Thomas v Panourakis - [2014] VSC 398

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 3670

GORDON THOMAS, DOUGLAS THOMAS and KATHLEEN THOMAS	Plaintiffs
v
EMMANUEL (“MANNY”) PANOURAKIS	Defendant

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JUDGE:	KYROU JA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 August 2014
DATE OF JUDGMENT:	26 August 2014
CASE MAY BE CITED AS:	Thomas v Panourakis
MEDIUM NEUTRAL CITATION:	[2014] VSC 398
DECISION APPEALED FROM:	Thomas v Panourakis [2013] VCAT 1014

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ADMINISTRATIVE LAW — Appeal from Victorian Civil and Administrative Tribunal — Fair Trading Act 1999 — Tribunal’s jurisdiction under that Act — Whether s 159 is subject to pt 9 — Whether Tribunal erred in finding it lacked jurisdiction — Whether Tribunal erred in finding plaintiffs had not proved their case.

ADMINISTRATIVE LAW — Natural justice — Plaintiffs bound by their pleaded case and the manner in which their counsel conducted it — Tribunal not obliged to find in favour of plaintiffs on the basis of a case they did not conduct — Tribunal’s use of the word ‘Yes’ during counsel’s submissions did not signify that Tribunal accepted the submissions but only that Tribunal heard them — Factual errors did not vitiate Tribunal’s decision — Tribunal’s reasons not inadequate — Victorian Civil and Administrative Tribunal Act 1998 ss 97, 98, 102, 117.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P Duggan	McNab McNab & Starke
For the Defendant	Mr P G Willis	John Morrow

TABLE OF CONTENTS

Introduction and summary............................................................................................................... 1

Uncontested facts................................................................................................................................ 3

Relevant provisions of the Fair Trading Act................................................................................. 7

Points of claim and defence in the VCAT proceeding................................................................ 9

VCAT hearing................................................................................................................................... 14

VCAT’s Decision.............................................................................................................................. 19

Proposed ground of appeal............................................................................................................ 22

Scope of VCAT’s jurisdiction under the Act............................................................................... 23

Is s 159(2) of the Act subject to pt 9 of the Act?....................................................................... 23
The plaintiffs’ case as conducted before VCAT..................................................................... 24
The plaintiffs’ case as pleaded — wide interpretation of the Act....................................... 25
The plaintiffs’ case as pleaded — narrow interpretation of the Act.................................... 29

Have the plaintiffs made out any part of the ground of appeal?............................................ 32

Proposed order.................................................................................................................................. 36

HIS HONOUR:

Introduction and summary

This is an application for leave to appeal from a decision of the Victorian Civil and Administrative Tribunal (‘VCAT’) made on 19 June 2013 which dismissed the plaintiffs’ claim against the defendant (‘VCAT’s Decision’).[1]
[1]Thomas v Panourakis [2013] VCAT 1014 (19 June 2013) (‘Reasons’). On 23 October 2013, Lansdowne AsJ made an order that the application for leave to appeal, and any resultant appeal, be heard at the same time.

The plaintiffs’ claim was made pursuant to the Fair Trading Act 1999 (‘Act’)[2] and related to a failed investment of $800,000 that was made to acquire an interest in land at Braeside upon which a service station operated (‘Land’). The investment was made following discussions with the defendant and was effected by acquiring units in the Keylock Unit Trust (‘Trust’), the purchaser of the Land.
[2]Although the Act was repealed by…

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.

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Details

Case: [2014] VSC 398
Decision Date: 26 August 2014

CaseChat Overview and Summary

In the matter of Thomas v Panourakis, the respondents, acting as plaintiffs, sought judicial review of a decision made by the Victorian Civil and Administrative Tribunal (VCAT). The dispute primarily concerned the interpretation of the Fair Trading Act 1999, specifically whether section 159 of that Act was subject to part 9 of the Act. The plaintiffs argued that VCAT had erred in determining that it lacked jurisdiction to hear their case and that VCAT had also erred in concluding that the plaintiffs had not proven their case.

The court was required to determine whether VCAT had jurisdiction to hear the matter under section 159 of the Fair Trading Act 1999, and whether VCAT had correctly exercised its discretion in finding that the plaintiffs had not proved their case. Additionally, the court examined whether the Tribunal's decision was influenced by any factual errors and whether the Tribunal's reasons for its decision were inadequate. The court also considered the principles of natural justice, including whether the plaintiffs were bound by their pleaded case and the conduct of their counsel, and whether the Tribunal's use of the word 'Yes' during the plaintiffs' counsel's submissions indicated acceptance of those submissions.

The court found that VCAT had correctly interpreted the Fair Trading Act 1999, concluding that section 159 was not subject to part 9 of the Act. The court further determined that VCAT had not erred in finding that it lacked jurisdiction. Regarding the plaintiffs' failure to prove their case, the court held that the plaintiffs were bound by their pleaded case and the manner in which their counsel conducted it. The court held that VCAT was not obliged to find in favour of the plaintiffs on the basis of a case they did not conduct. The court also found that the Tribunal's use of the word 'Yes' during counsel's submissions did not signify acceptance of the submissions but merely indicated that the Tribunal heard them. The court held that the factual errors did not vitiate VCAT's decision, and the Tribunal's reasons for its decision were not inadequate. The appeal was dismissed.

The court's final order was that the appeal be dismissed, and the decision of VCAT be upheld. The respondents were ordered to pay the costs of the appeal.

Orders