Shah v Vega - [2018] VSC 562

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…

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.

Continue reading Shah v Vega

Details

AGLC: Shah v Vega [2018] VSC 562
Case: [2018] VSC 562
Decision Date: 18 October 2018

CaseChat Overview and Summary

In the matter of Shah v Vega, the applicant, Ms Shah, sought judicial review of a decision made by the Victorian Civil and Administrative Tribunal (VCAT) concerning a dispute over compensation for alleged damage to a rental property. Ms Shah, the landlord, claimed that she was denied procedural fairness during her appearance before VCAT due to the absence of an interpreter, given her limited English proficiency. The respondent, Ms Vega, the tenant, opposed the application, arguing that the procedural fairness was not compromised and that the decision was correctly made.

The primary legal issue before the court was whether Ms Shah was denied a fair hearing by VCAT due to the absence of an interpreter during the proceedings. Additionally, the court examined if VCAT had failed to consider relevant evidence and whether the tribunal member erred in the calculation of depreciation for the alleged damage. The court had to determine if these issues constituted a ground for judicial review under the Judicial Review Act 1990 (Vic).

The court found that Ms Shah's difficulties with English, while acknowledged, were not so severe or so obvious as to warrant an adjournment for an interpreter. It was determined that she was not materially disadvantaged by the absence of an interpreter and was able to present her case effectively. The court held that the tribunal member did not fail to have regard to relevant evidence, and the member was not bound to follow the Australian Taxation Office guidelines in calculating depreciation. Consequently, the court concluded that no error of law arose from any of the grounds of review, and the application was an attempt to re-litigate the tribunal's factual findings. The application for judicial review was dismissed.

As a result of the court's decision, the application for judicial review was dismissed, and no further orders were made. The VCAT decision concerning the compensation for the alleged damage to the premises remained in place.

Orders