Tamas v VCAT and Ors
[2002] VSC 309
•7 August 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 6002 of 2002
| GABOR TAMAS | Plaintiff |
| v | |
| VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | First Defendant |
| - and - | |
| LEANNE O’LOUGHLIN | Second Defendant |
| - and - | |
| HOUSING GUARANTEE FUND LTD | Third Defendant |
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JUDGE: | GILLARD J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 July 2002 | |
DATE OF JUDGMENT: | 7 August 2002 | |
CASE MAY BE CITED AS: | Tamas v VCAT and Ors | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 309 | |
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JUDICIAL REVIEW – Certiorari – Decision by VCAT – Costs payable by representative of party – Section 109(4) of the Victorian Civil and Administrative Tribunal Act 1998 – No jurisdictional error or error on face of record.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S. O’Bryan | Rossi Ryan & Raniga |
| For the First Defendant | No Appearance | |
| For the SecondDefendant | Mr W. Houghton Q.C. with Mr S. Stuckey | Coadys |
| For the Third Defendant | Mr A. Archer (Solicitor) | Minter Ellison |
TABLE OF CONTENTS
The Victorian Civil and Administrative Tribunal matter.......................................................... 1
The Decision Under Review............................................................................................................ 2
Prerogative Writ Relief in the Form of Certiorari........................................................................ 3
The Cost’s Orders............................................................................................................................... 6
Conclusion......................................................................................................................................... 11
HIS HONOUR:
This is the return of a summons in a proceeding instituted by originating motion, in which the plaintiff seeks relief in the nature of certiorari to quash a decision made by the Victorian Civil and Administrative Tribunal (“VCAT”) concerning costs.
The proceeding is brought pursuant to Order 56 of the Rules of Court and seeks judicial review of the decision. The plaintiff has not sought to appeal the decision pursuant to the Victorian Civil and Administrative Tribunal Act 1998 – see s.148.
As the plaintiff was not a party to the proceeding, there is doubt whether he could have exercised the right under s.148 to seek leave to appeal.
The Victorian Civil and Administrative Tribunal matter
The second defendant, Leanne O’Loughlin (“Ms O’Loughlin”), brought an application in the Domestic Building List of VCAT. The third defendant, the Housing Guarantee Fund Ltd (“the Fund”), was the first respondent to her application, and the company, Gabor Tamas Constructions Pty Ltd (“the Company”), was the second respondent.
The plaintiff, Gabor Tamas (“the plaintiff”), was at all relevant times a director of the Company but was not a party to the application.
Ms O’Loughlin purchased a new home which had been built by the Company. After purchase, she ascertained a number of defects in the home and made an application to the Fund for compensation. The Fund evidently accepted her application for compensation but the plaintiff made a statutory declaration to the effect that the Company was not the builder. As a result, the Fund refused Ms O’Loughlin’s claim.
This led to her bringing the proceeding in VCAT.
The application came on before Dr Cremean, a Deputy President of the Tribunal, and was heard over some eight days between 3 June 2001 and 10 July 2001. On 14 September 2001, Dr Cremean published his decision and reasons. The result was that Ms O’Loughlin was successful in her claims.
The application was re-listed on 22 April 2002 for hearing and determination of a number of outstanding matters, including the costs of the proceeding. Counsel for Ms O’Loughlin and the Fund applied for an order that Mr Tamas personally pay their client’s costs. The basis for the submission was that Mr Tamas was a representative of a party, namely, his company, Gabor Tamas Constructions Pty Ltd, within the meaning of sub‑s.109(4) of the Act and in the circumstances, ought to pay costs personally.
The Decision Under Review
Dr Cremean reserved his decision on the question of costs and on 29 May 2002, he published his decision, together with reasons.
After ordering Gabor Tamas Constructions Pty Ltd to pay Ms O’Loughlin the sum of $19,635, he further ordered that the Housing Guarantee Fund Ltd pay the said sum without prejudice to its rights to recover the sum from the Company.
Paragraphs 5 and 7 dealt with costs against the plaintiff and were expressed as follows –
“5.I order the costs of the applicant (including any reserved costs) be paid by Mr Gabor Tamas under s.109(4) of the 1998 Act.
6.…
7.I order the costs of the first respondent (including any reserved costs) to be paid by Mr Gabor Tamas under s.109(4) of the 1998 Act.”
The applicant was Ms O’Loughlin and the first respondent was the Fund.
The plaintiff has instituted this proceeding, seeking to have quashed those orders on the ground that VCAT was not empowered and had no jurisdiction in the circumstances to make orders for costs personally against Mr Tamas.
VCAT was served with the proceeding but did not appear, and it is assumed will abide the order of the Court.
