Shah v Vega

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 2704

TWINKLE SHAH	Plaintiff
v
CARLOS ANDREAS VEGA	First Defendant
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	Second Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	4 September 2018
DATE OF JUDGMENT:	18 October 2018
CASE MAY BE CITED AS:	Shah v Vega & anor
MEDIUM NEUTRAL CITATION:	[2018] VSC 562

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JUDICIAL REVIEW AND APPEALS – Application pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 for judicial review of a VCAT decision in respect to a tenancy dispute – Landlord applied to VCAT for compensation for alleged damage to premises by tenant – Procedural fairness – Whether landlord was denied a fair hearing – Landlord not provided with an interpreter at VCAT hearing – Non-English speaking background – Landlord self-represented and made extensive submissions at VCAT and in this Court – Yahome Pty Ltd v Delic [2013] VSC 52, referred to – Landlord’s difficulties with English were not so severe or so obvious as to warrant an adjournment to secure an interpreter – Landlord not materially disadvantaged by the absence of an interpreter – Whether Member failed to have regard to relevant evidence – No basis for judicial review insofar as landlord’s claim concerns Member’s factual findings – Whether landlord given proper opportunity to present her evidence – Whether Member erred in calculation of depreciation – Member not bound to follow ATO guidelines – No error of law arises from any ground of review – Proceeding constituted an attempt to re‑litigate the Member’s factual findings – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared in person
For the Defendant	Mr B Devanny	Velos & Velos Lawyers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

The proceeding at VCAT.................................................................................................................. 6

Grounds of review........................................................................................................................... 25

Was the landlord denied a fair hearing?................................................................................. 25
Whether VCAT failed to take into account relevant evidence............................................. 33
Oven quotation and installation charge......................................................................... 34
Quotes for cleaning and repairs...................................................................................... 35
Water bill............................................................................................................................ 36
Email evidence................................................................................................................... 36

VCAT’s calculation of depreciation......................................................................................... 40
Conclusion................................................................................................................................... 42

HER HONOUR:

Introduction

The plaintiff, Ms Twinkle Shah (‘landlord’), issued this proceeding on 14 July 2017, seeking judicial review of the decision of a member of the Victorian Civil and Administrative Tribunal (‘VCAT’) made on 16 May 2017. The landlord’s application is made pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’). An amended originating motion adding VCAT as the second defendant to the proceeding was filed pursuant to leave granted by Judicial Registrar Clayton on 27 February 2018. The proceeding was originally listed for hearing on 23 April 2018 and, subsequently, on 26 July 2018. However, in both instances, the proceeding was adjourned owing to the landlord’s ill-health. The landlord is self‑represented.

In her originating motion, the landlord identified the following grounds of review:

1. The VCAT Member did not conduct a fair hearing.
(a)The plaintiff requested an interpreter but no interpreter was provided and the plaintiff was not informed there would be no interpreter until the day of the hearing.
(b)The plaintiff was at a disadvantage due to the lack of an interpreter but the VCAT Member proceeded with the hearing anyway.

2. The VCAT Member did not accept or consider relevant evidence.
(a)The VCAT Member did accept the relevant quotation for the oven that the plaintiff provided at the hearing but instead used an internet quotation for a different model.
(b)The VCAT Member did not consider the installation charge for replacing the oven.
(c)The VCAT Member did not properly consider the cleaning expenses.
(d)The VCAT Member did not consider the water bill incurred by the defendant that the plaintiff received only after the application was filed.
(e)The VCAT Member did not go through the email evidence presented by the plaintiff.

3.The VCAT member used the wrong procedure when allowing for wear and tear or depreciation.

The usual course for parties to challenge a decision of the VCAT is to bring an application for leave to appeal on a question of law under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’). While some authorities suggest that the availability of an alternative pathway may be a ground for this Court to decline to exercise its discretion to grant leave under Order 56 of the Rules,[1] save where any error of VCAT clearly goes to jurisdiction. However, while I agree as a matter of principle that it is preferable for parties aggrieved by a decision of VCAT to pursue the avenue for appeal provided by s 148 of the VCAT Act, nothing turns upon the distinction for the purposes of the present case, and the point was not taken by the tenant.
[1]See North Burnside Pty Ltd v Melton Shire Council (2006) 1 VR 1, and Hoe v Manningham City Council [2013] VSC 195.

The landlord purchased an apartment on Albert Road, South Melbourne (‘premises’) on 28 April 2016, and entered into a tenancy agreement with the first defendant, Mr Vega (‘tenant’) on the same date. The premises had been occupied by the tenant since 10 February 2015.

The tenant departed the premises on or about 9 April 2017. The landlord and the tenant could not agree how much should have been deducted from the bond paid by the tenant, and the tenant applied to VCAT for a refund of the bond on 11 April 2017. The tenant’s application was heard together with an application by the landlord for compensation for damage to the premises said to have been caused by the tenant. The case was fixed for hearing on 16 May 2017. Prior to the hearing, the landlord requested from VCAT a Gujarati or Hindi interpreter, but no such interpreter was available on the day of the hearing.

In her orders dated 16 May 2017, the tribunal member, Ms J Hebiton (‘Member’) stated as follows:

The Tribunal finds that the claims for compensation in the application have been proved in the amounts shown taking into account fair wear and tear and depreciation (all other claims being dismissed): cleaning allowed at $45, damage to floor $260, damage to oven $500, damage to wall $50. Total claim approved in the amount of $855. The Tribunal finds that the tenant has paid a bond of $3,000. Direct the Residential Tenancies Bond Authority to pay to the landlord $855. Direct the Residential Tenancies Bond Authority to pay the tenant $2,145.

By way of background, the landlord was born in the town of Kapadwanj in India. She studied English from at least the age of ten. Prior to or around the time of migrating to Australia, she failed an International English Language Testing Systems (‘IELTS’) test, and subsequently took a ten week English Language Institute (‘ELI’) program. After migrating to Australia and working for ten years, she secured permanent residency for herself and her family, then enrolled in the law school at Victoria University.

As a law student, the landlord attends lectures without the assistance of an interpreter and has access to recorded lectures.[2] She has also participated in a reading and writing mentoring program for students from a non-English speaking background, attending two days per week in her first year of university.[3] She submitted that she has had difficulty working with other students on group assignments due to her limited English skills, citing by way of example an instance in September 2017 when she was advised by group members in a Contracts Law subject that her work was ‘awkwardly written’ and contained numerous errors. She submitted that she relies on her son and other students at the university for assistance with English.[4]
[2]T38-T39.
[3]T38.
[4]T43.

The landlord submitted that her English skills are improving, but that her ability to comprehend certain vocabulary remains limited. She submitted:[5]

I have faced and I have always faced so many problems and challenges whenever I communicate with people in English language, and therefore sometimes they don’t understand my accent. Sometimes I don’t understand then [sic] because of my limited vocabularies. Therefore, I have requested an interpreter so I can understand everything. I was very nervous and unhappy when I found out on the hearing day that there would be no interpreter but then I remembered – then [sic] a member gave me surety that I can ask for the adjournment if I [am] compromise to the later date and then I felt surety that I can able request for the adjournment.

[5]T4.

The tenant is also from a non-English speaking background, and speaks English as his second language. He appeared at the VCAT hearing with the assistance of a friend, and was represented by counsel at the hearing before me. Counsel for the tenant submitted that the landlord has a ‘firm understanding of English’ and that this matter is evidenced by the transcript of the VCAT hearing, during which she made submissions and engaged in extensive arguments about evidence before the Member. Further, in his affidavit in opposition to the application sworn on 14 November 2017, the tenant deposed that, based on his observations at the VCAT hearing, the landlord appeared to have a ‘sufficient’ grasp of English so as to obviate the need for an interpreter. Counsel for the tenant noted that the landlord is enrolled as a law student at Victoria University, and provided to the Court a list of authorities linked to her student account at LexisNexis. Counsel distinguished the landlord’s circumstances, in which English is her second language, from circumstances where a party is unable to understand any English at all. In response, the landlord submitted that, while the tenant may view her English skills as sufficient, she is disadvantaged and struggles with English, and that this is apparent from the transcript of the VCAT hearing, and the fact that the landlord requested an interpreter prior to the VCAT hearing.

At the hearing before me, the landlord was self-represented and assisted by an interpreter. Her speech was heavily accented but fluent. Her written and oral submissions were quite clearly expressed. In the course of the hearing, she demonstrated a good understanding of English, not appearing to have any particular difficulty in understanding questions I directed to her. She made oral submissions unaided for a duration of approximately one hour and twenty minutes, and canvassed a number of authorities and provisions of the VCAT Act relevant to her case. She relied on her interpreter only to translate portions of the discussion from time to time. She asked that the submissions of counsel for the defendant be translated for her, but I am not convinced that this was necessary.

In her written outline of submissions filed on 15 December 2017, the landlord provided some brief commentary under each of the grounds of review. She referred to two decisions regarding the use of interpreters at VCAT,[6] ss 97, 98 and 102(1)(a) of the VCAT Act and a number of authorities regarding the obligations of VCAT to afford procedural fairness. She also referred to the Australian Taxation Office (‘ATO’) ruling regarding the rates to be applied for the depreciation of assets, in support of her contention that the Member had applied the incorrect procedure in calculating depreciation. Further written submissions were filed on 2 March 2018 and at the hearing on 4 September 2018.
[6]Hahowe Pty Ltd v Delic [2013] VSC 52, Magilec Ha DSM Bricklaying v Pesovski & Ors [2009] VCAT 721.

