Pham v Nguyen; Pham v VCAT
[2013] VSC 295
•7 June 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2013 00092
| LE TUAN PHAM | Applicant |
| and | |
| MINH NGUYEN | Respondent |
| and | |
| ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Amicus Curiae |
S CI 2013 00093
| LE TUAN PHAM | Applicant |
| and | |
| VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | First Respondent |
| and | |
| MINH NGUYEN | Second Respondent |
| ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Intervener |
---
JUDGE: | EMERTON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 May 2013 | |
DATE OF JUDGMENT: | 7 June 2013 | |
CASE MAY BE CITED AS: | Pham v Nguyen; Pham v VCAT & Ors. | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 295 | |
---
ADMINISTRATIVE LAW – Leave to Appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) – Application for review under the Administrative Law Act 1978 (Vic) – Two proceedings challenging the same orders in the Victorian Civil and Administrative Tribunal – The Court’s requirement to give effect to the overarching purpose of the Civil Procedure Act 2010 (Vic) – Whether the legislature has provided a specific mechanism for appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) – Application for review struck out as an abuse of process – Leave to appeal refused – Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72 – Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320 – Department of Premier and Cabinet v Hulls [1999] 3 VR 331.
S CI 2013 00092
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | No appearance | |
| For the Amicus Curiae | Ms J Davidson | Victorian Government Solicitor’s Office |
S CI 2013 00093
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the First Respondent | Mr B Chen, Solicitor | Victorian Government Solicitor’s Office |
| For the Intervener | Ms J Davidson | Victorian Government Solicitor’s Office |
HER HONOUR:
Introduction
These proceedings – one an application for leave to appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the ‘appeal proceeding’) and the other an application for review under the Administrative Law Act 1978 (Vic) (the ‘review proceeding’) – arise out of orders made by the Victorian Civil and Administrative Tribunal in two applications heard together in the Residential Tenancies List:
(a) an application by the landlord (Ms Nguyen) to use the tenant’s bond for unpaid rent; and
(b) an application by the tenant (Mr Pham) for compensation of an unspecified amount up to $10,000.
On 13 December 2012, the Tribunal made orders that Ms Nguyen was entitled to the bond of $550.00 for unpaid rent from 1 October 2011, with no set-off. Mr Pham’s claim for compensation was dismissed. The Tribunal published detailed reasons for decision on the same day.
On 14 December 2012, Mr Pham sought a review of the orders made on 13 December 2012[1] pursuant to s 120 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the ‘VCAT Act’). Such a review enables the order or orders to be revoked or varied on the basis that the applicant did not appear and was not represented at the hearing. In essence, it involves the re-hearing of the matter. The Tribunal refused Mr Pham’s application for review on the ground that Mr Pham was present at the hearing at which the 13 December orders were made.
[1]Along with an interlocutory order made on 30 August 2012.
On 11 January 2013, Mr Pham filed a summons and affidavit to commence the review proceeding and an originating motion and summons to commence the appeal proceeding. In each of the review and appeal proceedings, Mr Pham seeks to have the orders of the Tribunal made on 13 and 14 December 2012 set aside.[2]
[2]Mr Pham also seeks to challenge the interlocutory order made by the Tribunal on 30 August 2012.
Mr Pham also seeks a variety of other orders. In the review proceeding, he seeks declarations, apparently pursuant to the Charter of Human Rights and Responsibilities Act 2004 (Vic) (the ‘Charter’), in respect of ‘of unlawfulness’ and writs of mandamus for ‘cruel and inhumane treatment of the person with a disability, as a means to discriminate based on race’.[3] In the appeal proceeding, Mr Pham also raises the Charter and seeks, among other things, an order that he was unlawfully discriminated against ‘by the defendants’ based on his race and/or disability.
[3]The proceedings refer to State and Commonwealth equal opportunity and anti-discrimination legislation.
The ‘defendant’ in the appeal proceeding is, of course, Ms Nguyen. However, I understand Mr Pham’s allegations of discrimination to be directed principally to Tribunal members and registry staff. In the review proceeding, Mr Pham seeks to name as respondents the individual Tribunal members who made the orders, the President of the Tribunal and its Principal Registrar, along with the Prothonotary of this court and the Attorney-General. He also seeks to add as applicants an Aboriginal elder, Mr Thorpe, and a Dr Tsigounis, about whom no information has been provided, but who has apparently experienced difficulties with the courts. Mr Pham has also sent notices to the Attorney-General and the Victorian Human Rights and Equal Opportunity Commission under the Charter and notices of a constitutional matter to other persons, which refer to an application to remove his ‘cause’ to the High Court or have it referred to the Court of Appeal pursuant to s 33 of the Charter.