Prerogative Writ Relief in the Form of Certiorari
The jurisdiction of this Court to grant what is known as prerogative writ relief is an ancient one and is now subject to procedural rules laid down in Order 56. The Order is concerned with procedure and abolishes the remedies in the nature of old prerogative writs but nevertheless, preserves the jurisdiction of the Court to make such orders. It is clear the rules do not affect the common law jurisdiction of the Court and it is equally clear that the Court has jurisdiction to make an order in the form similar to the old prerogative writ of certiorari, namely, quashing the decision under review.
The jurisdiction applies to inferior courts and tribunals. The jurisdiction is supervisory and does not entitle this Court to canvass matters that it would on an appeal. The judicial review procedure is concerned with the legality of what was done by the Tribunal and is not concerned with the merits of the decision under review. This is to be contrasted with an appeal, where the question usually is whether the decision is right or wrong, whereas the decision on a judicial review is whether the decision is in accordance with the law.
The scope of the supervisory jurisdiction where the relief claimed in the nature of the old writ of certiorari, namely, quashing the decision or order, was summarised by the High Court in Craig v South Australia (1994) 184 CLR 163 at 175-76.
The jurisdiction is concerned with the decision making process. See Chief Constable of North Wales Police v Evans (1982) 1 WLR 1155 at 1173 and R v District Court; ex parte White (1966) 116 CLR 644 at 655.
The High Court in Craig’s case, supra, at p.176 stated that in considering jurisdictional error, “it is necessary to distinguish between, on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ.”
The Court went on to say at p.177 -
“An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist.”
On the other hand, as the Court pointed out at pp.178-179, there is a critical distinction which exists between administrative tribunals and courts of law in respect to jurisdictional error and as a general proposition, an administrative tribunal usually lacks authority to authoritatively determine questions of law or to make an order or a decision otherwise than in accordance with the law.
Whether or not for present purpose VCAT is to be equated with an inferior court or an administrative tribunal is an interesting and difficult question.
In RSL v Liquor Licensing Commission [1999] 2 VR 203, the Court was dealing with the Liquor Licensing Commission and an argument was put that the Commission in many ways resembled a judicial tribunal. Indeed, the same may be said about VCAT, especially when the presiding member is a qualified lawyer.
Phillips JA at p.210 had this to say –
“But in this area the concern is not so much with the trappings, or indeed the final classification (if that is possible) of the body in question, but with the jurisdiction conferred upon it by the statute, in the sense of functions committed to it. It was to that end that their Honours (in Craig’s case) were contrasting a court of law with a purely administrative tribunal, pointing out that a court of law will commonly have the jurisdiction to decide questions of law as well as fact, so that if the court of law goes wrong when deciding a question of law it will be less likely to have fallen into jurisdictional error. But that is not because the body in question is classified as a court of law and not an administrative tribunal but because being a court of law it probably has committed to it by the Parliament the task of deciding the question of law, whether it decides it rightly or wrongly – and in so deciding, even if it goes wrong, it does not stray outside its jurisdiction. If erroneous, its decision may well be open to appeal, but it will not be subject to prerogative writ for want or excess of jurisdiction (even if amenable to such relief if error of law is disclosed on the face of the record).”
(Emphasis added).
The issue whether the error was one which affected jurisdiction was primarily one of construction of the statute which gave the power or authority to the body to make the decision, per Phillips JA, supra, at p.211.
At p.215, his Honour concluded –
“Accordingly, in a case like the present the essential search must be for the task which is confided to the body whose decisions are under attack; for only if that body strays beyond that task will there be a want or excess of jurisdiction.”
(Emphasis added).
In my opinion, that is the task which faces the Court on a judicial review such as the present. It is a limited jurisdiction, the Court is not hearing an appeal and generally is not concerned with the merits. It is concerned with the decision-making process. Did the decision-making body make an error which showed that it did something which it did not have the power or authority to do?
This error may occur at the assumption of jurisdiction or may occur in the exercise of the jurisdiction. What this Court is concerned with at the outset is to consider and determine what power or authority was given to the body to make the decision, and having identified the alleged error, consider and determine whether the body’s exercise or purported exercise of power was affected by an error which resulted in it exceeding its authority or powers. That is, did it act without jurisdiction?
The presiding Tribunal member, Dr Cremean, is a qualified lawyer. Jurisdiction is given to VCAT to decide questions of law. See s.107 of the Act. The question of law must be decided by a judicial member or a member who is a legal practitioner.
It follows, in my opinion, that in order for the plaintiff to establish error, the plaintiff has to establish either that VCAT was guilty of jurisdictional error or that it made an error of law which is disclosed on the face of the record.
That conclusion follows, because of the nature of the Tribunal presided over by a qualified legal practitioner authorised to decide questions of law.
The Cost’s Orders
Section 109 of the Act deals with the power to award costs.
