorised transcription services agree to abide by strict guidelines in order to be authorised for these purposes and, absent explicit evidence of error in the transcripts so obtained, I see no utility in pointing to minor typographical evidence as supporting a submission that these transcripts are not reliable.
Conclusion
Associate Justice Lansdowne correctly refused leave to appeal from the orders of 11 June 2014. The appeal is dismissed.
---
0
3
0