Although not commenced in accordance with the Rules of the Court,[4] each proceeding duly came on before an Associate Justice for directions. The appeal proceeding was listed for directions, but adjourned. On 4 March 2013, Mukhtar AsJ made procedural orders in the review proceeding which, among other things, removed the Tribunal members and the Principal Registrar as respondents,[5] added Ms Nguyen as a respondent, refused Mr Pham’s application to join additional respondents and required Mr Pham to file an affidavit giving a ‘far greater explanation’ of a number of matters, including the grounds on which he seeks an order for review and the identification of the decisions in question. Associate Justice Mukhtar published written reasons for these orders.
[4]Supreme Court (General Civil Procedure) Rules 2005 (Vic).
[5]The names of the President of the Tribunal, the Supreme Court Prothonotary and the Attorney-General having been previously removed by the Supreme Court Registry.
By notice of appeal dated 6 March 2013 and filed 20 March 2012, Mr Pham appealed from the orders made by Mukhtar AsJ in the review proceeding.
Mr Pham’s notice of appeal from the orders of Mukhtar AsJ does not set out grounds of appeal, but contains largely incoherent and, insofar as they can be understood, unsubstantiated and unfounded allegations of a serious kind against judicial officers and registry staff.[6] If one puts the offensive hyperbole to one side, however, and digs deep into the notice to see if there is anything that could possibly pass as a ground of appeal, Mr Pham’s complaint appears to be that, having regard to the terms of ss 3 and 11 of the Administrative Law Act, Mukhtar AsJ erred in not allowing Mr Thorpe and Dr Tsigounis to be applicants in the review proceeding as persons ‘affected’ by the Tribunal’s decision and because it ordered that the Tribunal members be removed as respondents, notwithstanding that s 3 of the Administrative Law Act refers to ‘the tribunal or the members thereof’.
[6]Namely, that they have engaged in abuse of process, abuse of a position of public trust ‘in order to vilify aborigines and refugees’, incited racial hatred, lied, attempted to pervert the administration of justice and so on.
The appeal from the orders of Mukhtar AsJ in the review proceeding and the adjourned directions hearing in the appeal proceeding came on for hearing in the Practice Court on 3 May 2013. Ms Nguyen did not appear. The Tribunal was represented by the office of the Victorian Government Solicitor, I understand, for the limited purpose of assisting the Court in the review proceeding, given that the issue of the parties to the proceeding remained alive as a result of the appeal from the orders of Mukhtar AsJ. The Attorney-General appeared by counsel and applied to be joined in the review proceeding as an intervener. The Attorney-General also applied for leave to appear in the appeal proceeding as amicus curiae.
The Court granted leave to the Attorney-General to intervene in the review proceeding as a party and to appear in the appeal proceeding as amicus curiae as there would otherwise have been no contradictor in either proceeding. Furthermore, it was apparent that the proceedings were being conducted by Mr Pham in an utterly shambolic manner, with little or no attention to precisely what it was that he asked the Court to do and why. By 3 May 2013, Mr Pham had filed seven affidavits,[7] which were replete with attacks on the integrity of the Court, the Tribunal, its members and officers, but devoid of any clear grounds for review or grounds of appeal, having regard to what actually occurred at the Tribunal or the reasons for decision given by the Tribunal. In the circumstances, the Court concluded that it would be assisted by the Attorney-General’s submissions and leave was granted.
[7]Made on 11 January, 27 February, 1 March, 6 March, 10 April, 11 April and 16 April 2013.
As a preliminary matter, the Court inquired of Mr Pham why he had brought two proceedings challenging the same orders of the Tribunal. His answer, although not clear, indicated that he saw the review proceeding as a vehicle for the Court to sanction Tribunal members and registry staff, and more generally to vindicate the rights of refugees, persons with a disability and Aboriginal people, by reference to the Charter and other human rights instruments, as well as pursuant to the Tribunal’s own service charter.
Having regard to the requirement in the Civil Procedure Act 2010 (Vic) that civil proceedings are to be managed and conducted in accordance with the overarching purpose and to the broad powers of the Court to give effect to the overarching purpose,[8] the Court informed the parties that before hearing the appeal from the orders of Mukhtar AsJ in the review proceeding, it wished to hear argument as to whether one, or indeed both, of the proceedings ought to be dismissed. Counsel for the Attorney-General foreshadowed that the Attorney-General would submit that neither proceeding should go forward, as there was no prima facie case for relief in the review proceeding and leave should not be granted in the appeal proceeding. In order to ensure that Mr Pham understood the nature of orders that might be made in the proceedings and had time to properly consider his position and prepare a response to the Attorney-General’s submission, the Court made procedural orders for the filing and exchange of written submissions. Both proceedings were adjourned to 15 May 2013.
[8]Section 47(1).