Section 109(4) provides –
“(4)If the tribunal considers that the representative of a party, rather than the party, is responsible for conduct described in sub‑s.(3)(a) or (b), the tribunal may order that the representative in his or her own capacity compensate another party for any costs incurred unnecessarily.”
Section 109(3)(a) and (d) deals with relevant matters to take into account in making the decision whether a representative of a party should pay costs personally.
The costs’ orders made against the plaintiff were made pursuant to s.109(4).
It is clear that the Tribunal does have jurisdiction to make such an order against a representative of a party. The plaintiff was not a party; his company was. It follows that Dr Cremean was acting within jurisdiction when he made the order. It follows that certiorari is not available on the ground that the Deputy President was guilty of making a decision without jurisdiction. VCAT did have the jurisdiction to make the order.
However, it is put that he was guilty of error in the decision-making process, in that it was submitted that the plaintiff was not a “representative of a party” within the meaning of that section.
That is, in exercising the jurisdiction, Dr Cremean made an error of law. This can only be an error which results in the decision being quashed, if the error is one of law disclosed on the face of the record.
What constitutes “the record”?
There has been some controversy about what constitutes the record. The Rules require, as does the common law, the production of the record.
The common law confined the record to the pleadings and the actual record of the order or decision made. It did not include the reasons for the decision or the transcript of the proceedings, unless they were in fact incorporated into the record by reference. See Craig’s case, supra, at pp.181-82.
However, by reason of s.10 of the Administrative Law Act 1974, the record now includes the reasons for the decision. See Thompson v Judge Byrne [1998] 2 VR 274 at 280, and RSL v Liquor Licensing Commission [1999] 2 VR 203 at 209.
As VCAT clearly had jurisdiction to make an order against somebody who was not a party to the proceeding, the sole question for consideration in this review, is whether Dr Cremean, in the decision-making process, made an error of law which was revealed or disclosed on the face of the record? This Court is not concerned with the merits of the decision or whether he was right or wrong in arriving at that decision but is confined to whether or not he made an error of law disclosed on the face of the record. The error is confined to the decision-making process.
In his reasons, he discussed in Part C the issues. He said –
“15.Various submissions were made to me on the question of costs. …
16.Section 109(1) prescribes in the first place that parties must bear their own costs. Under s.109(2), however, considering 109(3), the tribunal is able to depart from this position if satisfied it is fair to do so, having regard to the matters set out in the latter. This is to paraphrase the provisions, of course.
17.(Dr Cremean stated that it was fair that the applicant should have her costs.)
18.As regards the applicant, were it not for s.109(4) of the Act, I would be satisfied that her costs should be borne by the second (the Company) and the fifth (JSC Builders Pty Ltd) respondents. In the case of each I am satisfied as required under s.109(3) having regard to each of its paragraphs. Each such party, as I have indicated, is equally to blame, in my view for the loss and damage she suffered.
19.However I am satisfied that, in this case, for reasons I outlined at the hearing, s.109(4) of the Act is attracted.
(The sub-section was set out.)
.20.Mr Tamas himself, as a director of the second respondent, is, in my view, a ‘representative’ of the second respondent. I accede to the applications made to make orders against him personally. His interests and those of the second respondent are aligned and not opposed, as was conceded. No opportunity to adjourn, for notice to be given under s.109(5), was sought, although it was raised by me as an issue. I cannot regard s.109(4) as confined to legal practitioners although that is its obvious application. No phrase like ‘professional advocate’ is used. It refers only to the ‘representative’ of a party and does not say words to the effect ‘the legal representative’ of the party. Other provisions in the Act which refer to representation or to ‘representative’, make it clear that such a person does not have to be a lawyer and may be non-legally qualified. The Act clearly contemplates, consistently with its objectives, representation of some parties by non-lawyers. In other words, the word ‘representative’ is spoken of generally in the legislation and ‘the conclusion is inevitable’ (as was said in a different context in Laemthong International Lines Co Ltd v BPS Shipping Ltd (1997) 72 ALJR 129 at 134) that ‘no limitation was intended’ on the words in the provision. I cannot accept an argument that a ‘representative’ under s.109(4) includes or means a shareholder. Moreover if I focus on the statutory declaration made by Mr Tamas I am satisfied that that was made in order to deceive another party including the Fund or the tribunal. The statutory declaration I am satisfied is false and was falsely sworn. This brings in s.109(3)(a)(v) of the Act which goes to satisfying the terms of s.109(4). Yet it was the existence of that perjured document that caused the Fund to resile from the decision it had made. His ‘ploy’ continued even during the hearing in his evidence concerning Dawson Howard. But it was not a document able to be generated by the second respondent by itself which could only act via one of its officers who, on this occasion happened to be Mr Tamas. In light of s.109(4) why, it might be asked, should the second respondent have to pay in costs for something done by Mr Tamas outside the ordinary course? He was then ‘the very ego and centre of … personality of the corporation:’ Lennard’s Carrying Co Ltd v Asiatic Petrolium Co Ltd [1915] AC 705 at 713-4 per Viscount Haldane. At the relevant time he was ‘the’ representative of the second respondent, and from that time on I am satisfied he was responsible in his own capacity for the costs incurred by the applicant and the unnecessary disadvantage he has caused her. This I consider is consistent with the policy of s.109(4) considered in the context of the Act as a whole. However, that time, of course, was the time before even the proceedings had been issued. So all the legal costs incurred by her, are, in effect, included on this basis.