On 19 September 2018, while my decision was reserved, the landlord provided to the Court further written submissions in addition to her earlier submissions, even though no leave was granted to do so. The additional submissions (which are ten pages in length) mainly provided a more detailed analysis of the authorities referred to in her earlier submissions, in particular Collection House Ltd v Taylor,[7] CGU Insurance Ltd v CW Fallow & Associates Pty Ltd[8] and Kierl v Kelson.[9] At the conclusion of her submissions, the landlord stated as follows:

At last, I had a question asked from honourable Justice about an interpreter provided in my University (‘Uni’). My Uni does not provide an interpreter but every lecture and tutorial repeat two times and recorded on web360 so can hear few times un till I become sure. Besides of this we have law librarian, writing mentors, student mentors, they available every day and provide their constant help. Uni also assist me with disability plan because of my chronic pain and so I can have double time to writing in all of my exams and the app ‘read and write gold’. I also have to request for special consideration and my Uni assist me with it. I have all help I need from my Uni. Furthermore, I am living in the English speaking country so can only expect to study in English, I like to learn and I have all sources available from dictionary to online language translators.

[7](2004) 21 VAR 333.

[8](2008) 29 VAR 213.

[9](2004) 21 VAR 422.

The written submissions filed on 31 January 2018 on behalf of the tenant were brief. In his submissions filed on 31 January 2018, the tenant submitted:

The balance of the proceeding is clearly an improper attempt to conduct merits review of the factual determination by the Member. The plaintiff’s submission is not that she was denied an opportunity to call evidence, but that the evidence that she did call was either not accepted or only accepted in part. The Residential Tenancies Act does not oblige or forbid the Tribunal to take any particular matter into account, and thus no error of law exists.

In her reply submissions filed on 2 March 2018, the landlord maintained that she was not seeking merits review but rather judicial review, and re-iterated her submission that the Member had refused to allow the landlord to call relevant evidence.

The proceeding at VCAT

Prior to turning to the landlord’s grounds of review, I shall summarise what transpired before the Member at the hearing. Given that the landlord’s primary complaint is that she was denied procedural fairness at the VCAT hearing, it is necessary to review what occurred during the VCAT hearing, which apparently went for about one and a half hours, in some detail.

On 20 April 2017, the landlord filed an application for compensation for damage with VCAT. In her online application form, the landlord stated in the field for ‘orders you are wanting VCAT to make:’[10]

s 417, 418, 419 Bond, loss or damage;
s 210 Compensation;
s 26 Residential Tenancy Act 1997. Tenant sub-lease part of without the written consent of Landlord

[10]Exhibit TS-2 to the affidavit sworn on 14 July 2017 by the landlord.

In the same application form, the landlord provided details of her claim as follows:

1Damaged Wooden Floor: During tenancy period the wooden floor in the living area is damaged, I will provide Condition report at the time tenant moved in and photos were taken after tenant finished lease.

I have attached quotation from Timber Floor Company, it is $1100
2The Oven is destroyed by tenant: Tenant used bleach product to clean Oven, I had eaten pizza and I had vomited after that still extreme smells coming out, I did contact Miele Customer care and service department they advised not to use Oven and the parts is not available, we can not use Oven at all, I want replacement of Oven, I have attached the email copy from them about the cost and visiting charge. And also it is affecting the stove top as well, as it is connected with it and wall. The replacement cost of new Oven is $1200.
3Uncleaned kitchen (Range hood, cupboards, basin), marks on cupboards, inside

4 very dirty toilet and broken hook
5 cobwebs
(‘application’)

On 16 May 2017, the landlord’s application came before the Member. The application was heard together with the tenant’s application for the return of the bond of $3,000.00 paid by him in respect of the tenancy agreement. The relationship between the parties appears to have been hostile since at least the date of final inspection, during which it allegedly came to the landlord’s attention that the tenant had been subletting the second bedroom of the premises without her written consent or knowledge. However, while this issue was referred to in her application to VCAT, the landlord made no claim for any loss in relation to this issue at the VCAT hearing.

At the commencement of the hearing, the Member confirmed with the landlord that an interpreter had been requested on her behalf. The following discussion between the Member and the landlord ensued:[11]

[MEMBER HEBITON]: We’ve got notification from the interpreter service that they weren’t able to provide an interpreter. I’m concerned that if you consider you need an interpreter that we won’t be able to provide that today. It’s really a matter for you, Ms Shah. You don’t have anyone else assisting you here today? You’re doing the application by yourself, are you?
MS SHAH: No, but if you can just translate in a simpler language if I can’t understand somewhere, then it will be all right.
[MEMBER HEBITON]: Thank you for that. At any point if – I have to make sure that you do understanding anything – everything, not anything – everything I say, so we will proceed but if there’s anything you don’t understand either that I’m telling you or from the other side, then we will stop the hearing. We can adjourn it and get an interpreter, if you’re in any way compromised, at a later date.
MS SHAH: Yes.

[11]T1-T2.

The Member confirmed that her understanding as to the matters for which the landlord sought compensation was correct, and clarified the amount of compensation sought in respect to each matter. The landlord handed up to the Member a copy of a letter to VCAT, which she advised she had emailed to VCAT (‘letter to VCAT’).[12] The Member later noted, in respect to the same email, ‘I can see you've put it, “To Renting at VCAT,” but I don’t have it on the file.’[13]
[12]T4-T5.
[13]T29.

The letter to VCAT set out the landlord’s claim in broader terms than her formal application, as follows.[14]
[14]Exhibit TS-5 to affidavit sworn on 14 July 2017 by the landlord.

To the Respected Tribunal
The orders I want VCAT to make are as following
s 417; s 418; s 419 Bond, loss or damage;
s 210 Compensation
s 26 breached of contract as per Residential Tenancy Agreement under Residential Tenancy Act 1997 (There were 2 people in the lease contract named Carlos Andres Vega and Ana Morrilo then Carlos advertise the other room on flatmates and let room to the people who were unknown to us, which was very uncomfortable for me and I believe it was not right)

s 36 evidence of condition report
s 81 Tenant must avoid damage to premises or communal area
s 62 Tenant must give notice to damage (Tenant did not inform us by any way about damaged caused during tenancy period)
s 81sub-letting whole or part of premises (Tenant never ask for my written consent and intend to use my apartment to make cash income)
s 210 (1) (9) Loss and damage suffered by the applicant
s 214 additional damage recover, more than bond amount
s 253 Landlord was not aware of sub-leasing

The letter to VCAT also contained submissions in respect to:

(a) matters contained in the landlord’s application, including the alleged damage to the wooden floor, oven, stovetop, kitchen, bathrooms and toilets;

(b) matters outside the scope of the application, including the alleged damage to a wall; and

(c) details of various emails exchanged between the parties.

The landlord noted, ‘It is just a letter but I have the rest of the evidences, photographs and…emails, and the condition report and the lease agreement.’[15] The Member responded, ‘I see what you’re saying’[16] then confirmed that Mr Vega had previously received the letter to VCAT. The Member then clarified the scope of the landlord’s application, as follows:
[15]T5.
[16]T5.

[MEMBER HEBITON]: In your application, Ms Shah, you’ve noted that there’s damage to the floor, damage to the oven, and then in this letter that you’ve also given to me you make reference to a whole lot of other matters as well. I’d like to address some of those first up. There’s an allegation of the tenancy of the tenant being sublet but that’s not part of what you’ve claimed monetary value for. So I’m assuming you’re just giving that to me by way of background and explanation. Is that correct?
MS SHAH: Yes, but like I put in my letter to the tribunal, that that was very uncomfortable for me, that a tenant sublet the property who is not in a contract. So I don’t know the background of the person and who is living in my property. Yes, so that was a very big concern for my part, I’m saying.
[MEMBER HEBITON]: I understand that. But you’re not seeking compensation for that. It’s just history, just relevant background. Is that right?
MS SHAH: Yes.
[MEMBER HEBITON]: Okay.
MS SHAH: But I found in a - - -
[MEMBER HEBITON]: Can I just go on to the – so the damage to the floor is $1100. The damage to the oven is $1200.
MS SHAH: I’ve got the quotation, if you like I give it to you.
[MEMBER HEBITON]: I’ll come to those in a moment.
MS SHAH: Yes.
[MEMBER HEBITON]: What I’m interested in exploring at the moment is the total claim in your application is for $5350. So there’s about $3000 difference between the items that you’ve put monetary value for and for other items, and I’m not sure what they refer to.

Subsequently, the Member turned to the substantive matters raised in the landlord’s claim.

First, the question of damage to the flooring was discussed. The landlord handed up a copy of a quote of $1,100.00 for the replacement of the damaged portion of timber flooring. The landlord further submitted that the relevant tradesperson had advised that, if they were unable to find wood which matched the existing floor, a greater portion of flooring would need to be replaced (being the dining area and living area), with replacement costs ranging from $2,500.00 to $3,000.00. The Member noted that that she would not be able to award compensation exceeding the amount quoted in the invoice, being $1,100.00.[17]
[17]T11.