On 10 May 2013, the Attorney-General filed written submissions, submitting that as the review and appeal proceedings challenged the same Tribunal orders, the matters complained of and the relief sought would be more properly dealt with in the appeal proceeding. The Attorney-General submitted that the review proceeding should be struck out as an abuse of process. In respect of the appeal proceeding, the Attorney-General submitted that the Court should refuse leave to appeal on the basis that there was no real or significant argument to be put that the Tribunal’s decision was affected by error of law, that it would not be just to grant leave given the numerous opportunities Mr Pham had had to present his case in the Tribunal and that no substantial injustice would arise in not reversing the Tribunal’s decision.
Mr Pham responded with a submission dated 13 May 2013 in which he made a range of further applications (in particular, applications for a series of questions on the interpretation of the Charter to be referred directly to the Court of Appeal). Mr Pham generally asserted that the Attorney-General’s submissions were incompetent and defective, sought orders for Mr Thorpe, Dr Tsigounis and the Victorian Equal Opportunity and Human Rights Commission to be added as parties,[9] and submitted that the review and appeal proceedings should be heard and determined separately so as not to confuse the judge.
[9]The latter having previously indicated that it would not seek to intervene in the proceedings by letter to the Court dated 15 April 2013.
The Victorian Government Solicitor, on behalf of the Tribunal, filed an affidavit of Bruce Chen, affirmed on 10 May 2013, in which Mr Chen set out the course of the proceedings in the Tribunal in 2012 and exhibited relevant documents.
Background
The Tribunal’s reasons
In both the review proceeding and the appeal proceeding, Mr Pham seeks orders setting aside the Tribunal’s orders made on 13 December 2012 (the ’13 December orders’) and the order made on 14 December 2012 (the ‘14 December order’) refusing Mr Pham’s application for a review (or re-hearing) pursuant to s 120 of the VCAT Act.
The 13 December orders finally disposed of Mr Pham’s claim for compensation from Ms Nguyen and Ms Nguyen’s application to use Mr Pham’s bond for rent owing. The Tribunal provided detailed written reasons for the 13 December orders.[10] The Reasons record the long history of the dispute between Ms Nguyen and Mr Pham arising from Mr Pham’s occupation of Ms Nguyen’s garage in 2011. It is necessary to describe some of that history in order to understand the Reasons.
[10]Nguyen v Pham and Pham v Nguyen (Unreported, Victorian Civil and Administrative Tribunal, Member Wentworth, 13 December 2012) (‘Reasons’).
In July 2011, while still living in Ms Nguyen’s garage, Mr Pham formed the view that the premises were not habitable, and filed his first compensation claim in the Tribunal. Ms Nguyen filed the first of a number of possession applications claiming rent alleged to be owing. By late August 2011, there were three separate applications and cross-applications before the Tribunal. However, on 30 August 2011, the Tribunal made an order that was expressed to record a settlement reached between the parties that Ms Nguyen would waive rent arrears (which had accrued since 30 June 2011) and allow Mr Pham up to one month to vacate, with rent to be waived for that period also (the ‘August 2011 order’).
The August 2011 order provided that if Mr Pham failed to vacate or remove all of his goods by 30 September 2011, Ms Nguyen could apply for possession or a warrant.
However, two days after the August 2011 order was made, on 1 September 2011, Ms Nguyen filed a fresh application for possession based on an earlier notice to vacate. The application was made under s 245 of the Residential Tenancies Act, which allowed the landlord to serve a notice to vacate if the premises were unfit for human habitation or had been destroyed totally or to such an extent as to have been rendered unsafe.
Mr Pham’s response was to remain in the garage after 30 September 2011, to fight the possession application and to seek to set aside the August 2011 order based on what he contended was a ‘violation’ of that order by Ms Nguyen when she made the application for possession. The Tribunal made the possession order in November 2011, having found that it did not violate the August 2011 order.
Mr Pham has since made a number of unsuccessful attempts to set aside the August 2011 order.
In the proceeding which is now under review and on appeal, the Tribunal concluded that Mr Pham was again seeking to set aside the August 2011 order and re-agitate the compensation claims recorded as settled in that order. Apart from the fact that the August 2011 order recorded a settlement which could not be re-opened, Mr Pham had already unsuccessfully applied to this Court for leave to appeal the August 2011 order.[11] Moreover, on 29 November 2011, this court refused leave to appeal the possession order and the Court of Appeal refused leave to appeal from the refusal of leave.
[11]Such leave was refused by Randall AsJ on 17 October 2011.
The Tribunal concluded that Mr Pham was estopped from agitating the issue of whether Ms Nguyen violated the August 2011 order.[12] As the August 2011 order settled Mr Pham’s claims for compensation arising out of his occupation of the room to the date of the order, he could not now re-agitate those claims for compensation.[13]
[12]Reasons [44]. At Reasons [45], the Tribunal said that even if Mr Pham was not estopped, it would reach a similar conclusion to the Tribunal’s earlier finding on the matter expressed in its reason for decision in November 2011.