21.Accordingly, as regards the applicant I am satisfied I should order her costs to be paid by the fifth respondent and by Mr Tamas personally. The operation of s.109(4) appears to be such that if an order is made against the representative personally, then the party itself, which otherwise would be ordered to pay those costs, drops out of the picture, as it were. There is a clear alternative in the provision, in my view. It uses the expression ‘rather than the party’. It is not my intention, of course, that the applicant should be paid her costs twice over, however.”
The decision made by Dr Cremean was a mixed question of law and fact. He had the jurisdiction to make an order against a representative, which means a person other than the party itself. The question of law was the interpretation of s.109(4) of the Act and, in particular, the phrase “the representative of the party”. It is not open on this review to reconsider the factual questions as Dr Cremean clearly had the jurisdiction to decide the facts. The review is not an appeal on the facts.
However, in my opinion, what is meant by the word “representative” involves the construction of the Act and it is a question of law.
Dr Cremean carefully considered the issue and came to the conclusion that the phrase “the representative of a party” is not confined to the person who is permitted to represent a party as an advocate in the proceeding before VCAT.
Section 62 of the Act deals with the representation of a party before the Tribunal. A party may appear personally or may be represented by a professional advocate. Further, a party may be permitted to be represented by any person.
Mr S. O’Bryan of Counsel for the plaintiff submitted that s.109(4) was confined to the acts or omissions of a person who appears on behalf of the party at the Tribunal.
The word “representative” is not defined by the Act.
The word has a myriad of meanings, as resort to the Shorter Oxford English Dictionary shows.
But generally, it means holding the place of or acting for a body or a body of persons, standing for or in place of another, or a person who represents some other body in a special capacity.
In my view, there is nothing in the section to confine the word to an advocate representative.
Indeed, as Mr Houghton QC who appeared with Mr Stuckey for Ms O’Loughlin contended, if the Legislature intended to limit the meaning to the advocate of a party, it would have been fairly simple to have made that intention clear.
In addition, the word “representative” is used in other sections of the Act, by way of example, ss.84 and 89, where it is clear that the word “representative” covers a person, acting on behalf of the party, who was not a legal practitioner or advocate.
When one considers the type of conduct which could be the basis of an order for costs against a party, as set out in s.109(3)(a) and (b), the wrongful conduct could be committed by persons other than the professional advocate. As Mr Archer, who appeared for the Fund pointed out, it would not be difficult to give examples of a person controlling a body corporate party who causes considerable cost and expense to other parties by his act or omission. For example, failing to make proper discovery despite the efforts of his lawyer.
In construing a provision of an Act, it is necessary to consider the section in which the provision appears and the Act as a whole, and in my view, the phrase “the representative of a party” appearing in s.109(4) is not confined to the person who appears for that party before the Tribunal.
Mr O’Bryan drew attention to s.109(3)(a) which refers to “a party has conducted the proceeding in a way that unnecessarily disadvantaged another party” and submitted it supports his submission. How can a “representative of a party” conduct the proceeding? The argument overlooks s.109(3)(b) but further, in my view, a representative can have some part to play in the conduct of the proceeding. The argument, in my opinion, does not preclude the Tribunal giving full effect to s.109(4) and does not confine the wrongful conduct to an advocate’s role. That deals with the question of law.
Whether or not the person is a representative of the party is a question of fact, and Dr Cremean was of the view that the plaintiff was such a representative.
In my opinion, on the question of law, namely, the construction of the provision, I am not persuaded that Dr Cremean made any error of law and there is no error of law on the face of the record. The question of whether or not the plaintiff was a representative of the party, in those circumstances, became a question of fact and that is not subject to review. However, in my view, it was clearly open to Dr Cremean to find that the plaintiff was, as a fact, a representative of a party.
Conclusion
In my opinion, the plaintiff has not established any jurisdictional error or error of law on the face of the record and, in my view, is not entitled to any order quashing the decision made by Dr Cremean, Deputy President of VCAT, on the question of costs.
Subject to any submissions by counsel, I propose to make the following orders –
(i)That the proceeding be dismissed.
(ii)That the plaintiff pay the costs of the defendants to the proceeding.
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