The Big Apple Group Pty Ltd v Melbourne City Council

[2019] VSC 147

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE COMMON LAW DIVISION JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 01753
THE BIG APPLE GROUP PTY LIMITED	Appellant
v
MELBOURNE CITY COUNCIL	Respondent

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JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	11 February 2019 (subsequent written submissions on 17, 22 February 2019)
DATE OF JUDGMENT:	12 March 2019
CASE MAY BE CITED AS:	The Big Apple Group Pty Ltd v Melbourne City Council
MEDIUM NEUTRAL CITATION:	[2019] VSC 147

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PRACTICE AND PROCEDURE ― Appeal from Victorian Civil and Administrative Tribunal ― Corporate appellant ― Notice of appeal signed by company director ― Additional steps taken without legal representation ― General requirement that corporation shall not take any step save by a solicitor ― Applicability of requirement to appeal from a Tribunal ― Factors for dispensing with rule ― Rule applicable ― Dispensation refused ― Stay ordered ― Supreme Court (General Procedure) Rules 2015 r 1.17 ― Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 r 4.06

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APPEARANCES:	Counsel	Solicitors
Mr B.O Mako’ochieng (the sole
director for the appellant)
For the Respondent	Ms L Papaelia	Maddocks
HIS HONOUR:

1           The appellant, a corporation, has filed a notice of appeal against an order of the

Victorian Civil and Administrative Tribunal made on 3 September 2018. The order

under appeal is an offshoot from a dispute concerning a retail premises lease of a

nightclub in Bourke Street Melbourne known as ‘The Red Violin’. The appellant was

the lessee and applicant in the Tribunal. The Melbourne City Council was the lessor,

respondent and counterclaimant. The dispute was settled on terms in a deed of

settlement. In accordance with that deed, the appellant and the Council consented to

an order that the claim and counterclaim be dismissed, with no order for costs. They

were final orders. The appellant was legally represented.

2           A little under five years later, the appellant (acting without legal representation)

applied within the pre-existing Tribunal proceeding to set aside the consent order. It

did so on the ground that the deed of settlement was obtained under the influence of

the Council’s fraudulent or misleading and deceptive conduct. The Tribunal

decided with written reasons that the orders were final; the Tribunal was functus

officio with no implied or inherent power to set aside a perfected consent order. That

is, as it had already and finally discharged its statutory function on the matter, it had

no power or jurisdiction to alter its own decision, which could only be questioned in

separate proceedings on appeal (or I would add the possibility of judicial review) to

a Court.

3           On the application of the Council, the Tribunal made a subsequent order that the

appellant pay the Council’s costs on the standard County Court scale. Costs orders

are unusual in the Tribunal. The general rule is that each party bears its own costs

but the Tribunal has the power to make a costs order ‘only if satisfied that it is fair to

do so having regard to whether a party has conducted the proceeding in a way that

unnecessarily disadvantaged another party to the proceeding.’ having regard to

various factors.[1] Applying those factors, The Tribunal found that the application to

[1] See s 109(3) of the VCAT Act.

set aside the consent order was vexatious; it had no tenable basis; the appellant came

‘nowhere near’ showing any fraud; the appellant had unreasonably prolonged the

conduct of application by producing a ‘huge amount’ of material that was irrelevant

with case law that was inapplicable or was easily distinguishable; and the conduct of

the application put the Council to costly labours and loss of time to the Tribunal.

4           The sole director of the appellant is Mr Bernard Otieno Mako’ochieng. He holds one

of the two issued shares in the company. The hearing before the Tribunal that made

the order under appeal was conducted personally by him as director on behalf of the

company. He was able to represent the company because s 62(3) of the Victorian

Civil and Administrative Tribunal Act says that a corporation that is a party may be

represented by a director, secretary or other company officer. Such a statutory

provision concerning representation of parties in the Tribunal is consonant with its

statutory charter of allowing proceedings to be conducted with as little formality

and technicality as the matter before it permits, and minimising cost.

5           There is no such provision in the Courts. In the Supreme Court, rule 1.17(1) of its

General Civil Procedure Rules 2015, says that ‘Except where otherwise provided by or

under any Act or these Rules a corporation, whether a party or not, shall not take

any step in a proceeding save by a solicitor.’ There is an identical rule 1.17 in the

County Court Civil Procedure Rules 2018. It is the same in rule 1.17(1) of the

Magistrates Court General Civil Procedure Rules 2010 although there are some

exceptions for certain steps.[2] In the Federal Court, the firm language is ‘A

[2]              Under rule 1.17 (2) the rule does not apply to the filing of a complaint, or a defence, a request for default judgment or a request for a warrant of seizure and sale.

corporation must not proceed in the Court other than by a lawyer.’[3]

[3] Rule 4.10 Federal Court Rules 2011.

6           The prevalence of such a rule shows its importance. It is not based on technicality.

It is recognised as being based on considerations central to the proper administration

of justice, and the position of the other party to the litigation.[4] By that is meant the

[4]              Scotts Head Developments v Pallisar Pty Ltd [1994] NSWCA 281. Referred to in Worldwide Enterprises Pty Ltd v Silberman (2010) 26 VR 595, 601 and Rossi Homes Pty Ltd v VCAT [2018] VSC 95.

public interest in ensuring litigation is properly conducted by those with an

understanding of the legal issues and Court procedures and ethical duties to the Court and professionally trained or expected to: adduce only relevant documents;

adduce and test relevant undocumented facts; expose the applicable law; and not

propounding a case or defence that lacks a tenable basis.