[13]Reasons [54].
As to Ms Nguyen’s claim for unpaid rent, the Tribunal found merit in Mr Pham’s submission that where premises were unfit for human habitation, the landlord should not be entitled to rent. However, the Tribunal concluded that a total reduction of rent was inappropriate in circumstances where Mr Pham, having agreed to move out by 30 September 2011, then refused to do so and remained in occupation until late November 2011.
The course of the Tribunal proceedings
The history of the Tribunal proceedings is set out in Mr Chen’s affidavit. It is also described in some detail in the Tribunal’s reasons.
The proceedings were first listed for hearing on 20 March 2012. Mr Pham did not appear on that day and the Tribunal ordered that the bond be paid to Ms Nguyen and that Mr Pham’s compensation claim be dismissed.[14] Mr Pham applied for a review of the orders made on 20 March 2012. The application was heard on 1 May 2012 and dismissed because Mr Pham again did not appear.[15]
[14]Ibid [18]
[15]Ibid [22]
Mr Pham then applied for and was granted leave to apply for a second review.[16]
[16]Ibid [23]
On 15 May 2012, the Tribunal (Member Wentworth) allowed the review and re-heard Ms Nguyen’s application for the bond. The re-hearing of Mr Pham’s application for compensation was adjourned ‘to allow sufficient time for his rather complex claims to be heard’.[17]
[17]Ibid [24]
On 17 July 2012, the Tribunal (Member Wentworth) heard evidence and submissions from both parties in respect of Mr Pham’s compensation claim. The Tribunal also received written submissions from Mr Pham that had been filed between the two hearings.[18]
[18]Ibid [25]
The evidence concluded on 17 July 2012, but Mr Pham sought an adjournment. The Reasons and the order that was made on the day record that the adjournment was granted so that Mr Pham could call two witnesses – Mr Trong and Mr Drakopoulos of Greater Dandenong Council – who had issued building notices to Ms Nguyen. The Tribunal told Mr Pham that the inspection reports and the fact that the garage was unfit for human habitation had been accepted by the Tribunal and were not in dispute.[19] Nevertheless, the Tribunal granted Mr Pham’s application for adjournment and adjourned the proceedings to a date to be fixed ‘at Melbourne on a Tuesday at 10.30 am to be heard by E Wentworth Member’.[20]
[19]Ibid [26].
[20]Order of Member Wentworth made 17 July 2012.
The Tribunal also ordered that Mr Pham notify the witnesses of the next hearing date and that the principal registrar serve the notice of the next hearing date by email to Mr Pham at a specified email address.
The proceedings were re-listed for 30 August 2012, which was a Thursday. Mr Pham did not appear. In the circumstances, Member Wentworth decided that she would determine the proceedings on the evidence given by the parties at the hearings on 15 May 2012 and 17 July 2012 and reserve her decision.[21] The Tribunal made orders excusing Mr Trong and Mr Drakopoulos from attendance and reserving its decision.
[21]Reasons [28].
Mr Pham initially said that he did not receive notice of the 30 August hearing date. However, it became clear that he did receive notice of it, because he not only provided a medical certificate to the Tribunal on that day stating that he had attended Sunshine Hospital and was unfit to attend work from 30 August to 1 September 2012, but complained that the Tribunal had listed two of his other matters for the following day and that he could not manage three matters over two days.
Mr Chen exhibited an email dated 30 August 2012 from Mr Pham to the Tribunal seeking a re-hearing of the proceedings and attaching the medical certificate from the Sunshine Hospital.[22] Mr Pham said he could not recall the email and doubted its authenticity. However, he did recall sending an email to the Tribunal in very similar terms on 7 September 2012, which referred to his email request on 30 August 2012 and again sought a re-hearing of the proceedings.[23] The email dated 7 September 2012 was also exhibited to Mr Chen’s affidavit.
[22]Affidavit of Bruce Chen affirmed 10 May 2013, Exhibit BC-4.
[23]Ibid Exhibit BC-5.
It is apparent, therefore, that from 30 August 2012, Mr Pham was aware that he needed to take some steps to ensure that any further matters that he wished to put before the Tribunal in support of his claim were heard.
Mr Pham told the Court that he received a phone call from the Tribunal offering him a re-hearing. He could not say when that was.
Mr Chen has exhibited a letter dated 29 October 2012 from the Tribunal registry to Mr Pham referring to a telephone conversation on 26 October 2012 in which Mr Pham was advised that a review application was not appropriate because no final orders had been made, but that the proceedings could either be listed for further hearing or he could make further submissions in writing. The letter of 29 October 2012 asked Mr Pham to advise by 5 November 2012 if he wished to take up either of these options, otherwise the matter would proceed to a decision.[24]
[24]Reasons [31].
