Pham v Nguyen; Pham v VCAT - [2013] VSC 295

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

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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

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] VSC 295
Decision Date: 7 June 2013

CaseChat Overview and Summary

The matter before the court involved two proceedings brought by the applicant, Mr Pham, against the first respondent, Ms Nguyen, and the second respondent, VCAT. Mr Pham sought to challenge certain orders made by VCAT in proceedings initiated by Ms Nguyen against him. Both proceedings were heard in the Court of Appeal of the Supreme Court of Victoria. The court had to determine whether it should grant leave for Mr Pham to appeal against the VCAT orders, given that he had also sought a review of those orders under the Administrative Law Act 1978 (Vic).

The central issue before the court was whether the statutory mechanism provided under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) was the exclusive avenue for Mr Pham to challenge the VCAT orders. The court was required to consider whether Mr Pham's application for judicial review was an abuse of process, as he had already challenged the same orders in another proceeding. The court had to balance the overarching purpose of the Civil Procedure Act 2010 (Vic) with the specific statutory provisions that might otherwise preclude an appeal.

The court held that the application for review was an abuse of process because Mr Pham had already challenged the VCAT orders in another proceeding. The court emphasised that the legislature had provided a specific mechanism for appealing VCAT decisions under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). The court found that Mr Pham’s decision to pursue a review under the Administrative Law Act 1978 (Vic) was an abuse of the judicial process, as he should have adhered to the statutory appeal process. Consequently, the court refused Mr Pham leave to appeal against the VCAT orders.

No further orders were made by the court.

Orders