7           With such responsibilities, a corporation as legally unrepresented litigant is

distinguishable from natural persons as litigants who appear for themselves free of

restrictions such as rule 1.17(1) even though in many cases, through a querulous

disposition or through no fault of their own, litigants in person can protract the

litigation and add to the labours and expense. It also adds burdens and delay for the

Court because courts are expected to give litigants in person assistance that so far as

possible diminishes the disadvantages that a litigant in person has as a consequence

of being opposed to a trained lawyer.

8           As explained in Rossi Homes v VCAT[5] the position of a corporation as litigant is

[5] [2018] VSC 95, [4].

different to the natural person because a company is a creation of the law with a

special right of limited liability to creditors, and a protection of the assets of the

individuals who stand behind the company. The informing policy of rule 1.17 is

that the benefits of incorporation bring with it the burden of having regard to the

other party’s interests in litigation by not permitting the corporate litigant to conduct

litigation without legal representation.

9           So, the starting point is that a company must be represented by a lawyer in Supreme

Court proceedings. But, as with all things procedural, the Court may dispense with

compliance before or after the occasion for compliance arises.[6] For example, it is not

[6]              See rule 2.04. A similar dispensation rule appears in the subordinate Courts and the Federal Court.

unknown as matter of expedience to give leave to a director of a closely held private

company to appear in Court at a routine directions hearing, or perhaps to deal

consensually with an insubstantial interlocutory matter about which there could be

no doubt about the director’s authority to bind the company. Otherwise, in

Worldwide Enterprises v Silberman[7] the following considerations were identified as

[7] [2009] VSC 165, affirmed on appeal in (2010) 26 VR 595.

informing the exercise of discretion to dispense with the rule:

(i) the manner in which the case has progressed at the time that the application

for dispensation is made;

(ii)        the manner in which the case can proceed in the future without a solicitor;

(iii)       the complexity of the issues involved in the case;

(iv)       whether the lack of disciplinary measures in relation to the person seeking to

represent the company will affect the administration of justice;

(v)        whether the case can be conducted in an orderly and responsible fashion

without a solicitor;

(vi)       whether there are financial considerations which would inhibit a company

from obtaining legal representation;

(vii)      the stage which the case has reached;

(viii)     whether the defendant is likely to expend more funds in defending the claim

absent a solicitor acting for the company; and

(ix)       what effect, if any, permitting a company to appear without a solicitor will

have on court resources and, particularly, the effect upon other litigants in the

court list.

10         The procedural rules for bringing an appeal this Court from a Tribunal are to be

found in Chapter II of the Rules, the Supreme Court (Miscellaneous Civil Proceedings)

Rules 2018.[8] An appeal is commenced by notice of appeal. Rule 4.06(1) states that

[8]              Effective from 23 July 2018.

‘A notice of appeal under this Part shall ― (a) be signed by the appellant or the

appellant’s solicitor …’ The appellant’s notice of appeal was signed by Mr

Mako’ochieng as director on 2 October 2018. That was five years and eight months

after the consent orders. By filing the notice of appeal the appellant corporation has

contrary to r 1.17 taken a step without a solicitor. That makes it an irregularity not a

nullity.[9] The Court can set aside the proceeding or any document in the proceeding, or exercise powers of amendment,[10] or, as I have said, the Court can dispense with

[9]              See rule 2.01(1).

[10]             See rule 2.01(2).

compliance after the occasion for compliance arises.

11         The next steps for an appeal under Chapter II of the Rules is to file a summons for

directions and a supporting affidavit. But in this case, the Council intercepted by

filing a conditional appearance to the appeal and then a summons seeking an order

that the proceeding be set aside, or alternatively, that the notice of appeal and the

appellant’s supporting affidavit be set aside, or, that ‘the proceeding be permanently

stayed unless and until, and only for such time as, the Appellant is represented by a

solicitor who has filed and served a notice of appointment including an address for

service in accordance with Rule 20.02 of the Supreme Court (General Civil Procedure)

Rules 2015 (Vic).’

12         Despite that, Mr Mako’ochieng then took the steps of filing a summons for directions

on the appeal. Ordinarily, the directions hearing would be the first occasion on

which the matter would go before a Judicial Registrar of the Court to deal with

procedural matters including, possibly or expectably, the question of legal

representation. In this case, the directions hearing was adjourned pending the

hearing of the Council’s summons. In the meantime, Mr Mako’ochieng took the step

of filing a 38 page affidavit with 19 exhibits in support of the application for leave to

appeal. One of the exhibits (BOM-07) is a compilation of the documents in the

Tribunal Book which is 1353 pages. That gives a preview of the conduct of the

dispute in the Tribunal.

13         The Council contends that the appellant ought not be permitted to take a step in the

proceeding without legal representation because:

(a) having regard to the way in which the appellant conducted the Tribunal case

as well as this appeal proceeding, it is likely that without legal representation,

the appeal will take substantially longer to hear and determine, the Council

would incur substantially more legal costs (as occurred in the Tribunal) and

the Court’s resources would be unreasonably expended, affecting both the

Court and other litigants;

(b) as the proceeding is in its early stages, the engagement of legal representation

by the appellant would assist the parties and the Court in refining and

simplifying the issues in dispute and enable the remainder of the proceeding

to be conducted efficiently;

(c)	the legal issues in the proceeding as framed are complex; and
(d)	the lessee’s prospects of success are low.