There was no response from Mr Pham.
The letter of 29 October 2012 was sent by express post to the address given on Mr Pham’s application to the Tribunal. Mr Chen deposes that he has been advised by Australia Post that it was delivered to that address the following day, 30 October 2012. However, the letter was returned to the Tribunal on 14 December 2012 (the day after the 13 December orders were made and some two and a half months after the letter was delivered) with the handwritten notation ‘Not here’.
Mr Pham told the Court that he did not receive the 29 October 2012 letter and that he had repeatedly asked the Tribunal to communicate with him by email.
Member Wentworth ultimately made the 13 December orders and published her reasons on the same day. As is usual in the Tribunal, no hearing was convened for the handing down of the decision or the making of the orders. They were sent to the parties by mail.
Mr Pham told the Court that he did not receive the 13 December orders or the Reasons. He claimed not to have seen either until copies were given to him at the hearing in the Practice Court on 3 May 2012. Given that he had by that stage instituted two proceedings in this court, attended a lengthy and acrimonious directions hearing before Mukhtar AsJ, brought an appeal from the interlocutory orders made by Mukhtar AsJ on that day and filed no less than seven affidavits, along with notices under the Charter and (it appears) the Judiciary Act1903 (Cth) to the Attorneys-General of other States and Territories, I find the proposition that he had not laid eyes on the 13 December orders or the Reasons quite remarkable. It raises serious questions about Mr Pham’s motive for bringing these proceedings.
On 14 December 2012, Mr Pham made application to the Tribunal for review under s 120 of the VCAT Act. That application was refused on the ground that Mr Pham was not absent from the hearing at which the 13 December orders were made.
Should the review proceeding be dismissed?
In the review proceeding, Mr Pham’s summons dated 11 January 2013 seeks review of the 13 December orders and the 14 December order under s 3 of the Administrative Law Act and s 39 of the Charter. Mr Pham also seeks a variety of orders for alleged breaches of his human rights under both the Charter and the Equal Opportunity Act2010 (Vic) and an order for mandamus for cruel and inhumane treatment of a person with a disability, ‘as a means to discriminate based on race.’
It is not clear which of the Tribunal’s actions Mr Pham says constitute ‘cruel and inhumane’ treatment or breach his human rights.
Mr Pham’s affidavit material contains the following complaint(s) as to how the 13 December orders were made:
(a)At the hearing on 17 July 2012, he asked that the next hearing not be scheduled for Wednesdays or Thursdays, due to a work commitment, but it was listed on a Thursday.[25]
(b)He did not receive notification of the hearing on 30 August 2012 via email in accordance with the orders of the Tribunal made on 17 July 2012.[26]
(c)The Tribunal determined the proceeding when Mr Pham was not present for the hearing on 30 August 2012;[27]
(d)He did not receive ‘Written Statements of Reason’ for the hearing on 30 August 2012;[28]
(e)He provided a medical certificate for the hearing on 30 August 2012;[29]
(f) He was denied the opportunity to present his case in a fair and proper manner.[30]
[25]Affidavit of Le Tuan Pham sworn 11 January 2013, [8] – [9].
[26]Ibid [10] – [11].
[27]Ibid [12].
[28]Ibid [14].
[29]Ibid [12].
[30]Ibid [20].
In respect of the 14 December order, Mr Pham alleges that:
(a) the Tribunal failed to address or consider medical reports and a history of health and medical reports;[31]
(b) The Tribunal failed to consider facts or evidence, presented orally or in writing;[32] and
(c) The Tribunal’s reasons were inconsistent.[33]
[31]Ibid [16].
[32]Ibid [17].
[33]Ibid [18].
By his originating motion in the appeal proceeding, Mr Pham seeks orders that :
(a)the 14 December order be set aside;
(b)the 13 December orders and the interlocutory order made on 30 August 2012 be set aside.
Mr Pham contends that the Tribunal made unspecified errors of law, that he was denied procedural fairness, that one or more of the decisions was not reasonable, and that there was little evidence to support it. He asks the Court to make the order that he says the Tribunal should have made, which is that he was unlawfully discriminated against by ‘the defendants’ based on race or disability.
In his affidavit made on 27 February 2013 Mr Pham complains that:
(a) He offered the Tribunal medical records, which were refused;[34]
[34]Affidavit of Le Tuan Pham sworn 27 February 2013 [4].
(b) He wasn’t at the hearings on 30 August 2012 or 13 December 2012;[35]
[35]Ibid [12] and [13].
(c) He didn’t receive the 13 December orders;[36]
[36]Ibid [7].
