Van Susteren v Packaje Pty Ltd - [2008] VSC 586

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PRACTICE COURT

No. 6129 of 2008

JUDITH THEODORA VAN SUSTEREN	Plaintiff
v
PACKAJE PTY LTD	Defendant

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 December 2008
DATE OF RULING:	3 December 2008
CASE MAY BE CITED AS:	Van Susteren v Packaje Pty Ltd
MEDIUM NEUTRAL CITATION:	[2008] VSC 586

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AMINISTRATIVE TRIBUNALS – Small Claims Tribunal – natural justice – failure of tribunal to offer claimant an opportunity to challenge or respond to documents produced – maker of the document not called – whether document relevant to a crucial issue – no want of natural justice

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms S. M. Wilkening-Le Brun	Calleas Le Brun & Burke
For the Defendant	Mr C.A. Connor	Irlicht & Broberg

HIS HONOUR:

This is an appeal against a decision of the Small Claims Tribunal. Given on of 4 April 2008 in which the tribunal heard the appellant's claim against Tyrepower Werribee for payment of the sum of $8,030 and dismissed it.

I take the following summary from the outline of counsel for the appellant. The circumstances giving rise to the claim before the tribunal were that, and, on or about January 2007, Ms Van Susteren purchased a set of wheels and a suspension for her Holden Monaro car from Tyrepower Werribee. The wheels and suspension were installed but she was unhappy that the ride of the car was rough. She contends that the sale contained an implied term that the wheels and the suspension would be reasonably fit for the purpose which was disclosed to the seller, namely that the wheels would provide a satisfactory ride.

Before the Small Claims Tribunal neither the claimant nor the respondent was represented. Ms Van Susteren presented her own case, as is customary in that tribunal, and the company, Werribee Tyrepower, was represented by Mr Paul Joannou and Mr Chris Joannou.

The issue which is before me is whether the decision of the tribunal should be set aside for a want of natural justice. The particular want of natural justice suggested is that the tribunal received two letters offered on behalf of Tyrepower and that the claimant, Ms Van Susteren, was not given the opportunity to test the accuracy of their content by cross‑examination, nor were the authors of the documents produced to verify, on oath, if that be necessary, their statements.

It is common ground that the Small Claims Tribunal has a considerable degree of latitude in the conduct of its proceedings. It is required by section 98 of the VCAT Act to proceed with as little formality or technicality as is appropriate, and evidence of an informal nature may be received. Section 102 also provides a broad discretion as to the way the tribunal should be conducted. I am mindful too of the fact that cases before the tribunal are usually represented by the litigants themselves, without representation, so that the task of the…

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: [2008] VSC 586
Decision Date: 3 December 2008

CaseChat Overview and Summary

The matter before the court was an appeal against a decision of the Small Claims Tribunal in Victoria. The appellant, Van Susteren, had brought a claim against Packaje Pty Ltd, a company, concerning an alleged breach of contract. The Tribunal had ruled in favour of the respondent, and Van Susteren appealed on the basis of procedural unfairness. The appellant contended that the Tribunal had failed to observe the rules of natural justice by not providing an opportunity to challenge or respond to documents produced by the respondent. Additionally, the appellant argued that the maker of the documents was not called to give evidence, and the documents were relevant to a crucial issue in the case.

The court considered whether the Tribunal's failure to offer the appellant an opportunity to challenge or respond to the documents produced by the respondent amounted to a breach of natural justice. The court also examined whether the absence of the document maker from the witness stand and the relevance of the documents to a crucial issue constituted a failure to observe procedural fairness. The court found that the appellant had not demonstrated that the failure to call the document maker or provide an opportunity to challenge the documents led to a miscarriage of justice. The court held that the Tribunal's decision was not tainted by procedural unfairness and that the appellant had not established a case for overturning the Tribunal's decision.

The court concluded that the Small Claims Tribunal had not breached the rules of natural justice by not providing the appellant with an opportunity to challenge or respond to the documents produced by the respondent. The court also held that the absence of the document maker from the witness stand and the relevance of the documents to a crucial issue did not amount to a failure to observe procedural fairness. The appeal was dismissed, and the decision of the Tribunal was upheld.

No further orders were made.

Orders