1. The Council’s summons is supported by an affidavit of Suzanne Tinkler, Special

   Counsel, and Hannah Hofman, solicitor, which are also, in combination, substantial

   because they were bound to expose for the Court the dispute and the conduct of the

   application in the Tribunal. It is obvious from the affidavit material filed on the

   summons, that the Council does not wish there to be a repetition of the way in

   which, it says, the Tribunal proceedings in their entirety were conducted on behalf of

   the lessee, and expects that the appointment of suitable lawyers would go some way

   to preventing that, at least by attenuating the scope of the appeal and the extent of

   the material. The complaint is that the appellant’s Tribunal application and

   submissions (written and spoken) and correspondence were convoluted, lengthy

   and very difficult to understand; referred to many irrelevant matters and a vast

   amount of case law that was irrelevant or was misconstrued; and, submissions were

   made that were untenable. All of this had to dealt with, which added to the duration

   of the proceedings and the labours and expense of responding to the application.

2. Antecedent correspondence from the Councils solicitor’s to Mr Mako’ochieng

   certainly, and fairly, put him on notice about the operation of rule 1.17 and the need

   for the appellant to engage solicitors. The appellant has not filed a countervailing

   summons seeking dispensation from rule 1.17 on which it would have the onus of

   persuading the Court to exercise its discretion favourably. That is because Mr

   Mako’ochieng took, and steadfastly maintained, the position that rule 1.17 had no

   application to appeal proceedings governed by Chapter II. His written submissions filed after the hearing of the summons maintained that contention but, made

   submissions in the alternative to, in effect, seek a dispensation from complying with

   rule 1.17.

16         I think the Council’s application was justified and I would allow it. I propose to

order a stay of the proceeding until 4pm on 12 April 2019 to give the appellant time

to appoint a legal representative, failing which the proceeding will be set aside by

self-execution. I do so in essence for the following reasons.

17         First, I would hold that rule 1.17(1) of Chapter I applies in the case of a corporation

that files a notice of appeal under Chapter II seeking leave to appeal under s 148 of

the VCAT Act. That was an unwise and time consuming point to take and pursue

energetically, and only served to fortify the Council’s apprehensions.

18         Secondly, rule 1.17 is there, and there is good reason for it. Mr Mako’ochieng has

not made out any case for a dispensation. He has asserted disadvantage and

financial constraints on the company if the rule is enforced, but he has not put

forward any evidence to support that. He says the appellant has tried to, but cannot,

secure lawyers on a pro bono or discounted fees basis. He says he is a studying law

as a graduate entry level student at Victoria University and says he has access to

library materials and ongoing free legal services from two law lecturers at the

University who are familiar with the case. He says he is fully informed of the facts

and issues and is ‘ready to run’ the appeal.

19         I think the Council’s apprehensions about the likely problematic and costly conduct

of this appeal, having regard to the history of the Tribunal proceedings, are real and

well founded. I am afraid to say there is an observable tenacity in the appellant’s

mission, and I think it is very likely the same attrition as occurred in the Tribunal

will likely set in and cause the appeal to become quite wide ranging and protracted. I

mean no disparagement, but legal questions concerning functus officio of a decision

maker, statutory jurisdiction, inherent or implied power, distinction between courts

and Tribunals, and elevated jurisprudence on jurisdictional error in administrative law are not elementary, and especially call for the assistance of trained legal

practitioners.

20         Thirdly, caution is required in considering the Council’s submission that as part of

the aggregate of factors to be taken into account, the appellant’s prospects of success

on the appeal are low. Worldwide Enterprises v Silberman[11] proceeds on the basis that

it is a factor to be taken into account with others. The awkwardness for this Court,

on this application, is that the question of prospects will be a question on the

application for leave to appeal. But part of the Council’s submission about the

mischievous conduct is that the appellant put arguments to the Tribunal that were

found to be untenable. That becomes part of the fabric of a submission that the

perseverance with such arguments by an unrepresented litigant on appeal only adds

to the burdens and expenses on appeal. I think it is unavoidable on this application

not to expose some instances of the untenable arguments. They seem (but it is not

clear) to remain in the interstices of the notice of appeal.

[11]             See Worldwide Enterprises v Silberman [2009] VSC 165 [20].

21         Fourthly, the question on appeal is whether the Tribunal had jurisdiction to set aside

its own consent orders. The basis of the challenge on appeal is not clear to the

extent, I think, that it will embarrass or prejudice the fair conduct of the appeal.

Even with Mr Mako’ochieng’s familiarity with the case and his legal studies and

assistance, the conduct of the dispute so far (including this application) shows that

the proper conduct of this appeal will be best enabled by adhering to the application

of rule 1.17 which, after all, ought to be in the appellant’s interests.

22         I shall commence with an abridged account of the Tribunal proceedings. This is

more than mere background. It ought give an insight into the difficulties that I think

the appellant will face on the merits, and where the balance of justice lies in this

application.

23         The lease commenced on 1 December 2006. It was for a term of five years at a

commencement rent of $80,000 per annum. There was an option to renew the lease for another term of three years. The first application in the Tribunal, commenced by

the lessee on 2 December 2011, concerned the issue whether it was entitled to

exercise its option to renew the lease, and whether it had properly done so according

to the lease. In that proceeding the lessee had solicitors acting. Points of Claim were

signed by legal counsel. The lessee’s claim was for: an injunction to restrain the

Council from re-entering the premises; a declaration that the lessee was entitled to a

renewal of the lease; damages for ‘outgoings unlawfully demanded’ by the Council;

and damages for breach of lease by the Council.