(d) On 17 July 2012, he asked for the next hearing date not to be on a Wednesday or Thursday and it was rescheduled for a Thursday;[37]
[37]Ibid [8] – [9].
(e) He did not receive email notification of the 30 August 2012 hearing date as ordered by Member Wentworth;[38]
(f) He didn’t receive any reasons for decision for the hearing on 30 August 2012;[39]
(g) Both Deputy President Lulham and Member Wentworth denied him a fair hearing.[40]
[38]Ibid [11].
[39]Ibid [14].
[40]Ibid [20].
Mr Pham also alleges discrimination and vilification. He invokes the Charter in respect of the conduct of Tribunal registrars, members, senior members and deputy presidents, and in respect of Associate Judges of this court.
It is clear that the two proceedings attack the same orders of the Tribunal and make the same complaints about the processes by which the impugned orders were made and about Mr Pham’s treatment by the Tribunal more generally. Mr Pham’s complaint in the review proceeding that for various reasons he did not receive a fair hearing from Member Wentworth or from Deputy President Lulham is also the subject-matter of the appeal proceeding. In my view, the proceedings overlap and the matters complained of by Mr Pham in the review proceeding are all matters that are capable of being raised, and indeed have been raised, in the appeal proceeding.
It is well established that an appeal under s 148 of the VCAT Act is in the nature of a proceeding for judicial review. Although s 148 uses the word ‘appeal’, the Court is asked to exercise original, not appellate jurisdiction.[41] The Court must determine whether the Tribunal made errors of law that vitiated its order. Insofar as Mr Pham believes that seeking an order for mandamus under the Administrative Law Act will give him latitude to raise grounds that he could not raise in an appeal under s 148 of the VCAT Act, he is wrong. Furthermore, I am unpersuaded that the terms of s 3 of the Administrative Law Act permit any person who feels victimised by the legal system in Australia to become an applicant in the review proceeding or that individual members of the Tribunal are proper or necessary parties to the review proceeding.
[41]Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72, 79; Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320, 331-2 and 351.
The legislature has provided a specific mechanism by which the decisions of the Tribunal can be challenged; as this court has previously observed, the legislature has expressed its intention that challenges to the legal validity of an order of the Tribunal should be made under s 148.[42]
[42]National Trust of Victoria v Victorian Civil and Administrative Tribunal (2010) 30 VR 103 114. The Tribunal has also observed that appealing under s 148 of the VCAT Act is generally the most convenient, expeditious and appropriate method of challenging a Tribunal decision: Buttigieg v Melton SC (No 2) (2004) 22 VAR 23, 26-7 (per Morris P).
As the review proceeding requires the Court to deal with the questions and allegations that are raised on appeal from the Tribunal’s orders in the appeal proceeding, the review proceeding is superfluous and should be dismissed as an abuse of process.
Aside from the fact that the review proceeding is unnecessary, I have formed the view that it was brought for a collateral purpose, namely, to provide an ‘all purpose’ vehicle for Mr Pham to gather around him and to have joined as parties to the proceeding a number of disgruntled persons who wish to make complaint about the administration of justice in Australia (or Victoria) generally. Mr Pham made speeches to the Court alleging discrimination and racism by Tribunal members and registry staff, and has sought writs of mandamus to command public officials, pursuant to s 38(1) of the Charter to act or not to act in a variety of ways.[43] However, the declarations sought and questions raised in Mr Pham’s submissions are not referrable to any particular act or omission by the Tribunal; rather, they are of a general character based on broadly articulated human rights and freedoms and on historical injustices, none of which has been connected to the facts and issues in or arising from the Tribunal proceedings.
[43]Transcript of Proceedings, Pham v Nguyen and Pham v VCAT & Ors (Supreme Court of Victoria, S CI 2013 00092 and S CI 2013 00093, Emerton J, 15 May 2013) 63.
Mr Pham filed a further document described as an ‘affidavit and submission’ on 17 May 2013, that is, after the hearing had concluded. Mr Pham submitted that he was challenging the ‘integrity, competence, independence and impartiality’ of the Tribunal and it members (and/or the Supreme Court) pursuant to the Administrative Law Act, the Charter, ‘the Race Discrimination Act, Disability Discrimination Act (both State and Commonwealth) and the Human Rights and Equal Opportunity Commission Act 1986 (Cth) and racial vilification Amendments’. Unusually, Mr Pham did briefly refer to the proceedings in the Tribunal, although only to allege that the Tribunal made an order on 3 August 2013 (sic) concerning a possession order that contradicted other Tribunal decisions (in that the Tribunal’s reasons indicated that ‘there is NO VALID Notice to Vacate’), that there has been a breach of the August 2011 order (although he does not specify the nature of the breach), and that the judgment made on 13 December 2013 (sic) was ‘invalid and incompetent’ in that ‘the judgment or conclusion does not correspond nor is it validated by reasons and or facts or material evidence’.