A discussion followed in relation to the nature of the damage to the wooden floor, with the landlord explaining the damage to the ‘top layer’ of the floor in a number of instances, as follows:[18]
[18]T9, T15-T19.

[MEMBER HEBITON]: I’m just not sure – I need you to explain what these black spots are.
MS SHAH: That’s the top layer of the wood floor came out.
[MEMBER HEBITON]: Is that part of the grain? Is that the problem or is it this speckled area?
MS SHAH: This one.
[MEMBER HEBITON]: What do you think has caused this? What is it? Is it a
MS SHAH: It’s something – heavy stuff smashed on the floor and that top layer come out.
…
[MEMBER HEBITON:] Are you saying, Ms Shah, that these black portions of the floor are damage [sic] or are you agreeing with Mr Vega that they’re part of the floor, the knots in the wood?
MS SHAH: It is damage. The top layer already moved – came out from the wooden floor.
[MEMBER HEBITON]: The top layer of the black?
MS SHAH: The top layer of the yellow colour wood, it’s removed. It came out because of the hit – something hitted on that and then, you know, it like came out.
[MEMBER HEBITON]: Is this speckled, the top layer that you’re referring to; or are you talking about this black spot?
MS SHAH: This black spot. So the wooden colour is yellow and when it’s smashed or hit with something then it’s gone, like the top layer is gone. It came out. It - - -
…
[MEMBER HEBITON]: It must have been burnt then, to be black like that.
MS SHAH: No, because underneath the wooden floor – I don’t know about it but I can only tell that that was – he did by something, and the top layer is hitted. So that’s why it’s broken. It came out. Sorry, because of my second language I can’t really explain.
[MEMBER HEBITON]: Yes, that’s – no.
MS SHAH: That’s why I said if you check the ingoing condition report, that says that it was no scratch, no marks and then after it’s not only a mark, it’s hitted and it’s came out, the top layer, and it look very obvious and not good. It’s damaged, yes.
[MEMBER HEBITON]: When you say ‘the top layer’ – and I know it’s difficult for you and I’m wanting to take the time to make sure that I understand what you’re telling me – do you mean like the polish on the top, that’s come off; or do you - - -
MS SHAH: No, the wood is broken.
[MEMBER HEBITON]: The wood is broken?
MS SHAH: Yes.
[MEMBER HEBITON]: This is like a hole.
MS SHAH: Yes. It’s kind of – I don’t know if I’m telling the exact word. It’s kind of dismembered or something.
[MEMBER HEBITON]: Yes.
MS SHAH: Sorry.
[MEMBER HEBITON]: I think I’m understanding. I look at your invoice and the invoice refers to a dent, which is – I don’t know if that is a word that you’re familiar with but it’s like a small hole – a dent or an impression or - - -
MS SHAH: Yes, it’s a hole. It’s a hole, yes.

The Member noted that, where a property is damaged by a tenant, any compensation amount to which a landlord is entitled would be adjusted for depreciation. The landlord accepted the Member’s comment in respect to depreciation but noted that, in the current circumstances, there was ‘obvious damage’ which exceeded the usual wear and tear.

Secondly, the Member turned to the question of damage to the oven. The landlord stated that on one occasion she had reheated pizza in the oven and, ten minutes after consuming the pizza, had vomited. The landlord said that she had not used the oven since and was of the view that it was not in a usable state. The landlord handed up a report from Miele and photographs of the oven in support of her contention. The Member read out an extract from the Miele report:

[MEMBER HEBITON]: Excellent. Thank you. I see. So I’m looking at – ‘The symptom: chemical smell. The result: found that cleaner had been used to clean. Removed the back panel of unit to check. Found residue of cleaner on back wall. Smells of chemical cleaner. It has damaged back panel, turning it white. Unit is not in a useable condition because of the chemical cleaner used.’ […]

The landlord proceeded to show the Member and the tenant photographs of the damage said to have been done to the oven. The landlord pointed out the discoloration of the oven and white residue, said to be a result of bleach used by the tenant. The landlord presented quotations from Miele, which included a $250.00 quote for installation of the oven and a $1,990.00 quote for a replacement oven:

[MEMBER HEBITON]: One [quotation] is for $250.
MS SHAH: No, 250 is the installation charge but the price for – one is 1990, just for the oven and when they come to install the oven they charge 250. The oven is 1990. So the space – they can fit the oven. You know, in my kitchen they have only two models – this one.
[MEMBER HEBITON]: I’m going to leave these with you, Mr Vega, for the moment because they might be relevant to what you have to say to me. Is that all the material you want to go for the oven, Ms Shah?

The landlord then took the Member to an email which she had received from Miele which indicated that the oven had been discontinued and was no longer in stock. The Member asked about the age of the oven and confirmed with the landlord that it was four years old. The tenant made submissions in respect to the chemical which he had used to clean the oven and proceeded to show the Member his own photographs taken at the final inspection of the property. The Member asked the landlord some questions about her present circumstances and confirmed that the landlord was currently living in the premises, and had not been able to use the oven since moving in.

Thirdly, the landlord raised the matter of damage to the wall of the premises and said she would provide the Member with a copy of relevant emails. The Member noted that this matter was not contained in the application before her, while the landlord contended that it was contained in her letter to VCAT:[19]
[19]T27-T28.
MS SHAH: The wall was broken.
…
MS SHAH: And then I pointed out to Mr Vega and I was asking him that – I am so stressed after looking at that and very unhappy, that, ‘How could it happen, the wall is broken?’ and then he said he doesn’t remember when it happened. I said, ‘When I’ve had parties before the inspection that wasn’t like that, it was intact – intact.’ Then while I was talking with him, the other guy was there, the tenant – the subtenant, and he said [I am] – like, I am disgusting to ask him, Mr Vega, that the wall is broken, when it’s broken, given he said that he doesn’t remember. So I can provide you with a copy of all the exchange of emails and the particular - - -
[MEMBER HEBITON]: But this damage to the wall isn’t part of your claim.
MS SHAH: The damage of the wall I mentioned in my letter to the tribunal.
[MEMBER HEBITON]: Yes, I understand that. But it’s not in the application that you’ve put in, and I’m constrained by that.
MS SHAH: …So if you check the email, it was on 8 April. I can provide the copy and in that - - -
…
[MEMBER HEBITON]: … I don’t have the emails on file, Ms Shah, but obviously you’ve given me a copy,
[MEMBER HEBITON]: Did I send it to you in April, I think? The date should be here.
[MEMBER HEBITON]: Let’s just - - -
MS SHAH: 29 April, yes.
[MEMBER HEBITON]: I see that that’s the date. I see you addressed it, ‘To Renting at VCAT.’ But it just hasn’t made its way to the file. What are the other things that you’re claiming? You’ve got a damaged wall, kitchen cupboards. The difficulty I find, Ms Shah, is that the application form – the reason that we have the application form is so that the other party knows what is being alleged against them. So when you’ve got one set of information in application form [sic] and then another one that’s come in separately to that, Mr Vega doesn’t necessary [sic] know what you’re claiming before the tribunal [sic].
MS SHAH: Member, I checked the ground floor and they advised me that I am able to bring three copies – one for you, one for him and one for myself.
MEMBER HEBITON: But that’s for the application.
MS SHAH: So that’s what I bring, three copies for everything. Because there are group exchanges of email, like about 40 emails to - - -
MEMBER HEBITON: But the application is what sets the bounds of what you are applying for, not the emails.
MS SHAH: So an application – there is the damage to wall here.
…
MEMBER HEBITON: Where does it say that in the application? No, this is not your application.
…
MS SHAH: That time I put in application, if you have a look. I’ve got the application in front of me. Because there was not enough space so I couldn’t even put everything that time when I made the claim.
MEMBER HEBITON: But you could have attached something to the – many people put another letter or something with the application form. I’m going to deal with the items in the application form in that order. So let’s move to item – we’ve talked about the floor, we’ve talked about the oven. Let’s move to the uncleaned kitchen. Tell me about that, Ms Shah.
The Member then asked the landlord about loss suffered as a result of the state of the kitchen:[20]
[20]T31-T32.

[MEMBER HEBITON]: What did you do about the kitchen? Did you have to pay for someone to clean it?
MS SHAH: No, I haven’t organised anyone yet because there are a few things which are very hard to remove, as I put in my email. I can show you in the pictures.
[MEMBER HEBITON]: Yes, sure. But if you haven’t paid for someone to clean it and you’re living there, what loss have you suffered?
MS SHAH: The loss I suffered is this things, the way he left and - - -
[MEMBER HEBITON]: So this is the rangehood grill that – - -
MS SHAH: Yes, it’s all full of the grease and dirt. You can’t even touch. It’s very extremely oily.
[MEMBER HEBITON]: As they get, yes.
MS SHAH: If you see the ingoing condition, it was clean and – so that’s the surrounding area. It’s all oily and greasy as well.
[MEMBER HEBITON]: Is this the floor or what is it?
MS SHAH: No, that’s just the top of the – beside the hood and that.
[MEMBER HEBITON]: So which way should I be looking at this?
MS SHAH: Yes, that’s right.
[MEMBER HEBITON]: Gosh, I’m confused. What’s this? Is this the window over here?
MS SHAH: No. So that’s the plates of the hood.
[MEMBER HEBITON]: Yes.
MS SHAH: And that’s just the surrounding area. So you can see all this - - -

Subsequently, the Member and the parties discussed the state of the kitchen. The Member asked questions to clarify which parts of the kitchen the landlord’s claim concerned, then turned to the monetary amount claimed by the landlord in respect to the uncleaned kitchen:[21]

[MEMBER HEBITON]: But you haven’t put an amount in in [sic] your claim.
MS SHAH: Yes, but that seemed like oven, it’s gone. Like, it’s totally damaged. It’s not going to clean with any product or – cleaning products.
[MEMBER HEBITON]: But how much do you want me to compensate you for that item? You have to ask for a particular amount and you haven’t put an amount in. That’s what I’m - - -
MS SHAH: Yes, I can ask for that about $150. I don’t have any idea how to remove it because it’s not going to clean with any cleaning product

[21]T34.