24         The Council said that the lessee was not entitled to a renewal because: the notice to

exercise the option for renewal was not given within the timing stipulations in the

lease; the lessee had persistently defaulted under the lease; and the lessee had not

remedied its breaches. The Council counterclaimed for possession of the premises

and damages for unpaid rent.

25         As a result of a mediation, on 23 January 2013 the Tribunal made an order by

consent of the parties to dismiss the claim and the counterclaim. There was no order

for costs. The order shows that both parties were legally represented by counsel.

Those consent orders were made in expectation of the parties executing a deed of

settlement of the dispute. That deed was signed on 25 January 2013. The parties and

signatories to the deed included Mr Mako’ochieng and his co-director and

shareholder Justine Sinclair as guarantors of the lessee’s obligations.

26         In essence, under the deed the Council agreed to renew the lease to 30 June 2014.

That is, the primary term of the lease having expired on 1 December 2011, and the

lessee having remained in possession, the lessee was given another one and a half

years from the making of the deed in January 2013 to stay in the premises. That was

six months short of the termination date had the disputed renewal been given in the

first place. There were other concessions given to the lessee such as forgiving rent

for February and March 2013 and, after that, agreeing that the rent for the remainder

of the renewed term would not be subject to automatic Consumer Price Index

increases. For its part, the lessee agreed in the meantime to use its best endeavours to find alternative premises, and if it did, the lessee was then entitled to terminate the

renewed lease before its expiry date on 30 June 2014. That was a clause for the

lessee’s benefit. But the search for alternative premises was entirely the

responsibility of the lessee, and of no concern or burden to the Council. Above all,

the deed said plainly and unconditionally: ‘the Renewed Lease will terminate at

midnight on 30 June 2014.’ The parties gave each other mutual releases of liability of

a type and wide extent that is typical in a settlement of legal proceedings.

27         On 1 July 2014 the Council re-entered the premises as it was entitled to do under the

deed.

28         Then, on 9 July 2014 the appellant applied to the Tribunal, in a new proceeding, for

an urgent mandatory injunction described as being in the nature of relief from

forfeiture of the lease. The appellant was represented by experienced counsel. The

injunction was sought in aid of a legal claim that the deed of settlement should be set

aside or terminated on the grounds of mistake, failure to fulfil a condition precedent,

frustration and unconscionable conduct. That injunction application went before the

Tribunal on 10 July 2014. It is not clear, but as I read the transcript the gist of the

application was as follows. The deed was made in January 2013. At that time, as the

appellant knew, the State Minister in charge of Gaming and Liquor Licensing had

imposed a moratorium on trading after 1 a.m. by taverns, hotels and nightclubs in

the Capital City Zone and Docklands Zone. That moratorium was announced to be

in place until 30 June 2013. But after the deed was made, on 14 June 2013 the

Minister extended the moratorium to 30 June 2015.

29         The injunction submission went as follows. In making the deed, the appellant knew

of the existing moratorium to 30 June 2013, as of course did the Council. But the

appellant thought it had 12 months beyond that to transfer its licence which is why it

agreed under the deed to a termination of the lease on 30 June 2014. What the

appellant did not count on was the extension of the moratorium by the Minister. It

was not submitted or shown that the Council knew, when making the deed, that the

moratorium would be extended by the Minister. It was asserted that the extension of the moratorium caused difficulties for the appellant in relocating its nightclub

business, which was said to be valueless without the ability to operate by licence into

the wee hours after 1 a.m. This culminated in a submission that the extension of the

moratorium was a frustrating event and the appellant could stay put in the premises

despite the right of the Council to re-enter on 1 July 2014 under the deed.

30         A Senior Member of the Tribunal had no hesitation in refusing the injunction. There

was no serious question to be tried. There was no prospect of success on the

question as put. In other words, the case was hopeless. On the explicit terms of the

deed of settlement the lease was to end on 30 June 2014, whatever endeavours were

made by the appellant to find suitable alternative premises. Nothing in the deed

created a precondition that it was subject to the tenant finding alternative premises.

Secondly, the Tribunal determined that the doctrine of frustration of contract had no

application as the extension of the moratorium did not render performance of the

terms impossible or difficult. The imposition of the government moratorium did not

prevent the appellant from using its best endeavours to find alternative premises.

Nor was there a case to be made for unconscionable conduct. The planning scheme

had been in place since 2010. There was no case in mistake. Moreover, the delay in

bringing the application was in the aggregate a disqualifying factor.

31         That decision is not the subject of any challenge.

32         The next event is astonishing. It happened on 16 December 2017. That is three and a

half years after the injunction was refused, and almost five years after the consent

orders and deed of settlement. The appellant no longer had solicitors and counsel

acting. On its behalf, Mr Mako’ochieng as director brought an application to the

Tribunal ― in the original proceeding ― seeking to reinstate the proceeding and set

aside the deed of settlement and the consent orders.