Once again, it is difficult to know what to make of this. For example, there is no finding in the Tribunal decision to which Mr Pham refers[44] that there was no valid notice to vacate. Although Mr Pham invites the Court to contact him for clarification should his English prove too difficult to understand, the problem lies not with his English, which is perfectly adequate, but in the coherence of the arguments that he advances.
[44]Pham v Jones & Anor (Anti-Discrimination) [2012] VCAT 1161.
This ‘affidavit and submission’ does nothing to persuade me that the review proceeding should be allowed to continue in tandem with the appeal proceeding, or at all.
The review proceeding will be dismissed as an abuse of process pursuant to rule 23.01(1)(c) of the Supreme Court (General Civil Procedure) Rules 2005.
Furthermore, the review of the 14 December order is futile, given that the orders that Mr Pham sought to have re-opened by the review application are now on appeal to this court.
Should leave to appeal be granted?
The appeal proceeding cannot go forward without the grant of leave under s 148(1) of the VCAT Act.
The criteria for the grant of leave to appeal under s 148 of the VCAT Act were considered in Secretary of the Department of Premier and Cabinet v Hulls.[45] Relevantly, the applicant must identify a question of law arising out of the Tribunal’s decision, but need not establish that the Tribunal erred. Rather, the applicant must establish that the there is a real or significant argument to be put that error exists. The public or general importance of a question may also be a relevant consideration. However, whether leave should be granted must always depend on the justice of the particular case.
[45][1999] 3 VR 331, as reaffirmed in Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48, 55-6.
In this case, so far as I can tell from the submissions made by Mr Pham, the error contended for is a breach of natural justice arising from the fact that he was not given notice by email of the adjourned hearing date of 30 August 2012 and was not given the opportunity to put his case fairly and fully before the Tribunal made its decision. Mr Pham also contends that he was denied procedural fairness by the Tribunal when it refused his application for review under s 120 of the VCAT Act because the Tribunal did not take into account Mr Pham’s medical certificates and wrongly found that he was present at the hearings on 30 August and 13 December 2012.
In my view, there is no real or significant argument to be made that the Tribunal denied Mr Pham procedural fairness or otherwise erred in its treatment of him or his applications.
It may be that Mr Pham was not informed by email of the 30 August hearing date. However, he does not contend that he did not know about the hearing date. To the contrary, he sought to explain his failure to attend by providing medical certificates and by complaining that he asked for a hearing on a day other than a Thursday. He later said that the Tribunal had scheduled hearings in other cases in which he was involved for the following day and that he could not cope with a hearing on 30 August 2012.
I infer that Mr Pham had notice of the 30 August 2012 hearing date. It was therefore necessary for to him to explain his absence to the Tribunal and to seek a further hearing date.
I am satisfied that Mr Pham was informed by the Tribunal on two occasions that upon request by him, it would schedule a further hearing or accept written submissions from him and would not make its decision ‘in the interim’.
While there may be some question as to whether Mr Pham actually received the Tribunal’s letter dated 29 October 2012, Mr Pham says that he received a phone call from the Tribunal offering him a ‘re-hearing’. However, he says that nothing came of this offer.
Whether or not Mr Pham received the Tribunal’s letter of 29 October 2012, it is clear that he had a telephone conversation about scheduling a further hearing date. In accordance with the procedure contemplated in the 29 October letter, I consider it likely that Mr Pham was told that he could choose to have a further hearing or file written submissions, but that he had to let the Tribunal know how he wished to proceed by a certain date.
Even if he did not receive this advice, the Tribunal delayed its determination of his and Ms Nguyen’s applications until mid-December 2012, giving Mr Pham ample opportunity to seek a further hearing. Mr Pham is no stranger to the Tribunal, and it was open to him to contact the Tribunal at his convenience to request a further hearing.
Furthermore, even if Mr Pham did not feel capable of seeking a further hearing on his own initiative, he had already had a full opportunity to put his case on the first two hearing dates. All that remained was for him to call the witnesses from the Council which, as the Tribunal explained to him, was unnecessary as their reports were in evidence, were not challenged and the Tribunal accepted that the premises were not habitable.
Of course, Mr Pham now says that he intended to call a number of other witnesses, and that he was denied this opportunity. Be that as it may, it could not have made any difference to the outcome of the proceedings in the Tribunal. The Tribunal refused Mr Pham’s application on the basis that he was estopped from re-agitating matters that had already been determined. The calling of further evidence could not have affected this result. None of Mr Pham’s originating motions, summonses, affidavits or notices challenge the Tribunal’s decision that he was estopped from agitating his compensation claim because of the settlement, the August 2011 order and determinations made in earlier proceedings.
