Spilkin v Rosenberg - [2011] VSCA 128

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0042

MICHAEL NORMAN SPILKIN	Applicant
	v
JOHN ROSENBERG	Respondent

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JUDGES	TATE JA and MACAULAY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	6 May 2011
DATE OF JUDGMENT	6 May 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 128
JUDGMENT APPEALED FROM	Spilkin v Rosenberg (Unreported, Victorian Civil and Administrative Tribunal, Vice-President Judge Hampel, 29 March 2011)

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APPEAL – Application for leave to appeal – Residential tenancy dispute – Vice-President of VCAT refused to reconstitute tribunal following allegations against Member of denial of natural justice – Whether Vice-President erred – Leave to appeal refused.

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Appearances:	Counsel	Solicitors
The Applicant in person
For the Respondent	Mr M T Settle	Thomsons Lawyers

TATE JA:

This proceeding is an application by Mr Spilkin (‘the applicant’) for leave to appeal, pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (the ‘VCAT Act’), from the orders of her Honour Judge Hampel, Vice-President of the Victorian Civil and Administrative Tribunal, made on 29 March 2011. The application is opposed by Mr John Rosenberg (‘the respondent’) who is the landlord of 2/2A Stone St, Brighton East (’the property’), of which the applicant is the tenant. The proceeding arises out of a tenancy dispute between the applicant and respondent.

The Tenancy Dispute

On December 13 2010, the respondent applied to VCAT for an order for possession of the property, pursuant to the Residential Tenancies Act 1997, and payment of the outstanding rent. The applicant was two months in arrears.

Three hearing dates were listed between 15 December 2010 and 10 January 2011. Each of these hearings was adjourned at the applicant’s request. He remained in possession of the property and no rent payments were made.

The matter was listed for hearing on 21 January 2011. The applicant applied unsuccessfully to again adjourn the hearing. At the hearing, the tribunal ordered the applicant to pay the outstanding rent of $6,929.51 by 27 January 2011, to pay next month’s rent of $2,708 on 1 February 2011 and thereafter to resume paying rent in advance.

The applicant provided a cheque for the outstanding rent. This cheque was not honoured. The matter was listed for a renewal of proceedings on 10 February 2011. The applicant again applied for an adjournment. This application was refused. The applicant did not appear at the hearing. In his absence, orders were made for possession and payment of the outstanding rent. An explanation for this was proffered by the applicant at the hearing of the application for leave to appeal today, namely, that he believed he had made an agreement with the respondent and that this would be accepted by the tribunal. There was thus no need for him to attend. No adverse inference should be drawn from his absence and I draw no adverse inference. I consider that Judge Hampel drew no such adverse inference.

On 11 February 2011, the parties agreed that the applicant could stay in possession provided he…

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 Spilkin v Rosenberg

Details

AGLC: Spilkin v Rosenberg [2011] VSCA 128
Case: [2011] VSCA 128
Decision Date: 6 May 2011

CaseChat Overview and Summary

Spilkin v Rosenberg involved a residential tenancy dispute, with the applicant seeking leave to appeal a decision of the Vice-President of the Victorian Civil and Administrative Tribunal (VCAT). The Vice-President had refused to reconstitute a tribunal following allegations that a Member had denied natural justice in their handling of the case. The applicant argued that the Vice-President had erred in dismissing the application for reconstitution, and this error warranted an appeal. The legal issues before the court included whether the Vice-President had jurisdiction to refuse the application for reconstitution and whether the Vice-President had erred in finding that there was no denial of natural justice.

The court examined the statutory framework governing VCAT and found that the Vice-President did indeed have jurisdiction to decide the application for reconstitution. The court also reviewed the evidence presented to the Vice-President and concluded that the Vice-President was correct in finding that there was no denial of natural justice. The applicant's arguments for an appeal were found to be without merit, and the court held that the Vice-President's decision was not so unreasonable as to justify an appeal. Consequently, the application for leave to appeal was dismissed.

No further orders were made in relation to the application for leave to appeal. The decision of the Vice-President stands, and the applicant is not permitted to appeal the original decision regarding the residential tenancy dispute. The court emphasised the importance of the proper exercise of jurisdiction and the need to ensure that decisions are made based on a fair and unbiased consideration of the evidence.

Orders