33         It is unnecessary to go into any detail about the content of the materials in support of

the application. In essence, the appellant was again asserting in the Tribunal that the

deed and the consent orders should be set aside because the lessee would not have entered into the terms had it known about the moratorium extension. The case as

put by Mr Mako’ochieng was to allege fraud by the Council; that is, the Council had

procured the terms of settlement by fraud in falsely representing material facts, and

by misleading and deceptive conduct by things said and by its silence. As was his

case for the failed injunction, it was not being said that the Council knew before the

deed was signed that the moratorium was to be extended. I am not sure, but he

seemed nevertheless to be trying to make a case, again, that the Council had

unconscientiously stood by silently, knowing about the extension, and that the lessee

was acting to its detriment in signing the deed in the mistaken belief that there

would be no extension of the moratorium.

34         To cut a long story short, the Tribunal, on 16 March 2018, ordered a hearing to take

place to consider the question ‘Should the consent orders made on 23 January 2013

be set aside on the ground that they were vitiated by fraud or misleading and

deceptive conduct?’ The Council then agitated the question whether the Tribunal

had jurisdiction to hear such a preliminary question, as the making of the consent

order on 23 January 2013 meant the Tribunal was functus officio

35         On 21 May 2018, another Senior Member vacated the earlier order and instead posed

the preliminary question as being ‘Does the Tribunal have jurisdiction in this

proceeding to determine whether the consent orders made on 23 January 2013

should be set aside?’

36         This brings me to the order under appeal. The hearing of that question before Senior

Member Davis went for two days on 19 June and 22 August 2018. Mr Mako’ochieng

appeared on behalf the appellant. It is necessary to state the substance of the

arguments put by Mr Mako’ochieng in support of his application as recounted in the

Tribunal’s reason:

The applicant submitted that the Tribunal has power to re-open the proceeding and set the order of 23 January 2013 aside because of the following:

(a) First, to ensure that the Tribunal’s procedures do not effect

injustice.

(b)

Secondly, those which are authorized by statute, in particular , section 119 and section 120 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). That is, section 119 allows the re-opening of proceedings for clerical error and mistake and section 120 allows the review of a proceeding where a party has not appeared. It is said by the applicant that it did not appear in this proceeding because Mr Stirling [counsel for The Big Apple] was not able to practise as a barrister at that time because he had been suspended (however, the applicant conceded on the second day of hearing that the suspension was stayed at the relevant time).

(c)

Thirdly, that the judgement was obtained by fraud, misleading and deceptive conduct or by agreement which was void or voidable. That is, there was alleged fraud on behalf of the respondent because it represented to the applicant that it could transfer its liquor licence to other premises. It is further alleged that there was third party fraud because Mr Stirling was not permitted to practise. However, it is clear that the VCAT order suspending Mr Stirling from practice was stayed at the time the consent orders were made in this proceeding and therefore Mr Stirling was entitled to practise. It is further alleged, that there was also third-party fraud because Mr Robert Hay of Counsel, who represented the respondent at the hearing, had discussions about the proceeding at an earlier time. Apparently, Mr Hay was asked if he would appear in the proceeding and he requested material from the applicant; which material was never supplied.

37         The Tribunal decided that it became functus officio once it made an order finally

determining a proceeding or once the order has been authenticated. As a result, the

Tribunal did not have jurisdiction or power to make an order to re-open the consent

order made. The general power of a court to set aside a perfected judgment where it

was obtained by fraud could not apply to a tribunal unless the statute by which the

tribunal was created and on which it conferred powers permitted the exercise of

such a power.

38         Mr Mako’ochieng had submitted that for the purposes of the Retail Leases Act and the

Australian Consumer Law and the Fair Trading Act , the Tribunal was a court. That is,

if the Tribunal had jurisdiction to apply those statutes in proceedings before it, it was

acting judicially and that made the Tribunal a court with jurisdiction or inherent

power to set aside its own orders. Such a submission was also rejected, and I cannot

resist saying it was manifestly untenable. Just because the Tribunal, a statutory

creation, applies the applicable statute law to an application before it does not
therefore make it a Court.

39 Reliance was placed by him on s 119 of the VCAT Act which is the Tribunal’s

equivalent of the ‘slip rule’. That is, the Tribunal has the power to correct an order if

the order contains a clerical mistake, or an error arising from an accidental slip or

omission or a material miscalculation of figures or a material mistake in the

description of any person, or a defect of form. That was rejected by the Tribunal and

again I cannot resist saying that such a rule simply had no application. There was no

accidental slip or clerical error in the making of the consent orders by the Tribunal or

the parties.

40 Reliance was also placed on s 120 of the VCAT Act. That section gives the Tribunal

power to revoke and reopen an order made if a person was absent at the hearing and

had a reasonable excuse for not attending or being represented at the hearing, and if

there was a reasonable case to argue in relation to the subject matter of the order.

But Mr Mako’ochieng and the appellant’s counsel were present when the consent

order was order was made.

41 An attempt was then made to engage s 120 by relying on the professional situation

of his counsel who appeared for him at the Tribunal on the making of the consent

orders on 23 January 2013. According to the materials, on 27 March 2012 the

practising certificate of the appellant’s counsel’s was suspended for three years. But

that suspension was stayed, permitting him to practise as a barrister. Nevertheless

the appellant argued that the suspension meant that the appellant had not

‘appeared’ by counsel because counsel was not entitled to ‘appear’. He also argued

that the suspension of his counsel was ‘a third party fraud’, that is, a fraud

perpetrated upon the Tribunal and therefore the jurisdiction of the Tribunal

remained unexercised. But, the fact is that at the time the deed of settlement was

made and as at the time the consent orders were made, the appellant’s counsel was

entitled to practise.