In the light of the above, Mr Pham could not on any view be said to have been denied procedural fairness by the Tribunal. He was given every opportunity to put his case.
Mr Pham’s repeated invocations of his rights under the Charter do not change this position.
Mr Pham sought to have a series of questions on the interpretation of the Charter referred to the Court of Appeal.[46] His application was refused and he was told that the Court would deal first with any questions arising under the Charter.
[46]These applications for referral were made pursuant to s 33 of the Charter.
The Charter questions arising in the appeal proceeding concern Mr Pham’s right to a fair trial under s 24 of the Charter and his right to recognition and equality before the law under s 8. He contends that the Tribunal acted incompatibly with these rights in breach of s 38(1) of the Charter.
Section 8 of the Charter provides:
(1)Every person has the right to recognition as a person before the law.
(2) Every person has the right to enjoy his or her human rights without discrimination.
(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.
Mr Pham made allegations of racial discrimination in both the Tribunal proceedings and in the review and appeal proceedings in this court. When asked to provide examples or specify instances of racial discrimination in the Tribunal proceedings, Mr Pham was unable to point to any particular event, and said, ‘I think experience in the world is my defence I guess.’[47]
[47]Transcript of Proceedings, Pham v Nguyen and Pham v VCAT & Ors (Supreme Court of Victoria, S CI 2013 00092 and S CI 2013 00093, Emerton J, 15 May 2013), 91.
Mr Pham’s allegations of racism directed to the Tribunal and its employees are unsubstantiated. They appear to be founded on him not being given everything he wanted, including a successful outcome in his application for compensation from Ms Nguyen. It may be that Mr Pham did not receive a hearing on a Tuesday as he requested and/or that the Tribunal did not send him notices by email on each occasion as he said he requested. These were special considerations or measures requested by Mr Pham to accommodate his particular work commitments and living arrangements. In Mr Pham’s view, any administrative oversight or lack of responsiveness to his particular requests is necessarily a function of racism. However, even if there was administrative oversight or a lack of responsiveness to Mr Pham’s requests, there could be many different explanations for it. Having regard to the sweeping nature of the allegations made by Mr Pham, it is not open to infer that any failure by the registry to accommodate him as he requested amounts to racial discrimination (or racial vilification).
Mr Pham also made allegations of discrimination on the grounds of disability. These allegations were not developed. It is not clear whether Mr Pham’s alleged disability is health related or related to his command of English (or to a combination of both). In any event, the matters of which he complains have not been linked to discrimination on either of these grounds.
In my view, there is nothing in any of Mr Pham’s submissions to suggest that he did not receive the equal protection of the law in the conduct and disposition of the Tribunal proceedings. If anything, the Tribunal seems to have gone out of its way to accommodate Mr Pham.
Mr Pham further submitted that in breach of his rights under the Charter he did not receive a fair hearing before the Tribunal. Section 24 of the Charter provides:
(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
In determining whether Mr Pham received a fair hearing, the same considerations will be relevant as for an alleged denial of procedural fairness. Mr Pham’s claim that he did not receive a fair hearing for the purposes of s 24 of the Charter would fail for the same reasons as the claim that he was denied procedural fairness. Having regard to the manner in which Bell J identified the duty of a judge to assist a self-represented litigant in Tomasevic v Travaglini,[48] I have come to the conclusion that there is no real or significant argument to be put that the Tribunal breached s 24 of the Charter in its treatment of Mr Pham.
[48](2007) 17 VR 100, in particular the principles that his Honour identified at 129-30.
I note further that Mr Pham complains that he was not given reasons for the orders made on 30 August 2012, and that those orders were made in breach of s 117 of the VCAT Act. In my view, there was no requirement for the Tribunal to give reasons for its order of 30 August, because all it did by that order was excuse the witnesses who had been summonsed and reserve its decision. Furthermore, the order was not a final order and s 117 did not apply.
There is no real or significant argument to be put that the Tribunal denied Mr Pham procedural fairness or otherwise erred in its hearing and disposition of the proceedings before it. Mr Pham’s arguments based on the Charter have no prospect of success. Leave to appeal the 13 December orders is refused, as the Tribunal’s decision is not attended by sufficient doubt to justify the grant of leave.
Finally, the appeal from the 14 December order made by Deputy President Lulham would appear to have no purpose, given that the orders that Mr Pham sought to have re-opened are now on appeal.
In any event, the Tribunal could not order a review of the 13 December orders under s 120 of the VCAT Act if Mr Pham appeared at the ‘hearing at which the order was made’. Although the orders were made on 13 December 2012, there was no hearing on that date. The orders emanated from hearings on 15 May 2012 and 17 July 2012. Mr Pham was present at those hearings.
In my view, there is no real or significant argument to be put that the Tribunal erred in making the 14 December order .
Leave to appeal is refused.
5
0