Trombone Investments Pty Ltd v TBT (Victoria) Pty Ltd - [2016] VSCA 108

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0010

TROMBONE INVESTMENTS PTY LTD (ACN 142 192 845)

Applicant

TBT (VICTORIA) PTY LTD
(ACN 006 325 873)

and

ANDY B PTY LTD

(ACN 132 838 487)

First Respondent

Second Respondent

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JUDGES:	ASHLEY, REDLICH and TATE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 May 2016
DATE OF JUDGMENT:	16 May 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 108
JUDGMENT APPEALED FROM:	Trombone Investments Pty Ltd v TBT (Victoria) Pty Ltd [2016] VCAT 12 (Judge Jenkins)

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JUDICIAL REVIEW – Application for leave to appeal from a decision of VCAT refusing to reconstitute the Tribunal on the basis of apprehended bias – Test incorrectly applied – Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Victorian Civil and Administrative Tribunal Act 1998, s 108(1)(a) – Leave to appeal granted – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant and the Second Respondent	Mr L A Warren (solicitor)	Russell Kennedy
For the First Respondent	No appearance	Kalus Kenny Intelex

THE COURT:

The applicant, Trombone Investments Pty Ltd (‘Trombone’), seeks leave to appeal from an order of the Victorian Civil and Administrative Tribunal (‘the Tribunal’), constituted by her Honour Judge Jenkins sitting as the Acting President, which dismissed an application by Trombone for reconstitution of the Tribunal pursuant to s 108(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’) in respect of a tenancy dispute between Trombone, as tenant, and TBT (Victoria) Pty Ltd (‘TBT’), as landlord.[1] TBT is the first respondent to the application for leave to appeal. The application for reconstitution was an application that Senior Member Riegler be disqualified from hearing the tenancy dispute on the ground that there was a reasonable apprehension that he might not bring an impartial or unprejudiced mind to the resolution of the matters to be dealt with at the hearing. The determination of an application for reconstitution on the ground of apprehended bias is informed by considerations of fairness, and the perception of fairness.
[1]Trombone Investments Pty Ltd v TBT (Victoria) Pty Ltd [2016] VCAT 12 (‘VCAT Reasons’). The relevant order is paragraph 4 of the Orders made 9 December 2015.

For the reasons that follow we would grant leave to appeal and we would allow the appeal.

Senior Member Riegler and the quashing of summonses for production of documents

The tenancy dispute arises from circumstances in which Trombone had sought the consent of TBT to transfer its lease for premises in Meyers Place in the city of Melbourne to Andy B Pty Ltd (‘Andy B’), a company controlled by Andrea Borazio, the daughter of Jerome Borazio, who is a director of Trombone. Ms Borazio is also a director of Trombone. Andy B is the second respondent to the application for leave to appeal. TBT served Trombone with a default notice under s 146 of the Property Law Act 1958 alleging a breach of the lease on the basis that Trombone had given…

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 Trombone Investments Pty Ltd v TBT (Victoria) Pty Ltd

Details

AGLC: Trombone Investments Pty Ltd v TBT (Victoria) Pty Ltd [2016] VSCA 108
Case: [2016] VSCA 108
Decision Date: 16 May 2016

CaseChat Overview and Summary

In the case of Trombone Investments Pty Ltd v TBT (Victoria) Pty Ltd, the dispute involved an application for leave to appeal from a decision of the Victorian Civil and Administrative Tribunal (VCAT) that refused to reconstitute the Tribunal on the basis of apprehended bias. The primary issue for the court was whether VCAT had applied the correct test for determining apprehended bias when it refused the application to reconstitute the Tribunal. The case also raised questions about the interpretation and application of section 108(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998.

The court found that VCAT had incorrectly applied the test for apprehended bias, as established in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. The court concluded that VCAT had not adequately considered the material before it and had failed to properly assess whether a reasonable observer might think that the Tribunal was biased. The court found that the correct approach required a consideration of whether the Tribunal's decision-making process was fair and unbiased, rather than focusing solely on the Tribunal's actual decision. The court granted leave to appeal and allowed the appeal, finding that the correct test for apprehended bias had not been applied.

The court's decision highlighted the importance of correctly applying the legal test for apprehended bias in administrative tribunals. The court found that VCAT's failure to properly apply the test resulted in a decision that was not legally sound. The court's decision also emphasised the need for administrative tribunals to ensure that their decision-making processes are fair and unbiased, and that they properly consider all relevant material before them. The final orders of the court were that leave to appeal was granted, the appeal was allowed, and the matter was remitted to VCAT for reconsideration in light of the court's decision.

Orders