42 It is impossible to see how s 120 had any application on the facts. Mr Mako’ochieng

was present at the Tribunal. The appellant appeared by counsel. It was impossible,

as the Tribunal found, for the appellant to contend that it did not appear.

43         Another argument concerned the position of counsel for the Melbourne City Council

It was said that the Council’s barrister had a conflict of interest and that was

equivalent to fraud. The conflict was said to have arisen because Mr Mako’ochieng

had spoken to the Council’s barrister previously about his problem with the Council.

Yet, at no stage throughout the proceeding did Mr Mako’ochieng or his counsel raise

the question of the barrister’s conflict of interest. The Tribunal concluded that this

argument afforded no grounds for conferring jurisdiction of the Tribunal to re-open

the case. The fact is the appellant never retained Council’s barrister. Nor was there

any suggestion that the Council’s barrister used any information that was given to

him that was confidential to somehow assist the Council in the conduct of the

Tribunal proceedings.

44         In another attempt to overcome the principles of functus officio and have the

Tribunal re-open the consent orders, Mr Mako’ochieng contended that the orders

were invalid due to jurisdictional error that arose from the alleged deceit committed

by the Council in procuring them, deriving as they did from the Deed of Settlement.

He contended that as the orders involved jurisdiction error, they could not be

regarded as having any legal effect. This was based on the High Court decision of

Minister for Immigration and Multicultural Affairs v Bhardwaj.[12]

[12] [2002] 209 CLR 597.

1. Bhardwaj concerns what has been called ‘bureaucratic self-correction’.[13] It is a case

   [13]             See Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (6th ed) [10.70].

   about the nullification of administrative action by a Tribunal done without legal

   authority under the applicable statute governing the Tribunal. The decision-maker

   in that case was a delegate of the Minister for Immigration. At first, a decision was

   made to dismiss an appeal of a decision to cancel a student visa. That decision was

   made in the absence of the appellant. As a result of an administrative oversight, the

   Tribunal had not been told that the appellant was ill and would be unable to attend the hearing, and requesting an adjournment. The Tribunal then reconvened a week

   later when the appellant was able to attend; heard him; and then upheld his appeal.

46         The question in Bhardwaj was whether the Tribunal member had a power of

self-correction. The Court upheld this power of self-correction on the basis that the

first decision was vitiated by jurisdictional error which meant that the first decision

was no decision at all. The statute under which the Tribunal operated did not

include a power to re-open a decision. In essence, the decision is based on the

thinking that, by reference to the statute governing the Tribunal’s powers and

functions, the Tribunal was bound to give the appellant the opportunity to appear

and give evidence and present arguments. In not affording that opportunity, the

Tribunal itself had not acted in accordance with the statute, thereby committing

jurisdictional error and opening the way to conclude that the powerful consideration

of finality and functus officio had no application, and there was power for the

Tribunal to make a second decision in accordance with the statute.

47         There is no suggestion that the Tribunal here had not discharged its statutory

function acting in its civil jurisdiction . The Tribunal decided that the cardinal

principle was that once an order has been perfected, the Tribunal was functus officio

and did not have jurisdictional power to re-open. Nothing in the VCAT Act

expressly or impliedly permits the Tribunal to conduct a collateral review of a

decision made by the Tribunal in the exercise of its civil jurisdiction. The Tribunal

said that any complaint that a tribunal’s decision was affected by jurisdictional error

may be rectifiable by appeal under s 148 of the VCAT Act.

48         That account ought to set the context in which the Council has formed its

apprehension, which I accept as real, about the way this appeal is likely to be

conducted and what makes the subject matter of the appeal one that calls for the

enforcement of rule 1.17 without dispensation. The Council’s materials refer to

numerous instances by the appellant of disorder, delay, the use of irrelevant

documentation and cases and other conduct which was wasteful and caused expense

to be incurred. In turn that has led Mr Mako’ochieng to deny or explain or extenuate

what occurred and levelling blame back at the Council. I will not concern myself

with such adjectival matters. This procedural matter is to be approached by seeing if

there are grounds for exercising the discretion to dispense with rule 1.17. But, as Mr

Mako’ochieng has challenged the applicability of rule 1.17 at the threshold, I shall

deal with it first.

49         His submission proceeded along the following steps. Chapter I rule 1.17

commences with the words ‘Except where otherwise provided by or under any Act

or these Rules, a corporation shall not etc…’ He then looks to Chapter II rule 4.06(1)

and seizes on the words ‘A notice of appeal … shall (a) be signed by the appellant or

the appellant’s solicitor’. He submits that the requirement that the notice be signed

by the appellant, when juxtaposed with the alternative of the ‘appellant’s solicitor’

means that this special procedural rule provides an exception as allowed under the

imported Chapter I rule 1.17. He says the appellant Big Apple Pty Ltd has signed

the notice of appeal through the office of its director. Therefore, there is compliance

with the rules.

50         I reject that submission. It misunderstands the interrelationship between Chapter I

and Chapter II of the Rules. The proper construction in my view proceeds along the

following steps.

51         First, Chapter I rule 1.05 says: ‘These Rules do not apply to a civil proceeding to

which any other Chapter of the Rules of the Supreme Court applies except as that

Chapter provides.’ The opening phrase ‘These Rules’ means Chapter I.[14] Therefore,

[14]             See r 1.01(1).

when Chapter I rule 1.17 commences with the qualifying words ‘Except so far as is

otherwise provided by or under any Act or these Rules, a corporation …’ the

exception has to be found in Chapter I. The appellant cannot point to a relevant

exception in Chapter I.