The landlord submitted that the stove was damaged due to the area under the stovetop being jammed with material which was difficult to remove and which appeared to have been there for a long time. The landlord handed up photographs of the kitchen, which had been taken two to three days after the final inspection, in support of her claim in respect of the cleaning of the kitchen. In response, the tenant submitted that there was no evidence to support the submission that he had caused the damage, particularly given the landlord’s photographs only captured the top of the stove and ‘does not show nothing inside’:[22]
[22]T35.

MR VEGA: There is no photos. There’s only the top of the thing – the stove. It does not show nothing inside. It could be there when I was there, if you say that is not something that happened in two days. That’s the same picture I had when I moved in.
[MEMBER HEBITON]: So you say, Mr Vega, that’s evidence of the stage of the stovetop when you moved in and that there is no evidence of the - - -
MR VEGA: There is no evidence.
[MEMBER HEBITON]: - - - underneath.
MR VEGA: Yes.
[MEMBER HEBITON]: Ms Shah, do you have anything in response to that?
MS SHAH: Yes.
[MEMBER HEBITON]: Mr Vega has taken me to...Photo 3….It’s showing the top of the stove and saying that there’s no other photos of anything - - -

The landlord then submitted that the stove was in working condition as at the date of the condition report signed by the tenant when he commenced the tenancy:[23]
[23]T35-36.

MS SHAH: If you see the ingoing condition report and that’s on page number 5.
[MEMBER HEBITON]: Yes.
MS SHAH: So that is clean, undamaged and working, all tick, tick.
[MEMBER HEBITON]: Yes.
MS SHAH: And there is, ‘Hotplates, stovetop, Miele gas, good condition and clean.’
[MEMBER HEBITON]: Yes.
MS SHAH: So that was acknowledged by him, Mr Carlos - - -
…
[MEMBER HEBITON]: I understand what you’re both saying in relation to that, that item. Let’s move on to the next one.

Fourth, the Member then turned to the landlord’s claim in respect to the ‘dirty toilet and broken hook’, being the state of the bathroom at the premises. After the landlord had made submissions in this respect, the Member initiated a discussion in relation to the amount claimed by the landlord in this respect:

[MEMBER HEBITON]: How much are you claiming in relation to the toilet, Ms Shah?
MS SHAH: It’s already, like, $45 to clean all that and then it can take about four to five hours to clean that, and I don’t - - -
[MEMBER HEBITON] Four to five hours to clean the toilet?
MS SHAH: Not toilet. Everything, including the hoods, the kitchen, the sinks, the laundry.
[MEMBER HEBITON[: And you’ve done all this work already.
MS SHAH: Yes, I’ve done – I have done.
[MEMBER HEBITON[: You did it yourself. You didn’t pay a cleaner to do it?
MS SHAH: Yes, I cleaned the toilets but I haven’t cleaned yet the hood and, you know, the layer jammed underneath the cooktop because I tried but it’s not going – it didn’t go.
…
[MEMBER HEBITON]: And how much are you claiming for this [broken hook]?
MS SHAH: It need to be fix - - -
[MEMBER HEBITON[: That’s not broken.
…
[MEMBER HEBITON]: What do you need to do to fix it?
MS SHAH: I don’t know. They need to fix it, like – because it’s moved from its original state, so it’s like movable, yes.
…
[MEMBER HEBITON]: What do you want to tell me about that, Mr Vega?
MR VEGA: It’s not broken. That’s the only thing I can say. It’s in good condition, and I didn’t see this when I was there.
…
MS SHAH: I didn’t say that it’s broken. I said that it’s not the position it was before and I have to have someone to fix it and they charge, like, $80 or something for - - -
…
[MEMBER HEBITON]: And you’re seeking $80 to fix that?
MS SHAH: Yes, they charge like ---
…
[MEMBER HEBITON]: Do you have a quote or anything for that?
MS SHAH: No, I don’t have a quote.
[MEMBER HEBITON]: Have you booked anyone in to do it?
MS SHAH: No, I don’t have a quote but there are lots of things and I was so tired to accumulate all this stuff, to contact different people to gather the evidences because it’s quite a few things to deal with and I’m a full-time student. But you can check in ingoing condition that it was intact and it was not, like, in a moveable condition like this.

Fifth, the Member then turned to the landlord’s claim in respect to cobwebs, said to be situated on the ceiling of the balcony outside the premises, and asked how much the landlord claimed in this respect:[24]

[MEMBER HEBITON]: How much are you claiming in relation to these?
MS SHAH: Yes, just a cleaning charge, like whatever they charge hourly.
[MEMBER HEBITON]: What would that be? What are you claiming?
MS SHAH: I think they charge $45 per hour if we ask them to come one time and then do these things.
…
[MEMBER HEBITON]: I’ll proceed on the basis of your oral evidence that there were cobwebs there and that you are seeking cleaning on the basis of one hour at $45 per hour in relation to those….

[24]T42.

The Member returned to the subject of the damage to the wall and asked the landlord about the amount claimed:

[MEMBER HEBITON]: Can I also just confirm with you, Ms Shah, how much are you claiming in relation to the damage to the wall?
…
MS SHAH: That is to put in original condition I need to have the people and, I don’t know, maybe they charge hourly a hundred dollar. It can take one hour, two hours; I don’t know about it.

[MEMBER HEBITON]: Ms Shah, I can’t make an award for compensation if I don’t have a specific amount. That’s the reason why we ask for the details of the application - - -
…
MS SHAH: Okay. Yes, because these things need to be filled with the same material and on top of that it need to have same colour. So maybe it can cost 400 or 500 dollars.
[MEMBER HEBITON]: But you don’t have a quote?
MS SHAH: No, I don’t have a quote for that. But I was depending on Mr Vega that he said that he will do it…

Finally, the Member confirmed that the property was last painted in 2013. She then stated, before standing the matter down in order to formulate her decision:[25]

[MEMBER HEBITON]:… They’re all the items. I’m going to adjourn this matter just for a few minutes while I consider all the evidence. There’s a lot of items, a lot of matters, that I need to consider in this application or applications. So I’m going to stand the matter down and be five or 10 minutes and then I’ll come back and give my reasons. I’ll give you a decision in relation to each of the items…’

[25]T47. It is not clear from either the transcript or the evidence how long the Member stood the matter down for.

After the hearing resumed, the Member delivered her decision:

(a) in respect to the landlord’s claim for damage to the floor:[26]
[26]T48.

[MEMBER HEBITON]: …. I am satisfied on the evidence before me that the floor does have a dent in it and that there should be an award of some amount in relation to that damage. I am not satisfied, however, that that award should be to the quantum of $1100. I consider that the amount needs to be, firstly, depreciated and I have adopted a 10-year depreciation for a wooden floor. That reduces the quantum by $440. I also consider that there has to be an element of fair wear and tear in the award that I make and in my view an appropriate amount of fair wear and tear is a further $400. Taking into account those two items, the amount that I intend to award in relation to the floor is the $1100 minus the $840, so it comes down to $260.

(b) in respect to the landlord’s claim for damage to the oven:[27]
[27]T49-T50.

[MEMBER HEBITON]: …I also have before me evidence from Ms Shah as to the cost of replacement of the oven. In this regard she has handed up two brochures from Miele; one with a figure of approximately $1900, the other with an amount of $1290 as the replacement cost. I note that Ms Shah’s application seeks compensation for the oven capped at $1200. I am satisfied that there should be an award of compensation in relation to the oven but that also needs to be depreciated again on the basis of a 10-year replacement cycle for the oven. I depreciate the oven by $480 based on that 10-year cycle. I also accept that there should be an award of compensation limited by the fair wear and tear of the oven and I intend to award $500 in relation to the oven.
MS SHAH: And I have one thing about the oven - - -
[MEMBER HEBITON]: No, Ms Shah, once I give my reasons I don’t hear from the parties any more.
MS SHAH: Because there’s $250 to install the oven because I can’t have oven just put aside and - - -
[MEMBER HEBITON]: Ms Shah, I am giving my reasons, please don’t interrupt me.

(c) in respect to the landlord’s claim for kitchen cleaning:[28]
[28]T50-T51.

