Tamas v VCAT and Ors - [2002] VSC 309

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

---

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

---

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.

---

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…

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 Tamas v VCAT and Ors

Details

AGLC: Tamas v VCAT [2002] VSC 309
Case: [2002] VSC 309
Decision Date: 7 August 2002

CaseChat Overview and Summary

In the matter of Tamas v VCAT and Ors, the High Court reviewed a decision made by the Victorian Civil and Administrative Tribunal (VCAT). The primary dispute centred on the interpretation of section 109(4) of the Victorian Civil and Administrative Tribunal Act 1998, specifically concerning the circumstances under which costs payable by a representative of a party could be reviewed. The respondent argued that the VCAT had erred in its interpretation of the statute, which was pivotal to the decision on the costs in question. The court was tasked with determining whether the VCAT's decision was subject to judicial review under the grounds of jurisdictional error or error on the face of the record.

The court focused on whether the VCAT had made a jurisdictional error or an error apparent on the face of the record. It examined whether the VCAT's interpretation of section 109(4) was legally incorrect. The court held that the VCAT's decision was not flawed on the grounds of jurisdictional error or error on the face of the record. The VCAT had correctly interpreted the statutory provisions, and thus, the decision was not subject to review by certiorari. The court emphasised that the absence of a jurisdictional error or an error on the face of the record precluded any further judicial intervention.

Consequently, the High Court dismissed the application for judicial review. The court found that the VCAT's interpretation and application of section 109(4) of the Act were legally sound and did not present any basis for certiorari. The decision underscored the principle that VCAT's decisions regarding statutory interpretation and application are generally immune from judicial review unless there is a clear jurisdictional error or error on the face of the record. The final orders reflected the dismissal of the application, affirming the VCAT's decision on costs payable by the representative of a party.

Orders