52         Secondly, Chapter II Order 4 specially governs appeals from tribunals as a type of

civil proceeding. Chapter II rule 1.07 provides that —

Except so far as is otherwise provided by these Rules [i.e. Chapter II] or any Act, Chapter I of the Rules of the Supreme Court for the time being in force and the general practice of the Court apply so far as practicable in relation to a proceeding in

which these Rules apply’.

53         Thus, Chapter II expressly picks up Chapter I rule 1.17. That means unless Chapter

II provides otherwise, a corporation shall not take a step in an appeal from a

Tribunal save by a solicitor. Mr Mako’ochieng seizes on the requirement that the

notice of appeal shall be signed by ‘the appellant’ ― as juxtaposed with the

alternative requirement of being signed by ‘the appellant’s solicitor’ ― to say that the

special rule recognises that an ‘appellant’ may not have a solicitor but can commence

and proceed with an appeal. That much may be accepted. It is not uncommon for

non-corporate litigants in person to conduct their own appeals from VCAT. Quite a

few do. But that does not mean that it also qualifies rule 1.17. As was submitted by

the Council, Chapter II rule 4.06 is capable readily of being interpreted in a way that

is consistent with rule 1.17 by construing the signing of a notice of appeal by the

appellant as intending to mean appellants that are not corporations. If the appellant is

a corporation then rule 1.17 is superimposed.

54         There are very strong grounds to discern that intention because there is no reason to

depart from the dominant rule that a corporation shall not take a step in a

proceeding without legal representation just because the proceeding happens to be

an appeal from a Tribunal. Such a construction does not produce any unjust or

unreasonable or inconvenient consequences. The reasons justifying rule 1.17 apply

equally to an appeal brought to the Supreme Court as they would to any other civil

proceeding under Chapter I.

55         To give weight to the Council’s apprehensions, in his subsequent written

submissions Mr Mako’ochieng sought to augment his construction argument by

reference to the existence of a Practice Note SC CL 9 issued by this Court with the

authority of the Chief Justice in September 2018. That Practice Note describes the

‘nuts and bolts’ procedures to be followed in the Judicial Review and Appeals List

after proceedings have commenced. It is unconcerned with the particular question

of construction before me, and assumes correct process as a matter of form. He then

relies on what he calls the ‘advice’ from the Court within a document dated August

2018 available from the Court’s Principal Registry with the title: ‘Appealing a VCAT

decision in the Trial Division of the Supreme’ and the sub title ‘A guide for those

who do not have legal representation.’ Part 2 of that document concerns the

electronic filing of process on the Court’s ‘Redcrest’ system and states:

When will I know that my documents have been accepted?

Once the Supreme Court Principal Registry is satisfied that all of the documents you have submitted comply with the Rules, you will be notified via RedCrest that they have been accepted. If there are any issues with your documents, the Self-represented Litigants Coordinator will contact you and talk through any changes that you need to make.

The notification you receive from RedCrest will provide a link for you to click on to download and print the approved documents. The documents will now have the Court seal affixed to them.

56         Mr Mako’ochieng submits that the appellants notice of appeal has been accepted by

the Supreme Court in accordance with the above guide, and therefore is taken to

comply with the Court’s rules. He says the fact that the notice of appeal was

accepted by the Supreme Court filing system supports his construction of the Rules

that a notice of appeal can be filed by a corporation without a solicitor acting. But,

this overlooks what is stated at page 4 of the guide (with my underlining):

Representing Yourself

We encourage you to consider options for getting legal assistance; however, as an individual you do not have to have a lawyer represent you in the Supreme Court - you can represent yourself (although if you are a company you must have legal representation).

The process for bringing an appeal is complex and if you represent yourself you will need to understand the relevant legislation, rules, and practice notes which govern the practice in the Supreme Court.

The Supreme Court staff are not allowed to offer you legal advice or present your case for you, but they will be pleased to assist you with procedural and practical advice.

Appendix B of this guide provides details of organisations you may wish to contact to seek free or low-cost legal advice. It also gives you information on publications where you may find legislation and legal information to help you prepare your case.

57         Practice Notes, Information Packs and other materials published by the Court are an endeavour to assist and inform people. They are not delegated legislation. What

governs legal procedure is the court’s procedural rules. The process of reception and

electronic filing of documents is not a judicial act but is an administrative or

ministerial type act undertaken by court officers. The ‘acceptance’ of the appellant’s

notice of appeal is an acceptance by Registry of a document for filing as a matter of

documentary form. In that limited sense there might be scrutiny of a lodged form

for compliance with the Rules. But acceptance of a document for filing says nothing

about its validity or compliance with the rules or susceptibility to be set aside. For

example, a writ that is accepted for filing does not therefore mean that the statement

of claim within it complies with the rules of pleading. Just because the notice of

appeal has been accepted for electronic filing does not therefore mean rule 1.17 has

no application. Due process has it that, as has happened here, it is after the filing

and service of the notice of appeal that a litigant then takes the step of objecting to

the validity of process for non-conformity with the Rules.

58         Thus, rule 1.17 applies. I turn now to Mr Mako’ochieng’s grounds for seeking a

dispensation of the Rule. He has not seen fit to put these grounds in an affidavit but

rather has stated them in his written submissions. I shall deal with each in turn.