The claim in relation to the kitchen was for cleaning to the quantum of $150. There was no invoice provided in relation to that claim. Ms Shah gave oral evidence that it was based on a cleaning rate of $45 per hour that she had made inquiries in relation to for [sic] that work to be done. If I break down the items in the kitchen one by one, I note that in terms of general cleaning Ms Shah has been living in the premises for the past few weeks and therefore I am not of a mind to give a general award for cleaning. In relation to the top of the stove, I accept the evidence of Mr Vega that there is no evidence of the underburners of the stove and their condition at the time that he moved in so it makes it impossible for me to determine what, if any, damage he has caused to the top of the stove during the term of his tenancy. In relation to the rangehood, I accept the evidence of Ms Shah, as indicated by the photographs, that they were dirty and so on that basis I will allow cleaning for the rangehood on the basis of one hour, being $45, as submitted by Ms Shah.

(d) in respect to the landlord’s claim for bathroom cleaning:[29]
[29]T51.

In relation to the toilet and the sink, Ms Shah has indicated that the toilet bowl was dirty under the rim. Again, there has been no quote submitted in written form in relation to that item but she gave oral evidence that it would cost $45 per hour to clean that toilet. She also had indicated that she had already done that work herself. I am not of a mind to give an allowance for the toilet, the cleaning. That work has already been done. It seems to me, whilst it perhaps might be frustrating, I cannot be satisfied that that has resulted in a loss to the amount claimed by Ms Shah.

(e) in respect to the landlord’s claim for the kitchen sink cleaning:

Again, I have no written quote in relation to cost of cleaning of the sink. I do have before me though the oral evidence of Ms Shah that the cost would be again in the realm of $45 per hour for the cleaners to come in and clean that. In regard to this item, I accept the evidence of Mr Vega that the area is difficult to clean. I also apply the commonly held standard of this tribunal that when determining cleaning matters it is appropriate to apply a standard of a normal clean, not a Spring clean, and in the absence of a written quote as to the cost of doing that cleaning work, I am not of a mind to allow that claim.

(f) in respect to the landlord’s claim for the ‘broken hook’:[30]
[30]T51-T52.

In relation to the hook, Ms Shah has indicated that the hook is not in its original position. It appears to me that it has moved on the wall. Mr Vega says that that is fair wear and tear. I have before me photographic evidence of Ms Shah indicating that the original position of the hook is no longer in its original position. It looks like it has merely moved. I am of a view that that item is fair wear and tear and I am not of a mind to make an award in relation to that item.

(g) in respect to the landlord’s claim for cobwebs:[31]
[31]T52

In relation to the cobwebs, I have no evidence that there were cobwebs there, other than the oral evidence of Ms Shah that there were cobwebs on the balcony of the apartment when she moved back in. Again, cobwebs, in my view, are an item that amount to a Spring clean, not just an everyday clean. I also consider that they fall into an item which his part of the everyday use of an apartment, so I decline to make an award of damages in relation to that item.

(h) in respect to the landlord’s claim for damage to the wall:

In relation to the damage to the wall, the last item, I note that again there is no quote as to the amount sought in relation to this item. I have photographic evidence showing the damage to the wall both before and after Mr Vega had repaired the wall. Ms Shah, based on her oral evidence, claimed ultimately between 400 and 500 dollars to fix that item. She noted that the hole in the wall needs to be filled and then it needs to be repainted because the colouring is different. Mr Vega says that the hole in the wall is fair wear and tear and nothing more and no award should be made in relation to that.
I accept that the hole to that wall is more than fair wear and tear but again, in the absence of an itemised quote, it is difficult other than to award a nominal amount in relation to the hole in the wall. I also note that the repair is not complete as yet and so therefore I intend to award, as I say, the nominal amount of $50 for the damage to the wall.

Subsequent to the Member delivering her reasons, the landlord attempted to agitate a claim for an unpaid water bill. The Member noted that this claim fell outside the scope of the application before her:[32]
[32]T53-T54.

MS SHAH: Ms Member, I have something to tell about a few thing left.
[MEMBER HEBITON]: It’s too late, I’ve given my reasons. I’m preparing - - -
MS SHAH: Because there are quite a few things though. This is the bill unpaid and this needs to be paid in the duration of the tenancy. It’s the water bill from - - -
[MEMBER HEBITON]: That’s not part of your claim, Ms Shah, and I’ve finished. I’ve given my reasons. You’ve had the opportunity – we’ve spent a lot of time this morning to give you every opportunity to put all of your evidence before - - -
MS SHAH: There are quite a few things and this is the bill, like, he used for the water bill. So he needs to pay until 9 April 2016.
[MEMBER HEBITON]: Ms Shah, they’re not part of your claim. I’m sorry, I cannot deal with them.
MS SHAH: Because this comes just one week ago. At that time I didn’t have that when I claimed this. ..

The landlord also attempted to re-agitate the matter of the $250.00 installation fee for a new oven, to which the Member responded, ‘That was part of your application’.[33]
[33]T54.

The landlord then requested an adjournment of the hearing. She stated that she had further evidence including cleaning quotes and a water bill which she had not had the opportunity to hand up:

MS SHAH: I’d like to make a request to adjourn this matter because I don’t understand a few things.
[MEMBER HEBITON]: What are the specific things that you don’t understand?
MS SHAH: I don’t understand that I have to give you all this at the one time. I didn’t find enough time to provide this. Also, I had given in writing about the cleaning things, like the toilet, the bathroom, the kitchen and everything. I have provided an email to Mr Vega in writing from the cleaning company. Then also - - -
[MEMBER HEBITON]: Are you saying, Ms Shah, that you now need an interpreter for the - - -
MS SHAH: Yes, I need it too, because I didn’t - - -
[MEMBER HEBITON]: That’s the difficulty, isn’t it, because at the beginning we discussed this issue and I said that if there was any point that you didn’t understand that you should raise that with me.
MS SHAH: Because I didn’t understand that in a particular time I have to tell everything because there’s so many things to tell and it takes lots of time because there are lots of emails, there are photos, there are quotations, there are like reports, and so I need really enough time to understand everything and to provide you all that stuff.
[MEMBER HEBITON]: But I went through, Ms Shah, several times the fact that there were a number of items outside your application.
MS SHAH: Yes, but I haven’t got time to provide this, the bill, and then I also haven’t got time to show you the email I sent in to you from the cleaning company that they will charge $45, and that’s in writing from the Melbourne cleaning company. That was I think between 10 to 14 April. I have sent email to him and I have the copy of – you know.
[MEMBER HEBITON]: I’m going to stand this matter down. If you are now saying you need an interpreter, that creates a particular difficulty for me. I need to go and consider the position. My role is to ensure that the parties have a fair hearing.
MS SHAH: Yes.
[MEMBER HEBITON]: But to raise these matters at this point, when I am preparing the final orders, is a particularly difficult situation. I am just going to go and have to consider what my next course of action is.

Subsequently, the Member adjourned the hearing. Following the adjournment, the Member stated:[34]

[MEMBER HEBITON]: Thank you for your patience. In light of Ms Shah’s raising of issues around the additional items that she’s seeking to add to her claim and the assertion that she didn’t understand what was happening in terms of the proceedings, I have considered my position or the tribunal’s [sic] position in relation to that issue. Insofar as the item of you referring to specific bills – and I can see you handing them up, Ms Shah – they were never part of your application anyway. So I could never have dealt with them today. If you wish to pursue them separately then you need to make a fresh application. That’s the answer to that. I couldn’t have dealt with them anyway.
…
MS SHAH: I have, like, a few things about what we already discussed. Like I said, I couldn’t understand - - -
[MEMBER HEBITON]: I can’t go back over those items.
MS SHAH: Because I didn’t understand a few things.
[MEMBER HEBITON]: Ms Shah, I was very clear at the beginning of the hearing that if you didn’t understand then you needed to raise that and you gave me no inkling through the hearing that you didn’t understand what was going on. So I’ve already given my decision and I’m preparing the orders for that now. I’m not in a position - -

[34]T56.

Subsequently, the landlord asserted that she had not understood all of the matters discussed. Further, the landlord asserted that she had not yet finished giving evidence and had not realised that the Member had intended to deliver her reasons immediately after the adjournment. The landlord repeated her request for an adjournment, which the Member rejected on the basis that her reasons had already been delivered.[35]
[35]T58.

The Member made her orders, following which the landlord attempted to make further submissions in relation to her application, including:

(a) in respect to the claim for cleaning costs, the landlord asked the Member to ‘reconsider’ her orders in respect to compensation for cleaning and submitted again that a cleaner would typically be required for three to four hours to clean the premises, rather than one hour;

(b) in respect to the oven installation fee, the landlord submitted that the matter had not been addressed by the Member, to which the Member responded:

[MEMBER HEBITON]: I have. That was part of your application. You claimed $1200 for your new oven and I’ve made a ruling in relation to that.
MS SHAH: So oven installation can’t be depreciated because the people charge to come and to install it because they are the expert. We can’t do that. On top of the oven, $1299 [sic], they charge $250 to install the oven.
[MEMBER HEBITON]: But your application was for $1200, Ms Shah.
MS SHAH: Yes, I understand that but I gave you the proof because you only considered the proof and the evidence in writing. So I provided that from the oven company because on – approximately when I Googled it I found it is about 1200 to 2000 dollars and then when I ask – I requested them on the phone to provide me - - -
[MEMBER HEBITON]: Ms Shah, I’m not discussing it any further. These are the originals of your documents. I return them to you.