59         First, he says he has spent $250,000 in legal fees since the dispute commenced in late

December 2006. He says the ‘eviction’ caused the appellant to lose its main source of

income. With a loss of its main source of revenue he says the appellant has been

‘financially constrained in obtaining legal representation and at the same time

managing the rebuilding for the business, which has involved injection of finance to

support the rebuilding process and diversification into new lines of trade.’ He says

the company has tried to secure lawyers on a pro bono basis or discounted fees but

these efforts have not been successful.

1. I agree with the Council’s submission that there is insufficient information about the

   appellant’s financial position to warrant the Court granting a dispensation. In Rossi

   Homes Pty Ltd v VCAT,[15] it was said:

   [15] [2018] VSC 95, [9].

   The financial considerations which inhibit a company from obtaining legal representation may be of particular importance in providing the reason for the application, as is apparent in this case. If that is the case, it is important that the company produce evidence of its financial capacity or lack of capacity and of those standing behind it, the effect of diverting company

   resources to paying legal expenses, the nature of the company’s undertaking,

   its financial structure, its ability to retain and pay its staff and the identity and
   spread of shareholders.

61         The appellant has not adduced any evidence to support the assertions and its

submissions. Accordingly, I place little weight on this first submission. As I detect

from the materials, the appellant is looking to claim damages against the Council in

the millions. If the appellant says it cannot pay lawyers, it raises questions about the

position of the Council in incurring substantial costs on the appeal.

62         Secondly, the appellant submits that Rossi is distinguishable because in that case the

Court took into account the conduct of the corporation in the appeal proceeding, but

not the conduct of the appellant in the earlier tribunal proceeding. As the Council

submits, that is not so. In Rossi, the Court explicitly concerned itself with the

conduct of the proceeding in the Tribunal:

It is clear from the transcript of the proceeding before VCAT that Mr Rossi

struggled to posit the plaintiff’s case in a form that was understandable by the

Tribunal and the defendant. Compounding the issue was Mr Rossi’s

difficulties with the concept of jurisdiction. Similar obstacles are likely to face
and frustrate Mr Rossi in prosecuting the proceedings.

63         Thirdly, he submitted that the conduct of the VCAT application ought not be

indicative of the way in which the appellant will conduct its appeal in this Court. He

says that the chances of a repeat of what happened at the VCAT are remote. I am

afraid to say that has not been demonstrated. From what I can distil from the Notice

of Appeal, the impeachment of the Tribunal’s order appears to involve a re-visiting

of the whole dispute and a re-run of the arguments that were rejected. As I have

said, I think there are grounds for the Council’s apprehensions.

64         Beyond that, Mr Mako’ochieng has not put forward anything to favourably attract the Court’s discretion to dispense with r 1.17. It is a pity that he had to have resort to

contending that I should consider how in two other completely unrelated appeals

this Court has dealt with decisions of the particular Senior Member of the Tribunal.

That was I think a submission that should not have been made.

65         Ultimately, procedural rules are a tool of justice and dispensation is given when an

enforcement of the rule might in a particular case cause hardship or can be shown to

serve no useful purpose. Rule 1.17 does not by its nature impose a burden or an

unfair burden on any party when it comes to the just determination of a dispute. It

is doing no more than requiring a party to ensure that its case is properly and

professionally presented to the Court, in the interests of the appellant and the

respondent and the Court.

66         Non-compliance with the Rules can be met with an order that the proceeding be set

aside. I think a less disruptive order in the circumstances of this case is, as the

Council seeks in the alternative, an order that the proceeding be stayed temporarily

until the appellant complies with rule 1.17 by filing a Notice of Appointment of

Solicitor. I think the drawn out situation calls for an ancillary order that unless such

a notice is filed by 4pm on 12 April 2019 then the proceeding will be set aside by self-

execution. I shall prepare and authenticate an order to that effect.

67         There are two residual matters.

68         First, Mr Mako’ochieng has without notice filed a proposed amended notice of

appeal dated 18 February. The Council’s written submissions after the hearing of

the application complain it is yet another example, akin to his conduct of the

Tribunal application, of disorder and additional work caused by changes of position.

The Council say the grounds of appeal in the appellant’s written submission differ

from the first version of the notice of appeal and the proposed amended notice of

appeal. I take this to mean than an application to amend will be opposed.

69         I will decline to determine an application to amend the notice to appeal. Procedural

order needs to be instilled into this appeal. Any application by the appellant to amend needs to be brought on properly, with an opportunity for the Council to

make its submissions. As things stand the next step is for a directions hearing before

the Judicial Registrar for the future conduct of the appeal (including leave to appeal).

That cannot take place whilst the stay is in effect. I think the contingent order ought

be that assuming timeous compliance with rule 1.17 as ordered, either party is at

liberty to apply to the Judicial Registrar to convene a directions hearing for the

future conduct of the appeal including any application to amend the notice of

appeal.

70         Secondly, there is the question of costs of this application. Costs are in the Court’s

discretion. The general rule is that costs follow the event. The Council will say it has

been wholly successful. To avoid the expense of another Court hearing, I invite the

Council to send to my Associate (and serve) a written submission on costs by Friday

15 March next. As a special exception to the stay of the appeal, I give leave for Mr

Mako’ochieng to likewise send to my Associate, and serve, a responding submission

on costs by Wednesday 20 March. I shall then make a costs decision and costs order

‘on the papers’ to finally dispose of all matters on the application. I ask that each

submission not exceed two pages.

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