Grounds of review

The key questions for my determination are, adopting the grounds of review as framed in the landlord’s originating motion:

(a) firstly, whether the landlord was denied a fair hearing;

(b) secondly, whether the Member failed to have regard to relevant evidence; and

(c) thirdly, whether the Member erred in her calculation of depreciation.

A summary of my consideration of the key questions follows. However, as a preliminary observation, I note that, even on their face, the second and third questions do not raise questions of law, but simply seek to re‑litigate the Member’s factual findings. As it is impermissible to review the merits of the Member’s decision (either by way of an application for leave to appeal under s 148 of the VCAT Act, or by way of judicial review), the Member’s decision regarding the landlord’s claim, including the setting of an appropriate depreciation rate, is only reviewable if the landlord can establish a breach of the Member’s obligation to afford her procedural fairness (as is alleged here), or on the basis that no reasonable tribunal member could have made those findings[36] (which is not asserted here).
[36]See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

Was the landlord denied a fair hearing?

The landlord contended that she was not provided with an interpreter by VCAT, despite having requested an interpreter in advance of the hearing, and was not informed that there would be no interpreter until the day of the hearing. The landlord further contended that she was at a disadvantage due to the lack of an interpreter but that the Member proceeded with the hearing anyway. These matters were disputed by the tenant, who deposed that the landlord has sufficient English skills to comprehend proceedings and, further, was given an opportunity by the Member to adjourn the hearing, which she refused. The landlord submitted in response that she had difficulty with English and ‘never refused to have the hearing adjourned.’[37]
[37]Ms Shah’s submissions filed 15 December 2017.

The landlord’s submissions filed on 15 December 2017, in substance, duplicated the contents of her affidavit sworn on 14 July 2017, save for the addition of transcript references and submissions concerning the following matters:

(a) the landlord submitted that, at the outset of the VCAT hearing, the Member acknowledged the landlord’s request for an interpreter and also noted that the hearing could be adjourned if the landlord’s ability to understand everything was compromised;

(b) the landlord relied on s 63 of the VCAT Act which states:

Unless the Tribunal directs otherwise, a party may be assisted in a proceeding by an interpreter or another person necessary or desirable to make the proceeding intelligible to that party.

(c) the landlord also relied on paragraph 10 of the VCAT Practice Note PNVCAT3 (Fair Hearing Obligation) (‘VCAT Practice Note’), which she submitted was contravened by the Member’s conduct:

The Tribunal provides a free interpreter service as part of its obligation to provide a fair hearing. Requests by a party for the provision of an interpreter can be made either in writing or by telephoning the Tribunal. Such requests should be made when lodging an application with the Tribunal or as soon as practicable after being notified of the hearing date.

(d) the landlord referred to a number of authorities concerning the right to an interpreter, including Yahome Pty Ltd v Delic (‘Yahome’),[38] and Maligec trading as DSM Bricklaying v Pesovski (Civil Claims).[39]

[38][2013] VSC 52, [82].

[39][2009] VCAT 721 at [7]:

The tenant’s written submissions filed on 31 January 2018 were brief. After taking issue with the landlord’s failure to name VCAT as a defendant, the submissions went on to state as follows:

Further, the plaintiff’s submissions refer to the decision of this Court in Yahome v Delic [2013] VSC 52 at [82] but neglects to describe the balance of that paragraph which details that that case was not a case that ought not proceed without an interpreter. Further, the same paragraph of that decision confirms that there is no authority that imposes an obligation on VCAT to ensure that certain parties or witnesses must be assisted by an interpreter.
The plaintiff asserts in her submissions that she was struggling to explain herself and to follow the proceedings. On any view of the transcript that is not maintainable. There were lengthy exchanges between the Member and the plaintiff and it is clear from the transcript that the Member understood what the plaintiff was intending to convey in her evidence and submissions.

In her reply submissions filed on 2 March 2018, the landlord responded as follows:

(a) the landlord distinguished the facts in Yahome[40] from the present case and submitted that, in the present case, the hearing should not have proceeded without an interpreter given the plaintiff was from a non-English speaking background and self-represented;

(b) according to the VCAT Practice Note, VCAT is obligated to provide an interpreter when requested. The VCAT Member failed to comply with this obligation in circumstances where the landlord struggled to understand what was going on and to explain herself, and had requested an interpreter; and

(c) it is evident from the lengthy exchanges between the landlord and the Member, as evidenced in the transcript of the VCAT hearing, that they were having difficulty understanding each other. For example, the discussion in relation to damage to the floor occupied twelve pages of the transcript, and the landlord was unable to explain the nature of the broken hook to the Member due to her language difficulties.

[40][2013] VSC 52, [82].

At the hearing before me, in addition to repeating some of the matters covered in her affidavits and submissions filed to date, the landlord submitted:

(a) in respect to the question of whether the landlord refused an interpreter:[41]
[41]T7-8.

The Member advised me that, ‘We have got notification from the interpreter service that that they weren’t able to provide an interpreter. I am concerned that if you consider you need an interpreter that we won’t be able to provide that today. It’s really a matter for you. Ms Shah, you don’t have anything else assisting you here today. You are doing the application by yourself.’
So my answer was no, but my answer was no for the question, ‘You don’t have anyone else assisting you here today’. My answer was not that I don’t need an interpreter. And then I say that, ‘But if we can just translate in a simple language, if I can’t understand somewhere, then it will be all right.’

(b) it was the landlord’s understanding, based on the Member’s statement at the outset of the hearing, that ‘anytime, if I don’t understand anything, then we can stop the hearing’;

(c) the Member ‘gave surety’ to the landlord that she could adjourn the hearing and secure an interpreter, but did not advise the landlord as to when she could ask to adjourn the matter, if an adjournment was required;

(d) with respect to the Member’s conduct of the VCAT hearing:

(i) the landlord had struggled to explain the damage to the floor to the Member due to her limited vocabulary, which she attributed to her non-English speaking background. This is evidenced by the landlord’s repetition of the phrase, ‘the top layer of the floor came out’;

(ii) although the Member requested an invoice for the oven, the Member did not consider the relevant evidence and did not show any willingness to ask if the landlord had any other evidence available;

(iii) the landlord found it difficult to explain that the hook in the bathroom had been moved from its position. For example, the landlord was confused between the terms ‘condition’ and ‘position’;[42]
[42]T13-14.

(iv)the Member also found it difficult to understand the landlord, such as when the landlord gave evidence about the state of the kitchen and the Member stated ‘Gosh, I am confused’ yet did not adjourn the hearing and proceeded anyway;

(v) a self-represented litigant from a non-English speaking background ought have ‘enough support’ and a fair hearing, particularly when dealing with legal matters, and ‘[it] would not take this long if the person’s English is good enough to understand and explain things’;

(e) if she had an interpreter, she would have operated on the ‘same level’ as the defendant, and would have had the ability to understand what she was told and to present her material more accurately;[43]

(f) she made multiple requests for an adjournment as she had not had the opportunity to present all of her evidence, including evidence which was ‘crucial for the case’; and

(g) she had not understood that the Member was making her final decision, when the Member gave her oral reasons.

[43]T13, 9-14.

I accept that if the landlord required an interpreter, and was not provided with an opportunity to present her case with the assistance of an interpreter, the Member could arguably have breached her obligation to afford procedural fairness to the landlord. In Yahome v Delic,[44] a decision relied upon by the landlord, I stated as follows:[45]

There must be many instances where the Tribunal is faced with parties with poor English skills necessitating the use of an interpreter. Apparently the VCAT website informs parties that if an interpreter is required, upon application VCAT will arrange for an interpreter to attend a hearing at no cost to the parties. There may well be situations where, even where no such application is made, it is abundantly clear that a hearing should not proceed in the absence of an interpreter. This is not such a case. While it is apparent from the transcript that Mr Lin’s spoken English is not fluent, there is no suggestion that he was unable to understand what was said by the Senior Member, or by the witnesses or the solicitor for the purchasers. No complaint along those lines or request for assistance was made during the course of the hearing. Further, contrary to the submissions made on behalf of Yahome, it is clear from the transcript, the oral ruling delivered by the Senior Member with respect to the adjournment, and his reasons for judgment, that the Senior Member understood what Mr Lin was intending to convey in his evidence and submissions. Further, Mr Lin’s affidavit in support of the application for leave to appeal did not contain an interpreter’s certificate, he did not depose that he was unable to comprehend written or spoken English, and his solicitor, Mr Ferraro (who, given his surname, presumably took instructions from Mr Lin in English), makes no reference in his correspondence or affidavit to any difficulties Mr Lin experiences in that regard. Accordingly, even if the VCAT Act imposes upon the Tribunal an obligation to ensure that certain parties or witnesses must be assisted by an interpreter (and counsel for Yahome properly conceded there is no authority in support of that contention), the factual basis for imposing such an obligation is absent in this case.

[44][2013] VSC 52.

[45]Ibid [82].

In my view, this is not a case where the landlord’s difficulties with English were so severe or so obvious as to warrant the intervention of the Member to adjourn the hearing to enable the landlord to have the assistance of an interpreter.

The landlord was not materially disadvantaged by the absence of an interpreter at the VCAT hearing, and the Member made no error in proceeding to hear the landlord’s application in the absence of an interpreter. First, it is apparent from the evidence before the Member, the transcript of the hearing before the Member, the written affidavits and submissions filed in this proceeding, and her two appearances before me that the landlord is reasonably proficient in both written and spoken English. While her command of English is perhaps not quite what might be expected of a law student at an Australian university, it was more than adequate for the task of representing herself in a tenancy dispute before VCAT. Any disadvantage suffered by her in presenting her case at VCAT arose out of her lack of preparation (such as her failure to obtain quotations for particular works she claimed were necessary), or her failure to understand the procedure at VCAT (such as her failure to understand that her claims were limited to what was contained in her application), which are difficulties which may be attributable more to her status as a self-represented litigant rather than her lack of proficiency in English. That said, given that both parties were self‑represented, it could not be said that the Member failed to assist either party to present their case, and she conducted the hearing in a fair, thorough and orderly fashion.

In her submissions, the landlord referred to a twelve page extract of the transcript of the hearing before the Member to illustrate the difficulties caused by her difficulties with English. This part of the hearing concerned the landlord’s claim with respect to the damaged floor. I accept that this extract of the transcript shows some confusion on the part of all concerned regarding this aspect of the landlord’s claim. In particular, someone with a better command of English (or a better understanding of commonly used building materials) might have referred to the ‘top part of the floor’ as a veneer.

There was also some confusion concerning the condition of the rangehood,[46] although the confusion seemed to arise out of what was shown in the photographs provided by the landlord rather than any language difficulties. In any event, any confusion did not alter the outcome of the Member’s decision. The Member accepted the landlord’s claim with respect to the damage to the floor, implicitly rejecting the tenant’s contention that the apparent damage was a naturally occurring discolouration in the grain of the timber floor. The fact that the Member discounted the claim for depreciation and fair wear and tear does not alter the fact that she accepted this aspect of her claim. She also accepted the landlord’s claim for the cleaning of the rangehood. Further, I do not accept that any confusion regarding the evidence, along with anything else that transpired during the course of the hearing, should have prompted the Member to cease hearing the application until an interpreter was available. The Member made it clear at the outset of the hearing that the landlord was to alert her at any time if she was having difficulties in understanding what was going on. The landlord did not do so at any stage during the course of the hearing, at least until after the Member commenced giving her decision and her reasons with respect to the landlord’s claims. It appears from the transcript of this part of the hearing that the landlord well understood what the Member had decided; rather, she took issue with what the Member had decided. Only then did the Member raise the question of an interpreter.
[46]T31-32.

Finally, I cannot ignore my own experience in this proceeding. The landlord appeared before me on two occasions. A short hearing was held on 20 July 2018, where the landlord applied for and was granted an adjournment of the hearing date. The landlord was not accompanied by an interpreter, and she had no difficulty making (and I had no difficulty understanding) her submissions. During the course of that hearing I indicated to the landlord that if she was unable to appear on the next occasion, I would determine the matter on the papers: that is, I was satisfied that the landlord’s written submissions were of sufficient detail and clarity to enable me to determine this proceeding without oral submissions. I note that these affidavits and submissions appear to have been prepared by the landlord without the assistance of an interpreter: there is certainly no certificate to that effect.

As noted in paragraph 11 above, approximately one hour and twenty minutes of a hearing which lasted less than two hours was taken up with the landlord’s oral submissions. While for a substantial part of that time the landlord read from a prepared script, she also departed from that script from time to time to take me to particular documents in evidence and particular parts of the transcript below to support her submissions. She also appeared to understand and was able to respond to queries I raised during the course of the hearing concerning how long the Member stood the matter down for after hearing the evidence of the parties, whether she knew for certain that the Member had or had not reviewed the email correspondence between her and the tenant she sought to rely upon at the hearing, and what assistance she required to support her university studies. I am also not convinced that it was necessary for the landlord to have the brief oral submissions of counsel for the landlord translated for her.

Accordingly, I do not find that there has been any breach of procedural fairness on the part of the Member by failing to ensure that the landlord was assisted by an interpreter. Further, for completeness, the Member’s refusal to grant an adjournment during the course of giving her reasons was quite proper in all of the circumstances.

Whether VCAT failed to take into account relevant evidence

The landlord contended that the Member did not accept or consider relevant evidence, including:

(a) the Member did not accept the relevant quotation for the oven that the landlord provided at the hearing but instead used an internet quotation for a different model;

(b) the Member did not consider the installation charge for replacing the oven;

(c) the Member did not properly consider the cleaning expenses;

(d) the Member did not consider the water bill incurred by the defendant that the landlord received only after the application was filed; and

(e) the Member did not go through the email evidence presented by the landlord.

The affidavit of the landlord sworn on 14 July 2017 also referred to the letter to VCAT, where she stated that the cleaning product used by the tenant in the oven had damaged the tissues in her throat, but the Member had not addressed that issue.

The landlord submitted that the Member failed to observe ss 97, 98 and 102(1)(a)of the VCAT Act when conducting the hearing, and cited a number of authorities in relation to the principles of natural justice.[47]
[47]Keirl v Kelson [2004] VSC 224, [5], Dona Homes (Vic) Pty Ltd v Stevens [2005] VSC 499, [20]; Beling v Dimkovski [2006] VSC 17, [11]; Sinclair v Tripodis Constructions Pty Ltd [2013] VSC 722, [18].

At the hearing, the landlord made the following submissions with respect to this ground of review:

(a) the Member did not review a bundle of emails comprising quotes from cleaning companies or a water bill, even after numerous requests by the landlord;

(b) the Member agreed with the tenant in respect to matters concerning the stovetop, in circumstances where the landlord had handed up a condition report acknowledged by the tenant when he started to live in the apartment in support of her claim, and there was no evidence to support the tenant’s contentions;

(c) the Member acknowledged that the landlord’s letter to VCAT and requested that the letter be shown to the tenant, then subsequently refused to take it into consideration by saying it was not part of the landlord’s application. The Member did so in a ‘formal’ manner, which contravened ss 97, 98(1) and 102 of the VCAT Act;

(d) the Member refused to take into account the landlord’s submissions in respect of the installation charge for the oven;

(e) she did not understand that she had to present everything to the Member she wished to rely upon at the hearing that day; and

(f) the landlord attempted to raise the matter of the tenant’s alleged sub‑let, but the Member changed the topic and was not cooperative or informal as required by ss 97 and 98 of the VCAT Act.

A summary of the landlord’s evidence in respect to each of the relevant matters follows. The tenant did not make any specific submissions in relation to this matter, relying instead upon his overarching submissions that the application was an impermissible attempt to re-litigate the factual matters determined by the Member.

Oven quotation and installation charge

In the landlord’s affidavit sworn on 14 July 2017 in support of her application, she deposed as follows:

The VCAT Member used an internet price of $1,200 stated in my application for a random model for replacing my oven that was destroyed by the tenant and refused to accept a proper quotation of $1,290 from the manufacturer of my oven model H4402B that I provided to the VCAT Member at the hearing.
The VCAT Member refused to consider the installation charge of $250 which was provided in the Miele quotation as well and told me I needed to make a new application if I wished to claim this charge.
I am not able to buy a new oven to replace my oven destroyed by the tenant because the amount that the VCAT Member allowed is too low.

In her affidavit filed on 19 July 2017, the landlord exhibited a Miele tax invoice dated 5 May 2017. This document was read out aloud by the Member at the VCAT hearing. The invoice included an $87.00 ‘service fee’ charged to the landlord for a Miele technician’s services and stated as follows:[48]

Symptom: cemical [sic] smell
Result:found that cleaner had been used to clean removed back panel of unit to check, found residues of cleaner on back wall. Smells of chemical cleaner . it [sic] has damaged back panel turning it white .unit is not in a usable condition because of chemical cleaner used.
[48]Exhibit TS-1 to affidavit sworn by landlord on 19 July 2017.

Quotes for cleaning and repairs

In her affidavit sworn on 14 July 2017, the landlord deposed:

For cleaning, the VCAT Member did not consider the bond clean as normally minimum 3 hours at $45 an hour; instead the VCAT Member only allowed for one hour.

The landlord filed a further affidavit on 27 October 2017. She stated as follows:

In respect of paragraph 16 of my earlier affidavit, the VCAT Member only allowed for an hour at $45 for the cleaners. The Member failed to consider that the bond cleaners usually charge a minimum three hours at $45 per hour. This is because the cleaners cannot clean the kitchen, two bathrooms and a balcony in just one hour. I got two quotes. The cheaper quote was $35 multiplied by 4 hours, equals $140. The more expensive quote was $225.
The VCAT Member had also allocated only $50 the damage to the wall. The Member failed to consider that just the service callout fee will cost $150. Any actual work done incurs an additional charge.

The landlord’s affidavit sworn on 27 October 2017 exhibited three emails comprising quotes for cleaning and floor repairs. The two cleaning quotes included:

(a) an email dated 13 April 2017 from a cleaning company which stated:

Further to our telephone conversation the cost to clean 1 kitchen plus 2 bathrooms is $35.00 per hour with a minimum of 3 hours. Depending on the condition I estimate around 4 hours but the cleaner will advise you exactly how long when he arrives.

(b) an email dated 13 April 2017 from a second cleaning company which stated:

Quote for cleaning kitchen, 2 bathroom, 2 toilet – is $225

The quote for floor repairs was exhibited in the form of an email from a floor service company to the landlord dated 25 October 2017 (that is, a number of months after the VCAT hearing), which stated:

Our call out fee is $150 and min charge for jobs is $1100, thanx

Water bill

In her affidavit sworn on 14 July 2017, the landlord deposed as follows:

The VCAT Member refused to consider an unpaid bill of about $240 that I received from South-East Water after the application was lodge (sic); this bill was incurred by the tenant but the VCAT Member told me that I had to lodge a new application for this claim.

In his affidavit sworn on 14 November 2017, the tenant deposed that this was a matter not contained in the landlord’s claim.

The landlord contended that she had raised this matter at the VCAT hearing but the Member failed to take this relevant evidence into consideration, and told her that she had to lodge a new application.

Email evidence

In her affidavit sworn on 14 July 2017, the landlord deposed:

The VCAT Member did not go through important email evidence that I presented at the hearing. This email evidence is email correspondence between the tenant and myself about the damage the tenant caused to my property.

The landlord’s affidavit sworn on 19 July 2017 also exhibited email correspondence exchanged between the parties in the period from March to April 2017 in respect to a range of matters, including:

(a) arrangements for final inspection, including a ‘final inspection checklist’ circulated by the landlord;

(b) ‘dirty sinks’, in respect of which the tenant advised the landlord that he was making arrangements to be ‘deep cleaned’;

(c) floor damage, including emails exchanged with a view to the tenant securing a quote to repair the floor;

(d) the state of the stove and oven, in respect of which the landlord stated:

You did show me and confirmed with me that the gas top and Oven were cleaned by Professional cleaners, but it was not cleaned at all, both side of the corner of the Oven was greasy and inside the tray was oily and greasy as well.

(e) wall damage, including an email from the landlord dated 9 April 2018 stating:

I came yesterday afternoon about 5pm…I have seen the damage of the wall which was very severe and that made me very worried and upset as it is new property.
The damage was not there at the time of last week scheduled inspection ( 2^nd of April 2016)…”

(f) the subletting of the premises, including emails exchanged between the landlord and the Flatmates.com website administrator in relation to a sublet listing and an email from the landlord to the tenant dated 9 April 2018 stating:

While I was talking to you the strange person jumped in the conversation very rudely telling me that it was disgusting that I was asking about the damage of the wall was not there during last Sunday’s inspection, you said that you gave the other room to that person which is not in a contract which you signed, that way you have breached the contract by sub leasing the room and that strange person has no right to interfere in our conversation of Landlord and Tenant.

(g) the removal of smoke detectors from the bedroom;

(h) various concerns in relation to the light fittings, ceiling and tiles on the balcony;

(i) various property management matters of a routine nature; and

(j) an email from the tenant to the landlord in which he advised that he had ‘worked very hard over the weekend to clean the apartment meticulously’ and expressed his view that he ‘would consider any issue you have identified as ‘general wear and tear’ that is normal during residential tenancy of a rental apartment.’

The landlord submitted that the Member failed to consider any of the landlord’s email evidence, including communications between the landlord and tenant, and photographic evidence, copies of which the landlord brought to the VCAT hearing and which the landlord submitted were ‘very crucial’ to the matter. The landlord submitted that, in failing to review the emails, the Member had contravened s 102 of the VCAT Act.

Under this head of review the landlord is, at first glance, seeking to impermissibly review the factual findings made by the Member. Accordingly, this ground of review could be dismissed as not disclosing any error of law on the part of the Member. However, embedded within the landlord’s submissions are allegations that the Member failed to afford the landlord a reasonable opportunity to present her evidence, which amounted to a denial of procedural fairness. I accept that the authorities relied upon by the landlord[49] and ss 97 and 98 of the VCAT Act required the Member to provide the landlord a reasonable opportunity to present her case. The question here is whether she did so.
[49]Collection House Ltd v Taylor (2004) 21 VAR 333.

In my view, the allegation that the Member failed to give the landlord the opportunity to properly present her case, or failed to properly consider the evidence is without foundation. The landlord simply takes issue with the factual findings of the Member, which provides no basis for relief by way of judicial review.

Standing back for a moment, it is noteworthy that the Member accepted most of the landlord’s claims. She simply awarded less by way of compensation than the landlord wanted. Whether another tribunal member or this Court might have made a more generous award is neither here nor there: these are findings of fact which were open to the Member to make.

The Member accepted the landlord’s claim for the cost of repairs to the timber floor, but discounted the claim for wear and tear and depreciation, as was open to her. She accepted the landlord’s claim for the replacement of the oven, but limited the sum to the amount claimed by the landlord in her application, discounting that sum further for wear and tear and depreciation, as was open to her. She made an allowance for cleaning of the kitchen on the basis of one hour, which is unremarkable. She made an allowance for damage to the wall, notwithstanding that this was not part of the landlord’s original application, but awarded a nominal sum only, given that the landlord had failed to produce any quotations for the cost of the works.

The Member did not accept all of the landlord’s claims. She did not accept the landlord’s claim for cleaning the toilet, as the landlord had done that herself, and as such, the landlord had suffered no loss. The Member rejected the landlord’s claim that the tenant pay part of a $260.00 water bill, as it was not part of her application. She rejected the landlord’s claims in relation to cleaning under the kitchen sink, and removal of cobwebs, referring to VCAT’s practice of applying ‘a standard of a normal clean, not a spring clean’. She rejected a claim in respect of a hook which had been moved from one part of a wall to another. She rejected a claim for the costs of the installation of a new oven agitated after she delivered her ruling. She did not address the landlord’s allegation that the cleaning product used in the oven damaged the tissues in her throat, but no claim had been made by the landlord in relation to that matter. She did not address the landlord’s complaint about the tenant having sub‑let a room at the premises, but the landlord made no claim for compensation in relation to that matter.

It could not be said that the Member’s findings were findings that no reasonable tribunal member could make. Further, I reject the landlord’s submissions that she was not given a proper opportunity to present her evidence. The duration of the hearing was approximately an hour and a half, and most of the discussion during the hearing was between the Member and the landlord. The tenant intervened only occasionally. It is not entirely clear from the landlord’s affidavit evidence, the transcript of the hearing below or the landlord’s responses to my questions at the hearing whether the landlord provided the Member with all of the documents she had brought with her to the hearing, but the Member was provided with some documents during the course of the hearing. Before me, the landlord submitted that the Member had not considered ‘the emails’ she brought with her to the hearing. However, it is not entirely clear whether the landlord had actually provided the Member with these documents.[50] The Member could only consider the evidence she was provided with. Second, if she had been provided with these documents, given that the Member stood the matter down and left the hearing room to consider her ruling (for a period of time I was unable to ascertain), I could not be positively satisfied that she did not review these documents. Finally, in any event, these documents included quotes for cleaning. Their contents would not have altered the Member’s view that the landlord was not entitled to compensation for all of the claims made by the landlord with respect to cleaning. This ground of review is not made out.
[50]A bundle of emails were exhibited to Ms Shah’s affidavit of 27 October 2017. In response to a question from me, the landlord said that she could not recall whether she had provided the Member with these documents.

VCAT’s calculation of depreciation

The landlord contends that VCAT used the wrong formula when allowing for ‘wear and tear’ or depreciation.

In her affidavit sworn on 14 July 2017, the landlord deposed as follows:

The tenant destroyed my oven and damaged my apartment floor and wall. The VCAT Member used the wrong procedure when considering wear and tear and depreciation. The Member deducted both wear and tear and depreciation for the damage of my oven, the floor and the wall.

In submissions filed on 15 December 2017, the landlord submitted, in summary, as follows:

(a) according to an ATO ruling on the depreciation of assets, the life of a wooden floor is fifteen years and the life of an oven is twelve years.

(b) it is apparent from the transcript that the Member used ten years as the benchmark for the life of the wooden floor of the premises, and for the life of the oven; and

(c) it is also apparent from the transcript that the Member found that ‘the floor was damaged at the start of the tenancy and the dents were caused during the tenancy’.

I understand these submissions to be to the effect that the Member made a greater allowance for depreciation than she should have. It is not entirely clear whether the landlord was also contending that the Member was in error by making an allowance for depreciation as well as wear and tear.

This ground of review can be dealt with quite briefly. The Member signalled to the landlord during the course of the hearing that any compensation payable would be discounted for depreciation. The landlord did not challenge the correctness of this approach either before the Member or before me. Rather, she complains that the Member did not follow the ATO guidelines (which were not provided to the Member at the hearing below).

There was no error of law on the Member’s part in relation to this issue. The methodology used by the Member in calculating depreciation is ultimately a question of fact, within the bounds of reasonableness. The Member was not bound to follow the ATO guidelines, although of course she would not have been in error had she done so. Further, while strictly speaking it is not an issue I need to concern myself with here, given that no legal error has been disclosed, a reviewing court should be cautious to override the judgment of expert members of a specialist tribunal on factual determinations they make on a routine basis.

Conclusion

There was no breach of procedural fairness on the part of the Member. The landlord has not made out any of her grounds of review, but rather, has simply sought to re‑litigate the matters in dispute before VCAT, at some trouble and expense to the tenant. The proceeding will be dismissed.

[2018] VSC 562

18 October 2018